[Federal Register Volume 64, Number 140 (Thursday, July 22, 1999)]
[Proposed Rules]
[Pages 39564-39605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17773]



[[Page 39563]]

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Part II





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 403



Streamlining the General Pretreatment Regulations for Existing and New 
Sources of Pollution; Proposed Rule

  Federal Register / Vol. 64, No. 140 / Thursday, July 22, 1999 / 
Proposed Rules  

[[Page 39564]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR PART 403

[FRL-6377-6]
RIN 2040-AC58


Streamlining the General Pretreatment Regulations for Existing 
and New Sources of Pollution

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: Today, EPA is proposing to revise 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). EPA is also proposing changes to certain 
program requirements to be consistent with National Pollutant Discharge 
Elimination System (NPDES) requirements. The proposals would reduce the 
regulatory burden on both industrial users and State and POTW Control 
Authorities without affecting environmental protection.

DATES: Written comments on this proposed rule must be submitted on or 
before September 20, 1999. Comments provided electronically will be 
considered timely if they are submitted by 11:59 P.M. (Eastern time) 
September 20, 1999.

ADDRESSES: Commenters are requested to submit an original and two 
copies of their comments and enclosures (including references) to the 
Comments Clerk for Pretreatment Program Streamlining, Water Docket (MC-
4101), Environmental Protection Agency, 401 M Street, S.W., Washington, 
D.C. 20460. Commenters who would like acknowledgment of their comments 
should include a self-addressed, stamped envelope. No facsimiles 
(faxes) will be accepted.
    EPA will also accept comments electronically. Comments should be 
addressed to the following Internet address: ow-
[email protected]''. Electronic comments must be submitted as an 
ASCII or WordPerfect file avoiding the use of special characters and 
any form of encryption. Electronic comments must be identified by the 
docket number W-97-09, and may be filed online at many Federal 
Depository Libraries. No confidential business information (CBI) should 
be sent via e-mail.
    This document has also been placed on the Internet for public 
review and downloading from the Office of Wastewater Management home 
page at the following location: ``www.epa.gov/owm.''
    The public may inspect the administrative record for the proposed 
rulemaking at EPA's Water Docket, Room EB-57 (East Tower Basement), 401 
M Street, S.W., Washington, D.C. 20460. The record for this rulemaking 
has been established under docket number W-97-09, and includes 
supporting documentation. The public may inspect the administrative 
record between the hours of 9 a.m. and 4 p.m., Monday through Friday, 
excluding legal holidays. For access to these docket materials, please 
call (202) 260-3027 to schedule an appointment. As provided in 40 CFR 
Part 2, a reasonable fee may be charged for copying any material in the 
docket.

FOR FURTHER INFORMATION CONTACT: Jeffrey B. Smith, U. S. EPA, Office of 
Wastewater Management (OWM), Permits Division (4203), 401 M Street, 
S.W., Washington, D.C. 20460, (202) 260-5586.

SUPPLEMENTARY INFORMATION:

Affected Entities

    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
------------------------------------------------------------------------

    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 Secs. 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.
    Information in this preamble is organized as follows:

I. Background
    A. What Is the National Pretreatment Program?
    B. What Regulation Is EPA Proposing To Revise?
    C. Why Is EPA Proposing To Revise the Regulation?
    D. How Were Stakeholders Consulted in Developing Today's 
Proposal?
    E. What Role Did WEF and AMSA Play in the Development of This 
Proposal?
II. Description of Proposed Changes
    A. Specific Prohibition Regarding pH (40 CFR 403.5(b)(2))
    B. Equivalent Mass Limits for Concentration Limits (40 CFR 
403.6(c))
    C. Equivalent Concentration Limits for Flow-Based Standards (40 
CFR 403.6(c))
    D. Oversight of Categorical Industrial Users (40 CFR 403.3(u), 
403.8(f) and 403.10(f))
    E. Categorical Industrial User Monitoring (40 CFR 403.12)
    F. Slug Control Plans (40 CFR 403.8(f)(2)(v))
    G. Sampling for Pollutants Not Present (40 CFR 403.12(e))
    H. Use of Grab and Composite Samples (40 CFR 403.12(b), (d), 
(e), (g) & (h))
    I. Removal Credits (40 CFR 403.7)
    J. Electronic Filing and Storage of Reports
    K. General Permits (40 CFR 403.8(f)(1)(iii))
    L. Best Management Practices (40 CFR 403.5, 403.8(f) and 
403.12(b),(e) & (h))
    M. Significant Noncompliance Criteria (40 CFR 403.8(f)(2)(vii))
    N. Miscellaneous Changes
III. Regulatory Requirements
    A. Executive Order 12866
    B. Executive Order 12875
    C. Executive Order 13045
    D. Executive Order 13084
    E. Unfunded Mandates Reform Act
    F. Regulatory Flexibility Act
    G. Paperwork Reduction Act
    H. National Technology Transfer and Advancement Act--Voluntary 
Standards

I. Background

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

[[Page 39565]]

program is a joint regulatory effort by local, State, and federal 
authorities that requires 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.

B. What Regulation Is EPA Proposing To Revise?

    EPA is today proposing to streamline various provisions of the 
General Pretreatment Regulations for Existing and New Sources of 
Pollution codified at 40 CFR Part 403. The Clean Water Act 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).
    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 the State acting as the pretreatment 
``Approval Authority.'' More than 1,500 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)).

C. Why Is EPA Proposing To Revise The Regulation?

    EPA is working to improve the regulatory programs to protect public 
health and the environment, while maintaining or improving the 
programs' 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.
    The President's Report on ``Reinventing Environmental Regulations'' 
(March 1995) pledged to provide ``more common sense and fairness in our 
regulations.'' The goal of this initiative is to provide greater 
flexibility, reduce burden, and achieve greater environmental results 
at less cost. To this end, EPA is committed to streamlining the 
National Pretreatment Program to reduce the burden of technical and 
administrative requirements that affect industrial users and POTW and 
State Control Authorities.

D. How Were Stakeholders Consulted in Developing Today's Proposal?

    Through various outreach efforts, EPA has identified a number of 
provisions of the General Pretreatment Regulations that could be 
revised in order to reduce regulatory burden without affecting 
environmental protection. These provisions are the subject of today's 
proposal.
    In 1995, EPA's Office of Wastewater Management initiated an 
evaluation of all of the General Pretreatment Regulations in 40 CFR 
Part 403 in order to identify streamlining opportunities. Based on 
input from various stakeholders, EPA developed issue papers that 
summarized 11 areas in which the Pretreatment Regulations might be 
streamlined.
    In May 1996, the issue papers were distributed to a broad base of 
external stakeholders (States, cities, trade associations, professional 
organizations, and environmental interest groups). The issue papers 
were also publicly available on an EPA electronic bulletin board (Point 
Source Information Provision Exchange System or ``PIPES'') that was 
accessible through the Agency's Internet website at ``http://
www.epa.gov/owm.'' Synopses of the outreach effort were published in 
several trade association newsletters.
    Thirty-five outside stakeholders provided written comments on the 
proposed issues. The Agency also considered the recommendations of the 
joint Water Environment Federation and Association of Metropolitan 
Sewerage Agencies Workshop (the WEF/AMSA Workshop) discussed below.
    The Agency next prepared a draft of today's proposal and preamble, 
which discussed 13 issues or changes to the regulations. This draft 
``letter to stakeholders'' was circulated to outside stakeholders in 
May 1997. After reviewing comments received from 70 outside 
stakeholders, the Agency then prepared today's notice.
    Significant comments received during the preliminary outreach 
effort are discussed in this preamble to the proposed rule. EPA 
continues to solicit comment on all of the proposals and alternative 
options discussed below. The Agency plans to have additional 
discussions with interested parties during the comment period to help 
ensure that the Agency has the views of such parties and the best 
possible data upon which to base decisions for the final rule.

E. What role Did WEF and AMSA Play in the Development of This Proposal?

    In the summer of 1996, the Water Environment Federation (WEF) and 
the Association of Metropolitan Sewerage Agencies (AMSA) sponsored an 
independent, parallel effort to provide recommendations for 
streamlining the National Pretreatment Program. WEF and AMSA convened a 
four-day workshop to explore pretreatment program streamlining and 
reinvention opportunities. The sponsors invited a group of pretreatment 
experts that was intended to represent a broad range of stakeholder 
interests, including environmental organizations, industry, large and 
small POTWs, States, EPA, and technical consultants.
    The workshop participants developed a series of recommendations 
that were included in a final report. The WEF/AMSA Workshop Final 
Report addresses the issues that EPA had sent out for stakeholder 
review in May 1996 as well as additional issues recommended by the 
workshop participants.

[[Page 39566]]

    The WEF/AMSA Workshop Final Report was presented to EPA's Assistant 
Administrator for Water in September 1996. Where appropriate, the 
comments and recommendations in the report are discussed below.
    The WEF/AMSA Workshop Final Report also discusses ideas for broad-
based reinvention options that emphasize fundamentally new and 
different approaches to achieving the environmental objectives of the 
National Pretreatment Program. EPA is addressing these options through 
pilot program proposals submitted by POTWs in response to a June 23, 
1998 Project XL program Federal Register solicitation.

II. Description of Proposed Changes

    Today's proposal addresses thirteen specific issues and a few 
miscellaneous changes pertaining to the General Pretreatment 
Regulations. The proposal, in places, prints portions of existing 
regulatory text without change. This is done to better describe the 
proposed revisions. For example, 40 CFR 403.6(b) is reprinted in its 
entirety with the only amendment being a revision to the cited location 
of the definition of New Source in 40 CFR 403.3 from (k) to (l). 
However, EPA does not solicit, and will not respond to, comments on 
existing regulatory provisions not proposed to be amended, nor will 
such provisions be subject to judicial review upon promulgation of the 
final rule. EPA is soliciting comment only on the revisions described 
in this preamble.

A. Specific Prohibition Regarding pH (40 CFR 403.5(b)(2))

a. Existing Rule

What pH limits are addressed in this section?

    Acidic wastes can corrode sewer pipes, for example those made of 
concrete, and allow the release of pollutants to the environment. To 
address this concern, the General Pretreatment Regulations include a 
minimum pH limit as part of the specific prohibitions at 40 CFR 
403.5(b) that apply 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.''
    EPA is proposing to also allow POTWs with Approved Pretreatment 
Programs to accept temporary discharges with a pH below 5.0 to the 
extent that the POTWs can document that the discharges will not damage 
their systems. The proposal would authorize POTWs to allow nondomestic 
dischargers that continuously monitor the pH of their discharge to 
briefly discharge wastes with a pH below 5.0.

Is 5.0 the appropriate pH limit for all POTWs?

    Although acidic wastewater can damage a POTW's collection system, 
such as one constructed of concrete sewer pipes, some POTWs have 
collection systems, or portions of collection systems, that are 
constructed with acid-resistant materials such as clay pipe. Such 
collection systems that are generally tolerant of acidic wastewater may 
be used to convey acidic wastewater without damage to the collection 
system. In these cases, it may not be necessary to require a 
nondomestic discharger to maintain the pH of its discharge at or above 
5.0. In considering whether a collection system may be acid tolerant, 
the POTW is cautioned to inspect the construction materials of all 
collection system joints. Highly acidic wastes could adversely react 
with metal, concrete and mortar sealing joints in the sewers, resulting 
in infiltration of water during high water table or rainy seasons and 
exfiltration of wastes during other times.
    The existing regulation at 40 CFR 403.5(b)(2) provides that the 5.0 
limit does not apply if the treatment works ``is specifically designed 
to accommodate such discharges.'' This language suggests that the 
ability to accept low pH wastes must have been intended for the entire 
POTW, including the collection system, at the time of the construction 
of the POTW. In fact, as part of a 1984 EPA survey (``Hydrogen Sulfide 
Corrosion in Wastewater Collection and Treatment Systems, Report to 
Congress;'' September 1991 (430/09-91-009)), half of the jurisdictions 
with severe corrosion problems in the collection systems were found to 
have minor or no corrosion problems at the wastewater treatment plants. 
However, the current rule does not clearly allow a POTW to document 
that all or part of its system can safely accept temporary excursions 
below pH 5.0 if it is not specifically designed to do so.

Are industrial users that continuously monitor for pH currently allowed 
brief excursions from the 5.0 limit?

    Many industrial users use monitoring instrumentation that measures 
and displays the pH of the discharge and continuously records the pH of 
the discharge. These records indicate whether the pH of the effluent 
remained within limits and the length of time, if any, it was outside 
of the limits.
    For various reasons, some nondomestic dischargers that continuously 
monitor pH experience drops in their effluent pH below the 5.0 limit 
for short periods of time, sometimes only a few minutes. These low pH 
excursions might not harm the collection systems or cause interference 
or pass-through at the wastewater treatment plants. The current pH 
prohibition does not provide for these occurrences and, because the 
Clean Water Act is a strict liability statute, these events are 
violations of the Act. POTWs frequently must devote substantial 
administrative resources to responding to these minor short-term 
violations.

b. Stakeholder Comments

What changes did EPA suggest in its stakeholder outreach efforts?

    EPA recommended that industrial users that continuously monitor pH 
be allowed to have periodic excursions below 5.0 if the Control 
Authority establishes that the excursions will not harm its system and 
authorizes the excursion in the industrial users' permits. EPA also 
recommended allowing POTWs to establish alternate pH limits if the POTW 
can demonstrate that it can handle such wastes. Finally, EPA solicited 
comments regarding whether Approval Authority concurrence should be 
required.

How did stakeholders respond?

    Most commenters either supported the recommendation as written or 
gave qualified support with various suggestions for implementing the 
recommendation. Several commenters stated that the pH provisions at 40 
CFR 401.17 (discussed below) could serve as a basis for alternative pH 
requirements, and several Control Authorities stated that they were 
already applying such methods when selecting the enforcement action in 
response to such pH violations. The September 30, 1996, final report 
from the WEF/AMSA Pretreatment Streamlining Workshop recommended that 
EPA retain the national standard and provide new flexibility by 
allowing POTWs to establish alternative pH requirements based upon 
site-specific conditions.
    Other commenters disagreed that such revision to the rule is needed 
as long as flexibility is written into the POTW's Enforcement Response 
Plan. Eight commenters did not favor the change to the rule because 
they believed it would add to Control Authorities' workload and be too 
burdensome to implement.

[[Page 39567]]

    Four commenters did not favor the change, having experienced 
corrosion damage to the POTW collection system at the current 5.0 pH 
limit. Instead, they favored raising the minimum pH limit. One of these 
commenters cautioned that systems constructed of acid-resistant 
materials often included manhole inverts constructed of concrete and 
similar materials that are susceptible to corrosion, thus rarely being 
entirely resistant.
    In response to EPA's request for comments regarding whether 
Approval Authority concurrence should be required to implement a 
revised pH prohibition, some commenters considered pH to be primarily a 
local issue and did not favor Approval Authority concurrence. They 
believed that, in most cases, the Approval Authority has limited direct 
knowledge of the details of individual users or the circumstances that 
would allow for periodic pH excursions. In addition, these commenters 
believed that requiring Approval Authority concurrence would generate 
significant delays, additional program costs, and increased 
administrative burden without substantial benefit. Other commenters 
stated that Approval Authority concurrence would be necessary as an 
important safeguard to protecting a POTW's system, particularly for 
POTWs without Approved Pretreatment Programs.
    Although most commenters believed that the proposed flexibility in 
pH should be available to all POTWs, one commenter suggested expansion 
of the record keeping or reporting requirements for POTWs with 
unapproved pretreatment programs to ensure adequate technical oversight 
for POTWs with limited staff expertise. A second commenter recommended 
that such POTWs be required to develop legal authority, but not 
necessarily a full pretreatment program, to properly enforce the 
General Pretreatment Regulations as prerequisite to being allowed to 
implement an alternative pH limit. EPA believes that the expertise, 
resources, and administrative functions needed to support the 
alternative requirements can only be sustained by POTWs with Approved 
Pretreatment Programs.
c. Today's Proposal

What is EPA proposing?

    EPA is today proposing to allow POTWs with Approved Pretreatment 
Programs to authorize temporary excursions below pH 5.0 provided that 
the POTW maintains a written technical evaluation that supports the 
finding that the alternative pH requirements do not have the potential 
to cause corrosive structural damage to the POTW or other violations of 
40 CFR 403.5(a) and (b). For industrial users that continuously monitor 
the pH of their discharges, POTWs could generally allow discharges 
below 5.0, or they could allow such temporary excursions by a limited 
group of industrial users.
    Any alternative pH requirements developed by a POTW would be 
enforceable as Pretreatment Standards under the Clean Water Act. (The 
general narrative prohibition against pollutants that will cause 
corrosive structural damage at 40 CFR 403.5(b)(2) would still apply.)
    In developing today's proposal, EPA attempted to address both the 
concern that corrosive structural damage to POTWs be prevented and the 
desire to provide the regulated community and the public with a more 
efficient and flexible industrial pretreatment program. In the 
September 1991 EPA Report to Congress (430/09-91-009), EPA concluded 
that some municipalities are not aware of sewer corrosion problems 
until catastrophic failure occurs. However, significant advances have 
occurred during the past twenty years in the areas of sewer corrosion 
detection and measurement, and sewer design and rehabilitation. EPA is 
interested in comment on whether the requirement for a site-specific 
technical study would adequately protect the significant public 
investment in wastewater collection infrastructure.

What would a POTW include in its technical evaluation?

    A POTW desiring to implement alternative pH requirements would be 
required to prepare a written technical evaluation explaining its site-
specific investigation and findings regarding the corrosion safety of 
the alternative pH requirements and their effect on compliance with the 
other general and specific Pretreatment Standards. The technical 
evaluation may be broad and cover a POTW's entire service area. 
Alternatively, the technical evaluation may be narrow and cover only a 
portion of the POTW's service area or specific nondomestic dischargers.
    Corrosion is dependent upon a number of site-specific conditions 
including, but not limited to, the pH and other characteristics of an 
industrial discharge including its chemical composition, temperature, 
volume, velocity, turbulence, the buffering capacity and other 
characteristics of the wastewater in the collection system, the 
characteristics of the sewer pipe used in the collection system 
including its size, age, material of construction, formation of 
hydrogen sulfide gas, and time since last cleaning, and other design 
parameters of the POTW.
    In developing alternative pH limitations, POTWs must consider the 
effect pH may have on other wastewater constituents, potential worker 
safety issues, and interference, and should be mindful of the pH 
limitations under State and federal hazardous waste laws. For example, 
an extremely low pH may cause toxic gases to form in the collection 
system in violation of the worker health and safety provision at 40 CFR 
403.5(b)(7).

Could POTWs rely on the variance allowed direct dischargers under 40 
CFR 401.17?

    The effluent guideline regulations list certain conditions at 40 
CFR 401.17 under which excursions from pH limits are allowed for direct 
dischargers. However, POTWs would not be able to rely on 40 CFR 401.17 
as the basis for alternative pH requirements under today's proposal. 
EPA developed 40 CFR 401.17 based upon the technological ability of 
direct dischargers to continuously meet a pH limit between 6.0 and 9.0. 
The pretreatment requirements, by comparison, are based on preventing 
corrosion in the sewer system and are much less restrictive. Under 
today's proposal, a Control Authority may establish a temporary lower 
limit less than 5.0, and the existing Pretreatment Regulations do not 
impose a specific upper limit. The recommendations from the WEF/AMSA 
Pretreatment Streamlining Workshop noted the inappropriateness of 
attempting to use 40 CFR 401.17 as a basis for alternative pH 
requirements because the reason for the pH requirement is different. 
The alternative pH requirements a POTW develops under today's proposal 
must prevent corrosive structural damage to the POTW, prevent 
violations of 40 CFR 403.5(a) and (b), and be based upon the POTW's 
site-specific conditions.

How will POTWs implement the new, flexible requirements?

    A POTW may conduct the pH technical evaluation as part of a broad 
local limits evaluation, or as a specific evaluation that addresses 
only pH. The proposed revisions and evaluation would be submitted as a 
nonsubstantial program modification in accordance with 40 CFR 403.18. 
The required technical support documents must be available upon request 
to the public, regulated community, regulatory agencies, and other 
interested parties.

[[Page 39568]]

    A POTW would authorize the use of the alternative pH requirements 
in the industrial user control mechanism and the local ordinance or 
other legal authority under 40 CFR 403.8(f)(1). The authorization 
should specify the technical circumstances and/or conditions under 
which such discharges are allowed, in support of the findings within 
the technical evaluation. Once applied, the POTW would be required to 
oversee the alternative pH requirements to confirm that corrosive 
structural damage and other violations of 40 CFR 403.5(a) and (b) are 
not occurring. A POTW with an Approved Pretreatment Program under 40 
CFR Part 403 would report its ongoing oversight actions and findings in 
its annual pretreatment report under 40 CFR 403.12(i). EPA is 
requesting comment on what measures should be considered adequate 
oversight to ensure corrosive structural damage of the sewer system 
does not occur.

What are the benefits of today's proposal?

    EPA expects today's proposal to significantly reduce the POTW's 
administrative burden of responding to minimal, short-term pH 
violations. One commenter submitted data that 30.9 administrative hours 
were expended during a two-year time period in response to 53 pH-only 
violations from industries with continuous pH monitoring. The commenter 
reported that 34 of those violations had pH values greater than 4.0 and 
lasted less than 15 minutes, and that none had any impact on the 
collection and treatment system. A second commenter reported that 
approximately 21 administrative hours were spent in one year in 
response to 21 pH-only violations from an industry with continuous pH 
monitoring. Ten excursions lasted 10 minutes or less, eight excursions 
lasted 15-35 minutes, one excursion lasted 60 minutes, one excursion 
lasted 180 minutes, and one excursion lasted 240 minutes. The lowest pH 
excursion was 4.5, and the commenter reported that none of the 
excursions adversely affected the treatment works. Today's proposal 
would allow Control Authorities to redirect enforcement and remediation 
resources to those cases where substantial pH control problems exist.
    In addition, EPA is requesting comment on a provision to expand the 
flexibility regarding pH limitations in today's proposal by allowing 
POTWs that can safely accept continuous discharges with a pH below 5.0 
to accept those wastes. This provision, if adopted, would remove the 
``specifically designed'' criterion for such discharges in the existing 
pH prohibition. EPA specifically requests examples, supported by data 
if available, of situations in which a POTW could safely accept 
continuous discharges with a pH below 5.0, but where it cannot make use 
of the ``specifically designed'' criterion to authorize such discharge 
under current regulations. Were EPA to adopt such a provision in the 
final rule, it would be subject to the same documentation and oversight 
requirements as the proposed authorization of short term pH excursions.
    More generally, EPA is interested in comments regarding all aspects 
of today's proposal for alternative pH requirements. Whenever possible, 
such comments should be supported by data.

B. Equivalent Mass Limits for Concentration Limits (40 CFR 403.6(c))

a. Existing Rule

How are categorical standards expressed?

    National categorical Pretreatment Standards establish limits on 
pollutants discharged to POTWs by facilities in specific industrial 
categories. The 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. This section will 
focus only on concentration standards that are implemented directly as 
concentration limits.

May a mass limit be imposed in lieu of a concentration limit under the 
current regulations?

    The current regulations do not allow an alternative mass limit to 
be developed where a concentration-based standard requires a 
concentration limit. Section 40 CFR 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 are then enforceable, so the mass limit would 
not be an alternative limit.
    Alternative equivalent limits are currently allowed only for 
production-based mass limits. Section 40 CFR 403.6(c)(2) allows 
standards expressed in terms of mass of pollutant per unit of 
production to be expressed as either a concentration or mass limit.

How do mass limits promote water conservation?

