1
Identification
of
the
Substantive
Changes
to
the
Pretreatment
Streamlining
Rule
(
40
CFR
403)
Following
Submission
of
that
Draft
Final
Rule
to
Office
of
Management
and
Budget
for
Review
I.
Introduction
Consistent
with
Section
6(
a)(
3)(
E)(
ii)
of
Executive
Order
12866,
this
document
identifies
the
substantive
changes
made
by
the
U.
S.
Environmental
Protection
Agency
(
EPA)
to
the
final
rule,
Streamlining
the
General
Pretreatment
Regulations
for
Existing
and
New
Sources,
after
EPA
submitted
it
to
the
Office
of
Information
and
Regulatory
Affairs
of
the
Office
of
Management
and
Budget
(
OMB)
for
review
on
June
22,
2005.
The
June
22,
2005
submission
is
attached
as
Attachment
A.
This
memorandum
also
identifies
the
substantive
changes
made
at
the
suggestion
or
recommendation
of
OMB.

The
substantive
changes
made
by
EPA
after
the
Agency
submitted
the
final
to
OMB
on
June
22,
2005
are
discussed
in
Section
III
below.
The
substantive
changes
made
by
EPA
in
response
to
comments
made
by
OMB,
following
submission
to
OMB
on
June
22,
2005,
are
discussed
in
Section
III
below.

The
remaining
changes
made
by
EPA
to
the
June
22,
2005
version
of
the
rulemaking
package
were
non­
substantive
in
nature
(
i.
e.,
clarifying
or
enhancing
the
preamble=
s
statements
of
basis
and
purpose,
clarifying
the
rule=
s
language
or
presentation,
or
ensuring
that
statements
and
figures
in
the
preamble
and
rule
were
consistent
with
the
supporting
record).

II.
Substantive
Changes
Made
by
EPA
Independent
of
Comments
Made
by
OMB
A.
Equivalent
Mass
Limits
During
E.
O.
12866
review,
EPA
decided
to
modify
the
final
rule
to
exclude
facilities
regulated
by
the
Centralized
Waste
Treatment
(
CWT)
concentration­
based
categorical
Pretreatment
Standards
(
40
CFR
437)
from
eligibility
for
the
establishment
by
the
Control
Authority
of
equivalent
mass
limits.
EPA
determined
that
flow­
normalized
mass
based
limits
("
equivalent
mass
limits")
are
not
appropriate
for
the
CWT
industry
due
to
the
extremely
variable
nature
of
the
off­
site
waste
receipts.
Because
of
the
nature
of
this
industry,
pollutant
concentrations
and
volumes
in
the
off­
site
waste
receipts
can
vary
significantly
from
day
to
day.
EPA
found
no
correlation
between
the
volume
of
waste
receipts
and
its
pollutant
concentrations.

Furthermore,
to
be
eligible
for
equivalent
mass
limits,
the
discharging
facility
must
also
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
403.6(
c)(
5)(
i)(
A)).
The
vast
majority
of
wastewater
volume
at
CWT
facilities
is
generated
off­
site.
Because
a
CWT
facility
is
not
the
generator
of
these
wastewaters,
the
CWT
does
not
have
the
opportunity
to
affect
the
ultimate
volume
or
level
of
pollutants
in
the
off­
site
generated
wastewaters
(
i.
e.
2
pollution
prevention
methods
and
water
conservation
methods).
A
CWT
facility
would
only
have
the
ability
to
demonstrate
pollution
prevention
and
water
conservation
methods
as
it
applied
to
its
on­
site
generated
wastewater.
While
EPA
encourages
pollution
prevention
and
water
conservation
as
it
applies
to
on­
site
generated
wastewaters
at
CWT
facilities,
there
appears
to
be
little
opportunity
for
CWT
facilities
to
practice
additional
pollution
prevention
or
water
conservation
methods
that
would
justify
the
use
of
equivalent
mass
limits
per
40
CFR
403.6(
c)(
5).

B.
Removal
Credits
 
Compensation
for
Overflows
Following
submission
of
the
final
rule
to
OMB,
EPA
modified
the
conditions
under
which
POTWs
may
use
the
formula
in
40
CFR
403.7(
h)(
2)
to
adjust
removal
credits
to
account
for
Overflows.
The
previous
requirement
was
as
follows:
"
The
POTW
is
in
compliance
with
the
NPDES
permit
requirements
affecting
those
Overflows,
or
enforcement
order
or
decree
affecting
those
Overflows,
issued
pursuant
to
section
402(
q)(
1)
of
the
Act."
This
language
was
changed
in
the
final
rule
to
the
following
requirement:
"
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."

III.
Substantive
Changes
Made
by
EPA
in
Response
to
Comments
Made
by
OMB
A.
Pollutants
Not
Present
The
preamble
to
the
final
rule
as
submitted
to
OMB
stated
that
the
addition
of
sanitary
wastewater
alone
would
not
exclude
an
Industrial
User
from
obtaining
a
monitoring
waiver
for
pollutants
neither
present
or
expected
to
be
present.
During
E.
O.
12866
review,
OMB
recommended
making
this
explicit
in
the
rule
language
to
provide
greater
clarity
to
Control
Authorities
and
regulated
Industrial
Users.
EPA
revised
the
rule
to
provide
that
monitoring
waivers
were
authorized
despite
the
addition
of
sanitary
wastewater
to
the
wastestream,
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.
40
CFR
403.12(
e)(
2)(
i).

B.
General
Control
Mechanisms
The
preamble
to
the
final
rule
as
submitted
to
OMB
recommended
that
an
Industrial
User's
written
request
for
coverage
under
a
general
control
mechanism
include
the
facility's
identifying
information
(
e.
g.,
name,
address,
phone
number,
email,
etc.).
During
E.
O.
12866
review,
OMB
suggested,
and
EPA
agreed,
that
the
rule
should
explicitly
include
a
requirement
to
provide
the
Industrial
User's
contact
information
as
in
the
request
for
coverage.
40
CFR
403.8(
f)(
1)(
iii)(
A).
3
C.
Equivalent
Mass
Limits
for
Concentration­
Based
Categorical
Pretreatment
Standards
1.
Treatment
Requirement
The
final
rule
as
submitted
to
OMB
required
that
the
Industrial
User
must
demonstrate
that
it
"
currently
uses
control
measures
at
least
as
effective
as
the
control
and
treatment
technologies
that
serve
as
the
basis
for
that
particular
Standard."
During
E.
O.
12866
review,
at
OMB's
suggestion,
EPA
revised
this
requirement
statement
to
read,
"
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."
See
40
CFR
403.6(
c)(
5)(
i)(
B).

In
addition,
the
final
rule
as
submitted
to
OMB
required
that,
once
equivalent
mass
limits
were
effective
in
the
control
mechanism,
the
Industrial
User
must
"
maintain
and
effectively
operate
the
same
or
more
effective
control
and
treatment
technologies
as
those
that
were
in
place
at
the
time
the
equivalent
mass
limit
is
established."
During
E.
O.
12866
review,
OMB
suggested,
and
EPA
agreed,
that
this
language
be
replaced
with
a
requirement
that
the
Industrial
User
"
maintain
and
effectively
operate
control
and
treatment
technologies
adequate
to
achieve
compliance
with
the
equivalent
mass
limits."

2.
Recalculation
Requirement
The
final
rule
as
submitted
to
OMB
required
that
the
Control
Authority
periodically
recalculate
the
equivalent
mass
limit
to
account
for
changes
in
the
actual
average
daily
flow
rate
(
e.
g.,
at
each
renewal
of
the
Industrial
User
control
mechanism).
During
E.
O.
12866
review,
OMB
suggested
removing
this
explicit
requirement.
EPA
agreed
to
remove
this
explicit
requirement
from
the
final
rule
in
order
to
provide
some
additional
flexibility
to
the
Control
Authority
in
cases
where
there
is
a
conflict
between
water
conservation
and
equivalent
mass
limits
derived
from
the
Industrial
User's
actual
long­
term
average
daily
flow
rate.

D.
Oversight
of
Categorical
Industrial
Users:
Non­
Significant
Categorical
Industrial
Users
and
"
Middle
Tier"
CIUs
1.
"
Middle
Tier"
CIUs
The
final
rule
as
submitted
to
OMB
would
have
authorized
the
Control
Authority
to
establish
alternative
requirements
for
"
non­
significant
CIUs"
(
NSCIUs)
defined
as
those
discharging
less
than
100
gallons
per
day.
During
E.
O.
12866
review,
OMB
suggested
that
EPA
establish
a
"
Middle
Tier"
CIU
category,
which
would
be
subject
to
reduced
oversight
requirements.
EPA
agreed
to
this
revision,
and
adopted
the
Middle
Tier
CIU
eligibility
requirements
and
revised
oversight
responsibilities
described
below.
As
a
result
of
this
change,
4
Control
Authorities,
at
their
discretion,
are
now
able
to
designate
certain
Industrial
Users
as
Middle
Tier
CIUs.

Under
these
new
rules,
Industrial
Users
are
eligible
to
become
Middle
Tier
CIUs,
and
therefore
take
advantage
of
reduced
oversight
requirements,
if
they
meet
all
of
the
following
conditions:

 
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
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.

In
addition,
an
eligible
Middle
Tier
CIU
must
not
have
been
in
significant
noncompliance
(
SNC)
for
any
time
in
the
past
two
years,
and
must
not
have
daily
flow
rates,
production
levels,
or
pollutant
levels
that
vary
so
significantly
that
the
CIU
would
not
be
able
to
provide
representative
samples
through
its
reduced
reporting
requirements.

EPA
emphasizes
in
the
final
rule
that
Middle
Tier
CIUs
still
retain
their
SIU
status,
unlike
non­
significant
CIUs
(
NSCIUs).
The
following
minimum
oversight
requirements
apply
to
Middle
Tier
CIUs,
as
compared
to
traditional
SIUs
and
NSCIUs:

Control
Mechanism
Required?
Minimum
CIU
Reporting
Requirements
Minimum
POTW
Inspection
/
Sampling
Requirements
NSCIUs
No*
Certification
only
(
no
reporting),
one
time
per
year
Not
required
"
Middle
Tier"
Significant
CIU
Yes
One
time
per
year
(
if
representative
of
discharge
conditions
during
reporting
period)
One
time
every
other
year
All
Other
Significant
CIUs
Yes
Two
times
per
year
(
at
a
minimum)
One
time
per
year
*
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.

2.
NSCIUs
 
Measurement
of
Categorical
Flows
The
final
rule
as
submitted
to
OMB
defined
NSCIUs
as
CIUs
that
discharge
less
than
100
gpd
of
"
total
process
wastewater
flow".
During
E.
O.
12866
review,
OMB
suggested
that
EPA
5
rephrase
this
requirement
as
"
total
categorical
wastewater
flow."
40
CFR
403.3(
v)(
2).
EPA
agreed
to
this
change.
At
OMB's
suggestion,
EPA
included
a
discussion
in
the
preamble
explaining
when
it
may
be
necessary
for
the
Control
Authority
to
use
"
total
process
wastewater
flow"
to
determine
whether
an
Industrial
User
is
an
NSCIU,
based
on
the
degree
to
which
categorically­
regulated
flows
may
be
distinguished
from
the
total
process
flow.

3.
NSCIUs
 
Annual
Control
Authority
Evaluation
In
the
preamble
to
the
final
rule
as
submitted
to
OMB
EPA
had
recommended
that
Control
Authorities
consider
annually
inspecting
their
NSCIUs
to
verify
compliance
with
the
nonsignificant
criteria.
During
E.
O.
12866
review,
OMB
recommend
that
this
be
changed
to
emphasize
that
EPA
anticipates
the
NSCIU
evaluation
"
will
primarily
involve
the
Control
Authority's
verification
that
certification
forms
have
been
submitted
by
all
NSCIUs
documenting
continued
eligibility
for
NSCIU
status
and
compliance
with
applicable
Pretreatment
Standards
and
Requirements."
EPA
agreed
to
this
modification.

E.
Substantial
vs.
Non­
Substantial
Modifications
to
POTW
Pretreatment
Programs
In
the
preamble
to
the
final
rule
as
submitted
to
OMB,
EPA
had
stated
that
changes
to
pretreatment
programs
to
adopt
the
streamlining
provisions
related
to
the
use
of
general
control
mechanisms
and
BMPs
would
likely
require
a
review
by
the
Approval
Authority
as
substantial
modifications
under
40
CFR
403.18.
During
E.
O.
12866
review,
OMB
suggested
that
this
recommendation
be
removed.
EPA
agreed
to
this
change.
The
final
rule
now
indicates
that
EPA
has
concluded
that
all
of
the
changes
related
to
the
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
Agency
also
stated
that
the
Approval
Authority
may
treat
modifications
related
to
this
rule
as
substantial
when
appropriate.
1
Attachment
A
 
June
22,
2005
Version
of
the
Streamlining
Rule
(
Submitted
to
OMB/
OIRA)

ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
403
[
OW­
2002­
0007;
FRL­
XXXX­
X]
[
Insert
the
Docket
Id
#
&
the
FRL
#
in
brackets.
The
Docket
Id
#
is
the
same
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assigned
to
your
action
at
the
ANPRM
or
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stage
(
only
exception
is
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was
created
before
EDOCKET
(
i.
e.,
it
is
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"
legacy
docket").
The
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is
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document,
so
you
should
get
the
FRL
#
from
the
Agency's
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Liaison
when
your
signature
version
is
being
finalized.]

[
RIN
2040­
AC58]

Streamlining
the
General
Pretreatment
Regulations
for
Existing
and
New
Sources
of
Pollution
AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Final
Rule
SUMMARY:
Today's
final
rule
revises
several
provisions
of
the
General
Pretreatment
Regulations
that
address
restrictions
on
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.
Today's
action
will
reduce
the
regulatory
burden
on
both
industrial
users
and
State
and
POTW
Control
Authorities
without
affecting
environmental
protection.

DATES:
This
final
rule
is
effective
on
[
insert
date
[
insert
#]
days
after
publication
in
the
Federal
Register].
{[
May
also
include
other
effective
dates,
e.
g.,
for
judicial
review.]}

ADDRESSES:
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OW­
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0007.
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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).
2
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:
pickrel.
jan@
epa.
gov.
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:
schaner.
greg@
epa.
gov.

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?
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)(
5))
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
­
Overflows
(
40
CFR
403.7)
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)
and
40
CFR
403.12(
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
3
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
1321:
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
action
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:

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
Category
Examples
of
regulated
entities
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
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
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

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.
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.
[
May
need
to
be
revised
reflect
e­
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
4
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
[
need
to
set
up
web
link
and/
or
page
for
streamlining].

[
Update
to
reflect
current
e­
Docket]
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).

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
5
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?
6
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
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,
at
a
much
lower
cost
than
upgrading
treatment;
 
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
Proposing
To
Revise?

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
the
Domestic
Sewage
Study
(
55
FR
30082,
July
24,
1990).
7
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.
While
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
provide
greater
flexibility,
reduce
burden,
and
achieve
greater
environmental
results
at
less
cost.
The
revisions
in
today's
final
rule
achieve
this
objective
by
reducing
the
burden
of
technical
and
administrative
requirements
that
affect
industrial
users
and
POTW
and
State
Control
Authorities.
At
the
same
time,
EPA
took
care
to
ensure
that
the
changes
being
finalized
do
not
in
any
way
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),
8
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.
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.
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
pretreatment
programs,
where
the
state
is
not
authorized
to
run
the
program,
and
as
the
Control
Authority
for
POTWs
without
an
approved
Pretreatment
Program.

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
pollutant
limits
to
industrial
users
in
specific
industrial
categories.
The
General
Pretreatment
9
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
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.
 
Authorizes
POTWs
to
use
general
control
mechanisms
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
requirements,
and
establishes
greater
consistency
with
the
sampling
protocols
in
other
parts
of
EPA's
regulations.
 
Provides
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
for
other
industrial
categories.
 
Authorizes
POTWs
to
establish
alternative
sampling,
reporting,
and
inspection
requirements
for
non­
significant
categorical
Industrial
Users
(
NSCIUs).
10
 
Clarifies
the
definition
of
significant
noncompliance
(
SNC)
as
it
applies
to
violations
of
instantaneous
and
narrative
requirements,
and
late
reports,
and
makes
less
costly
the
requirement
to
publish
industrial
facilities
in
SNC
annually
in
the
newspaper.
The
rule
also
retains
existing
rules
or
policies
regarding
the
application
of
SNC
to
the
technical
review
criteria
(
TRC)
and
the
determination
of
SNC
status
using
the
"
rolling
quarter"
approach.
 
Removes
obsolete
references
relating
to
removal
credits
and
overflows,
and
discusses
options
for
obtaining
removal
credits
for
additional
chemicals
as
a
result
of
EPA's
sewage
sludge
studies.
 
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.

Issue
Section
of
40
CFR
403
rules
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
flow­
based
standards
403.6(
c)(
6)

Equivalent
mass
limits
for
concentration­
based
standards
403.6(
c)(
5)

Use
of
grab
and
composite
samples
403.12(
b),
(
d),
(
e),
(
g),
(
h)
Significant
noncompliance
criteria
403.8(
f)(
2)(
vii)
Removal
credits
403.7(
h)(
2)(
ii),
(
iii)
Non­
Significant
CIU
403.3(
f)(
2)(
v),
(
v)(
2),
403.12(
i),
(
e),
(
q)
Miscellaneous
changes
403.12(
g),
(
j),
(
l),
(
m)

II.
How
Was
This
Final
Rule
Developed?

This
rule
was
initiated
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
initiated
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
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
comments.
The
Agency
also
considered
recommendations
developed
through
a
joint
Association
of
Metropolitan
11
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
issued
in
July
1999.

