[Federal Register Volume 70, Number 198 (Friday, October 14, 2005)]
[Rules and Regulations]
[Pages 60134-60198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20001]
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Part II
Environmental Protection Agency
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40 CFR Parts 9, 122, and 403
Streamlining the General Pretreatment Regulations for Existing and New
Sources of Pollution; Final Rule
Availability of and Procedures for Removal Credits; Proposed Rule
Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 /
Rules and Regulations
[[Page 60134]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9, 122 and 403
[OW-2002-0007; FRL-7980-4]
RIN 2040-AC58
Streamlining the General Pretreatment Regulations for Existing
and New Sources of Pollution
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Today's final rule revises several provisions of the General
Pretreatment Regulations that address requirements for, and oversight
of, Industrial Users who introduce pollutants into Publicly Owned
Treatment Works (POTWs). This final rule includes changes to certain
program requirements to be consistent with National Pollutant Discharge
Elimination System (NPDES) requirements for direct dischargers to
surface waters. Today's action will reduce the regulatory burden on
both Industrial Users and State and POTW Control Authorities without
adversely affecting environmental protection and will allow Control
Authorities to better focus oversight resources on Industrial Users
with the greatest potential for affecting POTW operations or the
environment.
DATES: This regulation is effective November 14, 2005. For judicial
review purposes, this final rule is promulgated as of 1 p.m. (Eastern
Time) on October 28, 2005, as provided at 40 CFR 23.2.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. OW-2002-0007. All documents in the docket are listed in the EDOCKET
index at http://www.epa.gov/edocket. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in EDOCKET or in hard
copy at the EPA Docket Center, EPA/DC, EPA West, Room B102, y1301
Constitution Ave., NW, Washington, DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the Water Docket Office is (202)
566-2426).
FOR FURTHER INFORMATION CONTACT: Jan Pickrel, Water Permits Division,
Office of Wastewater Management, Office of Water, (4203), Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
telephone number: 202-564-7904, e-mail address: [email protected].
Greg Schaner, Water Permits Division, Office of Wastewater Management,
Office of Water, (4203), Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202-
564-0721, e-mail address: [email protected].
SUPPLEMENTARY INFORMATION: Information in this preamble is organized as
follows:
A. General Information
1. Does This Final Rule Apply to Me?
2. How Can I Get Copies of This Document and Other Related
Information?
3. What Process Governs Judicial Review of This Rule?
B. Under What Legal Authority Is This Final Rule Issued?
C. How Is This Preamble Organized?
D. What Is The Comment Response Document?
E. What Other Information Is Available To Support This Final
Rule?
I. Background Information
II. How Was This Final Rule Developed?
III. Description of Final Rule Actions
A. Sampling for Pollutants Not Present (40 CFR 403.8(f)(2)(v)
and 403.12(e))
B. General Control Mechanisms (40 CFR 403.8(f)(1)(iii))
C. Best Management Practices (40 CFR 403.5, 403.8(f) and
403.12(b), (e), and (h))
D. Slug Control Plans (40 CFR 403.8(f)(1)(iii)(B)(6) and
403.8(f)(2)(vi))
E. Equivalent Concentration Limits for Flow-Based Standards (40
CFR 403.6(c)(6))
F. Use of Grab and Composite Samples (40 CFR 403.12(b), (d),
(e), (g), and (h))
G. Significant Noncompliance Criteria (40 CFR 403.8(f)(2)(viii))
H. Removal Credits--Compensation for Overflows (40 CFR 403.7(h))
I. Miscellaneous Changes (40 CFR 403.12(g), (j), (l), and (m))
J. Equivalent Mass Limits for Concentration Limits (40 CFR
403.6(c)(5))
K. Oversight of Categorical Industrial Users (40 CFR 403.3(v),
403.8(f)(2)(v), and 403.12(e), (g), (i), (q))
IV. Description of Areas Where EPA Is Not Taking Action on the
Proposed Rule
A. Specific Prohibition Regarding pH (40 CFR 403.5(b)(2))
V. Changes to part 122
VI. Considerations in Adopting Today's Rule Revisions
VII. Regulatory Requirements
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Congressional Review Act
A. General Information
1. Does this final rule apply to me?
Entities potentially affected by this action are governmental
entities responsible for implementation of the National Pretreatment
Program and industrial facilities subject to Pretreatment Standards and
Requirements. These entities include:
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Category Examples of regulated entities
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Local government............. Publicly Owned Treatment Works.
State government............. States and Tribes acting as Pretreatment
Program Control Authorities or as
Approval Authorities.
Industry..................... Industrial Users of POTWs.
Federal Government........... EPA Regional Offices acting as
Pretreatment Program Control Authorities
or as Approval Authorities.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your organization or facility is regulated by this action, you should
carefully examine the applicability criteria in 40 CFR 403.3, 403.5,
403.6, 403.7, 403.8, 403.12, and 403.15 of Part 403 of Title 40 of the
Code of Federal Regulations.
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If you have questions about the applicability of this action to a
particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
2. How can I get copies of this document and other related information?
a. Docket. EPA has established an official public docket for this
action under Docket ID No. W-00-27. The official public docket consists
of the documents specifically referenced in this action, any public
comments received, and other information related to this action.
Although a part of the official docket, the public docket does not
include Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. The official public docket
is the collection of materials that is available for public viewing at
the Water Docket in the EPA Docket Center, (EPA/DC) EPA West, Room
B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket
Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Reading Room is (202) 566-1744, and the telephone number for the Water
Docket is (202) 566-2426.
b. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/ or at the ``Pretreatment''
page at http://cfpub.epa.gov/npdes/home.cfm?program_id=3.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to view public comments,
access the index listing of the contents of the official public docket,
and to access those documents in the public docket that are available
electronically. Although not all docket materials may be available
electronically, you may still access any of the publicly available
docket materials through the docket facility identified in section
A.2.a. Once in the system, select ``search'', then key in the
appropriate docket identification number (OW-2002-0007).
3. What process governs judicial review of this rule?
Under Section 509(b)(1) of the Clean Water Act (CWA), judicial
review of today's rule may be obtained by filing a petition for review
in the United States Circuit Court of Appeals within 120 days from the
date of promulgation of this rule. For judicial review purposes, this
final rule is promulgated as of 1 p.m. (Eastern time) on October 28,
2005 as provided at 40 CFR 23.2. Under section 509(b)(2) of the CWA,
the requirements of this regulation may not be challenged later in
civil or criminal proceedings brought by EPA to enforce these
requirements.
B. Under What Legal Authority Is This Final Rule Issued?
Today's final rule is issued under the authority of Sections 101,
208(b)(2) (C)(iii), 301(b)(1)(A)(ii), 301(b)(2)(A)(ii), 301(h)(5) and
301(i)(2), 304(e) and (g), 307, 308, 309, 402(b), 405, and 501(a) of
the Federal Water Pollution Control Act as amended.
C. How is This Preamble Organized?
There is an outline for the preamble to today's final rule in the
opening of this SUPPLEMENTARY INFORMATION section. For each distinct
issue of the final rule, the preamble is written in a question-and-
answer format that is designed to help the reader understand the
information in the rule. Under each issue, there are subsections that
provide the context for the final rule, including a discussion of the
rules in place prior to today's rulemaking, the changes that were
proposed, the changes that are being finalized (including significant
differences from the proposal), and a summary of major comments and EPA
response.
List of Acronyms
BAT--best available technology economically achievable
BCT--best conventional pollutant control technology
BOD--biochemical oxygen demand
BPJ--best professional judgment
BMP--Best Management Practice
BPT--best practicable control technology currently available
CIU--Categorical Industrial User
CFR--Code of Federal Regulations
CWA--Clean Water Act
ELG--effluent limitations guideline
EMS--environmental management system
EPA--Environmental Protection Agency
EQIP--Environmental Quality Incentives Program
FR--Federal Register
ICR--Information Collection Request
IU--Industrial User
NODA--Notice of Data Availability
NOI--notice of intent
NPDES--National Pollutant Discharge Elimination System
NSCIU--Non-Significant Categorical Industrial User
NTTAA--National Technology Transfer and Advancement Act
OMB--U.S. Office of Management and Budget
POTW--Publicly Owned Treatment Works
PSES--Pretreatment Standards for Existing Sources
RFA--Regulatory Flexibility Act
SBA--U.S. Small Business Administration
SBAR (panel)--Small Business Advocacy Review Panel
SBREFA--Small Business Regulatory Enforcement Fairness Act
SIU--Significant Industrial User
SNC--Significant Noncompliance
SRF--State Revolving Fund
UMRA--Unfunded Mandates Reform Act
WWTP--wastewater treatment plant
D. What Is the Comment Response Document?
EPA received more than 220 comments on the proposed rule. EPA
evaluated all the significant comments submitted and prepared a Comment
Response Document containing the Agency's responses to those comments.
The Comment Response Document complements and supplements this preamble
by providing more detailed explanations of EPA's final actions. The
Comment Response Document is available at the Water Docket. See Section
E below for additional information.
E. What Other Information Is Available To Support This Final Rule?
In addition to this preamble, today's final rule is supported by
other information that is part of the administrative record, such as
the Comment Response Document, and the key supporting documents listed
below. These supporting documents and the administrative record are
available at the Water Docket and via e-Docket:
Information Collection Request
Past EPA guidance manuals and policy documents
Stakeholder communications
EPA data collected in support of this rulemaking
I. Background Information
A. What Is the National Pretreatment Program?
The National Pretreatment Program is part of the Clean Water Act
(CWA)'s water pollution control program. The program is a joint
regulatory effort by local, state, and Federal authorities that require
the control of industrial and commercial sources of pollutants
discharged to municipal wastewater plants (called ``Publicly Owned
Treatment Works'' or ``POTWs''). Control of pollutants prior to
discharge of wastewater to the sewer minimizes
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the possibility of pollutants interfering with the operation of the
POTW and reduces the levels of toxic pollutants in wastewater
Discharges from the POTW and in the sludge resulting from municipal
wastewater treatment.
The Pretreatment Program is a core part of the CWA's National
Pollutant Discharge Elimination System (NPDES) program, and it has
helped communities:
Maintain and restore watershed quality;
Encourage pollution prevention;
Increase beneficial uses of sewage sludge;
Prevent formation of poisonous gases in the sanitary sewer
system;
Meet wastewater Discharge standards; and
Institute emergency-prevention measures.
B. What Regulation Is EPA Revising?
EPA is today streamlining and clarifying various provisions of the
General Pretreatment Regulations for Existing and New Sources of
Pollution codified at 40 CFR Part 403. The CWA directs EPA to develop
regulations in order to control pollutants which may pass through or
interfere with POTW treatment processes or contaminate sewage sludge.
On June 26, 1978, EPA promulgated the General Pretreatment Regulations,
which established standards and procedures for controlling the
introduction of wastes into POTWs (43 FR 27736). There have been a
number of revisions to the General Pretreatment Regulations. The last
major revisions were to implement improvements arising from the
Domestic Sewage Study (Report to Congress on the Discharge of Hazardous
Wastes to Publicly Owned Treatment Works) (55 FR 30082, July 24, 1990).
The General Pretreatment Regulations require POTWs that meet
certain criteria to develop Pretreatment programs to control industrial
Discharges into their sewage collection systems. These programs must be
approved by either EPA or states acting as the Pretreatment ``Approval
Authority.'' More than 1,400 POTWs have developed Approved Pretreatment
Programs pursuant to the regulations in 40 CFR 403.8. These POTWs act
as the Pretreatment ``Control Authority'' with respect to the
Industrial Users that discharge to their systems. In the absence of an
approved POTW Pretreatment Program, the State or EPA Approval Authority
serves as the Control Authority.
Industrial Users of POTWs must comply with Pretreatment Standards
prior to introducing pollutants into a POTW. POTWs are required to
impose ``local limits'' to prevent Pass Through and Interference from
the pollutants discharged into their systems. The General Pretreatment
Regulations also include general prohibitions that forbid Industrial
Users from causing Pass Through and Interference, and specific
prohibitions against the discharge of pollutants that cause problems at
the POTW such as corrosion, fire or explosion, and danger to worker
health and safety. EPA has also developed National categorical
Pretreatment Standards that apply numeric pollutant limits to
Industrial Users in specific industrial categories. The General
Pretreatment Regulations include reporting and other requirements
necessary to implement these categorical Standards (40 CFR 403.12 (b)).
Today's final rule modifies several provisions of the existing
Pretreatment Regulations. The rule includes a variety of changes which
will be described further in Section E.
C. Why Is EPA Revising the Existing General Pretreatment Regulations?
By finalizing today's rule, EPA is working to improve the National
Pretreatment Program to protect public health and the environment,
while maintaining or improving the program's effectiveness. Although
adoption of the General Pretreatment Regulations has resulted in more
consistent implementation of the Pretreatment program on a national
basis, many individual POTWs and Industrial Users have experienced
problems implementing various requirements.
EPA's objective in finalizing today's streamlining regulation is to
achieve better environmental results at a lower cost by allowing
Control Authorities to better focus oversight resources where they will
do the most good. The revisions in today's final rule achieve this
objective by reducing the burden of technical and administrative
requirements that EPA has determined provide minimal environmental
benefit but consume significant resources of Industrial Users, and POTW
and state Control Authorities. In designing these revisions, EPA took
care to ensure that the changes being finalized do not reduce the
current environmental protections in place.
The importance of finalizing today's streamlining rule was
highlighted in two recent reports. The Office of Management and Budget
(OMB) included the issuance of the final rule among a list of steps the
Federal government would take to reduce the cost burden on the
manufacturing sector. See Regulatory Reform of the U.S. Manufacturing
Sector (OMB, 2005), which is posted at http://www.whitehouse.gov/omb/inforeg/reports/manufacturing_initiative.pdf. EPA's Office of
Inspector General (OIG) also recommended that the Office of Water set
milestones for finalizing this streamlining rule as part of a broader
effort to improve the effectiveness of the National Pretreatment
Program. See Recommendation 4.2 of EPA Needs to Reinforce Its
National Pretreatment Program (OIG, Report 2004-P-00030, September
2004), posted at http://www.epa.gov/oig/reports/2004/20040928-2004-P-00030.pdf.
D. What Are the Roles of Key Entities Involved in the Final Rule?
EPA recognizes the role of many interested parties in the
development of, and, ultimately, the successful implementation of this
final rule. To the greatest extent possible, EPA has attempted to
strike a reasonable balance among the many interests. A short summary
of their roles is provided below.
1. POTWs. Publicly Owned Treatment Works (POTWs) collect wastewater
from homes, commercial buildings, and industrial facilities and
transport it via a series of pipes, known as a collection system, to
the treatment plant. Today, there are an estimated 14,800 POTWs. Most
POTWs are not designed to treat the toxics in commercial and industrial
wastes which can cause serious problems. The General Pretreatment
Regulations require POTWs that meet certain criteria to develop
Pretreatment programs to control industrial Discharges into their
sewage collection systems. These POTWs act as the Pretreatment
``Control Authority'' with respect to the Industrial Users that
discharge to their systems. POTWs play a key role in the enforcement of
the Pretreatment program through the development and implementation of
Enforcement Response Plans.
2. States. Thirty-four states are authorized to serve as Approval
Authorities for implementation of the Pretreatment Program. In the
absence of an Approved POTW Pretreatment Program, the state may serve
as the Control Authority.
3. EPA. EPA's statutory responsibility is to establish national
regulations such as those covering the Pretreatment Program, which
protect and restore the chemical, physical, and biological integrity of
the Nation's waters. EPA also develops policy and guidance and provides
training and oversight for program implementation. EPA's regional
offices also serve as the Approval Authority for state
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Pretreatment programs, where the state is not authorized to run the
program, and as the Control Authority for POTWs without an approved
Pretreatment Program in these states.
4. Industrial Dischargers. Industrial Users of POTWs must comply
with Pretreatment Standards prior to introducing pollutants into a
POTW. The General Pretreatment Regulations include general prohibitions
that forbid Industrial Users from causing Pass Through and
Interference, and specific prohibitions against the discharge of
pollutants that cause problems at the POTW such as corrosion, fire or
explosion, and danger to worker health and safety.
EPA has also developed National categorical Pretreatment Standards
that apply numeric and narrative pollutant limits to Industrial Users
in specific industrial categories. The General Pretreatment Regulations
include reporting and other requirements necessary to implement these
categorical Standards (40 CFR 403.12(b)).
5. Other stakeholders. Trade associations, professional
organizations, environmental interest groups, and the public have an
interest in the Pretreatment of industrial and commercial waste and
have been involved in this rulemaking through comments and
participation in stakeholder meetings.
E. What Principles Guided EPA's Decisions in This Rule?
EPA has considered the implementation of the current General
Pretreatment Regulations, changes in industry, the comments on the
proposed rule, and relevant studies, data, and reports in developing
this final rule. The Agency has tried to ensure this final rule is
based on sound science, protects existing water quality gains, and is
consistent with current Pretreatment guidance and policy documents. EPA
made this final rule as simple and easy to understand as possible, and
has attempted to provide a clear understanding of who is affected and
what they are expected to do. The hallmark of this rule is that it
reduces the burden of compliance with the General Pretreatment
Regulations, while at the same time protecting the environment.
F. What Are the Major Elements of This Final Rule? Where Do I Find
Specific Requirements?
This section provides a summary of the major elements of this final
rule and a brief index on where each of the requirements is located in
the final regulations. The rule makes the following changes:
Provides POTWs with the authority to grant monitoring
waivers to industrial facilities where they document that pollutants
are not present at the facility or anywhere in the wastestream. EPA
notes that this authority is already available in the National
Pollutant Discharge Elimination System (NPDES) regulations for point
sources discharging directly to surface waters.
Authorizes POTWs to use general control mechanisms (e.g.,
permits) to regulate multiple industrial dischargers that share common
characteristics.
Clarifies that POTWs can use Best Management Practices
(BMPs) as an alternative to numeric limits that are developed to
protect the POTW, water quality, and sewage sludge.
Clarifies certain requirements regarding the frequency of
on-site industrial facility inspections to evaluate the adequacy of
controls for ``Slug Discharges''.
Provides greater flexibility in the use of certain
sampling techniques, and establishes greater consistency with the
sampling protocols in other parts of EPA's regulations.
Provides the Control Authority with the discretion to
authorize the use of equivalent concentration limits in lieu of mass
limits for certain industrial categories, and allows the conditional
use of equivalent mass limits in lieu of concentration-based limits
where appropriate to facilitate adoption of new, water-conserving
technologies.
Authorizes POTWs to establish alternative sampling,
reporting, and inspection requirements for certain classes of
categorical Industrial Users (CIUs).
Clarifies the definition of significant noncompliance
(SNC) as it applies to violations of instantaneous and narrative
requirements, and late reports, and provides additional options for
publishing lists of industrial facilities in SNC annually in the
newspaper. The rule also retains existing rules and policies regarding
the application of Technical Review Criteria (TRC) and the use of the
``rolling quarter'' approach in determining SNC status.
Provides updated references relating to requirements that
POTWs must meet to adjust removal credits for combined sewer overflows
(CSOs).
Makes other miscellaneous changes designed to maintain
consistency with the NPDES regulations or to correct typographical
errors.
The following table indicates where these changes can be found in
the General Pretreatment Regulations at 40 CFR part 403.
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Issue Section of 40 CFR 403 rules
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Sampling for pollutants not present.... 403.8(f)(2)(v), 403.12(e)
General control mechanisms............. 403.8(f)(1)(iii)
Best Management Practices.............. 403.5, 403.8(f), 403.12(b),
(e), (h)
Slug control plans..................... 403.8(f)(1)(iii)(B)(6),
403.8(f)(2)(vi))
Equivalent concentration limits for 403.6(c)(6)
flow-based Standards.
Equivalent mass limits for 403.6(c)(5)
concentration-based Standards.
Use of grab and composite samples...... 403.12(b), (d), (e), (g), (h)
Significant noncompliance criteria..... 403.8(f)(2)(viii)
Removal credits........................ 403.7(h)
Non-Significant CIU.................... 403.3(v)(2), 403.8(f)(2)(v),
(6), 403.12(e)(1), (g), (i),
(q)
Middle Tier CIU........................ 403.8(f)(2)(v)(C),
403.12(e)(3), (i)
Miscellaneous changes.................. 403.12(g), (j), (l), (m)
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II. How Was This Final Rule Developed?
EPA initiated this effort in response to a Presidential Report on
``Reinventing Environmental Regulations'' (March 1995). The Report
pledged to provide ``more common sense and fairness in our
regulations'' with an ultimate goal of providing greater flexibility,
reducing burden, and achieving greater environmental results at less
cost. In 1995, EPA's Office of Wastewater Management started an
evaluation of all of the General Pretreatment Regulations in order to
identify streamlining opportunities. Based on input from various
stakeholders, EPA developed issue papers that summarized 11 areas
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in which the Pretreatment Regulations might be streamlined.
In May 1996, the issue papers were distributed to stakeholders
(States, cities, trade associations, professional organizations, and
environmental interest groups) for comment. The Agency also considered
recommendations developed through a joint Association of Metropolitan
Sewerage Agency (``AMSA'', now the ``National Association of Clean
Water Agencies'') and Water Environment Federation workshop held in
1996, which included Pretreatment experts from many stakeholder
perspectives. In response to comments received on the issue papers and
the joint workshop's recommendations, EPA prepared a draft proposal and
preamble and distributed it for comment in May 1997. The proposed rule
was published in the Federal Register on July 22, 1999 (64 FR 39564).
EPA received 221 sets of comments on the proposed rule. Comments
were received from individual POTWs and Industrial Users, trade groups
representing those interests, states, and one environmental
organization (the Natural Resources Defense Council). In finalizing
this rule, EPA carefully reviewed the issues raised in the public
comments. Due to the intervening time between the proposed and final
rules, EPA also revisited the major assumptions underlying each rule
change to verify that these assumptions were still valid. In a few
areas, this process required research or additional data to support
certain provisions, and discussions with stakeholders expressing
continued interest in the rule regarding their comments on the proposed
rule.
III. Description of Final Rule Actions
Today's final rule addresses 12 specific issues and a few
miscellaneous changes pertaining to the General Pretreatment
Regulations. This section describes the context of these changes,
records how the proposal and final rule differ, and summarizes EPA's
rationale for specific actions and how the Agency responded to
significant comments.
EPA notes that capitalized terms in this and other sections (e.g.,
categorical Pretreatment Standards, Interference, Pass Through, etc.)
should signal to the reader that these are terms defined in 40 CFR
403.3.
A. Sampling for Pollutants Not Present (40 CFR 403.8(f)(2)(v) and
403.12(e))
Today's rule allows the Control Authority to authorize an
Industrial User subject to categorical Pretreatment Standards to forgo
sampling of a pollutant if the Industrial User demonstrates through
sampling and a technical evaluation of its facility operations, that a
given pollutant is neither present nor expected to be present in the
Discharge, or is only present at background levels from intake water
without any increase in the pollutant due to the activities of the
Industrial User. There is similar language in EPA's NPDES permitting
regulations for direct dischargers. See 40 CFR 122.44(a)(2). The POTW
Control Authority to which the Industrial User discharges may also
reduce its monitoring for the pollutant to once during the term of the
Categorical Industrial User's control mechanism. Note that in the
discussion of this issue, when EPA uses the phrase ``pollutants not
present'' it is using this phrase as short-hand for ``pollutants
neither present nor expected to be present above background levels''.
In addition, because the requirements of 40 CFR 403.8(f)(2) apply to
POTWs with approved Pretreatment programs rather than Control
Authorities in general, the discussion here distinguishes between the
authority granted to Control Authorities in 40 CFR 403.12(e) to waive
monitoring for pollutants not present, and the reduction in monitoring
requirements for POTWs for these pollutants in 40 CFR 403.8(f)(2)(v).
1. What Were the Rules in Place Prior to Today's Rulemaking?
Section 403.12(e)(1) required Industrial Users subject to
categorical Pretreatment Standards to submit reports to the Control
Authority at least twice each year indicating the nature and
concentration of all pollutants in their effluent that are limited by
an applicable Standard. Prior to today's rulemaking, the Control
Authority was not authorized to reduce monitoring of pollutants
regulated by the applicable categorical Pretreatment Standard to less
than twice per year. 40 CFR 403.8(f)(2)(v) also required POTWs to
sample these Industrial Users at least annually to independently verify
compliance with the Standard. Semiannual sampling by the Industrial
User and annual sampling by the POTW was required for all pollutants
limited by the categorical Pretreatment Standard even if certain
pollutants regulated by the Standard were not reasonably expected to be
present.
2. What changes did EPA propose?
The proposal would amend the current regulation to authorize the
Control Authority to waive the sampling requirements for an Industrial
User subject to a categorical Pretreatment Standard for a pollutant if
the pollutant was not expected to be present in the wastestream in a
quantity greater than the background level present in its water supply,
with no increase in the pollutant in the wastewater attributable to the
industrial process. In lieu of monitoring for the pollutants determined
not present, the Industrial User would submit a certification as part
of its semiannual monitoring reports that there had been no increase in
the pollutant in its wastewater due to its activities. This change
would also reduce a POTW's sampling requirement once it had determined
that a pollutant was not expected to be present. However, as proposed,
the reduced sampling would not have been available to facilities
subject to the Organic Chemicals, Plastics, and Synthetic Fibers
(OCPSF) guidelines, 40 CFR part 414.
3. What changes is EPA finalizing in today's rule?
Today, EPA is adopting the proposed changes which authorize a
Control Authority to waive the monitoring requirements in semiannual
reports required under 40 CFR 403.12(e) for individual pollutants,
including indicator or surrogate pollutants, for an Industrial User
subject to a categorical Pretreatment Standard. A Control Authority may
waive this requirement if it determines that the pollutant is neither
present nor expected to be present, at levels greater than that of the
intake water, without any increase in the pollutant due to the
activities of the Industrial User. The waiver will not be available for
monitoring required for the baseline monitoring report required under
40 CFR 403.12(b) or the 90-day compliance report required under 40 CFR
403.12(d). The Industrial User must continue to conduct at least twice-
per-year monitoring until the waiver is both granted by the Control
Authority and incorporated into the Industrial User's control
mechanism. The POTW's annual monitoring requirements for the pollutant
for which a monitoring waiver is granted may be reduced to a minimum of
once during the effective period of the Industrial User's control
mechanism.
In finalizing the rule, EPA is making the following changes to the
proposed rule:
Coverage for OCPSF Facilities: EPA has determined that it is
appropriate for the monitoring waiver to be available to Industrial
Users subject to the OCPSF guidelines and is not limiting the
availability in any way different from other Categorical Industrial
Users.
[[Page 60139]]
Industrial User Sampling Data: The final rule requires that to
demonstrate that the pollutant is not present, the Industrial User must
provide the results of one or more samples prior to treatment which are
representative of all process wastewater.
Notice to Control Authority if Pollutant Found to be Present: The
final rule includes a provision which requires that in the event that a
pollutant is subsequently found to be present or is expected to be
present, the Industrial User must immediately resume monitoring and
notify the Control Authority.
Control Mechanism Issues: EPA clarifies that the Control Authority
must include any waiver granted to an Industrial User in the User's
control mechanism. The Control Authority must also document the reasons
for authorizing the waiver and maintain any information submitted by
the User in support of the waiver for at least three years after
expiration of the waiver. The waiver is valid only for the duration of
the control mechanism. In order to continue the waiver for the period
of the next control mechanism, the Industrial User will need to reapply
for the waiver, including the submission of appropriate monitoring
data. The control mechanism must include the requirement for the
Industrial User to immediately notify the Control Authority in the
event that the pollutant is found or suspected to be present, and to
resume monitoring at least semiannually. The control mechanism still
must include all applicable categorical Standards, even those Standards
for which monitoring has been waived.
Waiver Does Not Supercede Other Certifications: EPA has included a
provision which states that the waiver of monitoring requirements
cannot replace any certification requirements that have been
established in specific categorical Pretreatment Standards.
4. Summary of Major Comments and EPA Response
How does EPA define ``not present?'' In the preamble to the
proposed amendments, EPA specifically requested comment on how to
define what is meant by ``not present.'' Several commenters suggested
that a precise definition was not necessary based on the regulatory
context. Other commenters suggested that it be defined in terms of a
percentage of the applicable limit, while others suggested that the
term be defined as at or below the levels found in the water supply.
The final regulatory language clearly indicates that monitoring for a
pollutant can be waived as long as the levels in the untreated
wastewater do not exceed the levels in the intake water based on
``sampling and other technical factors.'' EPA did not promulgate a
definition of not present when the similar NPDES revision was
finalized, and EPA continues to view the final regulatory language as
sufficiently clear to avoid confusion.
In response to commenters that suggested that ``not present'' be
defined as a percentage of the applicable categorical Standard, EPA
notes that today's waiver is not for pollutants that are not reasonably
expected to violate the Standard, but rather for pollutants that are
neither present nor expected to be present in the Discharge above
background levels. Therefore, the level of pollutant in the Discharge
in relation to the Standard is not the relevant benchmark for the
Control Authority's determination whether the waiver request should be
granted. Instead, what matters in the determination is whether the
Industrial User's practices or industrial processes add the pollutant.
The Control Authority already has the ability to reduce monitoring to
as infrequently as twice per year for any pollutants that are in the
Discharge but are not reasonably expected to violate the Standard.
However, if the background level from the Industrial User's intake
water already exceeds the applicable categorical Standard, a waiver of
the monitoring requirements would not be available unless the Control
Authority has adjusted the categorical Standard using the net/gross
provision of 40 CFR 403.15, and the pollutant is not added to the
wastewater by the discharger's practices or processes.
Several commenters also suggested that if a pollutant is added in
``negligible'' amounts or in amounts equal to ``typical'' domestic
levels, the Control Authority should still be authorized to grant the
monitoring waiver. EPA addressed this issue in the preamble to the
final NPDES regulation dealing with a waiver of monitoring requirements
for direct dischargers. There, EPA stated:
``EPA declines to allow monitoring waivers for pollutants that
are added by dischargers in minute amounts (e.g., use of common
cleaners or from research operations) because human activity might
lead to substantial increases in those pollutant Discharges which
may threaten the aquatic environment. Consequently, there is a
continuing need to monitor those pollutants. EPA also notes that at
least one national effluent guideline addresses the introduction of
incidental amounts of pollutants from cleaning, maintenance, or
research operations and EPA does not believe it is appropriate to
apply the waiver to a pollutant that is added to the wastestream and
subject to an effluent guideline. See 40 CFR 414.11(b) (applying the
Organic Chemicals, Plastics, and Synthetic Fibers Effluent
Guidelines to wastewater Discharges from research and development
operations). Metals or other pollutants that can leach from pipes
may also pose a threat to the environment and EPA believes
monitoring should be retained for such Discharges. With respect to
pollutants which occur in amounts below ``levels of concern'', the
discharge of such pollutants can also increase from human activity
and EPA believes that monitoring is necessary to ensure that an
appropriate level of treatment continues to be provided.'' (65 FR
30892, May 15, 2000).
Nothing submitted by commenters has changed the Agency's mind in the
case of indirect dischargers with respect to its earlier conclusion.
Some commenters also suggested that EPA clarify that the term
``quantities'' as used in the proposal may mean mass loading in
addition to concentration. EPA agrees that there may be instances where
the use of mass may be more appropriate than concentration, and
therefore will allow Control Authorities to use pollutant mass to
compare the levels of pollutants in the wastewater to the levels of
pollutants in the intake water. If the Industrial User can demonstrate
through its technical evaluation that a specific pollutant is not
added, and can demonstrate through a mass balance that any increases in
the wastestream concentration are due only to evaporative losses or
other similar reductions in the volume of wastewater discharged, then a
monitoring waiver may be approved by the Control Authority. Note that
accurate flow measurements will be necessary to perform the appropriate
mass-balance calculations and demonstrate that small amounts of the
pollutant are not added in the course of the facility activity. One
example submitted by a commenter notes that cooling tower maintenance
chemicals may add the pollutant of concern to the wastestream. If the
pollutant of concern is added by the User in any way to the
wastestream, then the Industrial User would not be eligible for the
waiver. To the extent that the concentration is increased significantly
such that it may impact the POTW, EPA would expect that a monitoring
waiver would not be granted. In response to this comment, EPA is
revising the language in the final regulation to refer to the
``levels'' of pollutants in the intake water rather than the
``concentration'' of pollutants in the intake water. This wording
change is consistent with the similar NPDES permitting requirement for
[[Page 60140]]
direct dischargers (see 40 CFR 122.44(a)(2)(i)).
One commenter noted that EPA's use of the phrase ``with no increase
in the pollutant due to the regulated process'' could create confusion
in how to handle pollutants that are added in other facility
wastestreams that are not regulated by the applicable categorical
Pretreatment Standard. EPA agrees that the phrase ``with no increase in
the pollutant due to the regulated process'' is not appropriate.
Although the phrase was used in the preamble to the proposal and not
the proposed regulation, EPA is revising the final regulatory language
to include the phrase ``without any increase in the pollutant due to
the activities of the Industrial User''. This phrase better reflects
EPA's intent that the waiver would not be available for a pollutant
where the Industrial User may add the pollutant through means other
than the regulated industrial process (except for sanitary wastewater--
see below).
Should Industrial Users have the authority to waive sampling
requirements rather than the Control Authority? Several commenters
suggested that it would be appropriate for the Industrial User to have
the authority to make the determination on whether a pollutant is
present and monitoring requirements should be waived rather than the
Control Authority. EPA disagrees that Industrial Users rather than the
Control Authority should have the authority to waive monitoring for
pollutants not present. The Control Authority is the regulatory agency
responsible for ensuring compliance with applicable Standards, and is
therefore the most appropriate agency for determining the monitoring
requirements necessary for it to fulfill that responsibility. In
addition, placing the authority with the Industrial User eliminates
oversight that, in EPA's view, is necessary to ensure that this
provision is implemented correctly.
What information is necessary to determine if a pollutant is not
present at a facility? EPA received many comments suggesting what type
of data is needed in order to make an informed decision on whether a
pollutant is neither present nor expected to be present. Commenters
noted that information contained in control mechanism applications and
baseline monitoring reports, as well as data obtained through a
thorough facility inspection could all be used to support a
determination that a pollutant is not present. The commenters noted
that these are all mechanisms for obtaining data on the raw materials,
products, and by-products used and generated at an Industrial User. EPA
agrees that these are valid sources of information that can contribute
to an Industrial User's demonstration that a pollutant is neither
present nor expected to be present. EPA notes that the Industrial User
monitoring waiver in today's rule applies to the semiannual monitoring
required under 40 CFR 403.12(e), and does not apply to monitoring
required for the baseline monitoring report or the 90-day compliance
report. EPA has also concluded that if the Control Authority uses a
control mechanism application form, such a form is an appropriate place
for the Industrial User to request the monitoring waiver, although the
mechanism for how the request is made is largely up to the discretion
of the Control Authority.
Commenters also suggested that material safety data sheets would be
a valuable tool in determining whether specific pollutants are present
in the raw materials or other chemicals used at the facility. EPA notes
that material safety data sheets do not identify all of the pollutants
present in a given material, and therefore cannot be relied upon to
determine whether a pollutant is present in the raw materials or other
chemicals at the Industrial User's facility. In order for the Control
Authority to accurately determine the presence of a pollutant in a
given raw material or other chemical, the Industrial User will need to
analyze the material in question, or obtain a certificate of analysis
from the manufacturer of the material demonstrating the absence of the
pollutant. In addition, the evaluation needs to include materials not
necessarily used for the product, such as chemicals used in equipment
cleaning and wastewater treatment. Although wastewater treatment
chemicals are used to reduce the levels of pollutants in the Discharge,
analysis of the chemicals can show significant levels of contaminants
that can be added to the wastewater stream. Additional information,
such as intermediate products, final products, and byproducts generated
in the process will need to be considered as well, and therefore a
detailed knowledge and evaluation of the process chemistry involved in
the manufacturing operations will be necessary.
Some commenters suggested that the determination of whether a
pollutant is present should be based exclusively on a review of
available information. While available information should certainly be
used in the determination, and EPA would expect that most Industrial
Users requesting the waiver would have a fairly extensive knowledge of
the pollutants present in their wastewater, because the pollutants are
either directly added or generated as byproducts, an Industrial User
cannot assume that a pollutant is not present in its Discharge simply
because it has not generated any information to suggest otherwise. EPA
notes that the Industrial User has the burden to demonstrate that the
pollutant is not present, and if this demonstration cannot be made to
the satisfaction of the Control Authority, the waiver may not be
granted.
EPA does agree that the determination of whether a pollutant is
present should be based on whether or not that pollutant would have the
potential to enter the wastestream to the POTW. Such an evaluation must
include the potential for the pollutants to enter the wastestream
through spills and other potentially infrequent events, in addition to
whether the pollutant would be routinely expected to enter the
wastestream. Therefore, in order for monitoring for the pollutant to be
waived, there must be a high degree of certainty that the pollutant
will not show up in the Discharge to the POTW.
EPA also notes that for facilities that use the combined
wastestream formula, ``unregulated'' wastestreams may be covered by the
categorical Standard through the adjusted Standard. Therefore, EPA has
concluded that it is not appropriate to allow a monitoring waiver where
wastestreams other than those regulated by the categorical Standard
contribute the pollutant of concern. However, since pollutants,
especially metals, may be present in sanitary wastestreams at higher
than background concentrations, and because sanitary wastestreams are
not typically regulated through categorical Standards specifically or
the Pretreatment program in general, the revised regulation provides
that waivers may be granted where the only source of the increase in
the pollutant from human activity is sanitary wastewater, provided that
the sanitary wastewater is not regulated by an applicable categorical
Standard and does not include the pollutant at levels that are
significantly higher than typical domestic levels for the POTW's
service area. See 40 CFR 403.12 (e)(2)(i).
One commenter noted several industries that claimed that a
pollutant was not present in their Discharge, only to have it show up
in monitoring results. EPA is aware of similar instances and knows of
circumstances where the pollutants are later detected in the sampling
data at fairly high levels. This is one of the reasons why EPA is
requiring that the technical evaluation of the facility to determine
the presence of the pollutant be
[[Page 60141]]
supported by sampling data, including data prior to treatment. Even
though EPA is generally not requiring a minimum amount of data (with
the exception of the one sample required prior to treatment), Control
Authorities are expected to have sufficient sampling data to support
the technical evaluation. Where monitoring data shows that the
pollutant is present at levels above the background intake water level,
the Control Authority must deny the request for the monitoring waiver.
How much sampling data is necessary to make a determination that a
pollutant is not present? Comments on this issue varied from suggesting
that no sampling is necessary to providing suggestions on specific
sampling frequencies for the intake water as well as the effluent
Discharge. One commenter suggested that no influent monitoring data was
necessary if the effluent data shows no detectable levels of the
pollutant. Although EPA has concluded that some sampling data is
necessary to document the absence of a pollutant in the Discharge, the
amount of sampling necessary for the determination is most
appropriately determined on a site-specific basis, and will depend, in
part, on how convincing are the arguments regarding the ``other
technical factors''. Therefore, EPA is not establishing a minimum
monitoring frequency. This is also consistent with the NPDES
regulations, which do not establish a minimum sampling frequency. EPA
is, however, establishing a minimum requirement that one sample be
collected prior to treatment. Data prior to treatment is necessary to
demonstrate that the measured levels reflect any pollutants that are
added to the wastewater rather than the levels after they have been
reduced by treatment, since effective treatment could become less
effective over time. Other data that may be used in the evaluation
include final effluent data and in many cases the facility intake
water.
It is important to note that the pollutant monitoring waiver is
based on a facility-wide evaluation and, therefore, sampling data must
be representative of all wastestreams, as well as any seasonal or other
variability in the Discharge. In addition, note that the monitoring
waiver is for pollutants that are neither present nor expected to be
present, and not for pollutants which are added but for which no
violation of the applicable Standard is expected. In some cases, the
existing monitoring data will be sufficient to evaluate the presence of
the pollutant in the Discharge. The data prior to treatment is less
likely to have been collected in the past, although historic data, if
still representative, can be used.
EPA has concluded that a sequential approach to sampling is the
most appropriate way to evaluate the request for a monitoring waiver
based on sampling data. If monitoring of the Industrial User's
wastewater prior to treatment (and after treatment where appropriate)
shows no detectable levels of the pollutant based on the most sensitive
EPA approved method, then no sampling of the intake water is necessary
because the levels of the pollutant in the Discharge will already have
been shown to be at or below the levels in the intake water. However,
if a pollutant is present in the Industrial User's wastewater, data on
the levels in the influent water are necessary to determine whether the
presence of the pollutant is solely the result of levels in the
influent water, or the result of the Industrial User adding the
pollutant to some extent. Background levels of pollutants in an
Industrial User's influent water will vary from POTW to POTW, and
possibly from Industrial User to Industrial User based on many factors.
If historical data is available, based on prior sampling by either the
Industrial User or the POTW, or based on drinking water system data
that is representative of the Industrial User's intake water,
additional sampling may not be necessary.
EPA notes that data for intake water must be representative of the
water typically used at the facility, but prior to any water treatment
or conditioning provided by the Industrial User. This generally means
that the data, especially for lead and copper, should reflect pollutant
levels of intake water that have been running continuously for at least
several minutes, rather than pollutant levels of intake water that have
been sitting in the pipes for several hours. Water system data for lead
and copper will typically reflect the levels of pollutants in the water
after it has been sitting in the pipes for at least six hours. Because
this data is not generally representative of the levels of lead and
copper in the typical facility intake water, drinking water data for
lead and copper may not be representative of the Industrial User's
actual intake water and should not be used unless the Industrial User
can demonstrate to the satisfaction of the Control Authority that the
lead and copper levels are actually representative.
How should Control Authorities and Industrial Users address
analytical variability when determining if a pollutant is present above
background levels? One commenter requested clarification on how to
handle a situation where the Industrial User and the Control Authority
had determined that a pollutant was not present, but subsequently found
slightly higher levels based on monitoring data. EPA acknowledges that
there is some variability in sample results. Therefore, it is possible
that slightly higher levels of pollutants may be measured in the
Industrial User's wastewater than in the intake water. If the higher
levels are within the method variability and the technical evaluation
shows that the pollutant is neither present nor expected to be present,
then the results should be considered equal. If the higher levels are
above the method variability, then the pollutant should be considered
to be present unless the Industrial User can demonstrate that the
sample result was in error, or that the intake levels of the pollutant
have risen to the same extent. EPA notes that the burden is on the
Industrial User to demonstrate that an analytical error has occurred
through re-analysis of the sample or other similar means. An unexpected
result is not sufficient justification to consider a sample result to
be in error since, as noted above, sampling data at times finds
pollutants which were not expected to be present. Likewise, the
Industrial User would need to provide sampling data demonstrating that
the levels of the pollutant in question have risen in the intake water
if it believes that this is the reason for the higher levels of the
pollutant in its wastewater.
Should any ongoing POTW monitoring be required to demonstrate that
the waived pollutant continues to be absent from the Discharge? Not all
commenters agreed with the EPA proposal requiring POTW's to monitor for
any waived pollutants at least once during the effective period of the
Industrial User's control mechanism. These commenters believed that the
combination of the certification and the requirement to report changes
in the Discharge were sufficient to ensure that the Control Authority
would become aware of changes that would require a resumption of
monitoring. Other commenters believed that the once per control
mechanism term was appropriate and would not burden POTWs, while other
commenters believed that monitoring once per year for the waived
pollutants was appropriate. EPA disagrees that annual monitoring will
be necessary to determine whether or not the pollutant is present. As
stated in the preamble of the proposal, EPA asserts that if the Control
Authority has determined, based on both sampling data and a
[[Page 60142]]
technical evaluation, that a pollutant is not present at levels above
background, and if the Industrial User continues to certify that there
is no increase in the pollutant in its wastewater due to the activities
of the Industrial User, then it is appropriate to allow the Control
Authority to determine whether to sample the facility more frequently
than once during the term of the control mechanism. EPA received no
data to suggest that more frequent monitoring is necessary. EPA notes
that the Control Authority has the discretion to determine that the
Industrial User must monitor for a pollutant despite the User having
demonstrated that it is not present. Where the Control Authority elects
to require monitoring in such circumstances, it may determine the
appropriate frequency of monitoring, including frequencies that are
less than twice per year. In addition, the Industrial User may also
monitor on its own, even though the requirement to do so has been
waived, but in this case the Industrial User must report the results of
that monitoring to the Control Authority in accordance with 40 CFR
403.12(g)(6).
Although EPA is not requiring annual monitoring by the POTW, EPA
has concluded that at least one effluent sample during the term of the
Industrial User's control mechanism is necessary to confirm that no
changes have occurred, and that the monitoring waiver is still
appropriate. EPA is requiring that this monitoring be done by the POTW
to ensure an independent assessment of the Industrial User. EPA has
concluded that the most appropriate time for the monitoring to occur is
during the renewal of the control mechanism. However, EPA also asserts
that the timing is best left to the discretion of the POTW and,
therefore, is not requiring that the monitoring occur at any specific
time during the duration of the control mechanism.
Should the waiver be available for pollutants that in the past have
caused Pass Through or Interference, or otherwise caused problems at
the POTW? One commenter suggested that the monitoring waiver for
pollutants not present should not be available for pollutants which
have been problematic for the POTW in the past. EPA agrees that POTWs
must be more careful when waiving the monitoring requirements for
pollutants for which the POTW has previously experienced problems. In
these instances, more monitoring data and a more careful review of the
technical evaluation is warranted. However, if the pollutant is truly
not present at the facility or in the Discharge and there is no
potential for spills or slug loads of the pollutant, EPA does not view
it as necessary to require monitoring at that Industrial User's
facility merely because the pollutant was associated with past POTW
problems and, therefore, will not prohibit granting a waiver in these
circumstances. Granting the waiver is at the discretion of the Control
Authority, and where there has been a history of problems with a
pollutant at the POTW, the Control Authority may deny a waiver, if it
deems this necessary to prevent future problems.
