Appendix D.1

Pretreatment Streamlining Rule
60134 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 9, 122 and 403 

[OW–2002–0007; FRL–7980–4] 

RIN 2040–AC58 

Streamlining the General Pretreatment 

Regulations for Existing and New 

Sources of Pollution 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: Today’s final rule revises 

several provisions of the General 

Pretreatment Regulations that address 

requirements for, and oversight of, 

Industrial Users who introduce 

pollutants into Publicly Owned 

Treatment Works (POTWs). This final 

rule includes changes to certain 

program requirements to be consistent 

with National Pollutant Discharge 

Elimination System (NPDES) 

requirements for direct dischargers to 

surface waters. Today’s action will 

reduce the regulatory burden on both 

Industrial Users and State and POTW 

Control Authorities without adversely 

affecting environmental protection and 

will allow Control Authorities to better 

focus oversight resources on Industrial 

Users with the greatest potential for 

affecting POTW operations or the 

environment. 

DATES: This regulation is effective 

November 14, 2005. For judicial review 

purposes, this final rule is promulgated 

as of 1 p.m. (Eastern Time) on October 

28, 2005, as provided at 40 CFR 23.2. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. OW–2002–0007. All documents in 

the docket are listed in the EDOCKET 

index at http://www.epa.gov/edocket. 

Although listed in the index, some 

information is not publicly available, 

i.e., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically in 

EDOCKET or in hard copy at the EPA 

Docket Center, EPA/DC, EPA West, 

Room B102, y1301 Constitution Ave., 

NW, Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Water Docket Office is 

(202) 566–2426). 

FOR FURTHER INFORMATION CONTACT: Jan 

Pickrel, Water Permits Division, Office 

of Wastewater Management, Office of 

Water, (4203), Environmental Protection 

Agency, 1200 Pennsylvania Ave., NW., 

Washington, DC 20460; telephone 

number: 202–564–7904, e-mail address: 

pickrel.jan@epa.gov. Greg Schaner, 

Water Permits Division, Office of 

Wastewater Management, Office of 

Water, (4203), Environmental Protection 

Agency, 1200 Pennsylvania Ave., NW., 

Washington, DC 20460; telephone 

number: 202–564–0721, e-mail address: 

schaner.greg@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Information in this preamble is 

organized as follows: 

A. General Information 

1. Does This Final Rule Apply to Me? 

2. How Can I Get Copies of This Document 

and Other Related Information? 

3. What Process Governs Judicial Review of 

This Rule? 

B. Under What Legal Authority Is This 

Final Rule Issued? 

C. How Is This Preamble Organized? 

D. What Is The Comment Response 

Document? 

E. What Other Information Is Available To 

Support This Final Rule? 

I. Background Information 

II. How Was This Final Rule Developed? 

III. Description of Final Rule Actions 

A. Sampling for Pollutants Not Present (40 

CFR 403.8(f)(2)(v) and 403.12(e)) 

B. General Control Mechanisms (40 CFR 

403.8(f)(1)(iii)) 

C. Best Management Practices (40 CFR 

403.5, 403.8(f) and 403.12(b), (e), and (h)) 

D. Slug Control Plans (40 CFR 

403.8(f)(1)(iii)(B)(6) and 403.8(f)(2)(vi)) 

E. Equivalent Concentration Limits for 

Flow-Based Standards (40 CFR 

403.6(c)(6)) 

F. Use of Grab and Composite Samples (40 

CFR 403.12(b), (d), (e), (g), and (h)) 

G. Significant Noncompliance Criteria (40 

CFR 403.8(f)(2)(viii)) 

H. Removal Credits—Compensation for 

Overflows (40 CFR 403.7(h)) 

I. Miscellaneous Changes (40 CFR 

403.12(g), (j), (l), and (m)) 

J. Equivalent Mass Limits for Concentration 

Limits (40 CFR 403.6(c)(5)) 

K. Oversight of Categorical Industrial Users 

(40 CFR 403.3(v), 403.8(f)(2)(v), and 

403.12(e), (g), (i), (q)) 

IV. Description of Areas Where EPA Is Not 

Taking Action on the Proposed Rule 

A. Specific Prohibition Regarding pH (40 

CFR 403.5(b)(2)) 

V. Changes to part 122 

VI. Considerations in Adopting Today’s Rule 

Revisions 

VII. Regulatory Requirements 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination with Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children from Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Congressional Review Act 

A. General Information 

1. Does this final rule apply to me? 

Entities potentially affected by this 

action are governmental entities 

responsible for implementation of the 

National Pretreatment Program and 

industrial facilities subject to 

Pretreatment Standards and 

Requirements. These entities include: 

Category Examples of regulated entities 

Local government ............................................... Publicly Owned Treatment Works. 

State government ............................................... States and Tribes acting as Pretreatment Program Control Authorities or as Approval Authorities. 

Industry ............................................................... Industrial Users of POTWs. 

Federal Government ........................................... EPA Regional Offices acting as Pretreatment Program Control Authorities or as Approval Authorities. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this action. This table lists 

the types of entities that EPA is now 

aware could potentially be regulated by 

this action. Other types of entities not 

listed in the table could also be 

regulated. To determine whether your 

organization or facility is regulated by 

this action, you should carefully 

examine the applicability criteria in 40 

CFR 403.3, 403.5, 403.6, 403.7, 403.8, 

403.12, and 403.15 of Part 403 of Title 

40 of the Code of Federal Regulations. 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60135 

If you have questions about the 

applicability of this action to a 

particular entity, consult the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 

2. How can I get copies of this document 

and other related information? 

a. Docket. EPA has established an 

official public docket for this action 

under Docket ID No. W–00–27. The 

official public docket consists of the 

documents specifically referenced in 

this action, any public comments 

received, and other information related 

to this action. Although a part of the 

official docket, the public docket does 

not include Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

The official public docket is the 

collection of materials that is available 

for public viewing at the Water Docket 

in the EPA Docket Center, (EPA/DC) 

EPA West, Room B102, 1301 

Constitution Ave., NW., Washington, 

DC. The EPA Docket Center Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Reading Room is (202) 

566–1744, and the telephone number for 

the Water Docket is (202) 566–2426. 

b. Electronic Access. You may access 

this Federal Register document 

electronically through the EPA Internet 

under the ‘‘Federal Register’’ listings at 

http://www.epa.gov/fedrgstr/ or at the 

‘‘Pretreatment’’ page at http:// 

cfpub.epa.gov/npdes/ 

home.cfm?program_id=3. 

An electronic version of the public 

docket is available through EPA’s 

electronic public docket and comment 

system, EPA Dockets. You may use EPA 

Dockets at http://www.epa.gov/edocket/ 

to view public comments, access the 

index listing of the contents of the 

official public docket, and to access 

those documents in the public docket 

that are available electronically. 

Although not all docket materials may 

be available electronically, you may still 

access any of the publicly available 

docket materials through the docket 

facility identified in section A.2.a. Once 

in the system, select ‘‘search’’, then key 

in the appropriate docket identification 

number (OW–2002–0007). 

3. What process governs judicial review 

of this rule? 

Under Section 509(b)(1) of the Clean 

Water Act (CWA), judicial review of 

today’s rule may be obtained by filing a 

petition for review in the United States 

Circuit Court of Appeals within 120 

days from the date of promulgation of 

this rule. For judicial review purposes, 

this final rule is promulgated as of 1 

p.m. (Eastern time) on October 28, 2005 

as provided at 40 CFR 23.2. Under 

section 509(b)(2) of the CWA, the 

requirements of this regulation may not 

be challenged later in civil or criminal 

proceedings brought by EPA to enforce 

these requirements. 

B. Under What Legal Authority Is This 

Final Rule Issued? 

Today’s final rule is issued under the 

authority of Sections 101, 208(b)(2) 

(C)(iii), 301(b)(1)(A)(ii), 301(b)(2)(A)(ii), 

301(h)(5) and 301(i)(2), 304(e) and (g), 

307, 308, 309, 402(b), 405, and 501(a) of 

the Federal Water Pollution Control Act 

as amended. 

C. How is This Preamble Organized? 

There is an outline for the preamble 

to today’s final rule in the opening of 

this SUPPLEMENTARY INFORMATION

section. For each distinct issue of the 

final rule, the preamble is written in a 

question-and-answer format that is 

designed to help the reader understand 

the information in the rule. Under each 

issue, there are subsections that provide 

the context for the final rule, including 

a discussion of the rules in place prior 

to today’s rulemaking, the changes that 

were proposed, the changes that are 

being finalized (including significant 

differences from the proposal), and a 

summary of major comments and EPA 

response. 

List of Acronyms 

BAT—best available technology 

economically achievable 

BCT—best conventional pollutant 

control technology 

BOD—biochemical oxygen demand 

BPJ—best professional judgment 

BMP—Best Management Practice 

BPT—best practicable control 

technology currently available 

CIU—Categorical Industrial User 

CFR—Code of Federal Regulations 

CWA—Clean Water Act 

ELG—effluent limitations guideline 

EMS—environmental management 

system 

EPA—Environmental Protection Agency 

EQIP—Environmental Quality 

Incentives Program 

FR—Federal Register 

ICR—Information Collection Request 

IU—Industrial User 

NODA—Notice of Data Availability 

NOI—notice of intent 

NPDES—National Pollutant Discharge 

Elimination System 

NSCIU—Non-Significant Categorical 

Industrial User 

NTTAA—National Technology Transfer 

and Advancement Act 

OMB—U.S. Office of Management and 

Budget 

POTW—Publicly Owned Treatment 

Works 

PSES—Pretreatment Standards for 

Existing Sources 

RFA—Regulatory Flexibility Act 

SBA—U.S. Small Business 

Administration 

SBAR (panel)—Small Business 

Advocacy Review Panel 

SBREFA—Small Business Regulatory 

Enforcement Fairness Act 

SIU—Significant Industrial User 

SNC—Significant Noncompliance 

SRF—State Revolving Fund 

UMRA—Unfunded Mandates Reform 

Act 

WWTP—wastewater treatment plant 

D. What Is the Comment Response 

Document? 

EPA received more than 220 

comments on the proposed rule. EPA 

evaluated all the significant comments 

submitted and prepared a Comment 

Response Document containing the 

Agency’s responses to those comments. 

The Comment Response Document 

complements and supplements this 

preamble by providing more detailed 

explanations of EPA’s final actions. The 

Comment Response Document is 

available at the Water Docket. See 

Section E below for additional 

information. 

E. What Other Information Is Available 

To Support This Final Rule? 

In addition to this preamble, today’s 

final rule is supported by other 

information that is part of the 

administrative record, such as the 

Comment Response Document, and the 

key supporting documents listed below. 

These supporting documents and the 

administrative record are available at 

the Water Docket and via e-Docket: 

• Information Collection Request 

• Past EPA guidance manuals and 

policy documents 

• Stakeholder communications 

• EPA data collected in support of 

this rulemaking 

I. Background Information 

A. What Is the National Pretreatment 

Program? 

The National Pretreatment Program is 

part of the Clean Water Act (CWA)’s 

water pollution control program. The 

program is a joint regulatory effort by 

local, state, and Federal authorities that 

require the control of industrial and 

commercial sources of pollutants 

discharged to municipal wastewater 

plants (called ‘‘Publicly Owned 

Treatment Works’’ or ‘‘POTWs’’). 

Control of pollutants prior to discharge 

of wastewater to the sewer minimizes 

60136 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

the possibility of pollutants interfering 

with the operation of the POTW and 

reduces the levels of toxic pollutants in 

wastewater Discharges from the POTW 

and in the sludge resulting from 

municipal wastewater treatment. 

The Pretreatment Program is a core 

part of the CWA’s National Pollutant 

Discharge Elimination System (NPDES) 

program, and it has helped 

communities: 

• Maintain and restore watershed 

quality; 

• Encourage pollution prevention; 

• Increase beneficial uses of sewage 

sludge; 

• Prevent formation of poisonous 

gases in the sanitary sewer system; 

• Meet wastewater Discharge 

standards; and 

• Institute emergency-prevention 

measures. 

B. What Regulation Is EPA Revising? 

EPA is today streamlining and 

clarifying various provisions of the 

General Pretreatment Regulations for 

Existing and New Sources of Pollution 

codified at 40 CFR Part 403. The CWA 

directs EPA to develop regulations in 

order to control pollutants which may 

pass through or interfere with POTW 

treatment processes or contaminate 

sewage sludge. On June 26, 1978, EPA 

promulgated the General Pretreatment 

Regulations, which established 

standards and procedures for 

controlling the introduction of wastes 

into POTWs (43 FR 27736). There have 

been a number of revisions to the 

General Pretreatment Regulations. The 

last major revisions were to implement 

improvements arising from the 

Domestic Sewage Study (Report to 

Congress on the Discharge of Hazardous 

Wastes to Publicly Owned Treatment 

Works) (55 FR 30082, July 24, 1990). 

The General Pretreatment Regulations 

require POTWs that meet certain criteria 

to develop Pretreatment programs to 

control industrial Discharges into their 

sewage collection systems. These 

programs must be approved by either 

EPA or states acting as the Pretreatment 

‘‘Approval Authority.’’ More than 1,400 

POTWs have developed Approved 

Pretreatment Programs pursuant to the 

regulations in 40 CFR 403.8. These 

POTWs act as the Pretreatment ‘‘Control 

Authority’’ with respect to the Industrial 

Users that discharge to their systems. In 

the absence of an approved POTW 

Pretreatment Program, the State or EPA 

Approval Authority serves as the 

Control Authority. 

Industrial Users of POTWs must 

comply with Pretreatment Standards 

prior to introducing pollutants into a 

POTW. POTWs are required to impose 

‘‘local limits’’ to prevent Pass Through 

and Interference from the pollutants 

discharged into their systems. The 

General Pretreatment Regulations also 

include general prohibitions that forbid 

Industrial Users from causing Pass 

Through and Interference, and specific 

prohibitions against the discharge of 

pollutants that cause problems at the 

POTW such as corrosion, fire or 

explosion, and danger to worker health 

and safety. EPA has also developed 

National categorical Pretreatment 

Standards that apply numeric pollutant 

limits to Industrial Users in specific 

industrial categories. The General 

Pretreatment Regulations include 

reporting and other requirements 

necessary to implement these 

categorical Standards (40 CFR 403.12 

(b)). 

Today’s final rule modifies several 

provisions of the existing Pretreatment 

Regulations. The rule includes a variety 

of changes which will be described 

further in Section E. 

C. Why Is EPA Revising the Existing 

General Pretreatment Regulations? 

By finalizing today’s rule, EPA is 

working to improve the National 

Pretreatment Program to protect public 

health and the environment, while 

maintaining or improving the program’s 

effectiveness. Although adoption of the 

General Pretreatment Regulations has 

resulted in more consistent 

implementation of the Pretreatment 

program on a national basis, many 

individual POTWs and Industrial Users 

have experienced problems 

implementing various requirements. 

EPA’s objective in finalizing today’s 

streamlining regulation is to achieve 

better environmental results at a lower 

cost by allowing Control Authorities to 

better focus oversight resources where 

they will do the most good. The 

revisions in today’s final rule achieve 

this objective by reducing the burden of 

technical and administrative 

requirements that EPA has determined 

provide minimal environmental benefit 

but consume significant resources of 

Industrial Users, and POTW and state 

Control Authorities. In designing these 

revisions, EPA took care to ensure that 

the changes being finalized do not 

reduce the current environmental 

protections in place. 

The importance of finalizing today’s 

streamlining rule was highlighted in 

two recent reports. The Office of 

Management and Budget (OMB) 

included the issuance of the final rule 

among a list of steps the Federal 

government would take to reduce the 

cost burden on the manufacturing 

sector. See Regulatory Reform of the 

U.S. Manufacturing Sector (OMB, 2005), 

which is posted at http:// 

www.whitehouse.gov/omb/inforeg/ 

reports/manufacturing_initiative.pdf. 

EPA’s Office of Inspector General (OIG) 

also recommended that the Office of 

Water set milestones for finalizing this 

streamlining rule as part of a broader 

effort to improve the effectiveness of the 

National Pretreatment Program. See 

Recommendation # 4.2 of EPA Needs to 

Reinforce Its National Pretreatment 

Program (OIG, Report 2004–P–00030, 

September 2004), posted at http:// 

www.epa.gov/oig/reports/2004/ 

20040928–2004–P–00030.pdf. 

D. What Are the Roles of Key Entities 

Involved in the Final Rule? 

EPA recognizes the role of many 

interested parties in the development of, 

and, ultimately, the successful 

implementation of this final rule. To the 

greatest extent possible, EPA has 

attempted to strike a reasonable balance 

among the many interests. A short 

summary of their roles is provided 

below. 

1. POTWs. Publicly Owned Treatment 

Works (POTWs) collect wastewater from 

homes, commercial buildings, and 

industrial facilities and transport it via 

a series of pipes, known as a collection 

system, to the treatment plant. Today, 

there are an estimated 14,800 POTWs. 

Most POTWs are not designed to treat 

the toxics in commercial and industrial 

wastes which can cause serious 

problems. The General Pretreatment 

Regulations require POTWs that meet 

certain criteria to develop Pretreatment 

programs to control industrial 

Discharges into their sewage collection 

systems. These POTWs act as the 

Pretreatment ‘‘Control Authority’’ with 

respect to the Industrial Users that 

discharge to their systems. POTWs play 

a key role in the enforcement of the 

Pretreatment program through the 

development and implementation of 

Enforcement Response Plans. 

2. States. Thirty-four states are 

authorized to serve as Approval 

Authorities for implementation of the 

Pretreatment Program. In the absence of 

an Approved POTW Pretreatment 

Program, the state may serve as the 

Control Authority. 

3. EPA. EPA’s statutory responsibility 

is to establish national regulations such 

as those covering the Pretreatment 

Program, which protect and restore the 

chemical, physical, and biological 

integrity of the Nation’s waters. EPA 

also develops policy and guidance and 

provides training and oversight for 

program implementation. EPA’s 

regional offices also serve as the 

Approval Authority for state 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60137 

Pretreatment programs, where the state 

is not authorized to run the program, 

and as the Control Authority for POTWs 

without an approved Pretreatment 

Program in these states. 

4. Industrial Dischargers. Industrial 

Users of POTWs must comply with 

Pretreatment Standards prior to 

introducing pollutants into a POTW. 

The General Pretreatment Regulations 

include general prohibitions that forbid 

Industrial Users from causing Pass 

Through and Interference, and specific 

prohibitions against the discharge of 

pollutants that cause problems at the 

POTW such as corrosion, fire or 

explosion, and danger to worker health 

and safety. 

EPA has also developed National 

categorical Pretreatment Standards that 

apply numeric and narrative pollutant 

limits to Industrial Users in specific 

industrial categories. The General 

Pretreatment Regulations include 

reporting and other requirements 

necessary to implement these 

categorical Standards (40 CFR 

403.12(b)). 

5. Other stakeholders. Trade 

associations, professional organizations, 

environmental interest groups, and the 

public have an interest in the 

Pretreatment of industrial and 

commercial waste and have been 

involved in this rulemaking through 

comments and participation in 

stakeholder meetings. 

E. What Principles Guided EPA’s 

Decisions in This Rule? 

EPA has considered the 

implementation of the current General 

Pretreatment Regulations, changes in 

industry, the comments on the proposed 

rule, and relevant studies, data, and 

reports in developing this final rule. The 

Agency has tried to ensure this final 

rule is based on sound science, protects 

existing water quality gains, and is 

consistent with current Pretreatment 

guidance and policy documents. EPA 

made this final rule as simple and easy 

to understand as possible, and has 

attempted to provide a clear 

understanding of who is affected and 

what they are expected to do. The 

hallmark of this rule is that it reduces 

the burden of compliance with the 

General Pretreatment Regulations, while 

at the same time protecting the 

environment. 

F. What Are the Major Elements of This 

Final Rule? Where Do I Find Specific 

Requirements? 

This section provides a summary of 

the major elements of this final rule and 

a brief index on where each of the 

requirements is located in the final 

regulations. The rule makes the 

following changes: 

• Provides POTWs with the authority 

to grant monitoring waivers to industrial 

facilities where they document that 

pollutants are not present at the facility 

or anywhere in the wastestream. EPA 

notes that this authority is already 

available in the National Pollutant 

Discharge Elimination System (NPDES) 

regulations for point sources 

discharging directly to surface waters. 

• Authorizes POTWs to use general 

control mechanisms (e.g., permits) to 

regulate multiple industrial dischargers 

that share common characteristics. 

• Clarifies that POTWs can use Best 

Management Practices (BMPs) as an 

alternative to numeric limits that are 

developed to protect the POTW, water 

quality, and sewage sludge. 

• Clarifies certain requirements 

regarding the frequency of on-site 

industrial facility inspections to 

evaluate the adequacy of controls for 

‘‘Slug Discharges’’. 

• Provides greater flexibility in the 

use of certain sampling techniques, and 

establishes greater consistency with the 

sampling protocols in other parts of 

EPA’s regulations. 