EPA
received
221
sets
of
comments
on
the
proposed
rule.
Comments
were
received
from
individual
POTWs
and
industrial
users,
trade
groups
representing
those
interests
(
predominantly
members
of
AMSA),
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
on
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
§
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.
See
40
CFR
122.44(
a)(
2).
When
it
is
a
POTW
that
is
the
control
authority
determining
that
the
pollutant
is
not
present,
the
POTW
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
A
pollutants
not
present@
it
is
using
this
phrase
as
short­
hand
for
,

A
pollutant
neither
present
nor
expected
to
be
present.@
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
12
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
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
when
the
pollutant
is
determined
to
be
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.
Where
the
POTW,
as
control
authority,
determines
that
a
pollutant
is
neither
present
nor
expected
to
be
present,
the
POTW=
s
monitoring
requirements
for
that
pollutant
may
13
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.

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
at
least
one
sample
prior
to
treatment
which
is
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
does
not
supercede
any
certification
processes
and
requirements
that
have
been
established
in
specific
categorical
pretreatment
standards.

4.
Summary
of
Major
Comments
and
EPA
Response
How
does
EPA
define
A
not
present?@
In
the
preamble
to
the
proposed
amendments,
EPA
specifically
requested
comment
on
how
to
define
what
is
meant
by
A
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
14
water
based
on
A
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
believe
that
the
final
regulatory
language
is
sufficiently
clear
to
avoid
confusion.

In
response
to
commenters
that
suggested
that
A
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.
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.
To
the
extent
that
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.

Several
commenters
also
suggested
that
if
a
pollutant
is
added
in
A
negligible@
amounts
or
in
amounts
equal
to
A
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
effluent
guidelines
pollutants.
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
A
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
15
dischargers
with
respect
to
its
earlier
conclusion.

Some
commenters
also
suggested
that
EPA
clarify
that
the
term
A
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
and
not
the
result
of
activities
of
the
industrial
user,
then
a
monitoring
waiver
may
be
approved
by
the
control
authority.
Note
that
accurate
flow
measurements
will
be
necessary
to
determine
the
exact
mass
of
each
wastestream
to
demonstrate
that
small
amounts
of
the
pollutant
are
not
added
in
the
course
of
the
facility
activity.
EPA
also
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.
Of
course
to
the
extent
that
the
concentration
is
increased
significantly
for
any
reason,
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
A
levels@
of
pollutants
in
the
intake
water
rather
than
the
A
concentration@
of
pollutants
in
the
intake
water.
This
wording
change
is
consistent
with
the
similar
NPDES
permitting
requirement
(
see
40
CFR
122.44(
a)(
2)(
i)).

One
commenter
noted
that
EPA=
s
use
of
the
phrase
A
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
A
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
A
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.

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
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.
16
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
also
believes
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,
either
because
the
pollutants
are
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,
EPA
expects
that
the
waiver
request
would
not
be
granted.
17
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,

A
unregulated@
wastestreams
may
be
covered
by
the
categorical
standard
through
the
adjusted
standard.
Therefore,
EPA
does
not
believe
that
it
is
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,
EPA
contemplates
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.

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
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
that
support
the
technical
evaluation.
Where
monitoring
data
shows
that
the
pollutant
is
present
at
levels
above
the
background
intake
water
level,
the
control
authority
would
be
expected
to
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
believes
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
A
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
18
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
should
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
believes
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
and
after
treatment
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,
background
levels
of
pollutants
in
the
industrial
user=
s
influent
water
will
vary
from
POTW
to
POTW,
and
possibly
from
industrial
user
to
industrial
user
based
on
many
factors.
Therefore,
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.
If
historical
data
is
available,
either
based
on
prior
sampling
by
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
has
been
running
continuously
for
at
least
several
minutes,
rather
than
pollutant
levels
of
intake
water
that
has
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
19
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
in
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
believes
that
if
the
control
authority
has
determined,
based
on
both
sampling
data
and
a
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.
The
control
authority
has
the
discretion
to
determine
that
the
industrial
user
should
be
required
to
monitor
for
a
pollutant
that
is
not
present
in
addition
to
the
POTW
monitoring,
even
at
a
frequency
of
less
than
twice
per
year.
Of
course,
if
the
industrial
user
monitors
on
its
own,
even
though
the
requirement
to
do
so
has
been
waived,
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,
EPA
believes
that
at
least
one
effluent
sample
during
the
term
of
the
industrial
user=
s
control
mechanism
is
appropriate
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
20
user.
EPA
believes
that
the
most
appropriate
time
for
the
monitoring
to
occur
is
during
the
renewal
of
the
control
mechanism.
However,
EPA
also
believes
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
believe
that
there
is
always
a
significant
benefit
gained
by
requiring
the
monitoring
at
that
industrial
user=
s
facility
of
a
pollutant
associated
with
past
POTW
problems
and,
therefore,
will
not
prohibit
granting
a
waiver.
Of
course,
granting
the
waiver
is
at
the
discretion
of
the
control
authority,
and
where
there
has
been
a
history
of
problems
with
that
pollutant
at
the
POTW,
the
control
authority
may
deny
a
waiver,
even
if
the
industrial
user
requesting
the
waiver
has
demonstrated
that
the
pollutant
is
not
present
and
that
its
discharge
was
not
the
cause
of
the
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,
EPA
expects
the
control
authority
to
deny
the
request
for
a
waiver.
21
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).

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
for
which
monitoring
can
be
conducted
in
lieu
of
other
pollutants.
For
example,
the
can
making
subpart
of
the
coil
coating
regulations,
40
CFR
465.40,
allows
for
monitoring
of
oil
and
grease
in
lieu
of
monitoring
for
total
toxic
organics.
Where
an
industrial
user
subject
to
the
can
making
regulations
is
monitoring
for
oil
and
grease
in
lieu
of
monitoring
for
total
toxic
organics,
today=
s
rule
would
allow
for
a
waiver
of
oil
and
grease
monitoring
if
the
control
authority
determines
that
the
waiver
is
appropriate
based
on
the
sampling
data
and
technical
evaluation
of
the
facility
submitted
by
the
industrial
user.

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
added
to
the
wastestream.
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
22
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
include
a
reopener
clause
which
allows
the
control
authority
to
revise
or
revoke
the
waiver
if
appropriate.

The
notification
requirement
for
pollutants
neither
present
nor
expected
to
be
present
also
requires
the
industrial
user
to
provide
notification
in
the
event
that
it
installs
or
constructs
new
production
lines
or
processes.
Where
a
facility
has
been
granted
a
waiver
of
monitoring
for
a
pollutant
that
has
been
determined
not
to
be
present,
the
industrial
user
must
evaluate
the
new
production
lines
or
processes
and
apply
for
the
waiver
based
on
the
new
processes.

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
twiceper
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
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)(
iv)
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.
23
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
during
some
specific
initial
period.

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.
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
controls
for
discharges
from
SIUs
to
POTWs
which
are
similar
to
the
general
permits
used
in
the
NPDES
program.
24
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
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
permit,
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
permits
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).
Prior
to
today,
this
emphasis
on
site­
specific
requirements
has
caused
confusion
about
whether
general
control
mechanisms
can
be
used
to
control
SIUs.

2.
What
changes
did
EPA
propose?

EPA
proposed
to
clarify
the
regulation
by
explicitly
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
25
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,
but
where
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.
Changes
to
the
POTW's
Pretreatment
Program
to
use
general
control
mechanisms
for
SIUs
should
be
reviewed
by
the
Approval
26
Authority
as
a
"
substantial
modification"
under
40
CFR
403.18.
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
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
issuing
individual
control
mechanisms
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
27
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)(
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
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
Domestic
Sewage
Exclusion
(
DSE)
study
in
1986,
was
intended
to
provide
a
mechanism
for
the
POTW
to
impose
individualized
pretreatment
requirements
on
SIUs.
See
55
Fed.
Reg.
30105­
30110
(
July
24,
1990).
However,
EPA
does
not
agree
with
the
commenter's
conclusion
that
the
use
of
general
control
mechanisms
for
SIUs
runs
counter
to
individualized
control
and
will
somehow
lessen
the
POTW's
28
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).
EPA
suggests
that
POTWs
also
request
basic
identifying
information
(
e.
g.,
contact
name,
address,
phone
number,
etc.)
and
specification
of
the
general
control
mechanism
category
for
which
the
SIU
is
seeking
coverage.
The
POTW
will
need
to
obtain
sufficient
information
to
verify
that
the
user
is
appropriately
classified
under
the
general
control
mechanism,
such
as
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."
(
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
29
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
believe
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
general
control
mechanism
coverage.
EPA
notes
that
the
criteria
listed
in
§
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
believes
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
noncategorical
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
believes
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
30
"
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
be
excluded
from
coverage.

EPA
believes
that
the
criteria
for
inclusion
in
a
general
control
mechanism
category
are
appropriate.
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
§
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
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
31
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?
32
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
(
IU)
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
33
reporting
compliance
data
related
to
BMPs,
the
Part
403
Pretreatment
Regulations
did
not.
See
§
403.12(
b),
(
d),
and
(
e).
Those
requirements
focused
on
sampling
data
to
demonstrate
compliance
with
numeric
limits
rather
than
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
national
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
establish
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.
34
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.
There
may
even
be
situations
where
it
is
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
A
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.
35
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
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,
when
chemical
analyses
are
inappropriate,
or
where
other
discharge
options
are
inappropriate.
Nevertheless,
a
POTW
needs
to
assign
an
allocation
to
the
pollutants
and
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
A
pre­
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
36
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
(
§
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
(
§
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,
such
limits
would
not
be
federally
enforceable.
In
this
instance,
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.
Any
change
to
this
application
of
403.5
would
go
beyond
the
scope
of
the
proposed
rule.

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
generally
be
considered
either
substantial
or
nonsubstantial
program
modifications
under
40
CFR
403.18
(
see
discussion
below
and
in
Section
VI)
and
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
37
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.
POTWs
should
include
language
in
the
sewer
use
ordinance
and/
or
facility
control
mechanisms
that
the
authorization
to
use
BMPs
can
be
revoked
when
the
POTW
determines
that
the
user
has
not
complied
with
applicable
BMPs,
or
where
the
POTW
determines
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.
In
most
cases,
the
initial
adoption
of
a
BMP
will
be
a
substantial
modification
subject
to
the
provisions
of
40
CFR
403.18(
b)
where
it
replaces
a
different
form
of
local
limits,
and
where
it
is
considered
to
involve
a
modification
that
relaxes
local
limits.
This
is
discussed
in
more
detail
in
Section
VI.
38
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,
similar
to
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
daysfrom
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
against
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
prevent
slug
discharges.
POTWs
may
still
require
the
39
SIU
to
develop
a
slug
control
plan
or
take
specified
preventative
measures
to
prevent
slug
discharges
whenever
the
facility's
slug
prevention
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)).
The
regulations
also
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)(
vu)(
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
only
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.

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
40
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
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
41
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
recommends
that
POTWs
assess
the
adequacy
of
slug
control
plans
during
the
POTW's
annual
inspection.

EPA
emphasizes
that
today's
final
rule
does
not
alter
the
POTW's
requirements
to
conduct
annual
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
plan,
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
42
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
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.
EPA
believes
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
43
suggests
that
POTWs
and
SIUs
consult
the
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.
EPA
would,
however,
suggest
that
a
more
appropriate
application
of
these
criteria
would
require
slug
control
plans
when
there
is
a
significant
risk
of
any
slug
discharge,
not
just
a
"
harmful
slug",
as
a
result
of
the
amount
of
stored
materials,
the
absence
of
sufficient
secondary
containment,
and/
or
the
proximity
of
drains
to
the
sewer.

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
44
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,
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)(
1)(
iii)(
F)
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),
and
that
where
a
slug
control
plan
or
other
action
was
not
deemed
necessary,
a
plan
to
periodically
re­
evaluate
the
SIU
for
the
need
for
a
plan
or
other
action
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,
although
POTWs
still
have
the
responsibility
to
ensure
that
these
notifications
have
been
made
during
the
facility
inspections.
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
45
mechanism?
One
commenter
was
opposed
to
what
it
interpreted
as
EPA's
requirement
in
40
CFR
403.8(
f)(
1)(
iii)(
F)
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
§
403.8(
f)(
1)(
iii)(
F)
to
require
the
inclusion
of
the
entire
slug
control
plan
in
the
SIU's
control
mechanism.
Section
403.8(
f)(
1)(
iii)(
F)
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
430.6(
c)(
5))

Today's
amendment
to
the
pretreatment
regulations
authorizes
the
use
of
concentrationbased
limits
in
lieu
of
flow­
based
mass
limits
for
the
facilities
in
the
Organic
Chemicals,
Plastics,
and
Synthetic
Fibers
(
OCPSF)
(
40
CFR
414),
Petroleum
Refining
(
40
CFR
419),
and
Pesticide
Chemicals
(
40
CFR
455)
point
source
categories.
The
Control
Authority
may
use
the
concentration
limits
listed
in
the
categorical
pretreatment
standards
for
these
two
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
Parts
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
Part
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
Point
Source
Category
(
OCPSF),
for
new
indirect
dischargers
in
the
Petroleum
Refining
point
source
category,
and
for
new
and
existing
indirect
dischargers
in
the
Pesticide
Chemicals
point
source
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
46
(
see
Parts
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,
pesticide
chemicals
indirect
discharger,
or
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
July
9,
1993;
58
FR
36890).

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
§
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
July
9,
1993;
58
FR
36890).
Finally,
a
permit
may
be
modified
during
its
term,
either
at
the
request
of
the
permittee
(
or
another
interested
party)
or
on
EPA'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
July
9,
1993;
58
FR
36891).

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
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
explained
how
to
determine
mass
limits
for
such
standards
in
the
preamble
to
the
proposed
Organic
Chemicals,
Plastics,
and
Synthetic
Fibers
(
OCPSF)
regulation
(
see
March
21,
1983;
48
FR
11828)
and
in
the
supporting
Technical
Development
Document
(
EPA
440­
1­
83­
009­
b,
February
1983,
Page
IX­
2).
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
47
§
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.

The
combined
wastestream
formula
was
amended
on
May
17,
1984
to
provide
the
Control
Authority
with
the
discretion
to
change
the
designation
of
boiler
blowdown
streams
and
noncontact
cooling
water
streams
from
"
dilution"
to
"
unregulated"
streams.
The
individual
industrial
user
must
show
that
these
"
dilution"
streams
do
contain
pollutants
and
treatment
will
reduce
the
discharge
of
these
pollutants.
The
streams
could
then
be
designated
as
"
unregulated"
wastestreams
since
no
national
standards
exist
for
these
streams.
This
usually
results
in
the
development
of
a
less
stringent
alternative
limitation
than
if
these
same
streams
remained
defined
as
dilution
streams
(
OCPSF
comments
response
document:
Outline
Code:
CA03
 
85,
Comment
#
6).

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
massbased
limits.
In
order
to
measure
compliance,
both
flow
and
concentration
of
the
pollutant
needs
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.
48
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
point
source
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
flowbased
mass
limits
for
new
and
existing
indirect
dischargers
in
the
OCPSF
point
source
category,
new
indirect
dischargers
in
the
Petroleum
Refining
point
source
category,
and
new
and
existing
indirect
dischargers
in
the
Pesticide
Chemicals
point
source
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
A
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)(
5),
applicable
only
to
facilities
in
the
OCPSF,
Petroleum
Refining,
and
Pesticide
Chemicals
point
source
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.
49
When
are
the
equivalent
concentration
limits
effective?

EPA
notes
that
flow­
based
mass
standards,
like
all
national
categorical
Pretreatment
Standards,
are
self­
implementing
for
new
and
existing
indirect
dischargers
in
the
OCPSF
point
source
category
and
for
new
indirect
dischargers
in
the
Petroleum
Refining
point
source
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)(
5).
Where
the
Control
Authority
has
not
issued
a
control
mechanism
that
establishes
categorical
concentration­
based
limits
or
has
not
correctly
transcribed
such
limits
into
the
facility's
control
mechanism,
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
Pesticide
Chemicals
point
source
category,
the
applicable
concentration
based
limits
are
self­
implementing.
Where
the
Control
Authority
has
not
issued
a
control
mechanism
that
correctly
establishes
flow­
based
mass
limits
as
required,
the
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
point
source
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
could
replace
the
mass
limit.
The
Control
Authority
may
also
determine
that
both
the
flow­
based
mass
limit
as
well
as
the
concentration­
based
limit
are
applicable
and
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.
50
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
A
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
A
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
A
highly
variable
flow,@
while
five
commenters
requested
that
EPA
not
specify
a
definition
for
A
highly
variable
flow@
in
the
regulations.

EPA
acknowledges
that
the
there
are
numerous
factors,
many
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
the
Pretreatment
Streamlining
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
A
control
technology,
processes,
operating
methods
or
other
51
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
Point
Source
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
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
52
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:
53
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.

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
54
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
55
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
alternate
sampling
(
time­
proportional
composite
samples
or
grab
samples)
must
still
be
representative
of
the
discharge
and
would
need
to
be
documented
by
the
Control
Authority
in
the
industrial
user=
s
records.