Is the waiver available for facilities subject to the Organic
Chemicals, Plastics, and Synthetic Fibers category? Most comments
supported allowing waiver of the monitoring requirements for pollutants
not present for facilities subject to the OCPSF Standards. EPA agrees
that Control Authorities should be able to grant the monitoring waiver
to OCPSF dischargers if appropriate. Several commenters indicated that
they know of OCPSF facilities that manufacture a limited number of
products and have fairly consistent Discharges. A monitoring waiver for
some regulated pollutants may be appropriate for such facilities and,
therefore, a blanket exclusion for all OCPSF facilities from the waiver
would not be appropriate. However, EPA notes that production and
Discharges from OCPSF facilities can be highly variable. Control
Authorities must ensure that sufficient information, including sampling
data, is available to assess whether a particular pollutant is present
at any time, taking into consideration all of the variability in
production. When a particular pollutant may be present at some time
based on the products that are manufactured at the facility, even if
the pollutant is not currently present, a monitoring waiver for that
pollutant would not be appropriate. If any facility's operations,
regardless of whether they are subject to OCPSF Standards or not, are
sufficiently variable that a reasonable determination cannot be made as
to whether a pollutant will consistently be absent from the Discharge,
the Control Authority may not grant a waiver.
How does the waiver for pollutants neither present nor expected to
be present affect other waivers specifically included in a categorical
Pretreatment Standard, such as the option under the metal finishing
Standards allowing for implementation of a toxic organics management
plan in lieu of monitoring for total toxic organics? Several commenters
compared the waiver of monitoring for pollutants not present being
promulgated today to other monitoring waivers such as the management
plan and certification option under the metal finishing Standards in
lieu of total toxic organics monitoring. In order to avoid any
potential confusion, EPA is adding specific language to today's
regulations which states that the monitoring waiver and certification
for a pollutant that is not present cannot be used in place of any
certification process established in categorical Pretreatment
Standards. Therefore, today's monitoring waiver would not be available,
for example, for total toxic organics under the metal finishing
regulations. Rather, in order to reduce its monitoring for total toxic
organics, a metal finisher would need to use the management plan and
certification process contained in 40 CFR 433.12. Since the metal
finishing and other category-specific certifications were established
for an identified set of facilities based on an evaluation of those
facilities, while today's monitoring waiver is being established
generally without a reevaluation of each categorical Pretreatment
Standard, EPA has concluded that it is not appropriate for today's
waiver to supercede these more specific certifications. EPA notes that
the equivalent NPDES Permit requirement includes this same provision.
See 40 CFR 122.44(a)(2)(v). However, while the general waiver for
pollutants neither present nor expected to be present cannot substitute
for a category-specific certification requirement, the data and
analyses that would otherwise be used to support such a waiver may be
relevant to, and if so form part of the basis for, the category-
specific certification.
While today's rule provides that the monitoring waiver and
certification for a pollutant that is not present cannot be used in
place of any certification process already established in existing
categorical Pretreatment Standards, the monitoring waiver is available
for pollutants that are analyzed as surrogates for other pollutants.
What happens if a facility's operations change so that a pollutant
for which a monitoring waiver has been granted is now present at the
facility? Several commenters correctly noted that 40 CFR 403.12(j)
requires that Industrial Users provide notification of any substantial
changes in the volume or character of pollutants in the Discharge. This
notification requirement would apply in the event that a pollutant for
which monitoring was waived became present at the Industrial User for
any reason. However, the language in 40 CFR 403.12(j) refers to
pollutants in the Industrial User's Discharge rather than any pollutant
at the facility which is or may be added to the wastestream.
[[Page 60143]]
Therefore, in order to clarify the requirement for waived pollutants,
EPA has added language to the final regulation that states that
notification is necessary, and that the Industrial User must
immediately resume monitoring, if the pollutant is found or suspected
to be present. The requirement to resume monitoring would apply even
before the Industrial User's control mechanism is revised to reflect
the resumed monitoring. Control mechanisms that include the monitoring
waiver must also include language requiring notification and the
resumption of monitoring in the event that a pollutant is subsequently
determined to be present at the facility. Failure to provide the
required notification or to resume monitoring is a violation of the
Industrial User's control mechanism and the General Pretreatment
Regulations. EPA also recommends that any control mechanism issued
incorporating a monitoring waiver includes a reopener clause which
allows the Control Authority to revise or revoke the waiver if
appropriate.
Where a facility has been granted a waiver of monitoring for a
pollutant that has been determined not to be present and it installs or
constructs new production lines or processes, the Industrial User must
evaluate the new production lines or processes and determine whether
they may cause the pollutant to be present, in which case the facility
must resume monitoring.
How often will certification that the pollutant is not present in
the Discharge be required? EPA proposed that certification that a
pollutant is not present at the facility be submitted twice-per-year
with the semiannual reports otherwise required under 40 CFR 403.12(e).
Several commenters supported this approach, while others believed that
a once-per-year certification would be sufficient, or that no
certification should be required, especially since the Industrial User
is required to report changes at the facility to the POTW. EPA has
concluded that twice-per-year certification will not impose a
significantly greater burden on Industrial Users than once-per-year
certification since in most cases the reports would still be submitted
at least twice-per-year even if monitoring for some pollutants is
waived. In addition, it often may be easier for the Industrial User to
include the certification with every report rather than determining
which reports need the certification and which do not. Although
required to report changes in the facility, an Industrial User's
willingness to certify that the pollutant is not present in the
Discharge provides an additional assurance that the pollutant is not
present above background levels. Accordingly, EPA has decided to
maintain the twice-per-year certification requirement.
In addition, EPA has clarified the language of the certification
requirement to state that once an Industrial User has received a
monitoring waiver, the certification is required and is not optional.
If the Industrial User is no longer certain that the pollutant is not
present, it must notify the Control Authority and immediately begin
monitoring. EPA intends that the monitoring waiver be used in instances
where a pollutant is consistently not present at a facility, and is not
to be used for short periods of time when the pollutant is not present.
It should be noted that the certification provided in the 40 CFR
403.12(e)(2)(v) includes two blank spaces which are to be filled in by
the Industrial User. In the first blank space, the Industrial User is
to specify the applicable Pretreatment Standard(s) that apply to the
facility (e.g., 40 CFR 433.15). In the second blank space, the
Industrial User is to list the pollutants for which the monitoring
waiver has been granted. As noted above, the certification must include
all of the pollutants for which a monitoring waiver has been granted.
The Control Authority may also fill in the blank spaces before
incorporating the certification language into the Industrial User's
control mechanism for use by the Industrial User with the semiannual or
more frequent reports.
Should the waiver be available for new Industrial Users, or during
an Industrial User's first control mechanism? EPA noted in the preamble
to the proposed rule that the equivalent NPDES provision did not allow
the monitoring waiver to be granted to New Sources/New Dischargers for
the term of their first NPDES Permit. Comments on this issue were
divided, with some commenters noting that the term of the first control
mechanism is a good time to collect data on the presence of the
pollutant at the facility, while other commenters believed that the
Control Authority would generally be able to determine the presence of
the pollutant, even for the first control mechanism. It is EPA's view
that the Control Authority may need time to collect enough data to
appropriately assess whether pollutants at a new Industrial User are
consistently not present and, therefore, should be cautious in
approving a waiver for new Industrial Users. Time may be necessary to
determine whether there are seasonal or other variations in the
operations that would result in the pollutants being present
periodically. However, the length of time needed to collect the data
and make the assessment will vary depending on site-specific factors.
Therefore, EPA has not included language in the regulation restricting
the eligibility of a new Industrial User for a monitoring waiver for
pollutants that are not present.
What documentation of the waiver is required? Several commenters
noted the need to document the waiver when it is approved by the
Control Authority. EPA agrees that this documentation is important for
the Approval Authority and the general public to ensure that waivers
are properly granted. Pursuant to 40 CFR 403.14, this information must
be made publicly available. It has always been EPA's intent that any
monitoring waivers would be documented in the Industrial User's control
mechanism. Today's regulation also specifically requires that the
Control Authority's rationale for granting the waiver and any
information submitted by the Industrial User in its request for a
monitoring waiver be maintained by the Control Authority for at least
three years after the expiration of the waiver.
B. General Control Mechanisms (40 CFR 403.8(f)(1)(iii))
Today's final rule clarifies that POTWs may use general control
mechanisms, such as general permits, to regulate the activities of
groups of Significant Industrial Users (SIUs). Provided that the
necessary legal authority exists, the POTW may use a general control
mechanism for any facilities that meet certain minimum criteria for
being considered substantially similar.
In the NPDES permitting context, the use of general permits (see 40
CFR 122.28) allows the permitting authority to allocate resources in a
more efficient manner and to provide timelier permit coverage. For
example, direct dischargers with common characteristics may be covered
under a general permit without the permitting authority expending time
and money to issue individual permits to each of these facilities. The
use of a general permit also ensures consistency of permit conditions
for similar facilities. In the Pretreatment context, POTWs might
benefit from the use of control mechanisms for Discharges from SIUs to
POTWs which are similar to the general permits used in the NPDES
program.
This modification should help POTWs by providing a cost-effective
method to cover large numbers of similar facilities under a single
mechanism. This is expected to reduce
[[Page 60144]]
the administrative burden of issuing separate mechanisms to similar
facilities.
1. What were the rules in place prior to today's rulemaking?
Prior to today's rulemaking, the Pretreatment Regulations allowed
POTWs to use general control mechanisms to control non-Significant
Industrial Users, but required individual control mechanisms for SIUs.
Section 403.8(f)(1)(iii) required POTWs to ``Control through, order, or
similar means, the contribution to the POTW by each Industrial User to
ensure compliance. * * * In the case of Industrial Users identified as
significant * * *, this control shall be achieved through s or
equivalent individual control mechanisms issued to each such User.''
The preamble to the regulation which originally required control
mechanisms for SIUs emphasized the importance of POTWs evaluating SIUs
on an individual basis to determine the need for individual
requirements as necessary. See 55 FR 30082 (July 24, 1990).
2. What changes did EPA propose?
EPA proposed to revise the regulation by authorizing POTWs to use
``general permits'' to regulate SIUs in certain circumstances. Under
the proposal, all of the facilities to be covered by a general permit
must employ the same or substantially similar types of industrial
processes; discharge the same types of wastes; require the same
effluent limitations; and require the same or similar monitoring. These
requirements reflect the existing criteria for using general permits
for direct dischargers at 40 CFR 122.28(a)(2)(i). EPA also indicated
that the use of a general permit does not relieve the SIU from any
reporting or compliance obligations under Part 403.
3. What changes is EPA finalizing in today's rule?
In today's rule, EPA is finalizing the proposed rule's change to
allow the use of general control mechanisms for SIUs. Section
403.8(f)(1)(iii) contains the revisions which authorize general control
mechanisms.
EPA notes that today's rule replaces the term ``general permit''
with ``general control mechanism''. This terminology is more consistent
with the existing Pretreatment Regulations which require that SIUs be
controlled through ``permits or equivalent individual control
mechanisms.'' Just as EPA has not precluded the use of an ``order or
similar means'' to regulate individual SIUs, it also is not ruling out
the use of other mechanisms besides permits to address groupings of
SIUs. This decision is based on the rationale EPA provided when the
Agency first promulgated the requirement that POTWs regulate SIUs
through individual control mechanisms to SIUs. See 55 FR 30107, July
24, 1990. EPA is including the relevant passage from this final rule
for reference:
``* * * the Agency will require issuance of ``individual
Discharge permits or equivalent control mechanisms.'' An adequate
equivalent control mechanism is one which ensures the same degree of
specificity and control as a permit. To clarify that the conditions
of the individual control mechanism must be enforceable against the
Significant Industrial User through the usual remedies for
noncompliance (set forth in 40 CFR 403.8(f)(1)(vi)(A), EPA has
amended the language of 40 CFR 403.8(f)(1)(vi)(B) to provide that
Pretreatment requirements enforced through the remedies of 40 CFR
403.8(f)(1)(vi)(A) shall include the requirements set forth in
individual control mechanisms. In addition, the Agency has added to
proposed 40 CFR 403.8(f)(1)(iii) a statement that individual control
mechanisms must be enforceable.
What types of facilities may be subject to a general control
mechanism? SIUs that are covered by concentration-based Standards and
Best Management Practices may be subject to general control mechanisms.
However, due to the requirement that all facilities covered under the
same mechanism ``require the same effluent limitations'', facilities
regulated by categorical Standards expressed as mass limits, which are
inherently unique to each individual User, can not receive coverage
under a general control mechanism. The one exception to this exclusion
would be situations where the POTW has imposed the same mass-based
local limit on a number of facilities, and any categorical Standards
are expressed as concentration limits or BMPs. In addition, general
control mechanisms are not available for Industrial Users whose limits
are based on the Combined Wastestream Formula or Net/Gross
calculations, or other calculated categorical Pretreatment Standard
equivalents (40 CFR 403.6(e) and 40 CFR 403.15).
How does an SIU apply for coverage under a general control
mechanism? For an individual SIU to be covered by a general control
mechanism, it must file a ``written request for coverage'' with the
POTW. Through the request for coverage, the Industrial User should
identify its production processes, the types of waste generated, and
the monitoring location or locations at which all regulated wastewaters
will be monitored. The request for coverage should also include a
finding that the SIU properly falls within the category of facilities
covered by the general control mechanism. In addition, the SIU's
request for coverage should include an indication of whether the User
is requesting a monitoring waiver for pollutants not present.
The POTW does not necessarily need to establish an entirely new
application process for SIUs seeking coverage under a general control
mechanism. Existing procedures or forms may be used to provide
coverage. The POTW may find that it is necessary to supplement existing
procedures or forms to add the information EPA recommends for inclusion
in the requests for coverage, as discussed in the preceding paragraph.
How does the POTW adopt general control mechanisms? A POTW must
have the necessary legal authority if it wants to issue general control
mechanisms. Legal authority changes would include the adoption of
ordinance language consistent with today's changes to 40 CFR
403.8(f)(1)(iii) and the development of any policies or procedures that
would support the issuance and implementation of general control
mechanisms. Refer to Section VI for a more detailed discussion of
Program modifications.
In addition, general control mechanisms have to be enforceable to
the same extent as an individual control mechanism. The POTW should
also have enforcement authority to take action against Industrial Users
that fail to file the required request for a general control mechanism,
i.e., an IU that fails to file is subject to enforcement for
discharging without authorization.
The POTW should develop the general control mechanism and provide
notice that it is available. The general control mechanism should, of
course, specify exactly what characteristics or conditions make an
Industrial User eligible for coverage. The general control mechanism
must also impose all of the conditions of individual control mechanisms
listed in 40 CFR 403.8(f)(1)(iii)(B)(1)-(6).
A POTW may make coverage by the general control mechanism mandatory
or optional. In either case, if an Industrial User is to be covered by
the general control mechanism, it must file the written request for
coverage to be covered by the general control mechanism. The POTW
should consider how it will notify SIUs, subsequent to their filing a
written request for coverage, that they are authorized to discharge
under the general control mechanism, including how it will memorialize
certain facility-specific factors such as sampling location. EPA
[[Page 60145]]
notes that the POTW's annual report should indicate which SIUs are
covered by each general permit.
Today's final rule does not preclude POTWs from requiring
individual control mechanisms for specific Industrial Users, even if
they might otherwise satisfy the conditions for a general control
mechanism, where necessary or otherwise determined to be appropriate by
the POTW. Today's final rule also does not restrict POTWs' existing
authority to use general control mechanisms to regulate facilities that
are not considered Significant Industrial Users.
What significant changes were made to the proposed rule?
Today's rule makes the following changes to the proposed rule:
Criteria for Coverage: In proposing the criteria for coverage under
a general control mechanism, EPA omitted one of the criterion used in
the NPDES general permit requirements. In today's final rule, EPA is
adding this criterion, which is similar to 40 CFR 122.28(a)(2)(i)(E),
to the list of criteria for coverage. The following language is
included in 40 CFR 403.8(f)(1)(A)(5): ``in the opinion of the POTW,
[the SIUs] are more appropriately controlled under a general control
mechanism than under individual control mechanisms.''
Request for Coverage: EPA has deleted all references to the
requirement to submit a ``Notice of Intent'' (NOI) to be covered under
a general control mechanism. The NOI is an instrument that is
applicable to the NPDES general permit program. Although the proposal
indicated that an alternative instrument could be used by the POTW, EPA
has concluded that the ``written request for coverage'' better reflects
the Agency's intention not to restrict the POTW's decision about the
type of application it chooses to use in covering SIUs with a general
control mechanism.
Coverage for SIUs with Monitoring Waivers for Pollutants Not
Present: EPA makes coverage under a general control mechanism available
for SIUs which are requesting monitoring waivers for pollutants neither
present nor expected to be present. The proposal did not state whether
such facilities could still meet the required criteria for being
considered substantially similar. EPA also specifies that the
monitoring waiver is effective in the general control mechanism only
after the SIU obtains written approval from the POTW that the
monitoring waiver request has been approved.
Coverage for SIUs with Mass Limits: The proposed rule excluded all
facilities subject to mass limits from coverage under a general control
mechanism. Today's final rule provides one exception to that exclusion.
EPA clarifies in 40 CFR 403.8(f)(1)(iii)(A) that general control
mechanisms are unavailable for facilities subject to categorical
Standards expressed as mass of pollutant discharged. This language does
not prevent a POTW from using a general control mechanism for a group
of SIUs that all have the same mass-based local limits (as
distinguished from mass-based categorical Standards), as long as the
SIUs are not subject to categorical Standards that are mass-based. In
addition, the final rule also clarifies that the mass-based categorical
Standards excluded from coverage under a general control mechanism
includes those limits that are expressed as mass of pollutant
discharged per day or that are production-based.
Recordkeeping Requirements: EPA is adding a requirement for the
POTW to maintain for three years after the expiration of the general
control mechanism, a copy of the general control mechanism itself,
documentation to support the POTW's determination that the group of
SIUs to be covered meets the required criteria, and copies of all
related requests for coverage. This documentation will serve as a
record for the POTW to support its actions in establishing the facility
category and for authorizing coverage under the general control
mechanism for individual facilities.
4. Summary of Major Comments and EPA Response
Is use of a general control mechanism in conflict with EPA's
original intent in requiring individualized control mechanisms for
SIUs? One commenter expressed concern that using general control
mechanisms would not provide the specificity of control over SIUs that
the Domestic Sewage Exclusion (DSE) study (Report to Congress on the
Discharge of Hazardous Wastes to Publicly Owned Treatment Works--EPA
530-SW-86-004) indicated was necessary. Today's rule provides an
exception to the requirement that the POTW issue SIUs ``permits or
equivalent individual control mechanisms''. The commenter is correct in
observing that the adoption of the requirement to issue control
mechanisms to SIUs after EPA's issuance of the DSE study in 1986, was
intended to provide a mechanism for the POTW to impose individualized
Pretreatment requirements on SIUs. See 55 FR 30105-30110 (July 24,
1990). However, EPA has now concluded that general control mechanisms
can provide an equivalent level of control for facilities that meet all
of the requirements in 40 CFR 403.8(f)(1)(iii)(1-6), and will not
lessen the POTW's enforcement capabilities.
Use of a general control mechanism does not relieve the POTW of any
of its oversight or implementation requirements under its Pretreatment
program. The purpose of the general control mechanism is to streamline
the administrative requirements associated with issuing control
mechanisms to multiple Industrial Users that are substantially similar.
The level of control over an SIU with a general control mechanism
should not be any different than if that User were covered by an
individual control mechanism. Both individual and general control
mechanisms must be enforceable and must contain the minimum conditions
provided in 40 CFR 403.8(f)(1)(iii)(B)(1-6). In addition, EPA notes
that it is within the POTW's discretion to exclude particular
Industrial Users from general control mechanisms in order to treat
those dischargers with more individually tailored requirements. EPA's
intent is to leave these case-by-case determinations to the POTW, which
should be in the best position to determine whether it is appropriate
to use a general control mechanism for a particular User.
Is a Notice of Intent (NOI) required for an SIU requesting coverage
under a general control mechanism? Several commenters found EPA's use
of the term ``Notice of Intent'' (NOI) problematic because it suggested
that POTWs would be required to use such an instrument. These
commenters requested that EPA delete the reference to NOI or make it
clear that the POTW can choose the appropriate mechanism for SIUs to
use in seeking coverage under a general control mechanism. EPA
acknowledges these concerns, and has removed the reference to ``notice
of intent'' in today's final rule. The revised rule instead refers only
to a ``written request for coverage.'' The decision regarding the type
of application to use for general control mechanisms is entirely the
POTW's. EPA emphasizes, however, that regardless of the type of
instrument chosen, the request for coverage must identify, at a
minimum, the information required under new 40 CFR 403.8(f)(1)(iii)(A).
POTWs must also request basic contact information (e.g., contact name,
address, phone number, etc.) and specification of the general control
mechanism category for which the SIU is seeking coverage. See 40 CFR
403.8(f)(1)(iii)(A). The POTW will need to obtain sufficient
information to verify that the User is appropriately classified under
the general control mechanism, such as
[[Page 60146]]
information to determine the applicability of categorical Standards.
Should there be additional criteria for a User to be eligible for
coverage under a general control mechanism? One commenter requested
that EPA include additional criteria for determining whether a group of
Users are substantially similar enough to merit use of a general
control mechanism. The criteria included in the proposal (e.g., that
facilities to be covered involve the same or substantially similar
types of operations, discharge the same types of wastes, require the
same effluent limitations, and require the same or similar monitoring)
are taken from the criteria used for general permits for direct
dischargers in 40 CFR 122.28(a)(2)(i). The direct Discharge criteria
contain one additional limitation, not included in the proposal,
requiring the NPDES permitting authority to document that, in his or
her opinion, the dischargers ``are more appropriately controlled under
a general permit than under individual permits.'' See 40 CFR
122.28(a)(2)(i)(E). In consideration of the commenter's request, and to
be consistent with the criteria used for grouping direct dischargers
within general permits, EPA has modified the proposed list of criteria
to include a similar requirement that the POTW document why it believes
that its SIUs are more appropriately regulated by a general control
mechanism. EPA does not expect that this added criterion will impose
additional burden on the POTW. This criterion merely requires that the
POTW provide some written record of why it believes a particular
grouping of SIUs is substantially similar, using the criteria in 40 CFR
403.8(f)(1)(iii)(A)(1-5).
Another commenter suggested that an SIU's compliance record should
be used as an additional criterion for determining whether to allow
general control mechanism coverage for a facility. EPA agrees that
there will be factors, outside of the criteria in 40 CFR
403.8(f)(1)(iii)(A), which may support a POTW's decision to exclude a
particular Industrial User from general control mechanism coverage. EPA
also agrees that the need to impose a compliance schedule or
enforcement order on a particular Industrial User is a good example of
an additional criterion that the POTW may use to exclude an SIU from
general control mechanism coverage. EPA notes that the criteria listed
in 40 CFR 403.8(f)(1)(iii)(A) are minimum requirements. The POTW may
include additional criteria if it chooses. However, EPA is reluctant to
add additional criteria at this time, as the Agency has concluded that
many of these factors will be site-specific and are best left to the
POTW to judge whether they are appropriate for use in their program.
One commenter suggested that general control mechanisms not be
available for SIUs that have multiple sampling locations, are subject
to more than one categorical Standard, or have both federal categorical
and non-categorical wastestreams. EPA agrees that situations such as
this make it difficult to use a general control mechanism in some
cases. However, EPA declines to adopt the additional criteria suggested
by the commenter. The minimum required criteria in 40 CFR
403.8(f)(1)(iii)(A) provide some flexibility regarding the availability
of coverage for any particular User. EPA prefers to leave to the POTW
the site-specific judgments as to whether a class of dischargers meets
the substantially similar criteria. The POTW may determine that a User
which has multiple sampling points or which is subject to both
categorical Standards and non-categorical requirements is sufficiently
dissimilar from other Users to justify precluding that discharger from
general control mechanism coverage. There may be some instances where
these differences may still be accommodated under a general control
mechanism, and therefore EPA has concluded that eliminating this
flexibility is inappropriate.
Additionally, a general control mechanism may still be used to
cover a class of Users subject to more than one categorical Standard as
long as they are covered by the same Standards, in addition to meeting
all other criteria for coverage. This is consistent with the
requirement that all Users share the same effluent limits. See 40 CFR
403.8(f)(1)(iii)(A)(3). However, EPA expects that where there is one
User in the class which is subject to at least one different
categorical Standard than the others, even if it has one or more
categorical Standards in common with the other Users, such a User would
be unable to obtain coverage under a general control mechanism covering
the other Users due to the differences in effluent limits.
Must the SIUs be exactly the same to be covered under a general
control mechanism? Several commenters questioned EPA's intentions
behind requiring that facilities meet the ``substantially similar''
criteria in order to qualify for use of a general control mechanism.
Some of these commenters were concerned that the criteria would be
interpreted too restrictively, and that industries would essentially
have to be identical to be included in a general control mechanism
group. One commenter believed that industries which are similar in many
respects, but which are different in terms of operations and wastewater
Discharges, should not be excluded from coverage.
EPA's view is that the criteria for inclusion in a general control
mechanism category are appropriate as stated. The opportunity to
develop and issue the same control mechanism for multiple SIUs comes
with the tradeoff that these industries share certain minimum
characteristics. In response to the commenter's observation that
general control mechanisms should be available for industries which are
similar in many respects, but different in terms of operations and
wastes discharged, EPA agrees and notes that the criteria require that
the operations be ``the same or substantially similar'' and the
Discharge be of ``the same types of wastes.'' EPA does not intend for
these criteria to be interpreted as requiring the operations and wastes
discharged to be exactly the same; rather, the intent is that
industries covered under the same control mechanism be substantially
similar.
EPA acknowledges that industries are rarely the same in every
respect. In order for an SIU to be included in a general control
mechanism category, it must meet the criteria in 40 CFR
403.8(f)(1)(iii)(A). With the exception of the SIU's effluent limits,
which must be the same as other SIUs in the general control mechanism
category, EPA does not expect each SIU in a general control mechanism
category to be identical.
Can a general control mechanism be used for facilities which obtain
a monitoring waiver for pollutants neither present nor expected to be
present? One commenter recommended that general control mechanisms not
be made available for SIUs which receive a monitoring waiver for
pollutants neither present nor expected to be present at the facility.
The commenter reasoned that such facilities require individual control
mechanisms due to the variation in sampling requirements from other
facilities. EPA disagrees with the commenter. Categorical Industrial
Users (CIUs) that qualify for a sampling waiver for pollutants neither
present nor expected to be present can still be accommodated under a
general control mechanism even if other Users in the same general
control mechanism category are still required to sample for all
pollutants. There is flexibility inherent in the criterion requiring
all industries covered by a general control mechanism to be subject to
the ``same or similar monitoring''. If a particular CIU
[[Page 60147]]
is similar in every other respect to other CIUs, except for a sampling
waiver for pollutants neither present nor expected to be present, it is
EPA's view that a general control mechanism may still be used to cover
this discharger. However, a POTW could choose as a matter of its own
discretion to exclude CIUs with sampling waivers from coverage under
the general control mechanism.
To assist the POTW in coordinating the implementation of general
control mechanisms and processing requests for monitoring waivers, EPA
is requiring Users to include in their requests for general control
mechanism coverage any sampling waiver requests. Such a requirement
will ensure that the POTW is able to process both the sampling waiver
request and the general control mechanism application simultaneously,
and provide the POTW with sufficient opportunity to determine what type
of control mechanism is most appropriate. Where the POTW chooses to
still cover those CIUs which receive monitoring waivers under a general
control mechanism, 40 CFR 403.8(f)(1)(iii)(A) specifies that the
monitoring waiver is effective only after the POTW has specifically
notified the affected CIUs. Also, because all control mechanisms must
include SIU self-monitoring requirements, unless all of the monitoring
requirements and waivers for all pollutants are the same, the POTW will
need to establish a common set of monitoring requirements in a general
control mechanism and determine what mechanism it will use to
incorporate site-specific monitoring waivers into a general control
mechanism. Some possible mechanisms for addressing facility-specific
monitoring waivers include issuing a separate monitoring supplement to
the general control mechanism for individual CIUs, using the waiver
approval notice as a site-specific modification to the general control
mechanism, or appending the general control mechanism with specific
monitoring waivers. See Section III.A. for discussion of requirements
associated with monitoring waivers.
Can an SIU opt out of an existing general control mechanism?
Several commenters expressed opinions on one side or the other in terms
of whether general control mechanisms can be made mandatory or optional
by the POTW. Industrial facilities generally commented that EPA should
prevent POTWs from making general control mechanisms mandatory, while
POTW commenters supported keeping this decision a matter of the local
program's discretion. EPA is sensitive to the concerns regarding the
need for flexibility on the type of control mechanism used for
individual SIUs. The industry commenters argue that the SIU should be
able to choose whether it wants to be covered by an individual or
general control mechanism. EPA does not specify in today's rule whether
the use of general control mechanisms should be optional or mandatory.
However, provided that the SIUs in a category meet the required
criteria, the POTW has the discretion to determine whether coverage
under the general control mechanism is required or whether the
Industrial User will have the option of being covered under an
individual control mechanism. EPA emphasizes that there should be
minimal if any difference between an individual and general control
mechanism since the POTW is required to include in a general control
mechanism all of the conditions of individual control mechanism listed
in 40 CFR 403.8(f)(1)(iii)(B)(1)-(6). Even if the POTW chooses to make
general control mechanism coverage mandatory, the SIU may be able to
demonstrate to the POTW that it does not meet one of the criteria and
therefore should be issued an individual control mechanism.
C. Best Management Practices (40 CFR 403.5, 403.8(f) and 403.12(b),
(e), and (h))
Today's final rule clarifies that Best Management Practices (BMPs)
may be used in lieu of numeric local limits. EPA also clarifies the
reporting requirements that apply when BMPs are used as Pretreatment
Standards.
1. What are the existing rules?
What are Best Management Practices?
Best Management Practices (BMPs) are management and operational
procedures that are intended to prevent pollutants from entering a
facility's wastestream or from reaching a Discharge point. BMPs are
distinguished from numeric effluent limits that regulate the pollutants
once they enter a wastestream. Although the General Pretreatment
Regulations have not previously defined BMPs, the NPDES regulations at
40 CFR 122.2 define BMPs as schedules of activities, prohibitions of
practices, maintenance procedures, and other management practices to
prevent or reduce pollution. BMPs also include treatment requirements,
operating procedures, and practices to control plant site runoff,
spillage or leaks, sludge or waste disposal, or drainage from raw
material storage.
There are two different circumstances in which BMPs may be
Pretreatment Standards. The first is when a POTW establishes BMPs as
local limits to implement the general and specific prohibitions. The
second is when the BMPs are categorical Pretreatment Standards
established by EPA.
What regulations address the use of BMPs as local limits?
Prior to today's rule, the Pretreatment Regulations did not
specifically address the use of BMPs as local limits. Thus, 40 CFR
403.5(c) required POTWs to develop ``specific limits'' and ``specific
effluent limits'', without defining the term ``limits.'' (emphasis
added)
The Local Limits Development Guidance (EPA 833-R-04-002A, July
2004) includes a discussion in support of BMPs as local limits, and
provides references and case studies to illustrate situations where
BMPs have been utilized. EPA indicates also that the development and
implementation of numeric local limits is not always the only
appropriate or practical method for preventing pollutant Pass Through
and Interference, or for protecting POTW worker health and safety. For
instance, control of chemical spills and Slug Discharges to the POTW
through formal chemical or waste management plans can go a long way
toward preventing problems. A local requirement for an Industrial User
to develop and submit such a plan can be considered as a type of
narrative local limit and can be a useful supplement to numeric limits.
What regulations address the use of BMPs as categorical Standards?
Certain categorical Pretreatment Standards allow the use of BMPs as
an alternative means of complying with, or in place of the established
numeric effluent limit. For example, facilities may develop toxic
organic management plans in lieu of sampling to demonstrate compliance
with the total toxic organic limit in 40 CFR Part 433 (Metal Finishing
category). The Pesticides Formulating, Packaging, and Repackaging
(PFPR) regulation provides a pollution prevention alternative as an
option that may be chosen rather than complying with the ``zero
discharge'' limitations. See 40 CFR Part 455 (61 FR 57518, November 6,
1996).
Although the PFPR and some other categorical Standard regulations
have provided for reporting compliance data related to BMPs, the Part
403 Pretreatment Regulations did not. See 40 CFR 403.12(b), (d), and
(e). Those requirements focused on sampling data to demonstrate
compliance with numeric limits rather than
[[Page 60148]]
documentation to determine compliance with a BMP.
2. What changes did EPA propose?
EPA proposed to clarify the regulations to provide specifically
that BMPs developed by POTWs may serve as local limits required by 40
CFR 403.5(c)(3). The BMPs would be enforceable under 40 CFR 403.5(d).
They would be included as local control mechanism requirements under 40
CFR 403.8(f)(1)(iii)(C).
EPA also proposed to modify 40 CFR 403.12(b), (e), and (h) to
clarify the reporting requirements that apply when BMPs are used as
Pretreatment Standards. This would include any documentation required
by the Control Authority or the Standards themselves to demonstrate
compliance with BMPs that are included in categorical Standards, as
well as any documentation required by the Control Authority to
demonstrate compliance with BMPs that serve as local limits. EPA also
proposed a change to the definition of significant noncompliance (SNC)
to facilitate POTW oversight of these practices. The proposal would
broaden the SNC definition at 40 CFR 403.8(f)(2)(vii)(C) to include
non-numeric violations such as BMPs. In addition, EPA proposed to
revise the reference to ``pretreatment effluent limit'', and replace it
with the more inclusive reference to ``Pretreatment Standard or
Requirement''.
3. What changes is EPA adopting today?
Today's rule adopts the proposed rule changes to the Pretreatment
Regulations relating to the use of BMPs as local limits, and the
reporting requirements when BMPs are used as national categorical
Standards.
What significant changes were made to the proposed rule?
The only significant change made to the proposed rule was the
inclusion in 40 CFR 403.3(e) of a definition of BMPs consistent with
the NPDES definition.
4. Summary of Major Comments and EPA Response
Does the CWA authorize POTWs to require implementation of BMPs as
local limits? A few commenters questioned the authority under the CWA
for POTWs unilaterally to require Industrial Users to implement BMPs
instead of or in addition to numeric local limits. POTW authority to
establish limits and other controls on Discharge derives from state
law, not the CWA. The Act, together with the Pretreatment Regulations,
specifies authorities that POTWs must have, and establishes the
conditions under which local requirements become federally enforceable.
There is nothing under the Act that would preclude POTWs from setting
BMP-based limits, or EPA from making such limits established by a POTW
federally enforceable.
How are BMPs defined? Several commenters felt that the use of the
NPDES definition of BMPs would be appropriate in the Pretreatment
context. EPA agrees that such a definition would be useful, and is
adopting the NPDES definition, modified slightly to reference relevant
Pretreatment Standards.
Is a regulatory change needed for BMPs developed by POTWs to be
considered enforceable local limits? Some commenters expressed the view
that BMPs could already serve as enforceable local limits, and that a
regulatory change was unnecessary. As discussed in the preamble to the
proposal, the existing regulations do not specifically address this
issue, although EPA has supported their use in its local limits
guidance. EPA has concluded that revision of the regulations is
necessary to clear up any questions on this issue. As will be discussed
below, by providing this clarification EPA is ensuring that POTWs have
additional means at their disposal as they seek to control pollutants
and sources not amenable to more traditional numeric limits.
Will POTWs be limited in their ability to develop BMPs as local
limits? Some commenters recommended that the POTW's ability to use BMPs
as local limits be limited to certain situations, such as where it is
impracticable to obtain representative sampling data from a type of
discharger, the Discharge flow is minimal or variable, or where
operations or processes of a type of discharger are similar enough that
effective BMPs can be established. In general, EPA anticipates that
POTWs will choose to use BMPs instead of numeric local limits where
determination of compliance with numeric limits is infeasible, or as a
supplement to numeric limits as appropriate to meet the requirements of
the CWA. As the commenters pointed out, BMPs may be appropriate for
regulating releases when the types of pollutants vary greatly over
time, when chemical analyses are impracticable, and when other
Discharge control options are inappropriate. It may also be appropriate
for IUs to be required to comply with both BMPs and numeric limits.
While use of BMPs is not appropriate in all situations, their use,
either in conjunction with or instead of numeric limits, will be at the
discretion of the POTW, with oversight by EPA and the state Approval
Authority.
What are some specific situations where BMPs would be appropriate?
Numerous commenters representing POTWs, Industrial Users and trade
associations provided specific examples where BMPs would be well-suited
to address certain types of industrial or commercial Discharges, either
in lieu of or in addition to numeric local limits. Examples involving
requirements for photoprocessors to use silver recovery systems and/or
management practices were frequently cited to address silver Discharges
from large numbers of commercial facilities. Also cited were
requirements for dental facilities to follow BMPs to control mercury
Discharges from dental amalgam where individual monitoring on a large
scale is impractical and where Discharges are episodic in nature.
Similarly, other commenters referred to use of shop towel management
and other BMPs to address Discharges from printing facilities, or
setting requirements for ``no Discharge'' of tetrachloroethene from dry
cleaning facilities as an alternative to complying with a numeric
limit. The Agency agrees that these are good examples of situations
where BMPs may be appropriate.
BMPs may also be used to supplement categorical Standards or
numeric local limits at larger facilities. One commenter described the
use of chemical management plans to address specific pollutants in
individual IU Permits. These plans, which were required by the POTW,
require IUs to identify within 60 days of Permit issuance all sources
of a given pollutant within the plant site; specify actions to be taken
to control these identified sources; provide a schedule for
implementing the plan; and identify individuals responsible for
implementation of the plan. Upon approval by the POTW, the chemical
management plan is incorporated into the IU's Permit as an enforceable
requirement.
Who decides whether a POTW will require an IU to comply with a BMP
or numeric limit? Some industries and trade associations asked EPA to
ensure that IUs have the option of whether to meet BMPs or numeric
limits. While POTWs are encouraged to work with affected Users in
developing local limits, and must comply with applicable public
participation requirements, the POTW is responsible for developing,
implementing and enforcing local limits as it deems appropriate to meet
its program requirements. As discussed above, whether BMPs are used in
conjunction with or instead of numeric
[[Page 60149]]
limits will be at the discretion of the POTW, upon approval by the
Approval Authority.
How are BMPs factored into the technical evaluation of local
limits? The preamble to the proposed rule stated that for BMPs to be
considered local limits under 40 CFR 403.5(c), the practices must
protect against Pass Through and/or Interference. This will require the
POTW to evaluate the BMPs during the technical evaluation of its local
limits. Some commenters raised questions regarding whether a POTW would
need to quantify the effects of a BMP in its calculation of its maximum
allowable industrial loading (MAIL), and if so, how that should be
done.
As discussed in the preamble to the proposal, BMPs are expected to
be used where calculation of numeric effluent limitations is not
feasible, such as when the types of pollutants vary over time or when
chemical analyses are inappropriate. Nevertheless, a POTW needs to
assign an allocation of pollutants to Users covered by the BMP either
in its calculation of Maximum Allowable Industrial Loadings (MAIL), or
in calculation of separate allowable loadings for commercial
facilities. For instance, a POTW could estimate the loading of a
pollutant from a given sector prior to imposition of BMPs by
multiplying the average loading per User by the number of facilities.
Expected loading reductions from required BMPs could then be estimated
and incorporated into the MAIL. Thus, the POTW should be able to
provide an evaluation that implementation of the numeric limit plus
implementation of BMPs for specific sectors will result in the
calculated Maximum Allowable Headworks Loading (MAHL) being met. Where
it is expected to take a significant amount of time for BMP-based
reductions to be realized, the Apre-BMP'' loading from the sector
should be used in the MAIL calculations. Initial estimates of loading
reductions could then be verified through sampling of selected Users
that have implemented the BMPs or evaluating influent loadings for
pollutants being addressed by BMPs to see if adjustments are needed for
the allowable headworks loadings, the numeric limits or BMPs for any
affected sectors.
May States and EPA Regions establish BMPs as local limits? One
commenter observed that the language in 40 CFR 403.5(c)(4), allowing
POTWs to develop BMPs as local limits, would not pertain to states that
administer authorized Pretreatment programs. The commenter supported
broadening this language to allow authorized states and Regions, acting
in their capacity as Control Authorities, to develop and enforce BMPs.
Section 40 CFR 403.5(d), states that ``where specific prohibitions or
limits on pollutants (i.e., local limits) are developed by a POTW in
accordance with (40 CFR 403.5(c)), such limits shall be deemed
Pretreatment Standards for the purposes of section 307(d) of the Act.''
An authorized state which does not approve POTW programs but
assumes local responsibility by acting as the Control Authority under
40 CFR 403.10(e) is required to implement all elements of the
Pretreatment program established for POTWs in 40 CFR 403.8(f),
including the establishment of local limits (40 CFR 403.8(f)(4)). Local
numeric limits or BMPs established in this situation would be federally
enforceable Pretreatment Standards under 40 CFR 403.5(d) provided such
limits are authorized by state law.
An authorized state acting as the Approval Authority, and as
Control Authority for Industrial Users which discharge to a POTW
without an approved program, may develop and implement BMPs or other
local limits applicable to those Industrial Users provided such limits
are authorized by state law. In the case where EPA acts as the Approval
Authority and Control Authority, for a local limit to be federally
enforceable under 40 CFR 403.5(d), the limit would need to be
incorporated into the local POTW's sewer use ordinance or other legal
authority.
What are some of the common elements of an enforceable BMP? Many
commenters expressed the view that without additional guidance on the
structure of BMPs, their use could be subjective and difficult to
evaluate or enforce. Others felt that because of their subjective and
potentially arbitrary nature, BMPs should not be allowed to serve as
local limits. BMPs developed by a POTW to protect against Pass Through
and Interference can be structured in such a manner that compliance
with their terms can be verified by a POTW, and can provide a useful
alternative to numeric limits in situations where such limits are
infeasible or impractical. In addition, BMPs established by POTWs as
local limits will be subject to oversight from the POTW's state and EPA
Region. These BMPs will be evaluated by states and EPA based on factors
such as legal authority, effectiveness, and enforceability.
Based on EPA's experience and observations of situations where BMPs
have been effective, enforceable BMPs should generally include the
following elements. Depending on the sector being controlled, however,
certain elements such as installation of treatment or prohibitions on
practices may not be applicable.
Specific notice to IUs of requirements and enforceability.
This notice, provided through POTW sewer use ordinances or individual
or general control mechanisms, should make clear which Users are
subject to the BMPs, and what affected Users must do to comply with
their requirements.
Installation of treatment. POTWs should provide criteria
or specifications that the equipment must satisfy. For example, a
requirement for use of oil/water separators at auto repair facilities
could include sizing or design criteria. EPA cautions POTWs to avoid
endorsing the use of specific brands or vendors.
Requirements for or prohibitions on certain practices,
activities or Discharges. POTWs should include specific requirements or
prohibitions where necessary to ensure that the use of such BMPs is
protective. An example would be a prohibition on Discharges of
tetrachloroethene from dry cleaning facilities.
Requirements for operation and maintenance (O&M) of
treatment units. POTWs should spell out their O&M expectations to
ensure that treatment systems continue to perform as designed and
installed. For example, restaurants could be required to have grease
interceptors cleaned out at a specified frequency.
Timeframes associated with key activities. POTWs should
provide timeframes for when management practices must be implemented,
or when required treatment must be installed and fully operational.
Other milestones should be added to the schedule where necessary to
facilitate the oversight of BMP implementation.
Compliance certification, reporting and records retention.
Establishing specific procedures for such requirements will enable
POTWs to verify whether required equipment has been installed, or
whether required maintenance has been performed at the specified
frequency.
Provision for re-opening or revoking the BMP conditions.
As with numeric limits, POTWs should include language in the sewer use
ordinance and/or facility control mechanisms that enables them to
revoke the control mechanism at any time to include modified numeric
limits or BMPs. For example, the POTW may find it necessary to revoke
an Industrial User's control mechanism where the POTW determines that
the User has not complied with applicable BMPs, or where the POTW
determines
[[Page 60150]]
that it is easier to determine compliance with a numeric limit.
Other requirements as determined by the POTW.
What local legal authority changes will be necessary? POTWs wishing
to establish BMPs instead of or in addition to numeric local limits
will need to evaluate their sewer use ordinances to ensure they provide
adequate authority to require compliance with BMPs by affected Users.
Further, BMP requirements such as those discussed above, and which IUs
they cover, should be specified in POTW sewer use ordinances and/or
Industrial User control mechanisms.
How will compliance and significant noncompliance be determined?
Concerns were expressed regarding the ability of Control and Approval
Authorities to determine whether a User is in compliance with BMPs. In
EPA's view, BMPs that set specific requirements, incorporating as
appropriate the common elements presented above, (i.e., requirements or
prohibitions on practices, activities or Discharges; requirements for
installation, operation and maintenance of treatment units; timeframes
for key activities; reporting and records retention; certification and
reporting of compliance, etc.) will aid POTWs and Approval Authorities
in their compliance determinations. Once these requirements are
established for one or more facilities in a sector, an IU's compliance
status should be able to be verified through a combination of self-
reporting and verification inspections. Where a facility subject to
BMPs has not satisfied the requirements in the sewer use ordinance or
control mechanism, the POTW would need to use its enforcement response
plan (ERP) to determine the appropriate response, and relevant
significant noncompliance criteria to assess whether the facility is in
significant noncompliance. For example, a facility that fails to
install required treatment equipment within a specified timeframe would
generally be viewed as being in significant noncompliance 90 days after
the schedule date. See 40 CFR 403.8(f)(2)(vii)(E). Likewise, a facility
would be in significant noncompliance if it failed to submit a
compliance certification within 45 days from the due date. See 40 CFR
403.8(f)(2)(vii)(F). POTWs adopting BMPs as local limits, or that have
Categorical Industrial Users whose categorical Standards include BMPs,
should evaluate their ERPs to ensure that they reflect the need to
enforce non-numeric requirements.