• Provides the Control Authority with 

the discretion to authorize the use of 

equivalent concentration limits in lieu 

of mass limits for certain industrial 

categories, and allows the conditional 

use of equivalent mass limits in lieu of 

concentration-based limits where 

appropriate to facilitate adoption of 

new, water-conserving technologies. 

• Authorizes POTWs to establish 

alternative sampling, reporting, and 

inspection requirements for certain 

classes of categorical Industrial Users 

(CIUs). 

• Clarifies the definition of significant 

noncompliance (SNC) as it applies to 

violations of instantaneous and 

narrative requirements, and late reports, 

and provides additional options for 

publishing lists of industrial facilities in 

SNC annually in the newspaper. The 

rule also retains existing rules and 

policies regarding the application of 

Technical Review Criteria (TRC) and the 

use of the ‘‘rolling quarter’’ approach in 

determining SNC status. 

• Provides updated references 

relating to requirements that POTWs 

must meet to adjust removal credits for 

combined sewer overflows (CSOs). 

• Makes other miscellaneous changes 

designed to maintain consistency with 

the NPDES regulations or to correct 

typographical errors. 

The following table indicates where 

these changes can be found in the 

General Pretreatment Regulations at 40 

CFR part 403. 

Issue Section of 40 CFR 403 rules 

Sampling for pollutants not present ......................................................... 403.8(f)(2)(v), 403.12(e) 

General control mechanisms .................................................................... 403.8(f)(1)(iii) 

Best Management Practices .................................................................... 403.5, 403.8(f), 403.12(b), (e), (h) 

Slug control plans ..................................................................................... 403.8(f)(1)(iii)(B)(6), 403.8(f)(2)(vi)) 

Equivalent concentration limits for flow-based Standards ....................... 403.6(c)(6) 

Equivalent mass limits for concentration-based Standards ..................... 403.6(c)(5) 

Use of grab and composite samples ....................................................... 403.12(b), (d), (e), (g), (h) 

Significant noncompliance criteria ............................................................ 403.8(f)(2)(viii) 

Removal credits ........................................................................................ 403.7(h) 

Non-Significant CIU .................................................................................. 403.3(v)(2), 403.8(f)(2)(v), (6), 403.12(e)(1), (g), (i), (q) 

Middle Tier CIU ........................................................................................ 403.8(f)(2)(v)(C), 403.12(e)(3), (i) 

Miscellaneous changes ............................................................................ 403.12(g), (j), (l), (m) 

II. How Was This Final Rule 

Developed? 

EPA initiated this effort in response to 

a Presidential Report on ‘‘Reinventing 

Environmental Regulations’’ (March 

1995). The Report pledged to provide 

‘‘more common sense and fairness in 

our regulations’’ with an ultimate goal 

of providing greater flexibility, reducing 

burden, and achieving greater 

environmental results at less cost. In 

1995, EPA’s Office of Wastewater 

Management started an evaluation of all 

of the General Pretreatment Regulations 

in order to identify streamlining 

opportunities. Based on input from 

various stakeholders, EPA developed 

issue papers that summarized 11 areas 

60138 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

in which the Pretreatment Regulations 

might be streamlined. 

In May 1996, the issue papers were 

distributed to stakeholders (States, 

cities, trade associations, professional 

organizations, and environmental 

interest groups) for comment. The 

Agency also considered 

recommendations developed through a 

joint Association of Metropolitan 

Sewerage Agency (‘‘AMSA’’, now the 

‘‘National Association of Clean Water 

Agencies’’) and Water Environment 

Federation workshop held in 1996, 

which included Pretreatment experts 

from many stakeholder perspectives. In 

response to comments received on the 

issue papers and the joint workshop’s 

recommendations, EPA prepared a draft 

proposal and preamble and distributed 

it for comment in May 1997. The 

proposed rule was published in the 

Federal Register on July 22, 1999 (64 FR 

39564). 

EPA received 221 sets of comments 

on the proposed rule. Comments were 

received from individual POTWs and 

Industrial Users, trade groups 

representing those interests, states, and 

one environmental organization (the 

Natural Resources Defense Council). In 

finalizing this rule, EPA carefully 

reviewed the issues raised in the public 

comments. Due to the intervening time 

between the proposed and final rules, 

EPA also revisited the major 

assumptions underlying each rule 

change to verify that these assumptions 

were still valid. In a few areas, this 

process required research or additional 

data to support certain provisions, and 

discussions with stakeholders 

expressing continued interest in the rule 

regarding their comments on the 

proposed rule. 

III. Description of Final Rule Actions 

Today’s final rule addresses 12 

specific issues and a few miscellaneous 

changes pertaining to the General 

Pretreatment Regulations. This section 

describes the context of these changes, 

records how the proposal and final rule 

differ, and summarizes EPA’s rationale 

for specific actions and how the Agency 

responded to significant comments. 

EPA notes that capitalized terms in 

this and other sections (e.g., categorical 

Pretreatment Standards, Interference, 

Pass Through, etc.) should signal to the 

reader that these are terms defined in 40 

CFR 403.3. 

A. Sampling for Pollutants Not Present 

(40 CFR 403.8(f)(2)(v) and 403.12(e)) 

Today’s rule allows the Control 

Authority to authorize an Industrial 

User subject to categorical Pretreatment 

Standards to forgo sampling of a 

pollutant if the Industrial User 

demonstrates through sampling and a 

technical evaluation of its facility 

operations, that a given pollutant is 

neither present nor expected to be 

present in the Discharge, or is only 

present at background levels from intake 

water without any increase in the 

pollutant due to the activities of the 

Industrial User. There is similar 

language in EPA’s NPDES permitting 

regulations for direct dischargers. See 40 

CFR 122.44(a)(2). The POTW Control 

Authority to which the Industrial User 

discharges may also reduce its 

monitoring for the pollutant to once 

during the term of the Categorical 

Industrial User’s control mechanism. 

Note that in the discussion of this issue, 

when EPA uses the phrase ‘‘pollutants 

not present’’ it is using this phrase as 

short-hand for ‘‘pollutants neither 

present nor expected to be present 

above background levels’’. In addition, 

because the requirements of 40 CFR 

403.8(f)(2) apply to POTWs with 

approved Pretreatment programs rather 

than Control Authorities in general, the 

discussion here distinguishes between 

the authority granted to Control 

Authorities in 40 CFR 403.12(e) to 

waive monitoring for pollutants not 

present, and the reduction in 

monitoring requirements for POTWs for 

these pollutants in 40 CFR 403.8(f)(2)(v). 

1. What Were the Rules in Place Prior 

to Today’s Rulemaking? 

Section 403.12(e)(1) required 

Industrial Users subject to categorical 

Pretreatment Standards to submit 

reports to the Control Authority at least 

twice each year indicating the nature 

and concentration of all pollutants in 

their effluent that are limited by an 

applicable Standard. Prior to today’s 

rulemaking, the Control Authority was 

not authorized to reduce monitoring of 

pollutants regulated by the applicable 

categorical Pretreatment Standard to 

less than twice per year. 40 CFR 

403.8(f)(2)(v) also required POTWs to 

sample these Industrial Users at least 

annually to independently verify 

compliance with the Standard. 

Semiannual sampling by the Industrial 

User and annual sampling by the POTW 

was required for all pollutants limited 

by the categorical Pretreatment Standard 

even if certain pollutants regulated by 

the Standard were not reasonably 

expected to be present. 

2. What changes did EPA propose? 

The proposal would amend the 

current regulation to authorize the 

Control Authority to waive the sampling 

requirements for an Industrial User 

subject to a categorical Pretreatment 

Standard for a pollutant if the pollutant 

was not expected to be present in the 

wastestream in a quantity greater than 

the background level present in its 

water supply, with no increase in the 

pollutant in the wastewater attributable 

to the industrial process. In lieu of 

monitoring for the pollutants 

determined not present, the Industrial 

User would submit a certification as 

part of its semiannual monitoring 

reports that there had been no increase 

in the pollutant in its wastewater due to 

its activities. This change would also 

reduce a POTW’s sampling requirement 

once it had determined that a pollutant 

was not expected to be present. 

However, as proposed, the reduced 

sampling would not have been available 

to facilities subject to the Organic 

Chemicals, Plastics, and Synthetic 

Fibers (OCPSF) guidelines, 40 CFR part 

414. 

3. What changes is EPA finalizing in 

today’s rule? 

Today, EPA is adopting the proposed 

changes which authorize a Control 

Authority to waive the monitoring 

requirements in semiannual reports 

required under 40 CFR 403.12(e) for 

individual pollutants, including 

indicator or surrogate pollutants, for an 

Industrial User subject to a categorical 

Pretreatment Standard. A Control 

Authority may waive this requirement if 

it determines that the pollutant is 

neither present nor expected to be 

present, at levels greater than that of the 

intake water, without any increase in 

the pollutant due to the activities of the 

Industrial User. The waiver will not be 

available for monitoring required for the 

baseline monitoring report required 

under 40 CFR 403.12(b) or the 90-day 

compliance report required under 40 

CFR 403.12(d). The Industrial User must 

continue to conduct at least twice-peryear monitoring until the waiver is both 

granted by the Control Authority and 

incorporated into the Industrial User’s 

control mechanism. The POTW’s annual 

monitoring requirements for the 

pollutant for which a monitoring waiver 

is granted may be reduced to a 

minimum of once during the effective 

period of the Industrial User’s control 

mechanism. 

In finalizing the rule, EPA is making 

the following changes to the proposed 

rule: 

Coverage for OCPSF Facilities: EPA 

has determined that it is appropriate for 

the monitoring waiver to be available to 

Industrial Users subject to the OCPSF 

guidelines and is not limiting the 

availability in any way different from 

other Categorical Industrial Users. 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60139 

Industrial User Sampling Data: The 

final rule requires that to demonstrate 

that the pollutant is not present, the 

Industrial User must provide the results 

of one or more samples prior to 

treatment which are representative of all 

process wastewater. 

Notice to Control Authority if 

Pollutant Found to be Present: The final 

rule includes a provision which requires 

that in the event that a pollutant is 

subsequently found to be present or is 

expected to be present, the Industrial 

User must immediately resume 

monitoring and notify the Control 

Authority. 

Control Mechanism Issues: EPA 

clarifies that the Control Authority must 

include any waiver granted to an 

Industrial User in the User’s control 

mechanism. The Control Authority must 

also document the reasons for 

authorizing the waiver and maintain 

any information submitted by the User 

in support of the waiver for at least 

three years after expiration of the 

waiver. The waiver is valid only for the 

duration of the control mechanism. In 

order to continue the waiver for the 

period of the next control mechanism, 

the Industrial User will need to reapply 

for the waiver, including the submission 

of appropriate monitoring data. The 

control mechanism must include the 

requirement for the Industrial User to 

immediately notify the Control 

Authority in the event that the pollutant 

is found or suspected to be present, and 

to resume monitoring at least 

semiannually. The control mechanism 

still must include all applicable 

categorical Standards, even those 

Standards for which monitoring has 

been waived. 

Waiver Does Not Supercede Other 

Certifications: EPA has included a 

provision which states that the waiver 

of monitoring requirements cannot 

replace any certification requirements 

that have been established in specific 

categorical Pretreatment Standards. 

4. Summary of Major Comments and 

EPA Response 

How does EPA define ‘‘not present?’’

In the preamble to the proposed 

amendments, EPA specifically 

requested comment on how to define 

what is meant by ‘‘not present.’’ Several 

commenters suggested that a precise 

definition was not necessary based on 

the regulatory context. Other 

commenters suggested that it be defined 

in terms of a percentage of the 

applicable limit, while others suggested 

that the term be defined as at or below 

the levels found in the water supply. 

The final regulatory language clearly 

indicates that monitoring for a pollutant 

can be waived as long as the levels in 

the untreated wastewater do not exceed 

the levels in the intake water based on 

‘‘sampling and other technical factors.’’

EPA did not promulgate a definition of 

not present when the similar NPDES 

revision was finalized, and EPA 

continues to view the final regulatory 

language as sufficiently clear to avoid 

confusion. 

In response to commenters that 

suggested that ‘‘not present’’ be defined 

as a percentage of the applicable 

categorical Standard, EPA notes that 

today’s waiver is not for pollutants that 

are not reasonably expected to violate 

the Standard, but rather for pollutants 

that are neither present nor expected to 

be present in the Discharge above 

background levels. Therefore, the level 

of pollutant in the Discharge in relation 

to the Standard is not the relevant 

benchmark for the Control Authority’s 

determination whether the waiver 

request should be granted. Instead, what 

matters in the determination is whether 

the Industrial User’s practices or 

industrial processes add the pollutant. 

The Control Authority already has the 

ability to reduce monitoring to as 

infrequently as twice per year for any 

pollutants that are in the Discharge but 

are not reasonably expected to violate 

the Standard. However, if the 

background level from the Industrial 

User’s intake water already exceeds the 

applicable categorical Standard, a 

waiver of the monitoring requirements 

would not be available unless the 

Control Authority has adjusted the 

categorical Standard using the net/gross 

provision of 40 CFR 403.15, and the 

pollutant is not added to the wastewater 

by the discharger’s practices or 

processes. 

Several commenters also suggested 

that if a pollutant is added in 

‘‘negligible’’ amounts or in amounts 

equal to ‘‘typical’’ domestic levels, the 

Control Authority should still be 

authorized to grant the monitoring 

waiver. EPA addressed this issue in the 

preamble to the final NPDES regulation 

dealing with a waiver of monitoring 

requirements for direct dischargers. 

There, EPA stated: 

‘‘EPA declines to allow monitoring waivers 

for pollutants that are added by dischargers 

in minute amounts (e.g., use of common 

cleaners or from research operations) because 

human activity might lead to substantial 

increases in those pollutant Discharges 

which may threaten the aquatic environment. 

Consequently, there is a continuing need to 

monitor those pollutants. EPA also notes that 

at least one national effluent guideline 

addresses the introduction of incidental 

amounts of pollutants from cleaning, 

maintenance, or research operations and EPA 

does not believe it is appropriate to apply the 

waiver to a pollutant that is added to the 

wastestream and subject to an effluent 

guideline. See 40 CFR 414.11(b) (applying 

the Organic Chemicals, Plastics, and 

Synthetic Fibers Effluent Guidelines to 

wastewater Discharges from research and 

development operations). Metals or other 

pollutants that can leach from pipes may also 

pose a threat to the environment and EPA 

believes monitoring should be retained for 

such Discharges. With respect to pollutants 

which occur in amounts below ‘‘levels of 

concern’’, the discharge of such pollutants 

can also increase from human activity and 

EPA believes that monitoring is necessary to 

ensure that an appropriate level of treatment 

continues to be provided.’’ (65 FR 30892, 

May 15, 2000). 

Nothing submitted by commenters has 

changed the Agency’s mind in the case 

of indirect dischargers with respect to 

its earlier conclusion. 

Some commenters also suggested that 

EPA clarify that the term ‘‘quantities’’ as 

used in the proposal may mean mass 

loading in addition to concentration. 

EPA agrees that there may be instances 

where the use of mass may be more 

appropriate than concentration, and 

therefore will allow Control Authorities 

to use pollutant mass to compare the 

levels of pollutants in the wastewater to 

the levels of pollutants in the intake 

water. If the Industrial User can 

demonstrate through its technical 

evaluation that a specific pollutant is 

not added, and can demonstrate through 

a mass balance that any increases in the 

wastestream concentration are due only 

to evaporative losses or other similar 

reductions in the volume of wastewater 

discharged, then a monitoring waiver 

may be approved by the Control 

Authority. Note that accurate flow 

measurements will be necessary to 

perform the appropriate mass-balance 

calculations and demonstrate that small 

amounts of the pollutant are not added 

in the course of the facility activity. One 

example submitted by a commenter 

notes that cooling tower maintenance 

chemicals may add the pollutant of 

concern to the wastestream. If the 

pollutant of concern is added by the 

User in any way to the wastestream, 

then the Industrial User would not be 

eligible for the waiver. To the extent 

that the concentration is increased 

significantly such that it may impact the 

POTW, EPA would expect that a 

monitoring waiver would not be 

granted. In response to this comment, 

EPA is revising the language in the final 

regulation to refer to the ‘‘levels’’ of 

pollutants in the intake water rather 

than the ‘‘concentration’’ of pollutants 

in the intake water. This wording 

change is consistent with the similar 

NPDES permitting requirement for 

60140 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

direct dischargers (see 40 CFR 

122.44(a)(2)(i)). 

One commenter noted that EPA’s use 

of the phrase ‘‘with no increase in the 

pollutant due to the regulated process’’

could create confusion in how to handle 

pollutants that are added in other 

facility wastestreams that are not 

regulated by the applicable categorical 

Pretreatment Standard. EPA agrees that 

the phrase ‘‘with no increase in the 

pollutant due to the regulated process’’

is not appropriate. Although the phrase 

was used in the preamble to the 

proposal and not the proposed 

regulation, EPA is revising the final 

regulatory language to include the 

phrase ‘‘without any increase in the 

pollutant due to the activities of the 

Industrial User’’. This phrase better 

reflects EPA’s intent that the waiver 

would not be available for a pollutant 

where the Industrial User may add the 

pollutant through means other than the 

regulated industrial process (except for 

sanitary wastewater—see below). 

Should Industrial Users have the 

authority to waive sampling 

requirements rather than the Control 

Authority? Several commenters 

suggested that it would be appropriate 

for the Industrial User to have the 

authority to make the determination on 

whether a pollutant is present and 

monitoring requirements should be 

waived rather than the Control 

Authority. EPA disagrees that Industrial 

Users rather than the Control Authority 

should have the authority to waive 

monitoring for pollutants not present. 

The Control Authority is the regulatory 

agency responsible for ensuring 

compliance with applicable Standards, 

and is therefore the most appropriate 

agency for determining the monitoring 

requirements necessary for it to fulfill 

that responsibility. In addition, placing 

the authority with the Industrial User 

eliminates oversight that, in EPA’s view, 

is necessary to ensure that this 

provision is implemented correctly. 

What information is necessary to 

determine if a pollutant is not present 

at a facility? EPA received many 

comments suggesting what type of data 

is needed in order to make an informed 

decision on whether a pollutant is 

neither present nor expected to be 

present. Commenters noted that 

information contained in control 

mechanism applications and baseline 

monitoring reports, as well as data 

obtained through a thorough facility 

inspection could all be used to support 

a determination that a pollutant is not 

present. The commenters noted that 

these are all mechanisms for obtaining 

data on the raw materials, products, and 

by-products used and generated at an 

Industrial User. EPA agrees that these 

are valid sources of information that can 

contribute to an Industrial User’s 

demonstration that a pollutant is neither 

present nor expected to be present. EPA 

notes that the Industrial User 

monitoring waiver in today’s rule 

applies to the semiannual monitoring 

required under 40 CFR 403.12(e), and 

does not apply to monitoring required 

for the baseline monitoring report or the 

90-day compliance report. EPA has also 

concluded that if the Control Authority 

uses a control mechanism application 

form, such a form is an appropriate 

place for the Industrial User to request 

the monitoring waiver, although the 

mechanism for how the request is made 

is largely up to the discretion of the 

Control Authority. 

Commenters also suggested that 

material safety data sheets would be a 

valuable tool in determining whether 

specific pollutants are present in the 

raw materials or other chemicals used at 

the facility. EPA notes that material 

safety data sheets do not identify all of 

the pollutants present in a given 

material, and therefore cannot be relied 

upon to determine whether a pollutant 

is present in the raw materials or other 

chemicals at the Industrial User’s 

facility. In order for the Control 

Authority to accurately determine the 

presence of a pollutant in a given raw 

material or other chemical, the 

Industrial User will need to analyze the 

material in question, or obtain a 

certificate of analysis from the 

manufacturer of the material 

demonstrating the absence of the 

pollutant. In addition, the evaluation 

needs to include materials not 

necessarily used for the product, such as 

chemicals used in equipment cleaning 

and wastewater treatment. Although 

wastewater treatment chemicals are 

used to reduce the levels of pollutants 

in the Discharge, analysis of the 

chemicals can show significant levels of 

contaminants that can be added to the 

wastewater stream. Additional 

information, such as intermediate 

products, final products, and 

byproducts generated in the process will 

need to be considered as well, and 

therefore a detailed knowledge and 

evaluation of the process chemistry 

involved in the manufacturing 

operations will be necessary. 

Some commenters suggested that the 

determination of whether a pollutant is 

present should be based exclusively on 

a review of available information. While 

available information should certainly 

be used in the determination, and EPA 

would expect that most Industrial Users 

requesting the waiver would have a 

fairly extensive knowledge of the 

pollutants present in their wastewater, 

because the pollutants are either 

directly added or generated as 

byproducts, an Industrial User cannot 

assume that a pollutant is not present in 

its Discharge simply because it has not 

generated any information to suggest 

otherwise. EPA notes that the Industrial 

User has the burden to demonstrate that 

the pollutant is not present, and if this 

demonstration cannot be made to the 

satisfaction of the Control Authority, the 

waiver may not be granted. 