    The lack of flexibility in concentration limitations can cause 
problems for industrial users that are attempting to minimize water 
use. Throughout the country, water conservation practices have been 
instituted by industries and municipalities due to drought conditions 
and environmental considerations as well as the rising cost of water. 
As reported in the New York Times, November 10, 1998, pp A1, A16, ``the 
United States Geological Survey has reported that the nation's use of 
water has declined significantly over the past 2 decades, even though 
the population has been growing. * * * Americans used 9% less water in 
1995 than they did in 1980, even though the population grew by 16% 
within that same time frame. * * * The use of water in industry has 
fallen to 29 billion gallons a day, the lowest amount since records 
were first kept in 1950 * * *. The Northeast, Midwest and Middle 
Atlantic regions showed the largest decrease of water usage, at about 
17% between 1980 and 1995.''
    Although water conservation usually reduces the variability in 
pollutant and hydraulic loadings and will often facilitate treatment, 
reduced water use can increase the concentration of pollutants in the 
reduced volume of water, even though the total mass of the discharged 
pollutants may have been decreased. A facility that significantly 
reduces water use might exceed its concentration limit despite having 
reduced the pollutants in its discharge. If the facility could comply 
with a mass limit that is equivalent to the total pollutant load from 
the concentration limit, then the total pollutant loading to the POTW 
would be unchanged or reduced, even though the effluent concentration 
might be increased.
    For example, the metal finishing industry employs a number of 
industrial processes that are heavily dependent upon use of water. Of 
the more than 40 processes regulated under the categorical standard for 
metal finishing, rinse water is generally the largest component of the 
total process water used. By combining different rinse techniques, a 
plant can greatly reduce water consumption. In some cases facilities 
can use a ``closed loop'' rinsing arrangement that continually 
recirculates rinse water, thereby greatly reducing the discharge 
volume.
    The use of different rinse techniques will result in wide 
variations in water

[[Page 39569]]

use. For example, ``alkaline cleaning,'' a common metal finishing 
operation, requires dramatically different amounts of rinse water, 
depending upon the rinsing techniques used. Using a single-stage water 
rinse may require 1,500 liters per square meter (l/m2) of 
treated surface whereas a three-stage countercurrent rinsing technique 
reduces water use to 29 l/m2 (``Development Document for 
Effluent Limitations Guidelines and Standards for the Metal Finishing 
Point Source Category,'' EPA 440/1-83/091, June 1983). Retrofitting a 
metal finishing line by installing a countercurrent rinsing system in 
conjunction with other water reduction practices could result in 
concentrations that exceed applicable categorical Pretreatment 
Standards. Some other examples of water conservation techniques 
include: (1) Timed rinses; (2) conductivity probes in the rinse tanks; 
(3) flow restrictors which limit the amount of water which can be added 
to a rinse tank; and (4) valves to allow operators to turn off incoming 
water to the rinse tanks when no parts are being processed.
b. Stakeholder Comments

What changes did EPA suggest in its stakeholder outreach efforts?

    EPA's letter to stakeholders solicited comment on revising the 
current requirements to allow equivalent mass limits as an alternative 
to concentration limits developed from concentration-based standards 
where the industrial user has instituted water conservation practices. 
The draft language would have explicitly tied the determination of 
reduced water use to the model technology assumed by EPA in the 
development of the applicable national categorical Pretreatment 
Standard.

How did stakeholders respond?

    Sixty-nine commenters responded to the draft issue paper on this 
subject. A substantial majority (66 of the 69) of the commenters were 
in favor of the proposed regulatory changes. Various commenters, 
however, suggested specific requirements that they believe EPA should 
impose on industrial users or Control Authorities as a condition to 
granting a mass limit equivalent to the applicable concentration-based 
categorical Pretreatment Standard. Others asked for clarification of 
the condition suggested by EPA.
    Many commenters questioned how a Control Authority could ascertain 
whether the industrial user failed to meet a concentration-based limit 
solely due to reduced water use and attendant higher concentration 
levels in the discharged wastewater. Some questioned whether EPA's 
model technology was an appropriate benchmark for determining normal 
water use. Several commenters suggested that the industrial user be 
required to demonstrate that it has installed best available technology 
economically achievable (BAT) for wastewater treatment or instituted 
pollution prevention measures and is still unable to meet the assigned 
concentration limit. Other commenters recommended that the industrial 
user show that it has historically been in compliance with all of its 
permit conditions, is capable of accurate flow measurement, and has 
detailed, long-term records on its wastestream discharges before it 
could be considered for an equivalent mass limit. Several commenters 
suggested that the industrial user be required to install accurate flow 
measurement equipment in order to qualify for a mass limit. One 
commenter suggested that mass limits be considered only for those small 
categorical industrial users (CIUs) that discharge less than 1,000 
gallons per day (gpd).
    EPA believes that it is not necessary to impose only one technical 
criterion as a prerequisite to granting an industrial user an 
alternative mass limit. Each criterion that might be imposed has its 
shortcomings. Historical water use is not necessarily an indication of 
appropriate water use. Because many effluent guideline development 
documents were published over a decade ago, the model 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. To qualify for a mass limit, the 
industrial user would demonstrate that the installed BAT, including in-
plant controls, produces removal efficiencies equivalent to those 
treatment technologies outlined in the Development Document.
    Specific criteria would deprive Control Authorities of flexibility. 
EPA prefers to let the Control Authority evaluate the information 
presented and judge whether a mass limit is more appropriate than a 
concentration limit. Because mass limits are frequently more difficult 
to implement than concentration limits, EPA does not expect that they 
will be imposed where concentration limits are more appropriate.
    Several commenters felt that EPA should clarify that the imposition 
of a mass limit in lieu of a concentration limit for a particular 
categorical Pretreatment Standard should not be a unilateral decision 
by the Control Authority. For most situations, EPA agrees that this is 
a reasonable approach. However, there may be circumstances where a 
Control Authority (i.e., POTW) may wish to design its Pretreatment 
program based upon a mass limits approach. In this instance, the POTW 
would derive mass limits from the applicable concentration standards 
for each individual categorical industrial user. These mass limits 
would then be applied in lieu of the concentration limits. Under the 
current regulations, if the POTW wishes to apply mass limits derived 
from a concentration standard, the categorical industrial user covered 
by a concentration standard would still need to comply with the 
categorical concentration limits and the equivalent mass limits. In 
both scenarios, the technically-based local limits established by the 
POTW also apply.
    Two commenters requested that the regulatory language require that 
the Approval Authority review and approve all conversions of 
concentration-based limits to mass limits. One commenter suggested that 
the regulatory language in 40 CFR 403.6(c)(7) be modified to 
specifically require the Control Authority to document how the mass 
limit is derived. Today's proposal would not require prior approval by 
the Approval Authority. Like other instances in which Control 
Authorities apply categorical standards to their industrial users, the 
application of the standards will be reviewed as part of the ongoing 
oversight process. The Control Authority is required to maintain 
sufficient documentation to support the established limits.
c. Today's Proposal

What is EPA proposing?

    The Agency is proposing to allow Control Authorities to set 
equivalent mass limits as an alternative to concentration limits to 
meet concentration-based categorical Pretreatment Standards in cases 
where an industrial user has installed BAT treatment or a treatment 
technology that yields removal efficiencies that are equivalent to BAT, 
and the Industrial User is employing water conservation methods and 
technologies that substantially reduce water use. Specifically, EPA is 
proposing that Sec. 403.6(c) be revised to clarify that equivalent mass 
limits may be authorized by the Control Authority in lieu of 
promulgated concentration-based limits for industrial users. The 
Control Authority would be required to

[[Page 39570]]

document how the mass limits were derived and make this information 
publicly available.
    EPA has received a Project XLC (eXcellence in Leadership Community) 
proposal from an organization in Steele County, Minnesota. This project 
proposal includes the use of mass limits in lieu of concentration 
limits for categorical industrial discharges to the POTW. The Steele 
County XLC Project is currently at the Final Project Agreement 
development stage. Where implementation of an XLC project requires 
regulatory relief, EPA may draft a site-specific rule to allow the 
project to be undertaken. If this XLC project is ready to proceed 
before EPA finalizes the complete Pretreatment streamlining proposal, 
EPA may promulgate, based on today's proposal and the comments 
received, a separate site-specific rule to allow the industries 
involved in the Steele County XLC project to use, at the discretion of 
the Control Authority, the change at 40 CFR 403.6(c) of today's 
proposal.

Who determines whether an alternative mass-based limit will be applied?

    As specified under 40 CFR 403.6(d), the strict prohibition that the 
industrial user not use dilution as a substitute for treatment remains 
in effect. 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. Currently, Control 
Authorities may impose mass limits in addition to the concentration 
limits where the facility is suspected of diluting its effluent to meet 
a concentration standard or in other cases where mass limits are deemed 
appropriate (40 CFR 403.6(d)). In this case, the facility would be 
required to comply with both the concentration limit and the mass 
limit.
    Today's proposal would provide Control Authorities with the ability 
to establish equivalent mass limits for concentration-based categorical 
Pretreatment Standards similar to the authority available under 40 CFR 
403.6(c)(2) for situations involving production-based categorical 
Pretreatment Standards. Under today's proposal, the equivalent mass 
limits would be applied in lieu of the concentration limits. A 
categorical industrial user may request a mass limit. The industrial 
user should determine if it meets the criteria for such a limit, that 
is, that it is utilizing control measures at least as effective as the 
model treatment technologies on which the applicable categorical 
standard was based, and is employing water conservation methods and 
technologies that substantially reduce water use. However, the Control 
Authority would decide whether the use of alternate equivalent mass 
limits is appropriate.

How will the Control Authority determine whether an alternative mass 
limit is appropriate?

    The Control Authority will need to judge whether the application of 
a mass limit in lieu of a concentration limit is appropriate. This 
judgement should include a finding that the industrial user is 
utilizing control measures at least as effective as the model treatment 
technologies on which the categorical standard was based, and is 
employing water conservation methods and technologies that 
substantially reduce water use. The industry must be able to provide 
documentation that clearly explains the water conservation practices it 
has employed and how the water conservation methods have led to the 
waste being concentrated in the wastewater discharge to the point that 
it cannot meet the concentration limit even though its control measures 
are as effective as the model treatment technologies. In making this 
judgement, the Control Authority may review the corresponding 
categorical standard Development Document for potential control 
options. The Control Authority might also review current trade 
association literature for other control options that have become 
available since the Development Document was produced. The categorical 
standards do not dictate what treatment technologies must be used; 
however, they do set standards to be achieved and these standards are 
based on certain model technologies. The Control Authority should 
understand these technologies and consider their effectiveness when 
determining whether an alternate mass limit is appropriate.

How will equivalent mass limits be calculated?

    In order to establish a mass limit, the Control Authority will need 
to determine an appropriate flow from the industrial user's facility. 
Again, the determination should be based upon the Control Authority's 
judgment and supported by the above sources of information. The 
appropriate flow should be based upon 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. The flow would then be 
multiplied by the concentration standard to determine the alternative 
mass limit that would be applied to the facility.
    These equivalent standards will be modified pretreatment standards. 
As with any modified 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).

What additional information is EPA requesting?

    EPA is requesting comment on the need for and appropriateness of 
this proposed addition to the existing regulations. Further, EPA is 
interested in data related to processes and technologies that result in 
reduced discharges to the point where compliance with concentration 
limits is problematic. Situation-specific examples of processes and 
technologies with data would be helpful. EPA is also interested in 
commenters views on whether this option should be limited to situations 
in which the industrial user is employing water conservation methods. 
Are there other situations in which substitution of mass limits for 
concentration limits would be appropriate? The Agency is also 
requesting comment on whether it is appropriate to require public and/
or Approval Authority review of an industrial user's proposed mass 
limit prior to Control Authority approval.

C. Equivalent Concentration Limits for Flow-Based Standards (40 CFR 
403.6(c))

a. Existing Rule

What is a flow-based mass limit?

    National categorical Pretreatment Standards establish limits on 
pollutants discharged to POTWs by members of specific industries. The 
standards establish limitations on the amount of pollutants to be 
discharged by individual dischargers in different ways for different 
categories. Some Pretreatment Standards currently require the limits to 
be expressed in terms of mass, based on the facility's flow. For such 
``flow-based standards,'' the national guideline contains pollutant 
concentrations that relate to the discharges from specified categories 
of industry. For an individual facility, the Control Authority develops 
a mass limit by multiplying the applicable pollutant concentration 
(expressed in terms of mass of pollutant per volume of discharge) by 
the average daily flow

[[Page 39571]]

from the facility (expressed in terms of volume per day). The result is 
a limit on the mass of pollutants per day.

Why was the mass limit approach developed?

    EPA has used mass limits to encourage flow reduction and to prevent 
dischargers from meeting concentration limits by diluting their 
wastewater. The first categorical standards to require mass limits 
established an allowable quantity of mass of pollutant per unit of 
production at the facility. Individual limits required knowledge of a 
facility's production rates. In order to develop a national production-
based standard, production rates must correlate to achievable 
wastewater flows.
    EPA uses concentration-based standards if production and achievable 
wastewater flow cannot be correlated nationally. EPA explained this 
approach in the preamble to the proposed Organic Chemicals, Plastics, 
and Synthetic Fibers (OCPSF) regulation (48 FR 11828, March 21, 1983). 
The concentration-based standard is applied as a mass limit by 
multiplying the concentration by the process wastewater flow at the 
specific facility. This approach minimizes the potential for dilution 
of process wastewaters by non-process wastewater.

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 an appropriate process wastewater flow for the 
facility and then multiply that by the appropriate concentration 
standard. This is difficult in cases 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 
production tends to be more variable and installation of equipment to 
provide flow equalization may not be practical.
    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.

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 to implement a Pretreatment Standard 
expressed in terms of mass of pollutant per unit of production. The 
regulations do not allow equivalent concentration limits in cases where 
the Pretreatment Standard requires a mass limit to be calculated based 
on the facility's process wastewater flow.
b. Stakeholder Comments

What changes did EPA suggest in its stakeholder outreach efforts?

    EPA recommended allowing Control Authorities to set equivalent 
concentration limits in cases where Pretreatment Standards currently 
require the limits to be expressed in terms of mass, based on the 
facility's flow (e.g., the Organic Chemicals Plastics and Synthetic 
Fibers [OCPSF] standard). EPA also requested comment on restricting 
this to situations where the facility had highly variable flows.

How did stakeholders respond?

    The majority of respondents expressed varying degrees of support 
for the recommendation put forth by the Agency for equivalent limits. 
There were a few opposed to the recommendation, and others that 
provided additional issues for consideration without indicating 
approval or disapproval. The commenters who endorsed the recommendation 
to allow equivalent concentration limits stated that this would be 
helpful to POTWs and industries because it would make determining 
compliance much easier.
    Those who opposed the recommendation indicated they felt it was 
more appropriate to revise the individual categorical standards than 
the General Pretreatment Regulations. The Agency considered revising 
the individual standards, but believes revisions of the General 
Pretreatment Regulations are appropriate because the issue being 
addressed is an implementation issue rather than a standards 
development issue. The issue here is how these standards are to be 
applied rather than whether the development of these standards was 
appropriate. This is explained in more detail throughout the following 
sections.
    Some commenters felt the equivalent limits should be available to 
all dischargers regulated by mass limits. The Agency considered this, 
but determined it would not be appropriate given the way the 
concentration-based standards were designed to be implemented based on 
process wastewater flow. This is further explained in Section c, 
``Today's Proposal.''
c. Today's Proposal

What is EPA proposing?

    Today, EPA is proposing to allow Control Authorities to set limits 
on industrial users by applying the concentration numbers in a flow-
based standard directly as equivalent concentration limits. 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. 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.
    Note that flow-based standards, like all national categorical 
Pretreatment Standards, are self-implementing. Facilities to which 
these standards are applicable must comply with the standards even if 
the control authority has not issued a permit or other control 
mechanism that establishes facility-specific limits. If the control 
authority issues a permit or other control mechanism that correctly 
implements the flow-based standard as a concentration limit, then 
compliance with the standard would be measured through compliance with 
the concentration limit. However, if the control authority issues a 
permit or other control mechanism that applies an incorrectly 
calculated equivalent limitation, the industrial user would still be 
responsible for complying with the correct standard, i.e. the mass 
limit or the correctly calculated equivalent concentration limit.

Would the equivalent concentration limit replace the mass limit?

    Yes, provided it is calculated correctly, as discussed above. 
Today's proposal would be implemented in the same manner as Control 
Authority's setting of equivalent limits for production-based standards 
under the existing regulations. As with other equivalent concentration 
limits under 40 CFR 403.6(c), under today's proposal the equivalent 
limits will be deemed Pretreatment Standards for the purposes of 
Sec. 307(d) of the Clean Water Act and will be enforceable as such.

[[Page 39572]]

Why is the proposal limited to facilities with highly variable flows?

    Under today's proposal, the Control Authority would be allowed to 
directly apply the concentration listed in the standard to those 
facilities with highly variable flow because calculating a mass limit 
based on a reasonable long-term average flow would be impractical only 
for these facilities. In this situation, application of the 
concentration standard would be equivalent to a mass limit derived from 
flow.
    In the case of a concentration standard expressed as a mass limit 
based on the process wastewater flow, the Control Authority currently 
derives a mass limit by multiplying the industrial user's average daily 
flow rate of process wastewater regulated under the standard by the 
concentration set out in the standard. Using the OCPSF category as an 
example, the flow rate must be based on a reasonable measure of the 
actual long-term average daily flow of the regulated process wastewater 
(52 FR 42522, November 5, 1987; Memorandum dated February 8, 1988, from 
James Elder, Director of the Office of Water Enforcement and Permits to 
Regional Water Management Division Directors and NPDES State 
Directors).
    If the flow of the discharge from a facility is so highly variable 
that determining a reasonable long-term average flow is impractical, 
then calculating a mass limit may also be impractical. If the Control 
Authority finds that determining a reasonable long-term average flow is 
impractical, the actual flow must be used. Since the actual flow value 
would then be used both for setting the mass limit and for determining 
the mass in the discharge when sampled for compliance, the flows would 
cancel out and the result would be the same as comparing the sampled 
concentrations directly to the concentration in the flow-based standard 
in order to determine compliance. In other words, the total mass 
discharged to the POTW based on the concentration limit would be the 
same as if the mass limit were used.

How would EPA define ``highly variable flow'?

    EPA recognizes that the Control Authority must have some discretion 
to determine when, under site-specific conditions, flow is ``highly 
variable.'' In each case where a Control Authority allows equivalent 
limits, the Control Authority should document why the equivalent limits 
were necessary. The justification should not be based on one instance 
of substantial increase or decrease in flow. The Control Authority 
should also be sure that dilution is not taking place (40 CFR 
403.6(d)). In the Stakeholder Review Draft of this proposal, the Agency 
recommended a demonstration that average flows regularly differ from 
the long term average by  20 percent. The use of 20 percent 
is consistent with EPA's ``Guidance Manual for the Use of Production-
based Pretreatment Standards and the Combined Wastestream Formula'' 
(EPA 833-B-85-201, September 1985). EPA received a number of comments 
concerning the use of 20 percent as a measure. Many commenters felt 20 
percent was appropriate, while others felt 30 or 40 percent would be 
more appropriate. A few commenters pointed out that the definition of 
``highly variable'' should include both percent change and duration, 
such that the total flow (not the flow rate) in a fixed period of time 
has changed by 20 percent. Today EPA is requesting further comment on 
numerically defining the term ``highly variable flow.'' EPA is also 
requesting comment on whether this alternative should be limited to 
facilities with highly variable flow. Are commenters aware of other 
situations where the implementation of a flow-based standard is 
impractical (e.g., obtaining accurate measurements of flow is costly)'' 
Alternatively, are there situations where substituting concentration 
limits for flow-based limits would be desirable even though 
implementing the flow-based limits is not ``impractical'' The Agency is 
also requesting comment on whether it is appropriate to require public 
and/or Approval Authority review of an industrial user's proposed 
concentration limit prior to Control Authority approval.

D. Oversight of Categorical Industrial Users (40 CFR 403.3(u), 403.8(f) 
and 403.10(f))

a. Existing Rule

Should all categorical industrial users be considered significant?

    POTWs with Approved Pretreatment Programs and States acting as 
Pretreatment Control Authorities are required to provide certain 
minimum oversight of significant industrial users (SIUs). The required 
minimum oversight includes inspection and sampling of each SIU 
annually, reviewing the need for a slug control plan every two years, 
and issuing a permit or equivalent control mechanism 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.
    Control Authorities have expressed concern with the rigidity of the 
oversight requirements, especially with respect to smaller facilities 
that are subject to categorical Pretreatment Standards and facilities 
that they believe have no potential to cause pass through or 
interference. If these facilities were excluded from the definition of 
SIU, Control Authorities could, on a case-by-case basis, determine 
adequate sampling and inspection frequencies and whether individual 
permits are necessary for the facilities.

What facilities are currently defined as significant industrial users?

    ``Significant industrial user'' is defined in existing 40 CFR 
403.3(t) to include two types of facilities. The first includes all 
industrial users that are subject to a Pretreatment Standard for New or 
Existing Sources. These standards are often referred to as national 
categorical Pretreatment Standards, and facilities subject to the 
standards are referred to as categorical industrial users (CIUs). 
Today's proposal would exclude certain ``non-significant'' CIUs from 
the definition of SIU.
    The second category of facilities included in the definition of SIU 
includes certain facilities that are not CIUs. All non-categorical 
facilities that discharge 25,000 gallons per day or more of process 
wastewater are considered SIUs, as are facilities that contribute a 
process wastestream constituting 5 percent or more of the average dry 
weather or organic capacity of the POTW. The control authority may 
exclude such a facility 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 to cause a violation of any Pretreatment 
Standard or requirement. Control Authorities may also consider smaller 
facilities to be SIUs if the facilities have the potential to cause 
problems with a POTW's operations or violate Pretreatment Standards or 
requirements.
    Since Control Authorities already have flexibility with regard to 
oversight of non-categorical facilities, they are not the focus of 
today's proposal.

What is the history of the definition of SIU?

    The definition of SIU and related requirements were established in 
July 1990 by the rule to implement the Domestic Sewage Study (``the DSS 
Rule'') (55 FR 30082, July 24, 1990). Before this regulatory revision, 
sampling and inspection frequency were only

[[Page 39573]]

recommended in EPA guidance (``Pretreatment Compliance Monitoring and 
Enforcement Guidance,'' September 1986). The proposed DSS Rule (53 FR 
47649, November 23, 1988) would have required Control Authorities to 
inspect and sample SIUs at least once every two years. The proposal 
requested comment on whether to require annual inspections and 
sampling. The preambles to the proposed and final rule did not 
specifically address whether to adopt a different requirement for 
oversight of smaller SIUs.
    The proposed Metal Products and Machinery rule (60 FR 28269, May 
21, 1995) solicited comment on whether, as an alternative to exempting 
low-discharge industrial users from the rule, EPA should revise Part 
403 to reduce monitoring, reporting, and inspection requirements 
applicable to small-flow facilities. Today's proposal elaborates on 
that issue.

Can CIUs that do not discharge regulated pollutants be considered SIUs?

    Some categorical standards only require a certification statement 
that an industrial user does not use a pollutant of concern. See, e.g., 
40 CFR 439.16, Pretreatment Standard for Existing Sources, 
Pharmaceutical Manufacturing. Other standards may require that there be 
no discharge of process wastewater. See, e.g., 40 CFR 455.46, 
Pretreatment Standard for Existing Sources, Pesticide Formulating, 
Packaging, and Repackaging. An industrial user is considered to be 
subject to the categorical standard if it meets the applicability 
requirements of the standard. It should be noted that in the 
applicability section of the various categorical standards, the term 
``discharge'' includes the potential to discharge. For example, a 
pharmaceutical manufacturer may comply with monitoring requirements in 
40 CFR 439.16(a)(2) by filing a semi-annual certification that it does 
not use or generate cyanide, while a pesticide formulator may comply 
with the monitoring requirements of 40 CFR 455.46 by filing a semi-
annual certification of no discharge. Under current regulations, 
Control Authorities must regulate these facilities as SIUs. Under 
today's proposal, the facility would still be subject to the 
categorical standard, but at the discretion of the Control Authority, 
might not be considered an SIU.
    If the only wastestream that an industrial user discharges (or 
could potentially discharge) to the POTW is not subject to the 
requirements of any Pretreatment Standard for New or Existing Sources, 
the facility would not be considered a categorical industrial user for 
the purposes of 40 CFR Part 403. For example, if an industrial user 
that employs a 100 percent recycle of process wastewater at no time has 
or will discharge regulated process wastewater to the POTW and does not 
have the potential to discharge regulated process wastewater to the 
POTW, the industrial user would not be considered to be subject to the 
categorical standard for the process and, therefore, would not be 
required to be regulated as an SIU. Under the existing regulations, 
Control Authorities should consider issuing ``no discharge'' permits to 
such facilities with provisions such as a requirement to provide notice 
of changes in operation and to allow inspections. Control Authorities 
should also consider whether the facility presents a reasonable 
potential for discharging pollutants of concern and warrants regulation 
as an SIU.
    Commenters have pointed to confusion regarding whether POTWs are 
required to sample facilities that have no discharge from any regulated 
process. EPA notes that POTWs are not currently required to sample 
facilities that do not discharge, and no revision to the regulations is 
necessary.
b. Stakeholder Comments

What changes did EPA suggest in its 1997 letter to stakeholders?