If
the
Control
Authority
doubts
the
equivalency
of
the
two
sampling
methodologies
(
time­
proportional
versus
flow­
proportional
samples),
because
of
highly
variable
flow
or
other
complicating
factors,
it
still
may
require
the
industrial
user
to
demonstrate
that
the
time­
proportional
or
grab
samples
are
representative
of
the
discharge
prior
to
allowing
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.
Documentation
should
include
the
use
of
statistical
analysis
of
grab
and
composite
data
sets.
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.
[
http://
www.
epa.
gov/
region09/
water/
pretreatment/
program_
impl.
html]
These
sampling
data
56
included
both
individual
grab
and
flow­
proportional
composite
sampling
obtained
during
different,
non­
overlapping
time
periods.
After
reviewing
the
data,
OWRS
concluded
that
the
composite
and
grab
sample
data
sets
displayed
similar
patterns
for
lead,
copper,
and
total
metals.
In
fact,
the
analyses
did
not
find
any
statistically
significant
difference
in
the
concentration
values
measured
between
the
grab
and
composited
data.
Furthermore,
additional
statistical
tests
of
the
two
data
sets
indicated
that
the
means
and
variances
for
each
pollutant
were
similar.
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
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
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."
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.
57
The
following
sentences
at
40
C.
F.
R.
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
58
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
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
Requirement."
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.
In
those
cases,
Control
Authorities
may
need
to
take
side­
by­
side
samples
and/
or
perform
a
statistical
analysis
to
show
that
there
is
not
a
statistically
significant
59
difference
in
the
concentration
values
measured
between
individual
grab
and
flow­
proportional
composite
sampling
obtained
during
different,
non­
overlapping
time
periods.

Will
EPA
define
"
representative"
sampling
in
the
rule?
Commenters
noted
that
the
rules
repetitively
use
the
concept
of
A
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
A
representative
sample@
or
specific
guidance.
EPA
is
not
defining
A
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
A
daily
discharge@
in
the
NPDES
regulations
at
40
CFR
122.2.
Daily
discharge
means
the
A
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
A
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
A
daily
discharge@
is
calculated
as
the
average
measurement
of
the
pollutant
over
the
day.
This
is
existing
policy
and
was
not
proposed
to
be
included
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:
00
AM
to
7:
00
PM,
must
a
sample
be
taken
from
7:
00
AM
to
7:
00
PM,
or
may
a
sample
be
taken
from
noon
on
one
day
to
noon
on
the
next
day
so
long
as
only
regulated
wastewater
is
60
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:
00
PM
to
7:
00
AM
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:
00
PM
to
7:
00
AM),
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."

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))
61
1.
What
were
the
rules
in
effect
prior
to
today's
rule?

How
is
"
Significant
Noncompliance"
(
SNC)
currently
defined?

40
CFR
403.8(
f)(
2)(
vii)
defines
"
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
during
a
six­
month
period
exceed
the
daily
maximum
limit
or
the
average
limit
for
the
same
pollutant
parameter);
(
2)
technical
review
criteria
(
TRC)
violations
(
where
33
percent
or
more
of
all
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
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
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
62
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
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
the
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
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)
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).
63
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
SNC
policy
which
only
applies
to
major
dischargers.
See
A
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
impact
the
POTW.
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)
to
apply
to
a
broader
range
of
violations
such
as
other
numeric
limits,
instantaneous
limits,
narrative
limits,
or
operational
standards
to
numeric
pretreatment
standards,
and
amending
40
CFR
403.8(
f)(
2)(
vii)(
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
nonmonthly
average
limitations.
See
A
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
64
EPA
is
amending
40
CFR
403.8(
f)(
2)(
vii)(
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
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
40
CFR
403.8(
f)(
2)(
vii)(
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:
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.

TRC:
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
65
EPA
did
not
propose
any
changes
to
40
CFR
403.8(
f)(
2)(
vii)(
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
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
A
meaningful
public
notice@
to
ensure
some
level
of
consistency
across
the
pretreatment
programs.
Some
commenters
provided
suggestions
for
defining
A
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
A
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
A
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
66
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
are
properly
identified
as
SIUs.
The
commentors
also
noted
that
all
IUs
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
force
larger
users
to
shoulder
the
regulatory
burden,
because
this
definition
would
not
apply
to
IUs
that
could
cause
the
same
types
of
impacts
as
SIUs.
EPA
agrees
that
certain
Industrial
Users
should
be
published
as
SNC.
By
including
the
application
of
SNC
to
SIUs
and
those
IUs
which
cause
the
specific
problems
referenced
above,
the
commenters'
concerns
should
be
addressed.

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
40
CFR
403.3(
t)
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
effluent
limits,
excluding
local
limits.
Another
commenter
indicated
that
the
Control
Authorities
often
are
required
to
make
A
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
67
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
believes
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
A
EPA=
s
recent
revision
to
its
NPDES
SNC
policy
where
EPA
broadened
the
criteria
to
address
non­
monthly
average
limit
violations.@
See
A
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
nonmonthly
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.
EPA
has
decided
not
to
modify
the
regulations
for
circumstances
in
which
the
monthly
average
is
exceeded
to
include
caveats
regarding
whether
it
is
appropriate
to
consider
non­
monthly
averages
(
i.
e.,
daily
maximum,
instantaneous
limits)
for
SNC
determinations.

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).
As
described
in
the
preamble
to
the
proposed
rule
(
64
FR
39593),
these
TRC
A...
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
68
regarding
local
limits.
EPA
stated
that
it
was
A...
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
A...
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
A
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,
A(
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
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
A
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
noncompliance
should
make
the
authority
sufficiently
concerned
and
warrant
appropriate
action.
As
such,
EPA
believes
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
believes
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.
69
One
commenter
indicated
that
TRC
should
only
apply
if
the
levels
are
at
least
five
times
the
applicable
standard.
EPA
believes
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
TRC
and
chronic
criteria,
EPA
modify
the
percentages
to
34%
and
67%
of
all
measurements
taken,
respectively,
of
the
number
of
measurements
taken
that
exceed
the
applicable
standard
for
the
violations
to
rise
to
the
level
of
SNC.
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
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
70
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.
EPA
believes
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
or
late
reporting,
or
should
consider
the
Industrial
User's
compliance
history.
For
example,
some
commenters
suggested
that
a
late
reporters
be
considered
in
SNC
if
33
percent
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
believes
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
believes
that
this
provision
might
minimize
the
importance
of
reporting
as
a
tool
for
POTWs
to
implement
local
Pretreatment
Programs.
Also,
EPA
strongly
believes
that
the
SNC
criterion
for
late
reports
must
address
reports
that
are
submitted
extremely
late
or
that
are
never
submitted,
even
if
the
71
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
believes
that
this
change
is
not
appropriate
because
most
cases
of
late
laboratory
reports
or
other
miscommunications
can
be
addressed
quickly.
EPA
also
believes
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
EPA
apply
changes
to
the
SNC
criterion
for
late
reports
should
only
apply
to
periodic
self­
monitoring
reports
and
90­
day
self
compliance
reports.
EPA
believes
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
believe
that
the
commenter's
interpretation
is
valid
or
that
any
change
is
needed
to
this
language.

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
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
warning
a
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
72
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
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
A
roll@
time
periods
after
a
violation
occurs,
thus
giving,
as
one
commenter
stated,
the
possibility
to
A...
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
FR39594)
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
73
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),
EPA
specifically
sought
comment
on
whether
the
regulations
should
be
revised
to
allow
Control
Authorities
to
waive
the
second
publication
(
as
described
above)
A
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
A(
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.@
EPA
does
not
believe
there
is
a
need
to
revise
the
regulations
on
this
point.

H.
Removal
Credits
1.
What
are
the
existing
rules?

Removal
credits
are
a
regulatory
mechanism
by
which
industrial
users
may
discharge
a
pollutant
in
quantities
that
exceed
what
would
otherwise
be
allowed
under
an
applicable
categorical
pretreatment
standard
because
it
has
been
determined
that
the
POTW
to
which
the
industrial
user
discharges
consistently
removes
the
pollutant.
The
pretreatment
regulations
define
what
is
meant
by
the
POTW's
"
consistent
removal"
at
40
CFR
403.7(
b).

Removal
credits
may
be
made
available
for
pollutants
that
are
listed
in
appendix
G
section
I
of
Part
403
for
the
sludge
use
or
disposal
practice
employed
by
the
POTW,
when
the
requirements
in
40
CFR
Part
503
are
met
or
for
pollutants
listed
in
appendix
G
section
II
of
this
part
when
the
concentration
for
a
pollutant
in
the
sewage
sludge
does
not
exceed
the
concentration
for
the
pollutant
in
appendix
G
section
II.
In
addition,
removal
credits
may
be
made
available
for
any
pollutant
in
sewage
sludge
when
the
POTW
disposes
all
of
its
sewage
sludge
in
a
municipal
solid
waste
landfill
unit
that
meets
the
criteria
in
40
CFR
Part
258.

Where
overflows
occur
prior
to
the
POTW
treatment
plant
at
least
once
per
year,
the
74
POTW
may
still
claim
"
consistent
removal"
of
the
pollutant,
but
only
if
in
accordance
with
40
CFR
403.7(
h):
(
1)
the
industrial
user
demonstrates
that
the
Overflow
does
not
occur
between
it
and
the
POTW
Treatment
Plant;
(
2)
the
industrial
user
provides
containment
or
ceases
its
process
discharge
during
all
circumstances
in
which
an
Overflow
event
is
reasonably
expected
to
occur;
or
(
3)
the
"
consistent
removal"
is
reduced
in
accordance
with
the
number
of
hours
in
a
given
year
that
Overflows
occur
and
the
POTW
is
in
compliance
with
applicable
CSO
requirements.
It
is
the
third
criterion
(
i.
e.,
relating
to
reducing
the
removal
credits
in
correlation
to
the
number
of
hours
a
POTW
experienced
CSOs)
that
was
the
subject
of
the
proposal.

2.
What
changes
did
EPA
propose?

EPA
proposed
to
make
industrial
users
that
are
upstream
of
overflows
ineligible
for
removal
credits
unless
it
could
be
established
that
their
discharges
would
be
consistently
treated.
According
to
the
proposal,
if
any
Overflow
point
received
treatment
(
e.
g.,
primary
clarification
at
the
outfall)
that
was
demonstrated
to
provide
consistent
removal
of
a
percentage
of
a
pollutant,
then
the
POTW
responsible
for
that
outfall
would
be
able
to
apply
for
removal
credit
authority
for
that
percentage
using
the
procedures
in
40
CFR
403.7(
b)
for
determining
consistent
removal.
However,
if
no
treatment
occurs
at
any
Overflow
points
downstream
from
an
industrial
user,
that
industrial
user
would
not
be
eligible
for
a
removal
credit
and
would
have
to
comply
with
the
national
categorical
pretreatment
standard.
Consistent
with
that
approach,
the
proposal
would
have
deleted
the
existing
provision
in
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
obsolete
guidance
on
construction
grants
review
procedures
for
developing
CSOs
control
were
to
be
removed
by
deleting
Appendix
A
as
well
as
discussion
of
that
guidance
in
40
CFR
403.7(
h)(
2).

3.
What
changes
is
EPA
finalizing
in
today's
rule?

Today,
EPA
is
amending
the
removal
credits
overflow
provisions
to
delete
the
requirements
of
obsolete
guidance
published
in
1975,
for
the
construction
grants
program;
existing
sections
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
NPDES
permit
requirements,
orders
or
decrees
affecting
impacted
overflows.

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
75
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.

What
significant
changes
were
made
to
the
proposed
rule?

EPA
is
not
finalizing
the
changes
contained
in
the
proposed
rule
regarding
overflows,
except
to
delete
existing
sections
403.7(
h)(
2)(
ii)
and
(
iii).
These
sections
are
now
replaced
with
a
requirement
for
the
POTW
to
be
in
compliance
with
the
NPDES
permit
requirements
affecting
those
Overflows,
or
any
enforcement
order
or
decree
affecting
those
Overflows,
issued
pursuant
to
section
402(
q)(
1)
of
the
Act.

EPA
is
amending
the
removal
credits
overflow
provisions
to
delete
the
requirements
of
obsolete
guidance
published
in
1975
for
the
construction
grants
program.
Therefore,
today's
rule
leaves
in
place
the
existing
requirements
on
the
availability
of
removal
credit
authority
for
POTWs
with
overflows.

4.
Summary
of
major
comments
and
EPA
history
and
actions
With
the
exception
described
above,
EPA
did
not
propose
any
changes
to
the
removal
credit
provisions
of
its
General
Pretreatment
Regulations.
A
number
of
commenters
asked
EPA
to
consider
changes
to
the
regulations
to
allow
greater
availability
of
removal
credits
for
a
broader
range
of
pollutants.
Some
commenters
stated
that
the
procedures
established
in
40
CFR
403.7
that
industrial
dischargers
must
follow
to
get
authority
for
removal
credits
are
unreasonable
and
extremely
difficult
to
obtain.
They
recommended
revisions
to
more
accurately
reflect
the
total
removal
by
the
POTW,
and
modifications
to
facilitate
the
granting
of
authority
when
justified.
The
following
discusses
the
Agency's
current
thinking
on
removal
credits.

Background
Section
307(
b)
of
the
Clean
Water
Act
directs
EPA
to
establish
categorical
Pretreatment
Standards
in
order
to
prevent
interference
with
POTW
operation
and
pass
through
of
inadequately
treated
pollutants.
Because,
in
certain
instances,
POTWs
could
provide
some
or
all
of
the
treatment
of
an
industrial
user's
wastewater
that
would
be
required
pursuant
to
the
Pretreatment
Standard,
the
Act
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
to
the
POTW
than
otherwise
authorized
if
certain
requirements
are
met.

Section
307(
b)
establishes
a
three­
part
test
that
a
POTW
must
meet
in
order
to
obtain
76
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)).
Through
several
rulemakings
and
court
rulings,
EPA
promulgated
and
revised
its
removal
credit
regulations,
which
are
codified
at
40
CFR
403.7.

.
The
legal
and
regulatory
history
of
this
provision
is
as
follows:

 
June
26,
1978:
Following
promulgation
of
the
Pretreatment
Regulations
(
40
CFR
Part
403),
several
actions
were
brought
in
federal
court
challenging
various
aspects
of
this
regulation
(
consolidated
in
NRDC.
et
al.
v.
EPA).
 
May
31,
1979:
EPA
entered
into
an
agreement
with
three
of
the
petitioners
(
Chemical
Manufacturers
Association,
the
U.
S.
Brewers
Association
and
the
Pacific
Legal
Foundation),
settling
most
of
industry's
issues.
EPA
agreed
to
propose
changes
to
the
June
26,
1978,
regulation
to
reflect
the
agreements
reached
in
the
settlement.
Proposed
modifications
arising
out
of
the
settlement
agreement
included
redefinition
of
"
consistent
removal"
and
a
revision
of
removal
data
sampling
procedure.
 
January
28,
1981:
EPA
promulgated
the
General
Pretreatment
Regulations
for
Existing
and
New
Source
Final
Rule
(
46
FR
9404).
This
rule
made
it
substantially
easier
for
POTWs
to
grant
removal
credits
and
to
give
larger
credits
for
the
same
pollutant
removals.
Industry
parties
again
brought
suit,
contending
that
the
new
rule
did
not
go
far
enough
and
was
unworkable
(
consolidated
in
National
Association
of
Metal
Finishers
[
NAMF]
et
al.
v.
EPA).
 
1983:
NAMF.
v.
EPA
upheld
the
1981
removal
credits
rule.
 
1984:
EPA
revised
the
rule
to
provide,
but
not
prescribe,
the
manner
in
which
the
samples
used
to
prove
"
consistent
removal"
are
to
be
collected
and
included
the
sampling
procedures
in
the
appendix
as
guidance.
 
April
30,
1986:
The
U.
S.
Court
of
Appeals
for
the
Third
Circuit
in
NRDC
v.
EPA,
790
F.
2d
289
(
3rd.
Cir.
1986),
struck
down
the
removal
credits
provision
on
the
grounds
that
EPA
cannot,
in
the
absence
of
CWA
section
405
sludge
regulations,
authorize
the
granting
of
removal
credits
under
307(
b)(
1)
of
the
Act.
The
decision
also
stated
that
the
1984
regulatory
definition
of
"
consistent
removal"
failed
to
implement
the
requirements
of
the
CWA.
The
court
held
that
the
definition
violated
a
statutory
requirement
that
direct
and
indirect
dischargers
be
held
to
the
same
standards
and
that
EPA's
definition
of
consistent
POTW
removal,
i.
e.
removal
that
is
achieved
only
50%
of
the
time,
violates
section
307(
b)(
1)
of
the
Clean
Water
Act.
The
following
is
a
summary
of
the
court's
reasoning:

o
BAT
limits
applicable
to
direct
dischargers
are
based
on
empirical
studies
of
the
amount
and
consistency
of
removal
that
can
be
achieved
by
a
well­
designed
and
77
operated
plant.
These
limits
are
set
so
that
a
discharger
can
be
in
compliance
virtually
all
the
time.
Guidelines
are
generally
calculated
with
a
99%
confidence
level.
o
The
1978
Pretreatment
rule
required
the
POTW
to
conduct
12
influent/
effluent
samplings
each
year.
The
consistent
removal
rate
was
defined
as
the
lowest
of
the
12
removal
rates
in
the
sample,
under
the
assumption
that
the
POTW
would
be
removing
at
least
that
amount
95%
of
the
time
o
In
response
to
complaints
from
indirect
dischargers
and
POTWs
that
the
1978
removal
credit
provision
was
"
unworkable,"
this
definition
of
consistent
removal
was
amended
in
the
1981
rule
to
provide
that
the
level
of
removal
on
which
the
credit
would
be
based
would
be
that
achieved
by
a
POTW
75%
of
the
time
and
was
measured
by
averaging
the
lowest
six
of
12
POTW
removal
samplings.
o
In
1984,
in
response
to
regulated
dischargers,
EPA
amended
the
rule
to
base
the
measurement
of
consistent
removal
on
the
average
amount
removed
in
all
12
samplings.
That
is,
the
amount
of
removal
achieved
by
a
POTW
on
average
(
50%
of
the
time)
would
determine
the
amount
of
credit
an
indirect
discharger
would
receive.
The
court
determined
that
this
provision
violated
the
Clean
Water
Act.
 