EPA does agree that the determination 

of whether a pollutant is present should 

be based on whether or not that 

pollutant would have the potential to 

enter the wastestream to the POTW. 

Such an evaluation must include the 

potential for the pollutants to enter the 

wastestream through spills and other 

potentially infrequent events, in 

addition to whether the pollutant would 

be routinely expected to enter the 

wastestream. Therefore, in order for 

monitoring for the pollutant to be 

waived, there must be a high degree of 

certainty that the pollutant will not 

show up in the Discharge to the POTW. 

EPA also notes that for facilities that 

use the combined wastestream formula, 

‘‘unregulated’’ wastestreams may be 

covered by the categorical Standard 

through the adjusted Standard. 

Therefore, EPA has concluded that it is 

not appropriate to allow a monitoring 

waiver where wastestreams other than 

those regulated by the categorical 

Standard contribute the pollutant of 

concern. However, since pollutants, 

especially metals, may be present in 

sanitary wastestreams at higher than 

background concentrations, and because 

sanitary wastestreams are not typically 

regulated through categorical Standards 

specifically or the Pretreatment program 

in general, the revised regulation 

provides that waivers may be granted 

where the only source of the increase in 

the pollutant from human activity is 

sanitary wastewater, provided that the 

sanitary wastewater is not regulated by 

an applicable categorical Standard and 

does not include the pollutant at levels 

that are significantly higher than typical 

domestic levels for the POTW’s service 

area. See 40 CFR 403.12 (e)(2)(i). 

One commenter noted several 

industries that claimed that a pollutant 

was not present in their Discharge, only 

to have it show up in monitoring 

results. EPA is aware of similar 

instances and knows of circumstances 

where the pollutants are later detected 

in the sampling data at fairly high 

levels. This is one of the reasons why 

EPA is requiring that the technical 

evaluation of the facility to determine 

the presence of the pollutant be 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60141 

supported by sampling data, including 

data prior to treatment. Even though 

EPA is generally not requiring a 

minimum amount of data (with the 

exception of the one sample required 

prior to treatment), Control Authorities 

are expected to have sufficient sampling 

data to support the technical evaluation. 

Where monitoring data shows that the 

pollutant is present at levels above the 

background intake water level, the 

Control Authority must deny the request 

for the monitoring waiver. 

How much sampling data is necessary 

to make a determination that a 

pollutant is not present? Comments on 

this issue varied from suggesting that no 

sampling is necessary to providing 

suggestions on specific sampling 

frequencies for the intake water as well 

as the effluent Discharge. One 

commenter suggested that no influent 

monitoring data was necessary if the 

effluent data shows no detectable levels 

of the pollutant. Although EPA has 

concluded that some sampling data is 

necessary to document the absence of a 

pollutant in the Discharge, the amount 

of sampling necessary for the 

determination is most appropriately 

determined on a site-specific basis, and 

will depend, in part, on how convincing 

are the arguments regarding the ‘‘other 

technical factors’’. Therefore, EPA is not 

establishing a minimum monitoring 

frequency. This is also consistent with 

the NPDES regulations, which do not 

establish a minimum sampling 

frequency. EPA is, however, 

establishing a minimum requirement 

that one sample be collected prior to 

treatment. Data prior to treatment is 

necessary to demonstrate that the 

measured levels reflect any pollutants 

that are added to the wastewater rather 

than the levels after they have been 

reduced by treatment, since effective 

treatment could become less effective 

over time. Other data that may be used 

in the evaluation include final effluent 

data and in many cases the facility 

intake water. 

It is important to note that the 

pollutant monitoring waiver is based on 

a facility-wide evaluation and, therefore, 

sampling data must be representative of 

all wastestreams, as well as any seasonal 

or other variability in the Discharge. In 

addition, note that the monitoring 

waiver is for pollutants that are neither 

present nor expected to be present, and 

not for pollutants which are added but 

for which no violation of the applicable 

Standard is expected. In some cases, the 

existing monitoring data will be 

sufficient to evaluate the presence of the 

pollutant in the Discharge. The data 

prior to treatment is less likely to have 

been collected in the past, although 

historic data, if still representative, can 

be used. 

EPA has concluded that a sequential 

approach to sampling is the most 

appropriate way to evaluate the request 

for a monitoring waiver based on 

sampling data. If monitoring of the 

Industrial User’s wastewater prior to 

treatment (and after treatment where 

appropriate) shows no detectable levels 

of the pollutant based on the most 

sensitive EPA approved method, then 

no sampling of the intake water is 

necessary because the levels of the 

pollutant in the Discharge will already 

have been shown to be at or below the 

levels in the intake water. However, if 

a pollutant is present in the Industrial 

User’s wastewater, data on the levels in 

the influent water are necessary to 

determine whether the presence of the 

pollutant is solely the result of levels in 

the influent water, or the result of the 

Industrial User adding the pollutant to 

some extent. Background levels of 

pollutants in an Industrial User’s 

influent water will vary from POTW to 

POTW, and possibly from Industrial 

User to Industrial User based on many 

factors. If historical data is available, 

based on prior sampling by either the 

Industrial User or the POTW, or based 

on drinking water system data that is 

representative of the Industrial User’s 

intake water, additional sampling may 

not be necessary. 

EPA notes that data for intake water 

must be representative of the water 

typically used at the facility, but prior 

to any water treatment or conditioning 

provided by the Industrial User. This 

generally means that the data, especially 

for lead and copper, should reflect 

pollutant levels of intake water that 

have been running continuously for at 

least several minutes, rather than 

pollutant levels of intake water that 

have been sitting in the pipes for several 

hours. Water system data for lead and 

copper will typically reflect the levels of 

pollutants in the water after it has been 

sitting in the pipes for at least six hours. 

Because this data is not generally 

representative of the levels of lead and 

copper in the typical facility intake 

water, drinking water data for lead and 

copper may not be representative of the 

Industrial User’s actual intake water and 

should not be used unless the Industrial 

User can demonstrate to the satisfaction 

of the Control Authority that the lead 

and copper levels are actually 

representative. 

How should Control Authorities and 

Industrial Users address analytical 

variability when determining if a 

pollutant is present above background 

levels? One commenter requested 

clarification on how to handle a 

situation where the Industrial User and 

the Control Authority had determined 

that a pollutant was not present, but 

subsequently found slightly higher 

levels based on monitoring data. EPA 

acknowledges that there is some 

variability in sample results. Therefore, 

it is possible that slightly higher levels 

of pollutants may be measured in the 

Industrial User’s wastewater than in the 

intake water. If the higher levels are 

within the method variability and the 

technical evaluation shows that the 

pollutant is neither present nor 

expected to be present, then the results 

should be considered equal. If the 

higher levels are above the method 

variability, then the pollutant should be 

considered to be present unless the 

Industrial User can demonstrate that the 

sample result was in error, or that the 

intake levels of the pollutant have risen 

to the same extent. EPA notes that the 

burden is on the Industrial User to 

demonstrate that an analytical error has 

occurred through re-analysis of the 

sample or other similar means. An 

unexpected result is not sufficient 

justification to consider a sample result 

to be in error since, as noted above, 

sampling data at times finds pollutants 

which were not expected to be present. 

Likewise, the Industrial User would 

need to provide sampling data 

demonstrating that the levels of the 

pollutant in question have risen in the 

intake water if it believes that this is the 

reason for the higher levels of the 

pollutant in its wastewater. 

Should any ongoing POTW 

monitoring be required to demonstrate 

that the waived pollutant continues to 

be absent from the Discharge? Not all 

commenters agreed with the EPA 

proposal requiring POTW’s to monitor 

for any waived pollutants at least once 

during the effective period of the 

Industrial User’s control mechanism. 

These commenters believed that the 

combination of the certification and the 

requirement to report changes in the 

Discharge were sufficient to ensure that 

the Control Authority would become 

aware of changes that would require a 

resumption of monitoring. Other 

commenters believed that the once per 

control mechanism term was 

appropriate and would not burden 

POTWs, while other commenters 

believed that monitoring once per year 

for the waived pollutants was 

appropriate. EPA disagrees that annual 

monitoring will be necessary to 

determine whether or not the pollutant 

is present. As stated in the preamble of 

the proposal, EPA asserts that if the 

Control Authority has determined, 

based on both sampling data and a 

60142 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

technical evaluation, that a pollutant is 

not present at levels above background, 

and if the Industrial User continues to 

certify that there is no increase in the 

pollutant in its wastewater due to the 

activities of the Industrial User, then it 

is appropriate to allow the Control 

Authority to determine whether to 

sample the facility more frequently than 

once during the term of the control 

mechanism. EPA received no data to 

suggest that more frequent monitoring is 

necessary. EPA notes that the Control 

Authority has the discretion to 

determine that the Industrial User must 

monitor for a pollutant despite the User 

having demonstrated that it is not 

present. Where the Control Authority 

elects to require monitoring in such 

circumstances, it may determine the 

appropriate frequency of monitoring, 

including frequencies that are less than 

twice per year. In addition, the 

Industrial User may also monitor on its 

own, even though the requirement to do 

so has been waived, but in this case the 

Industrial User must report the results 

of that monitoring to the Control 

Authority in accordance with 40 CFR 

403.12(g)(6). 

Although EPA is not requiring annual 

monitoring by the POTW, EPA has 

concluded that at least one effluent 

sample during the term of the Industrial 

User’s control mechanism is necessary 

to confirm that no changes have 

occurred, and that the monitoring 

waiver is still appropriate. EPA is 

requiring that this monitoring be done 

by the POTW to ensure an independent 

assessment of the Industrial User. EPA 

has concluded that the most appropriate 

time for the monitoring to occur is 

during the renewal of the control 

mechanism. However, EPA also asserts 

that the timing is best left to the 

discretion of the POTW and, therefore, 

is not requiring that the monitoring 

occur at any specific time during the 

duration of the control mechanism. 

Should the waiver be available for 

pollutants that in the past have caused 

Pass Through or Interference, or 

otherwise caused problems at the 

POTW? One commenter suggested that 

the monitoring waiver for pollutants not 

present should not be available for 

pollutants which have been problematic 

for the POTW in the past. EPA agrees 

that POTWs must be more careful when 

waiving the monitoring requirements for 

pollutants for which the POTW has 

previously experienced problems. In 

these instances, more monitoring data 

and a more careful review of the 

technical evaluation is warranted. 

However, if the pollutant is truly not 

present at the facility or in the Discharge 

and there is no potential for spills or 

slug loads of the pollutant, EPA does 

not view it as necessary to require 

monitoring at that Industrial User’s 

facility merely because the pollutant 

was associated with past POTW 

problems and, therefore, will not 

prohibit granting a waiver in these 

circumstances. Granting the waiver is at 

the discretion of the Control Authority, 

and where there has been a history of 

problems with a pollutant at the POTW, 

the Control Authority may deny a 

waiver, if it deems this necessary to 

prevent future problems. 

Is the waiver available for facilities 

subject to the Organic Chemicals, 

Plastics, and Synthetic Fibers category? 

Most comments supported allowing 

waiver of the monitoring requirements 

for pollutants not present for facilities 

subject to the OCPSF Standards. EPA 

agrees that Control Authorities should 

be able to grant the monitoring waiver 

to OCPSF dischargers if appropriate. 

Several commenters indicated that they 

know of OCPSF facilities that 

manufacture a limited number of 

products and have fairly consistent 

Discharges. A monitoring waiver for 

some regulated pollutants may be 

appropriate for such facilities and, 

therefore, a blanket exclusion for all 

OCPSF facilities from the waiver would 

not be appropriate. However, EPA notes 

that production and Discharges from 

OCPSF facilities can be highly variable. 

Control Authorities must ensure that 

sufficient information, including 

sampling data, is available to assess 

whether a particular pollutant is present 

at any time, taking into consideration all 

of the variability in production. When a 

particular pollutant may be present at 

some time based on the products that 

are manufactured at the facility, even if 

the pollutant is not currently present, a 

monitoring waiver for that pollutant 

would not be appropriate. If any 

facility’s operations, regardless of 

whether they are subject to OCPSF 

Standards or not, are sufficiently 

variable that a reasonable determination 

cannot be made as to whether a 

pollutant will consistently be absent 

from the Discharge, the Control 

Authority may not grant a waiver. 

How does the waiver for pollutants 

neither present nor expected to be 

present affect other waivers specifically 

included in a categorical Pretreatment 

Standard, such as the option under the 

metal finishing Standards allowing for 

implementation of a toxic organics 

management plan in lieu of monitoring 

for total toxic organics? Several 

commenters compared the waiver of 

monitoring for pollutants not present 

being promulgated today to other 

monitoring waivers such as the 

management plan and certification 

option under the metal finishing 

Standards in lieu of total toxic organics 

monitoring. In order to avoid any 

potential confusion, EPA is adding 

specific language to today’s regulations 

which states that the monitoring waiver 

and certification for a pollutant that is 

not present cannot be used in place of 

any certification process established in 

categorical Pretreatment Standards. 

Therefore, today’s monitoring waiver 

would not be available, for example, for 

total toxic organics under the metal 

finishing regulations. Rather, in order to 

reduce its monitoring for total toxic 

organics, a metal finisher would need to 

use the management plan and 

certification process contained in 40 

CFR 433.12. Since the metal finishing 

and other category-specific certifications 

were established for an identified set of 

facilities based on an evaluation of those 

facilities, while today’s monitoring 

waiver is being established generally 

without a reevaluation of each 

categorical Pretreatment Standard, EPA 

has concluded that it is not appropriate 

for today’s waiver to supercede these 

more specific certifications. EPA notes 

that the equivalent NPDES Permit 

requirement includes this same 

provision. See 40 CFR 122.44(a)(2)(v). 

However, while the general waiver for 

pollutants neither present nor expected 

to be present cannot substitute for a 

category-specific certification 

requirement, the data and analyses that 

would otherwise be used to support 

such a waiver may be relevant to, and 

if so form part of the basis for, the 

category-specific certification. 

While today’s rule provides that the 

monitoring waiver and certification for 

a pollutant that is not present cannot be 

used in place of any certification 

process already established in existing 

categorical Pretreatment Standards, the 

monitoring waiver is available for 

pollutants that are analyzed as 

surrogates for other pollutants. 

What happens if a facility’s 

operations change so that a pollutant 

for which a monitoring waiver has been 

granted is now present at the facility? 

Several commenters correctly noted that 

40 CFR 403.12(j) requires that Industrial 

Users provide notification of any 

substantial changes in the volume or 

character of pollutants in the Discharge. 

This notification requirement would 

apply in the event that a pollutant for 

which monitoring was waived became 

present at the Industrial User for any 

reason. However, the language in 40 

CFR 403.12(j) refers to pollutants in the 

Industrial User’s Discharge rather than 

any pollutant at the facility which is or 

may be added to the wastestream. 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60143 

Therefore, in order to clarify the 

requirement for waived pollutants, EPA 

has added language to the final 

regulation that states that notification is 

necessary, and that the Industrial User 

must immediately resume monitoring, if 

the pollutant is found or suspected to be 

present. The requirement to resume 

monitoring would apply even before the 

Industrial User’s control mechanism is 

revised to reflect the resumed 

monitoring. Control mechanisms that 

include the monitoring waiver must also 

include language requiring notification 

and the resumption of monitoring in the 

event that a pollutant is subsequently 

determined to be present at the facility. 

Failure to provide the required 

notification or to resume monitoring is 

a violation of the Industrial User’s 

control mechanism and the General 

Pretreatment Regulations. EPA also 

recommends that any control 

mechanism issued incorporating a 

monitoring waiver includes a reopener 

clause which allows the Control 

Authority to revise or revoke the waiver 

if appropriate. 

Where a facility has been granted a 

waiver of monitoring for a pollutant that 

has been determined not to be present 

and it installs or constructs new 

production lines or processes, the 

Industrial User must evaluate the new 

production lines or processes and 

determine whether they may cause the 

pollutant to be present, in which case 

the facility must resume monitoring. 

How often will certification that the 

pollutant is not present in the Discharge 

be required? EPA proposed that 

certification that a pollutant is not 

present at the facility be submitted 

twice-per-year with the semiannual 

reports otherwise required under 40 

CFR 403.12(e). Several commenters 

supported this approach, while others 

believed that a once-per-year 

certification would be sufficient, or that 

no certification should be required, 

especially since the Industrial User is 

required to report changes at the facility 

to the POTW. EPA has concluded that 

twice-per-year certification will not 

impose a significantly greater burden on 

Industrial Users than once-per-year 

certification since in most cases the 

reports would still be submitted at least 

twice-per-year even if monitoring for 

some pollutants is waived. In addition, 

it often may be easier for the Industrial 

User to include the certification with 

every report rather than determining 

which reports need the certification and 

which do not. Although required to 

report changes in the facility, an 

Industrial User’s willingness to certify 

that the pollutant is not present in the 

Discharge provides an additional 

assurance that the pollutant is not 

present above background levels. 

Accordingly, EPA has decided to 

maintain the twice-per-year certification 

requirement. 

In addition, EPA has clarified the 

language of the certification requirement 

to state that once an Industrial User has 

received a monitoring waiver, the 

certification is required and is not 

optional. If the Industrial User is no 

longer certain that the pollutant is not 

present, it must notify the Control 

Authority and immediately begin 

monitoring. EPA intends that the 

monitoring waiver be used in instances 

where a pollutant is consistently not 

present at a facility, and is not to be 

used for short periods of time when the 

pollutant is not present. 

It should be noted that the 

certification provided in the 40 CFR 

403.12(e)(2)(v) includes two blank 

spaces which are to be filled in by the 

Industrial User. In the first blank space, 

the Industrial User is to specify the 

applicable Pretreatment Standard(s) that 

apply to the facility (e.g., 40 CFR 

433.15). In the second blank space, the 

Industrial User is to list the pollutants 

for which the monitoring waiver has 

been granted. As noted above, the 

certification must include all of the 

pollutants for which a monitoring 

waiver has been granted. The Control 

Authority may also fill in the blank 

spaces before incorporating the 

certification language into the Industrial 

User’s control mechanism for use by the 

Industrial User with the semiannual or 

more frequent reports. 

Should the waiver be available for 

new Industrial Users, or during an 

Industrial User’s first control 

mechanism? EPA noted in the preamble 

to the proposed rule that the equivalent 

NPDES provision did not allow the 

monitoring waiver to be granted to New 

Sources/New Dischargers for the term of 

their first NPDES Permit. Comments on 

this issue were divided, with some 

commenters noting that the term of the 

first control mechanism is a good time 

to collect data on the presence of the 

pollutant at the facility, while other 

commenters believed that the Control 

Authority would generally be able to 

determine the presence of the pollutant, 

even for the first control mechanism. It 

is EPA’s view that the Control Authority 

may need time to collect enough data to 

appropriately assess whether pollutants 

at a new Industrial User are consistently 

not present and, therefore, should be 

cautious in approving a waiver for new 

Industrial Users. Time may be necessary 

to determine whether there are seasonal 

or other variations in the operations that 

would result in the pollutants being 

present periodically. However, the 

length of time needed to collect the data 

and make the assessment will vary 

depending on site-specific factors. 

Therefore, EPA has not included 

language in the regulation restricting the 

eligibility of a new Industrial User for a 

monitoring waiver for pollutants that 

are not present. 

What documentation of the waiver is 

required? Several commenters noted the 

need to document the waiver when it is 

approved by the Control Authority. EPA 

agrees that this documentation is 

important for the Approval Authority 

and the general public to ensure that 

waivers are properly granted. Pursuant 

to 40 CFR 403.14, this information must 

be made publicly available. It has 

always been EPA’s intent that any 

monitoring waivers would be 

documented in the Industrial User’s 

control mechanism. Today’s regulation 

also specifically requires that the 

Control Authority’s rationale for 

granting the waiver and any information 

submitted by the Industrial User in its 

request for a monitoring waiver be 

maintained by the Control Authority for 

at least three years after the expiration 

of the waiver. 

B. General Control Mechanisms (40 CFR 

403.8(f)(1)(iii)) 

Today’s final rule clarifies that 

POTWs may use general control 

mechanisms, such as general permits, to 

regulate the activities of groups of 

Significant Industrial Users (SIUs). 

Provided that the necessary legal 

authority exists, the POTW may use a 

general control mechanism for any 

facilities that meet certain minimum 

criteria for being considered 

substantially similar. 

In the NPDES permitting context, the 

use of general permits (see 40 CFR 

122.28) allows the permitting authority 

to allocate resources in a more efficient 

manner and to provide timelier permit 

coverage. For example, direct 

dischargers with common 

characteristics may be covered under a 

general permit without the permitting 

authority expending time and money to 

issue individual permits to each of these 

facilities. The use of a general permit 

also ensures consistency of permit 

conditions for similar facilities. In the 

Pretreatment context, POTWs might 

benefit from the use of control 

mechanisms for Discharges from SIUs to 

POTWs which are similar to the general 

permits used in the NPDES program. 

This modification should help 

POTWs by providing a cost-effective 

method to cover large numbers of 

similar facilities under a single 

mechanism. This is expected to reduce 

60144 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

the administrative burden of issuing 

separate mechanisms to similar 

facilities. 