D. Slug Control Plans (40 CFR 403.8(f)(1)(iii)(B)(6) and
403.8(f)(2)(vi))
Today's final rule addresses the requirement that POTWs evaluate
the need for a slug control plan for SIUs every two years. The rule
will provide POTWs with the flexibility to determine how frequently to
evaluate the need for such plans, based on local conditions. At the
same time, the new rule specifies that an evaluation must be undertaken
for each SIU once within a specified timeframe. Today's rule also
clarifies that an actual slug control plan (e.g., the physical document
itself) is not the POTW's only option for controlling facilities with a
higher potential for Slug Discharges. The regulation states that the
POTW may choose to require that the SIU take specific, preventative
actions instead of requiring the development of a slug control plan.
Regardless of the requirements imposed by the POTW, today's rule will
require that where actions to control Slug Discharges are determined to
be necessary, the SIU's control mechanism must include provisions
addressing those requirements.
These revisions do not alter current requirements regarding annual
monitoring and inspections of SIUs. POTWs are still required to conduct
their annual facility inspections and effluent monitoring for each of
their SIUs. The revisions also do not change the POTW's requirement to
prevent disruptions caused by Slug Discharges. EPA expects that, as an
integral part of its ongoing oversight of all SIU facilities, the POTW
will consider whether adequate measures are in place to avoid Slug
Discharges. The POTW is authorized to use its own discretion in
determining the timing, level of detail, and commitment of resources
necessary to ensure the facility has adequate measures in place to
protect against Slug Discharges. POTWs may still require the SIU to
develop a slug control plan or take specified preventative measures to
prevent Slug Discharges whenever the facility's slug control measures
are judged to be inadequate.
Today's rule does not impose any new requirements on Industrial
Users. SIUs remain subject to current requirements to eliminate or
mitigate the effects of a Slug Discharge. These actions may include
constructing physical containment facilities as well as implementing
sound management practices to prevent Slug Discharges.
1. What were the rules in place prior to today's rulemaking?
A Slug Discharge is defined as ``* * * any Discharge of a non-
routine, episodic nature, including but not limited to an accidental
spill or non-customary batch Discharge'' (40 CFR 403.8(f)(2)(v)). EPA
notes that the subparagraph numbers have changed slightly in the final
rule due to other, unrelated modifications. The appropriate rule
reference is now 40 CFR 403.8(f)(2)(vi). The regulations require POTWs
to ensure that Industrial Users have policies and procedures in place
to prevent or mitigate the effects of Slug Discharges. Section 40 CFR
403.8(f)(2)(v), prior to today's rulemaking, required POTWs to ``* * *
evaluate, at least once every two years, whether each such Significant
Industrial User needs a plan to control Slug Discharges.'' The function
of such a plan is to ensure that an SIU has a planning and
implementation tool to prevent Interference at a POTW treatment
facility by a non-routine or accidental Discharge. The minimum elements
required in a slug control plan are (1) a description of Discharge
practices, (2) a description of all stored chemicals at the facility,
(3) procedures for immediately notifying the POTW of the Slug Discharge
and providing written follow-up notification, and (4) a variety of
procedures (e.g., inspection and maintenance of chemical storage areas)
for preventing adverse impacts from any accidental spills (40 CFR
403.8(f)(2)(v)(A) to (D)).
The requirement for a once every two years review of the need for a
slug control plan was part of the Domestic Sewage Study rulemaking (55
FR 30082, July 24, 1990). In the preamble discussion to that
rulemaking, EPA explained the need for POTWs to implement slug control
programs. As part of the discussion, EPA referenced the guidance
manual, Control of Slug Loadings to POTWs (EPA 21W-4001, February 1991,
see http://www.epa.gov/npdes/pubs/owm021.pdf), which was then under
preparation. This manual provides detailed guidance for POTWs to
evaluate whether SIUs need to develop slug control plans. It also
provides guidance for SIUs in developing those slug control plans. In
addition, the manual recognizes that POTWs need to determine whether
existing on-site conditions may impact their treatment works, while
industries are in the best position to solve problems relative to their
physical plants or production processes. Part 403 requires that, where
found to be necessary, a POTW must require an SIU to develop a plan or
impose some specified control actions to prevent Slug Discharges.
[[Page 60151]]
2. What changes did EPA propose?
The proposed rule suggested eliminating the requirement that POTWs
evaluate the need for a slug control plan for each SIU every two years.
Instead, EPA proposed giving POTWs the flexibility to review the need
for slug control plans or other actions as part of their ongoing
oversight of Industrial Users. The proposal would have added language
to clarify that requiring an actual slug control plan is one of several
options the POTW has at its disposal for controlling facilities with a
higher potential for Slug Discharges. The proposed rule would have
clarified that a POTW could choose to require that the SIU take certain
specified preventative actions to control the Slug Discharge potential,
instead of developing a slug control plan. In addition, to ensure that
slug controls are enforceable to the same extent as other Standards and
requirements, the proposal would have added language to require that,
where a slug control plan or other action is found to be necessary,
appropriate requirements would be placed in the Industrial User's
control mechanism.
3. What changes is EPA finalizing in today's rule?
In today's final rule, consistent with the proposal, EPA removes
the required minimum frequency for conducting POTW evaluations for the
need for slug control plans or other control actions. The final rule
also formalizes the requirement for SIUs to address Slug Discharges by
requiring that the POTW include language in the User's control
mechanism to control Slug Discharges, if it determines that a slug
control plan or other action is necessary. These rule revisions appear
in 40 CFR 403.8(f)(1)(iii)(F) and 403.8(f)(2)(vi).
What significant changes were made to the proposed rule?
Today's rule makes the following changes to the proposed rule:
Minimum evaluation frequency: Today's rule specifies that POTWs
must evaluate at least once the SIU's need for a slug control plan or
other action to control Slug Discharges. See 40 CFR 403.8(f)(2)(vi).
While the POTW may choose how frequently to assess slug-related
concerns, it is EPA's view that it is important to impose a minimum
frequency of one time per SIU to ensure that each SIU receives at least
one thorough evaluation. The provision specifies that this evaluation
must have occurred within one year of the effective date of today's
rule for SIUs identified as significant (yet never evaluated for the
need for a slug control plan) prior to the rule's effective date. Also,
SIUs identified as significant after the effective date of the rule
must be evaluated for the need for a slug control plan within one year
of being identified as significant.
Notification of significant facility change: EPA also adds a
requirement that SIUs must notify the POTW immediately of any changes
at their facilities, not already addressed in their slug control plan
or other slug control requirements, which may affect the potential for
a Slug Discharge. This requirement is especially relevant in the case
of those Users for which the POTW has determined, from some prior
assessment, that a slug control plan or other action is unnecessary.
However, EPA emphasizes that this requirement affects all SIUs, even
those that already have slug control plans or other measures in place.
See 40 CFR 403.8(f)(2)(vi). This provision places an affirmative duty
on such Users to provide the POTW with updated information on the
potential slug risks that are posed by industrial process changes. This
provision is consistent with, but differs from the existing
notification of changed Discharge in 40 CFR 403.12(j), which focuses on
advance notice of change in the volume or character of pollutants in
the Discharge itself.
4. Summary of Major Comments and EPA Response
The following summarizes the major comments received and EPA's
response.
Should POTWs be required to conduct annual inspections of SIUs to
determine the adequacy of slug control plans? One commenter supported
the proposed rule change, but recommended adding language to require
the POTW to verify during an inspection that a slug control plan, if
required, is adequate. EPA agrees with the commenter that the POTW
should be assessing the adequacy of existing slug control plans during
its annual inspection of SIUs. However, EPA has not included a specific
requirement in the regulation to this effect since existing inspection
and sampling guidance already recommend that POTWs assess the adequacy
of slug control plans during the POTW's annual inspection.
EPA emphasizes that this provision does not affect the POTW's
requirements to conduct inspections of its SIUs, nor has EPA changed
its recommendations about how to assess slug-related issues at each
facility. According to EPA's Industrial User Inspection & Sampling
Manual for POTWs (1994) (http://www.epa.gov/npdes/pubs/owm0025.pdf),
POTW inspectors should ask SIU staff if they are familiar with slug
control procedures, and request that a copy of the slug control plan be
provided for an assessment of its adequacy. EPA's guidance document
Control of Slug Loadings to POTWs (1991) (http://www.epa.gov/npdes/pubs/owm021.pdf) recommends that inspectors verify compliance with slug
control requirements and plans (see p. 2-44). In addition, EPA's slug
loading guidance indicates that ``the inspector should ascertain the
Industrial User's status with regard to compliance with the Plan,
report any deficiencies observed in the Industrial User's current Plan,
and suggest alternatives or modifications'' (see p. 2-44).
Can existing control measures or planning documents substitute for
slug control plan requirements at SIU facilities? Several commenters,
while supporting the proposal, requested that EPA clarify that existing
spill containment procedures or plans may adequately fulfill the
Pretreatment requirements concerning slug control plans. EPA agrees
with the commenter that there will be situations where existing
containment and spill planning documents at an Industrial User facility
describe adequate means for protection against Slug Discharges. EPA
recognizes that a number of existing requirements under other statutes
and regulations could serve as components of slug control plans. For
example, Spill Prevention, Control, and Countermeasures (SPCC) plans
may address some components of a slug control plan. A POTW could also
consult existing Emergency and Hazardous Chemical Inventory reports
(EPCRA Section 312, 40 CFR 370) typically submitted to local fire
marshals or other Local Emergency Planning Committee offices for the
facility. If an SIU is covered by any of these pre-existing plans, the
POTW may accept such plans in partial or complete fulfillment of the
slug control requirements, as long as each element set forth in 40 CFR
403.8(f)(2)(vi)(A)-(D) is addressed in an acceptable manner in some
document or collection of documents, and a reference to the need to
comply with these procedures is included in the User's control
mechanism pursuant to 40 CFR 403.8(f)(1)(iii)(F). However, EPA notes
that many of these pre-existing plans have been developed for purposes
other than control of Slug Discharges to POTWs, and the POTW must
carefully review the plans to ensure that they
[[Page 60152]]
meet the requirements of a slug control plan and the needs of the POTW.
In summary, under today's rule, a POTW has the discretion to
determine, based on an initial inspection or previous evaluations, that
existing procedures and control measures at the facility make the
development of a slug control plan unnecessary. The POTW should
document this finding as part of its records, and, consistent with
existing EPA guidance, should annually assess the adequacy of these
existing procedures and control measures as part of its annual
inspections. Also, implementation of these procedures or control
measures should be included as requirements in the facility's control
mechanism.
How should the POTW determine how often to conduct evaluations at
individual facilities concerning whether a slug control plan is needed?
One commenter pointed out that how frequently a POTW should evaluate
the need for a slug control plan may vary for different facilities. The
commenter emphasized that at some facilities, conducting such an
evaluation once every two years may not be sufficient. Regarding the
commenter's concerns about the frequency of Slug Discharge evaluations,
under today's rule, each POTW will need to determine what evaluation
frequency is appropriate for its program and/or for individual
facilities. EPA also recommends that POTWs consult with the Agency's
guidance document, Control of Slug Loadings to POTWs (1991) (http://www.epa.gov/npdes/pubs/owm021.pdf), which suggests different ways to
prioritize industrial facilities according to Slug Discharge potential
and strategies for assessing the adequacy of existing plans and
programs. To ensure that POTWs are provided with sufficient notice of a
change in Slug Discharge potential, EPA has added an additional
requirement for SIUs which are not required to develop a slug control
plan to notify the POTW immediately of any changes at their facilities
affecting the need for plans or other actions to address Slug
Discharges. It is EPA's position that placing the affirmative duty on
the SIUs to notify the POTW of such changes further reduces the
potential for Slug Discharge in the time between on-site inspections.
Although supporting the proposal, several commenters suggested that
EPA adopt further criteria for determining when a slug control plan is
necessary at an individual facility. Among the suggested criteria were
the following: (1) Slugs from an industrial facility violated the
Pretreatment requirements or otherwise harmed the POTW; or (2) the
amount of stored materials, the absence of sufficient secondary
containment, and the proximity of drains to the sewer create a
significant risk of a harmful slug. EPA agrees with the commenter in
general that criteria suggesting when a slug control plan should be
developed would assist POTWs in making this decision. On the other
hand, EPA decided that it should not develop rigid criteria in its
regulation establishing when slug control plans should be required.
EPA emphasizes that a POTW is in the best position to make such
determinations and, since such requirements will help ensure continued
compliance with its NPDES Permit, it is in the interest of the POTW to
do so. However, in lieu of providing a list of strict criteria, EPA
suggests that POTWs and SIUs consult the Agency's guidance document,
Control of Slug Loadings to POTWs (1991) (http://www.epa.gov/npdes/pubs/owm021.pdf), for recommendations on significant factors and types
of industries to consider in determining which facilities pose a
greater risk of Slug Discharge, and, therefore, should be required to
develop a slug control plan. For instance, the guidance document
highlights the following as the most significant factors to consider:
Quantity and types of materials used or stored at an IU and their
potential for causing violation of local limits or the general or
specific prohibitions; potential for such materials to enter the sewer
system and cause damage (i.e., whether control measures are in place);
and adequacy of existing controls to prevent any potential slug loading
(see p. 2-19). EPA points out, though, that the guidance also clarifies
that these evaluations should be conducted on a plant-by-plant basis
and that the list of factors and target industries provides
generalizations from which to start. (see p. 2-7).
In response to the commenter's recommended criteria, EPA agrees
that facilities which have had Slug Discharges, thus violating the
Pretreatment Requirements or otherwise harming the POTW, will need a
slug control plan. The slug control plan requirements were adopted to
provide POTWs with a mechanism to prevent slug-related impacts. EPA is
concerned that this criterion may suggest to POTWs that it is
sufficient to wait for circumstances to arise (e.g., an instance of
Interference at the treatment plant) before addressing the need for a
slug control plan at a potentially higher risk facility. EPA does not
agree that the only situations where an SIU should be required to
develop a slug control plan are those where a violation of the POTW's
Pretreatment program requirements has occurred. Part of what the POTW
must evaluate at each SIU is whether there is the ``reasonable
potential'' for Interference or Pass Through from a Slug Discharge,
thereby necessitating a slug control plan or other preventative action.
EPA suggests that waiting for a violation to occur before requiring a
slug control plan conflicts with the proactive intent behind 40 CFR
403.8(f)(2)(vi) and may result in unnecessary Interference or Pass
Through occurrences.
EPA does agree that the commenter's second suggested criterion,
that the amount of stored materials, the absence of sufficient
secondary containment, and the proximity of drains to the sewer create
a significant risk of a harmful slug, would be appropriate POTW
considerations for requiring the development of a slug control plan.
These considerations are contemplated in the above referenced guidance.
How does the rule affect the current practice of evaluating SIUs
annually for the adequacy of slug controls? A few commenters were
opposed to the proposal because they considered it to be unnecessary.
These commenters emphasized the limited burden imposed by the current
biannual review requirement and the current practice of conducting
annual SIU inspections which focus on, among other things, the adequacy
of controls or existing plans for addressing the potential for Slug
Discharges. Another commenter objected to the proposal because of
concern that POTWs would no longer dedicate the necessary attention to
evaluating SIU facilities for the potential for Slug Discharges.
The evaluation of slug control procedures and measures is already
occurring at POTWs on an annual basis, typically during the inspection
of the SIU. This practice is consistent with EPA's guidance document,
Industrial User Inspection and Sampling Manual for POTWs (1994) (http://www.epa.gov/npdes/pubs/owm0025.pdf). EPA's modification of the
frequency of the POTW's evaluation of the necessity of slug control
plans should not affect the POTW's practice of conducting annual
inspections of relevant slug control procedures and measures. The final
rule changes do not absolve POTWs from the requirement to prevent
disruptions caused by Slug Discharges. In many instances, operating
conditions at an SIU will not have changed significantly since the
issuance of its individual control mechanism and the facility will be
in compliance with all of its Permit conditions. Under these
circumstances,
[[Page 60153]]
the requirement to review and evaluate the need for a slug control plan
or other preventative actions could be an unproductive use of resources
by the POTW. In addition, today's revision to 40 CFR 403.8(f)(2)(vi)
requires that each POTW evaluate the need for a slug control plan or
other action at least one time at every SIU. Following this evaluation,
the POTW may determine its own schedule for conducting further
evaluations for the need for a plan.
In practical terms, EPA expects POTWs to take the following actions
with regard to Slug Discharges: Evaluate all of their SIUs at least
once for the need for a slug control plan, conduct follow-up
evaluations for facilities not required to develop a slug control plans
or take other actions as necessary, and inspect each SIU annually to
determine the adequacy of and compliance with existing procedures and
control measures. While today's revision may reduce the administrative
resources currently devoted to biannual reviews for the need for a slug
control plan, the POTW's overall level of oversight over Slug
Discharges will not be reduced.
EPA also points out that Approval Authority audits and Pretreatment
Compliance Inspections (PCIs) of POTW Pretreatment Programs will offer
a valuable opportunity to evaluate how today's revisions are being
implemented. During these audits or PCIs, the POTW will need to
demonstrate that each SIU has been evaluated at least once (or that
there is a plan to conduct such an evaluation within the coming year).
EPA suggests that where a slug control plan or other action was not
deemed necessary, a plan to re-evaluate the SIU for the need for a plan
or other action as necessary exists. The POTW may choose a specified
frequency level to re-evaluate the SIU, or it may choose to re-evaluate
the facility following a notification of changed Discharge pursuant to
40 CFR 403.12(j) or 40 CFR 403.8(f)(2)(vi). EPA notes that SIUs will
now be required to notify the POTW of any changes at their facility
that affect the need for a slug control plan or other actions to
address Slug Discharges, although POTWs still have the responsibility
during the facility inspections to ensure that these notifications have
been made. In addition, during the audit or PCI, the Approval Authority
should determine whether the POTW is conducting an assessment of the
SIU's on-site procedures and measures to control for potential slug-
related Discharges.
Does the slug control plan, if required, need to be included in the
SIU's control mechanism? One commenter was opposed to what it
interpreted as EPA's requirement in 40 CFR 403.8(f)(1)(iii)(B)(6) to
include the entire slug control plan document in the SIU's control
mechanism. The commenter further emphasized that the slug control plan
should be retained as a separate document, and suggested that the plan
be incorporated by reference into the control mechanism requiring
compliance with the approved plan.
EPA disagrees with the commenter as far as reading 40 CFR
403.8(f)(1)(iii)(B)(6) to require the inclusion of the entire slug
control plan in the SIU's control mechanism. Section
403.8(f)(1)(iii)(B)(6) provides that the control mechanism must include
``requirements to control Slug Discharges.'' EPA expects that POTWs
will include language in the control mechanism that requires control of
Slug Discharges, rather than the terms of a particular SIU's plan.
Including the entire slug control plan may prove to be administratively
burdensome since changes made to the plan during the term of the
control mechanism would potentially require that the control mechanism
be modified, or be reopened and reissued.
E. Equivalent Concentration Limits for Flow-Based Standards (40 CFR
403.6(c)(6))
Today's amendment to the Pretreatment Regulations authorizes the
use of concentration-based limits in lieu of flow-based mass limits for
the facilities in the Organic Chemicals, Plastics, and Synthetic Fibers
(OCPSF) (40 CFR part 414), Petroleum Refining (40 CFR part 419), and
Pesticide Chemicals (40 CFR part 455) categories. The Control Authority
may use the concentration limits listed in the categorical Pretreatment
Standards for these three categories as an alternative to the current
requirement to convert those concentration limits to flow-based mass
limits. Control Authorities establishing concentration-based
Pretreatment Standards instead of mass-based limits must document that
dilution is not being used as a substitute for treatment (see
Sec. Sec. 403.6(d), 414.111(a), 419, and 455). Additionally, the
Control Authority is required to adjust Permit limits using the
combined wastestream formula in Sec. 403.6(e) when the wastestream
used for demonstrating compliance with the Permit limits is mixed with
non-process wastewater or wastewater from other processes.
1. What are the current rules?
What is a flow-based mass limit?
National categorical Pretreatment Standards establish limits on
pollutants discharged to POTWs by specific industrial sectors. The
Standards establish limitations on the amount of pollutants to be
discharged by individual dischargers in different ways for different
categories. The regulations establishing Pretreatment Standards for new
and existing indirect dischargers in the Organic Chemicals, Plastics,
and Synthetic Fibers Category (OCPSF), for new indirect dischargers in
the Petroleum Refining category, and for new and existing indirect
dischargers in the Pesticide Chemicals category currently require
limits of certain pollutants to be expressed in terms of mass, based on
the promulgated concentrated-based Standards and the average daily flow
rate of the Industrial User's regulated process wastewater (see
Sec. Sec. 414.111(a), 419.17(b), 419.27(b), 419.37(b), 419.47(b), and
419.57(b), 455.26, 455.27). For an OCPSF indirect discharger, a
pesticide chemicals indirect discharger, or a new petroleum refining
indirect discharger, the Control Authority develops a mass limit by
multiplying the applicable pollutant concentration that EPA promulgated
in the effluent guidelines (expressed in terms of mass of pollutant per
volume of Discharge) by the average daily flow rate of the Industrial
User's regulated process wastewater (expressed in terms of volume per
day). The result is a Permit limit on the mass of pollutants per day
(see 58 FR 36890, July 9, 1993).
The average daily flow rate should be based upon a reasonable
measure of the Industrial User's average daily flow for at least a 30-
day period (see 40 CFR 403.6(e)(1)). Additionally, EPA ``strongly urges
the Control Authority to develop an appropriate process wastewater flow
for use in computing the mass effluent or internal plant limitations
based on water conservation practices,'' (see 58 FR 36890, July 9,
1993). Finally, a Permit may be modified during its term, either at the
request of the permittee (or another interested party) or on the
Control Authority's initiative, to increase or decrease the flow basis
in response to a significant change in production (40 CFR 124.5,
122.62). A change in production could be an ``alteration'' of the
permitted activity or ``new information'' that would provide the basis
for a Permit modification (40 CFR 122.62(a)(1),(2)) (see 58 FR 36891,
July 9, 1993).
Why was the mass limit approach developed?
Effluent guidelines may be specified in a number of ways including
production normalized (mass-pollutant/production unit) and
concentration-
[[Page 60154]]
based limitations (mass-pollutant/volume of wastewater). These two
types of effluent guidelines limits can be converted to a mass-based
Standard by using a reasonable measure of the Industrial User's actual
long-term daily production (for production normalized limitations) or
the Industrial User's actual long-term average daily flow rate (for
concentration-based limitations). EPA prefers setting production
normalized limitations, where feasible, since production normalized
limitations can require flow reduction and reduces any potential for
the substitution of dilution for treatment. Specifically, production
normalized limitations are calculated from production normalized flows
(volume of wastewater/ production unit) and incorporate wastewater flow
reductions representing Best Available Technology Economically
Achievable (BAT) (technology basis for Pretreatment Standards for
Existing Sources, or PSES) or New Source Performance Standards
(technology basis for Pretreatment Standards for New Sources, or PSNS).
EPA has established concentration-based Standards when production
and achievable wastewater flow cannot be correlated nationally. EPA has
explained how to calculate a mass limit in the Organic Chemicals,
Plastics, and Synthetic Fibers (OCPSF) regulation. A mass limit is
developed from the concentration-based Standard by multiplying the
promulgated Pretreatment Standard (expressed as a concentration) by the
Industrial User's actual long-term average daily flow rate. This
approach re-enforces the requirements of the combined wastestream
formula (see 40 CFR 403.6(e)) to minimize the potential for dilution of
process wastewaters by non-process wastewater. The combined wastestream
formula of Section 403.6(e) applies to indirect dischargers where
process wastewater is mixed prior to treatment with wastewater other
than that generated by the regulated process.
What are the problems with mass limits based on flow?
Flow-based mass limits can, however, be difficult for the Control
Authority to implement. To develop a flow-based mass limit, the Control
Authority must determine the average daily flow rate of the Industrial
User's regulated process wastewater and then multiply that value by the
appropriate promulgated concentration Standard. This may be difficult
in situations where the facility has highly variable production that
leads to flows that often vary week-to-week or day-to-day. This is
especially true for smaller facilities where: (1) The average daily
flow rate of the Industrial User's regulated process wastewater may be
infrequent or low and difficult to monitor; and (2) production tends to
be more variable as the installation of equipment to provide flow
equalization may not be practical.
In addition, testing for compliance with the flow-based mass limit
requires having accurate information on the flow from all regulated
processes at the time the sample is taken. Testing for compliance with
a concentration limit only requires taking the wastewater sample and
comparing the sampled concentration to the limit. In particular, since
promulgation of the OCPSF Pretreatment Standards, there have been
difficulties in getting Control Authorities and OCPSF facilities to
correctly calculate flow-based mass limits, and to provide necessary
data to determine compliance with the Standards. Deficiencies in
Permits and control mechanisms have in the past hindered enforcement
actions against these facilities. Enforcing mass-based Standards also
becomes more complicated because there is an additional factor in the
formula to calculate mass-based limits. In order to measure compliance,
both flow and concentration of the pollutant need to be accurate and
verified in order to produce legally enforceable mass-based results.
May alternative limits be developed for flow-based categorical
Standards?
Currently, 40 CFR 403.6(c) allows Control Authorities to apply an
equivalent concentration limit in addition to a current mass limit to
implement a Pretreatment Standard. However, the regulations do not
allow equivalent concentration limits in lieu of mass limits when the
Pretreatment Standard requires a mass limit to be calculated from the
promulgated concentration-based Standards and the average daily flow
rate of the Industrial User's regulated process wastewater.
2. What changes did EPA propose?
EPA proposed to allow Control Authorities to use promulgated
concentration-based limits instead of flow-based mass limits in
establishing limits for Industrial Users in the OCPSF, Petroleum
Refining, and Pesticide Chemicals categories. EPA proposed that the
Control Authority would be allowed to apply such equivalent
concentration limits only if the flow from the facility is so variable
that the development of mass limits is impractical. EPA stipulated that
40 CFR 403.6(d) would continue to prohibit facilities from increasing
flow in order to meet their concentration limits through dilution.
3. What changes is EPA finalizing in today's final rule?
The final rule allows Control Authorities to use concentration-
based limits instead of flow-based mass limits for new and existing
indirect dischargers in the OCPSF category, new indirect dischargers in
the Petroleum Refining category, and new and existing indirect
dischargers in the Pesticide Chemicals category. EPA is not limiting
the Control Authority's authority to develop concentration limits to
circumstances in which the Control Authority determines that the
facility's flow is ``so variable as to make mass limits
impracticable.'' EPA notes that Section 40 CFR 403.6(d) will continue
to prohibit facilities from increasing flow in order to meet their
concentration limits through dilution. As with other concentration
limits, the Control Authority should be certain that dilution is not
occurring and that the Discharge represents regulated process
wastewater flows. The concentration may need to be adjusted using the
combined wastestream formula in 40 CFR 403.6(e) if the wastestream is
mixed with non-process wastewater or wastewater from other processes.
New 40 CFR 403.6(c)(6), applicable only to facilities in the OCPSF,
Petroleum Refining, and Pesticide Chemicals categories, requires
Control Authorities to document that dilution is not being substituted
for treatment. To verify that equivalent concentration limits are not
subsequently being met through use of dilution flows, Control
Authorities should note that 40 CFR 403.12(e)(1) requires Categorical
Industrial Users to provide information regarding maximum and average
daily flows in their periodic reports, and enables them to require more
detailed flow data as necessary. Using this authority, EPA recommends
that Control Authorities consider specifying appropriate flow
monitoring requirements and including evaluation of flow data in the
review of periodic reports for Industrial Users subject to equivalent
concentration Standards. This will enable Control Authorities to
determine if there have been changes in flows that may indicate
dilution, such as increases in process, non-process or overall flows,
especially those not accompanied by production increases.
When are the equivalent concentration limits effective?
EPA notes that flow-based mass Standards, like all National
categorical Pretreatment Standards, are self-
[[Page 60155]]
implementing for new and existing indirect dischargers in the OCPSF
category and for new indirect dischargers in the Petroleum Refining
category. Facilities to which these Standards are applicable must
comply with the flow-based mass Standards unless a Permit or other
control mechanism is issued by the Control Authority which establishes
equivalent concentration limits under 40 CFR 403.6(c)(6). Where the
Control Authority has not issued a control mechanism that establishes
categorical concentration-based limits, the Industrial User must comply
with the default flow-based mass limits as established in the
applicable categorical Pretreatment Standard.
EPA notes that, for the Pesticides Chemicals category, in certain
circumstances, an Industrial User may already be subject to
concentration based limits rather than the otherwise required mass
limits. Where the Control Authority has not established flow-based mass
limits as required, Sections 40 CFR 455.26 and 455.27 provide that
Industrial User must comply with the default concentration-based limits
as established in the categorical Pretreatment Standard.
EPA emphasizes that for facilities in the OCPSF, Petroleum
Refining, and Pesticide Chemicals categories, where the Control
Authority has properly authorized the use of an equivalent
concentration limit and has incorporated that limit into the Industrial
User's control mechanism, the concentration limit replaces the mass
limit. The final rule requires that an Industrial User must comply with
the equivalent limit in lieu of the promulgated categorical
Pretreatment Standard once the limit is incorporated into its control
mechanism. The Control Authority may also determine that an Industrial
User should be subject to both the flow-based mass limit as well as the
concentration-based limit. When incorporated into the issued control
mechanism, the Industrial User would have to comply with both limits.
As with other equivalent concentration limits, as currently provided in
40 CFR 403.6(c), the equivalent limits being authorized under today's
final rule are Pretreatment Standards for the purposes of Sec. 307(d)
of the Clean Water Act and are federally enforceable.
4. Summary of Major Comments and EPA Response
A majority of the commenters supported the proposed rule as
written, and most of the remaining commenters stated qualified support.
Only one commenter opposed the proposal. The following section
summarizes the most significant comments received and EPA's response.
Is Approval Authority review required of an Industrial User's
proposed concentration limit prior to Control Authority approval? A
total of 22 commenters disagreed that it would be appropriate to
require Approval Authority review of an Industrial User's proposed
concentration limit prior to Control Authority approval. The primary
reasoning stated was that such a requirement is not necessary and would
create additional burden.
EPA notes that this provision is intended to allow the permit limit
to be expressed in alternate units. It is not anticipated that this
revision will change the Control Authority's enabling legislation to
issue and enforce a control mechanism. As such, EPA does not consider
this provision to be a modification of a POTW Pretreatment Program
under 40 CFR 403.18, and, therefore, finds that a POTW's use of this
provision is not subject to the specified approval procedures in this
section. The new equivalent limit is subject to review as part of
routine Approval Authority oversight activities, such as a Pretreatment
Compliance Inspection or a Control Authority audit. In accordance with
current regulations, Industrial User control mechanisms and information
necessary for determining permit limitations and compliance must be
publicly available.
Is this provision limited to highly variable flows? Numerous
commenters addressed the question of whether this provision should only
be applied to highly variable flows as well as how to define the term
``highly variable flow.'' A total of 12 commenters stated that the rule
should not be limited to only highly variable flows. Many mentioned the
existence of factors in addition to highly variable flows that make
implementation of flow-based mass limits impractical, such as the cost
of obtaining accurate samples or the difficulty of sampling at
facilities with very low flows. Ten commenters suggested that the
Control Authority have the ability to define ``highly variable flows''
on a case-by-case basis since the basis for such a determination is
highly site-specific and can vary from seasonal variations in flow to
hourly variations in flow. Ten commenters thought that a 20 percent
deviation from average flow is an adequate measure for ``highly
variable flow,'' while five commenters requested that EPA not specify a
definition for ``highly variable flow'' in the regulations.
EPA acknowledges that the there are numerous factors, many of which
are site-specific, involved in determining that a facility has ``highly
variable flow(s)'', and agrees that it would be difficult to establish
a clear-cut definition of ``highly variable flow'' that would apply to
all facilities. To be consistent with the goals of providing
flexibility in this rule, and to support the Control Authority's
discretion on this site specific issue, EPA has decided to allow
Control Authorities to determine when the acceptable circumstances
exist to allow the use of concentration limits.
Is this provision consistent with the Clean Water Act? The
commenter that opposed this provision stated that EPA lacks the
authority to create a variance or an alternative implementation
mechanism and therefore will violate sections 307 and 402 of the Clean
Water Act. The commenter also questioned the need for this proposed
change, suggested that it will interfere with ongoing enforcement of
the categorical Standards and the statutory deadlines for achieving
them, and suggested that the record does not demonstrate that this
proposed change will protect POTWs and the environment.
EPA is promulgating the changes to its Pretreatment Regulations in
part under section 307(b) of the Clean Water Act. Section 307(b)
clearly authorizes EPA from time to time to revise Pretreatment
Standards as ``control technology, processes, operating methods or
other alternatives change.'' Therefore, today's action is not in
violation of section 307(b) to the extent this provision amends the
Pretreatment Standards for the OCPSF, the Petroleum Refining, and the
Pesticide Chemicals Categories. As EPA has explained, the amendments to
the regulations will facilitate both User's compliance and POTW
oversight. EPA notes that compliance evaluation and enforcement will be
more straightforward and less burdensome with new equivalent
concentration limits.
Moreover, the current regulations prohibit introduction of
pollutants that will adversely affect POTW operations and receiving
waters quality. Currently, 40 CFR 403.5 requires approved pretreatment
programs and POTWs receiving pollutants from Industrial Users with
potential to pass through or interfere with the POTWs' operations to
develop and implement local limits to protect the POTW operations and
prevent Pass Through and Interference. Consequently, the use of
concentration limits in lieu of mass limits would not be authorized if
it resulted in a violation of local limits approved under 40 CFR 403.5.
Furthermore, this provision may be implemented only following
[[Page 60156]]
determination of its feasibility by Control Authorities, and not
unilaterally by Industrial Users. Control Authorities' local limits
will continue to ensure protection of the POTW operations and its
receiving environment.
F. Use of Grab and Composite Samples (40 CFR 403.12(b), (d), (e), (g),
and (h))
This section discusses: (1) The application of minimum required
grab samples for pH, cyanide, total phenols, oil and grease, sulfide,
and volatile organics to the periodic compliance reports; (2) when a
time-proportional sample may be used instead of a flow-proportional
sample; (3) when multiple grab samples may be composited prior to
analysis; (4) whether four grab samples are required whenever grab
sampling is appropriate; and (5) the sampling of facilities that
discharge less than 24-hours per day. Other issues raised by commenters
are also discussed.
1. What are the existing rules?
What are ``grab samples''?
A grab sample is ``* * * a sample which is taken from a wastestream
without regard to the flow of the wastestream and over a period of time
not to exceed 15 minutes'' (Industrial User Inspection and Sampling
Manual for POTWs, EPA 831/B-94-001, April 1994, http://www.epa.gov/npdes/pubs/owm0025.pdf). Grab samples of volatile organic compounds
(VOCs) must be collected almost instantaneously (i.e., less than 30
seconds of elapsed time) and properly preserved (Comparison of Volatile
Organic Analysis Compositing Procedures, EPA 821/R-95-035, September
1995). An analysis of an individual grab sample provides a measurement
of pollutant concentrations in the wastewater at a particular point in
time. Grab samples are usually collected manually, but can be obtained
with a mechanical sampler.
Grab samples are required in order to accurately analyze those
pollutant parameters that may be affected by biological, chemical, or
physical interactions and/or exhibit marked physical and compositional
changes within a short time after collection. Grab samples should be
used when: (1) Wastewater characteristics are relatively constant; (2)
parameters to be analyzed are likely to be affected by the compositing
process, such as the procedures used for oil and grease; (3) composite
sampling is infeasible or the compositing process is liable to
introduce artifacts of sampling; and (4) the parameters to be analyzed
are likely to change with storage. In particular, accurate
determination of pH, temperature, total phenols, oil and grease,
sulfide, volatile organic compounds, and cyanide requires properly
collecting and carefully preserving grab samples.
What are composite samples?
A composite sample is formed by mixing discrete samples or
``aliquots.'' For a ``flow-proportional'' composite sample, each
individual aliquot is collected after the passage of a defined volume
of Discharge (e.g., every 2,000 gallons). For a ``time-proportional''
composite sample, the aliquots are collected after the passage of a
defined period of time (e.g., once every two hours), regardless of the
volume or variability of the rate of flow during that period. Flow-
proportional compositing is usually preferred when effluent flow volume
varies appreciably over time. The number of discrete samples necessary
for a composite sample to be representative of the Discharge depends
upon the variability of the pollutant concentration and the flow.
Automatically collected composite samples are usually preferred to
collecting grab samples and then manually compositing the grabs into a
single sample. Possible handling errors made during the compositing
process could yield a sample that is not truly representative of the
Discharge. However, composite samples can be prepared from manually
collected grab samples if each grab contains a fixed volume that is
retrieved at intervals that correspond to the periods of wastewater
Discharge or time of the facility's operation.
When may the requirement for flow-proportional composite samples be
waived?
The regulations in effect prior to today's rule allowed Control
Authorities to waive the requirement for flow-proportional compositing
of samples for baseline monitoring reports and 90-day compliance
reports in limited circumstances. These regulations allowed the Control
Authority to accept sample data that are obtained from time-
proportional composite sampling or a minimum of four grab samples if
flow-proportional sampling is infeasible (e.g., the facility cannot
accurately measure flow) and the Industrial User demonstrated that
these alternative sampling techniques will provide a representative
sample of the effluent (40 CFR 403.12(b)(5)(iii)). The section on
periodic compliance reports was silent on the subject of grab and flow-
proportional sampling.
2. What changes did EPA propose?
EPA proposed to clarify the sampling requirements in 40 CFR 403.12
in the following ways:
Do the sampling requirements apply to periodic reports on continued
compliance? EPA proposed to extend the requirements of 40 CFR
403.12(b)(5)(iii), which were explicitly applicable to the baseline
monitoring reports and 90-day reports required by 40 CFR 403.12(b) and
(d), to the periodic reports required in 40 CFR 403.12(e) and (h).
These changes would be accomplished by consolidating the new
requirements for all of the reports in 40 CFR 403.12(g). Redundant
sections would be removed.
Is a minimum frequency required for grab samples? EPA proposed that
for periodic monitoring reports, a minimum of four grab samples would
not need to be taken in all instances to measure pH, cyanide, total
phenols, oil and grease, sulfides, and volatile organic compounds.
Instead, Control Authorities would have the flexibility to determine
the appropriate number of grab samples required for periodic compliance
reports. For new facilities, the Industrial User would still be
required to take a minimum of four grab samples to measure pH, cyanide,
total phenols, oil and grease, sulfide, and volatile organic compounds
to meet baseline monitoring and 90-day compliance report requirements.
For existing facilities, where historical sampling data are available,
the Control Authority may authorize a lower minimum.
When and what type of grab samples can be manually composited? EPA
proposed to explicitly state that compositing of certain types of grab
samples prior to their analysis would be permitted.
When can time-proportional or grab samples be used in lieu of flow-
proportional composite samples? EPA proposed that Control Authorities
may authorize time-proportional or grab sampling in lieu of flow-
proportional sampling as long as the samples are representative of the
Discharge.
What are the sampling requirements for those facilities that do not
discharge continuously? EPA proposed language intended to clarify that,
although a ``24-hour composite sample'' must be taken within a 24-hour
period, the sample should only be collected during that portion of the
24-hour period that the Industrial User is discharging from the
regulated process and/or from the treatment unit.
[[Page 60157]]
3. What changes are being finalized by EPA in today's rule?
EPA is finalizing language intended to clarify the sampling
requirements in 40 CFR 403.12. Specific changes to the regulations, as
well as pertinent details related to their implementation, are
discussed below.
Do the sampling requirements apply to periodic compliance reports?
Today's rule finalizes the extension of sampling requirements, which
previously were only explicitly applicable to the baseline monitoring
reports and 90-day reports required by 40 CFR 403.12(b) and (d), to the
periodic reports required in 40 CFR 403.12(e) and (h). These changes
are accomplished by consolidating the new requirements for all of the
reports in 40 CFR 403.12(g). Redundant sections are removed.
Is a minimum frequency required for grab samples? The final
regulatory changes eliminate the requirement that a minimum of four
grab samples be taken in all instances to measure pH, cyanide, total
phenols, oil and grease, sulfides, and volatile organic compounds.
Control Authorities will have the flexibility to determine the
appropriate minimum number of grab samples Industrial Users are
required to take. The Control Authorities will be responsible for
documenting the site-specific circumstances in the Industrial User's
file. New facilities and facilities that make changes or install new
treatment are still required to take a minimum of four grab samples to
measure pH, cyanide, total phenols, oil and grease, sulfide and
volatile organic compounds to meet baseline monitoring and 90-day
compliance report requirements. For facilities where historical
sampling data are available, the Control Authority may authorize a
lower minimum number of grab samples.
There are some cases where a single grab sample can be reasonably
expected to be representative of a Discharge. Appendix V to the EPA
guidance (Industrial User Inspection and Sampling Manual for POTWs, EPA
831/B-94-001, April 1994, http://www.epa.gov/npdes/pubs/owm0025.pdf)
lists cases where a single grab sample may appropriately be substituted
for a single composite sample, including small batch Discharges. For
example, a homogeneous batch Discharge is consistent with existing
guidance on the appropriate use of a single grab sample.
When and what type of grab samples can be manually composited?
Today's final rule clarifies that multiple grab samples for cyanide,
total phenols, sulfide, oil and grease, and volatile organic compounds
collected during a 24-hour period may be composited prior to analysis.
Control Authorities also will be allowed to authorize manually
composited grab samples for other parameters that are unaffected by
compositing procedures. Using protocols (including appropriate
preservation) specified in 40 CFR Part 136 and appropriate EPA
guidance, EPA clarifies in the rule that multiple grab samples
collected during a 24-hour period may be composited prior to the
analysis as follows: for cyanide, total phenols, and sulfides, the
samples may be composited in the laboratory or in the field; for
volatile organics and oil and grease, the samples may be composited in
the laboratory.
It is important that a composite sample provides an accurate
representation of the pollutant in the wastewater. The composite sample
should provide analytical results that are comparable to averaged
results of the individual grab samples taken over a specific time
interval. In all cases where a series of grab samples is manually
composited, those parameters that have preservation requirements in 40
CFR Part 136 must be properly preserved and/or stored at the time of
collection as required by the specific analytical method employed prior
to compositing. In addition, EPA wishes to reaffirm that some
pollutants are not amenable to the compositing process. For example,
total residual chlorine, pH, and temperature samples cannot be
``composited'' under any circumstances because the results would be
changed by the compositing process. Today's final rule does not allow
Control Authorities to authorize composite samples for these
parameters.
Although analytical procedures for compositing oil and grease
samples have been developed, the general consensus among laboratory
experts is that current techniques do not provide consistently reliable
results. However, continuing advances in analytical technology may
provide methodologies that will make accurate compositing of oil and
grease samples technically less cumbersome and more cost effective in
the future. Under today's rule, the Control Authority has the
flexibility to allow Industrial Users to submit data from composited
oil and grease samples as long as the samples were composited in the
laboratory and the sampling and analytical procedures used are
sanctioned by EPA in 40 CFR Part 136.
EPA guidance (Industrial User Inspection and Sampling Manual for
POTWs, EPA 831/B-94-001, April 1994, http://www.epa.gov/npdes/pubs/owm0025.pdf) describes procedures for manually compositing individual
grab samples that will provide accurate results. The reader should also
consult the regulations in 40 CFR Part 136 to identify the accepted
analytical protocols for specific classes of compounds or individual
parameters. A separate guidance manual (Comparison of Volatile Organic
Analysis Compositing Procedures, EPA 821/R-95-035, 1995, http://www.epa.gov/clariton/clhtml/pubtitleOW.html) discusses procedures for
accurate compositing of volatile organic compounds.
When can time-proportional or grab samples be used in lieu of flow-
proportional composite samples?
Today's final rule will allow Control Authorities to waive the
requirement that Industrial Users collect flow-proportional samples.
The regulation no longer requires Control Authorities to require the
Industrial User to demonstrate that flow-proportional samples are
``infeasible.''
The Industrial User must demonstrate that the time-proportional or
grab samples are representative of the Discharge before the Control
Authority may allow the Industrial User to submit such samples. Where
time-proportional composite sampling or grab sampling is authorized by
the Control Authority, the samples must be representative of the
Discharge and the decision to allow the alternative sampling must be
documented in the individual Industrial User records for that facility.
The use of statistical approaches to determine representativeness may
be appropriate in certain circumstances. See for example, the March 2,
1989, Office of Water Regulations and Standards (OWRS) Memorandum to
Region 9 describing the results of a statistical analysis of sampling
data from a single industrial facility. Refer to http://www.epa.gov/region09/water/pretreatment/program_impl.html. In addition to
demonstrating that the samples are representative, the Control
Authority must ensure that compliance samples are taken with sufficient
care to produce evidence admissible in enforcement proceedings or in
judicial actions as required by the section modified today at 40 CFR
403.8(f)(2)(vii).
What are the sampling requirements for those facilities that do not
discharge continuously?
As will be discussed below in the response to comments section, the
final rule does not include the sentence in the proposed rule that
read, ``For those
[[Page 60158]]
Industrial User Discharges subject to categorical Pretreatment
Standards that do not operate on a 24-hour per day schedule, the
samples must be collected at equally spaced intervals during the period
that process wastewater is being discharged.'' EPA interprets a ``day''
to be a 24-hour period which does not have to occur within a calendar
day. This interpretation is consistent with the definition of ``daily
discharge'' in the NPDES regulations at 40 CFR 122.2. Daily discharge
means the ``discharge of a pollutant'' measured during a calendar day
or any 24-hour period that reasonably represents the calendar day for
purposes of sampling. During parts of the day when there is no
discharge of process wastewater, standing water should not be
disproportionately sampled and analyzed as it would not be
representative of the Discharge from the facility. As always, the
Control Authority must prescribe a sampling protocol that produces
representative results. The selected protocol should take into
consideration all of the operation conditions and the physical
configuration of the Industrial User facility.