1987:
The
Agency
replaced
the
1984
"
consistent
removal"
provision
with
the
original
1981
provision.
 
1987:
Congress
amended
section
405
to
direct
EPA
to
set
numeric
limits
and
management
practices
for
toxic
pollutants
in
sludge.
 
1993:
EPA
promulgated
the
first
round
of
sewage
sludge
regulations
(
40
CFR
Part
503),
regulating
land
application,
surface
disposal
and
incineration
in
sewage
sludge
incinerators
as
acceptable
use
and
disposal
methods,
as
well
identifying
disposal
in
a
municipal
solid
waste
landfill
compliant
with
40
CFR
part
258
as
an
acceptable
disposal
practice.
Two
lists
of
pollutants
for
which
removal
credits
could
be
granted
were
also
included
in
Appendix
G
of
40
CFR
Part
403.
 
1997:
EPA
suggested
revising
the
General
Pretreatment
Regulations
(
§
403.7)
to
make
removal
credits
available
for
those
pollutants
the
Agency
was
no
longer
considering
for
the
sewage
sludge
rule.
This
approach
involved
a
case­
by­
case
removal
credit
option
that
would
require
indirect
dischargers
or
their
POTWs
to
do
a
risk
assessment
based
on
sitespecific
factors,
and
submit
it
to
EPA
for
approval.
There
was
substantial
opposition
among
some
commenters
this
approach;
the
Agency
decided
not
to
include
it
when
in
the
1999
proposed
rule.
 
July
1999.
EPA
proposed
the
Pretreatment
Streamlining
Regulations,
which
proposed
no
changes
to
the
§
403.7
requirements
regarding
pollutants
for
which
removal
credits
could
be
made
available.
However,
the
preamble
did
discuss
a
process
that
a
POTW
or
industrial
user
can
follow
to
petition
the
Agency
to
establish
a
Part
503
standard
or
an
amendment
to
Part
503,
Appendix
G
for
a
pollutant
along
with
an
analysis
of
the
impact
of
the
pollutant
on
the
use
or
disposal
of
its
sewage
sludge.
 
December
31,
2003:
EPA
outlined
a
final
action
plan
(
68
FR
75531)
in
response
to
a
2002
National
Research
Council
(
NRC)
report
on
Biosolids
Applied
to
Land
that
78
identified
a
need
to
update
the
scientific
basis
of
Part
503.
Fifteen
pollutants
were
identified
from
a
list
of
803
pollutants
for
further
evaluation
and
possible
regulation.
Twenty
five
pollutants
were
identified
with
sufficient
toxicological
and
exposure
data
that
would
not
require
regulation
under
Part
503.

What
is
the
status
of
EPA's
review
of
the
existing
Part
503
sewage
sludge
regulations?

The
CWA
requires
EPA
to
review
the
sewage
sludge
regulations
every
two
years
to
identify
additional
toxic
pollutants
in
sewage
sludge
that
may
warrant
regulation
under
section
405(
d).
Under
the
current
biennial
review
cycle,
EPA
evaluated
publicly
available
information
on
the
toxicity,
persistence,
concentration,
mobility,
and
potential
for
exposure
of
additional
toxic
pollutants
in
sewage
sludge.
In
April
2003,
EPA
published
a
Federal
Register
notice
soliciting
public
comment
on
the
preliminary
results
of
the
review,
which
included
a
comprehensive
list
of
pollutants
found
in
sewage
sludge.
At
that
time,
EPA
outlined
the
process
it
used
for
compiling
and
analyzing
the
comprehensive
list
of
pollutants,
but
did
not
identify
any
additional
toxic
pollutants
for
possible
regulatory
action.

Since
publishing
the
preliminary
review
results,
EPA
further
analyzed
the
pollutants
on
the
comprehensive
list
to
determine
the
sufficiency
of
available
data
for
an
exposure
and
hazard
assessment.
EPA
then
conducted
a
human
health
and
ecological
exposure
and
hazard
screening
assessment
for
those
chemicals
for
which
the
requisite
data
was
found.

Based
on
the
results
of
the
screening
analyses,
EPA
identified
the
following
15
chemicals
for
which
it
is
conducting
a
more
refined
exposure
and
risk
assessment.
Beryllium
Carbon
disulfide
Chloroaniline,
4­;
p­
Chloroaniline
Diazinon
Fluoranthene
Manganese
(
from
drinking
water)
*
Methyl
ethyl
ketone;
2­
Butanone
Nitrate
(
as
Nitrate­
nitrogen)

Nitrite
(
as
Nitrate­
nitrogen)
Phenol
Pyrene
Silver
EPA
will
update
the
concentration
data
on
these
chemicals
by
conducting
a
targeted
national
sewage
sludge
survey
during
2005.
The
new
concentration
data
and
results
will
serve
as
a
basis
for
subsequently
determining
whether
to
propose
amendments
to
the
sewage
sludge
regulations
for
any
of
these
chemicals.
The
Federal
Register
Notice
(
68
FR
75531,
December
31,
2003)
includes
timeframes
for
taking
action
on
these
pollutants.
Once
this
action
is
taken,
79
Appendix
G
of
the
Pretreatment
regulation
would
be
modified
to
add
the
additional
pollutants.
Additional
biennial
review
cycles
will
occur
per
section
405(
d)(
2)(
C)
of
the
CWA.

5.
EPA's
Response
to
Comments
As
noted,
several
commenters
urged
EPA
to
reconsider
its
decision
not
to
propose
to
change
the
existing
procedures
for
making
pollutants
eligible
for
removal
credits.
More
specifically,
these
commenters
suggested
that
EPA
further
streamline
the
regulations
to
make
removal
credits
available
for
pollutants
EPA
is
no
longer
considering
for
the
sewage
sludge
regulations
(
40
CFR
503).
EPA
notes
that
certain
pollutants
that
it
evaluated
and
is
no
longer
considering
for
the
sewage
sludge
regulations
are
listed
in
Appendix
G,
Table
II
of
the
rule
and
are
eligible
for
removal
credits.
Moreover,
as
explained
above,
EPA
is
at
this
time
evaluating
whether
to
amend
the
sewage
sludge
regulation.
During
any
resulting
rulemaking,
interested
parties
may
submit
information
and
background
data
to
EPA
that
would
support
amendments
to
Appendix
G
to
add
additional
pollutants
for
which
removal
credits
will
be
available.

EPA
could
develop
upper
concentrations
for
the
25
chemicals
listed
below
that
did
not
fail
its
exposure
and
hazard
screen
described
above.
Acetophenone
Azinphos
methyl
Benzoic
acid
Biphenyl,
1,1­
Butyl
benzyl
phthalate
Chlorobenzene;
Phenyl
chloride
Chlorobenzilate
Chlorpyrifos
Cresol,
o­;
2­
Methylphenol
Dichloroethene,
1,
2­
trans­
Dichloromethane;
Methylene
chloride
Dioxane,
1,4­
Endrin
Ethyl
p­
nitrophenyl
phenylphosphororthioate;
EPN;
Sanox
Hexachlorocyclohexane,
alpha­
Hexachlorocyclohexane,
beta­
Isobutyl
alcohol
Methyl
isobutyl
ketone
(
MIBK);
Methyl­
2­
pentanone,
4­
Naled
N­
Nitrosdiphenylamine
Trichlorofluoromethane
Trichlorophenoxy
propionic
acid,
2­
2,4,5­;
Silvex
Trichlororphenoxyacetic
acid,
2,4,5­;
2,4,5­
T
Trifluralin
80
Xylenes
(
mixture)

Of
the
40
pollutants
for
which
EPA
determined
there
is
sufficient
toxicological
and
exposure
data,
these
25
had
a
Hazard
Quotient
(
HQ)
equal
to
or
less
than
one.
The
HQ
is
the
ratio
of
the
magnitude
of
exposure
of
the
receptor
organism
(
humans,
aquatic
organism)
to
the
human
health
or
ecological
benchmark.
The
15
pollutants
that
did
fail
the
screen
(
i.
e.
HQ
>
1)
are
now
being
evaluated
for
possible
regulation
and
are
part
of
the
National
Sewage
Sludge
Survey
occurring
this
year.
The
25
pollutants
have
undergone
EPA's
rigorous
exposure
and
hazard
screen
which
includes
a
probabilistic
model
of
14
potential
pathways
to
humans
and
ecological
endpoints.
EPA's
development
of
upper
protective
concentrations
for
the
25
pollutants
could
be
done
by
setting
the
Hazard
Quotients
(
HQs)
at
1
for
each
chemical
and
working
back
to
the
chemical
concentration
that
does
not
exceed
the
HQ
of
1.
If
an
HQ
exceeds
1,
there
is
a
potential
for
adverse
effects
to
human
health
or
the
environment.
Once
the
concentrations
were
developed
they
could
be
added
to
Table
2
in
Appendix
G
through
an
amendment
to
the
pretreatment
rule.
EPA
requests
comment
on
whether
the
addition
of
any
of
these
25
chemicals
to
Appendix
G
would
be
helpful
to
POTWs
and
IUs
in
applying
for
removal
credits.
[
EPA
plans
to
propose
an
amendment
to
Table
2
in
Appendix
G
by
(
date
to
be
determined).]

EPA
also
notes
that
several
commenters
identified
that
Table
I
in
Part
403,
Appendix
G
contains
a
technical
error
in
footnote
1.
The
commenters
noted
that
EPA
had
not
included
carbon
monoxide
among
the
list
of
pollutants
that
are
eligible
for
a
removal
credit
if
the
requirements
for
total
hydrocarbons
in
Part
503,
Subpart
E
are
met.
EPA
agrees,
and
has
made
this
correction.

In
addition,
an
industrial
user
may
be
considered
for
receipt
of
removal
credits
if
it
follows
the
exposure
and
hazard
assessment
presented
in
the
FR
presenting
the
Final
Agency
response
to
NRC
Report
on
Biosolids
dated
December
31,
2003
(
68
FR
75531).
EPA
is
soliciting
information
developed
consistent
with
the
procedures
in
the
NRC
Report
for
further
consideration.

With
respect
to
commenters'
concerns
about
the
consistent
removal
determination
which
was
not
addressed
in
the
proposal,
the
history
of
the
regulations
and
court
cases
described
above
would
severely
limit
any
consideration
of
changes
to
this
provision.
However,
EPA
is
requesting
comment
on
whether
there
are
any
options
to
amend
the
consistent
removal
provision
that
would
be
consistent
with
the
restrictions
previously
established
by
the
court.

Some
commenters
on
the
proposal's
overflow
provisions
did
not
want
removal
credits
to
be
allowed
where
there
were
overflows
in
the
system.
Others
wanted
to
base
removal
credit
approval
either
on
consistent
removal
or
compliance
with
NPDES
permits.
Based
on
these
conflicting
positions
among
commenters
to
the
proposed
rule
and
the
Agency's
ongoing
policy
discussions
pertaining
to
wet
weather
discharges,
EPA
has
decided
to
not
adopt
the
proposed
rule's
overflow
revisions
except
for
deleting
redundant
requirements,
but
in
addition
to
the
existing
requirements
in
403.7(
h)
to
include
a
requirement
for
the
POTW
to
be
in
compliance
with
81
NPDES
permit
requirements
and
enforcement
orders
or
decrees
affecting
impacted
overflows.

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
revision
would
have
required
the
manager
to
have
the
authority
to
make
capital
investment
decisions
and
assure
long
term
environmental
compliance.
82
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
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
83
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
regarding
application
of
effluent
standards
on
a
net
basis
versus
control
systems
meeting
standards
84
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
to
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
403.12(
h)
was
added
to
the
regulations
(
see
55
FR
30131,
July
24,
1990),
requiring
all
significant
non­
categorical
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.
85
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
86
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
potential
use
of
mass
limits
for
concentration­
based
categorical
standards.
EPA
is
finalizing
provisions
that
allow
Industrial
Users
to
request
and
Control
Authorities
to
approve
at
their
discretion
the
conversion
of
concentration­
based
categorical
limits
to
equivalent
mass­
based
limits
that
may
be
used
in
lieu
of
the
concentration­
based
limits.
The
final
rule
includes
eligibility
requirements
that
Industrial
Users
must
satisfy
in
order
to
qualify
for
this
conversion,
including
the
use
of
water
conservation
methods
and
technologies
during
the
term
of
the
Industrial
User's
control
mechanism.
EPA
also
specifies
procedures
which
must
be
followed
by
the
Control
Authority
in
calculating
and
adjusting
the
equivalent
mass
limit.
After
the
equivalent
mass
limits
are
in
effect,
the
continued
use
of
the
limits
is
conditioned
on
the
Industrial
User's
compliance
with
several
requirements,
including
the
maintenance
or
enhancement
of
existing
control
technologies,
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
pollutant
limitations
in
different
ways
for
different
categories.
EPA
has
established
categorical
Pretreatment
Standards
that
are:
(
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.
Section
403.6(
d)
allows
the
Control
Authority
to
develop
equivalent
mass
limits
for
concentration­
based
standards
in
order
to
prevent
dilution.
However,
both
the
mass
limit
and
concentration
limit
were
then
enforceable,
so
the
mass
limit
would
not
be
an
alternative
limit.

1.
What
changes
did
EPA
propose?
87
EPA
proposed
that
the
pretreatment
regulations
be
revised
so
that
equivalent
mass
limits
may
be
authorized
by
the
Control
Authority
in
lieu
of
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
mass
limits
were
derived
and
make
this
information
publicly
available.

3.
What
changes
is
EPA
finalizing
in
today=
s
rule?

EPA
is
finalizing
the
proposed
rule's
change
to
enable
Control
Authorities
to
replace
a
concentration­
based
Categorical
Standard
with
an
equivalent
mass
limit
in
a
control
mechanism
issued
to
an
Industrial
User.
To
qualify
for
use
of
such
an
equivalent
mass
limit,
the
CIU
must
meet
certain
eligibility
conditions.
These
conditions
require
the
CIU
to
demonstrate
that
it:
(
1)
will
implement
water
conservation
measures
that
substantially
reduce
water
use;
(
2)
currently
uses
control
measures
at
least
as
effective
as
the
model
treatment
technologies
and
agrees
to
maintain
the
same
or
more
effective
control
during
the
period
of
time
an
equivalent
mass
limit
is
used,
and
has
not
used
dilution
as
a
substitute
for
treatment;
(
3)
provides
monitoring
data
to
establish
its
average
daily
flow
rate
and
its
baseline
long­
term
average
production
rate;
(
4)
does
not
have
daily
flow
rates,
production
rates,
or
pollutant
levels
that
fluctuate
to
such
a
degree
that
mass
limits
cannot
be
appropriately
established;
and
(
5)
has
consistently
complied
with
the
applicable
categorical
Pretreatment
Standards.

The
final
rule
allows
a
CIU
to
initiate
a
request
to
be
given
an
equivalent
limit,
although
the
Control
Authority
has
the
discretion
to
decide
whether
the
use
of
equivalent
mass
limits
is
appropriate.
If
the
Control
Authority
approves
the
request,
it
then
calculates
the
initial
equivalent
mass
limit
by
multiplying
the
average
daily
flow
rate
of
the
CIU
by
the
applicable
concentrationbased
categorical
Pretreatment
Standard
and
the
appropriate
conversion
factor.
Assuming
the
limit
is
correctly
derived
and
incorporated
into
the
CIU's
control
mechanism,
it
is
enforceable
upon
issuance
of
the
control
mechanism.
[
The
appropriateness
of
an
equivalent
limit
must
be
reevaluated,
and
the
limit
recalculated
with
the
reissuance
of
the
CIU's
control
mechanism
in
order
to
incorporate
the
facility's
new
average
daily
flow
rate.]
During
the
term
of
the
control
mechanism,
the
Control
Authority
may
determine
that
it
is
necessary
to
revise
the
mass
limit
to
reflect
a
significant
change
in
the
rate
of
production.

After
the
equivalent
mass
limit
has
been
developed
and
incorporated
into
an
effective
control
mechanism,
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
the
same
or
more
effective
control
and
treatment
technologies
that
were
in
place
prior
to
the
mass
limits
conversion;
(
2)
continue
to
record
the
facility's
flow
rates
through
the
use
of
a
continuous
effluent
flow
88
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
its
baseline
production
rates.

These
limits
will
be
considered
to
be
equivalent
Pretreatment
Standards.
As
with
any
equivalent
Standard,
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).
Setting
mass
limits
does
not
affect
the
underlying
categorical
Pretreatment
Standard
and
does
not
improperly
transfer
standard­
setting
authority
to
the
Control
Authority.
If
a
Control
Authority
develops
an
equivalent
mass
limit,
in
lieu
of
the
concentration­
based
categorical
Standard,
the
equivalent
limit
is
a
Pretreatment
Standard
as
defined
in
§
403.5(
d)
unless
the
mass
limit
has
not
been
developed
correctly.
Compliance
with
a
mass­
based
limit
may
be
used
to
demonstrate
compliance
with
the
categorical
Standard
only
to
the
extent
that
the
massbased
equivalent
is
properly
calculated.
If
mass
limitations
have
not
been
developed
as
required,
the
source
must
achieve
compliance
with
the
concentration
limitations
published
in
the
categorical
standard.