1. What were the rules in place prior to 

today’s rulemaking? 

Prior to today’s rulemaking, the 

Pretreatment Regulations allowed 

POTWs to use general control 

mechanisms to control non-Significant 

Industrial Users, but required individual 

control mechanisms for SIUs. Section 

403.8(f)(1)(iii) required POTWs to 

‘‘Control through, order, or similar 

means, the contribution to the POTW by 

each Industrial User to ensure 

compliance. * * * In the case of 

Industrial Users identified as significant 

* * *, this control shall be achieved 

through s or equivalent individual 

control mechanisms issued to each such 

User.’’ The preamble to the regulation 

which originally required control 

mechanisms for SIUs emphasized the 

importance of POTWs evaluating SIUs 

on an individual basis to determine the 

need for individual requirements as 

necessary. See 55 FR 30082 (July 24, 

1990). 

2. What changes did EPA propose? 

EPA proposed to revise the regulation 

by authorizing POTWs to use ‘‘general 

permits’’ to regulate SIUs in certain 

circumstances. Under the proposal, all 

of the facilities to be covered by a 

general permit must employ the same or 

substantially similar types of industrial 

processes; discharge the same types of 

wastes; require the same effluent 

limitations; and require the same or 

similar monitoring. These requirements 

reflect the existing criteria for using 

general permits for direct dischargers at 

40 CFR 122.28(a)(2)(i). EPA also 

indicated that the use of a general 

permit does not relieve the SIU from 

any reporting or compliance obligations 

under Part 403. 

3. What changes is EPA finalizing in 

today’s rule? 

In today’s rule, EPA is finalizing the 

proposed rule’s change to allow the use 

of general control mechanisms for SIUs. 

Section 403.8(f)(1)(iii) contains the 

revisions which authorize general 

control mechanisms. 

EPA notes that today’s rule replaces 

the term ‘‘general permit’’ with ‘‘general 

control mechanism’’. This terminology 

is more consistent with the existing 

Pretreatment Regulations which require 

that SIUs be controlled through 

‘‘permits or equivalent individual 

control mechanisms.’’ Just as EPA has 

not precluded the use of an ‘‘order or 

similar means’’ to regulate individual 

SIUs, it also is not ruling out the use of 

other mechanisms besides permits to 

address groupings of SIUs. This 

decision is based on the rationale EPA 

provided when the Agency first 

promulgated the requirement that 

POTWs regulate SIUs through 

individual control mechanisms to SIUs. 

See 55 FR 30107, July 24, 1990. EPA is 

including the relevant passage from this 

final rule for reference: 

‘‘* * * the Agency will require issuance of 

‘‘individual Discharge permits or equivalent 

control mechanisms.’’ An adequate 

equivalent control mechanism is one which 

ensures the same degree of specificity and 

control as a permit. To clarify that the 

conditions of the individual control 

mechanism must be enforceable against the 

Significant Industrial User through the usual 

remedies for noncompliance (set forth in 40 

CFR 403.8(f)(1)(vi)(A), EPA has amended the 

language of 40 CFR 403.8(f)(1)(vi)(B) to 

provide that Pretreatment requirements 

enforced through the remedies of 40 CFR 

403.8(f)(1)(vi)(A) shall include the 

requirements set forth in individual control 

mechanisms. In addition, the Agency has 

added to proposed 40 CFR 403.8(f)(1)(iii) a 

statement that individual control 

mechanisms must be enforceable. 

What types of facilities may be subject 

to a general control mechanism? SIUs 

that are covered by concentration-based 

Standards and Best Management 

Practices may be subject to general 

control mechanisms. However, due to 

the requirement that all facilities 

covered under the same mechanism 

‘‘require the same effluent limitations’’, 

facilities regulated by categorical 

Standards expressed as mass limits, 

which are inherently unique to each 

individual User, can not receive 

coverage under a general control 

mechanism. The one exception to this 

exclusion would be situations where the 

POTW has imposed the same massbased local limit on a number of 

facilities, and any categorical Standards 

are expressed as concentration limits or 

BMPs. In addition, general control 

mechanisms are not available for 

Industrial Users whose limits are based 

on the Combined Wastestream Formula 

or Net/Gross calculations, or other 

calculated categorical Pretreatment 

Standard equivalents (40 CFR 403.6(e) 

and 40 CFR 403.15). 

How does an SIU apply for coverage 

under a general control mechanism? For 

an individual SIU to be covered by a 

general control mechanism, it must file 

a ‘‘written request for coverage’’ with 

the POTW. Through the request for 

coverage, the Industrial User should 

identify its production processes, the 

types of waste generated, and the 

monitoring location or locations at 

which all regulated wastewaters will be 

monitored. The request for coverage 

should also include a finding that the 

SIU properly falls within the category of 

facilities covered by the general control 

mechanism. In addition, the SIU’s 

request for coverage should include an 

indication of whether the User is 

requesting a monitoring waiver for 

pollutants not present. 

The POTW does not necessarily need 

to establish an entirely new application 

process for SIUs seeking coverage under 

a general control mechanism. Existing 

procedures or forms may be used to 

provide coverage. The POTW may find 

that it is necessary to supplement 

existing procedures or forms to add the 

information EPA recommends for 

inclusion in the requests for coverage, as 

discussed in the preceding paragraph. 

How does the POTW adopt general 

control mechanisms? A POTW must 

have the necessary legal authority if it 

wants to issue general control 

mechanisms. Legal authority changes 

would include the adoption of 

ordinance language consistent with 

today’s changes to 40 CFR 403.8(f)(1)(iii) 

and the development of any policies or 

procedures that would support the 

issuance and implementation of general 

control mechanisms. Refer to Section VI 

for a more detailed discussion of 

Program modifications. 

In addition, general control 

mechanisms have to be enforceable to 

the same extent as an individual control 

mechanism. The POTW should also 

have enforcement authority to take 

action against Industrial Users that fail 

to file the required request for a general 

control mechanism, i.e., an IU that fails 

to file is subject to enforcement for 

discharging without authorization. 

The POTW should develop the 

general control mechanism and provide 

notice that it is available. The general 

control mechanism should, of course, 

specify exactly what characteristics or 

conditions make an Industrial User 

eligible for coverage. The general 

control mechanism must also impose all 

of the conditions of individual control 

mechanisms listed in 40 CFR 

403.8(f)(1)(iii)(B)(1)–(6). 

A POTW may make coverage by the 

general control mechanism mandatory 

or optional. In either case, if an 

Industrial User is to be covered by the 

general control mechanism, it must file 

the written request for coverage to be 

covered by the general control 

mechanism. The POTW should consider 

how it will notify SIUs, subsequent to 

their filing a written request for 

coverage, that they are authorized to 

discharge under the general control 

mechanism, including how it will 

memorialize certain facility-specific 

factors such as sampling location. EPA 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60145 

notes that the POTW’s annual report 

should indicate which SIUs are covered 

by each general permit. 

Today’s final rule does not preclude 

POTWs from requiring individual 

control mechanisms for specific 

Industrial Users, even if they might 

otherwise satisfy the conditions for a 

general control mechanism, where 

necessary or otherwise determined to be 

appropriate by the POTW. Today’s final 

rule also does not restrict POTWs’

existing authority to use general control 

mechanisms to regulate facilities that 

are not considered Significant Industrial 

Users. 

What significant changes were made 

to the proposed rule? 

Today’s rule makes the following 

changes to the proposed rule: 

Criteria for Coverage: In proposing the 

criteria for coverage under a general 

control mechanism, EPA omitted one of 

the criterion used in the NPDES general 

permit requirements. In today’s final 

rule, EPA is adding this criterion, which 

is similar to 40 CFR 122.28(a)(2)(i)(E), to 

the list of criteria for coverage. The 

following language is included in 40 

CFR 403.8(f)(1)(A)(5): ‘‘in the opinion of 

the POTW, [the SIUs] are more 

appropriately controlled under a general 

control mechanism than under 

individual control mechanisms.’’

Request for Coverage: EPA has deleted 

all references to the requirement to 

submit a ‘‘Notice of Intent’’ (NOI) to be 

covered under a general control 

mechanism. The NOI is an instrument 

that is applicable to the NPDES general 

permit program. Although the proposal 

indicated that an alternative instrument 

could be used by the POTW, EPA has 

concluded that the ‘‘written request for 

coverage’’ better reflects the Agency’s 

intention not to restrict the POTW’s 

decision about the type of application it 

chooses to use in covering SIUs with a 

general control mechanism. 

Coverage for SIUs with Monitoring 

Waivers for Pollutants Not Present: EPA 

makes coverage under a general control 

mechanism available for SIUs which are 

requesting monitoring waivers for 

pollutants neither present nor expected 

to be present. The proposal did not state 

whether such facilities could still meet 

the required criteria for being 

considered substantially similar. EPA 

also specifies that the monitoring waiver 

is effective in the general control 

mechanism only after the SIU obtains 

written approval from the POTW that 

the monitoring waiver request has been 

approved. 

Coverage for SIUs with Mass Limits: 

The proposed rule excluded all facilities 

subject to mass limits from coverage 

under a general control mechanism. 

Today’s final rule provides one 

exception to that exclusion. EPA 

clarifies in 40 CFR 403.8(f)(1)(iii)(A) that 

general control mechanisms are 

unavailable for facilities subject to 

categorical Standards expressed as mass 

of pollutant discharged. This language 

does not prevent a POTW from using a 

general control mechanism for a group 

of SIUs that all have the same massbased local limits (as distinguished from 

mass-based categorical Standards), as 

long as the SIUs are not subject to 

categorical Standards that are massbased. In addition, the final rule also 

clarifies that the mass-based categorical 

Standards excluded from coverage 

under a general control mechanism 

includes those limits that are expressed 

as mass of pollutant discharged per day 

or that are production-based. 

Recordkeeping Requirements: EPA is 

adding a requirement for the POTW to 

maintain for three years after the 

expiration of the general control 

mechanism, a copy of the general 

control mechanism itself, 

documentation to support the POTW’s 

determination that the group of SIUs to 

be covered meets the required criteria, 

and copies of all related requests for 

coverage. This documentation will serve 

as a record for the POTW to support its 

actions in establishing the facility 

category and for authorizing coverage 

under the general control mechanism 

for individual facilities. 

4. Summary of Major Comments and 

EPA Response 

Is use of a general control mechanism 

in conflict with EPA’s original intent in 

requiring individualized control 

mechanisms for SIUs? One commenter 

expressed concern that using general 

control mechanisms would not provide 

the specificity of control over SIUs that 

the Domestic Sewage Exclusion (DSE) 

study (Report to Congress on the 

Discharge of Hazardous Wastes to 

Publicly Owned Treatment Works—EPA 

530–SW–86–004) indicated was 

necessary. Today’s rule provides an 

exception to the requirement that the 

POTW issue SIUs ‘‘permits or 

equivalent individual control 

mechanisms’’. The commenter is correct 

in observing that the adoption of the 

requirement to issue control 

mechanisms to SIUs after EPA’s 

issuance of the DSE study in 1986, was 

intended to provide a mechanism for 

the POTW to impose individualized 

Pretreatment requirements on SIUs. See 

55 FR 30105–30110 (July 24, 1990). 

However, EPA has now concluded that 

general control mechanisms can provide 

an equivalent level of control for 

facilities that meet all of the 

requirements in 40 CFR 

403.8(f)(1)(iii)(1–6), and will not lessen 

the POTW’s enforcement capabilities. 

Use of a general control mechanism 

does not relieve the POTW of any of its 

oversight or implementation 

requirements under its Pretreatment 

program. The purpose of the general 

control mechanism is to streamline the 

administrative requirements associated 

with issuing control mechanisms to 

multiple Industrial Users that are 

substantially similar. The level of 

control over an SIU with a general 

control mechanism should not be any 

different than if that User were covered 

by an individual control mechanism. 

Both individual and general control 

mechanisms must be enforceable and 

must contain the minimum conditions 

provided in 40 CFR 403.8(f)(1)(iii)(B)(1–

6). In addition, EPA notes that it is 

within the POTW’s discretion to 

exclude particular Industrial Users from 

general control mechanisms in order to 

treat those dischargers with more 

individually tailored requirements. 

EPA’s intent is to leave these case-bycase determinations to the POTW, 

which should be in the best position to 

determine whether it is appropriate to 

use a general control mechanism for a 

particular User. 

Is a Notice of Intent (NOI) required for 

an SIU requesting coverage under a 

general control mechanism? Several 

commenters found EPA’s use of the 

term ‘‘Notice of Intent’’ (NOI) 

problematic because it suggested that 

POTWs would be required to use such 

an instrument. These commenters 

requested that EPA delete the reference 

to NOI or make it clear that the POTW 

can choose the appropriate mechanism 

for SIUs to use in seeking coverage 

under a general control mechanism. 

EPA acknowledges these concerns, and 

has removed the reference to ‘‘notice of 

intent’’ in today’s final rule. The revised 

rule instead refers only to a ‘‘written 

request for coverage.’’ The decision 

regarding the type of application to use 

for general control mechanisms is 

entirely the POTW’s. EPA emphasizes, 

however, that regardless of the type of 

instrument chosen, the request for 

coverage must identify, at a minimum, 

the information required under new 40 

CFR 403.8(f)(1)(iii)(A). POTWs must 

also request basic contact information 

(e.g., contact name, address, phone 

number, etc.) and specification of the 

general control mechanism category for 

which the SIU is seeking coverage. See 

40 CFR 403.8(f)(1)(iii)(A). The POTW 

will need to obtain sufficient 

information to verify that the User is 

appropriately classified under the 

general control mechanism, such as 

60146 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

information to determine the 

applicability of categorical Standards. 

Should there be additional criteria for 

a User to be eligible for coverage under 

a general control mechanism? One 

commenter requested that EPA include 

additional criteria for determining 

whether a group of Users are 

substantially similar enough to merit 

use of a general control mechanism. The 

criteria included in the proposal (e.g., 

that facilities to be covered involve the 

same or substantially similar types of 

operations, discharge the same types of 

wastes, require the same effluent 

limitations, and require the same or 

similar monitoring) are taken from the 

criteria used for general permits for 

direct dischargers in 40 CFR 

122.28(a)(2)(i). The direct Discharge 

criteria contain one additional 

limitation, not included in the proposal, 

requiring the NPDES permitting 

authority to document that, in his or her 

opinion, the dischargers ‘‘are more 

appropriately controlled under a general 

permit than under individual permits.’’

See 40 CFR 122.28(a)(2)(i)(E). In 

consideration of the commenter’s 

request, and to be consistent with the 

criteria used for grouping direct 

dischargers within general permits, EPA 

has modified the proposed list of 

criteria to include a similar requirement 

that the POTW document why it 

believes that its SIUs are more 

appropriately regulated by a general 

control mechanism. EPA does not 

expect that this added criterion will 

impose additional burden on the POTW. 

This criterion merely requires that the 

POTW provide some written record of 

why it believes a particular grouping of 

SIUs is substantially similar, using the 

criteria in 40 CFR 403.8(f)(1)(iii)(A)(1–

5). 

Another commenter suggested that an 

SIU’s compliance record should be used 

as an additional criterion for 

determining whether to allow general 

control mechanism coverage for a 

facility. EPA agrees that there will be 

factors, outside of the criteria in 40 CFR 

403.8(f)(1)(iii)(A), which may support a 

POTW’s decision to exclude a particular 

Industrial User from general control 

mechanism coverage. EPA also agrees 

that the need to impose a compliance 

schedule or enforcement order on a 

particular Industrial User is a good 

example of an additional criterion that 

the POTW may use to exclude an SIU 

from general control mechanism 

coverage. EPA notes that the criteria 

listed in 40 CFR 403.8(f)(1)(iii)(A) are 

minimum requirements. The POTW 

may include additional criteria if it 

chooses. However, EPA is reluctant to 

add additional criteria at this time, as 

the Agency has concluded that many of 

these factors will be site-specific and are 

best left to the POTW to judge whether 

they are appropriate for use in their 

program. 

One commenter suggested that 

general control mechanisms not be 

available for SIUs that have multiple 

sampling locations, are subject to more 

than one categorical Standard, or have 

both federal categorical and noncategorical wastestreams. EPA agrees 

that situations such as this make it 

difficult to use a general control 

mechanism in some cases. However, 

EPA declines to adopt the additional 

criteria suggested by the commenter. 

The minimum required criteria in 40 

CFR 403.8(f)(1)(iii)(A) provide some 

flexibility regarding the availability of 

coverage for any particular User. EPA 

prefers to leave to the POTW the sitespecific judgments as to whether a class 

of dischargers meets the substantially 

similar criteria. The POTW may 

determine that a User which has 

multiple sampling points or which is 

subject to both categorical Standards 

and non-categorical requirements is 

sufficiently dissimilar from other Users 

to justify precluding that discharger 

from general control mechanism 

coverage. There may be some instances 

where these differences may still be 

accommodated under a general control 

mechanism, and therefore EPA has 

concluded that eliminating this 

flexibility is inappropriate. 

Additionally, a general control 

mechanism may still be used to cover a 

class of Users subject to more than one 

categorical Standard as long as they are 

covered by the same Standards, in 

addition to meeting all other criteria for 

coverage. This is consistent with the 

requirement that all Users share the 

same effluent limits. See 40 CFR 

403.8(f)(1)(iii)(A)(3). However, EPA 

expects that where there is one User in 

the class which is subject to at least one 

different categorical Standard than the 

others, even if it has one or more 

categorical Standards in common with 

the other Users, such a User would be 

unable to obtain coverage under a 

general control mechanism covering the 

other Users due to the differences in 

effluent limits. 

Must the SIUs be exactly the same to 

be covered under a general control 

mechanism? Several commenters 

questioned EPA’s intentions behind 

requiring that facilities meet the 

‘‘substantially similar’’ criteria in order 

to qualify for use of a general control 

mechanism. Some of these commenters 

were concerned that the criteria would 

be interpreted too restrictively, and that 

industries would essentially have to be 

identical to be included in a general 

control mechanism group. One 

commenter believed that industries 

which are similar in many respects, but 

which are different in terms of 

operations and wastewater Discharges, 

should not be excluded from coverage. 

EPA’s view is that the criteria for 

inclusion in a general control 

mechanism category are appropriate as 

stated. The opportunity to develop and 

issue the same control mechanism for 

multiple SIUs comes with the tradeoff 

that these industries share certain 

minimum characteristics. In response to 

the commenter’s observation that 

general control mechanisms should be 

available for industries which are 

similar in many respects, but different 

in terms of operations and wastes 

discharged, EPA agrees and notes that 

the criteria require that the operations 

be ‘‘the same or substantially similar’’

and the Discharge be of ‘‘the same types 

of wastes.’’ EPA does not intend for 

these criteria to be interpreted as 

requiring the operations and wastes 

discharged to be exactly the same; 

rather, the intent is that industries 

covered under the same control 

mechanism be substantially similar. 

EPA acknowledges that industries are 

rarely the same in every respect. In 

order for an SIU to be included in a 

general control mechanism category, it 

must meet the criteria in 40 CFR 

403.8(f)(1)(iii)(A). With the exception of 

the SIU’s effluent limits, which must be 

the same as other SIUs in the general 

control mechanism category, EPA does 

not expect each SIU in a general control 

mechanism category to be identical. 

Can a general control mechanism be 

used for facilities which obtain a 

monitoring waiver for pollutants neither 

present nor expected to be present? One 

commenter recommended that general 

control mechanisms not be made 

available for SIUs which receive a 

monitoring waiver for pollutants neither 

present nor expected to be present at the 

facility. The commenter reasoned that 

such facilities require individual control 

mechanisms due to the variation in 

sampling requirements from other 

facilities. EPA disagrees with the 

commenter. Categorical Industrial Users 

(CIUs) that qualify for a sampling waiver 

for pollutants neither present nor 

expected to be present can still be 

accommodated under a general control 

mechanism even if other Users in the 

same general control mechanism 

category are still required to sample for 

all pollutants. There is flexibility 

inherent in the criterion requiring all 

industries covered by a general control 

mechanism to be subject to the ‘‘same or 

similar monitoring’’. If a particular CIU 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60147 

is similar in every other respect to other 

CIUs, except for a sampling waiver for 

pollutants neither present nor expected 

to be present, it is EPA’s view that a 

general control mechanism may still be 

used to cover this discharger. However, 

a POTW could choose as a matter of its 

own discretion to exclude CIUs with 

sampling waivers from coverage under 

the general control mechanism. 

To assist the POTW in coordinating 

the implementation of general control 

mechanisms and processing requests for 

monitoring waivers, EPA is requiring 

Users to include in their requests for 

general control mechanism coverage any 

sampling waiver requests. Such a 

requirement will ensure that the POTW 

is able to process both the sampling 

waiver request and the general control 

mechanism application simultaneously, 

and provide the POTW with sufficient 

opportunity to determine what type of 

control mechanism is most appropriate. 