    EPA's 1997 letter to stakeholders solicited comment on revising the 
current definition of significant industrial user to exclude certain 
non-significant facilities that are subject to national categorical 
Pretreatment Standards. The draft suggested a definition of ``non-
significant'' that included (1) facilities that never discharge 
concentrated wastes such as solvents, spent plating baths, filter 
backwash, and sludges, or more than 100 gallons per day (gpd) of other 
process wastewater, and (2) facilities subject only to certification 
requirements after having met baseline monitoring report requirements 
(e.g., pharmaceutical manufacturers).
    The 1996 WEF/AMSA Pretreatment Streamlining Workshop had 
recommended excluding facilities under 100 gpd from the definition of 
significant industrial user. The Workshop also presented 
recommendations for additional streamlining. One of the Workshop's 
recommendations was that Control Authorities be able to exempt from the 
definition of SIU any categorical industrial user that has no 
reasonable potential to adversely affect the POTW's operation.
    The Workshop also recommended that EPA allow Control Authorities 
more flexibility in the oversight of facilities that would continue to 
be defined as SIUs. Specifically, the Workshop recommended that EPA 
allow Control Authorities more flexibility in sampling SIUs, while 
perhaps keeping the annual inspection requirement. EPA's draft sought 
comment on these recommendations and also on whether to allow POTWs 
more flexibility in sampling SIUs that had been in consistent 
compliance.

How did Stakeholders Respond?

    Most commenters supported allowing POTWs to reduce oversight at 
least of non-significant categorical industrial users that discharge up 
to 100 gpd. Most municipal commenters not only supported exempting 
facilities that discharge 100 gpd but would have raised the limit to 
anywhere from 300 gpd to 4,000 gpd.
    Several commenters, however, thought that the definition of SIU 
should not be changed. A slight majority of State commenters opposed 
deleting even 100 gpd facilities from the definition of SIU because it 
would result in the elimination of minimum oversight requirements. A 
few commenters stated that requirements should be reduced by amending 
the national categorical standards, not the definition of SIU.
    Some commenters opposed a definition based on flow and preferred 
one based on total mass or on potential to impact the POTW. One made a 
specific recommendation that SIU status be determined by considering 
both the flow and its toxicity using the toxic weighting factors used 
by EPA in guideline development.
    A few commenters addressed whether facilities that are in 
consistent compliance should be allowed to be excluded from oversight 
as SIUs. They generally supported the idea but opposed as arbitrary the 
suggestion that only 50 percent of SIUs could be excluded under the 
exception. One commented that, regardless of its compliance history, 
any SIU with the potential to adversely impact the POTW should be an 
SIU.
    Approval Authority commenters generally opposed and POTW commenters 
generally supported not requiring Control Authorities to regulate as an 
SIU any industrial user that did not present a potential to adversely 
impact the POTW. One supporter of the concept suggested that a facility 
should not be required to be an SIU if it could

[[Page 39574]]

discharge all of its process chemicals to the POTW without treatment 
and without impacting the POTW.
c. Today's Proposal

What changes to the SIU definition is EPA proposing?

    EPA is proposing to allow Control Authorities to exempt non-
significant categorical industrial users from the definition of 
significant industrial user. Today's proposal would define non-
significant categorical industrial users 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., pharmaceutical manufacturers).
    Regardless of whether they are considered SIUs, all categorical 
industrial users would still be required to comply with applicable 
categorical Pretreatment Standards and the related reporting 
requirements in 40 CFR 403.12. Control Authorities would still be 
required to perform the same oversight of non-significant categorical 
industrial users that is required for other facilities that are not 
SIUs, including notifying the categorical industrial user of its status 
and requirements (40 CFR 403.8(f)(2)(iii)); receiving and reviewing 
required reports (40 CFR 403.8(f)(2)(iv) and 40 CFR 403.12(b), (d), & 
(e)); random sampling and inspection (40 CFR 403.8(f)(2)(v)); and 
investigating noncompliance as necessary (40 CFR 403.8(f)(2)(vi)).
    The POTW's annual report would provide a list of the facilities 
that are being regulated as non-significant facilities. After an 
initial list is provided, deletions and additions may be keyed to the 
previously submitted list.

Will EPA consider criteria other than a 100 gpd flow-cutoff for non-
significant CIUs?

    EPA recognizes that any numeric flow cutoff would have both 
advantages and disadvantages. The 100 gpd criterion was supported by 
the stakeholders at the WEF/AMSA meeting, and EPA is including this 
criterion in today's proposal. It is clear from comments on drafts of 
this proposal that there is no consensus on an appropriate higher 
number. The 100 gpd flow is a conservative number that most commenters 
could support. EPA estimates that about 2 percent of current CIUs might 
be eligible for non-significant status using this criterion.
    In today's proposal EPA is again requesting comment on alternative 
criteria for determining non-significant status. Such alternative 
criteria might include a higher flow cutoff or a numeric cutoff based 
on some alternative criteria such as the estimated mass of pollutant 
loadings or the percentage of a POTW's total flow discharged by a 
particular CIU. Alternatively, the criteria might be narrative and 
include a qualitative description of what constitutes a significant 
industrial user. Commenters are encouraged to provide data on the 
likely effects of alternate criteria, including the number of CIUs that 
would be eligible for non-significant status and any adverse impacts on 
POTWs or the environment that might result.
    EPA is also requesting comment on what consideration should be 
given to the compliance record of the non-significant CIU. That is, 
prior to designating a CIU as non-significant, should POTWs examine the 
compliance record of the CIU and its potential to maintain a high level 
of consistent compliance with pretreatment standards and requirements? 
EPA is interested in other possible ways of providing flexibility 
related to the compliance record of the industry. If EPA promulgates a 
relatively narrow exclusion, such as the 100 gpd cutoff in today's 
proposal, it might be appropriate to offer greater flexibility to POTWs 
to target oversight resources to SIUs with the greatest potential to 
cause harm to the POTW or the environment. One such alternative would 
be to relax the minimum monitoring requirements for facilities with a 
consistent record of superior environmental performance, as was 
recently done for direct dischargers (``Interim Guidance for 
Performance-based Reduction of NPDES Permit Monitoring Frequencies,'' 
April 1996). This would not only reduce administrative burden, but 
would provide an incentive for facilities to reduce pollutant loadings 
still further. EPA requests comment on this or similar alternatives to 
allow better targeting of POTW oversight resources.

How would the flow from non-daily batch dischargers be counted?

    Under the proposal, the 100 gpd criterion is a daily maximum and 
cannot be aggregated for the purpose of periodic batch dischargers. EPA 
is interested in comments, however, on whether to allow the non-
significant definition to include facilities that discharge up to 500 
gallons of process wastewater once per week. One commenter suggested 
that not allowing aggregation would discourage efficient treatment of 
these wastes. EPA, however, does not believe that the benefits to the 
industrial user of being defined as non-significant are sufficient to 
pressure facilities into inefficient practices, because that definition 
affects requirements applicable to the Control Authority.

E. Categorical Industrial User Monitoring (40 CFR 403.12)

a. Existing Rule

What are the current minimum sampling requirements for categorical 
industrial users?

    The Pretreatment Regulations have required since 1978 that all 
facilities subject to national categorical Pretreatment Standards 
submit to their Control Authority twice per year a report on the 
pollutants in their effluent stream that are limited by the applicable 
categorical Pretreatment Standards (40 CFR 403.12(e)(1)). The report 
must include 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. The 
regulations also require the Control Authority to sample all SIUs at 
least once per year (40 CFR 403.8(f)(2)(v)).
    The regulations allow the Control Authority to perform the sampling 
required of the categorical industrial users (40 CFR 403.12(g)(1)). 
Commenters stated that it is not clear whether, when Control Authority 
sampling detects a violation, it is the Control Authority or the user 
that must resample within 30 days. Resampling is required by 40 CFR 
403.12 when the sampling by the user detects a violation.
b. Stakeholder Comments

What changes did EPA suggest in its 1997 letter to stakeholders?

    EPA discussed two options in its 1997 letter to stakeholders. The 
first option was tied to the proposal to allow Control Authorities to 
reduce oversight of non-significant facilities (Proposal D). For those 
non-significant facilities that a Control Authority would not be 
required to sample, because they are no longer SIUs, but which would 
still be required to self-monitor because they

[[Page 39575]]

are categorical industrial users, the Control Authority could elect to 
sample the facility and only require the facility to self-monitor once 
per year.
    EPA also solicited comment on whether to allow Control Authorities 
to waive all self-monitoring of non-significant facilities. The 
facility's minimum monitoring requirements would be determined by the 
Control Authority.
    Under both approaches, the facilities would still be required to 
file Baseline Monitoring Reports and 90-day compliance reports, and to 
comply with the categorical standard.

How did stakeholders respond?

    Almost all commenters supported streamlining at least to the extent 
of allowing one annual sample by a POTW and one by a non-significant 
categorical industrial user. There was concern that the proposal did 
not provide much streamlining and would create a category that would 
have to be tracked separately. Many argued that EPA should go further 
and allow Control Authorities complete discretion to set minimum 
monitoring requirements for non-significant facilities. Some commenters 
thought these facilities should not be subject to categorical standards 
at all. Others said that there should be no minimum requirements for 
facilities that are not SIUs, even if they are subject to a national 
categorical standard. There was little support, however, for an 
alternative approach that would have waived all industrial user 
monitoring only if a Control Authority conducted unannounced monitoring 
annually.
    One trade association said that it would actively oppose this 
proposal because it favors small facilities. EPA does not believe that 
the proposal inappropriately favors small industrial users. POTWs are 
already allowed to perform the sampling that users are otherwise 
required to perform. This proposal merely authorizes a different 
allocation of that sampling. Control Authorities could provide this 
relief only if they find the sampling to be adequate to assure 
compliance by the facility.
    One stakeholder commented that 40 CFR 403.12(g) already allows one 
annual sample to be taken by the Control Authority and one to be taken 
by the categorical industrial user. EPA does not agree with this 
interpretation. This particular part of the regulation was established 
on October 17, 1988, in response to the findings of the Pretreatment 
Implementation Review Task Force (PIRT) (``Pretreatment Implementation 
Review Task Force Final Report to the Administrator,'' January 30, 
1985). The Pretreatment Implementation Review Task Force recommended 
changing the language in 40 CFR 403.12 to allow for POTW monitoring in 
lieu of self-monitoring. This change was to address concerns by POTWs 
that some industrial user monitoring was not reliable and the fact that 
some users would prefer that the POTW conduct the monitoring. 
Individual samples taken by the Control Authority and the CIU at 
different times during the year would not address the reliability 
issue.
    Other commenters noted that three samples are required annually 
when the POTW samples for the industrial user, with additional samples 
required if violations are detected. At the time the PIRT regulatory 
changes were made, the regulations required that CIUs report their 
compliance status twice per year; this in turn required sampling a 
minimum of two times per year. At this time there was no minimum 
sampling frequency required to be performed by the POTW. Since the PIRT 
regulatory changes clearly established that the POTW could assume the 
responsibility for the CIUs' sampling, only two samples were required. 
In the 1990 regulatory changes resulting from the Domestic Sewage Study 
(DSS), the Agency required that POTWs sample effluent from each SIU at 
least once per year (40 CFR 403.8(f)(2)(v)). The preamble supporting 
this regulatory change did not discuss a need for POTWs to sample three 
times per year in cases where the POTW had assumed responsibility for 
the categorical industrial user's monitoring. The discussion in the 
preamble focused on the need for a minimum frequency of independent 
sampling by the POTW to check the industrial user's monitoring data. If 
the POTW is already doing the twice per year sampling in lieu of the 
categorical industrial user, then the independent check is achieved. 
This is also explained in the ``Industrial User Inspection and Sampling 
Manual for POTWs'' (p. 102; EPA 831-B-94-001, April 1994).
c. Today's Proposal

What is EPA proposing?

    This proposal is tied directly to the definition of non-significant 
categorical industrial user proposed today to be included in 40 CFR 
403.3(u)(1)(i). EPA is proposing elsewhere today to allow Control 
Authorities to exempt ``non-significant'' categorical industrial users 
from the definition of Significant Industrial Users. In conjunction 
with that proposal, EPA is also proposing to not establish any minimum 
inspection and sampling requirements for non-significant categorical 
industrial users. Instead, the new requirements would allow the Control 
Authority to establish the appropriate level of inspection and industry 
and Control Authority sampling for these facilities. In addition, EPA 
is proposing to establish new minimum reporting requirements for non-
significant categorical industrial users. EPA is proposing 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 may require more frequent sampling, 
inspections, or reporting as it finds necessary to ensure compliance 
with the categorical standards.
    Today's proposal would not require each compliance certification 
from a non-significant facility to be supported by sampling data. Such 
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. EPA recommends that sampling by the 
industry or Control Authority be performed from time to time to confirm 
compliance with the categorical standards.

Who must resample when POTW sampling indicates a violation?

    The current regulations specify that an industrial user must repeat 
sampling within 30 days whenever its sampling indicates a violation, 
unless the Control Authority is sampling monthly or performed sampling 
at the industrial user in the interim between the industrial user's 
initial sampling and the receipt of the results of its sampling (40 CFR 
403.12(g)(2)). Although the regulations state that a Control Authority 
may perform the industrial user's sampling and analysis (40 CFR 
403.12(g)(1) and (h)), they do not state that resampling is required 
when the Control Authority's sampling indicates a violation.
    EPA is also proposing today that if the POTW has performed the 
sampling for the industrial user, the POTW must resample when a 
violation is detected unless it requires the user to perform the repeat 
sampling. EPA believes that the current requirement that the user 
resample when a violation is detected should also apply when the POTW 
samples for the user in order to

[[Page 39576]]

determine when the user has returned to compliance. The POTW currently 
may elect to perform the resampling for the user. If it does not, 
however, the user should still be required to perform the required 
resampling. EPA notes that it is in the user's interest to assure that 
resampling occurs as soon as possible because it will be assumed that 
the user continues to be in noncompliance until sampling indicates that 
the user has returned to compliance. Further, today's proposal requires 
the POTW, in cases where the POTW has performed the sampling, to notify 
the industrial user as soon as possible after it becomes aware of a 
violation based upon the sampling results.

Should minimum monitoring be the same as required of NPDES permittees?

    EPA is also interested in comment on whether to require one annual 
sample to be taken by either a non-significant categorical industrial 
user or its Control Authority. This approach would be consistent with 
the minimum monitoring requirement for NPDES permittees, which is only 
once per year (40 CFR 122.44(i)(2)).
    EPA notes, however, that there are differences between the 
Pretreatment program and the NPDES permitting program that suggest that 
additional minimum monitoring is appropriate in the Pretreatment 
program. All dischargers to waters of the United States are required to 
have an NPDES permit and thus are subject to the NPDES minimum 
monitoring requirements. The minimum monitoring requirements of the 
Pretreatment program only apply to those users that have been defined 
as significant industrial users. Approximately 85 percent of the 
industrial dischargers to POTWs are not considered significant and have 
no minimum monitoring requirements (``National Pretreatment Program, 
Report to Congress;'' pp. ES-4, ES-5, 3-2 and 3-11; July 1991 (21W-
004)). Also, the Pretreatment program primarily controls toxic 
pollutants and pollutants in quantities that could cause pass through 
or interference at the POTW, while an NPDES permit is required for the 
addition of any pollutants to waters of the United States from a point 
source.

Should EPA revise guidelines to exempt non-significant facilities?

    The WEF/AMSA Workshop Report recommended that EPA consider 
exempting non-significant facilities as it develops new and revises 
existing categorical Pretreatment Standards. The proposed Metal 
Products and Machinery rule (60 FR 28209, May 30, 1995) is an example 
of EPA having considered the appropriateness of including small 
facilities within the scope of an effluent guideline.
    As noted in its recent ``Effluent Guidelines Plan Update'' (62 FR 
8726, February 26, 1997), EPA is committed to promulgating regulations 
for several industries under court ordered schedules. In order to 
determine whether small facilities should be excluded from existing 
guidelines, EPA could have to collect and analyze data and information 
currently not in the administrative record. Any decisions would have to 
be based on current data for each industry under examination and would 
be collected with OMB approval under the Paperwork Reduction Act. Since 
there are currently more than 30 different industries subject to 
categorical standards, data collection would create a heavy burden on 
industry and would represent a substantial effort on the part of EPA 
which would adversely impact the current court ordered schedules. For 
these reasons, EPA does not believe existing guidelines and categorical 
standards should be reopened to consider exempting ``non-significant'' 
facilities. EPA does agree, however, there should be an examination as 
to whether small facilities should be regulated as it develops new 
categorical Pretreatment Standards.

F. Slug Control Plans (40 CFR 403.8(f)(2)(v))

a. Existing Rule

What is a slug discharge and how are they regulated?

    Two separate provisions in Part 403 define and address slug 
discharges. A slug discharge is ``* * * 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). Section 40 CFR 
403.5(b)(4) prohibits industrial users from introducing ``* * * any 
pollutant, including oxygen demanding pollutants (BOD, etc.) released 
in a Discharge at a flow rate and/or pollutant concentration which will 
cause Interference with the POTW.'' Because slug discharges can cause 
Interference with a POTW operation, they are regulated by this specific 
prohibition and the more general prohibition against introducing into a 
POTW pollutants that can cause Pass Through or Interference (40 CFR 
403.5(a)(1)). Today's proposal does not alter these prohibitions.
    Current regulations also require Control Authorities to ensure that 
industrial users have policies and procedures in place to prevent or 
mitigate the effects of slug discharges. Control Authorities must ``* * 
* evaluate, at least once every two years, whether each such 
Significant Industrial User needs a plan to control slug discharges'' 
(40 CFR 403.8(f)(2)(v)). Today's proposal addresses the requirement 
that Control Authorities review the need for a slug control plan every 
two years.

What is a slug control plan?

    The primary function of a ``slug control plan'' is to ensure that 
an SIU has a planning and implementation tool to prevent Interference 
at a POTW treatment facility by a non-routine or accidental discharge. 
The minimum elements required in a slug control plan are (1) a 
description of discharge practices, (2) a description of all stored 
chemicals at the facility, (3) procedures for immediately notifying the 
POTW of the slug discharge and providing written follow-up 
notification, and (4) a variety of procedures (e.g., inspection and 
maintenance of chemical storage areas) for preventing adverse impacts 
from any accidental spills (40 CFR 403.8(f)(2)(v)(A) to (D)).

Why should the regulation be changed?

    Many POTWs believe the requirement to review the need for a SIU's 
slug control plan every two years is unproductive administrative 
paperwork. One large metropolitan POTW required only two of its 150 
designated SIUs to prepare slug control plans. The WEF/AMSA report 
characterizes a slug control plan as ``a token piece of paper which 
gives little added protection to the significant industrial user or the 
POTW.'' Although the slug control plan requirement is designed to 
protect POTWs, periodic evaluation of the continuing need for and/or 
development of a slug control plan, alone, does not necessarily provide 
for any greater environmental protection.
b. Stakeholder Comments

What changes did EPA suggest in the 1997 draft sent to stakeholders for 
review?

    In the 1997 draft sent to stakeholders for review, EPA proposed 
eliminating the requirement that POTWs evaluate the need for a slug 
control plan for each SIU every two years. POTWs would be given the 
flexibility to review the need for slug control plans or other actions 
as part of their ongoing oversight of industrial users. Where a slug 
control plan is found to be necessary, appropriate requirements would 
be placed in the SIU's permit.

[[Page 39577]]

How did stakeholders respond?

    A substantial majority of the 70 commenters supported the draft 
recommendations as being reasonable, appropriate, and in keeping with 
EPA's proposed streamlining efforts. Fifty-one of the commenters 
essentially agreed with the discussion and language as written. 
Fourteen reviewers had no comments on the proposal. Of the remaining 
commenters, most were either neutral or wanted additional language that 
would clarify the type of slug discharge that would trigger a Control 
Authority to require the development of a slug control plan. One 
commenter stated that their organization would not change anything 
relating to their practice with regard to slug control plans and that 
they would retain their very stringent local ordinances requiring a 
two-year evaluation of the plans.
    Several commenters noted that most industrial users already have 
spill plans in place and that it would be more practical and eliminate 
confusion for the industrial user to prepare one slug and spill 
prevention plan that satisfies the various requirements of the 
Pretreatment program, the Spill Prevention Control and Countermeasures 
Plan required by the Clean Water Act (CWA) and various hazardous waste 
laws. EPA agrees with this suggestion and encourages industrial users, 
POTWs, and other entities to explore ways of having one document 
satisfy all of the spill planning requirements.
    The WEF/AMSA report suggested that EPA substitute the phrase 
``uncontrolled releases'' for ``slug discharge.'' Slug discharges, 
however, are not limited to uncontrolled releases but may include any 
nonroutine discharge. In subsequent comments, WEF suggested that the 
definition of ``slug discharge'' be expanded to clarify that it is a 
nonroutine discharge that has the potential to cause interference or 
pass through or in any other way violate the Control Authority's 
regulations, local limits or permit conditions. EPA has incorporated 
this suggestion into today's rule.

Will oversight be adequate without a two-year review requirement?

    Two commenters opposed the draft proposal because they believe that 
the Approval Authorities would no longer be able to hold the Control 
Authorities accountable for continuing to conduct slug load 
evaluations. The proposed regulatory changes, however, do not absolve 
Control Authorities 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 could be an unproductive use 
of resources by the Control Authority. Control Authorities are required 
to periodically inspect industrial users and should be aware of changes 
at an SIU that may necessitate a reconsideration of the SIU's slug 
control plan.
    The existing regulations also require that industrial users ``* * * 
promptly notify the POTW in advance of any substantial change in the 
volume or character of pollutants in their discharge' (40 CFR 
403.12(j)). Upon receiving this notice, the POTW could determine 
whether revision of the industrial user's slug control plan is 
necessary.

Do the proposed changes impose any additional burden upon the 
industrial user?

    EPA does not intend that today's proposal impose any new 
requirements on IUs, but it does formalize the requirement for SIUs to 
control slug discharges (where determined to be necessary by the 
Control Authority) by adding incorporation of the requirement into 
SIUs' permits (40 CFR 403.8(f)(1)(iii)(F)). The focus of today's 
proposal is to address the frequency with which POTWs must consider the 
adequacy of an SIU's slug control plan or other measures to control 
slug discharges. One commenter strongly opposed any changes to the 
current regulation by arguing that the changes in EPA's draft proposal 
to stakeholders would add to the regulatory burden. This commenter 
feels that the draft regulatory language would require Control 
Authorities to force the industrial user to undertake physical 
improvements deemed desirable by the Control Authority. The commenter 
also stated that the CWA confers no authority upon a Control Authority 
to directly regulate a user's physical plant or production practices.
    EPA promulgated the requirement for a two-year review cycle of the 
need for a ``slug control plan'' in 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), which was then under preparation. This manual provides 
detailed guidance for POTWs to evaluate whether significant industrial 
users need to develop slug control plans. It also provides guidance for 
significant industrial users to then develop those slug control plans. 
This recognizes that POTWs will need to determine whether existing 
situations 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 a significant industrial user to develop 
a plan to prevent slug discharges. As indicated by the discussion 
above, this has always been EPA's interpretation of the requirement in 
40 CFR 403.8(f)(2)(v) although today's proposal clarifies the 
regulatory language.
c. Today's Proposal

What is EPA proposing?

    Today's proposal would eliminate the requirement that POTWs 
evaluate the need for a slug control plan for each SIU every two years. 
The Agency proposes to amend the language in 40 CFR 403.8(f)(2)(v) to 
give POTWs the flexibility to review the need for slug control plans or 
other actions as part of their ongoing oversight of industrial users. 
To encourage some minimum review, today's proposal would also add 40 
CFR 403.8(f)(1)(iii)(F) to require that, where a slug control plan is 
found to be necessary, appropriate requirements would be placed in the 
industrial user's individual control mechanism.