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
16
categorical
Pretreatment
Standards
that
are
concentration
based,
which
do
not
simultaneously
offer
a
mass­
based
option,
and
are
therefore
included
within
the
scope
of
§
403.6(
c)(
5).
The
following
categories
are
including
in
this
list:

 
Inorganic
Chemicals
(
§
415)
 
Fertilizer
Manufacturing
(
§
418)
 
Petroleum
Refining
(
§
419)
 
Steam
Electric
Power
Generating
(
§
423)
 
Leather
Tanning
(
§
425)
 
Glass
Manufacturing
(
§
426)
 
Rubber
Manufacturing
(
§
428)
 
Timber
Products
Processing
(
§
429)
 
Metal
Finishing
(
§
433)
 
Centralized
Waste
Treatment
(
§
437)
 
Pharmaceutical
Manufacturing
(
§
439)
 
Transportation
Equipment
Cleaning
(
§
442)
 
Paving
and
Roofing
Materials
(
§
443)
 
Commercial
Hazardous
Waste
Combustors
Subcategory
of
the
Waste
Combustors
Point
Source
Category
(
§
444)
 
Carbon
Black
Manufacturing
(
§
458)
 
Electrical
and
Electronic
Components
(
§
469)
89
EPA
also
notes
that
within
certain
industries
affected
by
today's
equivalent
mass
limits
provisions,
certain
pollutants
cannot
appropriately
be
expressed
by
mass.
The
NPDES
regulations
of
40
CFR
122.45(
f)(
1)(
i)
identify
the
following
pollutants
are
in
this
category:
pH,
temperature,
and
radiation.

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
the
proposed
rule
intended
to
make
the
Control
Authority's
decision
discretionary,
there
was
considerable
uncertainty
and
concern
among
the
commenters
regarding
how
the
language
(
e.
g.,
" 
the
Control
Authority
may
convert
the
limits
 ")
was
being
interpreted,
especially
by
Industrial
User
commenters
concerned
that
they
might
be
compelled
to
accept
mass
limits.
The
final
rule
clarifies
that
Industrial
Users
initiate
the
process
by
requesting
that
their
concentration­
based
limits
be
converted
to
equivalent
mass
limits.
The
final
rule
language
is
as
follows:
" 
the
Industrial
User
may
request
that
the
Control
Authority
convert
the
limits
to
equivalent
mass
limits.
If
the
Industrial
User
requests
equivalent
mass
limits
and
all
of
the
requirements
in
paragraph
(
5)(
i)(
A)
thru
(
F)
below
are
met,
the
determination
as
to
whether
equivalent
mass
limits
are
appropriate
is
within
the
discretion
of
the
Control
Authority."
Industrial
User
Eligibility
Conditions:
EPA
has
added
or
revised
several
requirements
that
the
Industrial
User
must
first
meet
in
order
to
be
considered
by
the
Control
Authority
for
use
of
an
equivalent
mass
limit.
Several
of
these
eligibility
requirements
are
also
conditions
that
must
be
met
in
order
to
continue
use
of
mass
limits
after
becoming
effective.
The
final
rule
includes
the
following
new
or
rephrased
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
ongoing
as
well
as
future
water
conservation
efforts
can
both
qualify
for
the
use
of
equivalent
mass
limits.
The
final
rule
also
requires
that
the
water
conservation
occur
during
the
initial
term
of
the
Industrial
User's
control
mechanism
which
enforces
equivalent
mass
limits.
During
subsequent
control
mechanism
terms,
the
Industrial
User
must
continue
to
use
the
methods
and
technologies
by
which
water
conservation
was
achieved.
The
revised
rule
language
is
as
follows:
"
the
Industrial
User
must
demonstrate
that
it
 
will
employ
water
conservation
methods
and
technologies
that
substantially
reduce
water
use
during
the
term
of
its
control
mechanism."
See
§
403.6(
c)(
5)(
i)(
C).
The
final
rule
also
requires
that
Industrial
Users
"
continue
to
employ
the
water
conservation
methods
and
technologies
implemented
pursuant
to
paragraph
(
5)(
i)(
C)."
See
§
403.6(
c)(
5)(
iii)(
D).
90
(
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
includes
a
slight
revision
to
this
language,
even
though
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)
is
retained.
The
revised
language
appears
as
follows:
"
The
Industrial
User
must
demonstrate
that
it
 
currently
uses
control
measures
at
least
as
effective
as
the
control
and
treatment
technologies
that
serve
as
the
basis
for
that
particular
Standard."

The
proposal
discussed
the
fact
that
the
pretreatment
regulations
in
§
403.6(
d)
contain
a
strict
prohibition
against
the
use
of
dilution
as
a
substitute
for
treatment,
and
that
requirement
remains.
This
provision
indicates
that
no
User
introducing
wastewater
pollutants
into
a
POTW
may
augment
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
believes
that
it
is
appropriate
to
require
CIUs
seeking
to
use
an
equivalent
mass
limit
to
demonstrate
their
past
compliance
with
the
dilution
prohibition
in
§
403.6(
d).
See
§
403.6(
c)(
5)(
i)(
B).
This
requirement
is
intended
to
provide
the
Control
Authority
with
a
means
of
screening
facilities
so
that
a
CIU
that
may
have
used
dilution
in
the
past
is
precluded
from
taking
advantage
of
historically
higher
than
necessary
average
flows
to
acquire
a
less
stringent
mass
limit
calculation.
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
and
when
selecting
the
appropriate
average
flow
rate
by
which
the
equivalent
mass
limits
are
calculated.
See
§
403.6(
c)(
5)(
i)(
B).
The
final
rule
also
requires,
as
a
condition
of
using
mass
limits,
that
Industrial
Users
"
maintain
the
same
or
more
effective
control
and
treatment
technologies
as
those
that
were
in
place
at
the
time
the
equivalent
mass
limit
is
established."
See
§
403.6(
c)(
5)(
iii)(
A).

(
3)
Establishment
of
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
regulation
and
guidance,
that
equivalent
mass
limits
be
based
on
the
CIU's
long­
term
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
§
403.6(
c)(
5)(
i)(
C).
EPA
also
conditions
the
use
of
mass
limits
on
the
continued
use
of
an
effluent
flow
monitoring
device
to
record
the
facility's
flow
rates.
See
§
403.6(
c)(
5)(
iii)(
B).

In
addition,
the
preamble
of
the
proposed
rule
suggested
that
the
flow
component
of
the
91
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
a
subsequent
rulemaking
specifc
to
an
XL
project,
EPA
required
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
§
403.19(
b).
The
final
rule
has
been
modified
to
include
a
requirement
for
the
Industrial
User
to
provide
the
Control
Authority
with
sufficient
information
to
establish
a
baseline
long­
term
average
daily
production
rate.
See
§
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.
See
§
403.6(
c)(
5)(
iii)(
C).

(
4)
Use
of
Mass
Limits
for
Relatively
Uniform
Operating
Conditions:
The
final
rule
includes
an
additional
requirement
that
the
Industrial
User
demonstrate
that
it
"
does
not
have
daily
flow
rates,
production
levels,
or
pollutant
levels
that
fluctuate
to
such
a
degree
that
an
equivalent
mass
limit
cannot
be
appropriately
established
to
control
the
discharge."
See
§
403.6(
c)(
5)(
i)(
D).

(
5)
Consistent
Compliance
with
Standards:
EPA
has
determined
that
it
is
appropriate
for
the
use
of
equivalent
mass
limits
to
be
restricted
to
CIUs
which
have
had
a
history
of
consistent
compliance
with
applicable
categorical
Pretreatment
Standards
prior
to
the
Industrial
User's
request
for
equivalent
mass
limits.
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
§
403.6(
c)(
5)(
i)(
E).

[
Calculation
of
Equivalent
Mass
Limit:
The
final
rule
specifies
how
Control
Authorities
must
calculate
the
initial
equivalent
mass
limit.
EPA
indicates
that
the
equivalent
mass
limit
must
be
recalculated
prior
to
the
reissuance
of
the
control
mechanism,
in
order
to
reflect
changes
in
the
long­
term
average
daily
flow
rate.
See
§
403.6(
c)(
5)(
ii).
This
requirement
is
consistent
with
EPA's
regulations
which
require
that
the
flow
rate
be
based
on
a
reasonable
measure
of
the
Industrial
User's
"
actual
long
term
average
flow
rate"
(
see
§
403.6(
c)(
4),
emphasis
added),
and
EPA's
long­
standing
guidance
on
deriving
process
flow
rates
(
Guidance
Manual
for
the
Use
of
Production­
Based
Pretreatment
Standards
and
the
Combined
Wastestream
Formula,
EPA833­
B­
85­
201,
September
1985).]

4.
Summary
of
Major
Comments
and
EPA
Response
Discretionary
Use
of
Mass
Limits:
Several
commenters
raised
concerns
regarding
who
92
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
mass
limits
over
the
objection
of
the
Industrial
User.
Where
POTW
and
state
commenters
provided
comments
on
this
issue,
they
expressed
concern
that
mass
limits
would
create
additional
burden
and
generally
emphasized
that
the
decision
to
use
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
retains
the
requirement
that
the
Industrial
User
be
using
control
measures
at
least
as
effective
as
the
control
and
treatment
technologies
that
serve
as
the
basis
for
that
particular
Standard.
The
final
rule
also
requires
that
the
same
or
more
effective
technologies
be
maintained
and
effectively
operated
at
all
times
while
the
equivalent
mass
limits
are
in
effect.

EPA
is
imposing
this
requirement
for
a
number
of
reasons.
First,
the
use
of
technologies
equivalent
to
the
model
treatment
technologies
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
§
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
limited
solely
by
physical/
chemical
properties
of
the
pollutants
in
the
wastewater,
and
not
by
influent
concentrations.
Therefore,
reducing
the
wastewater
discharge
flow,
while
still
achieving
the
same
post­
treatment
pollutant
concentration,
will
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.
More
information
on
water
conservation
techniques
and
methods
can
be
found
[
reference
to
e­
docket]
in
the
memorandum
93
dated
March
23,
2004
from
Carey
Johnston
to
the
Public
record
for
the
Pretreatment
Streamlining
Rule,
with
subject
"
The
Impacts
of
Industrial
Water
Re­
Use
and
Reduction
Technologies
on
End­
Of­
Pipe
Pollutant
Concentrations
and
Loadings."

In
assessing
whether
the
Industrial
User
has
installed
adequate
control
and
treatment
technologies,
the
Control
Authority
should
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.
Because
many
technical
development
documents
for
categorical
Standards
were
published
over
a
decade
ago,
the
model
or
control
treatment
technologies
considered
by
EPA
in
developing
a
categorical
Pretreatment
Standard
may
not
be
the
most
commonly
used
or
state­
of­
the
art
treatment
option
currently
available.
However,
as
a
starting
point,
the
Control
Authority
should
understand
these
technologies
and
consider
their
effectiveness
when
determining
whether
an
equivalent
mass
limit
is
appropriate.

Prohibition
Against
Dilution:
A
few
commenters
indicated
their
concern
that
implementation
of
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
contain
in
§
403.6(
d)
a
strict
prohibition
against
the
use
of
dilution
as
a
substitute
for
treatment.
This
provision
indicates
that
no
user
introducing
wastewater
pollutants
into
a
POTW
may
augment
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.
This
provision
also
states
that
the
Control
Authority
may,
appropriately,
impose
mass
limitations
on
Industrial
Users
which
are
using
dilution
to
meet
applicable
Pretreatment
Standards
in
addition
to
the
concentration­
based
standards.
EPA
finds
that
it
is
necessary
to
require
CIUs
seeking
to
use
an
equivalent
mass
limit
to
demonstrate
their
past
compliance
with
the
dilution
prohibition
in
§
403.6(
d).
This
requirement
is
intended
to
provide
the
Control
Authority
with
a
means
of
screening
facilities
that
may
have
used
dilution
in
the
past
to
preclude
them
from
using
higher
than
necessary
flow
rates
to
calculate
a
mass
limit
(
e.
g.,
such
as
comparing
its
product
to
flow
ratio
to
that
of
other
facilities
within
its
industry
or
why
it
uses
the
level
of
process
water
that
it
uses).
94
How
should
compliance
status
affect
an
Industrial
User's
eligibility
to
be
regulated
by
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
demonstrate
and
Control
Authorities
verify
that
the
User
has
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
3
years.
These
records
should
be
reviewed
and
considered
to
the
extent
that
they
reflect
compliance
with
current
conditions.

Incompatibility
of
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
demonstrate
that
it
"
does
not
have
daily
flow
rates,
production
levels,
or
pollutant
levels
that
fluctuate
to
such
a
degree
that
an
equivalent
mass
limit
cannot
be
appropriate
established
to
control
the
discharge."
See
§
403.6(
c)(
5)(
i)(
C).

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.
95
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),
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.
goalhttp://
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
will
still
reduce
the
final
effluent
pollutant
loading,
because
many
of
the
wastewater
treatment
technologies
are
limited
solely
by
physical/
chemical
properties
of
the
pollutants
in
the
wastewater,
and
not
by
influent
concentrations.
Therefore,
reducing
the
wastewater
discharge
flow,
while
still
achieving
the
same
post­
treatment
pollutant
concentration,
can
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
the
memorandum
dated
March
23,
2004
from
Carey
Johnston
to
the
Public
record
for
the
Pretreatment
Streamlining
Rule,
with
subject
"
The
Impacts
of
Industrial
Water
Re­
Use
and
Reduction
Technologies
on
End­
Of­
Pipe
Pollutant
Concentrations
and
Loadings."

Assessing
how
reduced
discharges
will
impact
POTWs:
One
commenter
explained
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
96
consumption
"
would
cause
environmental
harm
at
either
the
POTW
or
in
the
receiving
stream
or
result
in
long­
term
sediment
contamination."
It
is
not
necessary
for
the
Agency
to
conduct
a
separate
assessment
of
how
less
water
in
the
discharge
will
impact
POTWs
and
receiving
waters.
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
§
403.5(
d)
which
are
protective
of
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
§
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.

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
§
403.6(
c)(
5)(
ii)
includes
the
following
formula
to
be
used
to
calculate
the
initial
equivalent
mass
limits:
the
product
of
the
facility's
average
daily
flow
rate
and
the
applicable
concentration­
based
categorical
daily
maximum
for
the
daily
maximum
mass,
and
the
monthly
average
standard
for
the
monthly
average
mass,
and
the
appropriate
conversion
factor.
As
the
flow
rate
is
a
long­
term
average,
it
is
important
to
note
that
the
same
flow
value
is
used
in
the
calculation
of
both
the
daily
maximum
and
monthly
average
equivalent
mass
limits.
[
Prior
to
the
next
term
of
the
Industrial
User's
control
mechanism,
the
collected
flow
data
is
assessed
and
the
equivalent
limit
is
recalculated
to
use
the
new
long­
term
average
daily
flow
that
has
been
continuously
measured.]

Why
are
equivalent
mass
limits
calculated
using
the
long­
term
average
daily
flow
rate?
EPA
specifies
in
§
403.6(
c)(
5)(
ii)
that
the
equivalent
mass
limits
are
calculated
by
multiplying
the
long­
term
average
daily
flow
rate
[(
either
the
initial
"
baseline"
rate
or
the
recalculated
rate
at
the
end
of
the
control
mechanism
term)]
by
the
applicable
concentration­
based
categorical
Pretreatment
Standard
and
the
appropriate
conversion
factor.
The
use
of
the
long­
term
average
daily
flow
rate
as
the
flow
basis
for
the
limits
is
consistent
with
existing
EPA
regulations
and
guidance.
The
pretreatment
regulations
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
§
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
§
403.12(
b)(
4))
and
to
include
in
the
periodic
report
"
a
record
of
measured
or
estimated
average
and
maximum
daily
flows"
(
see
§
403.12(
e)(
1)).
97
The
use
of
long­
term
average
daily
flows
has
also
been
consistently
recognized
in
EPA's
categorical
Pretreatment
Standards
rulemakings.
For
instance,
the
rationale
for
the
use
of
longterm
average
daily
flow
rates
was
described
in
the
preamble
to
the
final
Pesticides
Manufacturing
Standard
as
follows:

"
The
use
of
the
long­
term
flow
value,
rather
than
maximum
values
from
shorter
time
frames,
is
appropriate
because
the
concentration
values
for
the
maximum
daily
and
maximum
monthly
limitations
were
derived
by
multiplying
the
long­
term
average
performance
level
of
well­
designed,
well­
operated
treatment
systems
by
the
respective
variability
factor
for
the
treatment
system.
The
variability
factors
already
include,
among
other
components,
the
variability
associated
with
day­
to­
day
and
month­
to­
month
production
flow
variations.
As
a
result,
the
limitations
are,
in
general,
considerably
less
stringent
than
the
long­
term
averages
achieved
by
the
plants
on
which
the
limits
and
standards
were
based,
and
plants
that
design
their
operations
and
treatment
systems
to
achieve
the
long­
term
averages
for
individual
pollutants
should
be
able
to
achieve
the
limits
and
standards
even
during
high­
flow
days
and
months.
The
flow
from
any
given
day
or
month
may
not
be
representative
of
the
plant's
annual
flow.
Use
of
the
highest
monthly
mean
to
set
permit
limits
would
provide
duplicative
allowance
for
variation
in
flow
that
is
not
justified,
since
the
potential
for
high
flow
periods
is
already
accounted
for
in
the
promulgated
standards."
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.
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
long­
term
average
must
reflect
recent
production
changes
as
well
as
reductions
in
water
use.]