What significant changes were made to the proposed rule?
EPA did not make significant changes to the proposed rule. The
changes made from the proposal to the final rule include minor wording
changes, a clarification to compositing methods, the reinstatement of a
sentence that was removed in the proposal, and the removal of a
sentence from the proposal.
The changes (other than minor wording changes intended to provide
clarification) are as follows:
The following sentence, which had been deleted in the proposal, is
returned to the regulations: ``The Control Authority shall require that
frequency of monitoring necessary to assess and assure compliance by
Industrial Users with applicable Pretreatment Standards and
Requirements.'' (EPA notes that non-significant CIUs (NSCIUs) may
satisfy this requirement through certification.) This sentence had been
taken out in the proposed rule. However, because the sentence adds
clarity, EPA has decided to retain it. The rationale is discussed in
the response to comments section below.
The following sentences at 40 CFR 403.12(g)(3) were removed from
the regulations: ``For those Industrial User Discharges subject to
categorical Pretreatment Standards that do not operate on a 24-hour per
day schedule, the samples must be collected at equally spaced intervals
during the period that process wastewater is being discharged. Multiple
grab samples for cyanide and volatile organic compounds that are
collected during a 24-hour period may be composited in the laboratory
prior to analysis using protocols specified in 40 CFR Part 136 and
appropriate EPA guidance.'' The rationale is discussed in the response
to comments section below.
For parameters that require grab sampling, EPA explicitly states
which parameters may be composited in the field and the laboratory and
which parameters may only be composited in the laboratory. This
addition further clarifies the issue of compositing for samples that
require collection by grab methods in order to preserve sample
integrity.
4. Summary of Major Comments and EPA Response
Commenters were generally supportive of the sampling changes that
EPA proposed. Some of the comments requested further clarification of
issues. The following section summarizes EPA's response to these
comments.
Will the final rule on compositing increase workload for sampling
personnel? A commenter stated that manually compositing cyanide and
volatile organics samples should be avoided for sample integrity and
workload increase.
Regardless of whether multiple grab samples are individually
analyzed or composited, samples must be properly preserved. Therefore,
any workload change will likely occur at the laboratory, and increased
workload for compositing the sample would be offset by decreased
workload for analysis. EPA further clarifies in the final rule which
parameters currently may be composited in the laboratory and which ones
may be composited in the field. Under the current EPA-approved methods,
oil and grease, and volatile organics may only be composited in the
laboratory. Whether samples are composited in the lab or the field,
sample integrity must be preserved, including preserving each grab
sample in accordance with 40 CFR Part 136.
May Industrial Users determine the appropriate sampling flexibility
without Control Authority approval? Industrial Users commented that EPA
should give more flexibility to Industrial Users to determine what
sampling schemes are appropriate for their facility. EPA disagrees.
Control Authorities are responsible for ensuring that compliance
samples are taken with sufficient care to produce evidence admissible
in enforcement proceedings or in judicial actions as required by 40 CFR
403.8(f)(2)(vii) and for ensuring compliance by IUs with Pretreatment
Standards and Requirements. To the extent that sampling is
representative of the Discharge, the Control Authorities will be able
to determine the appropriate sampling flexibility. The Control
Authorities retain the responsibility for documenting site-specific
circumstances and allowing alternate sampling by including the
alternate sampling in the Industrial User control mechanisms.
May Control Authorities determine the appropriate number of grab
samples for baseline monitoring and 90-day compliance reports? EPA
requested comment on whether Control Authorities should be allowed the
flexibility to determine the appropriate number of grab samples
required to meet baseline monitoring and 90-day compliance report
requirements for facilities without historical sampling data.
Commenters supported the proposal to eliminate the requirement that a
minimum of four grab samples be taken to measure pH, cyanide, total
phenols, oil and grease, sulfides, and volatile organic compounds.
Commenters stated that Control Authorities should be given flexibility
to determine the appropriate number of grab samples required to meet
reporting requirements, but did not provide concrete reasons as to how
this would ensure that the sampling was representative of the
Discharge.
EPA stresses that the flexibility should only be provided to the
extent that the sampling is representative. The Control Authority will
be responsible for documenting site-specific circumstances and allowing
alternate sampling in the Industrial User control mechanisms. Baseline
Monitoring Reports (BMRs) will likely provide the first samples for a
parameter, and 90-day compliance reports will provide samples after any
treatment has been added. Therefore, it is likely that at a minimum
this data will be needed in order to document that alternative sampling
is representative. Because it is unlikely that a Control Authority
could properly document that sampling is representative without data
from BMRs and 90-day compliance reports, EPA retains the requirement
for a minimum of four grab samples for BMRs and 90-day compliance
reports in order to document potential future sampling decisions for
new facilities. For existing facilities where there is historic data
representative of the current Discharge, Control Authorities may
authorize a lower minimum number of grab samples for pH, cyanide, total
phenols, oil and grease, sulfides, and volatile organic compounds. Of
course, where there has
[[Page 60159]]
been a change to existing facilities, for example, the addition of
treatment, historic data that does not represent the current Discharge
would not be able to be used to justify a lower minimum of grab
samples.
As stated previously, Control Authorities must ensure that
compliance samples are taken with sufficient care to produce evidence
admissible in enforcement proceedings or in judicial actions as
required by 40 CFR 403.8(f)(2)(vii). To further strengthen this point,
the following sentence, which the proposed rule would have deleted, is
retained in 40 CFR 403.12(g)(3): ``The Control Authority shall require
that frequency of monitoring necessary to assess and assure compliance
by Industrial Users with applicable Pretreatment Standards and
Requirements.'' Sampling and analysis techniques must yield analytical
data that is representative of the Discharge. The Control Authority
will still need to document how alternate sampling techniques are
representative of the Discharge, and may require that more than four
grab samples be taken and separately analyzed to ensure that sampling
is representative. Where the Control Authority cannot verify that
previous techniques were representative, such data will not support the
use of this alternative practice. EPA notes that ``non-significant
CIUs'' (discussed in Section III.K of the final rule) may be authorized
to substitute annual certification for sampling and analysis. See 40
CFR 403.12(q).
Will EPA define ``representative'' sampling in the rule? Commenters
noted that the rules repetitively use the concept of ``representative''
samples, but do not precisely define what the samples are supposed to
represent. In the proposed rule preamble (64 FR 39582, July 22, 1999),
EPA indicated that it would not offer a comprehensive definition of
what constitutes a ``representative sample'' or specific guidance. EPA
is not defining ``representative sample'' in the final rule. Guidance
on the subject may be found in Industrial User Inspection and Sampling
Manual for POTWs (EPA, 1994, http://www.epa.gov/npdes/pubs/owm0025.pdf).
Sampling methods to yield a representative sample may vary
depending on the site-specific situations of an individual discharger
and the parameter that must be analyzed. Issues for the Control
Authority to consider and document in prescribing sampling protocols
include: (1) The appropriate sampling period (e.g., 24 hours or during
the period of discharge); (2) use of flow proportional versus time-
proportional methods; (3) use of grab samples versus composite samples;
(4) use of grab samples for pH monitoring; (5) use of grab samples for
degradable and volatile parameters; (6) allowing manual compositing of
samples when the methodology is approved by EPA; and (7) applying the
criteria to instantaneous, daily maximum, and monthly average limits.
Is EPA providing further clarifying language for collection of
samples during process wastewater Discharges in the final rule? A
commenter asked EPA to clarify whether a sample taken during a 24-hour
period must be taken during a calendar day, or whether a sample may be
taken over the course of two days. For example, if a facility
discharges 24 hours per day, must the sample be taken from midnight to
midnight, or may it be taken for other twenty-four hour periods (e.g.,
noon to noon)?
EPA interprets a ``day'' to be a 24-hour period and does not
require that it occur within a calendar day. This is consistent with
the definition for ``daily discharge'' in the NPDES regulations at 40
CFR 122.2. Daily discharge means the ``discharge of a pollutant''
measured during a calendar day or any 24-hour period that reasonably
represents the calendar day for purposes of sampling. For pollutants
with limitations expressed in units of mass, the ``daily discharge'' is
calculated as the total mass of the pollutant discharged over the day.
For pollutants with limitations expressed in other units of
measurement, the ``daily discharge'' is calculated as the average
measurement of the pollutant over the day. This is existing policy and
was not proposed to be modified in the rule, and therefore has not been
added to the final rule. EPA recognizes that Control Authorities may
define a more specific sampling period.
Another commenter asked for EPA to clarify whether a sample may be
taken over the course of two calendar days in other circumstances. For
example, if a facility discharges from 7 a.m. to 7 p.m., must a sample
be taken from 7 a.m. to 7 p.m., or may a sample be taken from noon on
one day to noon on the next day so long as only regulated wastewater is
sampled? In the example provided, the sampling for compliance would
need to be representative of the categorical process Discharge, and
would need to account for other factors such as ensuring that stagnant
water is not sampled if the facility is not discharging, and that
process wastewater is not being discharged during the 7 p.m. to 7 a.m.
period (for instance in an overtime situation). Where a sampler is
placed from noon to noon, and wastewater samples (with volume
proportionate to Discharge) are only collected during the discharge
period (e.g., there is not a process wastewater Discharge, and no
samples are collected from 7 p.m. to 7 a.m.), and the samples are
properly preserved, then it is likely that the sample would be
appropriate for use to determine compliance during a 24-hour period.
Since this example addresses a site-specific situation, EPA is not
inclined to revise the rule to address one particular set of
circumstances. While other industries may have similar situations, the
Control Authorities will need to consider all of the site-specific
circumstances in detailing the sampling requirements for the facility
in the individual Industrial User's control mechanism.
A commenter expressed concern with the proposed language pertaining
to required sampling periods. The section originally clearly pertained
only to sampling required for reporting under subsections 40 CFR
403.12(b), (d) and (e), of all categorical streams. As revised in the
proposal, the requirements also apply to reports required under
subsection (h) as well as to all other non-categorical waste streams.
The commenter stated that the discussion in the preamble to the
proposed rule seemed to indicate these very specific requirements only
apply to categorically regulated wastestreams. However, the commenter
indicated that this intent was not adequately stated in the regulation
itself.
The commenter went on to state, ``Local limits are developed based
on total daily average influent loadings and total daily flows from all
sources tributary to the receiving treatment plant. Many IUs,
particularly larger ones, will have wastewater flows, from sources such
as cooling systems, boilers, etc. that continue throughout the 24-hour
day, as well as flows from maintenance and clean-up activities that
often occur during non-process periods. In some cases, continuing
composite sampling during these `off-process' periods may, in fact,
reduce the daily average concentration of a pollutant. In other cases,
pollutant Discharges during maintenance or clean-up activities, may
contribute higher levels of pollutants than during normal processing
periods. In either case, to determine compliance with local limits, it
seems sampling should be conducted throughout the period of discharge,
regardless of whether or not `process' operations are occurring the
entire time.''
[[Page 60160]]
In response, EPA removed the sentence from the proposed rule that
read, ``For those Industrial User Discharges subject to categorical
Pretreatment Standards that do not operate on a 24-hour per day
schedule, the samples must be collected at equally spaced intervals
during the period that process wastewater is being discharged.'' It
would be too complicated to try to address all local limits variations
in this section of the regulation, and as indicated by the commenter,
the proposed language did not clarify the issue.
G. Significant Noncompliance Criteria (40 CFR 403.8(f)(2)(viii))
1. What were the rules in effect prior to today's rule?
How is ``Significant Noncompliance'' (SNC) currently defined?
The previous 40 CFR 403.8(f)(2)(vii) defined ``Significant
noncompliance'' (SNC), as it applies to Industrial Users to include
violations that meet one or more of eight criteria. The criteria are:
(1) Chronic violations of Discharge limits (where 66 percent or more of
all measurements taken for the same pollutant parameter during a six-
month period exceed the daily maximum limit or the average limit); (2)
Technical Review Criteria (TRC) violations (where 33 percent or more of
all measurements taken for the same pollutant parameter during a six-
month period equal or exceed the product of the daily maximum limit or
the average limit multiplied by the applicable TRC (TRC equals 1.4 for
BOD, TSS, fats, oil and grease and 1.2 for all other pollutants except
pH)); (3) any other violation of a Pretreatment effluent limit that the
Control Authority determines has caused, alone or in combination with
other Discharges, Interference or Pass Through; (4) any discharge of a
pollutant that has caused imminent endangerment to human health,
welfare or to the environment or has resulted in the POTW's exercise of
its emergency authority to halt or prevent such a discharge; (5)
failure to meet, within 90 days after the schedule date, a compliance
schedule milestone contained in a local control mechanism or
enforcement order for certain activities; (6) failure to provide
required reports within 30 days after the due date; (7) failure to
accurately report noncompliance; and (8) any other violation or group
of violations which the Control Authority determines will adversely
affect the operation or implementation of the local Pretreatment
Program.
What are the background and purpose of the SNC criteria?
On July 24, 1990, EPA modified 40 CFR 403.8(f)(2)(vii) to include
the existing definition of SNC (55 FR 30082). The purpose of this
modification was to provide some certainty and consistency among POTWs
for publishing their lists of Industrial Users in significant
noncompliance. EPA modeled the modification after the criteria under
the NPDES program used to determine SNC violations for direct
dischargers. By making the modifications, EPA also established more
parity in tracking violations by direct and indirect dischargers.
What happens when an Industrial User facility is in SNC?
POTWs are required to publish annually a list of Industrial Users
in SNC at any time during the previous twelve months. In the previous
rules, the POTW was required to publish this list in the largest daily
newspaper published in the municipality in which the POTW is located.
The Agency has emphasized that Industrial Users are liable for any
violation of applicable Pretreatment Standards and Requirements, and
has strongly encouraged Control Authorities to take some type of
enforcement response for each such instance of noncompliance.
Supporting this approach, EPA notes that the very underlying premise of
the Enforcement Response Plan (40 CFR 403.8(f)(5)) is that there be
some type of POTW response for each instance of noncompliance.
Appropriate types of enforcement responses are addressed in the POTW's
Enforcement Response Plan, although EPA guidance recommends that
violations rising to the level of SNC be met with some type of formal
enforcement action like an enforceable order (Guidance For Developing
Control Authority Enforcement Response Plans, EPA 832-B-89-102,
September 1989, (see http://www.epa.gov/npdes/pubs/owm0015.pdf.)
2. What changes did EPA propose?
EPA proposed the following modifications to the SNC provision in
1999:
a. Publication
EPA proposed to amend the previous 40 CFR 403.8(f)(2)(vii) to allow
publication of the SNC list in any paper of general circulation within
the jurisdiction served by the POTW that provides meaningful public
notice rather than in the largest daily newspaper published in the
municipality as is currently required.
b. Applicability
EPA proposed to amend the SNC criteria to apply only to Significant
Industrial Users (SIUs). Under the existing regulations, SNC can apply
to any Industrial User.
c. Daily Maximum or Average Limit Violations
EPA proposed to amend the previous 40 CFR 403.8(f)(2)(vii)(A), (B),
and (C) to include a broader set of violations than just daily maximum
and average limits.
d. Other Issues
EPA also took comment on several other issues, but did not propose
specific changes. These issues include Technical Review Criteria (TRC),
late reports, and rolling quarters.
3. What changes is EPA finalizing in today's rule?
EPA is finalizing four changes to amend 40 CFR 403.8(f)(2)(vii).
a. Publication
EPA is amending 40 CFR 403.8(f)(2)(vii) (now 40 CFR
403.8(f)(2)(viii)) to allow publication of the SNC list in any paper of
general circulation that provides meaningful public notice within the
jurisdiction served by the POTW. EPA's intent in modifying this
requirement is to be consistent with the July 17, 1997 amendments to
Part 403 regarding modifying POTW Pretreatment Programs (62 FR 38406).
Under the amended 40 CFR 403.11(b)(1)(i)(B), publication can be in any
paper of general circulation within the jurisdiction served by the POTW
that provides public notice. It is EPA's view that this new performance
standard for publishing SNC violations properly balances the need to
give the POTW the flexibility to choose an appropriate newspaper within
its community, with the need to ensure effective public notice and
deterrence of ``bad actors.''
b. Applicability
EPA is amending the SNC criteria so that SNC will apply only to
SIUs and to those Industrial Users that have caused Pass Through or
Interference, have a Discharge that resulted in the POTW's exercise of
its emergency authority to halt or prevent such a Discharge, have
caused imminent endangerment to human health, welfare, or the
environment, or have otherwise adversely affected the POTW's ability to
operate its Pretreatment program. This approach is consistent with the
NPDES
[[Page 60161]]
SNC policy which only applies to major dischargers. See ``Revision of
NPDES Significant Noncompliance (SNC) Criteria to Address Violations of
Non-Monthly Average Limits,'' memorandum from Steven A. Herman,
Assistant Administrator for the Office of Enforcement and Compliance
Assurance, September 21, 1995. Additionally, EPA emphasizes that the
SNC criteria apply not only to SIUs, but also to IUs that cause
significant adverse impacts to the POTW, human health or the
environment. These modifications should cut down on administrative
burdens and allow better resource targeting. These modifications ensure
the POTW's ability to address all potentially problematic Users
adequately. The Agency wants to make it clear that this change is
focused only on the POTW's publication and reporting requirements. EPA
fully expects POTWs to take appropriate enforcement actions against any
Industrial User that violates a Pretreatment Standard or requirement.
POTWs still have the option of publishing non-significant Industrial
Users with violations that do not fall within one of the above-
mentioned categories.
c. Daily Maximum or Average Limitations
EPA is amending 40 CFR 403.8(f)(2)(vii)(A) and (B) (now 40 CFR
403.8(f)(2)(viii)(A) and (B)) to apply to a broader range of violations
such as other numeric limits, instantaneous limits, narrative limits,
or operational standards, and amending 40 CFR 403.8(f)(2)(vii)(C) (now
40 CFR 403.8(f)(2)(viii)(C)) to address other Pretreatment Standards
and requirements. This change is important since some local limits may
be expressed as instantaneous limits or narrative limits. The revised
language addresses other types of requirements like operational
standards. The amendment is generally consistent with EPA's revision to
its NPDES SNC policy where EPA broadened the criteria to address non-
monthly average limitations. See ``Revision of NPDES Significant
Noncompliance (SNC) Criteria to Address Violations of Non-Monthly
Average Limits,'' memorandum from Steven A. Herman, Assistant
Administrator for the Office of Enforcement and Compliance Assurance,
September 21, 1995.
d. Late Reports
EPA is amending 40 CFR 403.8(f)(2)(vii)(F) (now 40 CFR
403.8(f)(2)(viii)(F)) so that SNC applies to reports that are provided
more than 45 days after the due date, instead of to reports that are 30
days late. The change applies to required reports such as baseline
monitoring reports, 90-day compliance reports, periodic self-monitoring
reports, and reports on compliance with compliance schedules. EPA is
making this change because many Control Authorities and Industrial
Users that commented on the late report issue argued that the 30-day
timeframe was too restrictive. EPA notes that Industrial Users that
submit reports even one day late are in violation.
4. What significant changes were made to the proposed rule?
a. Applicability
EPA modified the proposal by adding to the scope of SNC those non-
significant IUs that cause Pass Through or Interference, have a
Discharge that resulted in the POTW's exercise of its emergency
authority to halt or prevent such a Discharge, cause imminent
endangerment to human health, welfare, or the environment, or otherwise
adversely affect the POTW's ability to operate its Pretreatment
program.
b. Daily Maximum or Average Limit Violations
In the proposal, EPA proposed to modify the provisions of the then
current 40 CFR 403.8(f)(2)(vii)(A), (B) and (C) (now 40 CFR
403.8(f)(2)(viii)(A), (B) and (C)) to address not only violations of
daily maximum or longer-term average limits, but also a broader range
of violations such as other numeric limits, instantaneous limits,
narrative limits, or operational Standards. EPA has modified the
proposal in the following ways:
Chronic violations (40 CFR 403.8(f)(2)(viii)(A): EPA has clarified
the revised language to more accurately describe the target violations.
The term ``numeric'' was added to clarify that only Standards or
Requirements that can be numerically quantified can be examined for
possible chronic violations. Also, EPA specifies that chronic
violations include violations of both ``Standards and Requirements';
the term ``Requirements'' was not included in the proposal. The
inclusion of this term provides the intended broader scope that EPA
sought in the proposal. EPA also clarifies that violations of
instantaneous limits are also to be considered for chronic violations.
During the process of revising the chronic and TRC violations
provision, EPA found the difference between the use of the phrase ``for
the same pollutant parameter'' for chronic violations, and the phrase
``for each pollutant parameter'' for TRC violations, may have led to
some unintended misinterpretation. It is EPA's intention that the
chronic and TRC criteria be applied to the ``same pollutant
parameter.'' To avoid potential confusion, EPA modified both the
chronic and TRC provisions to use the same phrase (i.e., for the same
pollutant parameter), and to place the phrase in the most appropriate
place in the provision to improve its clarity.
TRC (40 CFR 403.8(f)(2)(viii)(B): EPA adopted the same changes for
TRC violations that were made for chronic violations.
Any other violations: EPA has modified the proposed rule by
including clarifying language on what is meant by a ``Pretreatment
Standard or Requirement.'' EPA provides parenthetical examples,
including daily maximum, long-term average, instantaneous, or narrative
Standards.
c. Late Reports
EPA did not propose any changes to the then current 40 CFR
403.8(f)(2)(vii)(F) (now 40 CFR 403.8(f)(2)(viii)(F)), which contains
the SNC criterion for late reports. Instead, EPA sought comments on
several options for the late report criterion. The options included
tying SNC to a pattern of late reporting; applying the SNC criterion to
a late report only if the report indicated that a violation of
monitoring requirements or numeric limitations had occurred; allowing
POTWs to extend ``waivers'' in some circumstances to Industrial Users
that offered a satisfactory reason why reports were late; limiting the
types of reports to which the SNC criterion applies; retaining the 30-
day late report criterion, but changing the publication requirement as
it pertains to late reports; extending the time after which a late
report puts an Industrial User in SNC (e.g., to 45 days or 60 days); or
providing the POTW with complete authority for determining when late
reports trigger SNC. EPA is amending the criterion so that Industrial
Users are in SNC if reports are not provided within 45 days after their
due date.
5. Summary of Major Comments and EPA Response
a. Publication
Most commenters were in favor of making the change that EPA is
adopting in today's rule. EPA is amending the regulation to allow
publication of the SNC list in any paper of general circulation that
provides meaningful public notice within the jurisdiction served by the
POTW. One reason given
[[Page 60162]]
for supporting this change included possible lower costs to the
municipality. Other commenters pointed out that the previous use of the
largest daily newspaper requirement did not make sense in certain
situations. Such examples included that the largest daily newspaper may
not always have provided the most effective notice, and the fact that
some municipalities may only have a weekly publication and no daily
publication.
EPA also sought comment on an appropriate definition for
``meaningful public notice'' to ensure some level of consistency across
the Pretreatment programs. Some commenters provided suggestions for
defining ``meaningful public notice'' such as linking it to the service
area population, the circulation rate of the newspaper, or the official
daily newspaper as determined by the Control Authority. Other
commenters stated that the definition of ``meaningful public notice''
should be determined by the Control Authority because defining it by
service population or circulation rate could be overly burdensome and
not necessarily meet the intent of the Standard. EPA agrees with the
commenters who suggested that defining ``meaningful public notice''
could be overly burdensome. Therefore, at this time, EPA has decided
not to define ``meaningful public notice.''
b. Applicability
The majority of commenters supported either modifying the
application of SNC to SIUs only, or to SIUs and those Industrial Users
which caused Pass Through or Interference, had a Discharge that
resulted in the POTW's exercise of its emergency authority to halt or
prevent such a Discharge, caused imminent endangerment to human health,
welfare, or the environment, or otherwise adversely affected the POTW's
ability to operate its Pretreatment program. Some commenters did not
want to limit SNC to apply only to SIUs because not all Industrial
Users which should be are properly identified as SIUs. The commenters
also noted that all Industrial Users are required to comply with
Pretreatment Standards and Requirements, regardless of whether they are
designated as SIUs. (Several commenters also indicated that changing
the SNC definition to apply only to SIUs would be unfair, because, with
such a change, this definition would no longer apply to other
Industrial Users that could cause the same types of impacts as SIUs.)
EPA agrees that certain non-Significant Industrial Users should
continue to be covered under the SNC provisions. By including the
application of SNC to SIUs and those Industrial Users which cause the
specific problems referenced above, the rule should address the
commenters' concerns.
The distinction EPA is making today is not focused on the size of
the facility; rather, EPA focuses on those dischargers with the largest
potential to impact the system. EPA continues to strongly encourage
POTWs to use their existing authority under what will now be codified
as 40 CFR 403.3(v) to designate any Industrial Users as significant if
they have the reasonable potential to adversely affect the POTW's
operation or to violate any Pretreatment Standard or Requirement. This
includes considering smaller facilities that have the potential (either
individually or collectively) to impact the system. Furthermore, all
Industrial Users are required to comply with Pretreatment Standards and
Requirements, regardless of whether they are designated as SIUs, and
EPA expects appropriate enforcement to be taken for each violation by
any Industrial User.
c. Daily Maximum or Average Limit Violations
Commenters were divided on this proposed rule language. One
commenter mentioned that the revision would be much more consistent
nationally if it were to apply only to numeric categorical Pretreatment
Standards. Another commenter indicated that the Control Authorities
often are required to make ``subjective judgments regarding compliance
with narrative Standards, instantaneous limits and some general
prohibitions,'' and that such a subjective judgment would be an
inappropriate basis for an SNC determination. Another commenter
indicated that all applicable Pretreatment Standards are enforced now,
and that there would be no discernible benefit to expanding the types
of violations that could trigger a SNC determination. Some commenters
cited the possible increased burden on the Control Authorities if such
additional Standards were used to make SNC determinations.
On the other hand, several commenters were supportive of the
proposed rule change. Some commenters indicated that the revision would
better reflect the fact that Industrial Users must be in compliance
with all applicable Pretreatment Standards and requirements in order to
meet the goals of the national Pretreatment program. Other commenters
focused on the fact that Interference or pass-through could be caused
by violations of Standards other than categorical Pretreatment
Standards, and therefore they saw a need to expand the SNC criteria.
EPA agrees with those commenters who supported an expansion of the
range of SNC criteria consistent with the proposed rule, and has added
other numeric limits, instantaneous limits, narrative Standards, or
operational Standards as part of the SNC criteria. This approach will
give more equal weight to categorical Standards, local limits, and
other Standards as applicable Pretreatment Standards and Requirements.
This expansion of SNC criteria would also potentially enhance the
Control Authority's ability to address such violations (i.e., other
numeric limits, instantaneous limits, narrative Standards, or
operational Standards) by placing a higher priority on these
violations. EPA has concluded that such a change would still provide
national consistency and be more protective by better ensuring
compliance with all applicable Pretreatment Standards and Requirements.
Control Authorities are currently expected to address violations of all
applicable Pretreatment Standards and Requirements, so that this
proposal should not necessarily impose any increased enforcement
responsibilities on the Control Authorities. In addition, as the
preamble to the proposed rule states (64 FR 39593), this approach would
be consistent with ``EPA's recent revision to its NPDES SNC policy
where EPA broadened the criteria to address non-monthly average limit
violations.'' See ``Revision of NPDES Significant Noncompliance (SNC)
Criteria to Address Violations of Non-Monthly Average Limits,''
memorandum from Steven A. Herman, Assistant Administrator for the
Office of Enforcement and Compliance Assurance, September 21, 1995.
Under the NPDES SNC policy, when a parameter has both a monthly
average and a non-monthly average limit, a facility is only considered
in SNC for the non-monthly average if the monthly average is also
violated to some degree (but less than SNC). EPA sought comment on
whether such a caveat is also appropriate for the Pretreatment
Regulations. Very few commenters focused on this particular topic. A
few commenters indicated that a determination that a particular
violation or set of violations constituted SNC should only occur if
there was a meaningful violation of the POTW's NPDES Permit limit for
that particular parameter. In the absence of significant comment and in
recognition that effluent violations other than monthly average
violations could have significant impacts on the POTWs, EPA
[[Page 60163]]
has decided not to modify the regulations to restrict SNC for
violations of non-monthly averages.
d. Technical Review Criteria (TRC)
In the existing regulations, the Technical Review Criteria (TRC)
may be found at 40 CFR 403.8(f)(2)(vii)(B) (now found at 40 CFR
403.8(f)(2)(viii)(B)). As described in the preamble to the proposed
rule (64 FR 39593), these TRC ``* * * are numeric thresholds used to
define a subcategory of SNC * * * based on the magnitude of an effluent
violation. A TRC violation occurs where 33 percent or more of all of
the measurements for each pollutant parameter taken during a six-month
period equal or exceed the product of the daily maximum limit or the
average limit multiplied by the applicable TRC.'' TRC is equal to 1.4
times the applicable Standard for BOD, TSS, fats, oils and grease; TRC
is also equal to 1.2 times the applicable Standard for all other
pollutants except pH.
As further stated in the preamble to the proposed rule (64 FR
39593), EPA was not proposing to amend the TRC. However, EPA did seek
comment on this topic, particularly regarding local limits. EPA stated
that it was ``* * * interested in suggestions for workable alternatives
* * * that would ensure that the magnitude of a violation * * *''
continues to be part of the definition of SNC, with the condition that
such alternatives ``* * * would not unduly increase the workload on
either the Control Authority or the Approval Authority.'' Based on its
review of the comments, EPA is not considering any further changes to
TRC.
Several commenters expressed a clear preference that TRC not be
modified. Several commenters also provided alternative numeric
thresholds for TRC. However, there was no consensus among the comments
for an alternate threshold and a sufficient justification for the use
of such alternative thresholds was not provided. As explained in the
preamble to the proposed rule (64 FR 39593), the existing regulations
are ``consistent with the NPDES approach which has generally been
accepted over the years as an indicator of a `significant' level of
exceedance which should be reviewed for enforcement purposes.''
Furthermore, as that same preamble stated, ``(T)he same considerations
apply to the TRC as it is applied to categorical Standards in the
Pretreatment program and may be relevant for local limits.'' In a
sense, by keeping the TRC the same for both direct dischargers to
surface waters and indirect dischargers to POTWs, the criteria help
maintain a ``level playing field'' by ensuring that this subcategory of
SNC is linked to some nationally-consistent designated magnitude above
the applicable Standard, whether that Standard is an NPDES Permit
effluent limit, a categorical Pretreatment Standard, or a local limit.
Several commenters, using similar language, stated that ``it is
incumbent on EPA to develop TRC that are germane to the objectives of
the Pretreatment program, developed in a manner that lends credence to
application of effluent guidelines and local limits, and are
technically sound and defensible.'' Just as best achievable technology
Standards (BAT) and stream use are factors considered in the
development of effluent limits, BAT and protection of the POTW's
operations are factors considered in the establishment of categorical
Pretreatment Standards and local limits respectively. Therefore, if
these Pretreatment limits are properly derived for their intended
purpose, the TRC are simply intended to represent numeric thresholds at
magnitudes above these applicable Standards such that, above this
level, such significant non-compliance should make the authority
sufficiently concerned and warrant appropriate action. As such, EPA
concludes that there is not sufficient reason to try to account only
for instances of potential Pass Through or Interference, or to make
allowances for the range of treatment plant performance, or to have
different TRC for individual pollutant parameters for different POTWs.
Such revisions would be contrary to EPA's intent to keep the
regulations simple to understand and implement, and to not unduly
increase the workload on the Control Authority or Approval Authority.
Some of the commenters advocated the elimination of the TRC
entirely. EPA disagrees with these commenters. As indicated above, EPA
asserts that a measure of the magnitude of the violation is an
appropriate consideration in determining SNC. The preamble to the
proposed rule (64 FR 39593) stated that EPA was not proposing to amend
the TRC, and EPA believes that radical revisions to the TRC are not
warranted.
One commenter indicated that TRC should only apply if the levels
are at least five times the applicable Standard. EPA concludes that
this level is far too high a threshold to serve as a proper deterrent
to dischargers and as an adequate indicator of potential compliance
problems. EPA emphasizes that POTWs should be concerned about reported
results, the adequacy of industrial treatment, and potential impacts on
the plant operations or receiving waters at levels which are much less
than five times the applicable Standard.
Some commenters sought to adjust the TRC by having them only apply
to daily maximum limitations. Other commenters suggested that for the
violations to rise to the level of SNC EPA modify the percentages for
TRC and chronic criteria from 33 to 34% and from 66 to 67% of all
measurements taken, respectively. EPA disagrees with these commenters,
because it is not clear how these changes will improve the application
of TRC or provide equal if not added environmental protection when
compared to the existing TRC criteria.
As stated above and in the preamble to the proposed rule (64 FR
39593), EPA did seek comment on the TRC, particularly regarding local
limits. No commenters focused on whether TRC may be inappropriate for
local limits, based upon a distinction in the derivation, site-specific
variability and intent of local limits as compared to categorical
Pretreatment Standards. Therefore, EPA did not adopt changes to reflect
the use of TRC for local limits.
e. Late Reports
The existing regulations require that Industrial Users that
submitted reports more than 30 days late be considered in SNC. This is
consistent with the NPDES SNC approach for late reports. EPA did not
propose any specific changes to this part of the SNC definition, but
did solicit comment on possible options or combinations of options to
modify this portion of the definition. The options included tying SNC
to a pattern of late reporting; applying the SNC criterion to a late
report only if the report indicated that a violation of monitoring
requirements or numeric limitations had occurred; allowing POTWs to
extend ``waivers'' in some circumstances to Industrial Users that
offered a satisfactory reason why reports were late; limiting the types
of reports to which the SNC criterion applies; retaining the 30-day
late report criterion, but changing the publication requirement as it
pertains to late reports; extending the time after which a late report
puts an Industrial User in SNC (e.g., to 45 days or 60 days); or
providing POTWs with complete flexibility for determining when late
reports trigger SNC.
Comments on this issue were mixed. Many commenters noted that
reporting is important in and of itself and it serves a vital role in
ensuring adequate implementation and oversight of the Pretreatment
program. Commenters
[[Page 60164]]
noted that failure to submit or late submittal of reports impede POTWs
from meeting goals of their approved programs. Because of the
importance of reporting, a few commenters (POTWs) argued that EPA
should retain the existing SNC criterion for late reports.
However, a majority of commenters asked EPA to modify the SNC
criterion for late reports in some way. They noted that reports are
sometimes late because of circumstances that are beyond the control of
the Industrial Users. Commenters also stated that publication should be
reserved to Industrial Users that violate numeric Pretreatment
Standards or fail to monitor, rather than for violations that some
commenters characterized as ``administrative'' violations. One
commenter also noted that a 30-day criterion may be appropriate for
NPDES permittees, but not for the Pretreatment Program because NPDES
permittees generally submit reports more frequently than Industrial
Users regulated by the Pretreatment Program and because the
Pretreatment Program also relies on surveillance by the POTWs. Based on
these comments, EPA agrees that modifications to the SNC criterion for
late reports are appropriate.
Although most commenters favored modifications to the SNC criterion
for late reports, commenters disagreed on how the provision should be
modified. Some commenters stated that POTWs should be given complete
flexibility in determining whether late reports constitute SNC. Others
argued that POTWs should be provided some amount of flexibility, but
not total flexibility. It is EPA's position that the definition of SNC
should be consistent throughout the Pretreatment Program. Therefore,
the Agency has chosen to establish a consistent SNC criterion for late
reports that would avoid the use of different SNC criterion by various
POTWs for the same type of reporting violations.
Some commenters suggested that the SNC criterion for late reports
should recognize a pattern of late reporting, or should consider the
Industrial User's compliance history. For example, some commenters
suggested that a late reporter be considered in SNC if 33 percent or
more of required reports in a specified reporting period are provided
more than 30 days late. Another commenter suggested that three
monitoring reports submitted more than thirty days late could
constitute a history of chronic late reports, and another commenter
suggested that failure to submit a completed discharge monitoring
report in any two months of any consecutive six month period should
trigger SNC. EPA agrees that POTWs should take steps to address
Industrial Users that demonstrate a pattern of late reporting. In
addition, EPA strongly asserts that the SNC criterion for late reports
must address reports that are submitted extremely late or that are
never submitted, even if the extremely late submittal or failure to
submit is a one-time occurrence.
Some commenters argued that SNC for late reports should apply only
if the report, once submitted, indicates that the Industrial User has
violated a numeric Pretreatment Standard or failed to monitor. Others
supported a provision in which reports provided more than 30 days late,
but less than 45 days, should trigger SNC only if they indicated
another violation. EPA views this suggested change as potentially
minimizing the importance of reporting as a tool for POTWs to implement
local Pretreatment Programs. Also, EPA asserts that the SNC criterion
for late reports must address reports that are submitted extremely late
or that are never submitted, even if the extremely late submittal or
failure to submit is a one-time occurrence and even if the report does
not indicate monitoring or effluent violations.
A number of commenters supported extending the number of days until
which late reports trigger SNC from 30 days to 45 days. EPA agrees that
this change is appropriate and easy to implement. A few commenters
suggested the option of extending the period from 30 days to 60 days.
EPA has concluded that this change is not appropriate because most
cases of late laboratory reports or other miscommunications can be
addressed quickly. EPA also concludes that receiving data 60 days late
would be more likely to jeopardize POTWs' management of their
Pretreatment Programs and have the potential to adversely impact the
POTW and its receiving water.
A few commenters suggested that the SNC criterion for late reports
should only apply to periodic self-monitoring reports and 90-day self
compliance reports. EPA asserts that, in order to avoid confusion and
ease tracking of late reports, the same criterion should be applied to
all reports. One commenter asked that EPA amend the regulations so that
SNC for late reports applies to ``baseline monitoring reports, 90-day
compliance reports, periodic self-monitoring reports, or reports on
compliance with compliance schedules'' (rather than ``baseline
monitoring reports, 90-day compliance reports, periodic self-monitoring
reports, and reports on compliance with compliance schedules''). The
commenter was concerned that the provision could be interpreted to
imply that Industrial Users must submit both the 90-day compliance
reports and the periodic self-monitoring reports to avoid being in SNC.
The list of reports comprises a list of examples of ``compliance
reports.'' EPA does not agree that changes are needed to this language,
nor does the Agency find the commenter's arguments to be valid.
In considering revisions to the late reporting criterion for SNC,
EPA notes that implementation of the Pretreatment Program relies
heavily on a self-policing and self-reporting system. This self-
reporting is important to enforcement. If a failure to report becomes
routine, the entire program can be weakened. EPA expects POTWs to take
some level of enforcement action against any Industrial User that
provides late reports. EPA would also like to emphasize that there is
current flexibility in the existing rule to address some of the
concerns related to one late report putting an Industrial User in SNC.
For example, the Control Authority has some flexibility in setting the
due date and can set it to coincide with some other established
reporting or billing cycle. Also, in the enforcement response policy
the POTW can have an escalation policy, whereby, for example, the
Industrial User would receive a warning letter that the report is 5-10
days late past the due date and/or fines associated with the report
before it rises to the level of being in SNC.
f. Rolling Quarters
EPA memoranda circa 1991 and 1992 form the basis of EPA's policy
that SNC for IUs should be calculated on a rolling quarter basis.
(September 9, 1991 memorandum from Michael B. Cook, Director of EPA's
Office of Wastewater Enforcement and Compliance to Water Management
Division Directors, Regions I-X and approved Pretreatment State
coordinators, ``Application and Use of the Regulatory Definition of
Significant Noncompliance for Industrial Users,'' http://www.epa.gov/npdes/pubs/application_use_regulatory.pdf, and January 17, 1992
memorandum from Mark B. Charles, Chief of RCRA and Pretreatment
Enforcement Section, to the Regional Pretreatment Coordinators, Regions
I-X, ``Determining Industrial User Significant Noncompliance--One Page
Summary,'' http://www.epa.gov/npdes/pubs/industrial_user.pdf). The
term ``rolling quarters,'' under EPA's national policy, refers to an
approach which requires the Control Authority to evaluate an Industrial
User's compliance status at the end of each
[[Page 60165]]
quarter by using data from the previous six-month period. In the
regulations, determinations of significant noncompliance are based upon
six-month periods (40 CFR 403.8(f)(2)(viii)(A) and (B)).
Many commenters expressed concern regarding the concept of rolling
quarters and instead endorsed the adoption of static six-month periods
that do not overlap. Many commenters were concerned that the use of
rolling quarters could result in the need to publish the name of the
Industrial User in two separate years for SNC for the same violation.
Many commenters who supported the static six-month approach voiced
concerns that the use of rolling quarters unnecessarily complicated the
calculations of SNC and the annual publication of those IUs in SNC,
without apparent benefits over the use of static six-month periods.
They indicated that the concept was complex, difficult to implement and
would only result in confusion for the Industrial Users and increased
burden for the control authorities.
Some commenters preferred to begin to ``roll'' time periods after a
violation occurs, thus giving, as one commenter stated, the possibility
to ``* * * allow Industrial Users to achieve compliance and obtain
additional samples'' to verify compliance, all within the given time
period. The commenters explained that this could give Industrial Users
an opportunity to demonstrate compliance rather than being listed as
being in SNC for violations that were corrected months ago. EPA noted
in the preamble to the proposed rule (64 FR 39594, July 22, 1999) that
while the Agency provided some discussion of the various opinions
regarding the use of rolling quarters, EPA did not ultimately propose a
specific change regarding rolling quarters national policy, did not
seek comment on whether to discontinue EPA's national policy regarding
the use of rolling quarters, and did not propose an alternative
approach. It remains EPA's intention to continue the existing national
policy that SNC for Industrial Users be evaluated on a rolling quarter
basis. This approach, which is the same as the one used in the NPDES
program for the determination of SNC by direct dischargers, will remain
the same.
EPA did seek comment on whether the concept of rolling quarters
should be codified in the Pretreatment Regulations. Some commenters
expressed their opposition to such codification, based largely upon
their preference to use an alternative to rolling quarters. A few
commenters supported codification, indicating that by making the use of
the rolling quarters approach mandatory, EPA would help ensure national
consistency in its use by Control Authorities. One commenter
recommended codification of the due date for the annual publication of
Industrial Users in SNC. After considerable internal discussion and
careful deliberation, EPA has decided not to codify rolling quarters in
the Pretreatment Regulations.
In the preamble to the proposed rule (64 FR 39594, July 22, 1999),
EPA specifically sought comment on whether the regulations should be
revised to allow Control Authorities to waive the second publication
(as described above) ``where that second publication is based solely on
the violations occurring in the last quarter of the previous
Pretreatment year.'' Many commenters sought the elimination of this
double publication issue through a specific rule change to the
publication requirements, particularly if the final rule implements the
concept of rolling quarters. Those commenters indicated that such
duplicate publications in the newspaper would be unfair to the
Industrial User which had corrected its compliance problems and would
mislead the public regarding the status of such an Industrial User.
EPA's 1991 memorandum, cited previously, addressed the issue of
possible publication in two different years of an Industrial User that
is in SNC for the same violation. EPA was clear on the point that
double publication is not intended by the use of rolling quarters. It
stated that ``(I)f a facility has been determined to be in SNC based
solely on violations which occurred in the first quarter of the 15-
month evaluation period (i.e., the last quarter of the previous
Pretreatment year) and the facility has demonstrated consistent
compliance in the subsequent four quarters, then the POTW is not
required to republish the Industrial User (IU) in the newspaper if the
IU was published in the previous year for the same violations.'' It is
EPA's position that no revisions are needed on this point. However, EPA
wishes to clarify that a facility does not need to have full compliance
to avoid double publication. Rather, if a facility was already
determined to be in SNC during the previous pretreatment year, and the
facility would not be in SNC in the current year but for violations
occurring during the last three months of the previous year, then the
facility is not considered in SNC for the current year.
H. Removal Credits--Compensation for Overflows (40 CFR 403.7(h))
1. General Background
Section 307(b) of the CWA which requires EPA to establish
pretreatment standards also authorizes a discretionary program for
POTWs to grant ``removal credits'' to their industrial users. The
credit in the form of a less stringent categorical Pretreatment
Standard would allow an Industrial User to discharge a greater quantity
of a pollutant than would otherwise be authorized because the POTW's
treatment processes sufficiently reduce the concentrations of the
pollutant.
Section 307(b)(1) establishes a three-part test that a POTW must
meet in order to obtain removal credit authority for a given pollutant.
Removal credits may be authorized only if (1) the POTW ``removes all or
any part of such toxic pollutant,'' (2) the POTW's ultimate discharge
would ``not violate that effluent limitation or standard which would be
applicable to that toxic pollutant if it were discharged'' directly
rather than through a POTW, and (3) the POTW's discharge would ``not
prevent sludge use and disposal by such [POTW] in accordance with
section [405] * * *'' (Sec. 307(b)). EPA promulgated removal credit
regulations that are codified at 40 CFR 403.7 (See 43 FR 27736, 46 FR
9404, 49 FR 31212, and 52 FR 42434).
In this rulemaking, EPA proposed only one limited change to the
removal credits provision of the General Pretreatment Regulations. A
number of commenters, however, asked EPA to consider changes to the
regulations to allow greater availability of removal credits for a
broader range of pollutants. The Agency's current plans with respect to
sewage sludge regulations and removal credits are discussed in detail
in a Notice published today with this rule.
2. What are the existing rules governing how removal credit authority
is affected by the occurrence of overflows in the POTW sewer system?
Section 403.7 of the General Pretreatment Regulations describes the
conditions under which removal credits may be available to an
Industrial User. Among other things, the regulation provides that,
given certain conditions are met, a POTW may grant a removal credit to
an Industrial User equal to or less than its consistent removal rate
for that pollutant. The regulation defines ``consistent removal rate.''