What would industrial users be required to do to comply with these 
proposed changes?

    Today's proposal would not impose new burdens on SIUs. All SIUs 
still should take positive action 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.

What actions must the POTW take to ensure that adequate slug control 
mechanisms are implemented by the significant industrial user?

    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

[[Page 39578]]

to ensure the facility has adequate measures in place to prevent slug 
discharges. POTWs still may require that the SIU develop a slug control 
plan or similar management tool whenever that facility's slug 
prevention measures are judged to be inadequate.
    The proposed changes to the regulations should reduce the paperwork 
burden imposed upon the SIU and POTW while maintaining environmental 
protection. Both parties should take tangible, protective measures to 
eliminate the risk of slug discharges.

G. Sampling for Pollutants Not Present (40 CFR 403.12(e))

a. Existing Rule

Generally, what are the current periodic sampling and reporting 
requirements?

    Currently, 40 CFR 403.12(e)(1) requires industrial users subject to 
categorical Pretreatment Standards to submit reports to the Control 
Authority at least twice a year indicating the nature and concentration 
of all pollutants in their effluent that are limited by the standards. 
Section 40 CFR 403.8(f)(2)(v) requires Control Authorities to sample 
these industrial users at least annually.

Is monitoring required for regulated pollutants that are not expected 
to be present in a categorical industrial user's waste stream?

    Sampling is currently required for all pollutants limited by the 
categorical Pretreatment Standard even if certain pollutants regulated 
by the standard are not reasonably expected to be present. For example, 
the pollutants might be expected to not be present based upon prior 
sampling and analysis, knowledge of process chemistry, raw materials 
use, and potential byproducts.
b. Stakeholder Comments

What changes did EPA suggest in its 1997 letter to stakeholders?

    EPA suggested revising its regulations to allow industrial users to 
forego sampling of a pollutant regulated by a categorical standard if 
the user demonstrated through sampling and other technical data that 
the pollutant is not present and certified on each report that the 
pollutant is only present at background levels with no increase due to 
the industrial user's activities. The Control Authority would still be 
required to sample all SIUs for all regulated pollutants at least once 
per year. In addition, EPA specifically requested comments on:
     How to define what is meant by ``not present'';
     Determining an adequate technical basis to support a 
decision that sampling be waived or reduced; and
     Whether reduced monitoring should apply to organic 
chemicals given their relative variability in production and as 
contaminants in raw materials.
    The comments received on specific issues are discussed below with 
EPA's proposal on each issue.

How did the stakeholders respond?

    EPA received comments on the draft issue paper from 60 
stakeholders. Virtually all of the respondents stated that EPA should 
either reduce or eliminate sampling of pollutants not expected to be 
present in effluent. One commenter would support the concept only if a 
prohibition of subsequent discharge is included, similar to that which 
is proposed for NPDES requirements (see discussion below). Another 
commenter believed that the current requirement to sample for all 
pollutants provides the best evidence to support determinations 
regarding the presence or absence of pollutants.
c. Today's Proposal

How is EPA proposing to define ``not expected to be present''?

    Today's proposal would authorize a Control Authority to allow an 
industrial user subject to categorical Pretreatment Standards to not 
sample for a pollutant if the pollutant is not expected to be present 
in its wastestream in a quantity greater than the background level 
present in its water supply, with no increase in the pollutant due to 
the regulated process. This flexibility is already available for 
noncategorical industrial users, via the local limits allocation method 
implemented by the Control Authority. There would also be a reduced 
sampling requirement for the Control Authority once it had determined 
that a pollutant was not expected to be present. Most commenters agreed 
that EPA should not propose an absolute definition of ``not present'' 
because limitations on analytical detection capabilities would preclude 
an industrial user from being able to certify that any pollutant is 
``not expected to be present'' in its wastewater. Some commenters 
preferred the term ``not regulated.'' EPA notes, however, that the 
pollutants will continue to be regulated even if the industrial user 
has been authorized not to sample for them. The requirement to comply 
with each pollutant limit in a standard can be ended only through 
modification of the categorical Pretreatment Standard. If sampling 
indicates that an industrial user has exceeded a limit, the user will 
be in violation of that limit and must resume sampling immediately.
    Other commenters suggested that the standard for not sampling 
should be ``not detectable'' or Below Detection Limit (``BDL'') rather 
than not expected to be present. EPA is not proposing a standard that 
refers to the detectability of a pollutant. In light of the 
increasingly low detection limits that result from modern analytical 
methods, the pollutant may in fact be detectable but only at background 
levels that are not of regulatory concern. If EPA established the 
absence or the non-detectability of a pollutant as the threshold 
criterion for reduced sampling frequency, EPA anticipates that few if 
any industrial users would be able to avail themselves of the option.
    Stakeholders did not generally support the approach in which 
sampling could be waived if the pollutant is expected to be 50 percent 
below the regulated permit limit. Some commenters specifically 
disagreed with the percentage approach, as it suggested the possibility 
that the pollutant was added during the industrial process and could be 
higher under upset or abnormal circumstances. This suggests that 
compliance could not adequately be demonstrated without regular 
monitoring.

What information would be required to support a conclusion that a 
pollutant is not expected to be present?

    Today's proposal would require the Control Authority's decision to 
waive sampling to be based upon both sampling and other technical data, 
such as the raw materials, industrial processes, and potential by-
products. EPA is not proposing that a specific amount of sampling data 
be required but is interested in comment.
    Influent and effluent sampling may be necessary for the initial 
determination to support the technical factors. After the Control 
Authority notifies an industrial user that a pollutant is ``not 
expected to be present,'' subsequent periodic compliance reports may be 
limited to the submission of the certification statement. Three 
commenters thought that EPA should establish a regulatory minimum 
amount of sampling to be conducted for the determination of ``not 
expected to be present.'' For example, the regulation might require 
three years of sampling data to document that the pollutant is not 
expected to be present. Existing sampling data could be used to support 
requests for reduced sampling. For new facilities or processes, a 
shorter time might be appropriate if technical data

[[Page 39579]]

supported it. Dischargers subject to Metal Finishing Guidelines (40 CFR 
Part 433), for example, submit Total Toxic Organics (TTO) analytical 
results for the organics that are reasonably expected to be present as 
part of the baseline monitoring report; after submission and approval 
of a Toxic Organic Management Plan, subsequent compliance reports 
contain a certification statement in lieu of the TTO self-monitoring. 
On the other hand, the appropriate amount of sampling may be site-
specific and better determined by the Control Authority. The Control 
Authority would be able to consider the specific processes and 
pollutants involved and other circumstances that would support the 
reliability of the industrial user's certification that there has been 
no increase of the pollutant in its wastewaters due to its activities.
    EPA is also soliciting comment on whether sampling of influent 
should be required. Although not favored by eight commenters, most 
commenters agreed with the concept of either sampling influent water to 
the industrial processes or using the public water system quality 
reports to characterize ``background'' quality during the initial 
determination of ``not expected to be present.''
    The Safe Drinking Water Act and its Amendments (SDWA) prescribe 
specific monitoring and quality assurance requirements on public water 
systems, data which the industrial user and Control Authority could 
obtain via the public record to characterize the background quality. 
However, an industrial user that uses make-up water from a non-public 
water system could conduct a similar monitoring program to generate a 
representative data set for its process influent.
    Today's proposal would require that, in addition to sampling data, 
the decision to waive sampling be based on technical factors. Such 
factors include knowledge of the raw materials used by the industrial 
user and knowledge of the facility's processes and potential by-
products, but do not include pretreatment process capability and 
efficiency. All factors considered should be documented in the 
industrial user's individual control mechanism file.

Would any ongoing sampling be required for pollutants not expected to 
be present?

    EPA is proposing that, after a determination has been made that a 
pollutant is not expected to be present, the Control Authority may 
waive sampling of that pollutant by the industrial user or reduce the 
required frequency of sampling to less than twice per year. The Control 
Authority would only be required to perform the sampling and analysis 
required by 40 CFR 403.8(f)(2)(v) for all regulated pollutants once 
during the term of the industrial user's individual control mechanism.
    Commenters were split on whether EPA should continue to require 
ongoing sampling at some reduced frequency to verify that the pollutant 
is not expected to be present. Several recommended annual monitoring 
for all regulated pollutants by either the industrial user or the 
Control Authority, and a few recommended less frequent verification at 
times such as permit renewal. Eight commenters stated that the Control 
Authority should not be required to sample the industrial user if the 
Control Authority had already determined that the pollutants were not 
expected to be present. EPA believes that, if the Control Authority has 
determined, based on both sampling data and a technical evaluation that 
a pollutant is not expected to be present at levels above background, 
and if the industrial user continues to certify that there is no 
increase of the pollutant in its effluent 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 permit and how often to require sampling by the 
industrial user. However, EPA is requesting comment on what the rule 
should specify regarding Control Authority oversight.

Who would authorize industrial users to reduce the sampling frequency?

    Today's proposal would allow the Control Authority to authorize 
reduced sampling. One commenter suggested that further approval 
procedures (e.g., requiring Approval Authority concurrence) would 
likely result in delays and administrative costs that would subvert the 
streamlining benefits sought by EPA. EPA agrees that prior approval 
from Approval Authorities should not be necessary. Approval Authorities 
would review the implementation of this provision as part of their 
regular oversight activities.

Would industrial users be required to certify that a pollutant is not 
expected to be present and that processes have not changed?

    EPA is proposing that an industrial user submit, as part of its 
regular semi-annual monitoring reports, certifications that there has 
been no increase in the pollutant in its wastewater due to activities 
of the industrial user. The willingness of an industrial user to so 
certify will provide assurance that the pollutant is in fact not 
present above background levels because a false statement is criminally 
punishable under 40 CFR 403.12(n).
    Most of the commenters responding to this issue were in favor of 
some type of industrial user certification process. Comment varied as 
to whether the certification should be submitted semi-annually, 
annually, or biennially. A few commenters noted that the certification 
process was consistent with the existing procedures for certifying in 
lieu of sampling for TTOs. One commenter thought a certification 
process is not needed because industrial users are already required to 
notify POTWs if their discharges change substantially. An application 
form, signed and certified by the industrial user prior to issuance of 
the user permit, was suggested by a commenter as a possible 
implementation tool to document and aid enforcement of any change in 
the other technical factors (industrial process, raw materials, etc.) 
used in the determination of ``not expected to be present.''

Would relief be allowed for pollutants that are regulated as indicators 
of other pollutants?

    Today's proposal would allow Control Authorities to waive sampling 
of indicator pollutants to the same extent as other pollutants. One 
commenter said that the technical information documenting that a 
pollutant is not expected to be present should be provided for all 
pollutants of concern and not just the indicator pollutant. The Agency 
disagrees. Even if the pollutant is regulated as an indicator for other 
pollutants, the Agency believes that periodic sampling for the 
indicator can be waived if technical information and past sampling 
support the conclusion that the indicator pollutant will not be 
present.

Would EPA apply reduced monitoring for organic chemicals?

    Today's proposal would not allow reduced monitoring for discharges 
subject to the Organic Chemicals, Plastics, and Synthetic Fibers 
(OCPSF) guidelines. However, EPA is requesting comment on whether 
Control Authorities should be able to waive sampling at OCPSF 
facilities of organic chemicals that are not expected to be present. 
Because the constituents in the effluent from organic chemical 
manufacturers may vary significantly over time, past information may 
not be reliable as evidence of whether the pollutant will be present in 
the future.

[[Page 39580]]

    The preamble to the OCPSF guidelines discussed the need for minimum 
monitoring of all regulated organic chemicals (52 FR 42522, November 5, 
1987). EPA imposed on OCPSF facilities standards for a wide range of 
pollutants because of the diversity of sources that could introduce 
pollutants into the wastewater, such as raw materials, contaminants in 
raw materials, process changes, and byproducts. Many of the organic 
toxic pollutants are directly manufactured by OCPSF facilities as well 
as used as raw materials or generated as byproducts in industry 
processes. It would be difficult to guarantee that a plant will not 
discharge any of the regulated pollutants.
    EPA is interested in comment on whether Control Authorities should 
be able to waive sampling for organic chemicals at OCPSF facilities if 
a facility establishes that a pollutant is not expected to be present 
and certifies to that effect. EPA is also interested in comments on 
whether any restriction on relief from sampling for organic chemicals 
not expected to be present should apply to sources of organic chemicals 
other than OCPSF facilities.

How does the proposal compare with NPDES requirements?

    Direct discharging facilities subject to NPDES permits are 
similarly required to sample for all regulated pollutants. Proposed 
changes (61 FR 65268, December 11, 1996) to the NPDES regulations in 40 
CFR 122.44(a)(2) would give the Regional Administrator or State Program 
Director the authority to allow dischargers subject to technology-based 
effluent limitation guidelines and standards to forego sampling of a 
pollutant found in 40 CFR subchapter N if the discharger has 
demonstrated through sampling and other technical factors that the 
pollutant is not expected to be present in quantities greater than the 
background level and the discharger certifies on each discharge 
monitoring report submitted to the Permitting Authority that the 
pollutant is present in its wastestream only at background levels with 
no increase in the pollutant due to activities of the discharger. This 
exclusion would apply only for the term of the permit and would not be 
available to new sources/new dischargers for the dischargers' first 
permit term.
    Similarly, under the Pretreatment Regulations, an industrial user 
that is allowed to not sample for a pollutant is still subject to the 
pollutant limits in the applicable national categorical Pretreatment 
Standard.
    Under today's proposal, such limits would continue to be placed in 
the CIU's permit or other control mechanism, but the Control Authority 
would be allowed to eliminate the user's self-monitoring requirements. 
The Control Authority would be required to sample all pollutants 
regulated by the applicable categorical standard at least once during 
the term of the CIU's permit. If any new information indicated that the 
CIU was in fact discharging the pollutant at greater than background 
concentrations, the industrial user could not certify that there has 
been no increase in the pollutant due to its activities and would be 
required to resume monitoring. If the level of the pollutant exceeds 
the standard, the industrial user would be liable for violating the 
categorical standard. If the industrial user fails to provide notice of 
the change in discharge, it is also liable for violating 40 CFR 
403.12(j).

H. Use of Grab and Composite Samples (40 CFR 403.12(b), (d), (e), (g) 
and (h))

a. Existing Rule

Which sampling requirements are addressed in this section?

    Part 403 is very specific regarding when grab and composite samples 
must be used for baseline monitoring reports and 90-day compliance 
reports. See 40 CFR 403.12(b)(5)(iii) and (d). For those reports, the 
industrial user generally must collect (1) a minimum of four grab 
samples for determination of pH, cyanide, total phenols, oil and 
grease, sulfides, and volatile organic compounds and (2) 24-hour 
composite samples for all other pollutants. Those regulations also 
specify that composite samples must be flow-proportional unless the 
industrial user demonstrates that this is infeasible. For periodic 
compliance reports under 40 CFR 403.12(e) and (h), however, there is no 
regulatory language that specifically addresses the use of grab and 
composite samples.
    This section of today's proposal addresses (1) the application of 
40 CFR 403.5(b)(5)(iii) provisions 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 addressed.

What are ``grab samples'' and when are they required?

    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). However, grab 
samples of volatile organic compounds (VOCs) must be collected almost 
instantaneously (i.e., less than 30 seconds of elapsed time) and 
properly preserved (``Comparison of Volatile Organic Analysis 
Compositing Procedures,'' EPA 821/R-95-035, September 1995). An 
analysis of an individual grab sample provides a measurement of 
pollutant concentrations in the wastewater at a particular point in 
time. Grab samples are usually collected manually, but can be obtained 
with a mechanical sampler.
    Grab samples are required in order to accurately analyze those 
pollutant parameters that may be affected by biological, chemical, or 
physical interactions and/or exhibit marked physical and compositional 
changes within a short time after collection. Grab samples should be 
used when (1) wastewater characteristics are relatively constant; (2) 
parameters to be analyzed are likely to be affected by the compositing 
process, such as the procedures used for oil and grease; (3) composite 
sampling is infeasible or the compositing process is liable to 
introduce artifacts of sampling; and (4) the parameters to be analyzed 
are likely to change with storage. In particular, accurate 
determination of pH, temperature, total phenols, oil and grease, 
sulfide, volatile organic compounds, and cyanide requires properly 
collecting and carefully preserving grab samples.

What are composite samples and when are they required?

    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

[[Page 39581]]

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 current regulations allow Control Authorities to waive the 
requirement for flow-proportional compositing of samples for baseline 
monitoring reports and 90-day compliance reports in limited 
circumstances. The Control Authority may 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 
demonstrates that these alternative sampling techniques will provide a 
representative sample of the effluent (40 CFR 403.12(b)(5)(iii)).
b. Stakeholder Comments

What changes did EPA suggest in the May 1997 letter to stakeholders?

    In the 1997 draft sent out for stakeholder review, EPA requested 
comment on whether to allow manual collection and compositing of grab 
samples for cyanide, volatile organic compounds, and other pollutants 
not affected by the compositing process.
    The draft also discussed the applicability of time-proportional 
versus flow-proportional sampling methodologies for stakeholder review 
and comment. EPA attempted to clarify the meaning of ``infeasible'' in 
the current regulatory language that allows the use of time-
proportional composite sampling where flow-proportional sampling is 
determined to be ``infeasible'' (40 CFR 403.12(b)(5)(iii)).
    The Agency also proposed that the same sampling and analytical 
procedures that are required for baseline monitoring reports and 90-day 
compliance reports be applicable to the periodic compliance reports 
required under 40 CFR 403.12(e) and (h). The draft recommended, 
however, that Control Authorities retain the flexibility to determine 
the number of grab samples needed for periodic compliance reports, 
while four grabs would continue to be required for the other reports.
    EPA also requested comment on the WEF/AMSA Workshop's proposal to 
eliminate the sampling protocols and requirements specified in the 
current regulations and instead define what would constitute a 
``representative sample.''

How did stakeholders respond?

    There was no clear consensus on the regulatory changes proposed in 
the draft document. Thirteen commenters had no comment on the proposal. 
Nineteen commenters essentially agreed with the draft as written. 
However, the remaining 45 reviewers had fairly divergent opinions as to 
how the pretreatment sampling requirements could be streamlined. A 
significant number of respondents (28 out of the 70 commenters) 
supported the WEF/AMSA proposal to develop a definition and criteria 
for a ``representative sample'' that would eliminate much of the 
regulatory language describing sampling requirements in 40 CFR 403.12 
(b), (d), (e), (g) and (h).

What are EPA's responses to specific stakeholder comments?

    Several commenters did not support manually compositing cyanide and 
volatile organic compounds because they believed the sample integrity 
and accuracy would be compromised. In response, EPA notes that reliable 
procedures for collecting and compositing cyanide and volatile organics 
have been developed and EPA has published guidance manuals describing 
the applicable sampling and analysis methodologies. See ``Industrial 
User Inspection and Sampling Manual for POTWs,'' EPA 831/B-94-001, 
April 1994, and ``Comparison of Volatile Organic Analysis Compositing 
Procedures,'' EPA 821/R-95-035, September 1995.
    Another commenter stated that the sampling procedures outlined in 
40 CFR Part 136 adequately discuss the relationship between grab and 
composite samples and that no changes to the regulations are necessary. 
EPA notes, however, that it continues to receive questions relating to 
sampling issues and believes that clarification of sampling procedures 
is necessary.
    Other commenters requested that EPA clarify when a composite sample 
is generated for the purpose of determining compliance with prescribed 
sample holding times (i.e., does the ``clock'' start running when the 
first or last sample aliquot is collected?). EPA notes that for most 
circumstances sampling procedures specify that the time the last sample 
aliquot is collected should be the starting time for calculating sample 
holding times. Also, this requirement is consistent with sampling 
procedures used in developing individual effluent limitation guidelines 
for specific categorical industries in 40 CFR 405-471. However, the 
holding time can commence at the beginning of the compositing period if 
it is known that beginning the holding time at the end of the 
compositing period would result in degradation of the sample. See 40 
CFR 136.3, Table II notes.
    Another commenter proposed that EPA accept continuous recording pH 
meter records in lieu of discrete grab samples as a demonstration of 
compliance with pH limits. In response, EPA notes that, as long as the 
facility uses EPA-approved methods, continuous recording pH meter 
records are acceptable to demonstrate compliance with pH limits. The 
industrial user must provide documentation (recording charts and meter 
calibration records) to verify adherence to the pH range specified in 
the permit and accuracy of the metering system.
    Several commenters believe the proposed regulatory changes will 
actually increase the workload if manually composited samples are 
required. In their opinion, compositing samples would be technically 
more difficult to collect and their inspectors would need additional 
training to acquire the necessary technical expertise to implement 
these programmatic changes. One commenter believes POTWs should not be 
given any authority to prescribe manual compositing of grab samples 
merely because the POTW determined that the sample quality would not be 
affected by the compositing process. In response, EPA notes that 
today's proposal does not require the compositing of individual samples 
prior to analysis, but rather provides that option in circumstances 
where it is not now clearly allowed. The only reason to composite the 
individual grab samples prior to analysis is to save resources; this 
technique should not be required if compositing the samples results in 
added expense.

Did commenters support allowing time-proportional sampling when flow-
proportional sampling is infeasible?

    The merits and inadequacies of using flow-proportional versus time-
proportional sampling methodologies generated many comments. A majority

[[Page 39582]]

of the commenters believe that time-proportional sampling is as 
accurate and far less complicated than flow-proportional sampling. 
Several commenters stated their belief that time-proportional sampling 
provides data representative of most waste streams and should always be 
an acceptable sampling technique. A number of commenters stated that 
flow-proportional sampling should only be required when flow metering 
equipment has already been installed at a facility. One commenter 
pointed out the fact that the magnitude of the flow has little effect 
on the representativeness of time-proportional versus the flow-
proportional sampling techniques; the variability of the flow is the 
critical factor.
    Several other commenters stated that the effluent limitation 
guidelines for various categorical standards were developed using time-
proportional sample data. In their opinion, EPA's insistence upon using 
flow-proportional sampling techniques to demonstrate compliance with 
categorical standards is inconsistent and unsupportable. However, if 
the facility flow rates are so variable that time-proportional sampling 
would give inaccurate, unrepresentative results, then other, accurate 
sampling protocols, such as flow-proportional sampling, should be used. 
In other words, the industrial user bears the responsibility for 
providing representative sampling data at all times.
    Other stakeholders stated that batch dischargers and minimal flow 
facilities cannot effectively or accurately measure effluent flow and, 
therefore, cannot use flow-proportional sampling techniques. Many of 
these facilities have space and right-of-way limitations that make 
installation of conventional flow measurement systems (e.g., weirs or 
flumes) difficult. Several commenters stated that installing and 
maintaining accurate flow measurement devices for small dischargers may 
add a significant cost burden and have no beneficial impact upon the 
representativeness of the data obtained. In most cases, commenters 
stated that time-proportional sampling saves both time and money 
without compromising accuracy.
    Under today's proposal, the Control Authority would be able to 
authorize the use of time-proportional composite sampling in lieu of 
flow-proportional sampling upon determining that time-proportional 
sampling will produce a representative sample.

Did commenters support extending the sampling provisions in 40 CFR 
403.12(b)(5)(iii) to periodic compliance reports?

    Numerous commenters (mainly POTWs) felt that the Control 
Authorities should have complete authority to select whatever sampling 
protocols they believe provide accurate results. Many interpreted the 
existing regulatory language in 40 CFR 403.12(g)(3) as providing them 
with the authority to unilaterally set sampling protocols for all 
periodic compliance reports. EPA recognizes the confusion surrounding 
this issue. EPA believes that the regulations need to be revised to 
clarify the applicability of the sampling provisions in existing 40 CFR 
403.12(b)(5)(iii) to periodic compliance reports. At the same time, EPA 
is proposing to revise those provisions to give the Control Authority 
more flexibility to determine what procedures are necessary for an 
industrial user to obtain a representative sample.

Could EPA require sampling to be ``representative'' and not specify the 
sample type?