Where the POTW chooses to still cover 

those CIUs which receive monitoring 

waivers under a general control 

mechanism, 40 CFR 403.8(f)(1)(iii)(A) 

specifies that the monitoring waiver is 

effective only after the POTW has 

specifically notified the affected CIUs. 

Also, because all control mechanisms 

must include SIU self-monitoring 

requirements, unless all of the 

monitoring requirements and waivers 

for all pollutants are the same, the 

POTW will need to establish a common 

set of monitoring requirements in a 

general control mechanism and 

determine what mechanism it will use 

to incorporate site-specific monitoring 

waivers into a general control 

mechanism. Some possible mechanisms 

for addressing facility-specific 

monitoring waivers include issuing a 

separate monitoring supplement to the 

general control mechanism for 

individual CIUs, using the waiver 

approval notice as a site-specific 

modification to the general control 

mechanism, or appending the general 

control mechanism with specific 

monitoring waivers. See Section III.A. 

for discussion of requirements 

associated with monitoring waivers. 

Can an SIU opt out of an existing 

general control mechanism? Several 

commenters expressed opinions on one 

side or the other in terms of whether 

general control mechanisms can be 

made mandatory or optional by the 

POTW. Industrial facilities generally 

commented that EPA should prevent 

POTWs from making general control 

mechanisms mandatory, while POTW 

commenters supported keeping this 

decision a matter of the local program’s 

discretion. EPA is sensitive to the 

concerns regarding the need for 

flexibility on the type of control 

mechanism used for individual SIUs. 

The industry commenters argue that the 

SIU should be able to choose whether it 

wants to be covered by an individual or 

general control mechanism. EPA does 

not specify in today’s rule whether the 

use of general control mechanisms 

should be optional or mandatory. 

However, provided that the SIUs in a 

category meet the required criteria, the 

POTW has the discretion to determine 

whether coverage under the general 

control mechanism is required or 

whether the Industrial User will have 

the option of being covered under an 

individual control mechanism. EPA 

emphasizes that there should be 

minimal if any difference between an 

individual and general control 

mechanism since the POTW is required 

to include in a general control 

mechanism all of the conditions of 

individual control mechanism listed in 

40 CFR 403.8(f)(1)(iii)(B)(1)–(6). Even if 

the POTW chooses to make general 

control mechanism coverage mandatory, 

the SIU may be able to demonstrate to 

the POTW that it does not meet one of 

the criteria and therefore should be 

issued an individual control 

mechanism. 

C. Best Management Practices (40 CFR 

403.5, 403.8(f) and 403.12(b), (e), and 

(h)) 

Today’s final rule clarifies that Best 

Management Practices (BMPs) may be 

used in lieu of numeric local limits. 

EPA also clarifies the reporting 

requirements that apply when BMPs are 

used as Pretreatment Standards. 

1. What are the existing rules? 

What are Best Management Practices? 

Best Management Practices (BMPs) 

are management and operational 

procedures that are intended to prevent 

pollutants from entering a facility’s 

wastestream or from reaching a 

Discharge point. BMPs are distinguished 

from numeric effluent limits that 

regulate the pollutants once they enter 

a wastestream. Although the General 

Pretreatment Regulations have not 

previously defined BMPs, the NPDES 

regulations at 40 CFR 122.2 define 

BMPs as schedules of activities, 

prohibitions of practices, maintenance 

procedures, and other management 

practices to prevent or reduce pollution. 

BMPs also include treatment 

requirements, operating procedures, and 

practices to control plant site runoff, 

spillage or leaks, sludge or waste 

disposal, or drainage from raw material 

storage. 

There are two different circumstances 

in which BMPs may be Pretreatment 

Standards. The first is when a POTW 

establishes BMPs as local limits to 

implement the general and specific 

prohibitions. The second is when the 

BMPs are categorical Pretreatment 

Standards established by EPA. 

What regulations address the use of 

BMPs as local limits? 

Prior to today’s rule, the Pretreatment 

Regulations did not specifically address 

the use of BMPs as local limits. Thus, 

40 CFR 403.5(c) required POTWs to 

develop ‘‘specific limits’’ and ‘‘specific 

effluent limits’’, without defining the 

term ‘‘limits.’’ (emphasis added) 

The Local Limits Development 

Guidance (EPA 833–R–04–002A, July 

2004) includes a discussion in support 

of BMPs as local limits, and provides 

references and case studies to illustrate 

situations where BMPs have been 

utilized. EPA indicates also that the 

development and implementation of 

numeric local limits is not always the 

only appropriate or practical method for 

preventing pollutant Pass Through and 

Interference, or for protecting POTW 

worker health and safety. For instance, 

control of chemical spills and Slug 

Discharges to the POTW through formal 

chemical or waste management plans 

can go a long way toward preventing 

problems. A local requirement for an 

Industrial User to develop and submit 

such a plan can be considered as a type 

of narrative local limit and can be a 

useful supplement to numeric limits. 

What regulations address the use of 

BMPs as categorical Standards? 

Certain categorical Pretreatment 

Standards allow the use of BMPs as an 

alternative means of complying with, or 

in place of the established numeric 

effluent limit. For example, facilities 

may develop toxic organic management 

plans in lieu of sampling to demonstrate 

compliance with the total toxic organic 

limit in 40 CFR Part 433 (Metal 

Finishing category). The Pesticides 

Formulating, Packaging, and 

Repackaging (PFPR) regulation provides 

a pollution prevention alternative as an 

option that may be chosen rather than 

complying with the ‘‘zero discharge’’

limitations. See 40 CFR Part 455 (61 FR 

57518, November 6, 1996). 

Although the PFPR and some other 

categorical Standard regulations have 

provided for reporting compliance data 

related to BMPs, the Part 403 

Pretreatment Regulations did not. See 

40 CFR 403.12(b), (d), and (e). Those 

requirements focused on sampling data 

to demonstrate compliance with 

numeric limits rather than 

60148 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

documentation to determine compliance 

with a BMP. 

2. What changes did EPA propose? 

EPA proposed to clarify the 

regulations to provide specifically that 

BMPs developed by POTWs may serve 

as local limits required by 40 CFR 

403.5(c)(3). The BMPs would be 

enforceable under 40 CFR 403.5(d). 

They would be included as local control 

mechanism requirements under 40 CFR 

403.8(f)(1)(iii)(C). 

EPA also proposed to modify 40 CFR 

403.12(b), (e), and (h) to clarify the 

reporting requirements that apply when 

BMPs are used as Pretreatment 

Standards. This would include any 

documentation required by the Control 

Authority or the Standards themselves 

to demonstrate compliance with BMPs 

that are included in categorical 

Standards, as well as any 

documentation required by the Control 

Authority to demonstrate compliance 

with BMPs that serve as local limits. 

EPA also proposed a change to the 

definition of significant noncompliance 

(SNC) to facilitate POTW oversight of 

these practices. The proposal would 

broaden the SNC definition at 40 CFR 

403.8(f)(2)(vii)(C) to include nonnumeric violations such as BMPs. In 

addition, EPA proposed to revise the 

reference to ‘‘pretreatment effluent 

limit’’, and replace it with the more 

inclusive reference to ‘‘Pretreatment 

Standard or Requirement’’. 

3. What changes is EPA adopting today? 

Today’s rule adopts the proposed rule 

changes to the Pretreatment Regulations 

relating to the use of BMPs as local 

limits, and the reporting requirements 

when BMPs are used as national 

categorical Standards. 

What significant changes were made to 

the proposed rule? 

The only significant change made to 

the proposed rule was the inclusion in 

40 CFR 403.3(e) of a definition of BMPs 

consistent with the NPDES definition. 

4. Summary of Major Comments and 

EPA Response 

Does the CWA authorize POTWs to 

require implementation of BMPs as 

local limits? A few commenters 

questioned the authority under the 

CWA for POTWs unilaterally to require 

Industrial Users to implement BMPs 

instead of or in addition to numeric 

local limits. POTW authority to 

establish limits and other controls on 

Discharge derives from state law, not the 

CWA. The Act, together with the 

Pretreatment Regulations, specifies 

authorities that POTWs must have, and 

establishes the conditions under which 

local requirements become federally 

enforceable. There is nothing under the 

Act that would preclude POTWs from 

setting BMP-based limits, or EPA from 

making such limits established by a 

POTW federally enforceable. 

How are BMPs defined? Several 

commenters felt that the use of the 

NPDES definition of BMPs would be 

appropriate in the Pretreatment context. 

EPA agrees that such a definition would 

be useful, and is adopting the NPDES 

definition, modified slightly to reference 

relevant Pretreatment Standards. 

Is a regulatory change needed for 

BMPs developed by POTWs to be 

considered enforceable local limits? 

Some commenters expressed the view 

that BMPs could already serve as 

enforceable local limits, and that a 

regulatory change was unnecessary. As 

discussed in the preamble to the 

proposal, the existing regulations do not 

specifically address this issue, although 

EPA has supported their use in its local 

limits guidance. EPA has concluded that 

revision of the regulations is necessary 

to clear up any questions on this issue. 

As will be discussed below, by 

providing this clarification EPA is 

ensuring that POTWs have additional 

means at their disposal as they seek to 

control pollutants and sources not 

amenable to more traditional numeric 

limits. 

Will POTWs be limited in their ability 

to develop BMPs as local limits? Some 

commenters recommended that the 

POTW’s ability to use BMPs as local 

limits be limited to certain situations, 

such as where it is impracticable to 

obtain representative sampling data 

from a type of discharger, the Discharge 

flow is minimal or variable, or where 

operations or processes of a type of 

discharger are similar enough that 

effective BMPs can be established. In 

general, EPA anticipates that POTWs 

will choose to use BMPs instead of 

numeric local limits where 

determination of compliance with 

numeric limits is infeasible, or as a 

supplement to numeric limits as 

appropriate to meet the requirements of 

the CWA. As the commenters pointed 

out, BMPs may be appropriate for 

regulating releases when the types of 

pollutants vary greatly over time, when 

chemical analyses are impracticable, 

and when other Discharge control 

options are inappropriate. It may also be 

appropriate for IUs to be required to 

comply with both BMPs and numeric 

limits. While use of BMPs is not 

appropriate in all situations, their use, 

either in conjunction with or instead of 

numeric limits, will be at the discretion 

of the POTW, with oversight by EPA 

and the state Approval Authority. 

What are some specific situations 

where BMPs would be appropriate? 

Numerous commenters representing 

POTWs, Industrial Users and trade 

associations provided specific examples 

where BMPs would be well-suited to 

address certain types of industrial or 

commercial Discharges, either in lieu of 

or in addition to numeric local limits. 

Examples involving requirements for 

photoprocessors to use silver recovery 

systems and/or management practices 

were frequently cited to address silver 

Discharges from large numbers of 

commercial facilities. Also cited were 

requirements for dental facilities to 

follow BMPs to control mercury 

Discharges from dental amalgam where 

individual monitoring on a large scale is 

impractical and where Discharges are 

episodic in nature. Similarly, other 

commenters referred to use of shop 

towel management and other BMPs to 

address Discharges from printing 

facilities, or setting requirements for ‘‘no 

Discharge’’ of tetrachloroethene from 

dry cleaning facilities as an alternative 

to complying with a numeric limit. The 

Agency agrees that these are good 

examples of situations where BMPs may 

be appropriate. 

BMPs may also be used to supplement 

categorical Standards or numeric local 

limits at larger facilities. One 

commenter described the use of 

chemical management plans to address 

specific pollutants in individual IU 

Permits. These plans, which were 

required by the POTW, require IUs to 

identify within 60 days of Permit 

issuance all sources of a given pollutant 

within the plant site; specify actions to 

be taken to control these identified 

sources; provide a schedule for 

implementing the plan; and identify 

individuals responsible for 

implementation of the plan. Upon 

approval by the POTW, the chemical 

management plan is incorporated into 

the IU’s Permit as an enforceable 

requirement. 

Who decides whether a POTW will 

require an IU to comply with a BMP or 

numeric limit? Some industries and 

trade associations asked EPA to ensure 

that IUs have the option of whether to 

meet BMPs or numeric limits. While 

POTWs are encouraged to work with 

affected Users in developing local 

limits, and must comply with applicable 

public participation requirements, the 

POTW is responsible for developing, 

implementing and enforcing local limits 

as it deems appropriate to meet its 

program requirements. As discussed 

above, whether BMPs are used in 

conjunction with or instead of numeric 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60149 

limits will be at the discretion of the 

POTW, upon approval by the Approval 

Authority. 

How are BMPs factored into the 

technical evaluation of local limits? The 

preamble to the proposed rule stated 

that for BMPs to be considered local 

limits under 40 CFR 403.5(c), the 

practices must protect against Pass 

Through and/or Interference. This will 

require the POTW to evaluate the BMPs 

during the technical evaluation of its 

local limits. Some commenters raised 

questions regarding whether a POTW 

would need to quantify the effects of a 

BMP in its calculation of its maximum 

allowable industrial loading (MAIL), 

and if so, how that should be done. 

As discussed in the preamble to the 

proposal, BMPs are expected to be used 

where calculation of numeric effluent 

limitations is not feasible, such as when 

the types of pollutants vary over time or 

when chemical analyses are 

inappropriate. Nevertheless, a POTW 

needs to assign an allocation of 

pollutants to Users covered by the BMP 

either in its calculation of Maximum 

Allowable Industrial Loadings (MAIL), 

or in calculation of separate allowable 

loadings for commercial facilities. For 

instance, a POTW could estimate the 

loading of a pollutant from a given 

sector prior to imposition of BMPs by 

multiplying the average loading per 

User by the number of facilities. 

Expected loading reductions from 

required BMPs could then be estimated 

and incorporated into the MAIL. Thus, 

the POTW should be able to provide an 

evaluation that implementation of the 

numeric limit plus implementation of 

BMPs for specific sectors will result in 

the calculated Maximum Allowable 

Headworks Loading (MAHL) being met. 

Where it is expected to take a significant 

amount of time for BMP-based 

reductions to be realized, the ApreBMP’’ loading from the sector should be 

used in the MAIL calculations. Initial 

estimates of loading reductions could 

then be verified through sampling of 

selected Users that have implemented 

the BMPs or evaluating influent 

loadings for pollutants being addressed 

by BMPs to see if adjustments are 

needed for the allowable headworks 

loadings, the numeric limits or BMPs for 

any affected sectors. 

May States and EPA Regions establish 

BMPs as local limits? One commenter 

observed that the language in 40 CFR 

403.5(c)(4), allowing POTWs to develop 

BMPs as local limits, would not pertain 

to states that administer authorized 

Pretreatment programs. The commenter 

supported broadening this language to 

allow authorized states and Regions, 

acting in their capacity as Control 

Authorities, to develop and enforce 

BMPs. Section 40 CFR 403.5(d), states 

that ‘‘where specific prohibitions or 

limits on pollutants (i.e., local limits) 

are developed by a POTW in accordance 

with (40 CFR 403.5(c)), such limits shall 

be deemed Pretreatment Standards for 

the purposes of section 307(d) of the 

Act.’’

An authorized state which does not 

approve POTW programs but assumes 

local responsibility by acting as the 

Control Authority under 40 CFR 

403.10(e) is required to implement all 

elements of the Pretreatment program 

established for POTWs in 40 CFR 

403.8(f), including the establishment of 

local limits (40 CFR 403.8(f)(4)). Local 

numeric limits or BMPs established in 

this situation would be federally 

enforceable Pretreatment Standards 

under 40 CFR 403.5(d) provided such 

limits are authorized by state law. 

An authorized state acting as the 

Approval Authority, and as Control 

Authority for Industrial Users which 

discharge to a POTW without an 

approved program, may develop and 

implement BMPs or other local limits 

applicable to those Industrial Users 

provided such limits are authorized by 

state law. In the case where EPA acts as 

the Approval Authority and Control 

Authority, for a local limit to be 

federally enforceable under 40 CFR 

403.5(d), the limit would need to be 

incorporated into the local POTW’s 

sewer use ordinance or other legal 

authority. 

What are some of the common 

elements of an enforceable BMP? Many 

commenters expressed the view that 

without additional guidance on the 

structure of BMPs, their use could be 

subjective and difficult to evaluate or 

enforce. Others felt that because of their 

subjective and potentially arbitrary 

nature, BMPs should not be allowed to 

serve as local limits. BMPs developed 

by a POTW to protect against Pass 

Through and Interference can be 

structured in such a manner that 

compliance with their terms can be 

verified by a POTW, and can provide a 

useful alternative to numeric limits in 

situations where such limits are 

infeasible or impractical. In addition, 

BMPs established by POTWs as local 

limits will be subject to oversight from 

the POTW’s state and EPA Region. 

These BMPs will be evaluated by states 

and EPA based on factors such as legal 

authority, effectiveness, and 

enforceability. 

Based on EPA’s experience and 

observations of situations where BMPs 

have been effective, enforceable BMPs 

should generally include the following 

elements. Depending on the sector being 

controlled, however, certain elements 

such as installation of treatment or 

prohibitions on practices may not be 

applicable. 

• Specific notice to IUs of 

requirements and enforceability. This 

notice, provided through POTW sewer 

use ordinances or individual or general 

control mechanisms, should make clear 

which Users are subject to the BMPs, 

and what affected Users must do to 

comply with their requirements. 

• Installation of treatment. POTWs 

should provide criteria or specifications 

that the equipment must satisfy. For 

example, a requirement for use of oil/ 

water separators at auto repair facilities 

could include sizing or design criteria. 

EPA cautions POTWs to avoid 

endorsing the use of specific brands or 

vendors. 

• Requirements for or prohibitions on 

certain practices, activities or 

Discharges. POTWs should include 

specific requirements or prohibitions 

where necessary to ensure that the use 

of such BMPs is protective. An example 

would be a prohibition on Discharges of 

tetrachloroethene from dry cleaning 

facilities. 

• Requirements for operation and 

maintenance (O&M) of treatment units. 

POTWs should spell out their O&M 

expectations to ensure that treatment 

systems continue to perform as designed 

and installed. For example, restaurants 

could be required to have grease 

interceptors cleaned out at a specified 

frequency. 

• Timeframes associated with key 

activities. POTWs should provide 

timeframes for when management 

practices must be implemented, or 

when required treatment must be 

installed and fully operational. Other 

milestones should be added to the 

schedule where necessary to facilitate 

the oversight of BMP implementation. 

• Compliance certification, reporting 

and records retention. Establishing 

specific procedures for such 

requirements will enable POTWs to 

verify whether required equipment has 

been installed, or whether required 

maintenance has been performed at the 

specified frequency. 

• Provision for re-opening or revoking 

the BMP conditions. As with numeric 

limits, POTWs should include language 

in the sewer use ordinance and/or 

facility control mechanisms that enables 

them to revoke the control mechanism 

at any time to include modified numeric 

limits or BMPs. For example, the POTW 

may find it necessary to revoke an 

Industrial User’s control mechanism 

where the POTW determines that the 

User has not complied with applicable 

BMPs, or where the POTW determines 

60150 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

that it is easier to determine compliance 

with a numeric limit. 

• Other requirements as determined 

by the POTW. 

What local legal authority changes 

will be necessary? POTWs wishing to 

establish BMPs instead of or in addition 

to numeric local limits will need to 

evaluate their sewer use ordinances to 

ensure they provide adequate authority 

to require compliance with BMPs by 

affected Users. Further, BMP 

requirements such as those discussed 

above, and which IUs they cover, 

should be specified in POTW sewer use 

ordinances and/or Industrial User 

control mechanisms. 

How will compliance and significant 

noncompliance be determined? 

Concerns were expressed regarding the 

ability of Control and Approval 

Authorities to determine whether a User 

is in compliance with BMPs. In EPA’s 

view, BMPs that set specific 

requirements, incorporating as 

appropriate the common elements 

presented above, (i.e., requirements or 

prohibitions on practices, activities or 

Discharges; requirements for 

installation, operation and maintenance 

of treatment units; timeframes for key 

activities; reporting and records 

retention; certification and reporting of 

compliance, etc.) will aid POTWs and 

Approval Authorities in their 

compliance determinations. Once these 

requirements are established for one or 

more facilities in a sector, an IU’s 

compliance status should be able to be 

verified through a combination of selfreporting and verification inspections. 

Where a facility subject to BMPs has not 

satisfied the requirements in the sewer 

use ordinance or control mechanism, 

the POTW would need to use its 

enforcement response plan (ERP) to 

determine the appropriate response, and 

relevant significant noncompliance 

criteria to assess whether the facility is 

in significant noncompliance. For 

example, a facility that fails to install 

required treatment equipment within a 

specified timeframe would generally be 

viewed as being in significant 

noncompliance 90 days after the 

schedule date. See 40 CFR 

403.8(f)(2)(vii)(E). Likewise, a facility 

would be in significant noncompliance 

if it failed to submit a compliance 

certification within 45 days from the 

due date. See 40 CFR 403.8(f)(2)(vii)(F). 

POTWs adopting BMPs as local limits, 

or that have Categorical Industrial Users 

whose categorical Standards include 

BMPs, should evaluate their ERPs to 

ensure that they reflect the need to 

enforce non-numeric requirements. 