In circumstances where a POTW ``annually Overflows'' untreated
wastewater to
[[Page 60166]]
receiving water, the POTW may claim consistent removal of the pollutant
only under the conditions specified either in 40 CFR 403.7(h)(1) or
(2). ``Overflow'' means the intentional or unintentional diversion of
flow from the POTW before the POTW treatment plant.
Under subsection (h)(1), a POTW may claim consistent removal only
if, for example, the POTW has established plans for notifying
Industrial Users in the event of a potential overflow and the
Industrial User has, among other things, taken certain actions to
provide containment of, or ceases or reduces, its discharges of the
pollutant for which the removal credit is sought. Alternatively, in
subsection (h)(2), the current rule provides that consistent removal
may be claimed under a mathematical formula that reduces consistent
removal to take account of the Overflows so long as the POTW has taken
steps required by an EPA guidance document on combined sewer overflows
(CSOs) published on December 16, 1975 (i.e., PRM 75-34). This latter
requirement was intended to ensure that POTWs granting removal credits
were taking appropriate steps to address CSOs as outlined in EPA's
then-current guidance. Since then, EPA has adopted the CSO Control
Policy with updated requirements for addressing CSOs. Section 402(q) of
the CWA provides that all NPDES permits must be consistent with the CSO
Control Policy.
3. What changes did EPA propose?
EPA proposed to make Industrial Users that are upstream of
Overflows ineligible for removal credits unless they could establish
that their discharges would be consistently treated. Consistent with
that approach, the proposal would have deleted the existing provision
in 40 CFR 403.7(h)(2) which allows removal credits for discharges that
are subject to Overflows, but reduces the credit by a percentage equal
to the percentage of time in a year that the POTW is subject to
Overflows. In addition, references in the regulation to the now
obsolete guidance on construction grants review procedures for
developing CSO control were to be removed by deleting Appendix A as
well as discussion of that guidance in 40 CFR 403.7(h)(2).
4. What changes is EPA finalizing in today's rule?
Today, EPA is limiting its action to updating the references to
obsolete guidance published in 1975, for the construction grants
program. Existing 40 CFR 403.7(h)(2)(ii) and (iii) and Appendix A are
deleted and replaced with a requirement for the POTW to be in
compliance with all NPDES permit requirements and other requirements in
any orders or decrees issued pursuant to the 1994 CSO Control Policy.
As noted above, CWA 40 CFR402(q) requires all NPDES permits to conform
to this policy. The existing formula in 40 CFR 403.7(h)(2)(i) for
adjusting removal credits based on the number of hours of Overflow
discharges occurring in a year is retained.
EPA decided not to adopt the proposed revision which would have
required that removal credits be limited to the percentage of the
pollutant that was removed during the Overflow event. EPA does not have
sufficient information to determine the impacts of such a change on
existing programs using removal credits and is concerned that the
adoption of this change may have disrupted these programs with little
environmental benefit.
Today's rule also makes one technical correction in response to
comments received. EPA corrects footnote 1 in Appendix G, Table I
(Regulated Pollutants in Part 503 Eligible for a Removal Credit) by
including a reference to the use of carbon monoxide. The Part 503
regulations now allow the use of either total hydrocarbon (THC) or
carbon monoxide concentrations to represent organic compounds in exit
gas from incinerators. EPA amended Part 503 subpart E (59 FR 9095,
February 25, 1994) to authorize the demonstration of compliance with
the 100 ppm THC operational standard by meeting a 100 ppm CO limit.
Therefore, EPA is modifying footnote 1 to reflect the fact that either
total hydrocarbon or carbon monoxide, as a surrogate monitoring
parameter, may be used.
I. Miscellaneous Changes (40 CFR 403.12(g), (j), (l), and (m))
Signatory Requirements for Industrial User Reports and POTW Reports (40
CFR 403.12(l) and (m))
Today's rule revises the signatory requirements for Industrial
Users at 40 CFR 403.12(l)(1)(ii) to adopt more flexible standards for
determining who must sign reports on behalf of a corporation. EPA's
NPDES regulations include similar requirements for NPDES Permits. See
40 CFR 122.22(a)(1)(ii). Today's amendments make similar changes to the
signatory requirements for ``duly authorized employees'' of POTWs. See
40 CFR 403.12(m) and 122.22(a).
1. What were the rules in place prior to today's rulemaking?
Sections 403.12(l)(1)(ii) previously limited the circumstances in
which a plant manager could sign a Pretreatment report as a responsible
corporate officer. Prior to today's rule, in order to sign a report on
behalf of a company, the manager was required to manage a facility with
more than 250 employees or $25 million in sales or expenditures.
Section 403.12(i) addresses annual reporting requirements for
POTWs. Prior to today's rule, 40 CFR 403.12(m) required these reports
to be signed by ``a principal executive officer, ranking elected
official or other duly authorized employee if such employee is
responsible for overall operation of the POTW.' ''
2. What changes did EPA propose?
EPA proposed to revise the signatory requirements for Industrial
Users at 40 CFR 403.12(l)(1)(ii) to adopt the same language that EPA
proposed in 1996 (61 FR 65268) and now uses for direct dischargers at
40 CFR 122.22(a)(1)(ii). On May 15, 2000, EPA finalized revisions to 40
CFR 122.22(a)(1)(ii) to replace the numeric criteria for designating an
appropriate signer with more flexible narrative criteria (64 FR 39595).
Rather than conditioning signature authority on resource management
size, the revised criteria describe the necessary signer in terms of
general management authority and responsibilities. The revised criteria
require the manager to have the authority to make capital investment
decisions and assure long term environmental compliance.
In addition, EPA also proposed to revise the signatory requirements
for POTW reports at 40 CFR 403.12(m) so the requirement would be more
consistent with signatory requirements in the current 40 CFR 122.22(a).
EPA proposed to allow signature by a duly authorized employee having
responsibility for the overall operation of the facility or activity
such as the position of POTW Director, Plant Manager, or Pretreatment
Program Manager. This authorization could be made in writing by the
principal executive officer or ranking elected official, and submitted
to the Approval Authority prior to the report being submitted.
3. What changes is EPA finalizing in today's rule?
In today's final rule, EPA adopts the proposed rule's changes. The
following modifications to the proposed rule were made:
Duly Authorized Employee: The proposed rule provided examples of
which POTW personnel could sign as a ``duly authorized employee.'' EPA
was concerned that the specific examples
[[Page 60167]]
given (e.g., POTW Director, Plant Manager, or Pretreatment Program
Manager) might have unintentionally limited the designation of ``duly
authorized employee'' at a POTW in the case of an employee that did not
have the same exact position title as any of the ones listed in the
proposal. To avoid any confusion and provide intended flexibility,
today's rule adopts the proposal's requirement that the duly authorized
employee be ``an individual or position having responsibility for the
overall operation of the facility'', yet simplifies the language by
deleting the examples of specific POTW positions from the proposal.
Authorization for Duly Authorized Employee: EPA clarifies in
today's rule that the POTW's authorization of a duly authorized
employee to sign POTW reports can be submitted to the Approval
Authority ``together with'' the next annual report. The proposal only
provided the option of submitting such authorization ``prior to'' the
annual POTW report.
4. Summary of Major Comments and EPA Response
The following is a summary of major comments received and EPA's
response:
Do individuals previously authorized to sign POTW reports need to
comply with the new ``duly authorized representative'' requirements?
Several commenters observed that individuals currently signing POTW
reports for their program, who may have been signing such reports for
numerous years, would now need to receive Approval Authority approval
prior to signing the next report after today's rule becomes effective.
The commenter suggested that EPA add a grandfather provision which
enables such individuals to continue signing POTW reports without
having to comply with the ``duly authorized representative''
requirements at 40 CFR 403.12(m).
EPA has not adopted the commenter's suggestion. In EPA's view, the
new language provides greater flexibility to POTWs than is currently
provided by the Pretreatment Regulations and clarifies any uncertainty
about which employees may be ``duly authorized'' to sign and submit
Pretreatment reports. If the commenter chooses to continue its practice
of delegating a duly authorized representative to sign relevant
reports, this authorization, consistent with 40 CFR 403.12(m) ``must be
made in writing and submitted to the Approval Authority prior to or
together with the report being submitted.''
EPA notes that the proposed rule made it seem as if the Approval
Authority's approval of duly authorized representatives needed to occur
prior to the submission of the next report. Because this is inefficient
for the POTW, EPA modified the proposed language in 40 CFR 403.12(m),
to indicate that the POTW can request such approval either ``prior to
or together with'' the POTW report being submitted. It is EPA's opinion
that this change addresses the commenters' concerns about the
inefficiency of waiting for approval from the Approval Authority before
submitting a report. EPA sees no reason why the POTW's request to use a
duly authorized employee signatory not be considered by the Approval
Authority at the same time that it receives the POTW's report.
For Industrial User reports, why is EPA no longer requiring the
signatory to be a high level person of authority ultimately responsible
for the overall management of the business? One commenter disagreed
with the change to 40 CFR 403.12(l) observing that the signatory should
continue to be a high level person of authority who is ultimately
responsible for the overall management of the business. EPA clarifies
that today's rule merely provides greater flexibility in the type of
``responsible corporate officer'' who may sign reports on behalf of an
Industrial User. The revised requirements do not significantly alter
the type of official designated as signatory. The Industrial User is
still given the same level of flexibility as existed prior to today's
rule to choose between a responsible corporate officer, a general
partner or proprietor, or a duly authorized representative.
Net/Gross Calculations (40 CFR 403.15)
Today's rule corrects an unintended error in the net/gross
procedures for adjusting categorical Pretreatment Standards to reflect
the presence of pollutants in the Industrial User's intake water. The
error appeared to make the test for using these procedures
unintentionally difficult to meet.
1. What were the rules in place prior to today's rulemaking?
Net/gross calculations allow pollutants in intake water to be
considered when developing technology-based limitations. EPA modified
40 CFR 403.15, the section of the Pretreatment Regulations addressing
net/gross calculations, in 1988 so that this provision would be
consistent with the NPDES provision for net/gross which had been
revised earlier. See discussion at 53 FR 40602-40605, October 17, 1988.
The NPDES provision (40 CFR 122.45(g)) is an ``or'' test which allows
net/gross adjustments either where effluent Standards are specified on
a net basis or where control systems meet Standards in the absence of
pollutants in the intake water. That is, meeting either condition
allows consideration of adjustment. However, the actual language EPA
used to modify 40 CFR 403.15 in 1988 erroneously used the term ``and''
instead of ``or'', thus inadvertently establishing a test in which both
conditions would have to be met. As there are no categorical Standards
which specify application on a net basis, this resulted in an
unintended prohibition on the use of the net/gross provision in the
Pretreatment Program.
2. What changes did EPA propose?
EPA proposed to revise the language in section 40 CFR 403.15 to be
consistent with the NPDES regulations and with the intent of the 1988
modification. According to the proposal, categorical Pretreatment
Standards could be adjusted on a ``net'' basis if either the applicable
Pretreatment Standards allow for this calculation or the Industrial
User demonstrates its control system meets those Pretreatment
Standards.
3. What changes is EPA finalizing in today's rule?
EPA has adopted the proposed rule change. No modifications were
made to the proposal in the final rule.
4. Summary of Major Comments and EPA Response
There were no significant comments on this proposed change.
Requirement To Report All Monitoring Data (40 CFR 403.12(g))
Today's rule updates a requirement for Categorical Industrial Users
(CIUs) to report all monitoring data to reflect the fact that this
provision should similarly apply to non-categorical SIUs, since both
types of Users are required to submit monitoring reports to the Control
Authority.
1. What were the rules in place prior to today's rule?
EPA changed 40 CFR 403.12(g) in 1988 (see 53 FR 40614, October 17,
1988) to require all monitoring by Industrial Users to be reported.
This was done to avoid the situation in which an Industrial User that
performs extra sampling might select the most favorable monitoring
result to report to the Control Authority. At the time of this change,
only CIUs were required by the regulations to report on a regular
basis, and therefore, this requirement was limited to CIUs. In 1990, 40
CFR
[[Page 60168]]
403.12(h) was added to the regulations (see 55 FR 30131, July 24,
1990), requiring all non-categorical Significant Industrial Users to
also sample and report. However, at the time this change was made, the
regulations at 40 CFR 403.12(g) were not updated to require all SIUs,
categorical and non-categorical, to report all monitoring results to
the Control Authority.
2. What changes did EPA propose?
EPA proposed to change the Pretreatment Regulations to require all
SIUs, both categorical and non-categorical SIUs, to report all
monitoring results for regulated parameters at the point of compliance,
obtained using procedures specified in Part 136, to the Control
Authority.
3. What changes is EPA finalizing in today's rule?
EPA adopted the proposed rule change to 40 CFR 403.12(g)(6). No
modifications were made to the proposal in the final rule.
4. Summary of Major Comments and EPA Response
Should non-SIUs be required to report all monitoring results? Two
commenters suggested that EPA revise the scope of its provision to
include all Industrial Users. While there are likely important reasons
to apply this provision to non-SIUs on a case-by-case basis, EPA
declines to do so in a requirement affecting all Pretreatment programs.
First, EPA did not consider such a revision in the proposal, and it
would be inappropriate to do so in this action. Second, while it may
make sense to require reporting of all monitoring results for SIUs
since they are already required to monitor and report to the POTW, non-
SIUs are not currently required by the Pretreatment Regulations to
monitor or report. Of course, POTWs may require non-SIUs to report all
monitoring data to POTWs on a case-by-case basis if local laws allow.
Such a decision is a matter of local discretion.
Notification by Industrial Users of Changed Discharge (40 CFR
403.12(j))
Today's rule clarifies that when the Industrial User provides
notification of a changed Discharge it should go to the ``Control
Authority'', or the Control Authority and the POTW, where the POTW does
not have an approved Pretreatment program.
1. What were the rules in place prior to today's rule?
In 1988, the regulations were changed to add 40 CFR 403.12(j) (53
FR 40614, October 17, 1988) requiring all Industrial Users to promptly
notify the POTW of any substantial change in volume or character of
pollutants in the User's Discharge to the POTW. This notification
requirement did not include the Control Authority, which, in some
cases, is not the POTW.
2. What changes did EPA propose?
EPA proposed to expand the notification requirement in 40 CFR
403.12(j) so that the Industrial User must notify the ``Control
Authority'', as opposed to the ``POTW'', and in cases where the Control
Authority and the POTW are different organizations, the Industrial User
would notify both the Control Authority and the POTW of any substantial
change in volume or character of pollutants in the User's Discharge to
the POTW.
3. What changes is EPA finalizing in today's rule?
EPA has adopted the proposed rule's revision of 40 CFR 403.12(j).
No modifications were made to the proposal in the final rule.
4. Summary of Major Comments and EPA Response
There were no significant comments on this proposed change.
J. Equivalent Mass Limits for Concentration Limits (40 CFR 403.6(c)(5))
This section of today's final rule addresses the establishment of
equivalent mass limits for concentration-based categorical Standards.
EPA is finalizing provisions that allow Industrial Users to request
(and, at their discretion, Control Authorities to approve) the
conversion of concentration-based categorical limits to equivalent
mass-based limits. The current rule requires that the Control Authority
must control contributions to a POTW by all Significant Industrial
Users (which include Categorical Industrial Users) through a Permit or
equivalent individual control mechanism. See 40 CFR 403.3(t) (now found
at 40 CFR 403.3(v)) and 40 CFR 403.8(f)(1)(iii). Today's change
authorizes the Control Authority to calculate an equivalent mass limit
for the Industrial User's Permit (or control mechanism) for those
categorical Pretreatment Standards that are expressed in terms of
concentration. Once inserted into the Industrial User's control
mechanism, the equivalent limit replaces the promulgated concentration-
based Pretreatment Standard. See 40 CFR 403.6(c)(7). The final rule
includes requirements that an Industrial User must satisfy in order to
qualify for this conversion. These include a requirement for the
Industrial User to use water conservation methods and technologies
during the term of the Industrial User's control mechanism. The rule
also specifies the procedures which the Control Authority must follow
in calculating the equivalent mass limit. After the equivalent mass
limits are in effect, the rule conditions the continued use of the
limits on the Industrial User's compliance with several requirements,
including, at a minimum, the maintenance and effective operation of
treatment technologies adequate to achieve compliance with the
equivalent mass limits, the continuous recording of flow rates, the
notification of the Control Authority where production is expected to
be substantially changed, and the retention of water conservation
measures.
1. What were the rules in place prior to today's rulemaking?
National categorical Pretreatment Standards establish different
types of pollutant limitations for different categories. EPA has
established categorical Pretreatment Standards that include the
following types: (1) Concentration-based Standards that are implemented
directly as concentration limits; (2) mass limits based on production
rates; (3) both concentration-based and production-based limits; and
(4) mass limits based on a concentration Standard multiplied by a
facility's process wastewater flow. Currently, 40 CFR 403.6(c)(2)
authorizes the Control Authority to convert production-based mass
limits to equivalent daily mass limits or concentration limits. In
addition, 40 CFR 403.6(d) allows the Control Authority to impose
equivalent mass limits in addition to concentration-based Standards
where the Industrial User is using dilution to meet applicable
Pretreatment Standards or where the imposition of mass limits is
appropriate. Under 40 CFR 403.6(d), both the mass limit and
concentration limit are then enforceable, so the mass limit would not
be an equivalent, ``in-lieu-of'' limit. The regulations do not
currently, however, authorize establishment of alternative mass
limitations in the case of concentration-based Standards except in the
limited circumstances described in 40 CFR 403.6.
2. What changes did EPA propose?
EPA proposed to revise the Pretreatment Regulations to authorize
the Control Authority to establish equivalent mass limits in lieu of
[[Page 60169]]
promulgated concentration-based limits for Industrial Users. The
equivalent mass limit would only be available to Industrial Users that
had installed control measures at least as effective as the model
treatment technologies that serve as the basis for a particular
categorical Pretreatment Standard and that are employing water
conservation methods and technologies that substantially reduce water
use. The Control Authority would be required to document how the
equivalent mass limits were derived and make this information publicly
available.
3. What changes is EPA finalizing in today's rule?
EPA is finalizing changes to enable Control Authorities in limited
circumstances to express a concentration-based categorical Standard as
an equivalent mass limit in a control mechanism issued to an Industrial
User. The equivalent mass limit replaces the promulgated categorical
Pretreatment Standard once it is incorporated into the Industrial
User's control mechanism. To qualify for an equivalent mass limit, the
CIU must meet certain eligibility conditions. These conditions require
the CIU to: (1) Implement water conservation measures that
substantially reduce water use; (2) use control and treatment
technologies adequate to achieve compliance with categorical
Pretreatment Standards, and demonstrate that it has not used dilution
as a substitute for treatment; (3) provide monitoring data to establish
its actual average daily flow rate and its baseline long-term average
production rate; (4) demonstrate that it does not have daily flow
rates, production rates, or pollutant levels that fluctuate so
significantly that establishing equivalent mass limits would not be
appropriate; and (5) have consistently complied with the applicable
categorical Pretreatment Standards.
Under the final rule, while a CIU may request an equivalent limit,
the Control Authority has the discretion to decide whether an
equivalent mass limit is appropriate. If the Control Authority approves
the request, it then calculates the equivalent mass limit by
multiplying the promulgated Pretreatment Standard (expressed as
concentration) by the Industrial User's actual average daily flow rate
and the appropriate unit conversion factor. For example, the unit
conversion factor is 8.34 when multiplying a concentration limit
(expressed as milligrams/liter) by flow (expressed as millions of
gallons per day). The CIU is subject to the equivalent mass limit when
its control mechanism containing the mass limit is effective. During
the term of the control mechanism, or in a subsequent control mechanism
term, the Control Authority may determine that it is necessary to
revise the mass limit to reflect a significant change in the rate of
production. The Control Authority is not required to recalculate the
equivalent mass limits in subsequent control mechanism terms if the
actual average daily flow rates were reduced solely as a result of
implementing water conservation methods and technologies, and the flow
rates used in the original calculation of the equivalent mass limits
were not based on the use of dilution as a substitute for treatment
pursuant to 40 CFR 403.6(d), and the Industrial User is not bypassing
its treatment technologies pursuant to 40 CFR 403.17.
After the Control Authority develops an equivalent mass limit and
issues a control mechanism with the mass limits, the continued
applicability of the equivalent mass limit depends on the Industrial
User's continued compliance with certain requirements. To comply with
these requirements, the Industrial User must: (1) Maintain and
effectively operate control and treatment technologies adequate to
achieve compliance with the equivalent mass limits; (2) record the
facility's flow rates through the use of a continuous effluent flow
monitoring device; (3) continue to record the facility's production
rates and notify the Control Authority if the rates vary by more than
20 percent from the production rates used as the basis for the
equivalent mass limits; and (4) continue to employ the same or
comparable water conservation measures which made the facility eligible
for receiving the equivalent mass limits. The Control Authority should
consider including the four conditions listed above in the CIU's
control mechanism to make it clear to all such Industrial Users that
continued use of the equivalent mass limits is subject to ongoing
compliance with these minimum requirements. Failure to comply with
these conditions will disqualify the CIU from coverage by the
equivalent mass limit. The pre-existing concentration-based
Pretreatment Standards will be automatically enforceable at the time of
disqualification.
Section 403.8(f)(1) requires that POTW Pretreatment Programs must
have the legal authority to control the contribution to POTWs from each
Industrial User to ensure compliance with Pretreatment Standards and
other requirements. In the case of Significant Industrial Users, this
control must be achieved through a Permit or other equivalent control
mechanism. The Permit or control mechanism must contain, among other
things ``* * * [e]ffluent limits based on applicable general
Pretreatment Standards in part 403 of this chapter, categorical
Pretreatment Standards, local limits, and State and applicable local
law.'' 40 CFR 403.8(f)(1)(iii)(C). When a Control Authority develops
equivalent mass limits under today's provision, these limits will meet
the requirement that the Permit or control mechanism include ``effluent
limits based on categorical Pretreatment Standards.'' As is the case
with any equivalent Standard established under 40 CFR 403.6(c), in
order for the Approval Authority and the public to be able to verify
compliance by the CIUs with these equivalent Standards, the Control
Authority will need to document how the mass limit calculations were
derived and make the documents publicly available (i.e., to the
Approval Authority, EPA, the general public or any third party
requesting this information).
Establishing mass limits that are equivalent to promulgated
concentration-based categorical Pretreatment Standards does not
improperly transfer Standard-setting authority to the Control
Authority. As noted above, EPA's current regulations already require
the inclusion in Industrial User Permits (or other control mechanisms)
of effluent limits based on the categorical Standard. Moreover, current
40 CFR 403.6(c)(6) provides that equivalent limits calculated in
accordance with the regulation are deemed Pretreatment Standards for
purposes of section 307(d) of the CWA. If a Control Authority develops
an equivalent mass limit, in lieu of the concentration-based
categorical Standard, the equivalent limit is a Pretreatment Standard.
Where it is determined that the equivalent mass limit is not properly
calculated, the Control Authority must modify the Industrial User's
control mechanism to require immediate compliance with the correctly
calculated limits.
Which categorical industries are potentially affected by this
provision? Section 403.6(c)(5) applies to qualifying indirect
dischargers that are currently subject to Pretreatment Standards
expressed as concentration limits. Currently, there are 14 categorical
Pretreatment Standards that are expressed as concentration limits alone
and are therefore eligible for equivalent mass limits under new 40 CFR
403.6(c)(5). The following categories are included in this list:
Inorganic Chemicals (40 CFR part 415)
[[Page 60170]]
Fertilizer Manufacturing (40 CFR part 418)
Petroleum Refining (40 CFR part 419)
Steam Electric Power Generating (40 CFR part 423)
Leather Tanning (40 CFR part 425)
Glass Manufacturing (40 CFR part 426)
Rubber Manufacturing (40 CFR part 428)
Metal Finishing (40 CFR part 433)
Pharmaceutical Manufacturing (40 CFR part 439)
Transportation Equipment Cleaning (40 CFR part 442)
Paving and Roofing Materials (40 CFR part 443)
Commercial Hazardous Waste Combustors Subcategory of the
Waste Combustors Point Source Category (40 CFR part 444)
Carbon Black Manufacturing (40 CFR part 458)
Electrical and Electronic Components (40 CFR part 469)
In finalizing the rule, EPA is making the following changes to the
proposed rule:
Discretionary Use of Equivalent Mass Limits: The final rule
emphasizes that the decision on whether to convert the CIU's
concentration-based categorical Pretreatment Standard to an equivalent
mass limit rests with the Control Authority. Though EPA intended that
the Control Authority's decision would be discretionary, there was
considerable uncertainty and concern among the commenters that the
proposed language was not clear on this issue (e.g., ``* * * the
Control Authority may convert the limits * * * ''). Several Industrial
Users expressed concern that they might be compelled to accept
equivalent mass limits. EPA has clarified the language of the final
rule. The rule now states that Industrial Users initiate the process by
requesting that their concentration-based limits be converted to
equivalent mass limits. The final rule states it this way: ``* * * the
Industrial User may request that the Control Authority convert the
limits to equivalent mass limits. The determination to convert
concentration limits to equivalent mass limits is within the discretion
of the Control Authority.''
Industrial User Eligibility Conditions: EPA has included
requirements that the Industrial User must first meet before the
Control Authority may establish an equivalent mass limit. Several of
these eligibility requirements are also conditions that must be met in
order to continue use of equivalent mass limits after becoming
effective. The final rule includes the following requirements:
(1) Implementation of Water Conservation: EPA has revised the
proposed language requiring the Industrial User to be ``employing water
conservation methods and technologies that substantially reduce water
use'' to make it clear that current as well as future water
conservation efforts can both qualify for the use of equivalent mass
limits. The final rule also requires water conservation during the
initial term of the Industrial User's control mechanism which includes
equivalent mass limits. The revised rule language is as follows: ``the
Industrial User must employ, or demonstrate that it will employ, water
conservation methods and technologies that substantially reduce water
use during the term of its control mechanism.'' See 40 CFR
403.6(c)(5)(i)(A). The final rule also requires that the Industrial
User ``continue to employ the same or comparable water conservation
methods and technologies as those implemented pursuant to paragraph
(5)(i)(A) so long as it discharges under an equivalent mass limit.''
See 40 CFR 403.6(c)(5)(ii)(D).
(2) Use of Effective Control and Treatment Technologies: The
proposed rule required ``control measures at least as effective as the
model treatment technologies that serve as the basis for that
particular Standard.'' The final rule revises this language, while
retaining the principle of requiring the installation and use of
effective control measures to meet the applicable Pretreatment
Standards for Existing Sources (PSES) or Pretreatment Standards for New
Sources (PSNS). The revised language is as follows: ``The Industrial
User must * * * currently use control and treatment technologies
adequate to achieve compliance with the applicable categorical
Pretreatment Standard, and not have used dilution as a substitute for
treatment.''
The proposal discussed the fact that the Pretreatment Regulations
in 40 CFR 403.6(d) contain a strict prohibition against the use of
dilution as a substitute for treatment, and that requirement remains.
This provision states that no Industrial User introducing wastewater
pollutants into a POTW may increase the use of process wastewater or
otherwise dilute the wastewater as a partial or total substitute for
adequate treatment to achieve compliance with a Pretreatment Standard.
EPA has concluded that it is appropriate to require CIUs seeking to use
an equivalent mass limit to demonstrate their past compliance with the
dilution prohibition in 40 CFR 403.6(d). See 40 CFR 403.6(c)(5)(i)(B).
For example, the Industrial User can compare its current flows to the
flows that are assumed as part of the model technology for the
categorical Pretreatment Standard. Consistent with the dilution
requirement, this requirement is intended to provide the Control
Authority with a means of identifying facilities that may have used
dilution in the past. Such CIUs would be precluded from obtaining less
stringent equivalent mass limits by taking advantage of historically
high flows based on dilution. The Control Authority may review
historical monitoring and inspection reports, and process descriptions
from the appropriate categorical Standard Technical Development
Document published with each categorical Standard, when evaluating the
Industrial User's demonstration of no dilution. See 40 CFR
403.6(c)(5)(i)(B). The final rule also requires, as a condition of
using equivalent mass limits, that Industrial Users ``maintain and
effectively operate control and treatment technologies adequate to
comply with the equivalent mass limits.'' See 40 CFR
403.6(c)(5)(iii)(A). EPA revised the proposed rule language because of
a concern that Industrial Users not be locked into a particular control
technology or be required to make a complex technical showing that one
treatment system is ``no less effective'' than another. By requiring
that existing treatment be ``adequate to achieve compliance with
applicable categorical Pretreatment Standards'' and that Industrial
Users ``maintain and effectively operate control and treatment
technologies adequate to comply with the equivalent mass limits'', EPA
has concluded that the final rule language ensures that CIUs with
equivalent mass limits continue to provide appropriate treatment. See
40 CFR 403.6(c)(5)(ii)(A).
(3) Establishment of Actual Average Daily Flow Rate and Baseline
Long-Term Average Production Rate: The proposal had indicated that it
would be sufficient to provide a ``reasonable estimate of the flow
required to achieve the facility's production goals using BAT and in
the absence of the water saving technology.'' See 64 FR 39570, July 22,
1999. The final rule changes this approach to require, consistent with
current regulations and guidance, that equivalent mass limits be based
on the CIU's actual average daily flow rate and that flows be measured,
as opposed to estimated, using a continuous effluent flow monitor. The
final rule requires that the flow rate used be representative of
current operating conditions; the actual period of flow used to develop
the equivalent limits should reflect actual current production and
water usage. See 40 CFR 403.6(c)(5)(i)(C). EPA
[[Page 60171]]
also conditions the use of equivalent mass limits on the continued use
of an effluent flow monitoring device to record the facility's flow
rates. See 40 CFR 403.6(c)(5)(iii)(B).
In addition, the preamble of the proposed rule suggested that the
flow component of the equivalent mass limit be based on estimated flows
``required to achieve the facility's production goals.'' See 64 FR
39570, July 22, 1999. EPA did not discuss in the preamble how the mass
limit may need to change if the Industrial User changed its production
goals, resulting in potentially substantial changes in process
wastewater flow. In adopting a later amendment to its regulations that
authorized the establishment in limited circumstances of equivalent
mass limits for certain Industrial Users in the City of Owatonna,
Minnesota, however, EPA did require Industrial Users subject to
equivalent mass limits to notify the Control Authority where
``production rates are expected to vary by more than 20 percent from a
baseline production rate'' determined when the mass limit was first
established. See 65 FR 59741 (October 6, 2000); see 40 CFR 403.19(b).
Accordingly, EPA has modified the final rule to include a similar
requirement for the Industrial User to provide the Control Authority
with sufficient information to establish an average daily production
rate. See 40 CFR 403.6(c)(5)(i)(C). The Industrial User must also
notify the Control Authority of substantial changes in the rate so that
the Control Authority is given an opportunity to alter the equivalent
mass limit in the event of such changes (e.g., greater than 20 percent
from the baseline rate). See 40 CFR 403.6(c)(5)(ii)(C) and (iii)(B).
(4) Use of Equivalent Mass Limits for Relatively Uniform Operating
Conditions: The final rule includes an additional requirement that the
Industrial User demonstrate that it must ``not have daily flow rates,
production levels, or pollutant levels that vary so significantly that
an equivalent mass limit is not appropriate to control the Discharge.''
See 40 CFR 403.6(c)(5)(i)(D).
(5) Consistent Compliance with Standards: The availability of
equivalent mass limits is also conditioned on consistent compliance
with applicable categorical Pretreatment Standards. The final rule does
not specify the period during which the CIU must have demonstrated full
compliance, but allows the Control Authority to assess the available
compliance records to the extent that they are representative of
current operating conditions and reflect the Industrial User's
understanding of the regulatory obligations that must be achieved for
compliance with these and related regulations. See 40 CFR
403.6(c)(5)(i)(E).
(6) Calculation of Equivalent Mass Limit: The final rule specifies
how Control Authorities are to calculate the equivalent mass limit. The
following language is used to describe the calculation: In the first
term of the control mechanism, ``A Control Authority which chooses to
establish equivalent mass limits must * * * calculate the equivalent
mass limit by multiplying the actual average daily flow rate of the
regulated process(es) of the Industrial User by the concentration-based
daily maximum and monthly average Standard for the applicable
categorical Pretreatment Standard and the appropriate unit conversion
factor.'' See 40 CFR 403.6(c)(5)(iii)(A). The rule further provides
that the Control Authority ``may retain the same equivalent mass limit
in subsequent control mechanism terms if the Industrial User's actual
average daily flow rate was reduced solely as a result of the
implementation of water conservation methods and technologies, and the
actual average daily flow rates used in the original calculation of the
equivalent mass limit were not based on the use of dilution as a
substitute for treatment pursuant to 40 CFR 403.6(d). The Industrial
User must also be in compliance with 40 CFR 403.17 (regarding the
prohibition of bypass).'' See 40 CFR 403.6(c)(5)(iii)(C).
(7) Pollutants Excluded from Equivalent Mass Limits: EPA has
adopted specific language from 40 CFR 122.45(f)(1)(i) which identifies
the following pollutants as being inappropriate for the use of
equivalent mass limits: pH, temperature, and radiation. See 40 CFR
403.6(c)(5)(iv).
4. Summary of Major Comments and EPA Response
Discretionary Use of Equivalent Mass Limits: Several commenters
raised concerns regarding who would initiate the use of equivalent
limits and how much discretion the Control Authority has in imposing
these limits. A consistent theme raised among commenters representing
Industrial Users was the concern that the proposed rule would enable
the Control Authority to impose equivalent mass limits over the
objection of the Industrial User. Where POTW and state commenters
provided comments on this issue, they expressed concern that equivalent
mass limits would create additional burden and generally emphasized
that the decision to use equivalent mass limits to regulate a
particular indirect discharger should be left to the POTW's discretion.
EPA notes that these positions appear consistent with one another. The
final rule allows for an Industrial User to request equivalent mass
limits and emphasizes that the decision to convert concentration-based
limits to equivalent mass limits lies within the Control Authority's
discretion. EPA does not anticipate that an Industrial User would
request the implementation of equivalent mass limits if it would create
an unacceptable amount of additional burden for the facility, nor would
the Control Authority accept an undue burden upon itself if a benefit
would not be foreseen.
What level of treatment must be in place prior to being eligible
for equivalent mass limits? A few commenters objected to the proposal's
requirement that in order to be eligible to use equivalent mass limits
the Industrial User be utilizing control measures at least as effective
as the model treatment technologies that serve as the basis for the
particular categorical Standard. These commenters instead supported the
availability of equivalent mass limits where the Industrial User could
demonstrate that the concentration limits can be met without treatment.
One POTW and an environmental organization took the opposite position,
indicating that treatment must be in place prior to the use of
equivalent mass limits. Today's final rule requires that the Industrial
User be using control and treatment technologies adequate to achieve
compliance with the applicable categorical Pretreatment Standard. The
final rule also requires that the Industrial User maintain and
effectively operate control and treatment technologies adequate to
achieve compliance with the equivalent mass limits.
EPA is imposing this requirement for a number of reasons. First,
the use of technologies adequate to achieve compliance with applicable
Standards provides the Control Authority with a level of assurance that
qualifying Industrial Users have not been meeting their concentration-
based Standards through dilution, which is prohibited in 40 CFR
403.6(d). Second, although water conservation typically increases the
concentrations of pollutants in the process wastewater prior to
treatment, facilities with on-site treatment typically show a reduction
of pollutant loadings in the final effluent prior to its discharge to
the POTW sewer system even where the facility has instituted water
conservation. This reduction can be attributed to the fact that many
wastewater treatment technologies are
[[Page 60172]]
limited more by physical/chemical properties of the pollutants in the
wastewater, than by influent concentrations. Therefore, reducing the
wastewater Discharge flow will generally reduce the overall pollutant
load from the facility. This is based on the assumption that the
reduced wastewater flow to the treatment system will allow the system
to more successfully treat the increased pollutant concentrations in
the wastewater treatment influent stream. This is a key reason EPA has
concluded it is appropriate to provide this incentive for water
conservation. More information on water conservation techniques and
methods can be found in the rule docket (see OW-2002-0007-0091).
In assessing whether the Industrial User has installed adequate
control and treatment technologies, the Control Authority may review
the corresponding categorical Standard Development Document for
potential control options. For instance, the Development Document for
Effluent Limitations Guidelines and Standards for the Metal Finishing
Point Source Category (EPA 440/1-83/091, June 1983) identifies that
PSES for the waste streams containing complexed metals is based on the
segregation of the complexed metals waste stream with separate
treatment for the precipitation of metals and the removal of suspended
solids. A figure depicting the different model treatment technologies
for the complexed metals and other wastestreams can be found in Figure
10-1 (page X-2) of the Development Document. (pages X-1-4, and XII-1)
The Control Authority might also review current trade association
literature for other control options that have become available since
the Development Document was produced, as well as sources available
through EPA's ``Sector Strategies'' programs and EPA's Office of
Compliance Assistance: http://www.epa.gov/sectors/program.html, http://www.epa.gov/compliance/resources/publications/assistance/sectors/notebooks/index.html.
Prohibition Against Dilution: A few commenters indicated their
concern that implementation of equivalent mass limits might allow
Industrial Users to secure lenient standards through the calculation of
equivalent mass limits based on flows that reflect diluted
wastestreams. The proposal discussed the fact that the Pretreatment
Regulations have a strict prohibition against the use of dilution as a
substitute for treatment (see 40 CFR 403.6(d)). This provision
indicates that no User introducing wastewater pollutants into a POTW
may increase the use of process wastewater or otherwise dilute the
wastewater as a partial or total substitute for adequate treatment to
achieve compliance with a Pretreatment Standard. EPA has concluded that
it should require CIUs seeking to obtain an equivalent mass limit to
demonstrate their past compliance with the dilution prohibition in 40
CFR 403.6(d). This requirement is intended to provide the Control
Authority with a means of screening out those facilities that may have
used dilution in the past in order to prevent their benefiting from
higher than necessary flow rates when calculating a mass limit. (There
are a number of ways the Control Authority may evaluate whether the CIU
was diluting its flows. This evaluation can be made by comparing the
CIU's product to flow ratio relative to that of other facilities within
its industry or requesting an explanation of why it uses the level of
process water that it uses.)
How should compliance status affect an Industrial User's
eligibility for equivalent mass limits? Several POTWs and one
environmental organization recommended that the proposed rule be
revised to require the Industrial User to demonstrate that it is able
to maintain compliance with applicable Pretreatment Standards prior to
water conservation and to restrict eligibility based on such
compliance. EPA agrees with the commenters' suggestions. The final rule
adopts the requirement that interested Industrial Users must have
consistently complied with all applicable categorical Standards prior
to the request to be subject to mass-based limits. Compliance with the
underlying categorical Standards is an appropriate benchmark for the
Control Authority to use in determining the eligibility of an
individual discharger. Where the Industrial User has demonstrated
consistent compliance, the Control Authority will be given some level
of confidence that the User will be able to adjust to the use of a
limit that is considered equivalent to the concentration-based
Standard. It is EPA's view that the reverse is also true in that the
lack of compliance may indicate a User's inability to comply with an
equivalent limit. EPA is not specifying a minimum time period over
which an Industrial User must be in consistent compliance. EPA notes
that regulations in 40 CFR 403.12(o) require that Industrial Users
maintain records of all information from any monitoring activities for
a minimum of three years. These records should be reviewed and
considered to the extent that they reflect compliance with current
conditions. At a minimum, EPA expects that no Industrial User found to
have been in significant noncompliance (SNC) at any time during the
previous two years would be considered to have achieved consistent
historical compliance.
Incompatibility of equivalent mass limits with particular
industries: One trade association commented that the use of mass limits
is incompatible with their industry due in large part to the
fluctuating conditions in their operations. It is EPA's view that
certain facilities do not have operations that are compatible with the
use of equivalent mass limits. For example, a high degree of
variability in a CIU's flows, production, or pollutant Discharge levels
will likely make it an inappropriate candidate to use mass limits to
control its Discharge. For this reason, the final rule now requires
Industrial Users to ``not have daily flow rates, production levels, or
pollutant levels that vary so significantly that an equivalent mass
limit is not appropriate to control the Discharge.'' See 40 CFR
403.6(c)(5)(i)(D).
Water Conservation as a Qualifier for Eligibility: Several
commenters stated that the implementation of equivalent mass limits
should not be restricted to Industrial Users that have already
implemented water conservation measures. EPA agrees that this
provision's intent is to encourage innovative water conservation
methods and should not include the pre-condition that Industrial Users
have already employed water conservation measures. This will allow
ongoing as well as future water conservation efforts by enabling both
to use equivalent mass limits. Regardless of whether a facility's water
conservation methods are ongoing or have yet to be implemented, this
final rule does require that the Industrial User demonstrate that it
will employ water conservation methods and technologies that will
substantially reduce water use during the term of its control
mechanism. The Industrial User is also required to employ water
conservation to remain eligible for equivalent mass limits.
This final rule does not specify the amount of water conservation
that should be achieved or that constitutes a substantial reduction in
water use. EPA notes that several existing programs define thresholds
that the Control Authority may consider for use in this context. For
example:
The final rule for the Pretreatment Community XL (XLC)
Site-Specific Rulemaking for Steele County, MN (65 FR 59743) of 40 CFR
403.19(b),
[[Page 60173]]
indicates that the participating Industrial Users committed as a group
to reduce water usage by 10% over the initial 5 year project period.
National Metal Finishing Strategic Goals Program promotes
a 50% water reduction from each particular participating industry's
baseline 1992 water usage. http://www.strategicgoals.org/coregoals.cfm.
EPA considers a 20% change in flow rate to be
a significant change in a flow rate. See page 2-14 of the EPA Guidance
Manual for the Use of Production Based Pretreatment Standards and the
Combined Wastestream Formula (Sept. 1985).
How do facilities employ water conservation? Currently there are
many water reduction technologies in use in manufacturing facilities
across the United States. Many of the technologies that EPA evaluated
when establishing the categorical Standards included water conservation
techniques and technologies. The Technical Development Document for a
particular categorical Standard is a valuable tool for information on
these technologies. Technologies that reduce wastewater Discharge rates
usually increase the concentrations of pollutants in the wastewater
leaving the industrial operation. However, for facilities with
wastewater treatment systems on site, these technologies may still
reduce the final effluent pollutant loading, because many of the
wastewater treatment technologies are limited more by physical/chemical
properties of the pollutants in the wastewater, than by influent
concentrations. Therefore, reducing the wastewater Discharge flow will
generally reduce the overall pollutant load from the facility.
In the Metal Finishing (MF) industry, facilities apply flow
reduction practices to process baths or rinses to reduce the volume of
wastewater discharged. One method that conserves water is cascade
rinsing: When water is reused from one rinsing operation to another,
less critical rinsing operation, before being discharged to treatment.
Facilities can also reduce water use by coordinating and closely
monitoring rinse water requirements. Matching water use to rinse water
requirements optimizes the quantity of rinse water used for a given
work load and tank arrangement. More information on water conservation
techniques and methods can be found in rule record (see OW-2002-0007-
0091).
Assessing how reduced Discharges will affect POTWs: One commenter
asserted that EPA would be violating Section 307 if the Agency
finalizes the proposal by failing to address the issue of whether the
more highly concentrated wastestreams that would result from reduced
water consumption ``would cause environmental harm at either the POTW
or in the receiving stream or result in long-term sediment
contamination.'' EPA disagrees that the wastestreams resulting from
water conservation present a potential problem for the environment or
POTWs for a number of reasons. First, in order to qualify for an
equivalent mass limit, the Industrial User must have been in consistent
compliance with its categorical Pretreatment Standards prior to the
Industrial User's request to be subject to equivalent mass limits.
Second, the Control Authority must properly convert the concentration-
based Pretreatment Standard to an equivalent mass limit using the CIU's
actual long-term average daily flow rate. This will ensure that there
will be no adverse impacts to human health or the environment as the
pollutant concentrations discharged under the equivalent mass limits
will be no greater than the concentration-based Pretreatment Standard.
Third, EPA's existing regulations ensure continued protection of
receiving waters and POTW operations.
EPA emphasizes that the use of equivalent limits to regulate
individual Industrial Users does not relieve the Control Authority of
the need to establish and enforce local limits in accordance with 40
CFR 403.5(d) and require compliance with the General and Specific
Prohibitions of 40 CFR 403.5(a) and (b) which are protective of the
POTW operations, and prevent Pass Through and Interference.
Consequently, the use of equivalent mass limits would not be authorized
if it resulted in a violation of any of the General and Specific
Prohibitions or local limits established under 40 CFR 403.5(d).
Furthermore, this provision may be implemented only following
determination of its feasibility by Control Authorities, and not
unilaterally by Industrial Users. Control Authorities' local limits
will continue to ensure protection of the individual POTW operations
and its receiving environment. Finally, the requirements of today's
rule ensure that there will be no increase in the quantity of
pollutants reaching the POTW as a result of adopting equivalent mass
limits.
How should the equivalent mass limit be calculated? One POTW
commenter suggested that EPA clarify how to calculate the Industrial
User's equivalent mass limit in order to specify which flow to use. EPA
agrees that it is important to provide specific instructions on how the
equivalent limit is to be calculated, especially with regard to which
flow rate is the correct one to use. Today's final rule at 40 CFR
403.6(c)(5)(iii)(A) includes the following formula to be used to
calculate the equivalent mass limits:
For converting daily maximum concentration Standards to
equivalent daily maximum mass limits: The product of the facility's
actual average daily flow rate and the applicable concentration-based
categorical daily maximum Standard, and the appropriate unit conversion
factor. The unit conversion factor is 8.34 when multiplying a
concentration limit (expressed as milligrams/liter) by flow (expressed
as millions of gallons per day).
For converting monthly average concentration Standards to
equivalent monthly average mass limits: The product of the facility's
actual average daily flow rate and the applicable concentration-based
categorical monthly average Standard, and the appropriate unit
conversion factor. The unit conversion factor is 8.34 when multiplying
a concentration limit (expressed as milligrams/liter) by flow
(expressed as millions of gallons per day).