    The WEF/AMSA Workshop Report recommended that all references to 
sample ``types'' (e.g., grab versus composite, flow-proportional versus 
time-proportional) be dropped and that the regulatory language require 
only that the sample be a ``representative sample.'' EPA would then 
define the term ``representative sample'' to provide the POTW with the 
flexibility to specify the appropriate sampling protocols. The Report 
highlighted issues that would have to be addressed in order to define a 
``representative'' sample. These issues 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 the Administrator; and (7) applying the 
criteria to instantaneous, daily maximum and monthly average limits.
    A significant number of stakeholders were in favor of this proposal 
and requested that EPA both develop a definition and provide guidance 
outlining specific criteria necessary to define what constitutes a 
``representative sample'' for specific industrial process scenarios. 
Several commenters asked that EPA provide a definition of 
``representative sample'' in 40 CFR 403.3 and outline more specific 
guidelines in 40 CFR 403.12(g).
    One dissenting commenter pointed out that the demonstration of a 
sample's ``representativeness'' is an additional element in making a 
determination of ``infeasibility.'' This commenter argued that if the 
Agency does not provide concrete guidance to define all cases of 
``infeasibility,'' then the issue of what type of sample is truly 
representative cannot be resolved.
    EPA is not prepared to offer a comprehensive definition of what 
constitutes a ``representative sample'' or specific guidance at this 
time. Given all of the physical parameters (type of pollutant, volume, 
concentration, viscosity, chemical reactivity) and different techniques 
for preserving, compositing (if appropriate), and analyzing the 
sample(s), a single, all-encompassing definition of a ``representative 
sample'' may not be achievable. EPA solicited comments on how to define 
a ``representative sample'' in the May 1997 pre-proposal draft; 
however, no commenter provided specific suggestions. EPA believes that 
it would be difficult to develop appropriate criteria that could be 
applied to all types of ``representative samples.''
    EPA believes that the current regulations, as proposed to be 
modified today, set minimum guidelines for what would constitute a 
representative sample. EPA solicits input on how any or all of the 
factors discussed above could be used to define a ``representative 
sample.'' Stakeholders are encouraged to provide comment and supporting 
data describing which current requirements are not necessary to obtain 
a representative sample, or how a representative sample could be more 
specifically defined. EPA will assess the comments and develop an 
appropriate response for inclusion in the final regulation.
c. Today's Proposal

What is EPA proposing?

    EPA is proposing to clarify the sampling requirements in 40 CFR 
403.12. The requirements of 40 CFR 403.12(b)(5)(iii), which currently 
are explicitly applicable to the baseline monitoring reports and 90-day 
reports required by 40 CFR 403.12(b) and (d), would be extended to the 
periodic reports required in 40 CFR 403.12(e) and (h). These changes 
will be accomplished by consolidating the new requirements for all of 
the reports in 40 CFR 403.12(g). Redundant sections would be removed.

[[Page 39583]]

    The proposed regulatory changes would 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 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. EPA is interested in comment on whether the 
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 as well.
    EPA is also proposing to clarify the language currently in 40 CFR 
403.12(b)(5)(iii) in two ways. First, EPA is proposing to specifically 
allow compositing of certain types of grab samples prior to their 
analysis. The pollutants that could be composited include cyanide, 
volatile organic compounds, and any other parameters that the Control 
Authority finds are unaffected by the compositing process as documented 
in approved EPA methods.
    EPA is also proposing 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.

When and what type of grab samples could be manually composited?

    Today's proposal would allow multiple grab samples for cyanide and 
volatile organic compounds collected during a 24-hour period or an 
operating day to be manually composited in the laboratory prior to 
analysis. Control Authorities also would be allowed to authorize 
manually composited grab samples for other parameters that are 
unaffected by compositing procedures. The main concern is that a 
composite sample provide 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. Generally, a sample can be 
composited if the analytical method does not require rinsing of the 
sample vessel as a part of the process and the individual aliquots were 
properly preserved. 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. Total residual chlorine, pH, and temperature samples can not 
be ``composited'' under any circumstances because the results would be 
changed by the compositing process. Therefore, today's proposal would 
not allow Control Authorities to authorize manually composited 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 near future. Therefore, the Control Authority should have the 
flexibility of allowing industrial users to submit data from composited 
oil and grease samples as long as the sampling and analytical 
procedures used are sanctioned by EPA in 40 CFR Part 136 or outlined in 
technical guidance documents.
    EPA guidance (``Industrial User Inspection and Sampling Manual for 
POTWs,'' EPA 831/B-94-001, April 1994) 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) describes procedures for accurate compositing 
of volatile organic compounds.

When could flow-proportional sampling be waived?

    Today's proposal would allow Control Authorities to waive the 
requirement that industrial users collect flow-proportional samples. 
The regulation would no longer require Control Authorities to require 
the industrial user to demonstrate that flow-proportional samples are 
``infeasible.''
    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. Today's 
proposal, however, would delete the requirement that the demonstration 
be made in all cases.
    As always, the Control Authority should 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 are the sampling requirements for those facilities that do not 
discharge continuously?

    Today's proposal would 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. Continuous sampling over a 24-hour period for a 
facility that discharges its process wastewater for less than 24 hours 
(e.g., an 8-hour shift or a 20-30 minute batch discharge) could cause 
the sample to be diluted in the sampler. Since flows of non-industrial 
wastewater routinely occur after the shift is over, use of an automatic 
sampler programmed for a 24-hour sampling protocol would yield 
unrepresentative results. The proposed 40 CFR 403.12(g)(3) would 
clarify that industrial users must collect samples that are 
commensurate with the time period during which the industrial 
wastewater is actually being discharged. However, the industrial user 
and Control Authority should be careful to ensure that if wastewater is 
discharged other than at the time of composite sample collection, that 
wastewater is not a regulated wastestream.

I. Removal Credits (40 CFR 403.7)

a. Existing Rule

Generally, what aspects of the removal credit regulation is EPA 
addressing today?

    Removal credits are a regulatory mechanism by which industrial 
users may discharge a pollutant in quantities

[[Page 39584]]

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 treats 
the pollutant. Today, EPA is proposing to revise one aspect of the 
removal credit regulations in 40 CFR 403.7.
    EPA is clarifying that existing restrictions on removal credit 
authority for POTWs subject to Overflows apply to Combined Sewer 
Overflows (CSOs) and Sanitary Sewer Overflows (SSOs). In addition, 
those restrictions are being revised based on suggestions from several 
representatives of the SSO subcommittee of EPA's Urban Wet Weather 
Flows Federal Advisory Committee to further restrict removal credits 
upstream of SSOs and CSOs and to be consistent with a judicial decision 
allowing removal credits only to the extent that a pollutant is 
consistently treated.
    Although discussed in previous stakeholder drafts, EPA is not 
proposing to amend Part 403 to make removal credits available for those 
pollutants that are not now listed in Part 403, Appendix G as eligible 
for removal credits. Instead, EPA expects that POTWs that desire 
removal credits for pollutants not listed in Appendix G will petition 
the Agency either for promulgation of Part 503 standards for the 
pollutants for which removal credits are desired or for an amendment to 
Table II of Part 403, Appendix G. In order for a petition to be 
considered by EPA, it must contain documentation consistent with the 
records of decision underlying current Appendix G listings. 
(Petitioners are referred to ``Technical Support Document for the Round 
Two Sewage Sludge Pollutants'' (EPA-882-R-96-003, August 1996).) Data 
must be included on the toxicity, fate, effects, and environmental 
transport properties of individual pollutants adequate to allow EPA to 
construct a Part 503 numerical standard, or to allow EPA to make a 
finding that the concentration of the pollutant in sewage sludge is not 
sufficient to create a reasonable probability of negative human health 
or environmental impacts from that pollutant contained in the sewage 
sludge considering the specific sewage sludge use or disposal practice 
being employed by the POTW.
b. Background on Sewage Sludge Issue

When are removal credits authorized?

    Section 307(b) of the Clean Water Act directed EPA to establish 
national Pretreatment Standards for categories of sources 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 
established 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, allows an increased 
concentration of a pollutant in the flow from the industrial user's 
facility to the POTW provided certain requirements are met.
    Section 307(b) establishes a three-part test a POTW must meet in 
order to obtain removal credit authority for a given pollutant. Removal 
credits may be authorized only if (1) the POTW ``removes all or any 
part of such toxic pollutant,'' (2) the POTW's ultimate discharge would 
``not violate that effluent limitation, or standard which would be 
applicable to that toxic pollutant if it were discharged'' directly 
rather than through a POTW, and (3) the POTW's discharge would ``not 
prevent sludge use and disposal by such [POTW] in accordance with 
section [405] * * *'' (Sec. 307(b)). Through several rulemakings, EPA 
promulgated and revised its removal credit regulations, which are 
codified at 40 CFR 403.7.

Why are sludge standards a prerequisite to removal credit authority?

    The United States Court of Appeals for the Third Circuit 
interpreted the Clean Water Act as requiring EPA to promulgate the 
comprehensive sewage sludge regulations required by CWA 
Sec. 405(d)(2)(A)(ii) before any removal credits could be authorized. 
See NRDC v. EPA, 790 F.2d 289, 292 (3rd Cir., 1986); cert. denied. 479 
U.S. 1084 (1987). Congress made this explicit in the Water Quality Act 
of 1987, which provided that EPA could not authorize any removal 
credits until it issued the sewage sludge use and disposal regulations. 
On February 19, 1993, EPA promulgated Standards for the Use or Disposal 
of Sewage Sludge, which are codified at 40 CFR Part 503 (58 FR 9248).
    At the same time EPA promulgated the Part 503 regulations, EPA also 
amended its General Pretreatment Regulations to make removal credits 
available for the pollutants controlled by those sewage sludge use or 
disposal standards. EPA also added a new Appendix G to Part 403 that 
includes two tables of pollutants which would be eligible for removal 
credits so long as the other procedural and substantive requirements of 
40 CFR Part 503 and 40 CFR 403.7 are met. The first table (Appendix G--
Table I) lists, by use or disposal practice, the pollutants that are 
regulated in Part 503 and eligible for removal credit authorization. 
The second table (Appendix G--Table II) lists, by use or disposal 
practice, additional pollutants that are eligible for removal credits 
if the concentration of the pollutant in the sewage sludge does not 
exceed a prescribed concentration. The pollutants in Appendix G--Table 
II are the pollutants that EPA evaluated and decided not to regulate 
during development of the Part 503 regulations. See 58 FR 9381-9385. 
Minor revisions to Appendix G were made on October 25, 1995 (60 FR 
54763).

Will EPA be issuing standards for additional pollutants in sewage 
sludge?

    EPA is now in the second stage of development of sewage sludge 
standards. The Agency has completed the process of identifying a second 
set of pollutants that may cause adverse effects on public health or 
the environment in sewage sludge that is used or disposed (``Round Two 
Sewage Sludge Pollutants''). The final list of pollutants was submitted 
to the District Court in Oregon in November 1995 as part of litigation 
to compel the Agency to develop sewage sludge standards (Gearhart v. 
Browner, Civ. No. 89-6266-HO, D. Oregon.) EPA has identified only two 
additional pollutant categories for which limits may be developed in 
Round Two: dioxins/dibenzofurans and coplanar polychlorinated biphenyls 
(PCBs).

How did EPA determine which pollutants to consider for Round Two sewage 
sludge standards?

    The analysis supporting the selection of these pollutants, and the 
exclusion of others, is presented in ``Technical Support Document for 
the Round Two Sewage Sludge Pollutants'' (EPA-882-R-96-003, August 
1996). The pollutants analyzed in that document can be divided into 
three groups. The first group consists of pollutants that were detected 
in more than 10 percent of the samples in EPA's 1988 National Sewage 
Sludge Survey and that had not already been regulated in Round One. For 
these pollutants EPA performed a thorough review of the scientific 
literature for human health and toxicity data. To the extent data were 
available, they were reviewed to determine whether the presence of the 
pollutants in sewage sludge would present an unreasonable risk to 
public health and the environment when sewage sludge is used or 
disposed.

[[Page 39585]]

    The second group of pollutants consists of pollutants that were 
detected at least once but in less than 10 percent of the total 
samples. EPA examined these pollutants only to determine whether they 
were highly toxic.
    The third group consisted of pollutants not detected in any sample 
during the National Sewage Sludge Survey. EPA did not consider these 
pollutants for inclusion in Round Two.
    EPA decided not to consider further for regulation those pollutants 
that are either not frequently detected, or are not known to present an 
unreasonable risk. Pollutants were either not analyzed or not fully 
analyzed by EPA because they were not detected, were detected 
infrequently in samples from the National Sewage Sludge Survey, or 
sufficient data and information on the pollutants' toxicity, fate, 
effects and environmental transport properties were not available for 
EPA to make a finding for further regulation.

Would pollutants that EPA is not considering for sewage sludge 
standards be eligible for removal credits?

    When promulgating the initial regulations under Part 503, EPA 
interpreted the Court's decision in NRDC v. EPA as only allowing 
removal credits for a pollutant if EPA had either regulated the 
pollutant or established a concentration of the pollutant in sewage 
sludge below which public health and the environment are protected when 
sewage sludge is used or disposed. Today's proposal does not change 
this situation.

What changes did EPA suggest in its 1997 letter to stakeholders?

    EPA's letter to stakeholders would have removed the current 
prohibition against removal credits for pollutants for which EPA has 
not established a safe level in sewage sludge for the POTW's use or 
disposal practice. Specifically, if EPA were no longer considering 
developing a standard for a pollutant for the POTW's sewage sludge use 
or disposal practice, the POTW could receive removal credit authority 
for the pollutant (assuming the other regulatory requirements are met) 
if the POTW submitted with its removal credit application a study that 
supported the conclusion that the granting of removal credits would not 
increase the level of pollutants in the POTW's sewage sludge to a level 
that would have an adverse impact on public health and the environment.

How did stakeholders respond?

    State representatives were divided on this proposal, with a 
majority opposing the proposal or the concept of removal credits 
generally. Commenters representing industry either supported the 
proposal or had no comment. Commenters representing POTWs were evenly 
split. Commenters representing an environmental group opposed EPA's 
proposal to allow granting of removal credits for those pollutants not 
controlled by a sewage sludge standard. A few commenters asked EPA to 
clarify the extent of the study that the POTW would have to perform and 
the standard that the sewage sludge would have to meet.
    A variety of reasons were given for opposing the proposal. One 
commenter thought that categorical Pretreatment Standards should apply 
across the board. Others thought that removal credits are difficult to 
implement or would negatively impact the reuse of sewage sludge. EPA 
notes that removal credits are specifically allowed by Sec. 307(b) of 
the Clean Water Act if certain conditions are met, and the Agency has 
no authority to abolish removal credits altogether.
    Some commenters expressed concerns that sludge risk assessment 
analysis is very complicated. One noted that POTWs with multiple sludge 
use or disposal options would have to perform separate studies for each 
option.
    Two commenters that favor the availability of removal credits 
argued that EPA has no authority to require POTWs to perform a health 
risk assessment in order to obtain removal credit authority because 
once the Round Two sludge regulations are promulgated, the requirement 
that removal credits not prevent sludge use and disposal would be 
satisfied for all remaining pollutants that EPA has decided not to 
regulate in sewage sludge. An opponent of the proposal argued that EPA 
could not allow the POTW to perform the study and that removal credits 
cannot be authorized unless EPA has established the allowable pollutant 
level in sewage sludge for the POTW's use or disposal practice.
c. Decision on Sewage Sludge Issue

What is EPA's decision regarding sewage sludge and removal credits?

    Today's proposal would not provide for POTWs to apply for removal 
credit authority for pollutants not eligible for removal credits under 
Part 403. Instead, a POTW or industrial user can currently petition the 
Agency to establish a Part 503 standard or an amendment to Part 403, 
Appendix G--Table II for a pollutant along with an analysis of the 
impact of the pollutant on the use or disposal of its sewage sludge. 
Upon promulgation of the Part 503 standard or listing of the pollutant 
in Part 403, Appendix G--Table II, the pollutant would be eligible for 
inclusion in an application for a removal credit.

What would be the scope of the petitioner's analysis of the risk 
related to its sewage sludge?

    The petitioner's analysis would have to provide sufficient 
information on toxicity, persistence, concentration, mobility, and 
potential for exposure for EPA to consider in establishing 
concentrations of the pollutant in sludge that would not have an 
adverse effect on public health or the environment when sewage sludge 
is used or disposed. If a reference dose (RfD) upon which a human 
health endpoint is based and an ambient water quality criterion (AWQC) 
that protects aquatic life from the pollutant's effects are not 
available, the petitioner must provide information on the toxicity of 
the pollutant and its environmental properties consistent with existing 
methologies cited in the 40 CFR Part 503 Technical Support Documents. 
This information must be sufficient for EPA to be able to create an RfD 
and AWQC and then to establish appropriate concentrations of the 
pollutant in sewage sludge to protect public health and the environment 
prior to promulgation of a new Part 503 numerical standard or listing 
in Part 403, Appendix G--Table II. In addition, sufficient toxicity 
information relating to the effects on other terrestrial animals and 
plant species would have to be provided for EPA to consider exposures 
of these species to the pollutant in order to craft protective 
numerical criteria for those exposure pathways. Sufficient data on the 
pollutant's fate effects and environmental transport properties are 
required to evaluate all relevant exposure pathways and to prepare 
appropriate numerical standards for each pathway. These data 
requirements are described in the preamble and the Technical Support 
Documents to the final Part 503 regulations published on February 19, 
1993 (58 FR 9248). The preamble fully describes EPA's approach, which 
included an analysis of 14 pathways that could result in a pollutant in 
sewage sludge having an adverse effect on human health or the 
environment. All 14 pathways may not be applicable to the petitioner's 
specific situation, but the database submitted by the petitioner must 
establish both human health and environmental effects with respect to 
all pertinent pathways for the use or disposal practice employed by the 
POTW granting the removal credit. This information must

[[Page 39586]]

be sufficient for EPA to promulgate Part 503 numerical standards for 
those individual pollutants for which removal credits are being sought 
or findings by EPA that the concentration of these pollutants in sewage 
sludge after issuance of the removal credits will not create a 
significant human health or environmental impact.
    The petitioner's submitted database can be limited to its 
particular circumstances, provided the promulgated Part 503 standard is 
made contingent on those circumstances. For example if the pollutant at 
issue is in sewage sludge that will be disposed in a surface disposal 
site, the petitioner need only submit sufficient data on the 
pollutant's properties relevant to surface disposal. The revision to 
the POTW's NPDES permit to incorporate the removal credit authority 
would also require the POTW not to exceed the determined sewage sludge 
concentration and would specify the associated management practices and 
reporting requirements.
    The study need not be prepared by the petitioner itself, but may be 
performed by any party. Ultimately, however, it is the POTW that must 
submit the request for and be given the authority to grant the removal 
credit.
    One commenter asked if the study would have to address the fate of 
the pollutant for incinerated sludge. As described in the preamble to 
the final Part 503 regulations, the study would have to determine the 
dose received by individuals living near the incinerator and would have 
to compare that dose to available human health criteria (58 FR 9303, 
February 19, 1993).

Why is EPA not proposing to change the rule?

    First, very few POTWs expressed interest in removal credits since 
they became available in 1993 or in response to the May 1997 letter to 
stakeholders. And as discussed above, there was substantial opposition 
among some commenters to allowing POTWs to perform studies as 
conditions for granting removal credits for pollutants not regulated 
under either round one or two of the Sec. 405(d) regulations. One 
commenter argued that allowing POTWs to perform the study would not 
adequately protect public health and the environment from chemicals 
that are discharged. The same commenter thought that POTW studies would 
be more likely to be biased. In response, EPA has decided not to amend 
Part 403 to include this proposal and notes that data provided in 
support of petitions to establish Part 503 standards would be peer 
reviewed and used in conjunction with any risk assessment or other data 
collected by EPA.
    It should be noted that a POTW or an industrial user can currently 
petition EPA to establish a standard for a particular pollutant, so 
that removal credits could then be available. EPA believes that this 
mechanism is the soundest way to develop additional opportunities for 
removal credit authority.
d. Background on Overflow Issue

How do overflows affect a POTW's eligibility for removal credit 
authority?

    The Court of Appeals in NRDC v. EPA ruled that removal credits 
could only be available if the POTW removes a pollutant with a 
consistency that approximates the consistency with which an industry 
using the best available technology can remove the pollutant (790 F.2d 
at p. 292). EPA's 1984 revisions to the Part 403 regulations allowed 
removal credits to be based on the average removal by the POTW, a rate 
that the POTW would achieve only 50 percent of the time. The Court 
ruled that this was not sufficiently consistent removal to support the 
granting of removal credits.
    The Court also ruled that the regulation's determination of 
consistent removal also failed to take into account the existence of 
Combined Sewer Overflows (CSOs). In response to the Court's decision, 
EPA reinstated the provision from its previous regulations regarding 
CSOs. Under those regulations, a removal credit is reduced by a 
percentage equal to the percentage of the hours in a year that the 
POTW's collection system is subject to CSOs. The preamble to the notice 
reinstating the former regulation did not discuss whether the 
reinstated regulation satisfied the Court's definition of consistency.
    EPA issued its Combined Sewer Overflow (CSO) Control Policy on 
April 19, 1994 (59 FR 18688). The policy was developed in close 
consultation with and supported by representatives of POTWs, 
environmental groups and other stakeholders. An earlier CSO guidance 
memorandum contained in Appendix A to Part 403 is now obsolete, and EPA 
is proposing to remove it from the removal credit regulations.
    EPA has convened a Federal Advisory Subcommittee to advise the 
Agency on its policy toward Sanitary Sewer Overflows (SSOs). The 
presence of SSOs and CSOs results in sewage being discharged to surface 
waters instead of receiving treatment at the POTW. Some members of the 
SSO Federal Advisory Subcommittee have suggested that removal credits 
should not be available if the industrial user discharges upstream from 
an SSO.
    There has been some confusion whether the references in 40 CFR 
403.7(h) to ``Overflows'' apply to SSOs or only to CSOs. Although the 
definition of Overflow appears to encompass both CSOs and SSOs, a 
reference in the regulation to EPA's CSO guidance memorandum could 
suggest that the section applies only to CSOs.
e. Proposal Relating to Overflow Issue

What did EPA propose in its 1997 letter to stakeholders regarding 
overflows and removal credits?

    EPA's 1997 letter contained the same proposal and options outlined 
below. Most commenters supported the draft proposal. A couple of 
commenters opposed restricting removal credits if the discharge could 
exit an overflow point untreated or if it did so more than one percent 
of the time, especially if the POTW is implementing EPA's CSO policy 
and any future SSO policy. Currently, removal credits can be granted in 
such situations if adjusted to account for the percentage of time 
during which overflows occur. EPA, however, questions whether removal 
credits should ever be available for pollutants that are not 
consistently treated, and is proposing that their availability be 
restricted if a POTW's collection system is subject to overflows.

What is EPA proposing regarding overflows and removal credits?

    Today's proposal clarifies that the restrictions on the 
availability of removal credit authority for POTWs with overflows 
applies to POTWs with collection systems subject to either CSOs or 
SSOs. References in the regulation to obsolete guidance on the use of 
construction grants for CSO control would be removed by deleting 
Appendix A as well as deleting other references due to the changes in 
40 CFR 403.7(h)(2) described below. EPA is proposing to make industrial 
users that are upstream of CSO or SSO outfalls ineligible for removal 
credits unless it can be established that their discharges will be 
consistently treated.
    One way to ensure that an industrial user's waste will be 
consistently treated by the POTW is for it to cease discharging its 
waste when necessary to prevent its escaping during an overflow event. 
This option may be practical only for industrial users that need to 
introduce batch discharges to the POTW only periodically. This option 
is in the current regulations; today's proposal

[[Page 39587]]

clarifies that it applies to both CSOs and SSOs.
    EPA is proposing to restrict removal credit authority where 
discharges exit CSO or SSO outfalls untreated. If any overflow point 
receives treatment (e.g., primary clarification at the outfall) that is 
demonstrated to consistently treat a percentage of a pollutant, then 
the POTW responsible for that outfall may apply for removal credit 
authority for that percentage using the procedures in 40 CFR 403.7(b) 
for determining consistent removal. 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 this approach, today's proposal would delete 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.