D. Slug Control Plans (40 CFR 

403.8(f)(1)(iii)(B)(6) and 403.8(f)(2)(vi)) 

Today’s final rule addresses the 

requirement that POTWs evaluate the 

need for a slug control plan for SIUs 

every two years. The rule will provide 

POTWs with the flexibility to determine 

how frequently to evaluate the need for 

such plans, based on local conditions. 

At the same time, the new rule specifies 

that an evaluation must be undertaken 

for each SIU once within a specified 

timeframe. Today’s rule also clarifies 

that an actual slug control plan (e.g., the 

physical document itself) is not the 

POTW’s only option for controlling 

facilities with a higher potential for Slug 

Discharges. The regulation states that 

the POTW may choose to require that 

the SIU take specific, preventative 

actions instead of requiring the 

development of a slug control plan. 

Regardless of the requirements imposed 

by the POTW, today’s rule will require 

that where actions to control Slug 

Discharges are determined to be 

necessary, the SIU’s control mechanism 

must include provisions addressing 

those requirements. 

These revisions do not alter current 

requirements regarding annual 

monitoring and inspections of SIUs. 

POTWs are still required to conduct 

their annual facility inspections and 

effluent monitoring for each of their 

SIUs. The revisions also do not change 

the POTW’s requirement to prevent 

disruptions caused by Slug Discharges. 

EPA expects that, as an integral part of 

its ongoing oversight of all SIU facilities, 

the POTW will consider whether 

adequate measures are in place to avoid 

Slug Discharges. The POTW is 

authorized to use its own discretion in 

determining the timing, level of detail, 

and commitment of resources necessary 

to ensure the facility has adequate 

measures in place to protect against 

Slug Discharges. POTWs may still 

require the SIU to develop a slug control 

plan or take specified preventative 

measures to prevent Slug Discharges 

whenever the facility’s slug control 

measures are judged to be inadequate. 

Today’s rule does not impose any new 

requirements on Industrial Users. SIUs 

remain subject to current requirements 

to eliminate or mitigate the effects of a 

Slug Discharge. These actions may 

include constructing physical 

containment facilities as well as 

implementing sound management 

practices to prevent Slug Discharges. 

1. What were the rules in place prior to 

today’s rulemaking? 

A Slug Discharge is defined as ‘‘* * * 

any Discharge of a non-routine, episodic 

nature, including but not limited to an 

accidental spill or non-customary batch 

Discharge’’ (40 CFR 403.8(f)(2)(v)). EPA 

notes that the subparagraph numbers 

have changed slightly in the final rule 

due to other, unrelated modifications. 

The appropriate rule reference is now 

40 CFR 403.8(f)(2)(vi). The regulations 

require POTWs to ensure that Industrial 

Users have policies and procedures in 

place to prevent or mitigate the effects 

of Slug Discharges. Section 40 CFR 

403.8(f)(2)(v), prior to today’s 

rulemaking, required POTWs to ‘‘* * * 

evaluate, at least once every two years, 

whether each such Significant Industrial 

User needs a plan to control Slug 

Discharges.’’ The function of such a 

plan is to ensure that an SIU has a 

planning and implementation tool to 

prevent Interference at a POTW 

treatment facility by a non-routine or 

accidental Discharge. The minimum 

elements required in a slug control plan 

are (1) a description of Discharge 

practices, (2) a description of all stored 

chemicals at the facility, (3) procedures 

for immediately notifying the POTW of 

the Slug Discharge and providing 

written follow-up notification, and (4) a 

variety of procedures (e.g., inspection 

and maintenance of chemical storage 

areas) for preventing adverse impacts 

from any accidental spills (40 CFR 

403.8(f)(2)(v)(A) to (D)). 

The requirement for a once every two 

years review of the need for a slug 

control plan was part of the Domestic 

Sewage Study rulemaking (55 FR 30082, 

July 24, 1990). In the preamble 

discussion to that rulemaking, EPA 

explained the need for POTWs to 

implement slug control programs. As 

part of the discussion, EPA referenced 

the guidance manual, Control of Slug 

Loadings to POTWs (EPA 21W–4001, 

February 1991, see http://www.epa.gov/ 

npdes/pubs/owm021.pdf), which was 

then under preparation. This manual 

provides detailed guidance for POTWs 

to evaluate whether SIUs need to 

develop slug control plans. It also 

provides guidance for SIUs in 

developing those slug control plans. In 

addition, the manual recognizes that 

POTWs need to determine whether 

existing on-site conditions may impact 

their treatment works, while industries 

are in the best position to solve 

problems relative to their physical 

plants or production processes. Part 403 

requires that, where found to be 

necessary, a POTW must require an SIU 

to develop a plan or impose some 

specified control actions to prevent Slug 

Discharges. 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60151 

2. What changes did EPA propose? 

The proposed rule suggested 

eliminating the requirement that 

POTWs evaluate the need for a slug 

control plan for each SIU every two 

years. Instead, EPA proposed giving 

POTWs the flexibility to review the 

need for slug control plans or other 

actions as part of their ongoing oversight 

of Industrial Users. The proposal would 

have added language to clarify that 

requiring an actual slug control plan is 

one of several options the POTW has at 

its disposal for controlling facilities 

with a higher potential for Slug 

Discharges. The proposed rule would 

have clarified that a POTW could 

choose to require that the SIU take 

certain specified preventative actions to 

control the Slug Discharge potential, 

instead of developing a slug control 

plan. In addition, to ensure that slug 

controls are enforceable to the same 

extent as other Standards and 

requirements, the proposal would have 

added language to require that, where a 

slug control plan or other action is 

found to be necessary, appropriate 

requirements would be placed in the 

Industrial User’s control mechanism. 

3. What changes is EPA finalizing in 

today’s rule? 

In today’s final rule, consistent with 

the proposal, EPA removes the required 

minimum frequency for conducting 

POTW evaluations for the need for slug 

control plans or other control actions. 

The final rule also formalizes the 

requirement for SIUs to address Slug 

Discharges by requiring that the POTW 

include language in the User’s control 

mechanism to control Slug Discharges, 

if it determines that a slug control plan 

or other action is necessary. These rule 

revisions appear in 40 CFR 

403.8(f)(1)(iii)(F) and 403.8(f)(2)(vi). 

What significant changes were made to 

the proposed rule? 

Today’s rule makes the following 

changes to the proposed rule: 

Minimum evaluation frequency: 

Today’s rule specifies that POTWs must 

evaluate at least once the SIU’s need for 

a slug control plan or other action to 

control Slug Discharges. See 40 CFR 

403.8(f)(2)(vi). While the POTW may 

choose how frequently to assess slugrelated concerns, it is EPA’s view that 

it is important to impose a minimum 

frequency of one time per SIU to ensure 

that each SIU receives at least one 

thorough evaluation. The provision 

specifies that this evaluation must have 

occurred within one year of the effective 

date of today’s rule for SIUs identified 

as significant (yet never evaluated for 

the need for a slug control plan) prior 

to the rule’s effective date. Also, SIUs 

identified as significant after the 

effective date of the rule must be 

evaluated for the need for a slug control 

plan within one year of being identified 

as significant. 

Notification of significant facility 

change: EPA also adds a requirement 

that SIUs must notify the POTW 

immediately of any changes at their 

facilities, not already addressed in their 

slug control plan or other slug control 

requirements, which may affect the 

potential for a Slug Discharge. This 

requirement is especially relevant in the 

case of those Users for which the POTW 

has determined, from some prior 

assessment, that a slug control plan or 

other action is unnecessary. However, 

EPA emphasizes that this requirement 

affects all SIUs, even those that already 

have slug control plans or other 

measures in place. See 40 CFR 

403.8(f)(2)(vi). This provision places an 

affirmative duty on such Users to 

provide the POTW with updated 

information on the potential slug risks 

that are posed by industrial process 

changes. This provision is consistent 

with, but differs from the existing 

notification of changed Discharge in 40 

CFR 403.12(j), which focuses on 

advance notice of change in the volume 

or character of pollutants in the 

Discharge itself. 

4. Summary of Major Comments and 

EPA Response 

The following summarizes the major 

comments received and EPA’s response. 

Should POTWs be required to conduct 

annual inspections of SIUs to determine 

the adequacy of slug control plans? One 

commenter supported the proposed rule 

change, but recommended adding 

language to require the POTW to verify 

during an inspection that a slug control 

plan, if required, is adequate. EPA 

agrees with the commenter that the 

POTW should be assessing the adequacy 

of existing slug control plans during its 

annual inspection of SIUs. However, 

EPA has not included a specific 

requirement in the regulation to this 

effect since existing inspection and 

sampling guidance already recommend 

that POTWs assess the adequacy of slug 

control plans during the POTW’s annual 

inspection. 

EPA emphasizes that this provision 

does not affect the POTW’s 

requirements to conduct inspections of 

its SIUs, nor has EPA changed its 

recommendations about how to assess 

slug-related issues at each facility. 

According to EPA’s Industrial User 

Inspection & Sampling Manual for 

POTWs (1994) (http://www.epa.gov/ 

npdes/pubs/owm0025.pdf), POTW 

inspectors should ask SIU staff if they 

are familiar with slug control 

procedures, and request that a copy of 

the slug control plan be provided for an 

assessment of its adequacy. EPA’s 

guidance document Control of Slug 

Loadings to POTWs (1991) (http:// 

www.epa.gov/npdes/pubs/owm021.pdf) 

recommends that inspectors verify 

compliance with slug control 

requirements and plans (see p. 2–44). In 

addition, EPA’s slug loading guidance 

indicates that ‘‘the inspector should 

ascertain the Industrial User’s status 

with regard to compliance with the 

Plan, report any deficiencies observed 

in the Industrial User’s current Plan, 

and suggest alternatives or 

modifications’’ (see p. 2–44). 

Can existing control measures or 

planning documents substitute for slug 

control plan requirements at SIU 

facilities? Several commenters, while 

supporting the proposal, requested that 

EPA clarify that existing spill 

containment procedures or plans may 

adequately fulfill the Pretreatment 

requirements concerning slug control 

plans. EPA agrees with the commenter 

that there will be situations where 

existing containment and spill planning 

documents at an Industrial User facility 

describe adequate means for protection 

against Slug Discharges. EPA recognizes 

that a number of existing requirements 

under other statutes and regulations 

could serve as components of slug 

control plans. For example, Spill 

Prevention, Control, and 

Countermeasures (SPCC) plans may 

address some components of a slug 

control plan. A POTW could also 

consult existing Emergency and 

Hazardous Chemical Inventory reports 

(EPCRA Section 312, 40 CFR 370) 

typically submitted to local fire 

marshals or other Local Emergency 

Planning Committee offices for the 

facility. If an SIU is covered by any of 

these pre-existing plans, the POTW may 

accept such plans in partial or complete 

fulfillment of the slug control 

requirements, as long as each element 

set forth in 40 CFR 403.8(f)(2)(vi)(A)–(D) 

is addressed in an acceptable manner in 

some document or collection of 

documents, and a reference to the need 

to comply with these procedures is 

included in the User’s control 

mechanism pursuant to 40 CFR 

403.8(f)(1)(iii)(F). However, EPA notes 

that many of these pre-existing plans 

have been developed for purposes other 

than control of Slug Discharges to 

POTWs, and the POTW must carefully 

review the plans to ensure that they 

60152 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

meet the requirements of a slug control 

plan and the needs of the POTW. 

In summary, under today’s rule, a 

POTW has the discretion to determine, 

based on an initial inspection or 

previous evaluations, that existing 

procedures and control measures at the 

facility make the development of a slug 

control plan unnecessary. The POTW 

should document this finding as part of 

its records, and, consistent with existing 

EPA guidance, should annually assess 

the adequacy of these existing 

procedures and control measures as part 

of its annual inspections. Also, 

implementation of these procedures or 

control measures should be included as 

requirements in the facility’s control 

mechanism. 

How should the POTW determine how 

often to conduct evaluations at 

individual facilities concerning whether 

a slug control plan is needed? One 

commenter pointed out that how 

frequently a POTW should evaluate the 

need for a slug control plan may vary for 

different facilities. The commenter 

emphasized that at some facilities, 

conducting such an evaluation once 

every two years may not be sufficient. 

Regarding the commenter’s concerns 

about the frequency of Slug Discharge 

evaluations, under today’s rule, each 

POTW will need to determine what 

evaluation frequency is appropriate for 

its program and/or for individual 

facilities. EPA also recommends that 

POTWs consult with the Agency’s 

guidance document, Control of Slug 

Loadings to POTWs (1991) (http:// 

www.epa.gov/npdes/pubs/owm021.pdf), 

which suggests different ways to 

prioritize industrial facilities according 

to Slug Discharge potential and 

strategies for assessing the adequacy of 

existing plans and programs. To ensure 

that POTWs are provided with sufficient 

notice of a change in Slug Discharge 

potential, EPA has added an additional 

requirement for SIUs which are not 

required to develop a slug control plan 

to notify the POTW immediately of any 

changes at their facilities affecting the 

need for plans or other actions to 

address Slug Discharges. It is EPA’s 

position that placing the affirmative 

duty on the SIUs to notify the POTW of 

such changes further reduces the 

potential for Slug Discharge in the time 

between on-site inspections. 

Although supporting the proposal, 

several commenters suggested that EPA 

adopt further criteria for determining 

when a slug control plan is necessary at 

an individual facility. Among the 

suggested criteria were the following: (1) 

Slugs from an industrial facility violated 

the Pretreatment requirements or 

otherwise harmed the POTW; or (2) the 

amount of stored materials, the absence 

of sufficient secondary containment, 

and the proximity of drains to the sewer 

create a significant risk of a harmful 

slug. EPA agrees with the commenter in 

general that criteria suggesting when a 

slug control plan should be developed 

would assist POTWs in making this 

decision. On the other hand, EPA 

decided that it should not develop rigid 

criteria in its regulation establishing 

when slug control plans should be 

required. 

EPA emphasizes that a POTW is in 

the best position to make such 

determinations and, since such 

requirements will help ensure 

continued compliance with its NPDES 

Permit, it is in the interest of the POTW 

to do so. However, in lieu of providing 

a list of strict criteria, EPA suggests that 

POTWs and SIUs consult the Agency’s 

guidance document, Control of Slug 

Loadings to POTWs (1991) (http:// 

www.epa.gov/npdes/pubs/owm021.pdf), 

for recommendations on significant 

factors and types of industries to 

consider in determining which facilities 

pose a greater risk of Slug Discharge, 

and, therefore, should be required to 

develop a slug control plan. For 

instance, the guidance document 

highlights the following as the most 

significant factors to consider: Quantity 

and types of materials used or stored at 

an IU and their potential for causing 

violation of local limits or the general or 

specific prohibitions; potential for such 

materials to enter the sewer system and 

cause damage (i.e., whether control 

measures are in place); and adequacy of 

existing controls to prevent any 

potential slug loading (see p. 2–19). EPA 

points out, though, that the guidance 

also clarifies that these evaluations 

should be conducted on a plant-by-plant 

basis and that the list of factors and 

target industries provides 

generalizations from which to start. (see 

p. 2–7). 

In response to the commenter’s 

recommended criteria, EPA agrees that 

facilities which have had Slug 

Discharges, thus violating the 

Pretreatment Requirements or otherwise 

harming the POTW, will need a slug 

control plan. The slug control plan 

requirements were adopted to provide 

POTWs with a mechanism to prevent 

slug-related impacts. EPA is concerned 

that this criterion may suggest to 

POTWs that it is sufficient to wait for 

circumstances to arise (e.g., an instance 

of Interference at the treatment plant) 

before addressing the need for a slug 

control plan at a potentially higher risk 

facility. EPA does not agree that the 

only situations where an SIU should be 

required to develop a slug control plan 

are those where a violation of the 

POTW’s Pretreatment program 

requirements has occurred. Part of what 

the POTW must evaluate at each SIU is 

whether there is the ‘‘reasonable 

potential’’ for Interference or Pass 

Through from a Slug Discharge, thereby 

necessitating a slug control plan or other 

preventative action. EPA suggests that 

waiting for a violation to occur before 

requiring a slug control plan conflicts 

with the proactive intent behind 40 CFR 

403.8(f)(2)(vi) and may result in 

unnecessary Interference or Pass 

Through occurrences. 

EPA does agree that the commenter’s 

second suggested criterion, that the 

amount of stored materials, the absence 

of sufficient secondary containment, 

and the proximity of drains to the sewer 

create a significant risk of a harmful 

slug, would be appropriate POTW 

considerations for requiring the 

development of a slug control plan. 

These considerations are contemplated 

in the above referenced guidance. 

How does the rule affect the current 

practice of evaluating SIUs annually for 

the adequacy of slug controls? A few 

commenters were opposed to the 

proposal because they considered it to 

be unnecessary. These commenters 

emphasized the limited burden imposed 

by the current biannual review 

requirement and the current practice of 

conducting annual SIU inspections 

which focus on, among other things, the 

adequacy of controls or existing plans 

for addressing the potential for Slug 

Discharges. Another commenter 

objected to the proposal because of 

concern that POTWs would no longer 

dedicate the necessary attention to 

evaluating SIU facilities for the potential 

for Slug Discharges. 

The evaluation of slug control 

procedures and measures is already 

occurring at POTWs on an annual basis, 

typically during the inspection of the 

SIU. This practice is consistent with 

EPA’s guidance document, Industrial 

User Inspection and Sampling Manual 

for POTWs (1994) (http://www.epa.gov/ 

npdes/pubs/owm0025.pdf). EPA’s 

modification of the frequency of the 

POTW’s evaluation of the necessity of 

slug control plans should not affect the 

POTW’s practice of conducting annual 

inspections of relevant slug control 

procedures and measures. The final rule 

changes do not absolve POTWs from the 

requirement to prevent disruptions 

caused by Slug Discharges. In many 

instances, operating conditions at an 

SIU will not have changed significantly 

since the issuance of its individual 

control mechanism and the facility will 

be in compliance with all of its Permit 

conditions. Under these circumstances, 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60153 

the requirement to review and evaluate 

the need for a slug control plan or other 

preventative actions could be an 

unproductive use of resources by the 

POTW. In addition, today’s revision to 

40 CFR 403.8(f)(2)(vi) requires that each 

POTW evaluate the need for a slug 

control plan or other action at least one 

time at every SIU. Following this 

evaluation, the POTW may determine 

its own schedule for conducting further 

evaluations for the need for a plan. 

In practical terms, EPA expects 

POTWs to take the following actions 

with regard to Slug Discharges: Evaluate 

all of their SIUs at least once for the 

need for a slug control plan, conduct 

follow-up evaluations for facilities not 

required to develop a slug control plans 

or take other actions as necessary, and 

inspect each SIU annually to determine 

the adequacy of and compliance with 

existing procedures and control 

measures. While today’s revision may 

reduce the administrative resources 

currently devoted to biannual reviews 

for the need for a slug control plan, the 

POTW’s overall level of oversight over 

Slug Discharges will not be reduced. 

EPA also points out that Approval 

Authority audits and Pretreatment 

Compliance Inspections (PCIs) of POTW 

Pretreatment Programs will offer a 

valuable opportunity to evaluate how 

today’s revisions are being 

implemented. During these audits or 

PCIs, the POTW will need to 

demonstrate that each SIU has been 

evaluated at least once (or that there is 

a plan to conduct such an evaluation 

within the coming year). EPA suggests 

that where a slug control plan or other 

action was not deemed necessary, a plan 

to re-evaluate the SIU for the need for 

a plan or other action as necessary 

exists. The POTW may choose a 

specified frequency level to re-evaluate 

the SIU, or it may choose to re-evaluate 

the facility following a notification of 

changed Discharge pursuant to 40 CFR 

403.12(j) or 40 CFR 403.8(f)(2)(vi). EPA 

notes that SIUs will now be required to 

notify the POTW of any changes at their 

facility that affect the need for a slug 

control plan or other actions to address 

Slug Discharges, although POTWs still 

have the responsibility during the 

facility inspections to ensure that these 

notifications have been made. In 

addition, during the audit or PCI, the 

Approval Authority should determine 

whether the POTW is conducting an 

assessment of the SIU’s on-site 

procedures and measures to control for 

potential slug-related Discharges. 

Does the slug control plan, if required, 

need to be included in the SIU’s control 

mechanism? One commenter was 

opposed to what it interpreted as EPA’s 

requirement in 40 CFR 

403.8(f)(1)(iii)(B)(6) to include the entire 

slug control plan document in the SIU’s 

control mechanism. The commenter 

further emphasized that the slug control 

plan should be retained as a separate 

document, and suggested that the plan 

be incorporated by reference into the 

control mechanism requiring 

compliance with the approved plan. 

EPA disagrees with the commenter as 

far as reading 40 CFR 

403.8(f)(1)(iii)(B)(6) to require the 

inclusion of the entire slug control plan 

in the SIU’s control mechanism. Section 

403.8(f)(1)(iii)(B)(6) provides that the 

control mechanism must include 

‘‘requirements to control Slug 

Discharges.’’ EPA expects that POTWs 

will include language in the control 

mechanism that requires control of Slug 

Discharges, rather than the terms of a 

particular SIU’s plan. Including the 

entire slug control plan may prove to be 

administratively burdensome since 

changes made to the plan during the 

term of the control mechanism would 

potentially require that the control 

mechanism be modified, or be reopened 

and reissued. 