Why
are
continuous
effluent
flow
monitoring
devices
required?
In
allowing
the
use
of
equivalent
mass
limits,
EPA
is
finalizing
the
proposed
rule's
change
to
enable
Control
Authorities
to
replace
a
standard
expressed
as
a
concentration
value
in
the
categorical
Standards
with
an
equivalent
mass
limit
when
issued
in
a
control
mechanism
to
an
Industrial
User.
In
allowing
such
action,
EPA
is
authorizing
Control
Authorities
to
establish
and
enforce
equivalent
limitations
for
these
CIUs.
This
equivalency
means
that
the
mass
limit
directly
reflects
the
concentration
value
of
the
categorical
Standard
and
that
what
the
Control
Authority
is
doing
in
adopting
equivalent
mass
limits
is
merely
a
translation
of
the
concentration
value
to
a
different
unit
of
measurement
through
arithmetic
multiplication.

(
1)
Flow
monitoring
is
required
to
ensure
the
equivalency
to
Federal
categorical
Pretreatment
Standards:
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
98
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
disagrees
that
the
final
rule
illegally
transfers
the
Agency's
standard­
setting
authority
to
Control
Authorities.
A
Control
Authority's
use
of
an
equivalent
mass
limit
does
not
affect
the
underlying
categorical
Pretreatment
Standard;
the
concentration­
based
Standard
is
only
replaced
to
the
extent
that
it
is
correctly
translated
to
an
equivalent
limit.
When
establishing
the
equivalent
limit,
the
equivalency
is
only
as
good
as
the
data
used
to
characterize
the
existing
conditions
and
the
calculations
performed
to
represent
the
equivalent
limit.
To
ensure
that
equivalency
is
achieved,
EPA
is
requiring
that
the
flow
value
used
in
the
translation
of
the
concentration
limit
to
the
equivalent
mass
limit
be
based
upon
a
measured
value
using
a
continuous
flow
measuring
device.
Similar
to
the
setting
of
alternate
mass
or
alternate
concentration
limits
when
using
the
Combined
Wastestream
Formula
of
40
CFR
403.6(
c),
if
equivalent
mass
limitations
have
not
been
developed
as
required,
the
Industrial
User
must
achieve
the
concentration
limitations
published
in
the
categorical
Standard.

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,
2
POTWs,
and
1
environmental
interest
group
agreed
that
the
level
of
accuracy
obtained
from
flow
measurements,
in
contrast
to
flow
estimation,
is
needed
in
order
to
ensure
equivalency
with
the
categorical
Standards.
These
commenters
stressed
that
flow
measurement
was
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.
EPA
concurs
with
those
comments
that
supported
measured
flows.

(
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.
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).
EPA
believes
that
benefits
of
water
conservation
outweigh
the
cost
of
the
meter
and
will
be
cost
effective
in
many
situations.
99
Specifically
when
initiating
water
conservation
programs,
EPA
recognizes
that
water
use
habits
must
be
changed
so
that
water
is
used
more
efficiently.
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
baseline
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).
In
addition
to
assisting
the
Industrial
User's
conservation
program,
the
Control
Authority
has
oversight
obligations
to
independently
assess
the
Industrial
User's
compliance
with
the
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)
and
a
permanent
device
that
continuously
records
the
flow
allows
the
POTW
to
accomplish
this
requirement.

For
compliance
assessment
purposes,
EPA
advises
Control
Authorities
to
use
the
following
approach:

 
For
a
daily
maximum
equivalent
mass
limit,
compliance
should
be
determined
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
§
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.

 
For
an
average
monthly
equivalent
mass
limit,
compliance
should
be
determined
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
is
derived
from
the
definition
of
"
daily
discharge"
in
§
122.2.
"
Daily
discharge"
is
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
100
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,
however,
the
rule
does
not
prohibit
Control
Authorities
from
calculating
equivalent
mass
limits
for
such
dischargers.
However,
EPA
does
not
recommend
allowing
new
dischargers
to
utilize
equivalent
mass
limits,
since
it
may
not
be
possible
to
meet
the
requirements
in
today's
rule
or
be
consistent
with
operational
realities.

First,
recognizing
that
§
403.6(
c)(
5)(
i)(
E)
requires
the
Industrial
User
to
have
had
"
consistent
compliance"
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
average
daily
flow
rate
to
provide
the
Control
Authority
with
sufficient
information
to
calculate
the
equivalent
mass
limits.
Although
§
403.6(
c)(
5)(
i)(
C)
does
not
specify
a
minimum
amount
of
time
over
which
the
longterm
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
Fed.
Reg.
64219
(
October
17,
2002).
EPA
does
not
anticipate
that
new
dischargers
will
be
in
a
position
to
immediately
need
to
reduce
water
use
since
they
would
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
Limit
to
Adjust
for
Production
Changes
During
the
Term
of
the
Control
Mechanism
or
Flow
Changes
Upon
Reissuance
of
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
101
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
productionbased
flow
changes
may
occur,
modifying
the
control
mechanism
is
consistent
with
regulations
at
§
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."

EPA
recognizes
that
a
facility's
flow
rate
may
be
significantly
reduced
due
to
to
water
conservation
efforts
during
the
term
of
the
control
mechanism.
In
contrast
to
EPA's
long­
standing
guidance
on
deriving
process
flow
rates
(
Guidance
Manual
for
the
Use
of
Production­
Based
Pretreatment
Standards
and
the
Combined
Wastestream
Formula,
EPA833­
B­
85­
201,
September
1985)
which
recommends
that
if
the
actual
average
flow
rate
changes
by
more
than
20
percent
from
the
basis
used
in
the
calculation
of
the
equivalent
limits,
then
the
limits
should
be
revised
(
page
2­
14),
EPA
is
recommending
that
to
encourage
water
conservation
efforts,
such
recalculation
based
on
a
flow
rate
change
alone
(
i.
e.
the
production
rate
remains
constant)
should
be
postponed
until
the
end
of
the
control
mechanism.
The
final
rule
requires
the
Control
Authority
to
recalculate
the
equivalent
mass
limit
upon
reissuance
of
the
CIU's
control
mechanism
to
account
for
the
facility's
new
long­
term
average
daily
flow
rate.
This
requirement
is
consistent
with
EPA's
regulations
which
require
that
the
flow
rate
be
based
on
a
reasonable
measure
of
the
Industrial
User's
"
actual
long
term
average
flow
rate"
(
see
§
403.6(
c)(
4),
emphasis
added)
that
is
"
representative
during
the
entire
term
of
the
permit
or
 
control
mechanism"
(
see
58
FR
50679,
September
28,
1993).

Commentary
on
the
Use
of
Mass­
Based
Limits:
EPA
may
promulgate
pretreatment
standards
(
and
other
effluent
guidelines)
in
a
number
of
ways
including:
(
1)
production­
normalized
mass­
based
(
mass­
pollutant/
production
unit);
(
2)
flow­
normalized
mass­
based
(
mass­
pollutant/
time
unit);
and
(
3)
concentration­
based
standards
(
mass­
pollutant/
volume
of
wastewater).
These
three
types
of
pretreatment
standards
can
be
converted
to
a
mass­
based
permit
limit
by
using
a
reasonable
measure
of
the
Industrial
User's
actual
long­
term
daily
production
(
for
production­
normalized
mass­
based
standards)
or
the
Industrial
User's
actual
long­
term
average
daily
flow
rate
(
for
102
flow­
normalized
mass­
based
and
concentration­
based
standards).

EPA
prefers
setting
production­
normalized
mass­
based
standards,
where
feasible,
since
production
normalized
limitations
can
require
flow
reduction
and
reduces
any
potential
for
the
substitution
of
dilution
for
treatment.
Specifically,
production­
normalized
mass­
based
standards
are
calculated
from
production
normalized
flows
(
volume
of
wastewater/
production
unit)
and
incorporate
wastewater
flow
reductions
representing
BAT
(
technology
basis
for
PSES)
or
Best
Available
Demonstrated
Technology
(
BADT,
technology
basis
for
PSNS).
Flow­
normalized
mass­
based
and
concentration­
based
standards
may
include
flow
reduction
when
estimating
the
PSES
and
PSNS
incremental
compliance
costs,
however,
the
standards
themselves
do
not
specifically
require
flow
reductions
to
maintain
compliance.
As
discussed
below,
there
are
also
environmental
benefits
in
controlling
industrial
wastewater
through
mass­
based
standards
using
concentration­
based
standards
and
a
reasonable
measure
of
the
Industrial
User's
actual
long­
term
average
daily
flow
rate
("
flow­
normalized
mass­
based
standards").

It
is
important
to
note
that
EPA
allows
for
sufficient
variability
when
promulgating
pretreatment
standards
(
and
other
effluent
guidelines)
to
maintain
compliance
at
all
times
for
a
facility
employing
well
operated
wastewater
pollution
controls
equivalent
in
performance
to
BAT
or
BADT.
For
more
than
25
years
EPA=
s
effluent
guidelines
program
has
used
a
statistical
approach
to
calculate
the
appropriate
variability
factors
when
setting
the
maximum
monthly
average
and
maximum
daily
standards.
This
approach
has
been
upheld
by
the
Courts
in
numerous
challenges.
In
the
a
recent
Court
decision,
in
a
challenge
of
effluent
guidelines
limitations
for
the
pulp
and
paper
industry,
National
Wildlife
Federation,
et
al.
v.
Environmental
Protection
Agency,
No.
99­
1452
(
D.
C.
Cir.)
(
April
19,
2002),
the
Court
said:
ABriefly,
the
limitations
are
derived
using
the
following
process:
EPA
determines
an
average
performance
level,
or
long­
term
average,
that
a
well­
designed
mill
using
the
model
technologies
can
achieve.
Recognizing
variability
among
treatment
processes,
pollutant
concentrations,
sampling,
and
analysis,
EPA
incorporates
variability
factors
into
the
limitations
to
account
for
these
sources
of
variability.@
The
Court
found
that
AEPA's
approach
to
developing
monthly
limitations
was
reasonable.
It
established
limitations
based
on
percentiles
achieved
by
facilities
using
well­
operated
and
controlled
processes
and
treatment
systems.@
(
Iron
and
Steel
comment
response
document:
Excerpt
Number:
IS10203­
5).

It
is
also
important
to
note
that
flow­
normalized
mass­
based
permit
limit
developed
by
the
Control
Authority
must
be
equivalent
to
the
promulgated
concentration­
based
pretreatment
standard
through
use
of
the
Industrial
User's
actual
long­
term
average
daily
flow
rate.
This
equivalency
is
necessary
as
the
purpose
of
pretreatment
standards
(
and
other
technology­
based
effluent
guidelines)
is
to
Aresult
in
reasonable
further
progress
toward
the
national
goal
of
eliminating
the
discharge
of
all
pollutants.@
See
NRDC,
863
F.
2d
at
1433
(
9th
Cir.
1988).
An
unfaithful
conversion
of
the
applicable
103
concentration­
based
pretreatment
standard
to
a
flow­
normalized
mass­
based
permit
limit
through
use
of
an
inappropriate
average
facility
daily
flow
rate
would
contravene
this
national
goal
and
effectively
transfer
standard
setting
from
EPA
to
the
Control
Authority.
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
'
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
July
9,
1993;
58
FR
36890).
Finally,
a
permit
may
be
modified
during
its
term,
either
at
the
request
of
the
permittee
(
or
another
interested
party)
or
on
EPA'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
July
9,
1993;
58
FR
36891).

There
are
environmental
benefits
in
controlling
industrial
wastewater
through
mass­
based
standards
using
concentration­
based
standards
and
a
reasonable
measure
of
the
Industrial
User's
actual
long­
term
average
daily
flow
rate
(
Aflow­
normalized
mass­
based
standards@).
Facilities
whose
wastewater
discharges
are
solely
controlled
by
flow­
normalized
mass­
based
standards
may
elect
to
better
control
their
wastewater
discharges
than
what
is
required
by
the
applicable
pretreatment
standards
through
better
wastewater
control
technologies
and
pollution
prevention
practices
(
i.
e.,
resulting
in
lower
pollutant
concentrations
in
the
discharged
wastewater)
or
better
water
conservation
practices
(
e.
g.,
resulting
in
less
wastewater
volume
discharged
from
an
industrial
operation)
or
both.
As
demonstrated
by
numerous
examples
and
case
studies
presented
in
the
record
supporting
this
final
rule,
implementing
water
re­
use
and
reduction
technologies
and
pollution
prevention
practices
generally
reduce
the
amount
of
wastewater
pollution
discharged
by
industrial
facilities.
Specifically,
reducing
wastewater
flow
does
not
generally
increase
the
pollutant
concentrations
in
discharged
effluent
as:
(
1)
water
reduction
technologies
can
also
reduce
the
generation
of
pollution
mass
in
the
discharged
wastewater
(
e.
g.,
change
from
a
wet
manufacturing
operation
to
dry);
(
2)
lowering
the
wastewater
flow
to
an
existing
well­
operated
and
designed
wastewater
treatment
system
generally
allows
for
better
pollutant
removal;
and
(
3)
pollutant
concentrations
discharged
from
a
well­
operated
and
designed
wastewater
treatment
system
are
generally
constant
despite
fluctuations
or
increases
in
influent
pollutant
concentrations.

Consequently,
given
the
option
of
controlling
industrial
wastewater
discharges
through
either
concentration­
based
or
flow­
normalized
mass­
based
permit
limits,
Control
Authorities
may
elect
to
use
flow­
normalized
mass­
based
permit
limits
to
encourage
water
re­
use
and
reduction
technologies
and
pollution
prevention
practices
which
will
have
the
added
benefit
of
reducing
pollutant
mass
discharges.
When
opting
to
control
industrial
wastewater
discharges
though
flow­
normalized
mass­
based
permit
limits
Control
Authorities
will
need
to
consider
the
potential
increase
in
administrative
expenses
and
104
potential
enforcement
difficulties.

Flow­
normalized
mass­
based
permit
limits
can
be
difficult
for
the
Control
Authority
to
implement.
To
develop
a
flow­
normalized
mass­
based
permit
limit,
the
Control
Authority
must
determine
the
actual
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
normalized
mass­
based
permit
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.
There
have
been
difficulties
in
getting
Control
Authorities
to
correctly
calculate
flow­
normalized
mass­
based
permit
limits,
and
in
getting
facilities
to
provide
the
necessary
data
to
determine
compliance
with
the
applicable
pretreatment
standards.
Deficiencies
in
permits
and
control
mechanisms
have
in
the
past
hindered
enforcement
actions
against
these
facilities.
Enforcing
flow­
normalized
mass­
based
permit
limits
also
becomes
more
complicated
because
there
is
an
additional
factor
in
the
formula
to
calculate
these
limits.
In
order
to
measure
compliance,
both
wastewater
flow
and
pollutant
concentrations
at
the
sample
point
need
to
be
accurate
and
verified
in
order
to
enforce
the
flow­
normalized
mass­
based
permit
limits.

Current
policy
encourages
Control
Authorities
to
recalculate
flow­
normalized
mass­
based
permit
limits
within
the
permit
term
when
wastewater
volume
discharges
increase
or
decrease
by
more
than
20%
from
the
Industrial
User's
actual
long­
term
average
daily
flow
rate
initially
calculated
at
the
beginning
of
the
permit
term.
See
"
Guidance
Manual
for
the
Use
of
Production­
Based
Pretreatment
Standards
and
the
Combined
Wastestream
Formula,
EPA833­
B­
85­
201,
September
1985.@
To
ease
the
administrative
burden
on
Control
Authorities
and
encourage
water
re­
use
and
reduction
technologies
and
pollution
prevention
practices
(
and
the
corresponding
added
benefit
of
reducing
industrial
wastewater
pollutant
mass
discharges),
EPA
is
now
encouraging
Control
Authorities
to
recalculate
the
Industrial
User's
actual
long­
term
average
daily
flow
rate
only
at
the
beginning
of
each
permit
renewal
when
wastewater
volume
reductions
within
the
permit
term
are
the
result
of
water
re­
use
and
reduction
technologies
and
pollution
prevention
practices.
In
short,
the
Control
Authority
must
recalculate
the
daily
maximum
and
monthly
average
equivalent
mass
permit
limits
prior
to
the
reissuance
of
the
Industrial
User's
control
mechanism
based
on
the
then
current
estimate
of
the
Industrial
User's
actual
long­
term
average
daily
flow
rate.]

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
A
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
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
disagrees
that
the
final
rule
would
illegally
transfer
the
Agency's
standard­
setting
authority
to
Control
Authorities.

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
already
conduct
complex
activities
that
demand
advanced
abilities:
review
Baseline
Monitoring
Reports
(
§
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
alternate
units
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
§
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
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,
IU
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(
f)(
2)(
v),
(
v)(
2),
403.12(
i),
(
e),
(
q))
Today's
rule
provides
Control
Authorities
with
the
ability
to
reduce
certain
oversight
responsibilities
and
sampling
and
inspection
requirements
for
a
new
class
of
indirect
discharger,
the
"
non­
significant
categorical
Industrial
User"
(
NSCIU).
[
A
NSCIU
is
a
discharger
which
discharges
no
more
than
100
gallons
per
day
of
total
process
wastewater
to
the
POTW.]

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
at
least
every
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
necessarily
subject
to
this
oversight.

The
definition
of
"
Significant
Industrial
User"
at
40
CFR
403.3(
t)
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
referred
to
as
categorical
industrial
users
(
CIUs).
There
are
no
current
exceptions
to
the
inclusion
of
CIUs
in
the
definition
of
an
SIU.
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
CA
is
not
able
to
make
a
similar
exclusion
for
facilities
meeting
the
definition
of
CIU.