It is important to note that the same flow value, the CIU's actual
long-term average daily flow rate, is used in the calculation of both
the daily maximum and monthly average equivalent mass limits.
Why are equivalent mass limits calculated using the actual average
daily flow rate? EPA specifies in 40 CFR 403.6(c)(5)(iii)(A) that the
equivalent mass limits are calculated by multiplying the actual average
daily flow rate by the applicable concentration-based categorical
Pretreatment Standard and the appropriate conversion factor. The use of
the actual average daily flow rate as the flow basis for the limits is
consistent with existing EPA regulations and guidance. The current
Pretreatment Regulations already require the Control Authority to
calculate ``equivalent concentration limits'' by using the ``average
daily flow rate of the Industrial User's regulated process
wastewater.'' See 40 CFR 403.6(c)(4). The provision further states that
``this average daily flow rate shall be based upon a reasonable measure
of the Industrial User's actual long-term average flow rate, such as
the average daily flow rate during a representative year.'' CIUs are
elsewhere required to report in the baseline monitoring report (BMR)
flow measurements showing the ``measured average daily and maximum
daily flow, in gallons per day, to the POTW'' (see 40 CFR 403.12(b)(4))
and to include in
[[Page 60174]]
the periodic report ``a record of measured or estimated average and
maximum daily flows'' (see 40 CFR 403.12(e)(1)).
Perhaps most importantly, use of the long-term average daily and
monthly flow is the only way to ensure that mass-based limits are truly
equivalent; that is, that they do not result in any increased discharge
of pollutants to the POTW or the environment. If a higher than average
flow rate were used, it would be possible for the total Discharge of
pollutants to increase, which would violate the fundamental basis of
this streamlining change.
EPA notes that its decision to use long-term average daily flows
has been discussed in numerous categorical Pretreatment Standard
rulemakings, including the final Pesticides Manufacturing Standard. See
58 FR 50679 (September 28, 1993). In addition, Chapter 2.8 of EPA's
Guidance Manual for the Use of Production-Based Pretreatment Standards
and the Combined Wastestream Formula (September 1985) describes
important considerations when determining the appropriate flow rate for
use in developing equivalent limits including that the same average
rate is to be used to calculate both daily maximum and maximum monthly
average alternative limits, to avoid the use of data for too short a
time period (particularly, ``estimating the average rate based on data
for a few high days, weeks, or months is not appropriate'') (page 2-
14). Likewise, it is important here to use a long-term average that
reflects current operating conditions (``actual long-term average
flow''). Use of flow data from a period that does not represent current
production and water use would result in mass limits that are not
equivalent. Thus, the period of time used to compute the actual long-
term average must reflect recent production changes as well as
reductions in water use.
Why are continuous effluent flow monitoring devices required? The
final rule requires that an Industrial User subject to equivalent mass
limits must continuously monitor its flow.
(1) Flow monitoring is required to ensure the equivalency to
Federal categorical Pretreatment Standards: When calculating the
equivalent limits and determining compliance, the Control Authority
must accurately characterize the existing conditions. EPA is therefore
requiring that the flow value used in the translation of the
concentration limit to the equivalent mass limit and the flows utilized
during compliance assessment be based upon a measured value using a
continuous flow measuring device.
Several industry commenters and one trade association representing
municipalities indicated that they would support the use of estimation
methods to derive facility flow rates for establishing the mass limit
and for determining compliance. These commenters emphasized that
estimation methods have been proven to be accurate and cost-effective.
Some commenters supported the proposal's allowance for ``a reasonable
estimate of the flow * * *'', but did not indicate whether they would
support a requirement to use only measured flows. Several commenters,
including three states, two POTWs, and one environmental interest group
agreed that the level of accuracy obtained from flow measurements, in
contrast to flow estimation, is required in order to ensure equivalency
with the categorical Standards in calculating the mass limits. These
commenters stressed that flow measurement was also necessary in order
to adequately assess compliance with the equivalent Standard. One state
went so far as to declare that the proposal was flawed in that it had
not required flow measuring devices. These factors as well support
EPA's decision to require continuous effluent flow monitors.
(2) The relative costs and benefits of using flow monitoring
devices should be considered: In terms of the relative cost of
implementing flow monitoring devices, the CIU and Control Authority may
wish to evaluate the expense of the installation of the continuous flow
measuring device with the benefits that may be achieved by institution
of water conservation methods and technologies. Cost effective flow
measurement devices are estimated to cost $400-$1500. See Utility
Supply of America, 2004-05. USA BlueBook: Everything for Water &
Wastewater Operations, Vol. 115. In contrast, commercial/industrial
facilities using municipal water and sewer systems incur an average
$28,000 monthly charge for their water and sewer use (survey of 194
U.S. cities, conducted by Raftelis Financial Consulting), consisting of
over $12,000 per month for water charges and over $16,000 per month for
wastewater charges (2000 Water and Wastewater Rate Survey, Exhibit 2,
page 19, and Exhibit 5, page 44). Based on these figures, it is EPA's
view that it is likely that benefits of water conservation will
outweigh the cost of the meter in many situations. However, if this is
not the case, the Industrial User does not have to request equivalent
mass limits.
Furthermore, measurement of water usage may bring water
conservation benefits over and above those resulting from other
technology changes. Accurate measurement of the water use is beneficial
to identifying the amounts and usage of water so that behavioral
practices can be modified and tracked. ``Monitoring the amount of water
used by an industrial/commercial facility can provide information on
quantities of overall company water use, the seasonal and hourly
patterns of water use, and the quantities and quality of water use in
individual processes. Baseline information on water use can be used to
set company goals and to develop specific water use efficiency
measures. Monitoring can make employees more aware of water use rates
and makes it easier to measure the results of conservation efforts. The
use of meters on individual pieces of water-using equipment can provide
direct information on the efficiency of water use'' (Cleaner Water
Through Conservation, EPA 841-B-95-002, April 1995, page 7).
(3) Flow monitoring is required to determine compliance with
equivalent mass limits: Accurate flow measurement is required to
determine compliance with a mass limit based on a concentration sample
result received from the laboratory. To such end, ``Relying on water
consumption records when determining compliance with mass-based limits
is not an acceptable practice'' (Industrial User Inspection and
Sampling Manual for POTW's (EPA 831-B-91-001, April 1994, page 88). A
permanent device that continuously records the flow allows the POTW to
ensure compliance with mass-based limits.
On the day(s) that the Control Authority conducts its mandatory
one-per-year monitoring of the Industrial User, the relevant actual
flow from the facility is required to assess whether the User is in
compliance with its mass limits. Requiring the use of an effluent flow
monitoring device, therefore, will also facilitate the accurate
assessment of compliance.
For compliance assessment purposes, EPA advises Control Authorities
to use the following approach:
For a daily maximum equivalent mass limit, EPA recommends
determining compliance by comparing the limit with the total mass of
the pollutant discharged over the day, calculated as the product of the
actual pollutant concentrations in the Industrial User's Discharge
sampled pursuant to 40 CFR 403.12(g) and the actual flow from the
Industrial User on the day the sample is taken based on measurements
from the continuous effluent flow monitoring device and an appropriate
conversion factor.
[[Page 60175]]
For an average monthly equivalent mass limit, EPA
recommends determining compliance by comparing the limit with the sum
of all daily mass Discharges measured during a calendar month divided
by the number of days measured during that month. The monthly limit
must still be met when only one discharge day is sampled.
This approach mirrors the approach of EPA's NPDES regulations based
on the definition of `daily discharge' in 40 CFR 122.2 defined as the
``discharge of a pollutant measured during a calendar day or any 24-
hour period that reasonably represents the calendar day for purposes of
sampling. For pollutants with limitations expressed in units of mass,
the `daily discharge' is calculated as the total mass of the pollutant
discharged over the day. For pollutants with limitations expressed in
other units of measurement, the `daily discharge' is calculated as the
average measurement of the pollutant over the day.''
How are limits established for new Industrial Users? Several POTW
commenters noted that the proposed rule was silent regarding whether
equivalent mass limits would be available to new Industrial Users. The
commenters observed that flow rate information is available for many
existing Users, but a baseline of information will not exist for new
dischargers. Today's final rule is silent regarding specific procedures
to follow in establishing limits for new Discharges. The rule does not
prohibit Control Authorities from calculating equivalent mass limits
for such Dischargers. However, EPA notes that in general it will not be
possible for new dischargers to satisfy the requirements in today's
rule unless some historical information about them is available.
First, recognizing that 40 CFR 403.6(c)(5)(i)(E) requires the
Industrial User to ``have consistently complied'' with Pretreatment
Standards'', before considering the use of equivalent mass limits, the
Control Authority will need to allow for a sufficient period of time to
pass in order to properly assess the User's compliance record.
Second, the new discharger will need some time to collect an
adequate amount of flow rate data from its continuous effluent flow
monitor to establish its actual average daily flow rate and, in turn,
to provide the Control Authority with sufficient information to
calculate the equivalent mass limit. Although 40 CFR 403.6(c)(5)(i)(C)
does not specify a minimum amount of time over which the long-term flow
rate is developed, the rule does specify that the flow rate must be
``representative of current operating conditions.'' Therefore, EPA
recommends that the Control Authority establish some minimum period of
time during which it will require the new discharger to have monitored
its flow before considering equivalent mass limits.
Third, new dischargers will be subject to Pretreatment Standards
for New Sources (PSNS), and as such will be expected to begin
discharging in conformance with Standards that represent the most
stringent controls attainable through the application of the best
available demonstrated control technology for pollutants that pass
through, interfere with, or are otherwise incompatible with the
operation of POTWs. 67 FR 64219 (October 17, 2002). EPA does not
anticipate that new dischargers will immediately need to reduce water
use. Presumably, these dischargers will have had the opportunity prior
to commencing their discharge to implement optimal water consumption
practices that meet their own production demands and cost efficiency
standards. Over time, and after considering such factors as the cost of
water and production needs, the facility may become interested in
pursuing further water conservation measures.
Recalculation of equivalent mass limits to adjust for production
changes during the term of the control mechanism: A few commenters were
concerned that once set, the equivalent mass limits would be locked in
place permanently and Industrial Users would be forced to comply with
one mass limit forever. They specified that this would potentially
restrict a facility from increasing production. The final rule requires
that the Industrial User notify the Control Authority whenever
production rates are expected to vary by more than 20 percent from
baseline production rate. Upon notification of a change in production
rate, the Control Authority would then reassess the appropriateness of
the equivalent mass limit. The Control Authority may determine that it
is necessary to change the equivalent mass limit to reflect flow
changes that may result from substantial changes in production. As such
production-based flow changes may occur, the approach EPA is adopting
for alternative mass limits is consistent with regulations at 40 CFR
403.6(e) that discuss alternative limits based on the combined
wastestream formula:
``The Industrial User shall comply with the alternative daily
maximum limit and monthly limits fixed by the Control Authority until
the Control Authority modifies the limits or approves an Industrial
User modification request. Modification is authorized whenever there is
a material or significant change in the values used in the calculation
to fix alternative limits for the regulated pollutant.''
Recalculation of equivalent mass limits in subsequent terms of the
Industrial User's control mechanism: A few commenters asked whether and
to what extent equivalent mass limits would need to be recalculated to
reflect changed circumstances at the facility prior to reissuance of
the control mechanism. When a Control Authority reissues an Industrial
User's control mechanism, the Control Authority may determine that
changed conditions suggest the need to revisit the equivalency of the
mass limits to the categorical Pretreatment Standards that were
included in the prior control mechanism. For example, EPA anticipates
that the Control Authority may choose not to recalculate equivalent
mass limits if effluent flow was reduced as the result solely of the
implementation of water conservation techniques and methods. See 40 CFR
403.6(c)(5)(iii)(C). However, the Control Authority may determine that,
in cases where a reduction in discharged effluent flow was accompanied
by a decrease in production, a reevaluation is warranted. This
reevaluation is consistent with EPA's long-standing approach under
existing section 403.6(c) with respect to equivalent mass or
concentration limits. See 53 FR 40563-67 (October 17, 1988).
Today's rule conditions an Industrial User's eligibility for the
establishment of equivalent mass limitations on the requirement that
the Industrial User is providing adequate treatment to achieve
compliance with the Pretreatment Standards and is not using dilution to
achieve compliance in lieu of treatment (in accordance with 40 CFR
403.6(d)). Industrial Users must continue to operate and maintain their
treatment systems as a requirement to continue to benefit from the
flexibility granted by equivalent mass limitations. This approach, in
addition, is consistent with 40 CFR 403.17, which prohibits the
intentional diversion of wastestreams, including categorical process
wastewater, from any portion of an Industrial User's treatment facility
unless such is ``unavoidable to prevent loss of life, personal injury,
or severe property damage [and] there were no feasible alternatives to
the bypass, such as the use of auxiliary treatment facilities,
retention of untreated wastes, or maintenance during normal periods of
equipment downtime,'' and proper notice has been submitted to the
Control Authority. Where a bypassing of treatment may still result in
discharged
[[Page 60176]]
effluent that complies with the applicable Pretreatment Standards or
Requirements, an Industrial User may only allow the bypass of its
treatment facility if it ``is for essential maintenance to assure
efficient operation.'' Therefore, Industrial Users, in order to
continue to qualify for equivalent mass limit conversions from
categorical Pretreatment Standards, must continue to effectively
operate and maintain their control and treatment technologies.
Is this provision consistent with the Clean Water Act? One
commenter objected to the proposed rule stating that EPA lacks the
authority to delegate its standard-setting authority to Control
Authorities, an authority which Congress gave to EPA alone under
Section 307 of the Clean Water Act. The commenter reasoned that the
provision would require that local authorities make ``significantly
more complicated decisions than mere arithmetic'', and that the
proposal would require them to become ``expert in both pollution
control and water conservation in each regulated industry.''
EPA is promulgating the changes to its Pretreatment Regulations in
part under section 307(b) of the Clean Water Act. Section 307(b)
clearly authorizes EPA from time to time to revise Pretreatment
Standards as ``control technology, processes, operating methods or
other alternatives change.'' Therefore, today's action is not in
violation of section 307(b) to the extent this provision authorizes
Control Authorities to establish equivalent mass limits for the
Pretreatment Standards for certain categories of industry subject to
concentration-based Standards. See list of affected industries in
Section III.J.3 above. As EPA has explained, the amendments to the
regulations will facilitate both User's compliance and POTW oversight
for industries engaging in water conservation, a practice EPA wants to
encourage.
EPA's decision to authorize the establishment of equivalent mass
limits for Industrial Users in limited circumstances is not
inconsistent with its decision in some circumstances to adopt
categorical Pretreatment Standards for specific industry categories
whose Standards are expressed in 40 CFR Subchapter N as concentration
limits. A number of reasons support this conclusion. First, EPA's
general preference in most cases is to express wherever possible
effluent limitations and Pretreatment Standards in terms of mass
limitations. EPA's decision to establish concentration-based
Pretreatment Standards, however, for certain industrial categories, is
the result, in part, of the wide variation in process water use within
a particular industrial category. These variations prevented EPA from
developing water allowances associated with particular achievable
treatment technologies. Due to the complexity and variation among
facilities covered by categorical Standards, EPA did not have enough
data, could not adequately measure production or could not find a
consistent production normalizing relationship in order to establish
mass limits on a nationwide basis. The effect of concentration limits
also is, over time, to reduce mass Discharges of pollutants as water
use is reduced in some circumstances. But concentration limits may in
some circumstances serve as a disincentive to water conservation.
Second, the establishment of an equivalent mass limit would not
result in any increase in the mass of pollutants discharged.
Eligibility for an equivalent limit is dependent on a number of
conditions including implementation of water conservation measures and
demonstration of a history of compliance with the concentration-based
Pretreatment Standard. As noted above, the implementation of water
conservation efforts may have already resulted in some reduction of
total mass Discharges. Further, because the mass limit is based on
water use during the period of compliance with the concentration limit,
in no event, could mass Discharges under the new equivalent limit
exceed these mass Discharge levels. Another condition for the
establishment of mass limits is that the facility report to the
Permitting Authority in the event of substantial changes in production
rates. This provides the Permitting Authority with an opportunity to
monitor the equivalent limits and determine whether some modification
to the limit may be required.
There will be no adverse consequences either to POTWs or to
receiving waters from the adoption of the provision authorizing the
expression of concentration-based Pretreatment Standards as mass
limits. Industrial Users must continue to comply with the General and
Specific Prohibition in 40 CFR 403.5(a) and (b). Thus, Discharges under
an equivalent limit may not result in Discharges that result in Pass
Through or Interference, create hazards to the POTW, or threaten the
health and safety of POTW workers. Section 403.5(c) would prohibit the
establishment of an equivalent mass limit if the equivalent limit would
result in a violation of these General and Specific Prohibitions.
Finally, EPA disagrees that the final rule would illegally transfer
the Agency's Standard-setting authority to Control Authorities. As
noted previously, a Control Authority is already required to translate
categorical Pretreatment Standards into Permit (or control mechanism)
effluent limits. EPA also disagrees with the commenter's observation
that this provision would be too complicated for Control Authorities to
use and oversee. EPA notes that the use of this provision is solely at
the discretion of the Control Authority. If a particular Control
Authority is concerned that it does not have the expertise to develop
and oversee equivalent mass limits, today's final rule does not in any
way allow the Industrial User to demand that the Control Authority
convert existing concentration-based Standards to equivalent mass
limits or require that the Control Authority implement mass-based
limits if requested by the Industrial User. As a matter of daily
implementation of approved Pretreatment Programs, states and POTW
Control Authorities conduct complex activities: Review Baseline
Monitoring Reports (40 CFR 403.12(b)) and other data to issue control
mechanisms to Industrial Users, calculate production-based standards
and alternative limits using the Combined wastestream formula when
necessary, and evaluate and assess the POTW plant processes to
determine technically based local limits that are protective of Pass
Through and Interference.
Public Review and prior Approval Authority approval: Many
commenters (21) did not support requiring public and/or Approval
Authority review of an Industrial User's proposed mass limit prior to
Control Authority approval. Most were concerned that such a requirement
would create additional administrative burden. EPA notes that this
provision is intended to allow the Permit limitation to be expressed in
an equivalent manner and is not anticipated to require a change in a
Control Authority's enabling legislation to issue and enforce control
mechanisms. Changes affecting individual Industrial Users are not
substantial modifications within the principles of 40 CFR 403.18(b)(6).
`` `Changes to the POTW's control mechanism' refers to a change in the
type of mechanism used (e.g., permit versus orders) and not to
change[s] in one facility's permit or to changes in the boilerplate or
other details of the permit.'' (62 FR 38408) However, the new
equivalent limit is subject to review
[[Page 60177]]
as part of routine Approval Authority oversight activities, such as a
Pretreatment Compliance Inspection or a Control Authority Audit, as are
other control mechanisms that implement categorical Standards, local
limits, and any other equivalent limits. Also, in accordance with
current regulations, Industrial User Permit files and information
necessary for determining Permit limitations and compliance, must be
publicly available. Therefore, EPA has decided not to require
additional review or approval mechanisms for implementation of
equivalent mass limits.
K. Oversight of Categorical Industrial Users (40 CFR 403.3(v)(2),
403.8(f)(2)(v), 403.12(e), (g), (i), (q)
Today's rule authorizes a Control Authority to reduce certain of
its oversight responsibilities and sampling and inspection requirements
for a newly established class of indirect discharger, the ``non-
significant categorical Industrial User'' (NSCIU). A NSCIU is a
discharger that discharges no more than 100 gallons per day of total
categorical wastewater to the POTW. Today's final rule also allows
Control Authorities to reduce the reporting requirements for certain
Categorical Industrial Users with a record of consistent compliance
with applicable Pretreatment Standards and Requirements in the
following circumstances. Reduced reporting may be approved when the
Industrial User's categorical wastewater flow does not exceed (1) the
smaller of 5,000 gallons per day or 0.01 percent of the POTW's design
dry weather hydraulic capacity; (2) 0.01 percent of the POTW's design
organic treatment capacity; and (3) 0.01 percent of the maximum
allowable headworks loading (MAHL). The POTW may also now be authorized
to reduce its own required annual inspections and monitoring of those
Categorical Industrial Users eligible for reduced reporting.
1. What are the existing rules?
The current regulations require certain minimum oversight of SIUs
by POTWs with Approved Pretreatment Programs (and States acting as
Pretreatment Control Authorities). The required minimum oversight
includes inspection and sampling of each SIU annually, reviewing the
need for a slug control plan, and issuing a Permit or equivalent
control mechanism with a duration not to exceed five years (40 CFR
403.8(f)(1)(iii) and (2)(v) and 403.10(f)(2)(i)). Industrial Users that
are not SIUs are not specifically subject to this oversight.
The definition of ``Significant Industrial User,'' previously at 40
CFR 403.3(t) (now found at 40 CFR 403.3(v)), includes two types of
facilities. The first includes all Industrial Users that are subject to
categorical Pretreatment Standards under 40 CFR 403.6 and 40 CFR
chapter I, subchapter N. The facilities subject to these Standards are
now described as Categorical Industrial Users (CIUs). There are no
current exceptions to the classification of all CIUs as SIUs. The
second category of facilities included in the definition of SIU are
certain facilities that are not CIUs, that Discharge 25,000 gallons per
day or more of process wastewater, facilities that contribute a process
wastestream constituting 5 percent or more of the POTW's capacity, and
any Industrial User that the Control Authority designates on the basis
that it has a reasonable potential for adversely affecting the POTW's
operation or for violating any Pretreatment Standard or requirement.
The Control Authority may exclude facilities meeting any of the second
category's criteria from the SIU definition based upon a finding that
it does not have a reasonable potential to adversely affect the
operation of the plant or violate any Pretreatment Standard or
requirement. However, a Control Authority may not similarly exclude
CIUs from the classification as an SIU.
The regulations require that all CIUs submit to their Control
Authority twice per year, unless required more frequently, a report
indicating the flow, nature, and concentration of pollutants in their
effluent which are limited by the applicable categorical Pretreatment
Standards (40 CFR 403.12(e)(1)). The report must be based on data
obtained through sampling and analysis of the effluent which is
representative of conditions occurring during the reporting period at a
frequency necessary to assess and assure compliance with applicable
Standards (40 CFR 403.12(g)). The regulations make clear that these are
minimum requirements and Control Authorities have the flexibility to
increase sampling and reporting requirements.
2. What changes did EPA propose?
EPA proposed to allow Control Authorities to exempt certain CIUs
from the definition of SIU. The proposal would have defined NSCIUs as
(1) facilities that never discharge untreated concentrated wastes that
are subject to the categorical Pretreatment Standard as identified in
the development document for the Standard, and never discharge more
than 100 gallons per day (gpd) of other process wastewater, and (2)
Industrial Users subject only to certification requirements after
having met baseline monitoring report requirements (e.g., pesticide
formulators and packagers). In addition to proposing to set the NSCIU
definitional threshold at 100 gpd, EPA also requested comment on
alternative criteria for determining ``non-significant'' status, such
as a percentage of a POTW's total flow discharged by a particular
Categorical Industrial User (64 FR 39574, July 22, 1999).
In conjunction with the establishment of a NSCIU category, EPA also
proposed that such Users not be subject to minimum inspection and
sampling requirements. Instead, the new requirements would have allowed
the Control Authority to establish the appropriate level of inspection
and sampling for these facilities. In addition, EPA would have
established new minimum reporting requirements for NSCIUs. EPA proposed
that at a minimum, a non-significant facility would be required to
annually report and certify its status as a non-significant facility,
and certify that it is in compliance with the applicable Pretreatment
Standards. A Control Authority could have required more frequent
sampling, inspections, or reporting as it finds necessary to ensure
compliance with the categorical Standards.
3. What changes is EPA finalizing in today's rule?
EPA is establishing an NSCIU category based on the 100 gpd
threshold. If a POTW chooses to treat a qualifying Categorical
Industrial User as an NSCIU, the oversight requirements for the NSCIU
(and POTW with respect to the NSCIU) will be significantly reduced. In
response to support among commenters for establishing alternative
criteria for oversight reduction, EPA is also creating a ``Middle
Tier'' category of Categorical Industrial Users which will still be
considered SIUs, but will be eligible for reductions in reporting and
Control Authority monitoring and inspections. These changes will be
discussed in detail below.
In the period before the Agency proposed regulatory changes to
streamline elements of its Pretreatment Regulations, EPA engaged in an
extensive effort to solicit the views of the interested public. In
1995, EPA's Office of Wastewater Management initiated an evaluation of
all of the General Pretreatment Regulations in 40 CFR Part 403 in order
to identify streamlining opportunities. Based on input from various
stakeholders, EPA developed issue papers that
[[Page 60178]]
summarized 11 areas in which the Pretreatment Regulations might be
streamlined. In May 1996, the issue papers were distributed to a broad
base of external stakeholders (States, cities, trade associations,
professional organizations, and environmental interest groups). As EPA
explained in the preamble to the proposal (64 FR 39573-74, July 22,
1999), in 1997, EPA solicited comment on revising the definition of
Significant Industrial User to reduce the reporting and permitting
requirements for certain non-significant facilities that are subject to
National categorical Pretreatment Standards. An earlier Water
Environment Federation (WEF)/Association of Metropolitan Sewerage
Agencies (AMSA) Pretreatment Streamlining Workshop had recommended
excluding facilities under 100 gpd from the definition of Significant
Industrial User, exempting from the definition of SIU any CIU that has
no reasonable potential to adversely affect the POTW's operation and
allowing Control Authorities more flexibility in the oversight of
facilities that would continue to be defined as SIUs. EPA's 1997 letter
sought comment on these recommendations and also on whether to allow
POTWs more flexibility in sampling SIUs that had been in consistent
compliance.
Most commenters on the earlier options supported allowing POTWs to
reduce oversight of non-significant CIUs, recommending NSCIU be defined
as below thresholds of from 100 gpd to 4,000 gpd. Some commenters
opposed any definition based on flow and preferred one based on total
mass or impact on the POTW. The record to the proposed rule included
all of the material submitted by commenters as well as the information
developed by the WEF/AMSA workshop.
While EPA based its 1999 proposed streamlining revision of the
definition of SIU on a 100 gpd threshold, the Agency did seek comments
on a number of alternative thresholds that reflected the earlier
suggestions from the public. As EPA stated:
``In today's proposal EPA is again requesting comment on
alternative criteria for determining non-significant status. Such
alternative criteria might include a higher flow cutoff or a numeric
cutoff based on some alternative criteria such as the estimated mass of
pollutant loadings or the percentage of a POTW's total flow discharged
by a particular CIU. Alternatively, the criteria might be narrative and
include a qualitative description of what constitutes a Significant
Industrial User. Commenters are encouraged to provide data on the
likely effects of alternate criteria, including the number of CIUs that
would be eligible for non-significant status and any adverse impacts on
POTWs or the environment that might result.'' 64 FR 39574, July 22,
1999.
Today's final rule provides reduced oversight responsibilities for
POTWs and reporting requirements for CIUs that represent an
accommodation between the alternatives considered by EPA in the
proposal (including the recommendations earlier submitted to the Agency
and discussed in detail in the proposal) and those suggested by
commenters in response to the proposal's solicitation of views. Thus,
the final rule combines EPA's proposed approach to non-significant CIUs
and reduced POTW oversight requirements, with the suggestions of many
commenters provided both in comments before and after proposal that EPA
consider thresholds based on POTW treatment capacity. Consequently, the
final rule adopts a fixed threshold requirement for NSCIUs, while
establishing threshold expressed in terms of percentage of POTW flows
for the ``Middle Tier'' CIUs. EPA views this approach as balancing the
need for required minimum oversight of larger dischargers with the
appropriate flexibility to POTWs to target oversight resources where
they will provide the greatest benefit in terms of reducing the risk to
the POTW and the environment.
For the reader's assistance, the following chart distinguishes
between NSCIUs, ``Middle Tier'' Significant Categorical Industrial
Users, and all other Significant Categorical Industrial Users:
----------------------------------------------------------------------------------------------------------------
Control mechanism Minimum CIU reporting Minimum POTW inspection/
required? requirements sampling requirements
----------------------------------------------------------------------------------------------------------------
NSCIUs............................... No*.................... Certification only (no Not required.
reporting), one time
per year.
``Middle Tier'' Significant CIU...... Yes.................... One time per year (if One time every other
representative of year.
Discharge conditions
during reporting
period).
All Other Significant CIUs........... Yes.................... Two times per year (at One time per year.
a minimum).
----------------------------------------------------------------------------------------------------------------
* If the Control Authority determines that an existing NSCIU no longer meets a required criterion for being
categorized as non-significant, such as the requirement to be in consistent compliance with Pretreatment
Standards and Requirements, the User becomes an SIU and must be issued a control mechanism.
EPA emphasizes that a Control Authority's decision to categorize
certain CIU facilities as ``non-significant'' or ``Middle Tier'' does
not in any way relieve the affected CIUs of the duty to comply with the
applicable categorical Pretreatment Standards. The provisions in this
final rule merely affect the reporting and inspection frequency imposed
on these Users.
a. Non-Significant CIU--Definition and Oversight Requirements
Today's final rule adopts the proposed definition of ``non-
significant categorical Industrial User'' (NSCIU) with minor
modifications and the proposal's approach of, if the Control Authority
chooses to do so, reducing required oversight for such Users. A few
modifications, which will be detailed further below, were made to the
proposed provisions in response to concerns raised by commenters. The
final rule retains the 100 gpd threshold for defining a NSCIU, as well
as the condition that the User never discharges ``untreated
concentrated wastes''. However as pointed out by one commenter, the
proposed rule would have applied the 100 gpd threshold to ``other
process wastewater'' rather than ``categorically regulated process
wastewater,'' which the commenter thought was a more appropriate basis
for the threshold. Because facilities are deemed to be CIUs by virtue
of their discharges of categorical process wastewater, rather than
process
[[Page 60179]]
wastewater generally, EPA agrees that it is appropriate to base the
threshold for non-significant CIUs on their discharge of categorically-
regulated process wastewater and has revised the definition of NSCIU
accordingly in the final rule. As was the case with the proposed rule,
in order to be considered an NSCIU, the User must fulfill its annual
certification requirement. The final rule also retains the Control
Authority's discretion to reduce the NSCIU's sampling and reporting
requirements as long as the User annually reports and certifies that it
still meets the definition of a NSCIU. In addition, because the User is
no longer an SIU, there is no requirement to control the User through a
permit or other control mechanism. POTWs will be required to provide a
list of the facilities that are being regulated as non-significant CIUs
in the POTWs annual Pretreatment report. After an initial list is
provided, deletions and additions should be keyed to the previously
submitted list.
Regardless of whether an Industrial User is determined to be a
NSCIU, it is still a categorical discharger and, as such, is still
required to comply with applicable categorical Pretreatment Standards
and related reporting and notice requirements in 40 CFR 403.12(b), (c),
(d), (f), (j), and (p). Control Authorities will still be required to
perform the same minimum oversight of a NSCIU that is required for
other facilities that are not SIUs, including notifying the CIU of its
status and requirements (403.8(f)(2)(iii)); receiving and reviewing
required reports (403.8(f)(2)(iv) and 403.12(b), (d), & (e)); random
sampling and inspection (403.8(f)(2)(v)); and investigating
noncompliance as necessary (403.8(f)(2)(vi)).
Why did EPA choose the 100 gpd threshold for NSCIUs? EPA recognizes
that any numeric flow cutoff will have both advantages and
disadvantages. The 100 gpd criterion was supported by commenters,
although many suggested alternative, higher volume cutoffs. The 100 gpd
flow cutoff is a conservative number. EPA estimates 15 percent of
current CIUs might be eligible for NSCIU status, based on an
extrapolation of data from a range of POTWs across the country.
Does EPA expect the annual NSCIU certification to be supported by
sampling data? Today's final rule does not require that each
certification statement be supported by sampling data. NSCIU
facilities, however, must have a reasonable basis for their compliance
certifications. When sampling is not performed, the non-significant CIU
must describe the basis for its compliance certification, such as, for
example, the absence of changes in processes that generate categorical
wastewaters or in raw materials used since the last sampling data was
analyzed.
Does EPA expect the Industrial User or Control Authority to perform
annual monitoring for NSCIUs? Today's final rule does not establish any
minimum sampling requirements for the Industrial User or Control
Authority. However, EPA recommends that sampling by the Industrial User
or Control Authority be performed from time to time to confirm
compliance with the categorical Standards.
Significant Changes to the Proposed Rule
EPA made the following significant changes to the provisions
affecting NSCIUs:
Discharge Volume Cutoff: The definition of NSCIU now specifies that
the 100 gpd cutoff is to be measured as the ``total categorical
wastewater (excluding sanitary, non-contact cooling and boiler blowdown
wastewater, unless specifically included in the Pretreatment
Standard)'' discharged. The term ``total'' clarifies that the volume
discharged is a maximum limit. Averaging the Discharge volume for
purposes of meeting the 100 gpd cutoff is not authorized (e.g.,
enabling a discharger to exceed the limit on some days as long as the
average is 100 gpd or less). EPA had requested comments in the proposal
on whether to allow the non-significant definition to include
facilities that discharge up to 500 gallons of process wastewater once-
per-week. EPA has concluded that requiring a definitive, total daily
cutoff is the easiest and most efficient way to oversee and implement
the NSCIU provisions.
EPA also notes that the definition of NSCIU specifically enables
Users to exclude non-categorical wastewater Discharges such as
sanitary, non-contact cooling and boiler blowdown wastewater in the
determination of the Discharge volume, unless specifically included in
the Pretreatment Standard. See 40 CFR 403.3(v)(2).
Additional Definitional Conditions: The final rule includes a few
modifications to the conditions that a User must meet to be considered
``non-significant''. These modifications include:
(1) Consistent Compliance with Pretreatment Standards: In order to
be considered an NSCIU, the User, prior to the Control Authority's
findings, must have consistently complied with all applicable
categorical Pretreatment Standards and Requirements. See 40 CFR
403.3(v)(2)(i) and discussion above regarding the consistent compliance
criteria for equivalent mass limits.
(2) Documentation and Certification of Compliance: The final rule
also requires that the NSCIU certify that its Discharge is in
compliance with all applicable categorical Pretreatment Standards and
requirements and annually submit the certification using the statement
in 40 CFR 403.12(q). See 40 CFR 403.3(v)(2)(ii).
Signatory Requirements: Today's final rule clarifies that the
annual certification statement must be signed in accordance with
requirements in 40 CFR 403.12(l). See 40 CFR 403.12(q).
Annual List of NSCIUs: The final rule makes explicit what was
discussed in the preamble to the proposed rule that a Control Authority
is required to include a list of Users considered to be NSCIUs in its
annual report to the Approval Authority. See 40 CFR 403.12(i).
Annual Evaluation of NSCIU Status: The proposed rule is modified to
require that a Control Authority evaluate, at least once per year,
whether an Industrial User previously determined to be an NSCIU still
meets the ``non-significant'' criteria in 40 CFR 403.3(v)(2). See 40
CFR 403.8(f)(2)(v). EPA anticipates that this evaluation will primarily
involve the Control Authority's verification that certification forms
have been submitted by the NSCIUs documenting continued eligibility for
NSCIU status and compliance with applicable Pretreatment Standards and
Requirements.
b. Middle Tier Categorical Industrial Users--Definition and Oversight
Requirements
EPA is today establishing a new category of Categorical Industrial
Users (CIUs), the ``Middle Tier'' CIUs. The term ``Middle Tier'' is
used because the applicable requirements for these CIUs are more
stringent than for NSCIUs, but authorize less reporting than for other
(larger) Significant CIUs. Note that both ``middle tier'' and other
CIUs (except NSCIUs) are still considered SIUs. Refer to above table
comparing applicable requirements of all types of CIUs in Section
III.K.3. An Industrial User may be considered a Middle Tier CIU if its
Discharge of categorical wastewater does not exceed any of the
following:
0.01 percent of the design dry weather hydraulic capacity
of the POTW, or 5,000 gpd, whichever is smaller, as measured by a
continuous effluent flow monitoring device unless
[[Page 60180]]
the Industrial User discharges in batches;
0.01 percent of the design dry weather organic treatment
capacity of the POTW; and
0.01 percent of the maximum allowable headworks loading
for any pollutant for which approved local limits were developed by a
POTW.
The Control Authority must also demonstrate that the CIU has not
been in significant noncompliance for any time in the past two years,
and that the CIU does not have daily flow rates, production levels, or
pollutant levels that vary so significantly that decreasing the
reporting requirement for this Industrial User would result in data
that are not representative of conditions occurring during the
reporting period. See 40 CFR 403.12(e)(3)(i-iii).
What are the reporting and monitoring requirements for Middle Tier
CIUs? Once eligible for Middle Tier CIU status, the Control Authority
may reduce the required periodic monitoring report for such Users from
a minimum of twice per year to a minimum of once per year. EPA notes
that any reduction in reporting must satisfy the requirements of 40 CFR
403.12(g)(3) which states that reports such as Industrial User periodic
monitoring reports must be based upon ``data obtained through
appropriate sampling and analysis performed during the period covered
by the report, which data are representative of conditions occurring
during the reporting period.'' (emphasis added) Therefore, it is
important that facilities authorized to use the new minimum sampling
frequency conduct their sampling on representative wastewater flows.
For example, while certain batch dischargers will have sufficiently
uniform processes, such that reduced sampling will be representative
and able to meet the Middle Tier criterion concerning variable flow
rates, production levels, or pollutant levels (40 CFR
403.12(e)(3)(iii)), other batch dischargers may vary their processes
seasonally or unpredictably, hence making it difficult for the Control
Authority to demonstrate both that a minimum of one sample per year
will be representative, and that the discharger complies with 40 CFR
403.12(e)(3)(iii). In addition, POTWs may also reduce their own
obligations to inspect and sample these Middle Tier CIUs from once per
year to once every two years. See 40 CFR 403.8(f)(2)(v)(C).
Why is EPA proposing the Middle Tier CIU category? In the preamble
to the proposed rule, EPA solicited comment on ``alternative criteria
for determining non-significant status * * * [such as] the percentage
of a POTW's total flow discharged by a particular CIU.'' See 64 FR
39574 (July 22, 1999). Eighteen (18) POTW commenters responded by
suggesting that EPA adopt the following three tier system. The first
tier would encompass CIUs discharging less than 100 gpd. Referred to as
``de minimis'' CIUs, this tier is similar to today's promulgation of
the NSCIU category. The second tier (referred to by the commenters as
``non-significant CIUs'') would have included CIUs that meet all of the
following conditions:
The CIU's discharge of categorical wastewater does not
exceed 0.01 percent of the design dry weather hydraulic capacity of the
receiving POTW, nor does it exceed 10,000 gpd;
The CIU's discharge of categorical wastewater does not
exceed 0.01 percent of the design dry weather organic treatment
capacity of the receiving POTW;
The CIU's discharge of categorical wastewater does not
exceed 0.01 percent of the maximum allowable headworks loading (MAHL)
for the receiving POTW of any pollutant detected at the POTW headworks
for which the CIU is subject to a categorical Pretreatment Standard;
and
The CIU has not been in significant noncompliance (SNC)
for the most recent four consecutive six-month periods.
Where a CIU met the criteria of the second tier, the Control
Authority would have the option of reducing the Industrial User's
monitoring to once per year (as compared to the current minimum of
twice per year) and the Control Authority's inspection and monitoring
requirements to once every two years (as compared to the current
minimum requirement of once every year). It is important to note that
the commenters' second tier would not have enabled the Control
Authority to reduce oversight requirements to the degree that the first
tier would. The third tier of the commenters' system would have
included all other CIUs subject to the full array of oversight
requirements.
In August 2000, EPA approved a project under the Agency's Project
XL program for the Metropolitan Water Reclamation District of Greater
Chicago (MWRDGC) to pilot the use of the ``non-significant CIU''
criteria supported by the POTW commenters on the proposed rule. In
exchange for agreeing to a variety of measures to improve the level of
environmental performance by the POTW, MWRDGC was given authority to
apply the ``non-significant CIU'' criteria (similar to the criteria
referred to in this final rule as the ``Middle Tier'' CIU criteria) to
its CIUs. For more information, refer to EPA's website for the pilot
project http://www.epa.gov/projectxl/mwrd/page1.htm. EPA notes that
this project is no longer active due to intergovernmental issues.
EPA has concluded that the basic approach suggested by the
commenters in their second tier (referred to now as ``Middle Tier''
CIUs), and approved for use by the Metropolitan Water Reclamation
District of Greater Chicago's Project XL initiative, has merit in its
focus on reducing reporting, inspection, and monitoring requirements
for CIUs contributing a very small fraction of the POTW's design flow
and pollutant loading. However, while adopting the basic criteria for
the second tier (now referred to as the ``Middle Tier''), EPA has
decided to adopt a ceiling of 5,000 gpd as compared to the recommended
10,000 gpd. EPA has concluded that the 5,000 gpd ceiling will provide
significant streamlining while providing additional assurance that
larger dischargers which may have significant potential to cause Pass
Through or Interference will continue to receive full SIU oversight.
In addition, EPA has added additional safeguards designed to ensure
the selection of appropriate CIUs and the proper documentation of data
supporting the inclusion of individual CIUs in the Middle Tier. For
instance, new 40 CFR 403.12(e)(3)(iii) binds the Control Authority's
discretion by requiring eligible CIUs to ``not have daily flow rates,
production levels, or pollutant levels that vary so significantly that
decreasing the reporting requirement for this Industrial User would
result in data that are not representative of conditions occurring
during the reporting period pursuant to paragraph (g)(3) of this
section.'' In addition, EPA specifies that any documentation supporting
the Control Authority's finding that a specific CIU fits the Middle
Tier criteria must be retained for a period of three years after the
expiration of the term of the affected CIU's control mechanism. See 40
CFR 403.12(e)(3)(v).
How should the Control Authority develop its site-specific Middle
Tier criteria? The criteria in 40 CFR 403.12(e)(3)(i) must first be
translated into thresholds that are meaningful for the specific POTW.
Each site-specific threshold will then be used to determine whether
individual CIUs qualify for Middle Tier status. To complete the
necessary calculations, the Control Authority will need to have the
following information:
The POTW's design dry weather hydraulic treatment
capacity: These
[[Page 60181]]
values, typically expressed in units of millions of gallons per day,
are generally found in the POTW's design and specifications documents,
and in many cases are identified in its NPDES Permit or Fact Sheet.
The POTW's design dry weather organic treatment capacity:
These values, typically expressed as pounds per day, are also generally
found in the POTW's design and specifications documents, and Operations
and Maintenance manuals. Biochemical Oxygen Demand (BOD) measurements
are used as a measure of the organic strength of wastes in wastewater.
The Control Authority must use the design organic treatment capacity
value that has been documented in their records for use in translating
to useable thresholds for the Middle Tier CIUs.
The MAHL (Maximum Allowable Headworks Loading) for any
pollutant for which approved local limits were developed by the POTW:
The MAHL for each pollutant will be found in the POTW's approved
technically based local limits supporting document and may also be
identified in the POTW's local sewer use ordinance. EPA notes that a
MAHL for a pollutant is not the same thing as the local limit for that
pollutant. An MAHL is an estimate of the upper limit of pollutant
loading to a POTW, intended to prevent Pass Through or Interference.
MAHLs are the building blocks for local limits, as distinct from a
local limit which is an allocation of the industrial portion of the
headworks loading (MAHL) specific to one or more Industrial Users.
Therefore, the Middle Tier criterion relating to MAHL is calculated as
a percentage of the MAHL, not a percentage of a local limit. For
additional information regarding the development of MAHLs and local
limits, refer to Local Limits Development Guidance (EPA 833-R-04-002A,
July 2004).
Once the Control Authority has located this information, it will
then need to multiply each value by 0.01% to translate those numbers
into the criteria to be used to determine whether individual CIUs are
eligible for Middle Tier status. Where the design hydraulic treatment
capacity is concerned, if the product of 0.01 percent and the hydraulic
capacity exceeds 5,000 gpd, then the regulations require the Control
Authority to use the smaller number, or in this case 5,000 gpd.
In addition, EPA recommends that the Control Authority list out the
applicable Middle Tier eligibility criteria in the Industrial User's
control mechanism. This will ensure that the CIU is specifically aware
that its Middle Tier status only applies as long as it meets the
eligibility criteria.
How will Control Authorities determine if a specific Industrial
User is eligible for Middle Tier status? EPA recommends that the
initial determination of whether or not an Industrial User is eligible
be made by comparing the User's actual Discharge (in units of flow or
mass loading depending on the specific criterion) for the previous two
years to each of the criterion to verify that the industry meets all of
the criteria on a consistent basis. EPA notes that CIUs are required to
establish eligibility by measuring their flow through the use of a
continuous effluent flow monitor. See 40 CFR 403.12(e)(3)(i)(A).
However, recognizing that continuous flow monitors are not appropriate
for use in batch Discharges, the final rule provides an exception for
those CIUs that discharge by batch. In such circumstances, EPA
recommends that the batch discharger provide some other similarly
accurate measure of flow, such as by providing a reasonable estimate of
actual volume discharged from process wastewater containers.
What documentation is required to designate Middle Tier CIUs? The
Control Authority is required to document the specific criteria used in
determining whether specific Industrial Users are considered Middle
Tier CIUs. This documentation should show: (1) The translation of the
40 CFR 403.12(e)(3)(i)(A)-(C) criteria into values that are specific to
each Control Authority, and (2) the basis for including specific CIUs
in the Middle Tier category. This information must be retained for a
period of three years after the expiration of the term of the control
mechanism. See 40 CFR 403.12(e)(3)(iv).
Industrial Users will also need to retain sufficient information to
verify that they continue to be eligible for Middle Tier CIU status,
such as records showing their daily flows of categorical wastewater.