E. Equivalent Concentration Limits for 

Flow-Based Standards (40 CFR 

403.6(c)(6)) 

Today’s amendment to the 

Pretreatment Regulations authorizes the 

use of concentration-based limits in lieu 

of flow-based mass limits for the 

facilities in the Organic Chemicals, 

Plastics, and Synthetic Fibers (OCPSF) 

(40 CFR part 414), Petroleum Refining 

(40 CFR part 419), and Pesticide 

Chemicals (40 CFR part 455) categories. 

The Control Authority may use the 

concentration limits listed in the 

categorical Pretreatment Standards for 

these three categories as an alternative 

to the current requirement to convert 

those concentration limits to flow-based 

mass limits. Control Authorities 

establishing concentration-based 

Pretreatment Standards instead of massbased limits must document that 

dilution is not being used as a substitute 

for treatment (see §§ 403.6(d), 

414.111(a), 419, and 455). Additionally, 

the Control Authority is required to 

adjust Permit limits using the combined 

wastestream formula in § 403.6(e) when 

the wastestream used for demonstrating 

compliance with the Permit limits is 

mixed with non-process wastewater or 

wastewater from other processes. 

1. What are the current rules? 

What is a flow-based mass limit? 

National categorical Pretreatment 

Standards establish limits on pollutants 

discharged to POTWs by specific 

industrial sectors. The Standards 

establish limitations on the amount of 

pollutants to be discharged by 

individual dischargers in different ways 

for different categories. The regulations 

establishing Pretreatment Standards for 

new and existing indirect dischargers in 

the Organic Chemicals, Plastics, and 

Synthetic Fibers Category (OCPSF), for 

new indirect dischargers in the 

Petroleum Refining category, and for 

new and existing indirect dischargers in 

the Pesticide Chemicals category 

currently require limits of certain 

pollutants to be expressed in terms of 

mass, based on the promulgated 

concentrated-based Standards and the 

average daily flow rate of the Industrial 

User’s regulated process wastewater (see 

§§ 414.111(a), 419.17(b), 419.27(b), 

419.37(b), 419.47(b), and 419.57(b), 

455.26, 455.27). For an OCPSF indirect 

discharger, a pesticide chemicals 

indirect discharger, or a new petroleum 

refining indirect discharger, the Control 

Authority develops a mass limit by 

multiplying the applicable pollutant 

concentration that EPA promulgated in 

the effluent guidelines (expressed in 

terms of mass of pollutant per volume 

of Discharge) by the average daily flow 

rate of the Industrial User’s regulated 

process wastewater (expressed in terms 

of volume per day). The result is a 

Permit limit on the mass of pollutants 

per day (see 58 FR 36890, July 9, 1993). 

The average daily flow rate should be 

based upon a reasonable measure of the 

Industrial User’s average daily flow for 

at least a 30-day period (see 40 CFR 

403.6(e)(1)). Additionally, EPA 

‘‘strongly urges the Control Authority to 

develop an appropriate process 

wastewater flow for use in computing 

the mass effluent or internal plant 

limitations based on water conservation 

practices,’’ (see 58 FR 36890, July 9, 

1993). Finally, a Permit may be 

modified during its term, either at the 

request of the permittee (or another 

interested party) or on the Control 

Authority’s initiative, to increase or 

decrease the flow basis in response to a 

significant change in production (40 

CFR 124.5, 122.62). A change in 

production could be an ‘‘alteration’’ of 

the permitted activity or ‘‘new 

information’’ that would provide the 

basis for a Permit modification (40 CFR 

122.62(a)(1),(2)) (see 58 FR 36891, July 

9, 1993). 

Why was the mass limit approach 

developed? 

Effluent guidelines may be specified 

in a number of ways including 

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based limitations (mass-pollutant/ 

volume of wastewater). These two types 

of effluent guidelines limits can be 

converted to a mass-based Standard by 

using a reasonable measure of the 

Industrial User’s actual long-term daily 

production (for production normalized 

limitations) or the Industrial User’s 

actual long-term average daily flow rate 

(for concentration-based limitations). 

EPA prefers setting production 

normalized limitations, where feasible, 

since production normalized limitations 

can require flow reduction and reduces 

any potential for the substitution of 

dilution for treatment. Specifically, 

production normalized limitations are 

calculated from production normalized 

flows (volume of wastewater/ 

production unit) and incorporate 

wastewater flow reductions representing 

Best Available Technology 

Economically Achievable (BAT) 

(technology basis for Pretreatment 

Standards for Existing Sources, or PSES) 

or New Source Performance Standards 

(technology basis for Pretreatment 

Standards for New Sources, or PSNS). 

EPA has established concentrationbased Standards when production and 

achievable wastewater flow cannot be 

correlated nationally. EPA has 

explained how to calculate a mass limit 

in the Organic Chemicals, Plastics, and 

Synthetic Fibers (OCPSF) regulation. A 

mass limit is developed from the 

concentration-based Standard by 

multiplying the promulgated 

Pretreatment Standard (expressed as a 

concentration) by the Industrial User’s 

actual long-term average daily flow rate. 

This approach re-enforces the 

requirements of the combined 

wastestream formula (see 40 CFR 

403.6(e)) to minimize the potential for 

dilution of process wastewaters by nonprocess wastewater. The combined 

wastestream formula of Section 403.6(e) 

applies to indirect dischargers where 

process wastewater is mixed prior to 

treatment with wastewater other than 

that generated by the regulated process. 

What are the problems with mass limits 

based on flow? 

Flow-based mass limits can, however, 

be difficult for the Control Authority to 

implement. To develop a flow-based 

mass limit, the Control Authority must 

determine the average daily flow rate of 

the Industrial User’s regulated process 

wastewater and then multiply that value 

by the appropriate promulgated 

concentration Standard. This may be 

difficult in situations where the facility 

has highly variable production that 

leads to flows that often vary week-toweek or day-to-day. This is especially 

true for smaller facilities where: (1) The 

average daily flow rate of the Industrial 

User’s regulated process wastewater 

may be infrequent or low and difficult 

to monitor; and (2) production tends to 

be more variable as the installation of 

equipment to provide flow equalization 

may not be practical. 

In addition, testing for compliance 

with the flow-based mass limit requires 

having accurate information on the flow 

from all regulated processes at the time 

the sample is taken. Testing for 

compliance with a concentration limit 

only requires taking the wastewater 

sample and comparing the sampled 

concentration to the limit. In particular, 

since promulgation of the OCPSF 

Pretreatment Standards, there have been 

difficulties in getting Control 

Authorities and OCPSF facilities to 

correctly calculate flow-based mass 

limits, and to provide necessary data to 

determine compliance with the 

Standards. Deficiencies in Permits and 

control mechanisms have in the past 

hindered enforcement actions against 

these facilities. Enforcing mass-based 

Standards also becomes more 

complicated because there is an 

additional factor in the formula to 

calculate mass-based limits. In order to 

measure compliance, both flow and 

concentration of the pollutant need to 

be accurate and verified in order to 

produce legally enforceable mass-based 

results. 

May alternative limits be developed for 

flow-based categorical Standards? 

Currently, 40 CFR 403.6(c) allows 

Control Authorities to apply an 

equivalent concentration limit in 

addition to a current mass limit to 

implement a Pretreatment Standard. 

However, the regulations do not allow 

equivalent concentration limits in lieu 

of mass limits when the Pretreatment 

Standard requires a mass limit to be 

calculated from the promulgated 

concentration-based Standards and the 

average daily flow rate of the Industrial 

User’s regulated process wastewater. 

2. What changes did EPA propose? 

EPA proposed to allow Control 

Authorities to use promulgated 

concentration-based limits instead of 

flow-based mass limits in establishing 

limits for Industrial Users in the OCPSF, 

Petroleum Refining, and Pesticide 

Chemicals categories. EPA proposed 

that the Control Authority would be 

allowed to apply such equivalent 

concentration limits only if the flow 

from the facility is so variable that the 

development of mass limits is 

impractical. EPA stipulated that 40 CFR 

403.6(d) would continue to prohibit 

facilities from increasing flow in order 

to meet their concentration limits 

through dilution. 

3. What changes is EPA finalizing in 

today’s final rule? 

The final rule allows Control 

Authorities to use concentration-based 

limits instead of flow-based mass limits 

for new and existing indirect 

dischargers in the OCPSF category, new 

indirect dischargers in the Petroleum 

Refining category, and new and existing 

indirect dischargers in the Pesticide 

Chemicals category. EPA is not limiting 

the Control Authority’s authority to 

develop concentration limits to 

circumstances in which the Control 

Authority determines that the facility’s 

flow is ‘‘so variable as to make mass 

limits impracticable.’’ EPA notes that 

Section 40 CFR 403.6(d) will continue 

to prohibit facilities from increasing 

flow in order to meet their 

concentration limits through dilution. 

As with other concentration limits, the 

Control Authority should be certain that 

dilution is not occurring and that the 

Discharge represents regulated process 

wastewater flows. The concentration 

may need to be adjusted using the 

combined wastestream formula in 40 

CFR 403.6(e) if the wastestream is 

mixed with non-process wastewater or 

wastewater from other processes. 

New 40 CFR 403.6(c)(6), applicable 

only to facilities in the OCPSF, 

Petroleum Refining, and Pesticide 

Chemicals categories, requires Control 

Authorities to document that dilution is 

not being substituted for treatment. To 

verify that equivalent concentration 

limits are not subsequently being met 

through use of dilution flows, Control 

Authorities should note that 40 CFR 

403.12(e)(1) requires Categorical 

Industrial Users to provide information 

regarding maximum and average daily 

flows in their periodic reports, and 

enables them to require more detailed 

flow data as necessary. Using this 

authority, EPA recommends that 

Control Authorities consider specifying 

appropriate flow monitoring 

requirements and including evaluation 

of flow data in the review of periodic 

reports for Industrial Users subject to 

equivalent concentration Standards. 

This will enable Control Authorities to 

determine if there have been changes in 

flows that may indicate dilution, such 

as increases in process, non-process or 

overall flows, especially those not 

accompanied by production increases. 

When are the equivalent concentration 

limits effective? 

EPA notes that flow-based mass 

Standards, like all National categorical 

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Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60155 

implementing for new and existing 

indirect dischargers in the OCPSF 

category and for new indirect 

dischargers in the Petroleum Refining 

category. Facilities to which these 

Standards are applicable must comply 

with the flow-based mass Standards 

unless a Permit or other control 

mechanism is issued by the Control 

Authority which establishes equivalent 

concentration limits under 40 CFR 

403.6(c)(6). Where the Control Authority 

has not issued a control mechanism that 

establishes categorical concentrationbased limits, the Industrial User must 

comply with the default flow-based 

mass limits as established in the 

applicable categorical Pretreatment 

Standard. 

EPA notes that, for the Pesticides 

Chemicals category, in certain 

circumstances, an Industrial User may 

already be subject to concentration 

based limits rather than the otherwise 

required mass limits. Where the Control 

Authority has not established flowbased mass limits as required, Sections 

40 CFR 455.26 and 455.27 provide that 

Industrial User must comply with the 

default concentration-based limits as 

established in the categorical 

Pretreatment Standard. 

EPA emphasizes that for facilities in 

the OCPSF, Petroleum Refining, and 

Pesticide Chemicals categories, where 

the Control Authority has properly 

authorized the use of an equivalent 

concentration limit and has 

incorporated that limit into the 

Industrial User’s control mechanism, 

the concentration limit replaces the 

mass limit. The final rule requires that 

an Industrial User must comply with the 

equivalent limit in lieu of the 

promulgated categorical Pretreatment 

Standard once the limit is incorporated 

into its control mechanism. The Control 

Authority may also determine that an 

Industrial User should be subject to both 

the flow-based mass limit as well as the 

concentration-based limit. When 

incorporated into the issued control 

mechanism, the Industrial User would 

have to comply with both limits. As 

with other equivalent concentration 

limits, as currently provided in 40 CFR 

403.6(c), the equivalent limits being 

authorized under today’s final rule are 

Pretreatment Standards for the purposes 

of Sec. 307(d) of the Clean Water Act 

and are federally enforceable. 

4. Summary of Major Comments and 

EPA Response 

A majority of the commenters 

supported the proposed rule as written, 

and most of the remaining commenters 

stated qualified support. Only one 

commenter opposed the proposal. The 

following section summarizes the most 

significant comments received and 

EPA’s response. 

Is Approval Authority review required 

of an Industrial User’s proposed 

concentration limit prior to Control 

Authority approval? A total of 22 

commenters disagreed that it would be 

appropriate to require Approval 

Authority review of an Industrial User’s 

proposed concentration limit prior to 

Control Authority approval. The 

primary reasoning stated was that such 

a requirement is not necessary and 

would create additional burden. 

EPA notes that this provision is 

intended to allow the permit limit to be 

expressed in alternate units. It is not 

anticipated that this revision will 

change the Control Authority’s enabling 

legislation to issue and enforce a control 

mechanism. As such, EPA does not 

consider this provision to be a 

modification of a POTW Pretreatment 

Program under 40 CFR 403.18, and, 

therefore, finds that a POTW’s use of 

this provision is not subject to the 

specified approval procedures in this 

section. The new equivalent limit is 

subject to review as part of routine 

Approval Authority oversight activities, 

such as a Pretreatment Compliance 

Inspection or a Control Authority audit. 

In accordance with current regulations, 

Industrial User control mechanisms and 

information necessary for determining 

permit limitations and compliance must 

be publicly available. 

Is this provision limited to highly 

variable flows? Numerous commenters 

addressed the question of whether this 

provision should only be applied to 

highly variable flows as well as how to 

define the term ‘‘highly variable flow.’’

A total of 12 commenters stated that the 

rule should not be limited to only 

highly variable flows. Many mentioned 

the existence of factors in addition to 

highly variable flows that make 

implementation of flow-based mass 

limits impractical, such as the cost of 

obtaining accurate samples or the 

difficulty of sampling at facilities with 

very low flows. Ten commenters 

suggested that the Control Authority 

have the ability to define ‘‘highly 

variable flows’’ on a case-by-case basis 

since the basis for such a determination 

is highly site-specific and can vary from 

seasonal variations in flow to hourly 

variations in flow. Ten commenters 

thought that a 20 percent deviation from 

average flow is an adequate measure for 

‘‘highly variable flow,’’ while five 

commenters requested that EPA not 

specify a definition for ‘‘highly variable 

flow’’ in the regulations. 

EPA acknowledges that the there are 

numerous factors, many of which are 

site-specific, involved in determining 

that a facility has ‘‘highly variable 

flow(s)’’, and agrees that it would be 

difficult to establish a clear-cut 

definition of ‘‘highly variable flow’’ that 

would apply to all facilities. To be 

consistent with the goals of providing 

flexibility in this rule, and to support 

the Control Authority’s discretion on 

this site specific issue, EPA has decided 

to allow Control Authorities to 

determine when the acceptable 

circumstances exist to allow the use of 

concentration limits. 

Is this provision consistent with the 

Clean Water Act? The commenter that 

opposed this provision stated that EPA 

lacks the authority to create a variance 

or an alternative implementation 

mechanism and therefore will violate 

sections 307 and 402 of the Clean Water 

Act. The commenter also questioned the 

need for this proposed change, 

suggested that it will interfere with 

ongoing enforcement of the categorical 

Standards and the statutory deadlines 

for achieving them, and suggested that 

the record does not demonstrate that 

this proposed change will protect 

POTWs and the environment. 

EPA is promulgating the changes to 

its Pretreatment Regulations in part 

under section 307(b) of the Clean Water 

Act. Section 307(b) clearly authorizes 

EPA from time to time to revise 

Pretreatment Standards as ‘‘control 

technology, processes, operating 

methods or other alternatives change.’’

Therefore, today’s action is not in 

violation of section 307(b) to the extent 

this provision amends the Pretreatment 

Standards for the OCPSF, the Petroleum 

Refining, and the Pesticide Chemicals 

Categories. As EPA has explained, the 

amendments to the regulations will 

facilitate both User’s compliance and 

POTW oversight. EPA notes that 

compliance evaluation and enforcement 

will be more straightforward and less 

burdensome with new equivalent 

concentration limits. 

Moreover, the current regulations 

prohibit introduction of pollutants that 

will adversely affect POTW operations 

and receiving waters quality. Currently, 

40 CFR 403.5 requires approved 

pretreatment programs and POTWs 

receiving pollutants from Industrial 

Users with potential to pass through or 

interfere with the POTWs’ operations to 

develop and implement local limits to 

protect the POTW operations and 

prevent Pass Through and Interference. 

Consequently, the use of concentration 

limits in lieu of mass limits would not 

be authorized if it resulted in a violation 

of local limits approved under 40 CFR 

403.5. Furthermore, this provision may 

be implemented only following 

60156 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

determination of its feasibility by 

Control Authorities, and not unilaterally 

by Industrial Users. Control Authorities’

local limits will continue to ensure 

protection of the POTW operations and 

its receiving environment. 

F. Use of Grab and Composite Samples 

(40 CFR 403.12(b), (d), (e), (g), and (h)) 

This section discusses: (1) The 

application of minimum required grab 

samples for pH, cyanide, total phenols, 

oil and grease, sulfide, and volatile 

organics to the periodic compliance 

reports; (2) when a time-proportional 

sample may be used instead of a flowproportional sample; (3) when multiple 

grab samples may be composited prior 

to analysis; (4) whether four grab 

samples are required whenever grab 

sampling is appropriate; and (5) the 

sampling of facilities that discharge less 

than 24-hours per day. Other issues 

raised by commenters are also 

discussed. 

1. What are the existing rules? 

What are ‘‘grab samples’’? 

A grab sample is ‘‘* * * a sample 

which is taken from a wastestream 

without regard to the flow of the 

wastestream and over a period of time 

not to exceed 15 minutes’’ (Industrial 

User Inspection and Sampling Manual 

for POTWs, EPA 831/B–94–001, April 

1994, http://www.epa.gov/npdes/pubs/ 

owm0025.pdf). Grab samples of volatile 

organic compounds (VOCs) must be 

collected almost instantaneously (i.e., 

less than 30 seconds of elapsed time) 

and properly preserved (Comparison of 

Volatile Organic Analysis Compositing 

Procedures, EPA 821/R–95–035, 

September 1995). An analysis of an 

individual grab sample provides a 

measurement of pollutant 

concentrations in the wastewater at a 

particular point in time. Grab samples 

are usually collected manually, but can 

be obtained with a mechanical sampler. 

Grab samples are required in order to 

accurately analyze those pollutant 

parameters that may be affected by 

biological, chemical, or physical 

interactions and/or exhibit marked 

physical and compositional changes 

within a short time after collection. Grab 

samples should be used when: (1) 

Wastewater characteristics are relatively 

constant; (2) parameters to be analyzed 

are likely to be affected by the 

compositing process, such as the 

procedures used for oil and grease; (3) 

composite sampling is infeasible or the 

compositing process is liable to 

introduce artifacts of sampling; and (4) 

the parameters to be analyzed are likely 

to change with storage. In particular, 

accurate determination of pH, 

temperature, total phenols, oil and 

grease, sulfide, volatile organic 

compounds, and cyanide requires 

properly collecting and carefully 

preserving grab samples. 

What are composite samples? 

A composite sample is formed by 

mixing discrete samples or ‘‘aliquots.’’

For a ‘‘flow-proportional’’ composite 

sample, each individual aliquot is 

collected after the passage of a defined 

volume of Discharge (e.g., every 2,000 

gallons). For a ‘‘time-proportional’’

composite sample, the aliquots are 

collected after the passage of a defined 

period of time (e.g., once every two 

hours), regardless of the volume or 

variability of the rate of flow during that 

period. Flow-proportional compositing 

is usually preferred when effluent flow 

volume varies appreciably over time. 

The number of discrete samples 

necessary for a composite sample to be 

representative of the Discharge depends 

upon the variability of the pollutant 

concentration and the flow. 

Automatically collected composite 

samples are usually preferred to 

collecting grab samples and then 

manually compositing the grabs into a 

single sample. Possible handling errors 

made during the compositing process 

could yield a sample that is not truly 

representative of the Discharge. 

However, composite samples can be 

prepared from manually collected grab 

samples if each grab contains a fixed 

volume that is retrieved at intervals that 

correspond to the periods of wastewater 

Discharge or time of the facility’s 

operation. 

When may the requirement for flowproportional composite samples be 

waived? 

The regulations in effect prior to 

today’s rule allowed Control Authorities 

to waive the requirement for flowproportional compositing of samples for 

baseline monitoring reports and 90-day 

compliance reports in limited 

circumstances. These regulations 

allowed the Control Authority to accept 

sample data that are obtained from timeproportional composite sampling or a 

minimum of four grab samples if flowproportional sampling is infeasible (e.g., 

the facility cannot accurately measure 

flow) and the Industrial User 

demonstrated that these alternative 

sampling techniques will provide a 

representative sample of the effluent (40 

CFR 403.12(b)(5)(iii)). The section on 

periodic compliance reports was silent 

on the subject of grab and flowproportional sampling. 