The
regulations
require
that
all
CIUs
submit
to
their
Control
Authority
twice
per
year,
unless
required
more
frequently,
a
report
indicating
the
concentration
of
pollutants
in
their
effluent
which
are
limited
by
the
applicable
Categorical
Pretreatment
Standards
(
40
CFR
403.12(
e)(
1)).
The
report
must
contain
the
results
of
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
"
non­
significant
categorical
industrial
user"
(
NSCIU)
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
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
NSCIU.
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?

Today's
final
rule
adopts
the
proposed
definition
of
"
non­
significant
categorical
industrial
user"
(
NSCIU)
and
the
proposal's
concept
of
authorizing
reduced
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
discharge
"
untreated
concentrated
wastes".]
Similar
to
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
considered
an
SIU,
there
is
no
requirement
to
issue
a
control
mechanism.
POTWs
are
also
required
to
provide
a
list
of
the
facilities
that
are
being
regulated
as
non­
significant
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
considered
a
categorical
discharger
and,
as
such,
is
still
required
to
comply
with
applicable
categorical
Pretreatment
Standards
and
related
reporting
requirements
in
40
CFR
403.12(
e)
and
403.12(
q).
Control
Authorities
would
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
11
percent
of
current
CIUs
might
be
eligible
for
NSCIU
status,
according
to
a
recent
nationwide
evaluation
of
POTWs.]

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
facility
must
describe
the
basis
for
its
compliance
certification,
such
as
no
changes
in
any
processes
that
generate
process
wastewaters
or
no
change
in
raw
chemicals
used.

Does
EPA
expect
the
industrial
user
or
control
authority
to
perform
annual
monitoring:
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
industry
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
specifies
that
the
100
gpd
cutoff
is
to
be
measured
as
the
"
total
process
wastewater
(
excluding
sanitary,
non­
contact
cooling
and
boiler
blowdown
wastewater)"
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
is
still
of
the
opinion
that
requiring
a
definitive,
total
daily
cutoff
is
the
easiest
and
most
efficient
way
to
oversee
and
implement
the
NSCIU
provisions.]

Also,
the
definition
of
NSCIU
specifically
enables
Users
to
exclude
non­
process
wastewater
discharges
such
as
sanitary,
non­
contact
cooling
and
boiler
blowdown
wastewater.
See
§
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
§
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
§
403.12(
q).
See
§
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
§
403.12(
l).
See
§
403.12(
q).

Annual
List
of
NSCIUs:
The
final
rule
makes
explicit
what
was
discussed
in
the
preamble
to
the
proposed
rule
that
Control
Authorities
are
required
to
include
a
list
of
Users
considered
to
be
NSCIUs
in
its
annual
report
to
the
Approval
Authority.
See
§
403.12(
i).

Annual
Evaluation
of
NSCIU
Status:
The
proposed
rule
is
modified
to
require
that
Control
Authorities
evaluate,
at
least
once
per
year,
whether
Industrial
User
previously
determined
to
be
an
NSCIU
still
meets
the
"
non­
significant"
criteria
in
§
403.3(
v)(
2).
See
§
403.8(
f)(
2)(
v).

4.
Summary
of
Major
Comments
and
EPA
Response
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
§
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
§
403.12(
q)
and
review
any
other
documentation
provided
by
the
facility.
The
level
of
effort
devoted
to
an
inspection
can
be
tailored
to
the
facility.
The
Control
Authority
is
not
required
to
issue
the
NSCIU
a
control
mechanism.
However,
the
CA
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
NCSIUs
annually
certify
they
are
in
compliance
with
all
applicable
pretreatment
standards
using
the
certification
statement
at
403.12(
q).
Further,
the
Control
Authority
must
annually
review
the
NSCIU's
§
403.12(
q)
certification
statement,
perform
a
NSCIU
evaluation,
at
least
once
per
year,
and
provide
an
updated
list
of
NSCIUs
to
the
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
process
wastewater"
in
order
to
emphasize
the
fact
that
it
is
the
"
total"
discharge
of
100
gpd
or
less
of
process
wastewater
which
qualifies
a
User
for
NSCIU
status
(
as
long
as
the
other
required
conditions
of
§
403.3(
v)(
2)
are
met),
not
some
smaller
subset
of
treated
concentrated
wastewaters.
EPA
has
also
deleted
the
word
"
other"
and
has
added
conditions
that
must
be
met
prior
to
designation
of
a
nonsignificant
categorical
industrial
user.

[
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.
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
position
of
the
Association
of
Metropolitan
Sewerage
Agencies
(
AMSA,
now
renamed
as
the
National
Association
of
Clean
Water
Agencies)
which
proposed
an
alternative
cutoff
which
was
specific
to
the
POTW.
The
AMSA
approach
proposed
that
a
discharge
of
process
wastewater
no
greater
than
0.01%
of
the
treatment
plant's
design
hydraulic
or
organic
treatment
capacity,
and
no
greater
than
0.01%
of
the
maximum
allowable
headworks
loading
(
MAHL)
for
the
receiving
POTW
of
any
categorical
pollutant
detected
at
the
POTW
headworks,
as
long
as
the
discharge
did
not
exceed
10,000
gpd
and
the
CIU
was
not
in
significant
noncompliance
for
the
previous
two
years,
would
be
considered
an
NSCIU.
EPA
notes
that
the
comments
provided
did
not
establish
data
to
support
how
many
CIUs
would
potentially
be
captured
by
the
different
flow
thresholds,
nor
did
they
provide
information
on
the
impact
of
these
alternative
criteria
on
Pretreatment
Program
results.

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
of
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
had
an
extremely
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
capture
a
greater
number
of
Users.
EPA
generally
views
the
100
gpd
threshold
as
capturing
the
de
minimus
dischargers,
and
supports
retaining
the
existing
level
of
reporting,
sampling,
and
inspection
requirements
to
the
remaining
SIUs.
In
addition,
in
relation
to
the
suggestion
that
EPA
adopt
a
percentage
of
Control
Authority
flow
as
a
basis
for
level
of
oversight
and
control,
EPA
notes
that
such
an
approach
would
have
the
effect
of
undermining
the
technology
driven
level
playing
field
created
by
the
categorical
Standards
by
establishing
a
threshold
that
benefits
larger
sized
POTWS
as
compared
to
smaller
systems.
Furthermore,
EPA
estimates
that
approximately
86%
of
the
POTW
universe
has
10
or
fewer
CIUs.

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
11
percent
of
all
CIUs
in
those
municipalities
would
meet
the
100
gpd
threshold
for
NSCIU.
EPA
anticipates
that
the
100
gpd
threshold
will
result
in
capturing
higher
numbers
of
CIUs
in
select
cities
or
regions.
In
comparison,
in
the
public
comments
responding
to
the
proposed
rule,
one
commenter
stated
that
5
of
its
38
(
or
13%)
dischargers
would
be
covered
under
the
100
gpd
cutoff,
while
another
commenter
indicated
that
1
of
its
4
(
or
25%)
dischargers
would
be
covered
under
the
100
gpd
threshold.

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
plans,
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
obtain
or
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
recommends
that
this
evaluation
be
in
the
form
of
an
annual
inspection.
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
§
403.12(
q))
that
its
discharge
is
in
compliance
with
all
applicable
categorical
Standards
and
Requirements.
Can
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
averaging
flow
values.
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
industrial
user
install
some
form
of
flow
restrictor
that
will
ensure
that
they
never
go
over
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
and
the
facility's
discharge,
with
or
without
treatment,
would
remain
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
(
i.
e.,
plating
baths
and
rinses,
solvents,
sludges,
etc.)
wastewater
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.

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.
Many
POTW's
are
currently
installing
linings
to
their
pipes
consisting
of
various
materials
to
stop
.
There
is
no
data
on
what
effects
pH
may
have
on
these
new
materials.
EPA
has
concluded
that
until
research
is
available
that
investigates
the
synergistic
effects
of
these
factors
as
well
as
further
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
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,
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:

 
§
122.21(
j)(
6):
Change
reference
to
definition
of
"
Significant
Industrial
User"
to
§
403.3(
v),
instead
of
§
403.3(
t).
This
reference
change
is
a
direct
result
of
renumbering
associated
with
today's
rule.

 
§
122.44(
j)(
1):
Correct
typographical
error
referring
to
"
significant
indirect
dischargers"
instead
of
the
correct
term,
"
significant
industrial
users".

 
§
122.62(
a)(
7):
Correct
typographical
error
referencing
an
incorrect
provision
relating
to
modifications.
The
correct
reference
should
be
§
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
proposed
all
the
program
revisions
it
wishes
in
response
to
today's
streamlining
provisions,
the
modifications
must
then
be
submitted
to
the
Approval
Authority
(
either
the
State,
if
Pretreatment
Program
authority,
or
the
EPA
Regional
Authority)
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,
and
application
of
equivalent
concentration
limits
in
place
of
flowbased
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
definition.
(
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
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.
Consequently,
upon
receiving
the
POTW's
amended
program
submission,
the
Approval
Authority
must
first
determine
whether
any
of
the
modifications
constitute
a
"
substantial
modification"
(
as
defined
in
40
CFR
403.18(
b))
or
a
"
nonsubstantial
modification".
Substantial
modifications
generally
involve
changes
that
may
potentially
result
in
a
significant
impact
on
the
operation
of
the
pretreatment
program,
increased
pollutant
loadings
to
the
POTW,
or
less
stringent
requirements
being
imposed
on
Industrial
Users.
The
pretreatment
regulations
specify
that
substantial
modifications
consist
of
one
of
seven
potential
changes
to
the
POTW's
program.
See
40
CFR
430.18(
b)(
1­
7).
All
other
changes
to
the
program
are
considered
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.
In
comparison,
where
the
submission,
or
parts
of
it,
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
was
approved.

How
will
the
POTW's
adoption
of
today's
streamlining
provisions
be
reviewed
by
the
Approval
Authority?
EPA
wants
to
avoid
limiting
the
discretion
of
individual
Approval
Authorities
to
review
subsequent
program
amendments
as
they
deem
appropriate
under
the
circumstances
in
accordance
with
the
requirements
of
40
CFR
403.18.
First,
a
POTW
may
wish
to
make
adjustments
to
the
wording
of
some
of
the
streamlining
provisions
so
that
it
fits
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
may
otherwise
not
be
substantial
if
adopted
verbatim.
It
is
therefore
difficult
to
project
with
any
certainty
how
each
amendment
should
be
reviewed.
Second,
different
Approval
Authorities
may
vary
in
how
they
interpret
40
CFR
403.18(
b)(
7),
and
which
modifications
they
view
as
causing
a
significant
impact
on
the
program
or
an
increase
in
pollutant
loadings,
or
resulting
in
less
stringent
requirements.

In
general,
however,
in
EPA's
view,
the
Approval
Authority
may
treat
the
adoption
of
essentially
the
same
language
used
in
today's
rule
for
many
of
the
issues
as
a
non­
substantial
modification.
More
specifically,
a
POTW's
adoption
of
provisions
that
mirror
today's
streamlining
provisions
addressing
monitoring
waivers
for
pollutants
not
present
(
Section
III.
A.),
slug
control
plans
(
Section
III.
D.),
grab
and
composite
sampling
methods
(
Section
III.
F.),
SNC
(
Section
III.
G.),
equivalent
concentration
limits
(
Section
III.
E.),
and
miscellaneous
changes
(
Section
III.
I.)
would
generally
be
considered
non­
substantial
modifications.
For
example,
in
the
case
of
today's
provisions
relating
to
monitoring
waivers
for
pollutants
not
present,
the
Approval
Authority
could
find
that
such
a
program
change
does
not
trigger
the
criteria
for
modifications
that
relax
POTW
legal
authorities
(
40
CFR
403.18(
b)(
1))
or
that
result
in
a
decrease
in
the
frequency
of
self
monitoring
(
40
CFR
403.18(
b)(
4).
Second,
in
this
scenario
where
EPA's
language
is
adopted
verbatim,
the
POTW
is
adopting
the
same
legal
authorities
that
are
being
promulgated
today.
Under
40
CFR
403.18(
b)(
1),
a
modification
to
a
POTW's
legal
authorities
that
"
directly
reflect(
s)
a
revision
to
part
403"
does
not
require
a
substantial
modification
review.
Further,
the
adoption
of
the
pollutants
not
present
language
and
a
POTW's
subsequent
use
of
these
provisions
to
grant
monitoring
waivers
to
individual
industrial
users
is
not
the
same
as
"
a
decrease
in
the
frequency
of
self­
monitoring."
As
EPA
has
stated,
"
It
is
important
to
remember
that
'
decrease
in
the
frequency
of
self
monitoring'
...
refer(
s)
to
changes
in
the
POTW's
general
policy
and
not
to
decisions
affecting
individual
industrial
users.
...
Changes
affecting
individual
industrial
users
are
not
substantial
modifications."
See
62
FR
38408.
Applying
this
rationale
to
Pretreatment
Program
changes
associated
with
monitoring
waivers,
having
adopted
the
legal
authorities
and
procedures
consistent
with
today's
provisions,
the
POTW's
subsequent
use
of
these
authorities
to
make
facility­
specific
decisions
regarding
monitoring
waivers
is
not
the
equivalent
of
changing
the
POTW's
overall
monitoring
policy.
Again,
none
of
EPA's
recommendations
are
intended
to
restrict
the
Approval
Authority's
ability
to
review
case­
specific
submissions
as
substantial
modifications.
On
the
other
hand,
Approval
Authorities
may
need
to
review
the
adoption
of
the
general
control
mechanism
and
BMP
provisions
of
today's
final
rule
as
substantial
program
modifications.
In
the
case
of
general
control
mechanisms,
a
POTW's
use
of
such
tools
will
generally
involve
"
changes
to
the
POTW's
control
mechanism"
(
40
CFR
403.18(
b)(
3)).
A
change
that
authorizes
use
of
a
general
control
mechanism
instead
of
an
"
individual
control
mechanism"
to
regulate
some
of
a
POTW's
SIUs
is
a
significant
enough
shift
in
the
POTW's
permitting
strategy
to
trigger
a
substantial
modification
review.
In
its
review,
Approval
Authorities
will
likely
be
interested
in
aspects
of
the
general
control
mechanism
authority
such
as
how
industries
will
be
grouped
using
the
selection
criteria
in
40
CFR
403.8(
f)(
1)(
iii)(
A)(
1­
5),
what
procedures
will
be
put
into
place
to
notify
SIUs
of
the
availability
of
a
general
control
mechanism
and
to
process
written
requests
by
users
for
coverage
and
what
conditions
will
be
included
in
the
general
control
mechanisms.
However,
just
as
issuance
or
modification
of
specific
individual
control
mechanisms
does
not
trigger
program
modification
requirements,
EPA
does
not
envision
that
Approval
Authorities
will
need
to
review
as
a
substantial
modification
future
revisions
in
the
"
boilerplate"
language
a
POTW
uses
in
its
general
control
mechanisms,
or
the
issuance
of
specific
general
control
mechanisms.
See
62
FR
38408.

Similarly,
EPA
expects
that
in
most
cases
Approval
Authorities
will
need
to
review
the
POTW's
use
of
BMPs
(
instead
of
numeric
limits)
as
local
limits
as
a
substantial
modification
because
it
is
likely
that
substitution
of
a
BMP
for
an
existing
numeric
limit
would
be
a
"
modification
that
relax(
es)
local
limits."
See
40
CFR
403.18(
b)(
2).
As
EPA
has
previously
stated,
"
in
most
instances,
the
initial
adoption
of
a
 
BMP
will
be
a
substantial
modification
where
it
replaces
a
different
form
of
local
limits."
See
62
FR
38408.
"
There
may
be
limited
circumstances,
such
as
where
the
POTW
documents
that
a
BMP
achieves
an
existing
concentration
limit,
where
the
Approval
Authority
might
consider
such
a
change
to
be
a
nonsubstantial
modification."
See
62
FR
38410.
In
those
cases,
in
order
for
the
Approval
Authority
to
be
able
to
consider
whether
the
change
might
be
non­
substantial,
the
POTW
should
be
required
to
provide
a
statement
of
basis
in
the
request
for
the
modification
that
documents
why
it
believes
the
use
of
a
particular
BMP
is
not
a
relaxation
of
local
limits.

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"
because
it
raises
novel
legal
or
policy
issues
arising
out
of
legal
mandates,
the
President's
priorities,
or
the
principles
set
forth
in
this
EO.
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
20XX­
XXXX.

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
(
ie.,
Industrial
users
and
POTWs)
and
government
entities
is
[
placeholder]
hours
and
[
placeholder].

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.

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.

[
Give
an
estimate
of
the
projected
cost
and
hour
burden.
For
the
hour
burden,
this
should
include
an
estimate
of
the
average
annual
reporting
burden
disaggregated
to
show
the
estimated
average
burden
hours
per
response,
the
proposed
frequency
of
response,
and
the
estimated
number
of
likely
respondents.
For
the
cost
burden
to
respondents
or
recordkeepers
resulting
from
the
collection
of
information,
this
should
include
a
total
capital
and
start­
up
cost
component
annualized
over
its
expected
useful
life,
and
a
total
operation
and
maintenance
component,
and
a
purchase
of
services
component.]

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
USC
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
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
believe
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
relieve
regulatory
burden
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
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
1321:
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
[
placeholder
date].

For
the
reasons
set
out
in
the
preamble,
title
40,
chapter
I
of
the
Code
of
Federal
Regulations
is
amended
as
follows:

PART
122
 
EPA
ADMINISTERED
PERMIT
PROGRAMS:
THE
NATIONAL
POLLUTANT
DISCHARGE
ELIMINATION
SYSTEM
1.
The
authority
for
Part
122
continues
to
read
as
follows:

Authority:
The
Clean
Water
Act,
33
U.
S.
C.
1251
et
seq.