The Control Authority (and Approval Authority in some instances) will
use this information to validate the inclusion of Industrial Users in
the Middle Tier CIU category. Industrial Users will find it necessary
to have records of daily flows to be able to provide notification to
the Control Authority if they exceed the flow criteria in 40 CFR
403.12(e)(3)(i)(A).
How often would an individual POTW's Middle Tier criteria be
expected to change? It is not anticipated that the values upon which an
individual POTW assigns Middle Tier status would change during the term
of the POTW's NPDES control mechanism. Some scenarios which may
necessitate a change to the POTW's Middle Tier criteria are:
Operations and maintenance work to correct excessive
inflow and infiltration in the collection system: Where such changes
affect actual wastewater flow, the POTW's local limits may need to be
adjusted to account for this capacity change, thereby affecting the
calculation of the plant's maximum allowable headworks loading (MAHL).
Such adjustments to the MAHL may necessitate a recalculation of the
POTW's Middle Tier criteria, which in turn may affect which CIUs are
eligible for inclusion.
Collection System Expansions or Extensions/Treatment Plant
Upgrades: Such modifications typically are conducted over a period of
time and the effect on the treatment capability or efficiency of the
POTW may not be instantaneously realized. When such improvements are
completed, the Middle Tier criteria may need to be modified accordingly
to reflect the new hydraulic and organic treatment capacities, as well
as the MAHL. EPA notes that these situations are each identified in the
Agency's local limits guidance as reasons to re-evaluate a POTW's local
limits. See Chapter 7 of Local Limits Development Guidance (EPA 833-R-
04-002A, July 2004). EPA's guidance (page 7-5) indicates ``usually, a
POTW will undertake a detailed reevaluation of its local limits in
response to one of more significant changes at the treatment works or
in the Discharges it receives. Recalculating existing MAHLs or
determining MAHLs for new [pollutants of concern] is generally an
appropriate response to changes in: Removal efficiencies; Total POTW or
[Industrial User] loading; Limiting criteria (NPDES Permits, water
quality standards, sludge criteria); Sludge characteristics or method
of disposal (e.g., percent solids, disposal site life); Background
concentrations of pollutants in receiving water.'' In addition,
treatment efficiencies are verified annually, when the POTW submits its
annual report, to the Approval Authority, which summarizes the changes
within the Control Authority's Pretreatment program over the past year.
Local Limits Reevaluations: Formal reevaluations of a
POTW's technically based local limits must be conducted with each
renewal of the POTW's NPDES Permit. See 40 CFR 122.21(j)(2)(ii) EPA
recommends, therefore, that recalculation of the Middles Tier criteria
be performed and coordinated for submittal to the Approval Authority at
the same time as the periodic local limits reevaluation,
[[Page 60182]]
easing the burden of separate reviews for both the Approval and Control
Authorities.
EPA notes that in situations where the Middle Tier criteria are
modified, the Control Authority must submit the revised criteria to the
Approval Authority as a modification to the POTW Pretreatment Program.
Depending on the specific situation, Approval Authorities will
determine whether a modification is a substantial or non-substantial
modification of the approved Pretreatment Program. In either case, at a
minimum, such modifications must be submitted to the Approval Authority
by the Control Authority at least 45 days prior to implementation
pursuant to 40 CFR 403.18.
What criteria should a Control Authority apply if the Approved POTW
Pretreatment Program involves more than one treatment plant? Similar to
guidance provided in page 9-2 of the Local Limits Development Guidance
(EPA 833-R-04-002A, July 2004), the Control Authority has options for
how it applies or allocates its MAHLs. The Control Authority could
decide to provide local limits to the Industrial Users based on the
evaluation for the individual treatment works which serve those Users.
Alternatively, the Control Authority could select the lowest (most
stringent) local limit for each pollutant across all of the treatment
plants. When establishing the Middle Tier criteria, the Control
Authority can either apply the MAHL on a per POTW Treatment plant basis
to only those IUs serviced by the individual treatment works, or it
could identify and use the most stringent MAHL across all of its
treatment plants.
What happens if the CIU, after becoming eligible for Middle Tier
status, exceeds the Middle Tier criteria? As stated previously, the
CIU's eligibility for Middle Tier status depends on its ability to meet
all of the criteria in 40 CFR 403.12(e)(3). If for any reason, a Middle
Tier CIU finds that it no longer meets the conditions in 40 CFR
403.12(e)(3)(i), (ii), or (iii), the CIU must notify the Control
Authority and must immediately begin complying with the full SIU
reporting requirements in 40 CFR 403.12(e)(1). For example, if a CIU
exceeds its eligibility criterion for flow on any day as determined by
its continuous effluent flow monitor, that User no longer meets the
conditions for Middle Tier status, and must immediately notify the
Control Authority and begin complying with the non-reduced frequency of
SIU reporting requirements. Although not specified in the Middle Tier
provisions, EPA recommends that Control Authorities consider whether
they should preclude those CIUs which lose their Middle Tier status
from regaining that status for at least the remainder of the term of
the control mechanism. Where the Industrial User can demonstrate its
ability to once again meet the eligibility conditions after sufficient
passage of time (e.g., the remainder of the term of the control
mechanism), the Control Authority may then consider renewing the User's
status as a Middle Tier CIU.
What type of oversight will EPA provide over the implementation of
the Middle Tier CIU provisions? As with any new regulatory provision,
given the number of conditions involved in the Middle Tier CIU
category, EPA expects that the Agency will need to ensure that these
provisions are implemented as intended. EPA will pay close attention to
the Control Authority's adherence to these eligibility conditions and
the overall implementation of these provisions. POTW Pretreatment
Program audits and Pretreatment Compliance Inspections (PCIs) will
provide EPA, as well as state Approval Authorities, with important
opportunities to assess how the Control Authorities' are implementing
this measure. Like any implementation issue in the Pretreatment
Program, if a Control Authority has incorrectly applied the eligibility
conditions such that one or several Industrial Users are erroneously
considered Middle Tier CIUs, EPA will recommend in its audit or PCI
findings that the Middle Tier status be revoked for those Users.
4. Summary of Major Comments and EPA Response
Should EPA establish an NSCIU category? The overwhelming majority
of commenters supported the proposed establishment of the NSCIU
category, although many differed on what flow threshold would be the
most appropriate for identifying such Industrial Users. One commenter
expressed strong opposition to the creating the NSCIU category. This
commenter indicated that EPA had not shown a basis in the record for
this regulatory change, any evidence that the facilities and Control
Authorities to be given streamlined oversight actually comply with
applicable requirements, any evidence that Control Authorities will be
able to detect noncompliance in a timely fashion without these
oversight requirements, and any evidence that the change adequately
protects POTWs and the environment. As outlined above, EPA is today
finalizing provisions which enable Control Authorities to designate
certain Categorical Industrial Users as NSCIUs, at their discretion, if
the facilities meet all of the eligibility conditions, including
discharging fewer than 100 gpd of total categorical wastewater.
EPA disagrees with the commenter's rationale for opposing the
establishment of the NSCIU category and the opportunity to reduce
oversight for such Users. First, there is a basis in the record for
this regulatory change. In the preamble to the proposed rule, EPA
discussed the concerns of Control Authorities which supported the need
for the proposal. Such concerns included the widely held perception
that SIU oversight requirements are rigid, ``especially with respect to
smaller facilities that are subject to categorical Pretreatment
Standards and facilities that they believe have no potential to cause
Pass Through or Interference.'' See 64 FR 39572 (July 22, 1999). EPA
sought comment on the concept of allowing the Control Authority to
identify Users as NSCIUs where they discharged fewer than 100 gpd, and
to reduce the oversight required for such non-significant facilities.
EPA provided an estimate of the percentage of CIUs that might be
affected (1-2 percent), and has since projected that this number may be
as high as 15 percent. Because these facilities will need to be good
actors to be eligible (e.g., the regulations require a record of
consistent compliance and annual certification of compliance with
applicable Standards and Requirements), and because they individually
contribute an insignificant amount of flow to the POTW, the Agency has
concluded that it has an adequate basis for allowing Control
Authorities to reduce oversight requirements for such facilities.
Second, although EPA agrees that an Industrial User's compliance is
a critical factor in whether the Control Authority may treat the User
as an NSCIU, the Agency has concluded that it is unnecessary to
evaluate overall compliance among these small CIUs prior to finalizing
these provisions. What EPA is establishing in the final rule is the
discretionary ability for Control Authorities to reduce oversight for
select small Users. EPA is not requiring that this optional authority
be used for any specific Industrial Users or that it be used in all
cases. In fact, EPA would expect that the Control Authority will be
reluctant to designate any particular CIU as an NSCIU if it has any
concerns about the potential for any particular CIU to affect adversely
the POTW or receiving water. Thus, the final rule requires, as a
condition of eligibility for designation, that an Industrial User has a
record of consistent compliance with applicable
[[Page 60183]]
Pretreatment Standards and Requirements prior to being defined as an
NSCIU. See 40 CFR 403.3(v)(2)(i). After becoming an NSCIU, the User is
then required to annually certify that it meets the definition of
``non-Significant Categorical Industrial User'' and that it has
complied with all applicable Pretreatment Standards and Requirements.
See 40 CFR 403.12(q). With these safeguards in place, EPA concludes
that the final rule addresses the commenter's concern about the lack of
evidence on overall compliance.
Third, EPA does not agree with the commenter's argument that
Control Authorities will not have sufficient information to detect
noncompliance in a timely fashion. It should be noted that the NSCIU
provisions do not compel the Control Authority to reduce or eliminate
applicable reporting, monitoring, and inspection requirements for every
CIU with non-significant status. In fact, EPA expects that the Control
Authority should assess each NSCIU to determine the extent to which
oversight should be reduced. In addition, the combination of the NSCIU
provisions and other existing regulatory requirements provide
mechanisms for timely detection of noncompliance. Each Industrial User
qualifying for NSCIU status must first demonstrate that it has
consistently complied with applicable Pretreatment Standards and
Requirements. After becoming an NSCIU, the User must annually certify
that it still meets the requirements for non-significant status, and
that it has complied with applicable Standards and Requirements.
Lastly, as with all Industrial Users, the NSCIU is affected by the
notification requirement in 40 CFR 403.12(j), which requires facilities
to ``promptly notify the Control Authority (and the POTW if the POTW is
not the Control Authority) in advance of any substantial change in the
volume or character of pollutants in their Discharge * * *.'' And, each
NSCIU must also comply with 40 CFR 403.12(f), which provides that ``all
categorical * * * Industrial Users shall notify the POTW immediately of
all Discharges that could cause problems to the POTW * * *.''
Fourth, EPA has concluded that the NSCIU provisions will not affect
protection of the POTW and the environment, contrary to the commenter's
position. While the discretionary decision to treat an Industrial User
as an NSCIU does relieve the Control Authority of certain oversight
requirements with respect to the affected Industrial User, the
facility's requirement to meet all applicable categorical Pretreatment
Standards and its status as a CIU are not changed. Just because the CIU
has been categorized as an NSCIU does not relieve it of its obligation
to comply with categorical Pretreatment Standards and other applicable
Pretreatment requirements, such as the notification provisions of 40
CFR 403.12(f) and (j). Also, the NSCIU is required to annually certify
that it has met applicable Pretreatment Standards and Requirements.
Therefore, with these safeguards in place, EPA finds that the NSCIU
provisions are fully protective of the POTW and the environment.
How should the 100 gpd and Middle Tier criteria be applied to CIUs
that commingle categorical and non-categorical wastestreams? Several
commenters asserted that EPA should change the terms of the NSCIU
language to indicate that only categorical wastestreams should be
included when assessing whether an individual CIU meets the threshold
for being designated as non-significant. EPA agrees, and has changed
the definition of NSCIU to indicate that the CIU never discharges more
than 100 gpd of ``total categorical wastewater.'' EPA finds it
important to note that in many instances, all or most process
wastewater discharged by NSCIUs will be categorical wastewater. And
where facilities co-mingle different types of categorical wastewater,
the threshold for determining whether or not a facility may be
considered a non-significant CIU would be based on the total amount of
categorical wastewater discharged. That is, the breakdown of
categorical wastewater flows by industrial category would not affect
the threshold determination. However, EPA recognizes that there may be
cases where facilities discharge both categorical wastewater and non-
categorical process wastewater. This would occur where some of a
facility's process wastewater Discharges were regulated under a
National categorical Standard, while others were not, either because
they were generated by operations from a different (non-regulated)
industrial category, or because they were specifically excluded from
coverage at the time the categorical Standards were promulgated. In
cases where categorical and non-categorical process wastewater flow
volumes cannot be reliably distinguished, the threshold determination
should be based on total process wastewater flow volume.
Middle Tier CIUs (discussed further below) also apply flow
thresholds that are measured against an Industrial User's ``total
categorical wastewater'' flow. EPA notes that the same approach for co-
mingled wastewater that applies to NSCIUs also applies to the Middle
Tier CIUs.
Do POTW's need to conduct annual inspections or sampling of NSCIUs?
Several commenters recommended that EPA specifically reduce oversight
of NSCIUs by limiting Control Authority inspections and/or sampling.
The recommended frequencies ranged between every other year to as often
as once-per-year. Other commenters supported completely eliminating
inspection and sampling requirements. With the adoption of today's
rule, EPA is not establishing any minimum inspection and sampling
requirements for NSCIUs. Today's rule instead requires the Control
Authority to perform an evaluation, at least once per year, on whether
the NSCIU meets the criteria of 40 CFR 403.3(v)(2). As part of the
annual evaluation, EPA recommends that the Control Authority conduct an
on-site inspection of the facility in order to maintain awareness of
the facility's process and to determine to the extent possible whether
the discharger is complying with its Pretreatment Program requirements.
As part of the evaluation, the Control Authority should verify the
NSCIU's certification under 40 CFR 403.12(q) and review any other
documentation provided by the facility. The level of effort devoted to
an evaluation can be tailored to the facility. EPA again notes that it
anticipates that this evaluation will primarily involve the Control
Authority's verification that certification forms have been submitted
by all NSCIUs documenting eligibility for NSCIU status and compliance
with applicable Pretreatment Standards and Requirements. The Control
Authority is not required to control the NSCIU through a Permit or
other control mechanism. However, the Control Authority could, on a
case by case basis, determine whether individual control mechanisms are
necessary for NSCIUs and develop adequate sampling and inspection
frequencies.
One commenter suggested that some type of annual correspondence, at
minimum, be incorporated into the Pretreatment Regulations to remind
the NSCIU and Control Authority of their responsibilities and
obligations under the Pretreatment Program. EPA agrees with the comment
and has modified the rule language to include requirements that NSCIUs
annually certify they are in compliance with all applicable
Pretreatment Standards using the certification statement at 40 CFR
403.12(q). Further, the Control Authority must perform an NSCIU
evaluation, at least once per year, and provide an updated list of
NSCIUs to the
[[Page 60184]]
Approval Authority as part of its annual POTW Pretreatment report.
Can EPA provide some clarification of the NSCIU definition?
Commenters expressed the need for clarification in the proposed
definition of NSCIU. Several commenters were concerned that the
language, as proposed, would allow Control Authorities to exempt a
greater number of Industrial Users from Pretreatment Program
requirements than what was intended under the proposal. These
commenters interpreted the proposed definition to potentially allow an
unlimited amount of treated concentrated wastewater (the proposal
prohibited ``untreated concentrated wastes'') to be discharged to the
POTW while still falling under the NSCIU threshold since it only
required that Discharges of ``other process wastewater'' not be more
than 100 gpd. Many commenters stated that a CIU could be deemed ``non-
significant'', under the proposed definition, if it could merely
demonstrate that it did not discharge ``untreated concentrated wastes''
subject to the categorical Pretreatment Standards and not more than 100
gpd of other process wastewater. Upon further consideration, EPA agrees
that the proposed criteria for becoming a NSCIU was open to more than
one interpretation and has revised the language in the final rule to
further clarify the definition. Therefore, with the adoption of today's
rule, EPA is clarifying the NSCIU definition to include ``100 gpd of
total categorical wastewater'' in order to emphasize the fact that it
is the ``total'' Discharge of 100 gpd or less of categorical process
wastewater which qualifies a User for NSCIU status (as long as the
other required conditions of 40 CFR 403.3(v)(2) are met), not some
smaller subset of treated concentrated wastewaters.
Why didn't EPA promulgate a higher flow threshold? Many commenters
supported the concept of creating a flow cut-off threshold, but
suggested that the 100 gpd ceiling was too low to provide any
significant relief in burden. Commenters suggested alternative flow
thresholds ranging from 300 gpd to 25,000 gpd, and also suggested that
facilities that have little or no potential to impact the operation of
the receiving POTW be included in this classification. Other POTW
commenters supported the Association of Metropolitan Sewerage Agencies
(AMSA, now renamed as the National Association of Clean Water Agencies)
proposal of an alternative cutoff which would be specific to the POTW.
EPA's intent in establishing the NSCIU category was to reduce the
burden on Control Authorities of regulating Industrial Users which
could truly be considered to present minimal impact to the treatment
plant and the Pretreatment Program in general. It was not EPA's
intention to remove a large segment of contributing CIUs from
Pretreatment Program oversight, and the Agency has a limited amount of
flow or other Discharge data from which to establish with any certainty
the impact on the Pretreatment Program of allowing the NSCIU category
to include a greater number of Users. EPA generally views the 100 gpd
threshold as corresponding to the de minimis dischargers.
In the proposal, EPA estimated that about 2 percent of the current
CIUs might be eligible for non-significant status. A recent evaluation
of 75 POTW Pretreatment Programs indicated that an average of 15
percent of all CIUs in these municipalities would meet the 100 gpd
threshold for NSCIU. EPA anticipates that the 100 gpd threshold will
result in NSCIU eligibility for higher numbers of CIUs in select cities
or regions.
One commenter was opposed to any higher flow or narrative threshold
for batch dischargers based on the fact that the proposal would have
eliminated minimal, but critical, requirements for annual inspection
and sampling, biennial slug control plan reviews, and permit reviews
once every 5 years, while ignoring the compliance history and the
discharger's potential to harm the POTW. EPA wishes to clarify that a
Control Authority will have discretion to designate certain CIUs as
NSCIUs if they meet specific criteria, and to exercise that discretion
in the case of any individual CIUs, but will not be obligated to
exercise this discretion in any particular case. Although certain
facilities may be considered NSCIUs, EPA does not specify what types of
reporting requirements are necessary. Although the Control Authority
may choose a lesser amount of currently required sampling and
reporting, the final rule does not mandate this decision. [As stated
above, EPA does require that the Control Authority conduct at a minimum
an annual evaluation.] EPA expects that this evaluation will primarily
involve the Control Authority's verification that certification forms
have been submitted by all NSCIUs documenting eligibility and
compliance with Pretreatment Standards and Requirements. EPA has also
created conditions that address the commenter's concern about facility
compliance. For example, to be eligible for NSCIU status, a facility
must have consistently complied with all applicable categorical
Pretreatment Standards and Requirements prior to the Control
Authority's findings. Further, the NSCIU must certify on an annual
basis (per the certification requirement in 40 CFR 403.12(q)) that its
Discharge is in compliance with all applicable categorical Standards
and Requirements.
May averaging be allowed in the NSCIU determination? EPA solicited
comment on whether averaging should be allowed in determining whether a
CIU fell under the 100 gpd threshold. Several commenters indicated that
they concurred with the 100 gpd flow threshold, but suggested that the
Agency include facilities that discharge up to 500 gallons per week.
Today's final rule does not authorize the use of averaging to meet the
100 gpd threshold. EPA is concerned that allowing such an approach
could be difficult to oversee from the Control Authority's perspective,
and could be burdensome to implement from the CIU's perspective. A
greater degree of precision and a higher frequency of reporting would
be needed to support a threshold that allows for an averaging of flow
values. For instance, the CIU would need to record precise flow
measurements every day to be able to determine whether its average
discharge volume falls below the threshold, requiring the Industrial
User to establish a more sophisticated approach for tracking the
facility's Discharge. Also, the use of an averaging approach will make
it harder for the Control Authority to be able to determine compliance
on the days it conducts its inspections. Because the 100 gpd approach
is applied as a threshold which cannot be exceeded, it can be
implemented in a more straightforward manner which is expected to
minimize the opportunity for misinterpretation. If a facility is a
batch discharger and currently discharges more than 100 gpd, EPA
recommends that the Industrial User install some form of flow
restrictor that will ensure that its discharge of categorical process
wastewater will never exceed 100 gallons on any single day.
Does a facility have to treat its wastewater to be considered non-
significant? Several commenters expressed concern that it appeared from
the proposal that a facility would need to install and provide
treatment for all its wastewater prior to discharge. EPA clarifies that
a facility does not need to have treatment in place in order to be
considered non-significant, consistent with the fact that the
categorical Standards do not dictate what types of treatment
technologies the CIU must use so long as the facility's Discharge, with
[[Page 60185]]
or without treatment, remains in compliance with the categorical
Standard. The Standards only provide the limits with which any
Industrial User's Discharge must comply. On the other hand, the final
NSCIU criteria require that the facility not discharge any ``untreated
concentrated wastewater'' since it may be assumed that untreated
concentrated wastewater (i.e., plating baths and rinses, solvents,
sludges, etc.) would not be in compliance with the categorical
Standard. Regardless of whether treatment exists at the CIU, the final
rule requires that the facility must have consistently complied with
all applicable categorical Pretreatment Standards and Requirements in
order to be considered an NSCIU. Furthermore, the facility must, at
minimum, annually certify that its Discharge is in compliance with all
applicable categorical Pretreatment Standards and requirements.
EPA should adopt a third tier of CIUs which provide further
oversight flexibility based on the impact of the Industrial User on the
specific POTW: As stated previously, eighteen (18) POTW commenters
recommended that EPA adopt the following category of CIU in addition to
the NSCIU and SIU categories:
The CIU's categorical wastewater Discharge does not exceed
0.01 percent of the design dry weather hydraulic capacity of the
receiving POTW, nor does it exceed 10,000 gpd;
The CIU's categorical wastewater Discharge does not exceed
0.01 percent of the design dry weather organic treatment capacity of
the receiving POTW;
The CIU's categorical wastewater Discharge does not exceed
0.01 percent of the maximum allowable headworks loading (MAHL) for the
receiving POTW of any pollutant detected at the POTW headworks for
which the CIU is subject to a categorical Pretreatment Standard; and
The CIU has not been in significant noncompliance (SNC)
for the most recent four consecutive six-month periods.
As explained in Section III.K.3.b, EPA has included this basic
approach in the final rule, with the exception of changing the volume
ceiling from 10,000 gpd to 5,000 gpd.
IV. Description of Areas Where EPA Is Not Taking Action on the Proposed
Rule
A. Specific Prohibition Regarding pH (40 CFR 403.5(b)(2))
This section discusses EPA's proposal to amend 40 CFR 403.5(b)(2)
to authorize the introduction of Discharges with pH less than 5.0 in
certain circumstances. EPA has decided not to adopt the proposed
changes to 40 CFR 403.5(b). EPA concluded that inadequate scientific
information was available to determine the effects of short-term, low
pH Discharges on the integrity of the POTW collection systems to
support a change to the current prohibition on the introduction of
Discharges with a pH lower than 5.0 into POTWs.
1. What is the existing rule?
Acidic wastes can corrode sewer pipes with a resulting release of
pollutants into the environment. To address this concern, the current
regulations include a limit on the acidity of wastes, a minimum pH
limit, in the specific prohibitions at 40 CFR 403.5(b). This
prohibition applies to all nondomestic dischargers to POTWs. Section
403.5(b)(2) prohibits the discharge of ``pollutants which will cause
corrosive structural damage to the POTW, but in no case discharges with
pH lower than 5.0, unless the works is specifically designed to
accommodate such Discharges.''
2. What changes did EPA propose?
EPA proposed to allow POTWs with Approved Pretreatment Programs to
authorize temporary excursions below pH 5.0 provided that the POTW
maintain a written technical evaluation supporting the finding that the
alternative pH requirements did not have the potential to cause
corrosive structural damage to the POTW or otherwise violate 40 CFR
403.5(a) and (b). This change would have allowed POTWs to accept
Discharges below pH 5.0 from Industrial Users that continuously
monitored the pH of their Discharges, or to accept such temporary
excursions by a limited group of Industrial Users. EPA proposed that
any alternative pH requirement developed by a POTW would be enforceable
as a Pretreatment Standard under the Clean Water Act. (The general
narrative prohibition against pollutants that cause corrosive
structural damage at 40 CFR 403.5(b)(2) would still have applied.)
3. What action is EPA taking today?
EPA has decided not to adopt any changes to 40 CFR 403.5(b)(2). The
existing specific prohibition against Discharges with pH lower than 5.0
will remain in effect.
In arriving at this decision, EPA has found that most of the
current literature on the relationship between low pH and corrosion of
sewer pipes is general and qualitative. References rarely address
short-term Discharges of low pH and tend to only discuss effects of
continuous exposure. Furthermore, predicting the effects of corrosion
on POTW sewer pipes is complicated by a variety of factors, including
wastewater characteristics such as pH, temperature, volume, velocity,
turbulence, alkalinity, dissolved oxygen, as well as sewer pipe
characteristics such as size, age, material of construction, pipe
configuration, and time since last cleaning. EPA has concluded that
insufficient research is available that investigates the synergistic
effects of these factors as well as data on the effects of short-term
Discharges of low pH and therefore modifications to the current
regulations are not appropriate at this time.
What significant changes were made to the proposed rule?
EPA has decided not to change the current rule regarding Discharges
less than pH 5.0. EPA lacks sufficient information on the effects of
short-term or long-term Discharges with pH lower than 5.0 on the
structural integrity of POTWs. The current regulations at 40 CFR
403.5(b) remain in effect.
4. Summary of Major Comments and EPA Response
Many commenters gave qualified support for the proposed
modifications with suggestions for implementation. EPA also received
comments on the proposed rule stating that the proposal did not
adequately protect POTWs. One commenter cautioned that systems
constructed of acid-resistant materials often include manhole inverts
constructed of concrete and similar materials that are susceptible to
corrosion, and are thus rarely entirely resistant to such effects. Some
requested that EPA make the current pH limit more stringent (i.e.,
above pH 5.0) because there are systems that are currently experiencing
corrosion damage. A few commenters questioned whether the proposed
modifications would actually provide a significant burden relief for
POTWs, on the basis that adequate evidence does not exist that shows
POTWs devote a substantial amount of resources to dealing with short-
term violations. Several commenters requested guidance on various
implementation topics,
[[Page 60186]]
including how POTWs should assess and maintain the integrity of their
systems with respect to corrosion. These outstanding issues influenced
EPA's decision not to finalize the proposed modifications at this time.
Even though EPA has decided not to finalize this proposed
provision, all comments that were submitted on the proposal will be
carefully considered as EPA further explores the issue of short-term pH
Discharges. Please see the Response to Public Comment Document for
responses to specific comments.
Application of 40 CFR 401.17 Criteria: Some commenters suggested
that the pH provisions at 40 CFR 401.17 could serve as a basis for
alternative pH requirements. The effluent guideline regulations list
certain conditions under which excursions from pH limits are allowed
for direct dischargers. EPA developed 40 CFR 401.17 based on the
Agency's determination that direct dischargers could continuously meet
a pH limit between 6.0 and 9.0. In comparison, Pretreatment
requirements are based on preventing corrosion in POTWs and are much
less restrictive. It is EPA's view that it would be inappropriate to
attempt to use 40 CFR 401.17 as a basis for alternative pH requirements
because the reason behind establishing the pH requirement is different.
However, POTWs may implement and enforce local pH limits in a manner
that is more stringent than the federal regulations. EPA refers
commenters to EPA's May 13, 1993 letter to Mary Jo M. Aiello of the New
Jersey Department of Environmental Protection and Energy, for a
discussion of an acceptable analogous application to the Pretreatment
program. See http://www.epa.gov/npdes/pubs/owm0113.pdf.
Use of Enforcement Response Plans to Address pH Violations: Several
POTW commenters expressed concern over the level of burden imposed on
them by the existing pH limit since they are obligated to treat all
exceedances as violations. In EPA's view, it is relevant to clarify the
inherent flexibility present in a POTW's Enforcement Response Plan
provisions to define varying levels of response to temporary pH
violations. EPA advises POTWs to incorporate a preferred method of
dealing with violations of local limits into their Enforcement Response
Plans and refers commenters to the Guidance for Developing Control
Authority Enforcement Response Plans (EPA, 1989). See http://www.epa.gov/npdes/pubs/owm0015.pdf. EPA notes that POTWs make their own
decisions regarding the utilization of resources in response to low pH
Discharges when developing an Enforcement Response Plan. Excursions
under pH 5.0 are Pretreatment Standard violations (40 CFR 403.5(b)(2)),
and, in determining the appropriate response, EPA recommends that the
Control Authority consider the following criteria: frequency, duration,
magnitude, effect, and/or compliance. A record should be made of the
response, and the person responsible for screening the data should
alert enforcement personnel to the noncompliance. EPA recognizes that
the Control Authority's appropriate response (including no further
action, a phone call, or a notification letter) may vary. This
flexibility may help reduce the burdens on the commenters' programs.
V. Changes to Part 122
EPA is also making the following changes to the part 122
regulations:
40 CFR 122.21(j)(6)(ii): Change reference to definition of
``Significant Industrial User'' to 40 CFR 403.3(v), instead of 40 CFR
403.3(t). This reference change is a direct result of renumbering
associated with today's rule.
40 CFR 122.44(j)(1): Correct typographical error referring
to ``significant indirect dischargers'' instead of the correct term,
``Significant Industrial Users discharging''.
40 CFR122.62(a)(7): Correct typographical error
referencing an incorrect provision relating to modifications. The
correct reference should be 40 CFR 403.18(e).
VI. Considerations in Adopting Today's Rule Revisions
How does a POTW adopt today's rule provisions?
Section 40 CFR 403.18(a) generally requires review and approval by
the Approval Authority of modifications to the POTW Pretreatment
Program when there is a ``significant change in the operation of a POTW
Pretreatment Program that differs from the information in the POTW's
[program] submission * * * .'' Consistent with this rule, before many
of today's streamlining provisions may be implemented by local
Pretreatment authorities, POTWs will need to modify their Pretreatment
Program procedures and authorities. Once the POTW has determined what
program revisions it will make in response to today's streamlining
provisions, the modifications must then be submitted to the Approval
Authority (either the State, if it has Pretreatment Program authority,
or the EPA Regional Administrator) for approval. The regulations also
require that the program modification be accompanied by a statement of
basis for the changes, a description of the modifications and other
information the Approval Authority may request as appropriate. See 40
CFR 403.18(c)(1).
Although not required as part of today's final rule, EPA encourages
a POTW to submit its Pretreatment Program modifications to its Approval
Authority as a package, rather than sending changes piecemeal. This
will help make the review process more efficient and less burdensome.
Is the POTW required to make any of today's streamlining changes?
EPA notes that many of today's streamlining provisions are changes
that the POTW may adopt at its discretion. Many of these changes (e.g.,
the authority to use general control mechanisms, monitoring waivers for
pollutants neither present nor expected to be present, BMPs in lieu of
numeric local limits, application of equivalent concentration limits in
place of flow-based mass limits for OCPSF, petroleum refining, or
pesticide chemicals facilities, creation of a category of non-
significant CIUs, and application of equivalent mass limits for
concentration based categorical Standards) involve features that
provide program flexibility and are not required to be incorporated
into the POTW's Pretreatment Program.
However, a few of today's rule provisions are changes that the POTW
is required to make because they clarify certain minimum requirements,
and to the extent that the POTW's approved program is inconsistent with
these requirements, it would need to be modified. These required
changes include:
(1) 40 CFR 403.8(f)(1)(iii)(B)(6): Clarification that slug control
requirements must be referenced in SIU control mechanisms. The POTW is
required to adopt this change because it specifies new minimum
requirements for all SIU control mechanisms.
(2) 40 CFR 403.8(f)(2)(viii)(A)(B)(C): Revisions to the significant
noncompliance (SNC) definition. These revisions are required because
they expand the definition of SNC to include additional types of
Pretreatment Standards and Requirements which were not clearly covered
in previous definitions.
(3) 40 CFR 403.12(g): Modifications to the sampling requirements
and a clarification to the requirement to report all monitoring
results. SIUs are now required to follow sampling requirements in 40
CFR 403.12 for periodic compliance reports (40 CFR 403.12(e)), whereas
they were
[[Page 60187]]
previously only explicitly applicable to baseline monitoring reports
and 90-day compliance reports. Also, the final rule now requires that
non-categorical SIUs report all monitoring results, whereas the
previous regulations only made this requirement explicit for
categorical SIUs. The POTW is required to adopt these revisions because
they set new minimum requirements for sampling and notification.
What is the difference between a ``substantial modification'' and a
``non-substantial'' modification?
Different review procedures apply to program modifications
depending on whether the modification is substantial or non-
substantial.
The Approval Authority's review of a substantial modification,
unlike a non-substantial modification, must follow the same procedures
used for approving the initial POTW Pretreatment Program, including the
issuance of a public notice to inform the public of the POTW's
modification Submission. By contrast, where the Submission is reviewed
as a non-substantial modification, the Approval Authority has 45 days
to either approve or disapprove the modification. Where the Approval
Authority does not notify the POTW within 45 days of its decision to
approve or disapprove the modification, or to treat the modification as
substantial, the POTW may implement the modification as if it were
approved by the Approval Authority.
How will the POTW's adoption of today's streamlining provisions be
reviewed by the Approval Authority?
EPA has concluded that all of the changes related to today's rule
may be treated as non-substantial if the changes to a POTW's local
ordinance to incorporate the changes directly reflect the federal
requirements. The current regulations provide that modifications that
relax a POTW's legal authorities are substantial modifications ``except
for modifications that directly reflect a revision to this Part 403 or
to 40 CFR Chapter I, subchapter N, and are reported pursuant to
paragraph (d) of this section.'' EPA has explained its reasons for
adopting this provision as follows:
``Today's regulation excludes from the definition of
`substantial modification' those changes in POTW legal authority that
results in less prescriptive programs, but which directly reflect a
revision to Federal Pretreatment Regulations (for example, if the
federal regulations are streamlined). 40 CFR 403.18(b)(1). Such
modifications would have already undergone public notice and comment
when promulgated by EPA. As long as the POTW's local ordinance is
revised to directly reflect the new federal requirements, further
public notice would be unnecessary * * *.'' 62 FR 38406, 38409 (July
17, 1997).
The Approval Authority, however, may treat such modifications as
substantial when appropriate. 40 CFR 403.18(b)(7) authorizes the
Approval Authority to designate modifications as substantial if the
Approval Authority concludes that the modification could have a
significant effect on POTW operation, could result in an increase in
POTW pollutant loadings or could result in less stringent requirements
being imposed on Industrial Users. For example, a POTW may wish to make
adjustments to the wording of some of the streamlining provisions so
that they fit better with the way the specific Pretreatment program is
operated. Such adjustments may or may not trigger the need to review
individual modifications as substantial, which would not otherwise need
to be treated as substantial if today's provisions are adopted
directly.
Will the POTW's NPDES Permit need to be modified? In general, the
Pretreatment provisions of the POTW's NPDES Permit will need to be
modified. This regulatory action does not modify individual state
regulations or authorities, POTW legal authorities, nor modify NPDES
Permits issued to POTWs. Consequently, today's rule does not relieve a
POTW from operating in accordance with existing state laws,
regulations, Permits, and similar actions. If a POTW's Pretreatment
program ``modification relates to an enforceable element of the POTW's
NPDES Permit'', then the program ``modification requires a permit
modification,'' in accordance with 40 CFR 403.8(c). 62 FR 38408 (July
17, 1997). After a POTW's Pretreatment program modification has been
approved in accordance with the procedures in 40 CFR 403.18, those
conditions may be incorporated into the POTW's NPDES Permit as a minor
NPDES modification under 40 CFR 122.63(g).
VII. Regulatory Requirements
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, [58 Federal Register 51,735 (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.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action.'' As
such, this action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations will be documented in
the public record.
B. Paperwork Reduction Act
The Office of Management and Budget (OMB) has approved the
information collection requirements contained in this rule under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2040-0009.
The regulatory changes in today's rulemaking are designed to reduce
the overall burden from technical and administrative requirements that
affect Industrial Users, local Control Authorities and Approval
Authorities. The estimated savings in annual burden hours and costs to
the affected respondents (i.e., Industrial Users, POTWs, and States) is
about 240,000 hours or $10.1 million.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
[[Page 60188]]
Although the regulatory changes in today's final rule provide
greater flexibility to regulated entities, it is necessary to collect
certain types of information to assure that Pretreatment Program
requirements continue to be met and that the final benefit meets EPA's
stated goal of providing better environmental results at less cost.
Today's final rule includes regulatory changes that cover a variety
of technical and administrative changes. Most of the regulatory changes
result in either reduced annual cost and burdens on a continuing basis
or have no measurable effect on cost or burden. There are a few
regulatory changes (equivalent concentration limits for flow based
Standards, monitoring waivers for pollutants not present, and general
control mechanisms) that will impose additional short-term increases in
burden on those POTWs or Industrial Users that elect to exercise this
flexibility. However, when considered over a longer time period, these
costs are outweighed by the expected benefits of the provisions.
The table below (Table 1) shows an estimate of burden hours and
cost savings for each rule provision.
Table 1.--Estimated Changes in Burden and Cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total respondents
Provision --------------------------------------- Change in total Hours per response Annual responses Change in
States POTWs IUs number of responses per respondent burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mass Limits...................... ........... 24 40 80 over 3 yrs....... 8.................. Varies............. 512
Equivalent Concentration Limits.. ........... 1,464 ........... 15.................. 8.0................ 0.01............... 122.67
NSCIUs/Middle-Tier CIUs.......... 34 1,464 2,374 NA.................. See Note 1......... Varies............. -113,381
Slug Control Plans............... 34 1,464 ........... -13,394............. 0.5................ 1.................. -6,697
Pollutants Not Present--CIUs..... 34 1,464 12,362 NA.................. See Note 2......... 2.................. -117,703
General Control Mech's, Savings 34 20 ........... 1,500............... -20.0.............. 0.2................ -6,000
for CAs.
General Control Mech's, Requests ........... ........... 1,500 1,500 over 3 yrs.... 0.5................ One-Time........... 250
for Coverage.
General Control Mech's, CA Use of 34 20 ........... 1,500 over 3 yrs.... 0.5................ One-Time........... 250
Data.
--------------
Total........................ 34 1,464 12,362 .................... ................... ................... -242,645
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note 1: For 34 states, the annual number of responses for permit issuance (20 hrs) drops by 0.6 per state. For 34 states, the number of inspections per
year (8 hours) drops by 4.6 per state. For 34 states, the number of CIUs sampled per year (15.2 hours) drops by 4.6 per state. For 34 states, the
number of NSCIU evaluations (2 hours) increases by 3.0 per state. For 34 states, total hours for review of CIU monitoring reports drops by 424 hours
per year. For 1,464 POTWs, the annual number of responses for permit issuance (20 hrs) drops by 0.15 per POTW. For 1,464 POTWs, the number of
inspections per year (8 hours) drops by 1.1 per POTW. For 1,464 POTWs, the number of CIUs sampled per year (16.2 hours) drops by 1.1 per POTW. For
1,464 POTWs, the number of NSCIU evaluations (2 hours) rises from 0 to 0.73 per POTW. POTW burden for review of CIU monitoring reports drops a total
of 8,664 hours. In addition, 796 CIUs reduce sampling and analysis (15.6 hours) from twice per year to never, 372 CIUs reduce sampling and analysis
from twice per year to once every 5 years, and 1,206 CIUs reduce monitoring from twice to once per year. Also, 2,374 CIUs reduce reporting (1 hour)
from twice to once per year. IU recordkeeping is eliminated for 1,168 IUs, saving 2337 hours (2 hrs per IU) per year; state recordkeeping decreases by
513 hours per year. POTW recordkeeping is assumed to be unchanged.
Note 2: Hours per response drops from 18.8 to 15.2 for states, 10.0 to 8.1 for POTWs, and 14.3 to 11.6 for CIUs.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9. In addition, EPA is
amending the table in 40 CFR part 9 of currently approved OMB control
numbers for various regulations to list the regulatory citations for
the information requirements contained in this final rule.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business according to
RFA default definitions for small business (based on SBA size standard;
(2) a small governmental jurisdiction that is a government of a city,
county, town, school district or special district with a population of
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves regulatory burden, or otherwise has a positive economic effect
on all of the small entities subject to the rule.
As previously explained, the modifications to the Pretreatment
requirements in this final rule will reduce the regulatory costs to
POTWs and Industrial Users of complying with Pretreatment requirements.
The regulatory changes will provide certain POTWs and Industrial Users
with less costly alternatives to the current requirements. For example,
this rule includes a modification that would allow a POTW, in specified
[[Page 60189]]
circumstances, to control contributions from Industrial Users through
general permits or control mechanisms rather than more costly
individual permits or control mechanisms. This rule also authorizes a
POTW to relieve an Industrial User of its sampling and analyzing
requirements if the User demonstrates and certifies that the pollutant
is neither present nor expected to be present in its process waste
stream or is present only in background levels in the intake water.
The final rule includes provisions that provide flexibility for
POTWs and Industrial Users. For instance, POTWs will be allowed to use
Best Management Practices (BMPs) as local limits in lieu of numeric
effluent limits. This option will give POTWs a feasible alternative
when numeric local limits are not the appropriate or practical method
to prevent pollutant Pass Through or Interference. EPA does not expect
that any POTW or Industrial User will choose the voluntary regulatory
requirements over current requirements if the cost of the alternative
were greater than the cost of complying with current regulations. We
have therefore concluded that today's final rule will either relieve
regulatory burden or have no significant impact for all small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. Today's final rule is ``deregulatory'' in
nature and reduces burden on the affected State, local, and tribal
governments and the private sector. Thus, today's rule is not subject
to the requirements of sections 202 and 205 of the UMRA.
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Additional flexibility is granted to all POTWs, which will
provide opportunities for reducing the burden of administering their
Pretreatment programs.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This final rule does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. Today's rule is basically
deregulatory in nature and is expected to reduce administrative and
resource burdens on affected State, local, and tribal governments and
the private sector. Thus, Executive Order 13132 does not apply to this
rule.
Although section 6 of Executive Order 13132 does not apply to this
rule, EPA did consult with representatives of State and local officials
in developing this rule. Annual EPA/State National Pretreatment
Workshops have provided the opportunity for EPA and States to discuss
current technical and policy issues as well as the future direction of
the National Pretreatment Program. Representatives of EPA, States, and
local Pretreatment programs have also convened annually at the
Association of Metropolitan Sewerage Agencies' (AMSA's) Pretreatment
Workshop. In the spirit of Executive Order 13132, and consistent with
EPA policy to promote communication between EPA and State and local
governments, EPA solicited comment on the proposed rule from all
stakeholders. A summary of EPA's response to concerns raised is
provided in Sections III and IV of the preamble (see specifically
subsections entitled ``Summary of Major Comments and EPA Response'' for
each separate streamlining issue) and in the response to comment
document in the record.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This final rule does not have tribal implications. It will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
There are no Pretreatment programs administered by Indian tribal
governments. This final rule will neither ``significantly nor
uniquely'' affect the communities of Indian tribal governments. Thus,
Executive Order 13175 does not apply to this rule.
[[Page 60190]]
Moreover, in the spirit of Executive Order 13175, and consistent
with EPA policy to promote communications between EPA and tribal
governments, EPA specifically solicited comment on the proposed rule
from all stakeholders. EPA did not receive any comments from tribal
governments.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final rule is not subject to the Executive Order because it is
not economically significant as defined in Executive Order 12866, and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children. This final rule does not impose any
new or amended Standards for discharged wastewater or the sludge
resulting from treatment of a POTW. (EPA notes that the final rule does
enable POTWs to use alternative, equivalent concentration limits for an
industry's current flow-based mass Standards and equivalent mass limits
where conditions warrant. However, EPA considers these new limits to be
equivalent to the Standards previously used, and therefore does not
involve the establishment of new or amended Standards.) Treatment and
disposal of wastewater occurs in a restricted system (e.g., buried
sewer lines and fenced wastewater treatment facilities) that children
are unlikely to come in contact with on a routine basis. This rule has
no identifiable direct impact upon the health and/or safety risks to
children and the regulatory changes will not disproportionately affect
children.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. The final rule
does not contain any compliance requirements that will:
1. Reduce crude oil supply in excess of 10,000 barrels per day;
2. Reduce fuel production in excess of 4,000 barrels per day;
3. Reduce coal production in excess of 5 million tons per year;
4. Reduce electricity production in excess of 1 billion kilowatt-
hours per year or in excess of 500 megawatts of installed capacity;
5. Increase energy prices in excess of 10 percent;
6. Increase the cost of energy distribution in excess of 10
percent;
7. Significantly increase dependence on foreign supplies of energy;
or
8. Other similar adverse outcomes, particularly unintended ones.
Thus, EPA has concluded that this rule is not likely to have any
adverse energy effects.
I. National Technology Transfer and Advancement Act
As noted in the proposed rule, Section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law
No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
This rule does not involve technical standards, except to the
extent that various sampling procedures in the Pretreatment Regulations
are being updated to reflect current EPA methods. Therefore, EPA did
not consider the use of any voluntary consensus standards.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit 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 United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective on November 14, 2005.
List of Subjects
40 CFR Part 9
Environmental protection, Reporting and recordkeeping requirements.
40 CFR Part 122
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.
40 CFR Part 403
Environmental protection, Confidential business information,
Reporting and recordkeeping requirements, Waste treatment and disposal,
Water pollution control.
Dated: September 27, 2005.
Stephen L. Johnson,
Administrator.
0
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT
0
1. The authority citation for part 9 continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003,
2005, 2006, 2601-2671, 21 U.S.C 331j, 356a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330,
1342, 1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR,
1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g,
300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2,
300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542,
9601-9657, 11023, 11048.