Will EPA consider other options for removal credits if POTWs have 
overflows?

    EPA is soliciting comment on whether to continue to allow removal 
credits for industrial users upstream of SSO and CSO outfalls 
regardless of whether any treatment occurs at the outfalls. Under the 
existing rule, the allowable credit is reduced by the percentage of 
time a POTW's collection system is subject to overflows. The percentage 
is calculated based on the number of hours that overflows occur during 
a year, and there is no limit on what that percentage may be. By 
authorizing removal credits for POTWs subject to overflows, the current 
rule reduces the possibility that the industrial user will be required 
to pretreat its discharge during periods when overflows are not 
occurring and the POTW would be able to treat it. Because the credit is 
reduced by the percentage of time the system overflows, the total 
authorized discharge would be the same as would be authorized in the 
absence of an overflow. On the other hand, an industrial user's 
discharge might receive no treatment during periods of overflow. To the 
extent that these untreated discharges occur during rain events, water 
quality impacts might be reduced by high flow conditions in the 
receiving water body.
    EPA is soliciting comment on other approaches such as allowing 
removal credits for industrial users whose discharges would be expected 
to exit the collection system via SSOs or CSOs no more than one percent 
of the time. Many categorical pretreatment standards are developed 
assuming that an industrial user will be in compliance with them 99% of 
the time if it employs the best available technology. Allowing removal 
credits where overflows are infrequent enough that the POTW will treat 
the industrial users 99% of the time is consistent with the methodology 
for developing the national standards. This approach, however, also 
could result in wastes receiving no treatment during the infrequent 
overflow events. On the other hand, it would also eliminate the need 
for redundant pretreatment by the industrial user of wastes that are 
eventually treated by the POTW, but only for those industrial users 
whose discharges are subject to overflows less than one percent of the 
time.

J. Electronic Filing and Storage of Reports

a. Background

What are the current reporting and record keeping requirements?

    The Table below identifies the specific Pretreatment Regulations 
for reporting, signature, and records retention applicable to 
industrial users and Control Authorities.

                                 Table A
------------------------------------------------------------------------
               CFR cite                               Topic
------------------------------------------------------------------------
403.6(a)..............................  Category Determination Request.
403.12(b).............................  Baseline Monitoring Report.
403.12(d).............................  Report on compliance with
                                         categorical pretreatment
                                         standard deadline.
403.12(e) and (h).....................  Periodic reports on continued
                                         compliance.
403.12(f).............................  Slug Loading notification.
403.12(g)(2)..........................  24-hour noncompliance reporting.
403.12(i).............................  Annual POTW reports.
403.12(l).............................  Signatory requirement for
                                         Industrial Users.
403.12(m).............................  Signatory requirement for POTWs.
403.12(o).............................  Record keeping requirements.
403.12(p)(1)..........................  Notification of discharge of
                                         hazardous waste.
403.13(g).............................  Variance request.
403.16(c)(3)..........................  Upset Provision.
403.17(c)(1-2)........................  Bypass notification.
------------------------------------------------------------------------

    When EPA promulgated these regulations, the Agency did not 
anticipate technologies for electronic reporting and electronic record 
storage. Consequently, the regulations do not specifically address use 
of electronic reporting technologies.

Why should the regulations allow for an ``electronic option''?

    EPA is evaluating all of its programs for regulatory and procedural 
barriers to allowing electronic reporting and storage of records in 
place of paper copies. The Agency believes electronic reporting will 
help reduce the paperwork burden associated with reporting and produce 
more cost-effective transactions. The Agency intends to promote the 
adoption of electronic reporting in environmental control programs and 
to ensure implementation in a manner that is both consistent across the 
Agency and compatible with the current electronic reporting practices 
in the private sector.

What is EPA's current policy on electronic reporting?

    On September 4, 1996, EPA published a ``Notice of Agency's General 
Policy for Accepting Filing of Environmental Reports via Electronic 
Data Interchange (EDI)'' (61 FR 46684). The purpose of the notice was 
to announce the Agency's general approach for accepting electronic 
filing of environmental reports via EDI. As described in that notice, 
regulated facilities would be able to submit required reports 
electronically using EDI under certain conditions. First, the facility 
would enter into a terms and conditions agreement (TCA) with the Agency 
(as the recipient of the reports). Second, the individual responsible 
for submitting the report would use a Personal Identification Number 
(PIN) that would function as a signature on the reports. Finally, under 
the TCA, the facility would be required to adhere to security and 
audit/control requirements as described in the notice.
    In the September 4 notice, the Agency noted that no specific 
reporting requirement could be satisfied via EDI until after EPA 
developed program-specific implementation guidelines. EPA also noted 
that additional security procedures might be necessary on a program-by-
program basis.

What is EDI?

    EDI is the transmission, in a standard syntax, of unambiguous 
information between computers of organizations that may be external to 
each other. EDI is the most common form of electronic commerce 
currently used in the private sector to transfer information and 
products. EDI functions by using a translator to send data from the 
sender's system through a third party's value added network (VAN) and 
the receiver's translator to the receiver's system. EPA is determining 
whether additional security measures, beyond those

[[Page 39588]]

required in the September 4 policy, are needed for the electronic 
submission of compliance reports using EDI. Today EPA invites comment 
on the use of EDI, and/or other appropriate forms of electronic 
reporting, under the pretreatment program regulations to satisfy any or 
all of the requirements listed in Table A.

What about using the Internet?

    In addition to EDI, the Agency is exploring the electronic 
submission of compliance data via the Internet. Under the auspices of 
the Common Sense Initiative for Metal Finishing, the Regulatory 
Information Inventory and Team Evaluation (RIITE) program in 
cooperation with the Office of Solid Waste (OSW) and the Office of 
Wastewater Management (OWM) is conducting several pilot projects to 
test the feasibility of Internet-based reporting and forms. The RIITE 
Program is developing Internet forms for OSW requirements, as well as 
for the periodic reporting of continued compliance by industrial users, 
as required at 40 CFR 403.12(e). Several POTWs and Industrial Users in 
the RIITE group are engaged in a series of technical, security, and 
human factors tests using the 40 CFR 403.12(e) Internet form.
    The RIITE project is exploring security and operational issues by 
allowing participants to sign forms electronically using digital 
signature/encryption standards. They may also test EDI-Internet 
scenarios. The results of the pilots will be used to identify legal and 
implementation issues associated with the Internet and, where 
appropriate, to expand the September 4 policy to incorporate procedures 
that address the Internet as an avenue for submission of environmental 
reports.

What has the Agency done to address electronic storage of records?

    On November 12, 1996, the Agency recognized the acceptability of 
electronic record storage in the context of hazardous waste manifests 
required under the Resource Conservation and Recovery Act (RCRA). In a 
memorandum to the Safety-Kleen Corporation, the Office of Solid Waste 
noted that ``Safety-Kleen Corp.'s automated manifest record keeping 
system, which uses a scanner and personal computer to generate and 
store electronic image files of completed and signed manifests, 
complies with both the current regulatory requirements addressing the 
retention of signed manifest copies by waste handlers and the RCRA 
statutory requirement that hazardous waste facilities provide RCRA 
inspectors with access to their records for inspection and copying.''
b. Stakeholder Comments

What was the Stakeholder response regarding electronic reporting and 
record keeping?

    In response to EPA outreach, forty-six stakeholders commented on 
the feasibility of some form of electronic reporting and electronic 
storage of pretreatment records. While most commenters agreed with the 
concept of electronic reporting, they felt implementation would be a 
major hurdle due to availability and use of different software and 
hardware by permitting agencies and permittees. Two commenters 
cautioned EPA not to make electronic reporting mandatory, and several 
commenters raised concerns about signatory requirements.
    With regard to electronic storage of data, several commenters 
expressed concerns over preservation of electronic records. One 
commenter stated that ``storage may be adequate for three years, but 
magnetic records are not permanent and changes in hardware and software 
have made it impossible to retrieve digital data after more than about 
five years.'' This same commenter also discussed how over the years we 
have learned to preserve paper documents, but we have not yet learned 
to preserve ``electronic files.''
c. Electronic Reporting Proposal

How does EPA plan to address electronic reporting and recordkeeping?

    EPA is not proposing to amend the regulations to provide for 
electronic reporting and recordkeeping at this time. Instead, EPA plans 
to separately propose changes to Parts 122, 123,and 403 to establish 
criteria or requirements to achieve reliable and secure transmission 
and storage of electronic data in the NPDES and pretreatment programs. 
EPA does not currently plan to require any entity to either submit or 
receive any reports electronically. The Agency merely wants to ensure 
that the option is available where there is a consensus to do so. 
Although EPA would not require electronic reporting, State and local 
authorities would retain discretion under applicable State and local 
law to require it, and EPA may consider some mandatory electronic 
reporting in the future.
    One commenter suggested that a more complete database of 
Pretreatment Program information should be required to go along with 
the additional flexibility provided by this proposal. EPA is 
considering whether, in order to provide full public access to key 
information relating to the Pretreatment Program impacts from larger 
POTWs (e.g., those having dry weather hydraulic flow rates in excess of 
5 MGD), to require some mandatory electronic reporting of required 
annual report information. The timing of this requirement would be 
dependent upon the development of software and reporting protocols as 
well as provision of space in an EPA database. Other options for making 
annual report information publicly available would include mechanisms 
for posting to a web site by EPA, States, or POTWs.
    For purposes of this rulemaking, EPA is soliciting comment on both 
the proposed voluntary reporting initiative, as well as the possible 
future mandatory reporting requirement of pretreatment-related 
information for larger POTWs. Commenters are encouraged to provide both 
technical opinions and data to support their position with regard to 
these initiatives. However, EPA would not promulgate a requirement for 
mandatory electronic reporting of pretreatment-related information 
without first proposing a more detailed set of protocols and 
requirements and receiving public comment on these. EPA also invites 
commenters to discuss any other viable options that would provide more 
ready access to POTW Pretreatment Program information for the public 
and Approval Authorities. Discussion of the appropriate size or other 
criteria that could be used to define POTWs subject to mandatory 
electronic reporting is specifically desirable.
    EPA does not currently plan to propose particular information 
technology for electronic reporting of pretreatment information. 
Instead, EPA will propose regulatory revisions to recognize electronic 
reporting and to establish performance standards for its 
implementation. This will include requirements to ensure appropriate 
levels of data integrity, information security, and personal 
(individual) accountability for the person submitting an electronic 
report.
    Some pretreatment reports may have greater potential for electronic 
reporting than others. The periodic submission of POTW annual reports 
(40 CFR 403.12(i)) and industrial user compliance reports (40 CFR 
403.12(e)) presents electronic reporting opportunities that could 
result in significant savings in time and resources for the regulated 
community and oversight authorities. Other reports that may be 
particularly well suited to electronic reporting include slug loading 
reports, 24-hour noncompliance reports, and bypass and upset 
notifications. For these types of

[[Page 39589]]

intermittent reports, the speed of electronic reporting may improve use 
of the information. Other types of reports, such as the written 
authorization of representatives to sign reports (40 CFR 403.12(l)(3)), 
provide less opportunity for electronic reporting.
    EPA is interested in comment on the appropriateness of electronic 
reporting and record storage to satisfy the various requirements 
identified in Table A. To ensure the continuing viability of self-
monitoring and self-reporting under the CWA, EPA is particularly 
interested in and seeks comment on how to ensure personal 
responsibility and accountability in the individual submitting an 
electronic report. This concern is especially important in light of the 
regulatory provisions of 40 CFR 403.12(n) regarding fraud and false 
statements. In the upcoming NPDES rule, EPA plans to propose general 
electronic reporting criteria to address necessary security and 
accountability. Prior to promulgation of final regulations authorizing 
electronic reporting, the Agency will attempt to integrate the 
``lessons learned'' from the ongoing projects described above, 
particularly, with respect to these issues. EPA is soliciting comments 
on electronic filing of reports and requests information on any forms 
of electronic commerce that can be utilized for environmental reporting 
and records storage. The Agency is also soliciting comment on the costs 
associated with the implementation of electronic reporting.

K. General Permits

a. Existing Rule

Are POTWs allowed to issue general permits to control industrial users?

    Currently, the Pretreatment Regulations do not prohibit the use of 
general permits to control the discharge of wastes from industrial 
users (IUs) to POTWs. POTWs may use general permits to control non-
significant industrial users. Section 40 CFR 403.8(f)(1)(iii) requires 
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 at 55 FR 30082 (July 24, 1990) emphasizes the importance of 
POTWs evaluating SIUs on an individual basis to determine the need for 
individual requirements as necessary. This directive for site specific 
requirements makes impractical the use of general permits to control 
SIUs.

What benefits do general permits provide?

    Comments received in response to EPA's outreach efforts indicated 
that most POTWs believed it would be beneficial to be able to issue 
general permits to similar industries. As explained in the ``USEPA 
NPDES Permit Writers' Manual'' (EPA 833-B-96-003, December 1996), the 
use of general permits allows the permitting authority to allocate 
resources in a more efficient manner and to provide more timely permit 
coverage. For example, direct dischargers with common characteristics 
may be covered under a general permit without 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, Control Authorities 
might benefit from the use of controls for discharges from SIUs to 
POTWs which are similar to the general permits used in the NPDES permit 
program (40 CFR 122.28).
b. Stakeholder Comments

What changes did EPA suggest during its stakeholder outreach efforts?

    EPA suggested providing Control Authorities the ability to issue 
general permits. These general permits would be available to members of 
industrial user groups with substantially the same processes being used 
and the same wastewaters being discharged. General permits would not be 
able to be used in complex permitting situations where there are 
production-based standards, the combined wastestream formula is 
necessary, or where mass limits are necessary.

How did stakeholders respond?

    The majority of commenters supported the proposal to allow Control 
Authorities to use general permits. One commenter pointed out that 
granting general permitting authority within the industrial 
Pretreatment Program has the potential to allow large scale paperwork 
and other personnel efficiencies to take place.
c. Today's Proposal

What is EPA proposing?

    EPA is proposing to allow the use of general permits to regulate 
significant industrial users (SIUs) in certain circumstances. General 
permits could only be issued for SIUs that are covered by 
concentration-based standards or best management practices. 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.
    Because the development of mass limits involves calculations unique 
to each facility, general permits could not be used for SIUs subject to 
mass limits. For the same reason, general permits would not be 
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).
    EPA is requesting comment on whether there are situations where the 
preceding restrictions might limit the use of general permits 
inappropriately. Commenters are encouraged to provide specific examples 
of industries or groups of facilities for which relaxation of one of 
these restrictions, in order to allow the use of a general permit, 
would be appropriate, and to discuss how the problem of adequately 
specifying requirements in a general permit for dissimilar facilities 
or those requiring site-specific calculations would be addressed.
    For an individual SIU to be covered by a general permit, it must 
file a Notice of Intent to be covered by the general permit unless the 
POTW has established another mechanism that serves this function. Under 
such a mechanism, the industrial user should identify its production 
processes, types of waste generated and the monitoring location or 
locations at which all regulated wastewaters will be monitored.
    This proposal would not relieve the SIU that is subject to the 
general permit from any reporting or compliance obligations under Part 
403.

How would POTWs implement general permits?

    A POTW would have to have the necessary legal authority if it 
wanted to issue general permits. General permits would have to be 
enforceable to the same extent as an individual permit. The POTW should 
also have enforcement authority against industrial users that fail to 
file the required Notice of Intent or other designated mechanism (e.g., 
an IU that fails to file is subject to enforcement for discharging 
without a permit as prescribed in the POTW's enforcement response 
plan).
    The POTW would need to develop the general permit and provide 
notice that the permit is available. The general permit would need to 
specify exactly

[[Page 39590]]

what characteristics or conditions render an industrial user eligible 
for coverage under the general permit. The general permit would have to 
impose all of the conditions of individual permits listed in 40 CFR 
403.8(f)(1)(iii)(A) to (E), except that the monitoring location may be 
identified as that listed in a facility's Notice of Intent or other 
mechanism designated by the POTW.
    A POTW could make coverage by the general permit mandatory or 
optional. In either case, if an industrial user is to be covered by the 
general permit, it must file the Notice of Intent or meet other 
requirements established by the POTW to be covered by the general 
permit.
    This modification should help POTWs by providing a cost-effective 
method to cover large numbers of similar facilities under a single 
permit. This is expected to reduce the administrative burden of issuing 
separate permits to similar facilities.
    Today's proposal would not preclude Control Authorities from 
issuing individual permits where necessary. Today's proposal also would 
not restrict Control Authorities' existing authority to use general 
permits to regulate facilities that are not considered significant 
industrial users.
    It is important to note that in the case where a Control Authority 
does not have the authority or procedures for issuing general permits 
in its approved program, a shift by the POTW to a general permit system 
for a given group of significant industrial users would be considered a 
substantial modification under 40 CFR 403.18(b)(3). The annual report 
would indicate which SIUs are covered by each general permit.
    EPA is requesting comment concerning the mechanism POTWs should use 
for industrial users to request coverage under a general permit. The 
NPDES permit program requires facilities to file a notice of intent to 
be covered by a general permit. However, since NPDES permit issuance 
and processing procedures are very different from those used for the 
pretreatment program's control mechanisms, a mechanism other than a 
notice of intent may be appropriate for pretreatment general permits.

L. Best Management Practices (40 CFR 403.5; 403.8(f); and 
403.12(b),(e), and (h))

a. Existing Rule

What are best management practices?

    Best management practices (BMPs) may be generally defined as 
practices that are intended to keep pollutants out of a facility's 
wastestream or from reaching a discharge point and may be contrasted 
with numeric effluent limits that regulate the pollutants in a 
wastestream. Although the Pretreatment Regulations do not define 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 distinct uses of BMPs as pretreatment limitations. 
These are local limits established by the POTW and categorical 
Pretreatment Standards established by EPA.

What regulations address the use of BMPs as local limits?

    Currently, the Pretreatment Regulations do not address the use of 
BMPs as local limits. For example, 40 CFR 403.5(c) requires POTWs to 
develop ``specific limits'' and ``specific effluent limits.'' It is not 
clear whether POTWs could satisfy this requirement by developing BMPs 
rather than numeric limits.
    The question of whether a BMP falls within the meaning of ``limit'' 
or ``local limit'' arises throughout the regulations. For example, it 
is not clear whether the word ``limit'' includes BMPs for the purpose 
of the local permitting requirements under 40 CFR 403.8(f)(1)(iii)(C).
    The ``Guidance Manual on the Development and Implementation of 
Local Discharge Limitations Under the Pretreatment Program'' (EPA 833/
B-87/202, December 1987) provides general information on the use of 
BMPs as local limits. Specifically, the guidance explains, ``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. 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 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.'' The guidance 
then provides more detailed information on the different ways 
management plans can be applied.

What regulations address the use of BMPs as categorical standards?

    Certain categorical Pretreatment Standards allow the use of BMPs 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 
provide for reporting compliance data related to BMPs, the current Part 
403 Pretreatment Regulations do not. See 40 CFR 403.12(b), (d) & (e). 
The existing requirements focus on sampling data to demonstrate 
compliance with numeric limits rather than documentation to determine 
compliance with a BMP.
b. Stakeholder Comments

What changes did EPA suggest during its stakeholder outreach efforts?

    EPA suggested that POTWs be allowed to use best management 
practices (BMPs) as local limits. This would provide POTWs the option 
currently available to NPDES permit writers under 40 CFR 122.44(k), 
which allows the use of BMPs in lieu of numeric effluent limits. EPA 
also suggested revising the reporting requirements for numeric limits 
so that they would encompass BMPs.

How did the stakeholders respond?

    Most stakeholders indicated they supported the proposal. Some of 
the commenters provided examples of how they are already using BMPs to 
control certain wastewater discharges where they found it impractical 
to apply a numeric effluent limit. Some stakeholders, however, did not 
feel it was appropriate to provide this authority to POTWs. These 
comments will be addressed in the following section devoted to 
``Today's proposal.''
c. Today's Proposal

What is EPA proposing?

    EPA is proposing to clarify that best management practices 
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 permit requirements under 40 CFR 
403.8(f)(1)(iii)(C).

[[Page 39591]]

    EPA is also proposing to modify 40 CFR 403.12(b), (e) & (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.

When could POTWs develop BMPs?

    EPA anticipates that POTWs will elect to use BMPs instead of 
numeric local limits in circumstances similar to their use in the NPDES 
permits program. NPDES permits may require compliance with BMPs in 
cases where calculation of numeric effluent limitations is not feasible 
or as a supplement to numeric limits set in a guideline or as otherwise 
appropriate to meet the requirements of the Clean Water Act (40 CFR 
122.44(k)). BMPs may be appropriate for regulating releases when the 
types of pollutants vary greatly over time, when chemical analyses are 
inappropriate or impossible, and when other discharge control options 
are inappropriate.
    One commenter felt that BMPs should not be allowed ``in lieu of'' 
numeric limits; rather, BMPs should only be allowed in addition to 
numeric limits because BMPs could not be set for specific pollutants. 
Another commenter felt that BMPs could not be allowed as local limits 
because the Clean Water Act did not provide authority for them as local 
limits.
    For the BMPs to be considered local limits under 40 CFR 403.5(c), 
they 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. During the technical evaluation for local limits, 
the POTW will determine the maximum allowable headworks loadings (MAHL) 
for pollutants of concern. This MAHL will then be allocated to the 
different contributing sectors of the service area, such as domestic 
loadings, commercial loadings, industrial loadings and a safety factor. 
Based on these considerations, the POTW will decide how to control the 
different contributing sectors in order to protect against pass through 
and interference. Often the POTW simply allocates a portion of the 
loading to control industrial contributions; this is considered to be 
the maximum allowable industrial load (MAIL). The MAIL is then 
converted into the local limit which is often expressed as an across-
the-board concentration applicable to all industrial sources or all 
``users of the POTW.'' This is not the only way local limits can be 
developed. Another option available to the POTW is to apply the MAIL to 
all industrial and commercial sources and to use a mixture of BMPs and 
numeric limits to control industrial and commercial sources of 
pollutants. Whatever the allocation scenario, the BMPs are developed by 
the POTW to protect against pass through and interference, and are 
local limits.

What input does EPA need on this proposal?

    EPA is requesting comment on the appropriateness of the use of best 
management practices as 40 CFR 403.5(c) limits. EPA is requesting 
examples of instances where BMPs may be more appropriate or may provide 
better environmental protection than numeric effluent limitations.

M. Significant Noncompliance Criteria  (40 CFR 403.8(f)(2)(vii))

a. Existing Rule

How is significant noncompliance currently defined?

    ``Significant Noncompliance'' (SNC) is defined in 40 CFR 
403.8(f)(2)(vii) to include violations that meet one or more of eight 
criteria. The criteria are: (1) Chronic violations of discharge limits 
(where 66 percent 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. The 
modification was modeled after the criteria under the NPDES program 
used in determining 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 annually publish a list of industrial users 
in SNC at any time during the previous twelve months. The POTW must 
publish this list in the largest daily newspaper published in the 
municipality in which the POTW is located. The Agency emphasizes that 
industrial users are liable for any violation of applicable 
Pretreatment Standards and requirements and strongly encourages Control 
Authorities to take some type of enforcement response for each such 
instance of noncompliance. In fact, the very underlying premise of the 
Enforcement Response Plan is that there will be some type of response 
for all instances of noncompliance. Whether an industrial user is 
identified as being in SNC does not determine the type of enforcement 
action that should be taken. 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).
b. Stakeholder Comments

On what parts of the SNC criteria is EPA seeking comment?