2.
Section
122.21
is
amended
by
revising
paragraph
(
j)(
6)(
ii)
as
follows:

§
122.21
Application
for
a
permit
(
applicable
to
State
programs,
see
§
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:

*
*
*
*
*

3.
Section
122.44
is
amended
by
revising
the
first
sentence
of
paragraph
(
j)(
1)
as
follows:

§
122.44
Establishing
limitations,
standards,
and
other
permit
conditions
(
applicable
to
State
NPDES
programs,
see
§
123.25).

*
*
*
*
*

(
j)
*
*
*
(
1)
Identify,
in
terms
of
character
and
volume
of
pollutants,
any
significant
industrial
users
into
the
POTW
subject
to
pretreatment
standards
under
section
307(
b)
of
CWA
and
40
CFR
part
403.
4.
Section
122.62
is
amended
by
revising
paragraph
(
a)(
7)
as
follows:

§
122.62
Modification
or
revocation
and
reissuance
of
permits
(
applicable
to
State
programs,
see
§
123.25).

*
*
*
*
*

(
a)
*
*
*
(
7)
Reopener.
When
required
by
the
``
reopener''
conditions
in
a
permit,
which
are
established
in
the
permit
under
§
122.44(
b)
(
for
CWA
toxic
effluent
limitations
and
standards
for
sewage
sludge
use
or
disposal,
see
also
§
122.44(
c))
or
40
CFR
§
403.18(
e)
(
pretreatment
program).

PART
403
 
GENERAL
PRETREATMENT
REGULATIONS
FOR
EXISTING
AND
NEW
SOURCES
OF
POLLUTION
1.
The
authority
for
Part
403
continues
to
read
as
follows:

Authority:
33
U.
S.
C.
1251
et
seq.

2.
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:

§
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
§
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
§
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
§
403.6
and
40
CFR
chapter
I,
subchapter
N
is
not
a
Significant
Industrial
User
on
a
finding
that
the
Industrial
User
never
discharges
more
than
[
100
gallons
per
day
(
gpd)]
of
total
process
wastewater
(
excluding
sanitary,
non­
contact
cooling
and
boiler
blowdown
wastewater)
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
certifies
that
its
discharge
is
in
compliance
with
all
applicable
categorical
Pretreatment
Standards
and
Requirements;
and
annually
submits
the
§
403.12(
q)
certification
statement
together
with
any
additional
information
to
support
the
certification
statement;
and
(
iii)
the
Industrial
User
never
discharges
any
untreated
concentrated
wastewater.

Such
Industrial
Users
will
be
referred
to
as
Non­
Significant
Categorical
Industrial
Users.

(
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
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.
*
*
*
*
*

3.
Section
403.5
is
amended
by
revising
paragraph
(
b)(
1)
and
adding
a
new
paragraph
(
c)(
4)
to
read
as
follows:

§
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)
that
accomplish
the
goals
required
by
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.

*
*
*
*
*

4.
Section
403.6
is
amended
by
redesignating
paragraphs
(
c)(
5)
through
(
c)(
7)
as
paragraphs
(
c)(
7)
through
(
c)(
9);
by
revising
paragraph
(
b),
paragraph
(
c)(
2),
newly
designated
paragraph
(
c)(
7),
newly
designated
paragraph
(
c)(
8),
paragraph
(
d),
and
the
first
sentence
of
paragraph
(
e)
introductory
text;
and
by
adding
paragraphs
(
c)(
5)
and
(
c)(
6).
The
revised
and
added
text
reads
as
follows:

§
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
§
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
a
categorical
Pretreatment
Standard
is
expressed
in
terms
of
pollutant
concentrations
that
are
directly
applicable
as
limits
on
the
Industrial
User,
the
Industrial
User
may
request
that
the
Control
Authority
convert
the
limits
to
equivalent
mass
limits.
If
the
Industrial
User
requests
equivalent
mass
limits
and
all
of
the
requirements
in
paragraph
(
5)(
i)(
A)
thru
(
E)
below
are
met,
the
determination
as
to
whether
equivalent
mass
limits
are
appropriate
is
within
the
discretion
of
the
Control
Authority.

(
i)
To
be
eligible
for
equivalent
mass
limits,
the
Industrial
User
must
demonstrate
that
it:

(
A)
will
employ
water
conservation
methods
and
technologies
that
substantially
reduce
water
use
during
the
term
of
its
control
mechanism;

(
B)
currently
uses
control
measures
at
least
as
effective
as
the
control
and
treatment
technologies
that
serve
as
the
basis
for
that
particular
Standard,
and
has
not
used
dilution
as
a
substitute
for
treatment;

(
C)
has
provided
sufficient
information
to
establish,
based
on
data
from
a
continuous
effluent
flow
monitoring
device,
the
facility's
average
daily
flow
rate
for
all
wastestreams,
and
the
facility's
long­
term
average
production
rate
that
are
representative
of
current
operating
conditions;

(
D)
does
not
have
daily
flow
rates,
production
levels,
or
pollutant
levels
that
fluctuate
to
such
a
degree
that
an
equivalent
mass
limit
cannot
be
appropriately
established
to
control
the
discharge;
and
(
E)
has
been
in
consistent
compliance
with
all
applicable
categorical
Pretreatment
Standards
prior
to
the
Industrial
User's
request
to
be
subject
to
equivalent
mass
limits.

(
ii)
After
equivalent
mass
limits
are
developed,
the
Industrial
User
must:

(
A)
maintain
and
effectively
operate
the
same
or
more
effective
control
and
treatment
technologies
as
those
that
were
in
place
at
the
time
the
equivalent
mass
limit
is
established;

(
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
rate
determined
in
paragraph
(
5)(
i)(
C)
of
this
section;
upon
notification
of
a
revised
production
rate,
the
Control
Authority
must
reassess
the
equivalent
mass
limit
and
must
recalculate
the
limit
as
necessary
to
reflect
changed
conditions
at
the
facility;
and
(
D)
continue
to
employ
the
water
conservation
methods
and
technologies
implemented
pursuant
to
paragraph
(
5)(
i)(
A)
of
this
section.

(
iii)
The
Control
Authority
must:

(
A)
calculate
the
initial
equivalent
mass
limit
by
multiplying
the
average
daily
flow
rate
of
the
regulated
process(
es)
of
the
Industrial
User
by
the
applicable
concentration­
based
categorical
daily
maximum
and
monthly
average
standard
and
the
appropriate
conversion
factor;

[(
B)
recalculate
the
daily
maximum
and
monthly
average
equivalent
mass
limit
prior
to
the
reissuance
of
the
Industrial
User's
control
mechanism;
and]

(
C)
upon
notification
of
a
revised
production
rate,
reassess
the
equivalent
mass
limit
and
recalculate
the
limit
as
necessary
to
reflect
changed
conditions
at
the
facility.

(
6)
The
Control
Authority
may
convert
the
mass
limits
of
the
categorical
Pretreatment
Standards
at
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
Parts
414,
419,
and
455
and
document
that
dilution
is
not
being
substituted
for
treatment
as
prohibited
by
§
403.6
(
d).

(
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.
*
*
*

*
*
*
*
*

5.
Section
403.7
is
amended
by
revising
paragraphs
(
h)
introductory
language
and
(
h)(
2)
to
read
as
follows:

§
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)
shall
not
apply
where
Industrial
User(
s)
can
demonstrate
that
Overflow
does
not
occur
between
the
Industrial
User(
s)
and
the
POTW
Treatment
Plant;

(
1)*
*
*
(
2)
*
*
*
(
ii)
The
POTW
is
in
compliance
with
the
NPDES
permit
requirements
affecting
those
Overflows,
or
enforcement
order
or
decree
affecting
those
Overflows,
issued
pursuant
to
section
402(
q)(
1)
of
the
Act.

6.
Section
403.8
is
amended
by
redesignating
paragraphs
(
f)(
2)(
vi)
and
(
f)(
2)(
vii)
as
paragraphs
(
f)(
2)(
vii)
and
(
f)(
2)(
viii);
by
revising
paragraph
(
f)(
1)(
iii),
paragraph
(
f)(
1)(
v),
the
first
sentence
of
paragraph
(
f)(
1)(
vi)(
B),
paragraph
(
f)(
2)(
v),
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),
and
paragraph
(
f)(
6);
and
by
adding
paragraph
(
f)(
2)(
vi).
The
added
and
revised
text
reads
as
follows:

§
403.8
POTW
pretreatment
programs:
Development
and
implementation
by
the
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
§
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)
At
the
discretion
of
the
POTW,
this
control
may
include
use
of
general
control
mechanisms
if
all
of
the
facilities
to
be
covered:

(
1)
involve
the
same
or
substantially
similar
types
of
operations;
(
2)
discharge
the
same
types
of
wastes;
(
3)
require
the
same
effluent
limitations;
(
4)
require
the
same
or
similar
monitoring;
and
(
5)
in
the
opinion
of
the
POTW,
are
more
appropriately
controlled
under
a
general
control
mechanism
than
under
individual
control
mechanisms.

To
be
covered
by
the
general
control
mechanism,
the
Significant
Industrial
User
must
file
a
written
request
for
coverage
that
identifies
its
production
processes,
the
types
of
wastes
generated,
the
location
for
monitoring
all
wastes
covered
by
the
general
control
mechanism,
any
monitoring
waiver
request
for
a
pollutant
neither
present
nor
expected
to
be
present
in
the
discharge
in
accordance
with
§
403.12(
e)(
2),
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
effective
in
the
general
control
mechanism
only
after
the
POTW
has
provided
written
notice
to
the
Significant
Industrial
User
that
such
a
waiver
request
has
been
granted
in
accordance
with
§
403.12(
e)(
2).
A
copy
of
the
general
control
mechanism,
documentation
to
support
the
POTW's
determination
that
a
specific
Significant
Industrial
User
meets
the
criteria
in
(
f)(
1)(
iii)(
A)(
1)­(
5),
and
a
copy
of
the
User's
written
request
for
coverage
must
be
maintained
for
3
years
after
the
expiration
of
the
general
control
mechanism.
General
control
mechanisms
may
not
be
used
for
facilities
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
(
§
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
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
§
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.
*
*
*

*
*
*
*
*

(
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
under
the
following
circumstances.
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
§
403.12(
e)(
2),
the
POTW
may
reduce
its
sampling
frequency
for
the
waived
pollutant(
s)
to
once
during
the
term
of
the
Categorical
Industrial
User's
control
mechanism.
In
the
event
that
a
waived
pollutant
is
subsequently
found
to
be
present
or
is
expected
to
be
present
based
on
changes
that
occur
in
the
user's
operations,
the
POTW
must
immediately
begin
at
least
annual
monitoring
of
the
user's
discharge.
Evaluate,
at
least
once
per
year,
whether
the
Industrial
User
continues
to
meet
the
criteria
for
classification
as
a
Non­
Significant
Categorical
Industrial
User
in
accordance
with
§
403.3(
v)(
2);

(
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
[
insert
date
30
days
after
publication
in
the
Federal
Register],
this
evaluation
must
have
been
conducted
at
least
once
by
[
insert
date
1
year
after
publication
in
the
Federal
Register];
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
§
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
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)
below)
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
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)
for
the
same
pollutant
parameter;

(
B)
Technical
Review
Criteria
(
TRC)
violations,
defined
here
as
those
in
which
33
percent
or
more
of
all
of
the
measurements
for
each
pollutant
parameter
taken
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
§
403.3(
v)(
1).
The
list
shall
identify
the
criteria
in
§
403.3(
v)(
1)
applicable
to
each
industrial
user
and,
where
applicable,
shall
also
indicate
whether
the
POTW
has
made
a
determination
pursuant
to
§
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
§
403.9
or
as
a
nonsubstantial
modification
pursuant
to
§
403.18(
d).
Modifications
to
the
list
shall
be
submitted
to
the
Approval
Authority
pursuant
to
§
403.12(
i)(
1).

*
*
*
*
*

7.
Section
403.12
is
amended
by
removing
and
reserving
paragraph
(
a);
by
removing
paragraph
(
b)(
5)(
iii);
by
redesignating
paragraphs
(
b)(
5)(
iv)
through
(
b)(
5)(
viii)
as
paragraphs
(
b)(
5)(
iii)
through
(
b)(
5)(
vii);
by
redesignating
paragraphs
(
e)(
2)
and
(
e)(
3)
as
paragraphs
(
e)(
3)
and
(
e)(
4);
by
redesignating
paragraphs
(
g)(
4)
and
(
g)(
5)
as
paragraphs
(
g)(
5)
and
(
g)(
6);
by
revising
paragraphs
(
b)(
4)(
ii),
(
b)(
5)(
ii),
(
b)(
6),
(
e)(
1),
(
g)(
1),
(
g)(
2),
(
g)(
3),
(
h),
(
j),
(
k)(
2),
(
l)
introductory
text,
(
1)(
1)
introductory
text,
(
l)(
1)(
ii),
(
l)(
2),
(
m),
(
o)(
1)
introductory
text,
newly
designated
paragraph
(
g)(
6),
and
the
first
sentence
of
paragraph
(
o)(
2);
and
by
adding
paragraphs
(
e)(
2),
(
g)(
4),
(
i)(
6),
and
(
q).
The
added
and
revised
text
reads
as
follows:

§
403.12
Reporting
requirements
for
POTWs
and
industrial
users.

(
a)
[
Reserved]
(
b)
*
*
*
(
4)
*
*
*
(
ii)
Other
streams
as
necessary
to
allow
use
of
the
combined
wastestream
formula
of
§
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,
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
standard
requires
compliance
with
a
best
management
practice
or
pollution
prevention
alternative,
the
User
shall
submit
documentation
required
by
the
Control
Authority
or
the
standard
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
agree
to
alter
the
months
during
which
the
above
reports
are
to
be
submitted.
Where
the
Control
Authority
determines
that
a
facility
subject
to
categorical
Pretreatment
Standards
is
not
a
Significant
Industrial
User
pursuant
to
403.3(
v)(
2),
the
Control
Authority
may
allow
the
Industrial
User
to
reduce
the
reporting
and
monitoring
frequency
required
under
this
Section;
however,
the
Industrial
User
must
at
least
annually
complete
a
certification
statement
in
accordance
with
403.12(
q).

(
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
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
monitoring
waiver
is
valid
only
for
the
duration
of
the
effective
period
of
the
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
(
ii)
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
§
403.12(
l),
and
include
the
certification
statement
in
§
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.

(
iii)
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.

(
iv)
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).

(
v)
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:
(
1)
comply
with
the
monitoring
requirements
of
§
403.12(
e)(
1)
or
other
more
frequent
monitoring
requirements
imposed
by
the
Control
Authority,
and
(
2)
notify
the
Control
Authority.

(
vi)
This
provision
does
not
supercede
certification
processes
and
requirements
established
in
categorical
Pretreatment
Standards,
except
as
otherwise
specified
in
the
categorical
Pretreatment
Standard.

*
*
*
*
*

(
g)
*
*
*
(
1)
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
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
flowproportional
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
(
e)
and
(
h),
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
Noncategorical
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
the
local
standard
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)*
*
*
(
6)
An
updated
list
of
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
§
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.

*
*
*
*
*

(
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)
Sampling
of
non­
Significant
Categorical
Industrial
Users.
For
a
facility
determined
to
be
a
Non­
Significant
Categorical
Industrial
User
pursuant
to
§
403.3(
v)(
2),
the
Control
Authority
may
establish
alternative
reporting
requirements
to
the
reporting
requirements
in
§
403.12(
e).
In
lieu
of
monitoring
pursuant
to
§
403.12(
e),
the
Control
Authority
may
allow
Non­
Significant
Categorical
Industrial
Users
to
submit
a
certification
statement.
The
following
certification
statement,
to
be
signed
in
accordance
with
the
signatory
requirements
in
§
403.12(
l),
must
be
submitted
at
least
once
per
year,
and
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
§
403.3(
v)(
2);
(
b)
the
facility
complied
with
all
applicable
pretreatment
standards
and
requirements
for
at
least
the
last
three
years;
and
(
c)
the
facility
never
discharged
more
than
100
gallons
of
process
water
on
any
given
day
during
this
period.
This
compliance
certification
is
based
upon
the
following
information:
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

8.
Section
403.13
is
amended
by
revising
the
first
sentence
of
paragraph
(
g)(
3)
as
follows:

§
403.13
Variances
from
categorical
pretreatment
standards
for
fundamentally
different
factors.

*
*
*
*
*

(
g)
*
*
*
(
3)
Where
the
User
has
requested
a
categorical
determination
pursuant
to
§
403.6(
a),
the
User
may
elect
to
await
the
results
of
the
category
determination
before
submitting
a
variance
request
under
this
section.
*
*
*

*
*
*
*
*

9.
Section
403.15
is
revised
to
read
as
follows:

§
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
paragraphs
(
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.

10.
Appendix
A
is
removed
and
reserved.
Appendixes
B
and
C
continue
to
be
reserved.

APPENDIXES
A­
C
TO
PART
403
[
RESERVED]

11.
Appendix
G
is
amended
as
by
revising
Table
I,
Footnote
1
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,
Betahexachlorocyclohexane
Hexachlorocyclopentadiene,
Hexachloroethane,
Hydrogen
cyanide,
Isophorone,
Lindane,
Methylene
chloride,
Nitrobenzene,
N­
Nitrosodimethylamine,
N­
Nitrosodin
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.

*
*
*
*
*