2. In Sec. 9.1 the table is amended by adding an entry in
numerical order under the indicated heading to read as follows:
Sec. 9.1 OMB approvals under the Paper Work Reduction Act.
* * * * *
[[Page 60191]]
------------------------------------------------------------------------
OMB control
40 CFR citation No.
------------------------------------------------------------------------
General Pretreatment Regulations for Existing and New Sources of
Pollution
------------------------------------------------------------------------
* *; * * * * *
403.12(q).................................................. 2040-0009
* * * * * *
------------------------------------------------------------------------
PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
0
3. The authority citation for Part 122 continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
0
4. Section 122.21 is amended by revising paragraph (j)(6)(ii)
introductory text to read as follows:
Sec. 122.21 Application for a permit (applicable to State programs,
see Sec. 123.25).
* * * * *
(j) * * *
(6) * * *
(ii) POTWs with one or more SIUs shall provide the following
information for each SIU, as defined at 40 CFR 403.3(v), that
discharges to the POTW:
* * * * *
0
5. Section 122.44 is amended by revising the first sentence of
paragraph (j)(1) to read as follows:
Sec. 122.44 Establishing limitations, standards, and other permit
conditions (applicable to State NPDES programs, see Sec. 123.25).
* * * * *
(j) * * *
(1) Identify, in terms of character and volume of pollutants, any
Significant Industrial Users discharging into the POTW subject to
Pretreatment Standards under section 307(b) of CWA and 40 CFR part 403.
* * * * *
0
6. Section 122.62 is amended by revising paragraph (a)(7) to read as
follows:
Sec. 122.62 Modification or revocation and reissuance of permits
(applicable to State programs, see Sec. 123.25).
* * * * *
(a) * * *
(7) Reopener. When required by the ``reopener'' conditions in a
permit, which are established in the permit under Sec. 122.44(b) (for
CWA toxic effluent limitations and Standards for sewage sludge use or
disposal, see also Sec. 122.44(c)) or 40 CFR 403.18(e) (Pretreatment
program).
* * * * *
PART 403--GENERAL PRETREATMENT REGULATIONS FOR EXISTING AND NEW
SOURCES OF POLLUTION
0
7. The authority for Part 403 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
0
8. Section 403.3 is amended by redesignating paragraphs (e) through (u)
as paragraphs (g) through (w); by revising newly designated paragraphs
(m)(2) and (v); and by adding new paragraphs (e) and (f) to read as
follows:
Sec. 403.3. Definitions.
* * * * *
(e) The term Best Management Practices or BMPs means schedules of
activities, prohibitions of practices, maintenance procedures, and
other management practices to implement the prohibitions listed in
Sec. 403.5(a)(1) and (b). BMPs also include treatment requirements,
operating procedures, and practices to control plant site runoff,
spillage or leaks, sludge or waste disposal, or drainage from raw
materials storage.
(f) The term Control Authority refers to:
(1) The POTW if the POTW's Pretreatment Program Submission has been
approved in accordance with the requirements of Sec. 403.11; or
(2) The Approval Authority if the Submission has not been approved.
* * * * *
(m) * * *
(2) Construction on a site at which an existing source is located
results in a modification rather than a New Source if the construction
does not create a new building, structure, facility or installation
meeting the criteria of paragraphs (m)(1)(ii) or (m)(1)(iii) of this
section, but otherwise alters, replaces, or adds to existing process or
production equipment.
* * * * *
(v) Significant Industrial User. (1) Except as provided in
paragraphs (v)(2) and (v)(3) of this section, the term Significant
Industrial User means:
(i) All Industrial Users subject to Categorical Pretreatment
Standards under 40 CFR 403.6 and 40 CFR chapter I, subchapter N; and
(ii) Any other Industrial User that: discharges an average of
25,000 gallons per day or more of process wastewater to the POTW
(excluding sanitary, noncontact cooling and boiler blowdown
wastewater); contributes a process wastestream which makes up 5 percent
or more of the average dry weather hydraulic or organic capacity of the
POTW Treatment plant; or is designated as such by the Control Authority
on the basis that the Industrial User has a reasonable potential for
adversely affecting the POTW's operation or for violating any
Pretreatment Standard or requirement (in accordance with 40 CFR
403.8(f)(6)).
(2) The Control Authority may determine that an Industrial User
subject to categorical Pretreatment Standards under Sec. 403.6 and 40
CFR chapter I, subchapter N is a Non-Significant Categorical Industrial
User rather than a Significant Industrial User on a finding that the
Industrial User never discharges more than 100 gallons per day (gpd) of
total categorical wastewater (excluding sanitary, non-contact cooling
and boiler blowdown wastewater, unless specifically included in the
Pretreatment Standard) and the following conditions are met:
(i) The Industrial User, prior to the Control Authority's finding,
has consistently complied with all applicable categorical Pretreatment
Standards and Requirements;
(ii) The Industrial User annually submits the certification
statement required in Sec. 403.12(q) together with any additional
information necessary to support the certification statement; and
(iii) The Industrial User never discharges any untreated
concentrated wastewater.
(3) Upon a finding that an Industrial User meeting the criteria in
paragraph (v)(1)(ii) of this section has no reasonable potential for
adversely affecting the POTW's operation or for violating any
Pretreatment Standards or
[[Page 60192]]
requirement, the Control Authority may at any time, on its own
initiative or in response to a petition received from an Industrial
User or POTW, and in accordance with 40 CFR 403.8(f)(6), determine that
such Industrial User is not a Significant Industrial User.
* * * * *
0
9. Section 403.5 is amended by revising paragraph (b)(1) and adding a
new paragraph (c)(4) to read as follows:
Sec. 403.5 National pretreatment standards: Prohibited discharges.
* * * * *
(b) * * *
(1) Pollutants which create a fire or explosion hazard in the POTW,
including, but not limited to, wastestreams with a closed cup
flashpoint of less than 140 degrees Fahrenheit or 60 degrees Centigrade
using the test methods specified in 40 CFR 261.21;
* * * * *
(c) * * *
(4) POTWs may develop Best Management Practices (BMPs) to implement
paragraphs (c)(1) and (c)(2) of this section. Such BMPs shall be
considered local limits and Pretreatment Standards for the purposes of
this part and section 307(d) of the Act.
* * * * *
0
10. Section 403.6 is amended as follows:
0
a. By revising paragraph (b).
0
b. By revising paragraph (c)(2).
0
c. By redesignating paragraphs (c)(5) through (c)(7) as paragraphs
(c)(7) through (c)(9).
0
d. By adding new paragraphs (c)(5) and (c)(6).
0
e. By revising newly designated paragraphs (c)(7) and (c)(8).
0
f. By revising paragraph (d), and the first sentence of paragraph (e)
introductory text.
Sec. 403.6 National pretreatment standards: Categorical standards.
* * * * *
(b) Deadline for compliance with categorical standards. Compliance
by existing sources with categorical Pretreatment Standards shall be
within 3 years of the date the Standard is effective unless a shorter
compliance time is specified in the appropriate subpart of 40 CFR
chapter I, subchapter N. Direct dischargers with NPDES Permits modified
or reissued to provide a variance pursuant to section 301(i)(2) of the
Act shall be required to meet compliance dates set in any applicable
categorical Pretreatment Standard. Existing sources which become
Industrial Users subsequent to promulgation of an applicable
categorical Pretreatment Standard shall be considered existing
Industrial Users except where such sources meet the definition of a New
Source as defined in Sec. 403.3(m). New Sources shall install and have
in operating condition, and shall ``start-up'' all pollution control
equipment required to meet applicable Pretreatment Standards before
beginning to Discharge. Within the shortest feasible time (not to
exceed 90 days), New Sources must meet all applicable Pretreatment
Standards.
(c) * * *
(2) When the limits in a categorical Pretreatment Standard are
expressed only in terms of mass of pollutant per unit of production,
the Control Authority may convert the limits to equivalent limitations
expressed either as mass of pollutant discharged per day or effluent
concentration for purposes of calculating effluent limitations
applicable to individual Industrial Users.
* * * * *
(5) When the limits in a categorical Pretreatment Standard are
expressed only in terms of pollutant concentrations, an Industrial User
may request that the Control Authority convert the limits to equivalent
mass limits. The determination to convert concentration limits to mass
limits is within the discretion of the Control Authority. The Control
Authority may establish equivalent mass limits only if the Industrial
User meets all the following conditions in paragraph (c)(5)(i)(A)
through (c)(5)(i)(E) of this section.
(i) To be eligible for equivalent mass limits, the Industrial User
must:
(A) Employ, or demonstrate that it will employ, water conservation
methods and technologies that substantially reduce water use during the
term of its control mechanism;
(B) Currently use control and treatment technologies adequate to
achieve compliance with the applicable categorical Pretreatment
Standard, and not have used dilution as a substitute for treatment;
(C) Provide sufficient information to establish the facility's
actual average daily flow rate for all wastestreams, based on data from
a continuous effluent flow monitoring device, as well as the facility's
long-term average production rate. Both the actual average daily flow
rate and long-term average production rate must be representative of
current operating conditions;
(D) Not have daily flow rates, production levels, or pollutant
levels that vary so significantly that equivalent mass limits are not
appropriate to control the Discharge; and
(E) Have consistently complied with all applicable categorical
Pretreatment Standards during the period prior to the Industrial User's
request for equivalent mass limits.
(ii) An Industrial User subject to equivalent mass limits must:
(A) Maintain and effectively operate control and treatment
technologies adequate to achieve compliance with the equivalent mass
limits;
(B) Continue to record the facility's flow rates through the use of
a continuous effluent flow monitoring device;
(C) Continue to record the facility's production rates and notify
the Control Authority whenever production rates are expected to vary by
more than 20 percent from its baseline production rates determined in
paragraph (c)(5)(i)(C) of this section. Upon notification of a revised
production rate, the Control Authority must reassess the equivalent
mass limit and revise the limit as necessary to reflect changed
conditions at the facility; and
(D) Continue to employ the same or comparable water conservation
methods and technologies as those implemented pursuant to paragraph
(c)(5)(i)(A) of this section so long as it discharges under an
equivalent mass limit.
(iii) A Control Authority which chooses to establish equivalent
mass limits:
(A) Must calculate the equivalent mass limit by multiplying the
actual average daily flow rate of the regulated process(es) of the
Industrial User by the concentration-based daily maximum and monthly
average Standard for the applicable categorical Pretreatment Standard
and the appropriate unit conversion factor;
(B) Upon notification of a revised production rate, must reassess
the equivalent mass limit and recalculate the limit as necessary to
reflect changed conditions at the facility; and
(C) May retain the same equivalent mass limit in subsequent control
mechanism terms if the Industrial User's actual average daily flow rate
was reduced solely as a result of the implementation of water
conservation methods and technologies, and the actual average daily
flow rates used in the original calculation of the equivalent mass
limit were not based on the use of dilution as a substitute for
treatment pursuant to paragraph (d) of this section. The Industrial
User must also be in compliance with Sec. 403.17 (regarding the
prohibition of bypass).
(iv) The Control Authority may not express limits in terms of mass
for
[[Page 60193]]
pollutants such as pH, temperature, radiation, or other pollutants
which cannot appropriately be expressed as mass.
(6) The Control Authority may convert the mass limits of the
categorical Pretreatment Standards at 40 CFR parts 414, 419, and 455 to
concentration limits for purposes of calculating limitations applicable
to individual Industrial Users under the following conditions. When
converting such limits to concentration limits, the Control Authority
must use the concentrations listed in the applicable subparts of 40 CFR
parts 414, 419, and 455 and document that dilution is not being
substituted for treatment as prohibited by paragraph (d) of this
section.
(7) Equivalent limitations calculated in accordance with paragraphs
(c)(3), (c)(4), (c)(5) and (c)(6) of this section are deemed
Pretreatment Standards for the purposes of section 307(d) of the Act
and this part. The Control Authority must document how the equivalent
limits were derived and make this information publicly available. Once
incorporated into its control mechanism, the Industrial User must
comply with the equivalent limitations in lieu of the promulgated
categorical standards from which the equivalent limitations were
derived.
(8) Many categorical Pretreatment Standards specify one limit for
calculating maximum daily discharge limitations and a second limit for
calculating maximum monthly average, or 4-day average, limitations.
Where such Standards are being applied, the same production or flow
figure shall be used in calculating both the average and the maximum
equivalent limitation.
* * * * *
(d) Dilution prohibited as substitute for treatment. Except where
expressly authorized to do so by an applicable Pretreatment Standard or
Requirement, no Industrial User shall ever increase the use of process
water, or in any other way attempt to dilute a Discharge as a partial
or complete substitute for adequate treatment to achieve compliance
with a Pretreatment Standard or Requirement. The Control Authority may
impose mass limitations on Industrial Users which are using dilution to
meet applicable Pretreatment Standards or Requirements, or in other
cases where the imposition of mass limitations is appropriate.
(e) Combined wastestream formula. Where process effluent is mixed
prior to treatment with wastewaters other than those generated by the
regulated process, fixed alternative discharge limits may be derived by
the Control Authority or by the Industrial User with the written
concurrence of the Control Authority. * * *
* * * * *
0
11. Section 403.7 is amended by revising paragraphs (h) introductory
text and (h)(2) to read as follows:
Sec. 403.7 Removal credits.
* * * * *
(h) Compensation for Overflow. ``Overflow'' means the intentional
or unintentional diversion of flow from the POTW before the POTW
Treatment Plant. POTWs which at least once annually Overflow untreated
wastewater to receiving waters may claim Consistent Removal of a
pollutant only by complying with either paragraphs (h)(1) or (h)(2) of
this section. However, paragraph (h) of this section shall not apply
where Industrial User(s) can demonstrate that Overflow does not occur
between the Industrial User(s) and the POTW Treatment Plant;
* * * * *
(2)(i) The Consistent Removal claimed is reduced pursuant to the
following equation:
[GRAPHIC] [TIFF OMITTED] TR14OC05.000
Where:
rm = POTW's Consistent Removal rate for that pollutant as
established under paragraphs (a)(1) and (b)(2) of this section
rc = removal corrected by the Overflow factor
Z = hours per year that Overflows occurred between the Industrial
User(s) and the POTW Treatment Plant, the hours either to be shown in
the POTW's current NPDES permit application or the hours, as
demonstrated by verifiable techniques, that a particular Industrial
User's Discharge Overflows between the Industrial User and the POTW
Treatment Plant; and
(ii) The POTW is complying with all NPDES permit requirements and
any additional requirements in any order or decree, issued pursuant to
the Clean Water Act affecting combined sewer overflows. These
requirements include, but are not limited to, any combined sewer
overflow requirements that conform to the Combined Sewer Overflow
Control Policy.
0
12. Section 403.8 is amended as follows:
0
a. By revising paragraphs (f)(1)(iii), (f)(1)(v), and the first
sentence of paragraph (f)(1)(vi)(B).
0
b. By revising paragraph (f)(2)(v).
0
c. By redesignating paragraphs (f)(2)(vi) and (f)(2)(vii) as paragraphs
(f)(2)(vii) and (f)(2)(viii);
0
d. By adding a new paragraph (f)(2)(vi).
0
e. By revising newly designated paragraphs (f)(2)(viii) introductory
text, (f)(2)(viii)(A), (f)(2)(viii)(B), (f)(2)(viii)(C),
(f)(2)(viii)(F), and (f)(2)(viii)(H).
0
f. Revising paragraph (f)(6).
Sec. 403.8 Pretreatment Program Requirements: Development and
implementation by POTW.
* * * * *
(f) * * *
(1) * * *
(iii) Control through Permit, order, or similar means, the
contribution to the POTW by each Industrial User to ensure compliance
with applicable Pretreatment Standards and Requirements. In the case of
Industrial Users identified as significant under Sec. 403.3(v), this
control shall be achieved through individual permits or equivalent
individual control mechanisms issued to each such User except as
follows.
(A)(1) At the discretion of the POTW, this control may include use
of general control mechanisms if the following conditions are met. All
of the facilities to be covered must:
(i) Involve the same or substantially similar types of operations;
(ii) Discharge the same types of wastes;
(iii) Require the same effluent limitations;
(iv) Require the same or similar monitoring; and
(v) In the opinion of the POTW, are more appropriately controlled
under a general control mechanism than under individual control
mechanisms.
(2) To be covered by the general control mechanism, the Significant
Industrial User must file a written request for coverage that
identifies its contact information, production processes, the types of
wastes generated, the location for monitoring all wastes covered by the
general control mechanism, any requests in accordance with Sec.
403.12(e)(2) for a monitoring waiver for a pollutant neither present
nor expected to be present in the Discharge, and any other information
the POTW deems appropriate. A monitoring waiver for a pollutant neither
present nor expected to be present in the Discharge is not effective in
the general control mechanism until after the POTW has provided written
notice to the Significant Industrial User that such a waiver request
has been
[[Page 60194]]
granted in accordance with Sec. 403.12(e)(2). The POTW must retain a
copy of the general control mechanism, documentation to support the
POTW's determination that a specific Significant Industrial User meets
the criteria in paragraphs (f)(1)(iii)(A)(1) through (5) of this
section, and a copy of the User's written request for coverage for 3
years after the expiration of the general control mechanism. A POTW may
not control a Significant Industrial User through a general control
mechanism where the facility is subject to production-based categorical
Pretreatment Standards or categorical Pretreatment Standards expressed
as mass of pollutant discharged per day or for Industrial Users whose
limits are based on the Combined Wastestream Formula or Net/Gross
calculations (Sec. Sec. 403.6(e) and 403.15).
(B) Both individual and general control mechanisms must be
enforceable and contain, at a minimum, the following conditions:
(1) Statement of duration (in no case more than five years);
(2) Statement of non-transferability without, at a minimum, prior
notification to the POTW and provision of a copy of the existing
control mechanism to the new owner or operator;
(3) Effluent limits, including Best Management Practices, based on
applicable general Pretreatment Standards in part 403 of this chapter,
categorical Pretreatment Standards, local limits, and State and local
law;
(4) Self-monitoring, sampling, reporting, notification and
recordkeeping requirements, including an identification of the
pollutants to be monitored (including the process for seeking a waiver
for a pollutant neither present nor expected to be present in the
Discharge in accordance with Sec. 403.12(e)(2), or a specific waived
pollutant in the case of an individual control mechanism), sampling
location, sampling frequency, and sample type, based on the applicable
general Pretreatment Standards in part 403 of this chapter, categorical
Pretreatment Standards, local limits, and State and local law;
(5) Statement of applicable civil and criminal penalties for
violation of Pretreatment Standards and requirements, and any
applicable compliance schedule. Such schedules may not extend the
compliance date beyond applicable federal deadlines;
(6) Requirements to control Slug Discharges, if determined by the
POTW to be necessary.
* * * * *
(v) Carry out all inspection, surveillance and monitoring
procedures necessary to determine, independent of information supplied
by Industrial Users, compliance or noncompliance with applicable
Pretreatment Standards and Requirements by Industrial Users.
Representatives of the POTW shall be authorized to enter any premises
of any Industrial User in which a Discharge source or treatment system
is located or in which records are required to be kept under Sec.
403.12(o) to assure compliance with Pretreatment Standards. Such
authority shall be at least as extensive as the authority provided
under section 308 of the Act;
(vi) * * *
(B) Pretreatment requirements which will be enforced through the
remedies set forth in paragraph (f)(1)(vi)(A) of this section, will
include but not be limited to, the duty to allow or carry out
inspections, entry, or monitoring activities; any rules, regulations,
or orders issued by the POTW; any requirements set forth in control
mechanisms issued by the POTW; or any reporting requirements imposed by
the POTW or these regulations in this part. * * *
* * * * *
(2) * * *
(v) Randomly sample and analyze the effluent from Industrial Users
and conduct surveillance activities in order to identify, independent
of information supplied by Industrial Users, occasional and continuing
noncompliance with Pretreatment Standards. Inspect and sample the
effluent from each Significant Industrial User at least once a year,
except as otherwise specified below:
(A) Where the POTW has authorized the Industrial User subject to a
categorical Pretreatment Standard to forego sampling of a pollutant
regulated by a categorical Pretreatment Standard in accordance with
Sec. 403.12(e)(3), the POTW must sample for the waived pollutant(s) at
least once during the term of the Categorical Industrial User's control
mechanism. In the event that the POTW subsequently determines that a
waived pollutant is present or is expected to be present in the
Industrial User's wastewater based on changes that occur in the User's
operations, the POTW must immediately begin at least annual effluent
monitoring of the User's Discharge and inspection.
(B) Where the POTW has determined that an Industrial User meets the
criteria for classification as a Non-Significant Categorical Industrial
User, the POTW must evaluate, at least once per year, whether an
Industrial User continues to meet the criteria in Sec. 403.3(v)(2).
(C) In the case of Industrial Users subject to reduced reporting
requirements under Sec. 403.12(e)(3), the POTW must randomly sample
and analyze the effluent from Industrial Users and conduct inspections
at least once every two years. If the Industrial User no longer meets
the conditions for reduced reporting in Sec. 403.12(e)(3), the POTW
must immediately begin sampling and inspecting the Industrial User at
least once a year.
(vi) Evaluate whether each such Significant Industrial User needs a
plan or other action to control Slug Discharges. For Industrial Users
identified as significant prior to November 14, 2005, this evaluation
must have been conducted at least once by October 14, 2006; additional
Significant Industrial Users must be evaluated within 1 year of being
designated a Significant Industrial User. For purposes of this
subsection, a Slug Discharge is any Discharge of a non-routine,
episodic nature, including but not limited to an accidental spill or a
non-customary batch Discharge, which has a reasonable potential to
cause Interference or Pass Through, or in any other way violate the
POTW's regulations, local limits or Permit conditions. The results of
such activities shall be available to the Approval Authority upon
request. Significant Industrial Users are required to notify the POTW
immediately of any changes at its facility affecting potential for a
Slug Discharge. If the POTW decides that a slug control plan is needed,
the plan shall contain, at a minimum, the following elements:
(A) Description of discharge practices, including non-routine batch
Discharges;
(B) Description of stored chemicals;
(C) Procedures for immediately notifying the POTW of Slug
Discharges, including any Discharge that would violate a prohibition
under Sec. 403.5(b) with procedures for follow-up written notification
within five days;
(D) If necessary, procedures to prevent adverse impact from
accidental spills, including inspection and maintenance of storage
areas, handling and transfer of materials, loading and unloading
operations, control of plant site run-off, worker training, building of
containment structures or equipment, measures for containing toxic
organic pollutants (including solvents), and/or measures and equipment
for emergency response;
* * * * *
(viii) Comply with the public participation requirements of 40 CFR
part 25 in the enforcement of National Pretreatment Standards. These
[[Page 60195]]
procedures shall include provision for at least annual public
notification in a newspaper(s) of general circulation that provides
meaningful public notice within the jurisdiction(s) served by the POTW
of Industrial Users which, at any time during the previous 12 months,
were in significant noncompliance with applicable Pretreatment
requirements. For the purposes of this provision, a Significant
Industrial User (or any Industrial User which violates paragraphs
(f)(2)(viii)(C), (D), or (H) of this section) is in significant
noncompliance if its violation meets one or more of the following
criteria:
(A) Chronic violations of wastewater Discharge limits, defined here
as those in which 66 percent or more of all of the measurements taken
for the same pollutant parameter during a 6-month period exceed (by any
magnitude) a numeric Pretreatment Standard or Requirement, including
instantaneous limits, as defined by 40 CFR 403.3(l);
(B) Technical Review Criteria (TRC) violations, defined here as
those in which 33 percent or more of all of the measurements taken for
the same pollutant parameter during a 6-month period equal or exceed
the product of the numeric Pretreatment Standard or Requirement
including instantaneous limits, as defined by 40 CFR 403.3(l)
multiplied by the applicable TRC (TRC=1.4 for BOD, TSS, fats, oil, and
grease, and 1.2 for all other pollutants except pH);
(C) Any other violation of a Pretreatment Standard or Requirement
as defined by 40 CFR 403.3(l) (daily maximum, long-term average,
instantaneous limit, or narrative Standard) that the POTW determines
has caused, alone or in combination with other Discharges, Interference
or Pass Through (including endangering the health of POTW personnel or
the general public);
* * * * *
(F) Failure to provide, within 45 days after the due date, required
reports such as baseline monitoring reports, 90-day compliance reports,
periodic self-monitoring reports, and reports on compliance with
compliance schedules;
* * * * *
(H) Any other violation or group of violations, which may include a
violation of Best Management Practices, which the POTW determines will
adversely affect the operation or implementation of the local
Pretreatment program.
* * * * *
(6) The POTW shall prepare and maintain a list of its Industrial
Users meeting the criteria in Sec. 403.3(v)(1). The list shall
identify the criteria in Sec. 403.3(v)(1) applicable to each
Industrial User and, where applicable, shall also indicate whether the
POTW has made a determination pursuant to Sec. 403.3(v)(2) that such
Industrial User should not be considered a Significant Industrial User.
The initial list shall be submitted to the Approval Authority pursuant
to Sec. 403.9 or as a non-substantial modification pursuant to Sec.
403.18(d). Modifications to the list shall be submitted to the Approval
Authority pursuant to Sec. 403.12(i)(1).
0
13. Section 403.12 is amended as follows:
0
a. By removing and reserving paragraph (a).
0
b. By revising paragraphs (b)(4)(ii) and (b)(5)(ii).
0
c. By removing paragraph (b)(5)(iii).
0
d. By redesignating paragraphs (b)(5)(iv) through (b)(5)(viii) as
paragraphs (b)(5)(iii) through (b)(5)(vii).
0
e. By revising paragraph (b)(6).
0
f. By revising paragraph (e)(1).
0
g. By redesignating paragraphs (e)(2) and (e)(3) as paragraphs (e)(3)
and (e)(4).
0
h. By adding a new paragraph (e)(2).
0
i. Revising newly designated paragraph (e)(3).
0
j. Revising paragraphs (g)(1), (g)(2) and (g)(3).
0
k. By redesignating paragraphs (g)(4) and (g)(5) as paragraphs (g)(5)
and (g)(6).
0
l. By revising newly designated paragraph (g)(6).
0
m. By adding paragraph (g)(4).
0
n. By revising paragraph (h).
0
o. By revising paragraph (i)(1).
0
p. By revising paragraph (j).
0
q. By revising paragraph (k)(2).
0
r. By revising paragraphs (l) introductory text, (1)(1) introductory
text, (l)(1)(ii), (l)(2), (m), (o)(1) introductory text, and the first
sentence of paragraph (o)(2).
0
s. By adding paragraph (q).
Sec. 403.12 Reporting requirements for POTWs and Industrial Users.
* * * * *
(b) * * *
(4) * * *
(ii) Other streams as necessary to allow use of the combined
wastestream formula of Sec. 403.6(e). (See paragraph (b)(5)(iv) of
this section.)
* * * * *
(5) * * *
(ii) In addition, the User shall submit the results of sampling and
analysis identifying the nature and concentration (or mass, where
required by the Standard or Control Authority) of regulated pollutants
in the Discharge from each regulated process. Both daily maximum and
average concentration (or mass, where required) shall be reported. The
sample shall be representative of daily operations. In cases where the
Standard requires compliance with a Best Management Practice or
pollution prevention alternative, the User shall submit documentation
as required by the Control Authority or the applicable Standards to
determine compliance with the Standard;
* * * * *
(6) Certification. A statement, reviewed by an authorized
representative of the Industrial User (as defined in paragraph (l) of
this section) and certified to by a qualified professional, indicating
whether Pretreatment Standards are being met on a consistent basis,
and, if not, whether additional operation and maintenance (O and M)
and/or additional Pretreatment is required for the Industrial User to
meet the Pretreatment Standards and Requirements; and
(e) * * *
(1) Any Industrial User subject to a categorical Pretreatment
Standard (except a Non-Significant Categorical User as defined in Sec.
403.3(v)(2)), after the compliance date of such Pretreatment Standard,
or, in the case of a New Source, after commencement of the discharge
into the POTW, shall submit to the Control Authority during the months
of June and December, unless required more frequently in the
Pretreatment Standard or by the Control Authority or the Approval
Authority, a report indicating the nature and concentration of
pollutants in the effluent which are limited by such categorical
Pretreatment Standards. In addition, this report shall include a record
of measured or estimated average and maximum daily flows for the
reporting period for the Discharge reported in paragraph (b)(4) of this
section except that the Control Authority may require more detailed
reporting of flows. In cases where the Pretreatment Standard requires
compliance with a Best Management Practice (or pollution prevention
alternative), the User shall submit documentation required by the
Control Authority or the Pretreatment Standard necessary to determine
the compliance status of the User. At the discretion of the Control
Authority and in consideration of such factors as local high or low
flow rates, holidays, budget cycles, etc., the Control Authority may
modify the months during which the above reports are to be submitted.
(2) The Control Authority may authorize the Industrial User subject
to a categorical Pretreatment Standard to forego sampling of a
pollutant regulated by a categorical Pretreatment Standard if
[[Page 60196]]
the Industrial User has demonstrated through sampling and other
technical factors that the pollutant is neither present nor expected to
be present in the Discharge, or is present only at background levels
from intake water and without any increase in the pollutant due to
activities of the Industrial User. This authorization is subject to the
following conditions:
(i) The Control Authority may authorize a waiver where a pollutant
is determined to be present solely due to sanitary wastewater
discharged from the facility provided that the sanitary wastewater is
not regulated by an applicable categorical Standard and otherwise
includes no process wastewater.
(ii) The monitoring waiver is valid only for the duration of the
effective period of the Permit or other equivalent individual control
mechanism, but in no case longer than 5 years. The User must submit a
new request for the waiver before the waiver can be granted for each
subsequent control mechanism.
(iii) In making a demonstration that a pollutant is not present,
the Industrial User must provide data from at least one sampling of the
facility's process wastewater prior to any treatment present at the
facility that is representative of all wastewater from all processes.
The request for a monitoring waiver must be signed in accordance
with paragraph (l) of this section and include the certification
statement in Sec. 403.6(a)(2)(ii). Non-detectable sample results may
only be used as a demonstration that a pollutant is not present if the
EPA approved method from 40 CFR part 136 with the lowest minimum
detection level for that pollutant was used in the analysis.
(iv) Any grant of the monitoring waiver by the Control Authority
must be included as a condition in the User's control mechanism. The
reasons supporting the waiver and any information submitted by the User
in its request for the waiver must be maintained by the Control
Authority for 3 years after expiration of the waiver.
(v) Upon approval of the monitoring waiver and revision of the
User's control mechanism by the Control Authority, the Industrial User
must certify on each report with the statement below, that there has
been no increase in the pollutant in its wastestream due to activities
of the Industrial User:
Based on my inquiry of the person or persons directly
responsible for managing compliance with the Pretreatment Standard
for 40 CFR -------------- [specify applicable National Pretreatment
Standard part(s)], I certify that, to the best of my knowledge and
belief, there has been no increase in the level of ------------
[list pollutant(s)] in the wastewaters due to the activities at the
facility since filing of the last periodic report under 40 CFR
403.12(e)(1).
(vi) In the event that a waived pollutant is found to be present or
is expected to be present based on changes that occur in the User's
operations, the User must immediately: Comply with the monitoring
requirements of paragraph (e)(1) of this section or other more frequent
monitoring requirements imposed by the Control Authority; and notify
the Control Authority.
(vii) This provision does not supersede certification processes and
requirements established in categorical Pretreatment Standards, except
as otherwise specified in the categorical Pretreatment Standard.
(3) The Control Authority may reduce the requirement in paragraph
(e)(1) of this section to a requirement to report no less frequently
than once a year, unless required more frequently in the Pretreatment
Standard or by the Approval Authority, where the Industrial User meets
all of the following conditions:
(i) The Industrial User's total categorical wastewater flow does
not exceed any of the following:
(A) 0.01 percent of the design dry weather hydraulic capacity of
the POTW, or 5,000 gallons per day, whichever is smaller, as measured
by a continuous effluent flow monitoring device unless the Industrial
User discharges in batches;
(B) 0.01 percent of the design dry weather organic treatment
capacity of the POTW; and
(C) 0.01 percent of the maximum allowable headworks loading for any
pollutant regulated by the applicable categorical Pretreatment Standard
for which approved local limits were developed by a POTW in accordance
with Sec. 403.5(c) and paragraph (d) of this section;
(ii) The Industrial User has not been in significant noncompliance,
as defined in Sec. 403.8(f)(2)(viii), for any time in the past two
years;
(iii) The Industrial User does not have daily flow rates,
production levels, or pollutant levels that vary so significantly that
decreasing the reporting requirement for this Industrial User would
result in data that are not representative of conditions occurring
during the reporting period pursuant to paragraph (g)(3) of this
section;
(iv) The Industrial User must notify the Control Authority
immediately of any changes at its facility causing it to no longer meet
conditions of paragraphs (e)(3)(i) or (ii) of this section. Upon
notification, the Industrial User must immediately begin complying with
the minimum reporting in paragraph (e)(1) of this section; and
(v) The Control Authority must retain documentation to support the
Control Authority's determination that a specific Industrial User
qualifies for reduced reporting requirements under paragraph (e)(3) of
this section for a period of 3 years after the expiration of the term
of the control mechanism.
* * * * *
(g) * * *
(1) Except in the case of Non-Significant Categorical Users, the
reports required in paragraphs (b), (d), (e), and (h) of this section
shall contain the results of sampling and analysis of the Discharge,
including the flow and the nature and concentration, or production and
mass where requested by the Control Authority, of pollutants contained
therein which are limited by the applicable Pretreatment Standards.
This sampling and analysis may be performed by the Control Authority in
lieu of the Industrial User. Where the POTW performs the required
sampling and analysis in lieu of the Industrial User, the User will not
be required to submit the compliance certification required under
paragraphs (b)(6) and (d) of this section. In addition, where the POTW
itself collects all the information required for the report, including
flow data, the Industrial User will not be required to submit the
report.
(2) If sampling performed by an Industrial User indicates a
violation, the User shall notify the Control Authority within 24 hours
of becoming aware of the violation. The User shall also repeat the
sampling and analysis and submit the results of the repeat analysis to
the Control Authority within 30 days after becoming aware of the
violation. Where the Control Authority has performed the sampling and
analysis in lieu of the Industrial User, the Control Authority must
perform the repeat sampling and analysis unless it notifies the User of
the violation and requires the User to perform the repeat analysis.
Resampling is not required if:
(i) The Control Authority performs sampling at the Industrial User
at a frequency of at least once per month; or
(ii) The Control Authority performs sampling at the User between
the time when the initial sampling was conducted and the time when the
User or the Control Authority receives the results of this sampling.
(3) The reports required in paragraphs (b), (d), (e) and (h) of
this section must be based upon data obtained through appropriate
sampling and analysis
[[Page 60197]]
performed during the period covered by the report, which data are
representative of conditions occurring during the reporting period. The
Control Authority shall require that frequency of monitoring necessary
to assess and assure compliance by Industrial Users with applicable
Pretreatment Standards and Requirements. Grab samples must be used for
pH, cyanide, total phenols, oil and grease, sulfide, and volatile
organic compounds. For all other pollutants, 24-hour composite samples
must be obtained through flow-proportional composite sampling
techniques, unless time-proportional composite sampling or grab
sampling is authorized by the Control Authority. Where time-
proportional composite sampling or grab sampling is authorized by the
Control Authority, the samples must be representative of the Discharge
and the decision to allow the alternative sampling must be documented
in the Industrial User file for that facility or facilities. Using
protocols (including appropriate preservation) specified in 40 CFR part
136 and appropriate EPA guidance, multiple grab samples collected
during a 24-hour period may be composited prior to the analysis as
follows: For cyanide, total phenols, and sulfides the samples may be
composited in the laboratory or in the field; for volatile organics and
oil & grease the samples may be composited in the laboratory. Composite
samples for other parameters unaffected by the compositing procedures
as documented in approved EPA methodologies may be authorized by the
Control Authority, as appropriate.
(4) For sampling required in support of baseline monitoring and 90-
day compliance reports required in paragraphs (b) and (d) of this
section, a minimum of four (4) grab samples must be used for pH,
cyanide, total phenols, oil and grease, sulfide and volatile organic
compounds for facilities for which historical sampling data do not
exist; for facilities for which historical sampling data are available,
the Control Authority may authorize a lower minimum. For the reports
required by paragraphs (e) and (h) of this section, the Control
Authority shall require the number of grab samples necessary to assess
and assure compliance by Industrial Users with Applicable Pretreatment
Standards and Requirements.
* * * * *
(6) If an Industrial User subject to the reporting requirement in
paragraph (e) or (h) of this section monitors any regulated pollutant
at the appropriate sampling location more frequently than required by
the Control Authority, using the procedures prescribed in paragraph
(g)(5) of this section, the results of this monitoring shall be
included in the report.
(h) Reporting requirements for Industrial Users not subject to
categorical Pretreatment Standards. The Control Authority must require
appropriate reporting from those Industrial Users with Discharges that
are not subject to categorical Pretreatment Standards. Significant Non-
categorical Industrial Users must submit to the Control Authority at
least once every six months (on dates specified by the Control
Authority) a description of the nature, concentration, and flow of the
pollutants required to be reported by the Control Authority. In cases
where a local limit requires compliance with a Best Management Practice
or pollution prevention alternative, the User must submit documentation
required by the Control Authority to determine the compliance status of
the User. These reports must be based on sampling and analysis
performed in the period covered by the report, and in accordance with
the techniques described in part 136 and amendments thereto. This
sampling and analysis may be performed by the Control Authority in lieu
of the significant non-categorical Industrial User.
(i) * * *
(1) An updated list of the POTW's Industrial Users, including their
names and addresses, or a list of deletions and additions keyed to a
previously submitted list. The POTW shall provide a brief explanation
of each deletion. This list shall identify which Industrial Users are
subject to categorical Pretreatment Standards and specify which
Standards are applicable to each Industrial User. The list shall
indicate which Industrial Users are subject to local standards that are
more stringent than the categorical Pretreatment Standards. The POTW
shall also list the Industrial Users that are subject only to local
Requirements. The list must also identify Industrial Users subject to
categorical Pretreatment Standards that are subject to reduced
reporting requirements under paragraph (e)(3), and identify which
Industrial Users are Non-Significant Categorical Industrial Users.
* * * * *
(j) Notification of changed Discharge. All Industrial Users shall
promptly notify the Control Authority (and the POTW if the POTW is not
the Control Authority) in advance of any substantial change in the
volume or character of pollutants in their Discharge, including the
listed or characteristic hazardous wastes for which the Industrial User
has submitted initial notification under paragraph (p) of this section.
(k) * * *
(2) No increment referred to in paragraph (k)(1) of this section
shall exceed nine months;
* * * * *
(l) Signatory requirements for Industrial User reports. The reports
required by paragraphs (b), (d), and (e) of this section shall include
the certification statement as set forth in Sec. 403.6(a)(2)(ii), and
shall be signed as follows:
(1) By a responsible corporate officer, if the Industrial User
submitting the reports required by paragraphs (b), (d), and (e) of this
section is a corporation. For the purpose of this paragraph, a
responsible corporate officer means:
* * * * *
(ii) The manager of one or more manufacturing, production, or
operating facilities, provided, the manager is authorized to make
management decisions which govern the operation of the regulated
facility including having the explicit or implicit duty of making major
capital investment recommendations, and initiate and direct other
comprehensive measures to assure long-term environmental compliance
with environmental laws and regulations; can ensure that the necessary
systems are established or actions taken to gather complete and
accurate information for control mechanism requirements; and where
authority to sign documents has been assigned or delegated to the
manager in accordance with corporate procedures.
(2) By a general partner or proprietor if the Industrial User
submitting the reports required by paragraphs (b), (d), and (e) of this
section is a partnership, or sole proprietorship respectively.
* * * * *
(m) Signatory requirements for POTW reports. Reports submitted to
the Approval Authority by the POTW in accordance with paragraph (i) of
this section must be signed by a principal executive officer, ranking
elected official or other duly authorized employee. The duly authorized
employee must be an individual or position having responsibility for
the overall operation of the facility or the Pretreatment Program. This
authorization must be made in writing by the principal executive
officer or ranking elected official, and submitted to the Approval
Authority prior to or together with the report being submitted.
* * * * *
[[Page 60198]]
(o) * * *
(1) Any Industrial User and POTW subject to the reporting
requirements established in this section shall maintain records of all
information resulting from any monitoring activities required by this
section, including documentation associated with Best Management
Practices. Such records shall include for all samples:
* * * * *
(2) Any Industrial User or POTW subject to the reporting
requirements established in this section (including documentation
associated with Best Management Practices) shall be required to retain
for a minimum of 3 years any records of monitoring activities and
results (whether or not such monitoring activities are required by this
section) and shall make such records available for inspection and
copying by the Director and the Regional Administrator (and POTW in the
case of an Industrial User). * * *
* * * * *
(q) Annual certification by Non-Significant Categorical Industrial
Users. A facility determined to be a Non-Significant Categorical
Industrial User pursuant to Sec. 403.3(v)(2) must annually submit the
following certification statement, signed in accordance with the
signatory requirements in paragraph (l) of this section. This
certification must accompany any alternative report required by the
Control Authority:
Based on my inquiry of the person or persons directly
responsible for managing compliance with the categorical
Pretreatment Standards under 40 CFR --------, I certify that, to the
best of my knowledge and belief that during the period from --------
-------- --------, to ----------------, -------- [month, days,
year]:
(a) The facility described as ---------------- [facility name]
met the definition of a non-significant categorical Industrial User
as described in Sec. 403.3(v)(2); (b) the facility complied with
all applicable Pretreatment Standards and requirements during this
reporting period; and (c) the facility never discharged more than
100 gallons of total categorical wastewater on any given day during
this reporting period. This compliance certification is based upon
the following information:
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0
14. Section 403.13 is amended by revising the first sentence of
paragraph (g)(3) to read as follows:
Sec. 403.13 Variances from categorical pretreatment standards for
fundamentally different factors.
* * * * *
(g) * * *
(3) Where the User has requested a categorical determination
pursuant to Sec. 403.6(a), the User may elect to await the results of
the category determination before submitting a variance request under
this section. * * *
* * * * *
0
15. Section 403.15 is revised to read as follows:
Sec. 403.15 Net/gross calculation.
(a) Application. Categorical Pretreatment Standards may be adjusted
to reflect the presence of pollutants in the Industrial User's intake
water in accordance with this section. Any Industrial User wishing to
obtain credit for intake pollutants must make application to the
Control Authority. Upon request of the Industrial User, the applicable
Standard will be calculated on a ``net'' basis (i.e., adjusted to
reflect credit for pollutants in the intake water) if the requirements
of paragraph (b) of this section are met.
(b) Criteria. (1) Either:
(i) The applicable categorical Pretreatment Standards contained in
40 CFR subchapter N specifically provide that they shall be applied on
a net basis; or
(ii) The Industrial User demonstrates that the control system it
proposes or uses to meet applicable categorical Pretreatment Standards
would, if properly installed and operated, meet the Standards in the
absence of pollutants in the intake waters.
(2) Credit for generic pollutants such as biochemical oxygen demand
(BOD), total suspended solids (TSS), and oil and grease should not be
granted unless the Industrial User demonstrates that the constituents
of the generic measure in the User's effluent are substantially similar
to the constituents of the generic measure in the intake water or
unless appropriate additional limits are placed on process water
pollutants either at the outfall or elsewhere.
(3) Credit shall be granted only to the extent necessary to meet
the applicable categorical Pretreatment Standard(s), up to a maximum
value equal to the influent value. Additional monitoring may be
necessary to determine eligibility for credits and compliance with
Standard(s) adjusted under this section.
(4) Credit shall be granted only if the User demonstrates that the
intake water is drawn from the same body of water as that into which
the POTW discharges. The Control Authority may waive this requirement
if it finds that no environmental degradation will result.
Appendix A to Part 403 [Removed and Reserved]
0
16. Appendix A to part 403 is removed and reserved.
0
17. Appendix G to part 403 is amended as by revising Footnote 1 to
Table I to read as follows:
Appendix G to Part 403--Pollutants Eligible for a Removal Credit
I. Regulated Pollutants in Part 503 Eligible for a Removal Credit
* * * * *
1 The following organic pollutants are eligible for a removal credit
if the requirements for total hydrocarbons (or carbon monoxide) in
subpart E in 40 CFR Part 503 are met when sewage sludge is fired in
a sewage sludge incinerator: Acrylonitrile, ldrin/Dieldrin(total),
Benzene, Benzidine, Benzo(a)pyrene, Bis(2-chloroethyl)ether, Bis(2-
ethylhexyl)phthalate, Bromodichloromethane, Bromoethane, Bromoform,
Carbon tetrachloride, Chlordane, Chloroform, Chloromethane, DDD,
DDE, DDT, Dibromochloromethane, Dibutyl phthalate, 1,2-
dichloroethane, 1,1-dichloroethylene, 2,4-dichlorophenol, 1,3-
dichloropropene, Diethyl phthalate, 2,4-dinitrophenol, 1,2-
diphenylhydrazine, Din-butyl phthalate, Endosulfan, Endrin,
Ethylbenzene, Heptachlor, Heptachlor epoxide, Hexachlorobutadiene,
Alphahexachlorocyclohexane, Beta-hexachlorocyclohexane,
Hexachlorocyclopentadiene, Hexachloroethane, Hydrogen cyanide,
Isophorone, Lindane, Methylene chloride, Nitrobenzene, N-
Nitrosodimethylamine, N-Nitrosodi-n-propylamine, Pentachlorophenol,
Phenol, Polychlorinated biphenyls, 2,3,7,8-tetrachlorodibenzo-p-
dioxin, 1,1,2,2,-tetrachloroethane, Tetrachloroethylene, Toluene,
Toxaphene, Trichloroethylene, 1,2,4-Trichlorobenzene, 1,1,1-
Trichloroethane, 1,1,2-Trichloroethane, and 2,4,6-Trichlorophenol.
* * * * *
[FR Doc. 05-20001 Filed 10-13-05; 8:45 am]
BILLING CODE 6560-50-P