    EPA is not proposing to amend the entire provision on SNC, nor is 
the Agency seeking comment on all of it. Instead, EPA is proposing 
limited changes and seeking comment on a number of options for a few 
specific

[[Page 39592]]

provisions. EPA considered the recommendations and issues related to 
SNC suggested by a number of commenters, including the WEF/AMSA 
workgroup. These issues are discussed below.
1. Publication
    Currently, POTWs are required to annually publish a list of 
industrial users which, at any time during the previous twelve months, 
were in significant noncompliance. This list must be published in the 
largest daily newspaper published in the municipality in which the POTW 
is located (40 CFR 403.8(f)(2)(vii)). The purpose of this provision is 
to notify the public of violations. The provision also offers a 
disincentive for violating because of the resulting ``bad press.''
    Commenters have suggested a number of possible revisions to this 
provision. One would allow publication in any daily newspaper published 
in the municipality instead of the ``largest daily newspaper.'' Such a 
modification may result in lower costs to the municipality but it may 
not be as effective in providing (1) notice to the public or (2) a 
deterrent effect on the industrial user. One commenter suggested 
requiring a press release to all daily papers discussing the 
publication and leaving the actual choice of where to publish up to the 
POTW. Another commenter suggested requiring the industrial users to pay 
for the publication.
    Another option for amending this provision is focusing on the 
circulation of the newspaper. For example, the Agency could require 
publication in the newspaper with the largest circulation in the 
municipality in which the POTW is located. This could be a daily or 
weekly (or other frequency) paper. A number of commenters supported 
this approach, although one noted how difficult it would be to find out 
what a paper's circulation was. After considering these various 
suggestions, EPA is today proposing to modify this requirement to be 
consistent with the July 17, 1997, amendments to Part 403 regarding 
modifying POTW Pretreatment Programs (62 FR 38406). Under the newly 
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 meaningful public notice. EPA believes that such a performance 
standard for the Control Authority appropriately balances the need to 
allow flexibility to select choices available in a particular 
community, with the need to ensure effective public notice and 
deterrence of ``bad actors.''
    EPA is also seeking comment on an appropriate definition for 
``meaningful public notice'' to ensure some level of consistency across 
the pretreatment programs. One option for defining the phrase is to tie 
it to the circulation of the paper. For example, circulation of the 
chosen paper must be to at least some specified percent of the POTW's 
service population.
    A number of commenters expressed concern about where in a paper the 
notice could be found. One commenter suggested EPA should specify where 
the notice should be placed (e.g., somewhere more prominent than the 
Public Notice section). Because there is no existing requirement on 
where to publish the notice, POTWs are currently free to publish the 
notice in whatever section they feel is most appropriate.
    EPA is seeking comment on this and any other appropriate 
modification to the publication requirements.
2. Applicability
    Under the existing regulations, SNC can apply to any industrial 
user. The WEF/AMSA workgroup recommended that SNC should only be 
applied to significant industrial users (SIUs). EPA supports this 
recommendation and is proposing to modify the regulations to apply SNC 
only to SIUs. This approach is consistent with the NPDES SNC policy 
which only applies to major dischargers. See ``Revision of NPDES 
Significant Noncompliance (SNC) Criteria to Address Violations of Non-
Monthly Average Limits,'' memorandum from Steven A. Herman, Assistant 
Administrator for the Office of Enforcement and Compliance Assurance, 
September 21, 1995. Additionally, this modification should cut down on 
administrative burdens and allow better resource targeting. POTWs have 
authority to designate industrial users as SIUs. This ensures the 
POTW's ability to address all potentially problematic users adequately. 
The Agency wants to make it clear that this change is focused 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 would, of 
course, have the option of publishing non-significant industrial users 
along with their SIUs in SNC.
    One commenter was opposed to having SNC apply only to SIUs, noting 
that such an approach would appear to force larger users to shoulder 
the regulatory burden for all users. They were concerned that smaller 
users, who may in the aggregate have the potential to harm the system, 
would go unaddressed. The distinction EPA is making today is not 
focused on the size of the facility; rather, we focus on those 
dischargers with the largest potential to impact the system. EPA 
continues to strongly encourage POTWs to use their authority under 
existing 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. As noted previously, EPA expects appropriate 
enforcement to be taken for each violation by any industrial user.
    EPA is seeking comment on whether parts of the SNC criteria should 
still apply to any industrial user. For example, the regulations could 
continue to require that any industrial user whose discharge (1) 
causes, alone or in combination with other discharges, pass through or 
interference (40 CFR 403.8(f)(2)(vii)(C)), (2) causes imminent 
endangerment to human health, welfare or the environment, or (3) has 
resulted in the POTW's exercise of its emergency authority (40 CFR 
403.8(f)(2)(vii)(D)) be considered in SNC. Some commenters felt that 
this was not necessary since these industrial users should already be 
designated as SIUs and, therefore, subject to SNC. One commenter noted 
that POTWs should be able to use the provision under 40 CFR 
403.8(f)(2)(vii)(H) (``any other violation or group of violations which 
the Control Authority determines will adversely affect the operation or 
implementation of the local pretreatment program'') to address these 
non-significant industrial users. Other commenters expressed concern 
that POTWs were not designating these types of dischargers as SIUs, and 
that if today's proposal were adopted, information on the compliance 
status of many industrial users with a reasonable potential for causing 
violations would be unavailable and the disincentive resulting from SNC 
designation would be lost. One option for addressing this issue is to 
add a specific note that in addition to all SIUs that meet the 
criteria, POTWs must include any non-significant industrial users who 
meet a subset of the criteria. One commenter proposed that POTWs be 
given a reviewable option of not including an industrial user as being 
in SNC even though it meets the criteria.

[[Page 39593]]

When the Control Authority exercises this option, it must explain its 
reasoning in its annual report and the Approval Authority may veto that 
decision.
    Another commenter raised the issue of applying SNC to all 
categorical industrial users even if they are not SIUs. As noted 
earlier in the preamble, EPA is proposing to allow Control Authorities 
to exempt certain ``non-significant'' categorical industrial users from 
the definition of SIU.
    EPA is seeking comment on these issues and on today's proposed 
language.
3. Daily Maximum or Average Limit Violations
    Currently 40 CFR 403.8(f)(2)(vii)(A), (B), and (C) address 
violations of daily maximum or longer-term average limits.
    Commenters have recommended revising these subparagraphs to address 
a broader range of violations, not just daily maximum or monthly 
average limits. EPA is proposing to modify the provisions to address 
Pretreatment Standards (defined under 40 CFR 403.3(j)). (EPA has 
included language addressing both Pretreatment Standards and 
Pretreatment Requirements under subsection (C) where the provision is 
not specifically tied to a numeric limitation.) This is important since 
some local limits may be expressed as instantaneous limits or narrative 
limits. Furthermore, the revised language addresses other types of 
requirements like operational standards. This is generally consistent 
with EPA's recent revision to its NPDES SNC policy where EPA broadened 
the criteria to address non-monthly average limit violations. EPA 
supports this approach and is proposing to modify the regulation 
accordingly. EPA notes, however, that the WEF workgroup recommended 
against applying this to instantaneous limits. EPA is seeking comment 
on this issue and on today's proposed language.
    Under the NPDES SNC policy, when a parameter has both a monthly 
average and a non-monthly average limit, a facility is only considered 
in SNC for the non-monthly average if the monthly average is also 
violated to some degree (but less than SNC). EPA is seeking comment on 
whether such a caveat is also appropriate for the pretreatment program.
4. Technical Review Criteria
    Under the existing regulations, technical review criteria (TRC) are 
numeric thresholds used to define a subcategory of SNC based on the 
magnitude of an effluent violation. A TRC violation occurs where 33 
percent or more of all of the measurements for each pollutant parameter 
taken during a six-month period equal or exceed the product of the 
daily maximum limit or the average limit multiplied by the applicable 
TRC. TRC equals 1.4 for BOD, TSS, fats, oil, and grease and 1.2 for all 
other pollutants except pH (40 CFR 403.8(f)(2)(vii)(B)).
    The WEF/AMSA workgroup recommended revising the use of TRC to 
consider the impact of analytical variability and ``method detection 
limit'' methodologies. Members raised questions about the technical and 
scientific basis for the TRC with respect to pretreatment violations. 
They also recommended that TRC violations be assessed only when the 
criteria are exceeded by a magnitude greater than the precision of the 
test. For example, if the methodology is 0.01 mg/l and the TRC level is 
0.13, a reading of 0.14 would not be considered an exceedance of the 
criteria.
    The existing provision is 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. Because the TRC is derived from the Quarterly 
Noncompliance Report (QNCR) language under the NPDES program, EPA 
looked at the record for the QNCR for information on its basis. The 
NPDES criteria were developed by the Regions and reviewed by the States 
and the Compliance Task Force of the Association of State and 
Interstate Water Pollution Control Administrators. EPA chose the TRC to 
provide simple criteria that could be applied to effluent data without 
requiring additional information on production levels, monitoring 
frequencies, analytical methods, or the basis for a limit. Such 
criteria are easy to apply to all violations and are easy for the 
public and permittee to understand. Furthermore, EPA made it clear that 
it did not intend the TRC to be related to the notion that a well-
operated treatment plant varies somewhat in performance and may exceed 
its permit limit some percent of the time.
    The TRC is merely a criterion that defines effluent violations 
which must be reported on the QNCR. EPA used the concept of a ``well-
operated treatment plant'' to establish some regulatory limits for the 
Best Available Technology Economically Achievable (BAT) (see examples 
48 FR 32469 and 48 FR 11839) that ensure that the plant operates and 
maintains the proper technology. Variations in measurements due to 
analytical methods, treatment system operation, and other sources 
inherent in this data set, are already considered in the development of 
the BAT limitation for national categorical standards. In fact, EPA 
noted that ``sound regulatory policy dictates that (BAT) levels be 
chosen that lessen the necessity for analytical disputes without 
setting the limits so high that inadequate treatment is allowed'' (48 
FR 11839). Similar considerations may be made for water quality based 
effluent limits in NPDES permits to deal with limits below detection 
levels and the statistical basis for permit limits. See EPA's 
``Technical Support Document for Water Quality-based Toxics Control,'' 
1991. The TRC is not intended to be an additional allowance for 
variability in treatment or effluent monitoring; rather, it represents 
one characteristic (magnitude) of effluent violations which EPA 
considers to be of concern and serves as a threshold for mandatory 
reporting of effluent violations (50 FR 34652).
    The same considerations apply to the TRC as it is applied to 
categorical standards in the pretreatment program and may be relevant 
for local limits. EPA believes the magnitude of an effluent violation 
is a significant factor and needs to be addressed under the 
pretreatment program. At the same time, EPA recognizes that there may 
be significant, site-specific variability in the development and 
implementation of local limits, so that a single multiplicative factor 
may not be appropriate for applying TRC in every case.
    EPA is not proposing to amend the TRC (other than as discussed 
above under section 3 ``Daily maximum or average limit violations'') 
today. However, EPA is seeking comment on this issue, particularly as 
it relates to local limits. EPA is interested in suggestions for 
workable alternatives to the current TRC provisions that would ensure 
that the magnitude of a violation continues to be incorporated in the 
definition of significant noncompliance, and that would not unduly 
increase the workload on either the Control Authority or the Approval 
Authority.
5. Late Reports
    The existing regulations require that dischargers who submit 
reports 30 days late be considered in SNC. This is consistent with the 
NPDES SNC approach for late reports.
    SNC for late reports is a very contentious issue. Some commenters 
stated that reporting is important in and of itself and it serves a 
vital role in ensuring adequate implementation and oversight of the 
pretreatment program. Some commenters thought reporting was critical, 
but Control Authorities need more flexibility in determining

[[Page 39594]]

when a late report resulted in SNC. Other commenters stated reporting 
was important but it should not be equated with effluent violations. 
The WEF/AMSA workgroup recommended that EPA provide Control Authorities 
with greater flexibility but did not offer specific recommendations.
    Many commenters did offer specific suggestions for amending this 
provision. One option would be to tie SNC to a pattern of late 
reporting, rather than requiring a single late report to trigger SNC 
status. The regulation could leave it to the Control Authority to 
determine what constitutes a ``pattern of late reporting'' warranting 
SNC, or, alternatively, the regulation could specify a numeric 
criterion, such as when 33 percent or more of the required reports in a 
specified reporting period are more than 30 days late. This would be 
consistent with the current provisions regarding when TRC violations 
trigger SNC.
    Another approach would be to tie SNC to whether the late reports 
indicated that a monitoring or numeric limitation violation had 
occurred. For example, the regulation could allow the Control Authority 
to waive SNC when a late report showed no violations. This might also 
be tied to a requirement that the Control Authority receive and 
document a satisfactory response from the SIU in accordance with its 
Enforcement Response Plan. Such waiver authority might also be limited 
in its frequency of use (e.g., to no more than once in a two or five 
year period) or in the degree of lateness for which it could be used 
(e.g., only for reports received within six months).
    Another option might be to limit the types of late reports that may 
be considered SNC (e.g., only those specifically required under 40 CFR 
403.12). Still another option would be to extend the time period. This 
could be done by allowing 45 or 60 days before a late report becomes 
SNC. Another alternative would be to retain the 30 day period before a 
late report becomes SNC, but to require newspaper publication only for 
reports that are more than 45 days late.
    Another approach would be to provide the Control Authority with 
total discretion in determining whether reporting violations 
constituted SNC. A variation on this approach would be to allow Control 
Authorities a reviewable option of not including an SIU as being in SNC 
for a late report. Under this approach, when Control Authorities 
exercised this option, they would have to explain their reasoning in 
their annual report and the Approval Authority could challenge that 
decision. Some combination of these options may also be considered.
    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. At the same time, EPA 
appreciates the concerns of commenters who believe that an occasional 
late report does not rise to the level of significance of most of the 
other SNC criteria, especially if it shows no substantive violations.
    Consequently, EPA is seriously considering revising the late 
reporting criterion for SNC. However, because of the wide variety of 
suggestions that have been offered, EPA is not proposing a specific 
change at this time. EPA believes it needs more time to consider all of 
these options before making a final decision. EPA is thus soliciting 
comment on all of the options discussed here, or combination of these 
options, that stakeholders would recommend. Based on its further 
considerations and comments received, EPA may include a revision, 
consistent with the options discussed here, to the late reporting 
criterion for SNC in the final rule.
    EPA wishes to emphasize that the discussion in this section and the 
changes being considered relate solely to late reporting as a criterion 
for SNC status. EPA reminds commenters that all late reports, even 
those that are only one day late, are a violation of pretreatment 
regulations.
6. Rolling Quarters
    Section 40 CFR 403.8(f)(2)(vii)(A) and (B) concern violations 
evaluated over a six-month period. EPA's policy is that these criteria 
should be evaluated on a rolling quarter basis (i.e., a POTW should 
evaluate an industrial user's performance at the end of a quarter using 
data from the previous six months). EPA does not necessarily need to 
amend the regulations to change its policy.
    The WEF/AMSA workgroup suggested using a static six-month period. 
Some commenters have suggested using a static six-month calendar period 
(e.g., January-June and July-December). Others have suggested using a 
rolling six-month period that begins with a violation.
    Sampling once every six months is only a minimal requirement and 
industrial users are free to sample more often. Several commenters 
expressed concern over SNC determinations based on only one data point 
and others expressed concern over resampling. However, if a violation 
is detected, 40 CFR 403.12(g)(2) already requires the industrial user 
to resample and submit the results within 30 days of becoming aware of 
the violation. It would seem prudent for SIUs to sample early in any 
quarter so that, if there is a violation, they can take action to 
correct any problem and have enough time to resample and demonstrate 
compliance. EPA expects SNC determinations based on one data point will 
be rare.
    Some commenters expressed concern over being published in the 
newspaper for being in SNC for two years where violations were shown in 
October, November, and/or December. Again, EPA believes that additional 
sampling can often balance the initial violation during the next 
quarter (January through March) if the user has returned to compliance, 
therefore, there would be no SNC violation and no requirement to 
publish. A September 9, 1991, memorandum from Michael B. Cook, Director 
of EPA's Office of Wastewater Enforcement and Compliance, also 
discusses this issue. ``If 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' 
(``Application and Use of the Regulatory Definition of Significant 
Noncompliance for Industrial Users,'' EPA memorandum to Water 
Management Division Directors, Regions I-X and Approved Pretreatment 
State Coordinators, September 9, 1991). In other words, where the 
pretreatment year is a calendar year, and an IU had a violation in 
December 1996 causing it to be in SNC, it would have to be published in 
the newspaper in 1997. If that same IU did not violate any Pretreatment 
Standard or requirement from January through December 1997, it would 
not need to be published in 1998. If there were any violations of any 
Pretreatment Standards or requirements in 1997 (regardless of the 
nature or magnitude), the IU would be required to be published in the 
newspaper in 1998.
    EPA is seeking comment on whether it should go further in allowing 
Control Authorities to waive the second publication where that second 
publication is based solely on the violations occurring in the last 
quarter of the previous pretreatment year. Such a waiver would not be 
available where an SNC determination is based on

[[Page 39595]]

violations in the first quarter. For example, (assuming the POTW uses a 
calendar year) where an IU does monthly sampling and has one daily 
maximum violation for zinc in September, October, November, and 
December (1996) and January (1997), the IU would have to be published 
in 1996 for the violations from September through December, and would 
be published in 1997 for violations from October through January. The 
second publication is not based solely on violations of the last 
quarter of the previous year because SNC has been determined using data 
from the first quarter of the pretreatment year. The pretreatment year 
is based on the annual report. Again, note that EPA fully expects POTWs 
to take appropriate enforcement for all the violations in these 
examples. The only issue being discussed is whether the POTW should 
publish the user twice for the same violation. This waiver authority 
could also be subject to Approval Authority approval. Another option 
would be to base SNC determinations for violations occurring in the 
first quarter on only three months of data. Thus, if the SNC criteria 
were exceeded based on either the first three months or the first six 
months of data, the facility would be placed in SNC that year. This 
would eliminate any possibility of a facility being placed in SNC twice 
for the same violations.
    EPA uses the rolling quarter approach in the NPDES program. Some 
commenters said this approach is too complicated while others said that 
once the policy is explained, it is quite easy to use. Several 
commenters expressed concern that the rolling quarter policy was not 
being used consistently across the country. One option that would 
alleviate this problem is to amend the regulations to codify the 
rolling quarter approach making it mandatory for all programs.
    EPA is proposing no specific change but is considering the options 
discussed above. EPA is seeking comment on this issue.
c. Today's Proposal and Request for Comments

What modifications to 40 CFR 403.8(f)(2)(vii) is EPA proposing?

    EPA is proposing three modifications to the SNC provision today. 
First, EPA is proposing 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. Second, EPA is proposing to amend the SNC criteria so that they 
must only be applied to significant industrial users. Third, EPA is 
proposing to amend 40 CFR 403.8(f)(2)(vii)(A), (B), and (C) to address 
more than just daily maximum and monthly average limits.

N. Miscellaneous Changes

1. Signatory Requirements for Industrial User Reports and POTW Reports 
(40 CFR 403.12(l) and (m))
a. Existing Rule
    Sections 40 CFR 403.12(l)(1)(ii) and 40 CFR 122.22(a)(1)(ii) 
contain identical requirements for when a plant manager may sign a 
report required for the Pretreatment and NPDES permitting programs as a 
responsible corporate officer. Currently, in order to sign on behalf of 
a company, the manager must manage a facility with more than 250 
employees or $25 million in sales or expenditures. On December 11, 
1996, EPA proposed to revise 40 CFR 122.22(a)(1)(ii) to replace the 
numeric criteria for designating an appropriate signer with more 
flexible narrative criteria (61 FR 65270). Rather than specify the 
resource levels the signer must manage, the revised criteria would 
specify the authority and responsibilities a manager must have in order 
to sign the report. The revision would require the manager to have the 
authority to make capital investment decisions and assure long term 
environmental compliance. In the preamble to the proposal, EPA noted 
that those who are eligible under the current numeric criteria would 
remain eligible under the proposed rule. In response to comments 
received on the proposal, EPA intends to require that the manager have 
the responsibility for making major capital investment recommendations 
rather than the unilateral authority to make such decisions.
    Section 403.12(i) also requires reporting; however, in this case 
the report concerns the status of Pretreatment Program activities and 
it is submitted annually by the POTW to the Approval Authority. Section 
403.12(m) requires this report 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.''
b. Today's Proposal
    EPA is proposing to revise the signatory requirements for 
industrial users at 40 CFR 403.12(l)(1)(ii) to adopt the same language 
that EPA plans for requirements for direct dischargers at 40 CFR 
122.22(a)(1)(ii).
    EPA is also proposing to revise the signatory requirements for POTW 
reports at 40 CFR 403.12(m) so the requirement will be more consistent 
with signatory requirements in the current 40 CFR 122.22(a). EPA is 
proposing to modify the existing regulatory language to allow the duly 
authorized employee to be an individual or position 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 must 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.
2. Net/Gross Calculation (40 CFR 403.15)
a. Existing Rule
    Net/gross calculation allows consideration of pollutants in intake 
water in development of technology-based limitations. EPA modified 40 
CFR 403.15, Net/Gross calculation, 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. 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 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 resulted 
in an ``and'' test in which both conditions would have to be met. As 
there are no categorical guidelines which specify application on a net 
basis, in effect this was a prohibition on the use of the net/gross 
provision in the Pretreatment Program.
b. Today's Proposal
    EPA is proposing 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 package. Categorical Pretreatment Standards can 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. Requirement To Report All Monitoring Data (40 CFR 403.12(g))
a. Existing Rule
    EPA changed 40 CFR 403.12(g) in 1988 to require all monitoring by 
industrial users to be reported. This was

[[Page 39596]]

done to prevent an industrial user that performs extra sampling from 
selecting the most favorable monitoring result to report to the Control 
Authority. At the time of this change (1988), only categorical 
industrial users (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, and required all 
significant noncategorical 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 significant industrial users 
(SIUs), categorical and noncategorical, to report all monitoring 
results to the Control Authority.
b. Today's Proposal
    Today, EPA is proposing to change 40 CFR 403.12(g)(5) to require 
all SIUs to report all monitoring results for regulated parameters at 
the point of compliance, obtained using procedures specified in 40 CFR 
Part 136, to the Control Authority.
4. Notification by Industrial Users of Changed Discharge (40 CFR 
403.12(j))
a. Existing Rule
    In 1988, the regulations were changed to add 40 CFR 403.12 (j) 
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.
b. Today's Proposal
    Today, EPA is proposing to expand this requirement so the 
industrial user must notify the Control Authority of any substantial 
change in volume or character of pollutants in the user's discharge to 
the POTW, and in cases where the Control Authority and the POTW are 
different organizations, the industrial user would notify both the 
Control Authority and the POTW of any substantial change in volume or 
character of pollutants in the user's discharge to the POTW.

III. Regulatory Requirements

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4,1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to review by the Office of Management and Budget 
(OMB) 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.
    It has been determined that this rule is a ``significant regulatory 
action'' under the terms of Executive Order 12866. 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. Executive Order 12875

    Under Executive Order 12875, EPA may not issue a regulation that is 
not covered by statute and that creates a mandate upon a State, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local and tribal 
governments, the nature of their concerns, any written communications 
from the governments, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 12875 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of State, local and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create a mandate on State, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. The rule provides options for streamlining procedures to 
provide Approval Authorities, Control Authorities and industrial users 
with additional flexibility to run their pretreatment programs in a 
more cost-effective and independent manner. Accordingly, the 
requirements of section 1(a) Executive Order 12875 do not apply to this 
rule. Nevertheless, to ensure that the proposed regulatory changes 
would meet the needs of the regulated community, EPA sought the 
involvement of those persons who are intended to benefit from or 
expected to be burdened by this proposal before issuing a notice of 
proposed rulemaking. These outreach efforts are described in detail in 
the introduction to this preamble.

C. Executive Order 13045

    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 E.O. 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 rule is not subject to E.O. 13045 because it is not an 
economically significant rule under the guidelines provided by E.O. 
12866 and it does not establish an environmental standard intended to 
mitigate health or safety risks. The proposed amendments to 40 CFR Part 
403 would reduce the technical and administrative burden for Approval 
Authorities, Control Authorities and industrial users. As such, the 
proposed rule does not impose any new or amended standards for 
discharged wastewater or the sludge resulting from treatment by a POTW. 
With respect to the effects on children, the collection, treatment and 
disposal of wastewater occurs in a restricted system (e.g., buried 
sewer lines and fenced wastewater treatment plants) that children are 
unlikely to come in contact with on a routine basis. The proposed rule 
has no identifiable direct impact upon the health and/or safety risks 
to children and adoption of the proposed regulatory changes would not 
disproportionately affect children. The proposed rulemaking is thus in 
compliance with the intent and requirements of the Executive Order.

D. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or

[[Page 39597]]

uniquely affects the communities of Indian tribal governments, and that 
imposes substantial direct compliance costs on these communities, 
unless the federal government provides the funds necessary to pay the 
direct compliance costs incurred by the tribal governments, or EPA 
consults with those governments. If EPA complies by consulting, 
Executive Order 13084 requires EPA to provide the Office of Management 
and Budget, in a separately identified section of the preamble to the 
rule, a description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.'' There are no 
pretreatment programs administered by Indian tribal governments. The 
proposed rule will neither ``significantly or uniquely'' affect the 
communities of Indian tribal governments. Accordingly, the requirements 
of section 3(b) of Executive Order 13084 do not apply to this rule.

E. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
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.
    The proposed rulemaking is basically ``deregulatory'' in nature and 
reduces burden on the affected State, local, and tribal governments and 
the private sector. EPA further believes 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. 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. Thus, this rule is not subject to the 
requirements of section 203 of UMRA. Nevertheless, EPA conducted a wide 
outreach effort and actively sought the input of representatives of 
State, local and tribal governments in the process of developing the 
proposed regulation. Agency personnel have communicated with State and 
local representatives in a number of different forums.

F. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
EPA generally is required to prepare a regulatory flexibility analysis 
describing the impact of the regulatory action on small entities as 
part of rulemaking. However, under section 605(b) of the RFA, if the 
Administrator for the Agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities, 
EPA is not required to prepare a regulatory flexibility analysis. EPA 
has concluded that today's proposal would not, if promulgated as 
proposed, have a significant economic impact on a substantial number of 
small entities for the reasons explained below.
    As previously explained, the modifications to the pretreatment 
regulations EPA is proposing today would reduce the regulatory costs to 
POTWs and industrial users of complying with pretreatment requirements. 
The proposed changes provide certain POTWs and industrial users with 
less costly alternatives to the current requirements.
    For example, EPA is proposing to amend the requirements that apply 
to all POTW pretreatment programs. Among these are a modification that 
would allow a POTW, in specified circumstances, to control 
contributions from industrial users through general permits rather than 
more costly individual permits or control mechanisms. Another change 
would allow the POTW to sample and analyze wastewater from Significant 
Industrial Users once during the User's permit term rather than 
annually as now required in cases where the pollutant is not reasonably 
expected to be present.
    The proposal would also authorize a POTW to relieve an industrial 
user of its sampling and analyzing requirements if the user 
demonstrated and certified that the pollutant was not expected to be 
present in quantities greater than present in background influent 
concentration to the industrial process.
    In addition, the cost of the three, new one-time requirements 
imposed upon those POTWs or industrial users that elect to exercise the 
flexibility provided in the proposed regulatory changes does not 
represent a significant increase over current costs. These new 
requirements include an evaluation of impacts of proposed alternative 
pH requirements and documentation of the derivation of equivalent 
limits in cases where categorical industrial users receive mass limits 
in lieu of concentration limits or receive equivalent concentration 
limits for flow-based standards.
    EPA calculates that, if exercised, these new, one-time requirements 
would impose a total annual burden and cost to the POTWs of 1,224 
person-hours and $22,000. These costs do not reflect the savings that 
would be realized as a result of providing this flexibility in setting 
limits for industrial users. EPA estimates that 138 POTWs will elect to 
exercise these options in any given calendar year and that the pro rata 
cost will be $159 per POTW, which represents less than nine additional 
person-hours per year per POTW. In any event, EPA does not believe that 
any POTW or industrial user would choose a proposed regulatory 
alternative over current requirements if the cost of the alternative 
were greater than the cost of complying with the present regulations.

[[Page 39598]]

    Therefore, the Administrator certifies that this rule, if 
promulgated, will not have a significant economic impact on a 
substantial number of small entities.

G. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An 
Information Collection Request (ICR) document (EPA ICR No. 0002.10) has 
been prepared by EPA and will amend the current ICR (EPA ICR No. 
0002.08). A copy may be obtained from Sandy Farmer, OP Regulatory 
Information Division; U.S. Environmental Protection Agency (2137); 401 
M St., S.W.; Washington, DC 20460 or by calling (202) 260-2740.
    The information collection requirements pertaining to the existing 
Pretreatment program regulations in 40 CFR Part 403 were approved by 
the Office of Management and Budget (OMB) under control number 2040-
0009 on October 18, 1996. These requirements will remain in effect 
until October 31, 1999 or until OMB provides new ICR authority. 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 
are listed in 40 CFR Part 9 and 48 CFR chapter 15.
    The proposed regulatory changes in today's rulemaking are designed 
to reduce the overall burden from technical and administrative 
requirements that affect industrial users, local Control Authorities 
and Approval Authorities. The estimated savings in annual burden hours 
and costs to the affected respondents (i.e., industrial users and 
POTWs) and governmental entities is 15,199 hours and $3,530,000.
    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 proposed regulatory changes 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.
    The proposed regulatory changes cover a variety of technical and 
administrative changes. Several of the proposed changes are voluntary, 
but, if adopted, would impose an additional one-time increase in burden 
on the affected entity. Other changes will result in reduced annual 
cost and burdens on a continuing basis. Other proposed changes would 
have no measurable effect on either cost or burden, but provide 
procedural clarifications and provide greater flexibility with respect 
to complying with the regulations. While impossible to quantify, the 
benefits to be derived by respondents as a result of this flexibility 
can be significant. The following table provides summary information on 
the current estimated changes in burden that would accrue if the 
proposed regulations are adopted as a final rule:

BILLING CODE 6560-50-P

[[Page 39599]]

[GRAPHIC] [TIFF OMITTED] TP22JY99.000



BILLING CODE 6560-50-C

[[Page 39600]]

    With the exception of those facilities described in the above 
footnote, all other burden changes reported are annual figures. All 
calculations are derived from historical data obtained from EPA's 
Permit Compliance System or statistical data on affected industrial 
facilities published at the time the various effluent guidelines 
regulating those facilities were promulgated in the Federal Register.
    Comments are requested on the Agency's need for this information, 
the accuracy of the provided burden estimates, and any suggested 
methods for minimizing respondent burden, including through the use of 
automated collection techniques. Send comments on the ICR to the 
Director, OP Regulatory Information Division; U.S. Environmental 
Protection Agency (2137); 401 M St., S.W.; Washington, DC 20460; and to 
the Office of Information and Regulatory Affairs, Office of Management 
and Budget, 725 17th St., N.W., Washington, DC 20503, marked 
``Attention: Desk Officer for EPA.'' Include the ICR number (EPA ICR 
No. 0002.10) in any correspondence. Since OMB is required to make a 
decision concerning the ICR between 30 and 60 days after July 22, 1999, 
a comment to OMB is best assured of having its full effect if OMB 
receives it by August 23, 1999. The final rule will respond to any OMB 
or public comments on the information collection requirements contained 
in this proposal.

H. National Technology Transfer and Advancement Act--Voluntary 
Standards

    Under section 12(d) of the National Technology Transfer and 
Advancement Act (NTTAA), the Agency is required 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, business practices, 
etc.) that are developed or adopted by voluntary consensus standards 
bodies. Where available and potentially applicable voluntary consensus 
standards are not used by EPA, the Act requires the Agency to provide 
Congress, through the Office of Management and Budget, an explanation 
of the reasons for not using such standards.
    The proposed rulemaking does not involve developing any technical 
standard based upon performance or design-specific technical 
specifications and related management systems practices. EPA is not 
aware of any voluntary consensus standards organizations (e.g., 
American Society for Testing and Materials) that would be involved in 
any activities that affect the proposed streamlining procedures 
outlined in this proposed rulemaking. All of the proposed changes are 
administrative or procedural changes that do not involve application of 
voluntary consensus standards. The Agency does not believe that this 
proposed rule addresses any technical standards subject to the NTTAA. A 
commenter who disagrees with this conclusion should indicate how the 
Notice is subject to the Act and identify any potentially applicable 
voluntary consensus standards.

List of Subjects in 40 CFR Part 403

    Environmental protection, Confidential business information, 
Reporting and recordkeeping requirements, Waste treatment and disposal, 
Water pollution control.

    Dated: July 7, 1999.
Carol Browner,
Administrator.

    For the reasons set out in the preamble, part 403, title 40, 
chapter I of the Code of Federal Regulations is proposed to be amended 
as follows:

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 USC 1251 et seq.

    2. Section 403.3 is amended by redesignating paragraphs (e) through 
(u) as paragraphs (f) through (v); by revising newly designated 
paragraphs (u) and (l)(2); and by adding a new paragraph (e) to read as 
follows:


Sec. 403.3.  Definitions.

* * * * *
    (e) Control Authority. 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 40 CFR 403.11; or (2) 
the Approval Authority if the submission has not been approved.
* * * * *
    (l) * * *
    (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 (l)(1)(ii) or (l)(1)(iii) of this 
section, but otherwise alters, replaces, or adds to existing process or 
production equipment.
* * * * *
    (u) Significant Industrial User.
    (1) Except as provided in paragraph (u)(2) of this section, the 
term Significant Industrial User means:
    (i) All industrial users subject to Categorical Pretreatment 
Standards under Sec. 403.6 and 40 CFR chapter I, subchapter N; except 
that a Control Authority may determine that the following facilities 
are not significant:
    (A) 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
    (B) industrial users subject only to certification requirements 
after having met Baseline Monitoring Report requirements.
    (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 
Sec. 403.8(f)(6)).
    (2) Upon a finding that an industrial user meeting the criteria in 
paragraph (u)(1)(ii) of this section has no reasonable potential for 
adversely affecting the POTW's operation or for violating any 
pretreatment standard 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 Sec. 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)(2) and adding 
a new paragraph (c)(4) to read as follows:


Sec. 403.5  National Pretreatment Standards: Prohibited Discharges.

* * * * *
    (b) * * *
    (2)(i) Pollutants which will cause corrosive structural damage to 
the POTW; and
    (ii) Discharges with pH lower than 5.0, unless the works is 
specifically

[[Page 39601]]

designed to accommodate such Discharge; except that a POTW with an 
Approved Pretreatment Program may allow temporary excursions below 5.0 
for dischargers that continuously monitor pH provided it:
    (A) Maintains a publicly available, written technical evaluation 
that supports the POTW's finding that the temporary pH excursions do 
not have the potential to cause corrosive structural damage to the POTW 
or other violations of paragraphs (a) and (b) of this section. The 
evaluation shall address the site-specific factors concerning pH and 
structural corrosion, including the characteristics of nondomestic 
wastewater and receiving flow, the design and materials of construction 
of the POTW, and the fate of pH in the discharge;
    (B) Performs adequate oversight of the temporary pH excursions to 
prevent corrosive structural damage to the POTW and other violations of 
paragraphs (a) and (b) of this section; and
    (C) Reports in its annual report under Sec. 403.12(i) its oversight 
actions and findings regarding nondomestic dischargers with temporary 
pH excursions.
    (D) Has legal authority to grant such temporary excursions in 
accordance with Sec. 403.8(f)(1) and makes them effective through an 
Industrial User control mechanism.
* * * * *
    (c) * * *
    (4) POTWs may develop and enforce best management practices (BMPs) 
that accomplish the environmental protection 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), newly designated paragraph (c)(7), paragraph (d) and the 
first sentence of paragraph (e) introductory text; and by adding 
paragraphs (c)(5) and (c)(6) to read as follows:


Sec. 403.6  National pretreatment standards: Categorical standards.

* * * * *
    (b) Deadline for Compliance with Categorical Standards. Compliance 
by existing sources with categorical Pretreatment Standards shall be 
within 3 years of the date the Standard is effective unless a shorter 
compliance time is specified in the appropriate subpart of 40 CFR 
chapter I, subchapter N. Direct dischargers with NPDES permits modified 
or reissued to provide a variance pursuant to section 301(i)(2) of the 
Act shall be required to meet compliance dates set in any applicable 
categorical Pretreatment Standard. Existing sources which become 
Industrial Users subsequent to promulgation of an applicable 
categorical Pretreatment Standard shall be considered existing 
Industrial Users except where such sources meet the definition of a New 
Source as defined in Sec. 403.3(l). 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) * * *
* * * * *
    (5) When a categorical Pretreatment Standard is expressed in terms 
of pollutant concentrations that are directly applicable as limits on 
the Industrial User, the Control Authority may convert the limits to 
mass limits if the Industrial User is utilizing control measures at 
least as effective as the model treatment technologies that serve as 
the basis for that particular Standard and the Industrial User is 
employing water conservation methods and technologies that 
substantially reduce water use.
    (6) When the limits in a categorical Pretreatment Standard are 
concentration-based and are required to be expressed only in terms of 
mass based on the facility's process wastewater flow, the Control 
Authority may apply the promulgated concentration standard set in the 
applicable categorical standard in cases where the Industrial User's 
effluent flow is so variable as to make mass limits impractical.
    (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 individual 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.
* * * * *
    (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 paragraph (h) to read as 
follows:


Sec. 403.7  Removal Credits.

* * * * *
    (h) Compensation for overflow. ``Overflow'' means the intentional 
or unintentional discharge of flow from the collection system before 
the POTW Treatment Plant. POTWs which Overflow untreated wastewater to 
receiving waters may claim Consistent Removal of a pollutant only by 
complying with either paragraph (h)(1) or (h)(2) of this section. 
However, this 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) The Industrial User provides containment or otherwise ceases or 
reduces Discharges from the regulated processes which contain the 
pollutant for which an allowance is requested during all circumstances 
in which an Overflow event can reasonably be expected to occur in the 
collection system to which the Industrial User is connected. Discharges 
must cease or be reduced, or pretreatment must be increased, to the 
extent necessary to compensate for the removal not being provided by 
the POTW. Allowances under this provision will only be granted where 
the POTW submits to the Approval Authority evidence that:
    (i) All Industrial Users to which the POTW proposes to apply this 
provision have demonstrated the ability to contain or otherwise cease 
or reduce, during

[[Page 39602]]

circumstances in which an Overflow event can reasonably be expected to 
occur, Discharges from the regulated processes which contain pollutants 
for which an allowance is requested;
    (ii) The POTW has identified circumstances in which an Overflow 
event can reasonably be expected to occur, and has a notification or 
other viable plan to insure that Industrial Users will learn of an 
impending Overflow in sufficient time to contain, cease or reduce 
Discharging to prevent untreated Overflows from occurring. The POTW 
must also demonstrate that it will monitor and verify the data required 
in paragraph (h)(1)(iii) of this section, to insure that Industrial 
Users are containing, ceasing or reducing operations during an Overflow 
event; and
    (iii) All Industrial Users to which the POTW proposes to apply this 
provision have demonstrated the ability and commitment to collect and 
make available, upon request by the POTW, State Director or EPA 
Regional Administrator, daily flow reports or other data sufficient to 
demonstrate that all Discharges from regulated processes containing the 
pollutant for which the allowance is requested were contained, reduced 
or otherwise ceased, as appropriate, during all circumstances in which 
an Overflow event was reasonably expected to occur; or
    (2) The Consistent Removal claimed is limited to the percentage of 
the pollutant consistently removed at the applicable Overflow point.
* * * * *
    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 
paragraphs (f)(1)(iii) introductory text, (f)(1)(iii)(C), (f)(2)(v), 
newly designated paragraphs (f)(2)(vii), (f)(2)(viii) introductor text, 
(f)(2)(viii)(A), (f)(2)(viii)(B) and (f)(2)(viii)(C), and by revising 
paragraph (f)(6); by adding paragraphs (f)(1)(iii)(F) and (f)(2)(vi); 
and by removing the period at the end of paragraph (f)(1)(iii)(E) and 
adding a semi-colon in its place. The added and revised text reads as 
follows:


Sec. 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 Sec. 403.3(u), this 
control shall be achieved through permits or equivalent individual 
control mechanisms issued to each such user except as follows. At the 
discretion of the Control Authority, for facilities covered by 
concentration-based standards or best management practices, this 
control may include use of general permits if all of the 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. 
Unless the POTW provides otherwise, to be covered by the general permit 
the Industrial User must file a Notice of Intent that identifies its 
production processes, the types of wastes generated, and the location 
for monitoring all wastes covered by the general permit. General 
permits may not be used for facilities subject to mass limits or for 
industrial users whose limits are based on the Combined Wastestream 
Formula or Net/Gross calculations (Secs. 403.6(e) and 403.15). Both 
individual control mechanisms and general permits must be enforceable 
and contain, at a minimum, the following conditions:
* * * * *
    (C) 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;
* * * * *
    (F) Requirements to control slug discharges, if determined by the 
POTW to be necessary.
* * * * *
    (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 effluent 
from each Significant Industrial User at least once a year except under 
the following circumstances. Where a Categorical Industrial User has 
demonstrated through sampling and other technical factors that 
pollutants regulated through categorical standards are not expected to 
be present in quantities greater than the background influent 
concentration to the industrial process, the Control Authority may 
reduce its sampling frequency to once during the term of the 
Categorical Industrial User's permit.
    (vi) Evaluate, as necessary, whether each such Significant 
Industrial User needs a plan or other action to control slug 
discharges. 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 non-customary batch discharge, which has a 
reasonable potential to cause interference or pass through, or in any 
other way violate the Control Authority's regulations, local limits or 
permit conditions. The results of such activities shall be available to 
the Approval Authority upon request. 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 40 CFR 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 
necessary for emergency response.
    (vii) Investigate instances of noncompliance with Pretreatment 
Standards and Requirements, as indicated in the reports and notices 
required under 40 CFR 403.12, or indicated by analysis, inspection, and 
surveillance activities described in paragraph (f)(2)(v) of this 
section. Sample taking and analysis and the collection of other 
information shall be performed with sufficient care to produce evidence 
admissible in enforcement proceedings or in judicial actions; and
    (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 of general circulation within the 
jurisdiction served by the POTW that provides meaningful public notice, 
of Significant Industrial Users which, at any time during the previous 
twelve months were in significant noncompliance with applicable 
pretreatment requirements. For the purposes of this provision, a 
Significant Industrial User is in significant noncompliance if its 
violation meets one or more of the following criteria:

[[Page 39603]]

    (A) Chronic violations of wastewater discharge limits, defined here 
as those in which sixty-six percent or more of all of the measurements 
taken during a six-month period exceed (by any magnitude) the 
Pretreatment Standard for the same pollutant parameter;
    (B) Technical Review Criteria (TRC) violations, defined here as 
those in which thirty-three 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 numerical Pretreatment Standard 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 Pretreatment 
Requirement that the Control Authority 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);
* * * * *
    (6) The POTW shall prepare and maintain a list of its industrial 
users meeting the criteria in 40 CFR 403.3(u)(1). The list shall 
identify the criteria in 40 CFR 403.3(u)(1) applicable to each 
industrial user and, where applicable, shall also indicate whether the 
POTW has made a determination pursuant to 40 CFR 403.3(u)(1)(i) (A) and 
(B) or (u)(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 40 CFR 403.9 or as a non-substantial 
modification pursuant to 40 CFR 403.18(d). Modifications to the list 
shall be submitted to the Approval Authority pursuant to 40 CFR 
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 (g)(4) and (g)(5) as 
paragraphs (g)(5) and (g)(6); by revising paragraphs (b)(5)(ii), 
(b)(6), (e)(1), (g)(1), (g)(2), (g)(3), (h), (j), (l)(1)(ii) and (m) 
and newly designated paragraph (g)(6); and by adding paragraphs (g)(4) 
and (q) to read as follows:


Sec. 403.12  Reporting requirements for POTWs and industrial users.

    (a) [Reserved]
    (b) * * *
    (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 standards themselves 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. The Control Authority may also authorize the Industrial User 
subject to a categorical Pretreatment Standard, with the exception of 
40 CFR Part 414, to forego sampling of a pollutant if the Industrial 
User has demonstrated through sampling and other technical factors that 
the pollutant is not expected to be present in quantities greater than 
the background influent concentration to the industrial process, and 
the Industrial User certifies 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 ______, I certify that, to the best of my knowledge and 
belief, the raw materials, industrial processes, and potential by-
products have not contributed this pollutant to the wastewaters 
since filing of the last periodic report under 40 CFR 403.12(e).
* * * * *
    (g) Monitoring and analysis to demonstrate continued compliance. 
(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

[[Page 39604]]

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. Grab samples must be used for pH, cyanide, total 
phenols, oil and grease, sulfide, and volatile organic compounds. For 
all other pollutants, 24-hour composite samples must be obtained 
through flow-proportional composite sampling techniques, unless time-
proportional composite sampling or grab sampling is authorized by the 
Control Authority. Where time-proportional composite sampling or grab 
sampling is authorized by the Control Authority, the samples must be 
representative of the discharge and the decision to allow the 
alternative sampling must be documented in the individual control 
mechanism file for that facility or facilities. For those industrial 
users 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. 
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 new facilities; for existing facilities where 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 point of compliance more frequently than required by the Control 
Authority, using the procedures prescribed in paragraph (g)(5) of this 
section, the results of this monitoring shall be included in the 
report.
* * * * *
    (h) Reporting requirements for Industrial Users not subject to 
categorical Pretreatment Standards. The Control Authority must require 
appropriate reporting from those Industrial Users with discharges that 
are not subject to categorical Pretreatment Standards. Significant Non-
categorical Industrial Users must submit to the Control Authority at 
least once every six months (on dates specified by the Control 
Authority) a description of the nature, concentration, and flow of the 
pollutants required to be reported by the Control Authority. In cases 
where 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 40 CFR 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.
* * * * *
    (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.
* * * * *
    (l) * * *
    (1) * * *
    (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 position-related 
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.
* * * * *
    (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 activity such as the position 
of POTW Director, Plant Manager, or Pretreatment Program Manager. This 
authorization must 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.
* * * * *
    (q) Sampling of non-significant categorical industrial users. For a 
facility described in 40 CFR 403.3(u)(1)(i)(A) or (B), the Control 
Authority may establish alternative reporting requirements that would 
take the place of the reporting requirements in 40 CFR 403.12(e). This 
alternative report must be submitted at least once per year, and must 
contain the following certification:

    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 ________ ____, ________: (1) The facility 
described as ____________________ met the definition of a non-
significant facility as described in 40 CFR 403.3(u)(1)(i)(A) or 
(B), and (2) the facility complied with all applicable pretreatment 
standards. This compliance certification is based upon the following 
information:

----------------------------------------------------------------------

----------------------------------------------------------------------

----------------------------------------------------------------------

    8. Section 403.15 is revised to read as follows:


Sec. 403.15  Net/Gross calculation.

    (a) Application. Categorical Pretreatment Standards may be adjusted 
to reflect the presence of pollutants in the Industrial User's intake 
water in accordance with this section. Any Industrial User wishing to 
obtain credit for intake pollutants must make

[[Page 39605]]

application to the Control Authority. Upon request of the Industrial 
User, the applicable Standard will be calculated on a ``net'' basis 
(i.e., adjusted to reflect credit for pollutants in the intake water) 
if the requirements of paragraph (b) of this section are met.
    (b) Criteria. (1) Either (i) The applicable categorical 
Pretreatment Standards contained in 40 CFR subchapter N specifically 
provide that they shall be applied on a net basis; or
    (ii) The Industrial User demonstrates that the control system it 
proposes or uses to meet applicable categorical Pretreatment Standards 
would, if properly installed and operated, meet the Standards in the 
absence of pollutants in the intake waters.
    (2) Credit for generic pollutants such as biochemical oxygen demand 
(BOD), total suspended solids (TSS), and oil and grease should not be 
granted unless the Industrial User demonstrates that the constituents 
of the generic measure in the User's effluent are substantially similar 
to the constituents of the generic measure in the intake water or 
unless appropriate additional limits are placed on process water 
pollutants either at the outfall or elsewhere.
    (3) Credit shall be granted only to the extent necessary to meet 
the applicable categorical Pretreatment Standard(s), up to a maximum 
value equal to the influent value. Additional monitoring may be 
necessary to determine eligibility for credits and compliance with 
Standard(s) adjusted under this section.
    (4) Credit shall be granted only if the User demonstrates that the 
intake water is drawn from the same body of water as that into which 
the POTW discharges. The Control Authority may waive this requirement 
if it finds that no environmental degradation will result.
* * * * *

Appendix A to Part 403 [Removed and Reserved]

    9. Appendix A to Part 403--Program Guidance Memorandum is removed 
and reserved.

[FR Doc. 99-17773 Filed 7-21-99; 8:45 am]
BILLING CODE 6560-50-P