2. What changes did EPA propose? 

EPA proposed to clarify the sampling 

requirements in 40 CFR 403.12 in the 

following ways: 

Do the sampling requirements apply 

to periodic reports on continued 

compliance? EPA proposed to extend 

the requirements of 40 CFR 

403.12(b)(5)(iii), which were explicitly 

applicable to the baseline monitoring 

reports and 90-day reports required by 

40 CFR 403.12(b) and (d), to the 

periodic reports required in 40 CFR 

403.12(e) and (h). These changes would 

be accomplished by consolidating the 

new requirements for all of the reports 

in 40 CFR 403.12(g). Redundant sections 

would be removed. 

Is a minimum frequency required for 

grab samples? EPA proposed that for 

periodic monitoring reports, a minimum 

of four grab samples would not need to 

be taken in all instances to measure pH, 

cyanide, total phenols, oil and grease, 

sulfides, and volatile organic 

compounds. Instead, Control 

Authorities would have the flexibility to 

determine the appropriate number of 

grab samples required for periodic 

compliance reports. For new facilities, 

the Industrial User would still be 

required to take a minimum of four grab 

samples to measure pH, cyanide, total 

phenols, oil and grease, sulfide, and 

volatile organic compounds to meet 

baseline monitoring and 90-day 

compliance report requirements. For 

existing facilities, where historical 

sampling data are available, the Control 

Authority may authorize a lower 

minimum. 

When and what type of grab samples 

can be manually composited? EPA 

proposed to explicitly state that 

compositing of certain types of grab 

samples prior to their analysis would be 

permitted. 

When can time-proportional or grab 

samples be used in lieu of flowproportional composite samples? EPA 

proposed that Control Authorities may 

authorize time-proportional or grab 

sampling in lieu of flow-proportional 

sampling as long as the samples are 

representative of the Discharge. 

What are the sampling requirements 

for those facilities that do not discharge 

continuously? EPA proposed language 

intended to clarify that, although a ‘‘24- 

hour composite sample’’ must be taken 

within a 24-hour period, the sample 

should only be collected during that 

portion of the 24-hour period that the 

Industrial User is discharging from the 

regulated process and/or from the 

treatment unit. 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60157 

3. What changes are being finalized by 

EPA in today’s rule? 

EPA is finalizing language intended to 

clarify the sampling requirements in 40 

CFR 403.12. Specific changes to the 

regulations, as well as pertinent details 

related to their implementation, are 

discussed below. 

Do the sampling requirements apply 

to periodic compliance reports? Today’s 

rule finalizes the extension of sampling 

requirements, which previously were 

only explicitly applicable to the 

baseline monitoring reports and 90-day 

reports required by 40 CFR 403.12(b) 

and (d), to the periodic reports required 

in 40 CFR 403.12(e) and (h). These 

changes are accomplished by 

consolidating the new requirements for 

all of the reports in 40 CFR 403.12(g). 

Redundant sections are removed. 

Is a minimum frequency required for 

grab samples? The final regulatory 

changes eliminate the requirement that 

a minimum of four grab samples be 

taken in all instances to measure pH, 

cyanide, total phenols, oil and grease, 

sulfides, and volatile organic 

compounds. Control Authorities will 

have the flexibility to determine the 

appropriate minimum number of grab 

samples Industrial Users are required to 

take. The Control Authorities will be 

responsible for documenting the sitespecific circumstances in the Industrial 

User’s file. New facilities and facilities 

that make changes or install new 

treatment are still required to take a 

minimum of four grab samples to 

measure pH, cyanide, total phenols, oil 

and grease, sulfide and volatile organic 

compounds to meet baseline monitoring 

and 90-day compliance report 

requirements. For facilities where 

historical sampling data are available, 

the Control Authority may authorize a 

lower minimum number of grab 

samples. 

There are some cases where a single 

grab sample can be reasonably expected 

to be representative of a Discharge. 

Appendix V to the EPA guidance 

(Industrial User Inspection and 

Sampling Manual for POTWs, EPA 831/ 

B–94–001, April 1994, http:// 

www.epa.gov/npdes/pubs/ 

owm0025.pdf) lists cases where a single 

grab sample may appropriately be 

substituted for a single composite 

sample, including small batch 

Discharges. For example, a 

homogeneous batch Discharge is 

consistent with existing guidance on the 

appropriate use of a single grab sample. 

When and what type of grab samples 

can be manually composited? Today’s 

final rule clarifies that multiple grab 

samples for cyanide, total phenols, 

sulfide, oil and grease, and volatile 

organic compounds collected during a 

24-hour period may be composited prior 

to analysis. Control Authorities also will 

be allowed to authorize manually 

composited grab samples for other 

parameters that are unaffected by 

compositing procedures. Using 

protocols (including appropriate 

preservation) specified in 40 CFR Part 

136 and appropriate EPA guidance, EPA 

clarifies in the rule that multiple grab 

samples collected during a 24-hour 

period may be composited prior to the 

analysis as follows: for cyanide, total 

phenols, and sulfides, the samples may 

be composited in the laboratory or in 

the field; for volatile organics and oil 

and grease, the samples may be 

composited in the laboratory. 

It is important that a composite 

sample provides an accurate 

representation of the pollutant in the 

wastewater. The composite sample 

should provide analytical results that 

are comparable to averaged results of 

the individual grab samples taken over 

a specific time interval. In all cases 

where a series of grab samples is 

manually composited, those parameters 

that have preservation requirements in 

40 CFR Part 136 must be properly 

preserved and/or stored at the time of 

collection as required by the specific 

analytical method employed prior to 

compositing. In addition, EPA wishes to 

reaffirm that some pollutants are not 

amenable to the compositing process. 

For example, total residual chlorine, pH, 

and temperature samples cannot be 

‘‘composited’’ under any circumstances 

because the results would be changed 

by the compositing process. Today’s 

final rule does not allow Control 

Authorities to authorize composite 

samples for these parameters. 

Although analytical procedures for 

compositing oil and grease samples 

have been developed, the general 

consensus among laboratory experts is 

that current techniques do not provide 

consistently reliable results. However, 

continuing advances in analytical 

technology may provide methodologies 

that will make accurate compositing of 

oil and grease samples technically less 

cumbersome and more cost effective in 

the future. Under today’s rule, the 

Control Authority has the flexibility to 

allow Industrial Users to submit data 

from composited oil and grease samples 

as long as the samples were composited 

in the laboratory and the sampling and 

analytical procedures used are 

sanctioned by EPA in 40 CFR Part 136. 

EPA guidance (Industrial User 

Inspection and Sampling Manual for 

POTWs, EPA 831/B–94–001, April 1994, 

http://www.epa.gov/npdes/pubs/ 

owm0025.pdf) describes procedures for 

manually compositing individual grab 

samples that will provide accurate 

results. The reader should also consult 

the regulations in 40 CFR Part 136 to 

identify the accepted analytical 

protocols for specific classes of 

compounds or individual parameters. A 

separate guidance manual (Comparison 

of Volatile Organic Analysis 

Compositing Procedures, EPA 821/R–

95–035, 1995, http://www.epa.gov/ 

clariton/clhtml/pubtitleOW.html) 

discusses procedures for accurate 

compositing of volatile organic 

compounds. 

When can time-proportional or grab 

samples be used in lieu of flowproportional composite samples? 

Today’s final rule will allow Control 

Authorities to waive the requirement 

that Industrial Users collect flowproportional samples. The regulation no 

longer requires Control Authorities to 

require the Industrial User to 

demonstrate that flow-proportional 

samples are ‘‘infeasible.’’

The Industrial User must demonstrate 

that the time-proportional or grab 

samples are representative of the 

Discharge before the Control Authority 

may allow the Industrial User to submit 

such samples. Where time-proportional 

composite sampling or grab sampling is 

authorized by the Control Authority, the 

samples must be representative of the 

Discharge and the decision to allow the 

alternative sampling must be 

documented in the individual Industrial 

User records for that facility. The use of 

statistical approaches to determine 

representativeness may be appropriate 

in certain circumstances. See for 

example, the March 2, 1989, Office of 

Water Regulations and Standards 

(OWRS) Memorandum to Region 9 

describing the results of a statistical 

analysis of sampling data from a single 

industrial facility. Refer to http:// 

www.epa.gov/region09/water/ 

pretreatment/program_impl.html. In 

addition to demonstrating that the 

samples are representative, the Control 

Authority must ensure that compliance 

samples are taken with sufficient care to 

produce evidence admissible in 

enforcement proceedings or in judicial 

actions as required by the section 

modified today at 40 CFR 

403.8(f)(2)(vii). 

What are the sampling requirements for 

those facilities that do not discharge 

continuously? 

As will be discussed below in the 

response to comments section, the final 

rule does not include the sentence in 

the proposed rule that read, ‘‘For those 

60158 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

Industrial User Discharges subject to 

categorical Pretreatment Standards that 

do not operate on a 24-hour per day 

schedule, the samples must be collected 

at equally spaced intervals during the 

period that process wastewater is being 

discharged.’’ EPA interprets a ‘‘day’’ to 

be a 24-hour period which does not 

have to occur within a calendar day. 

This interpretation is consistent with 

the definition of ‘‘daily discharge’’ in 

the NPDES regulations at 40 CFR 122.2. 

Daily discharge means the ‘‘discharge of 

a pollutant’’ measured during a calendar 

day or any 24-hour period that 

reasonably represents the calendar day 

for purposes of sampling. During parts 

of the day when there is no discharge of 

process wastewater, standing water 

should not be disproportionately 

sampled and analyzed as it would not 

be representative of the Discharge from 

the facility. As always, the Control 

Authority must prescribe a sampling 

protocol that produces representative 

results. The selected protocol should 

take into consideration all of the 

operation conditions and the physical 

configuration of the Industrial User 

facility. 

What significant changes were made to 

the proposed rule? 

EPA did not make significant changes 

to the proposed rule. The changes made 

from the proposal to the final rule 

include minor wording changes, a 

clarification to compositing methods, 

the reinstatement of a sentence that was 

removed in the proposal, and the 

removal of a sentence from the proposal. 

The changes (other than minor 

wording changes intended to provide 

clarification) are as follows: 

The following sentence, which had 

been deleted in the proposal, is returned 

to the regulations: ‘‘The Control 

Authority shall require that frequency of 

monitoring necessary to assess and 

assure compliance by Industrial Users 

with applicable Pretreatment Standards 

and Requirements.’’ (EPA notes that 

non-significant CIUs (NSCIUs) may 

satisfy this requirement through 

certification.) This sentence had been 

taken out in the proposed rule. 

However, because the sentence adds 

clarity, EPA has decided to retain it. The 

rationale is discussed in the response to 

comments section below. 

The following sentences at 40 CFR 

403.12(g)(3) were removed from the 

regulations: ‘‘For those Industrial User 

Discharges subject to categorical 

Pretreatment Standards that do not 

operate on a 24-hour per day schedule, 

the samples must be collected at equally 

spaced intervals during the period that 

process wastewater is being discharged. 

Multiple grab samples for cyanide and 

volatile organic compounds that are 

collected during a 24-hour period may 

be composited in the laboratory prior to 

analysis using protocols specified in 40 

CFR Part 136 and appropriate EPA 

guidance.’’ The rationale is discussed in 

the response to comments section 

below. 

For parameters that require grab 

sampling, EPA explicitly states which 

parameters may be composited in the 

field and the laboratory and which 

parameters may only be composited in 

the laboratory. This addition further 

clarifies the issue of compositing for 

samples that require collection by grab 

methods in order to preserve sample 

integrity. 

4. Summary of Major Comments and 

EPA Response 

Commenters were generally 

supportive of the sampling changes that 

EPA proposed. Some of the comments 

requested further clarification of issues. 

The following section summarizes 

EPA’s response to these comments. 

Will the final rule on compositing 

increase workload for sampling 

personnel? A commenter stated that 

manually compositing cyanide and 

volatile organics samples should be 

avoided for sample integrity and 

workload increase. 

Regardless of whether multiple grab 

samples are individually analyzed or 

composited, samples must be properly 

preserved. Therefore, any workload 

change will likely occur at the 

laboratory, and increased workload for 

compositing the sample would be offset 

by decreased workload for analysis. EPA 

further clarifies in the final rule which 

parameters currently may be 

composited in the laboratory and which 

ones may be composited in the field. 

Under the current EPA-approved 

methods, oil and grease, and volatile 

organics may only be composited in the 

laboratory. Whether samples are 

composited in the lab or the field, 

sample integrity must be preserved, 

including preserving each grab sample 

in accordance with 40 CFR Part 136. 

May Industrial Users determine the 

appropriate sampling flexibility without 

Control Authority approval? Industrial 

Users commented that EPA should give 

more flexibility to Industrial Users to 

determine what sampling schemes are 

appropriate for their facility. EPA 

disagrees. Control Authorities are 

responsible for ensuring that 

compliance samples are taken with 

sufficient care to produce evidence 

admissible in enforcement proceedings 

or in judicial actions as required by 40 

CFR 403.8(f)(2)(vii) and for ensuring 

compliance by IUs with Pretreatment 

Standards and Requirements. To the 

extent that sampling is representative of 

the Discharge, the Control Authorities 

will be able to determine the 

appropriate sampling flexibility. The 

Control Authorities retain the 

responsibility for documenting sitespecific circumstances and allowing 

alternate sampling by including the 

alternate sampling in the Industrial User 

control mechanisms. 

May Control Authorities determine 

the appropriate number of grab samples 

for baseline monitoring and 90-day 

compliance reports? EPA requested 

comment on whether Control 

Authorities should be allowed the 

flexibility to determine the appropriate 

number of grab samples required to 

meet baseline monitoring and 90-day 

compliance report requirements for 

facilities without historical sampling 

data. Commenters supported the 

proposal to eliminate the requirement 

that a minimum of four grab samples be 

taken to measure pH, cyanide, total 

phenols, oil and grease, sulfides, and 

volatile organic compounds. 

Commenters stated that Control 

Authorities should be given flexibility 

to determine the appropriate number of 

grab samples required to meet reporting 

requirements, but did not provide 

concrete reasons as to how this would 

ensure that the sampling was 

representative of the Discharge. 

EPA stresses that the flexibility 

should only be provided to the extent 

that the sampling is representative. The 

Control Authority will be responsible 

for documenting site-specific 

circumstances and allowing alternate 

sampling in the Industrial User control 

mechanisms. Baseline Monitoring 

Reports (BMRs) will likely provide the 

first samples for a parameter, and 90- 

day compliance reports will provide 

samples after any treatment has been 

added. Therefore, it is likely that at a 

minimum this data will be needed in 

order to document that alternative 

sampling is representative. Because it is 

unlikely that a Control Authority could 

properly document that sampling is 

representative without data from BMRs 

and 90-day compliance reports, EPA 

retains the requirement for a minimum 

of four grab samples for BMRs and 90- 

day compliance reports in order to 

document potential future sampling 

decisions for new facilities. For existing 

facilities where there is historic data 

representative of the current Discharge, 

Control Authorities may authorize a 

lower minimum number of grab samples 

for pH, cyanide, total phenols, oil and 

grease, sulfides, and volatile organic 

compounds. Of course, where there has 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60159 

been a change to existing facilities, for 

example, the addition of treatment, 

historic data that does not represent the 

current Discharge would not be able to 

be used to justify a lower minimum of 

grab samples. 

As stated previously, Control 

Authorities must ensure that 

compliance samples are taken with 

sufficient care to produce evidence 

admissible in enforcement proceedings 

or in judicial actions as required by 40 

CFR 403.8(f)(2)(vii). To further 

strengthen this point, the following 

sentence, which the proposed rule 

would have deleted, is retained in 40 

CFR 403.12(g)(3): ‘‘The Control 

Authority shall require that frequency of 

monitoring necessary to assess and 

assure compliance by Industrial Users 

with applicable Pretreatment Standards 

and Requirements.’’ Sampling and 

analysis techniques must yield 

analytical data that is representative of 

the Discharge. The Control Authority 

will still need to document how 

alternate sampling techniques are 

representative of the Discharge, and may 

require that more than four grab samples 

be taken and separately analyzed to 

ensure that sampling is representative. 

Where the Control Authority cannot 

verify that previous techniques were 

representative, such data will not 

support the use of this alternative 

practice. EPA notes that ‘‘nonsignificant CIUs’’ (discussed in Section 

III.K of the final rule) may be authorized 

to substitute annual certification for 

sampling and analysis. See 40 CFR 

403.12(q). 

Will EPA define ‘‘representative’’

sampling in the rule? Commenters noted 

that the rules repetitively use the 

concept of ‘‘representative’’ samples, 

but do not precisely define what the 

samples are supposed to represent. In 

the proposed rule preamble (64 FR 

39582, July 22, 1999), EPA indicated 

that it would not offer a comprehensive 

definition of what constitutes a 

‘‘representative sample’’ or specific 

guidance. EPA is not defining 

‘‘representative sample’’ in the final 

rule. Guidance on the subject may be 

found in Industrial User Inspection and 

Sampling Manual for POTWs (EPA, 

1994, http://www.epa.gov/npdes/pubs/ 

owm0025.pdf). 

Sampling methods to yield a 

representative sample may vary 

depending on the site-specific situations 

of an individual discharger and the 

parameter that must be analyzed. Issues 

for the Control Authority to consider 

and document in prescribing sampling 

protocols include: (1) The appropriate 

sampling period (e.g., 24 hours or 

during the period of discharge); (2) use 

of flow proportional versus timeproportional methods; (3) use of grab 

samples versus composite samples; (4) 

use of grab samples for pH monitoring; 

(5) use of grab samples for degradable 

and volatile parameters; (6) allowing 

manual compositing of samples when 

the methodology is approved by EPA; 

and (7) applying the criteria to 

instantaneous, daily maximum, and 

monthly average limits. 

Is EPA providing further clarifying 

language for collection of samples 

during process wastewater Discharges in 

the final rule? A commenter asked EPA 

to clarify whether a sample taken during 

a 24-hour period must be taken during 

a calendar day, or whether a sample 

may be taken over the course of two 

days. For example, if a facility 

discharges 24 hours per day, must the 

sample be taken from midnight to 

midnight, or may it be taken for other 

twenty-four hour periods (e.g., noon to 

noon)? 

EPA interprets a ‘‘day’’ to be a 24- 

hour period and does not require that it 

occur within a calendar day. This is 

consistent with the definition for ‘‘daily 

discharge’’ in the NPDES regulations at 

40 CFR 122.2. Daily discharge means 

the ‘‘discharge of a pollutant’’ measured 

during a calendar day or any 24-hour 

period that reasonably represents the 

calendar day for purposes of sampling. 

For pollutants with limitations 

expressed in units of mass, the ‘‘daily 

discharge’’ is calculated as the total 

mass of the pollutant discharged over 

the day. For pollutants with limitations 

expressed in other units of 

measurement, the ‘‘daily discharge’’ is 

calculated as the average measurement 

of the pollutant over the day. This is 

existing policy and was not proposed to 

be modified in the rule, and therefore 

has not been added to the final rule. 

EPA recognizes that Control Authorities 

may define a more specific sampling 

period. 

Another commenter asked for EPA to 

clarify whether a sample may be taken 

over the course of two calendar days in 

other circumstances. For example, if a 

facility discharges from 7 a.m. to 7 p.m., 

must a sample be taken from 7 a.m. to 

7 p.m., or may a sample be taken from 

noon on one day to noon on the next 

day so long as only regulated 

wastewater is sampled? In the example 

provided, the sampling for compliance 

would need to be representative of the 

categorical process Discharge, and 

would need to account for other factors 

such as ensuring that stagnant water is 

not sampled if the facility is not 

discharging, and that process 

wastewater is not being discharged 

during the 7 p.m. to 7 a.m. period (for 

instance in an overtime situation). 

Where a sampler is placed from noon to 

noon, and wastewater samples (with 

volume proportionate to Discharge) are 

only collected during the discharge 

period (e.g., there is not a process 

wastewater Discharge, and no samples 

are collected from 7 p.m. to 7 a.m.), and 

the samples are properly preserved, 

then it is likely that the sample would 

be appropriate for use to determine 

compliance during a 24-hour period. 

Since this example addresses a sitespecific situation, EPA is not inclined to 

revise the rule to address one particular 

set of circumstances. While other 

industries may have similar situations, 

the Control Authorities will need to 

consider all of the site-specific 

circumstances in detailing the sampling 

requirements for the facility in the 

individual Industrial User’s control 

mechanism. 

A commenter expressed concern with 

the proposed language pertaining to 

required sampling periods. The section 

originally clearly pertained only to 

sampling required for reporting under 

subsections 40 CFR 403.12(b), (d) and 

(e), of all categorical streams. As revised 

in the proposal, the requirements also 

apply to reports required under 

subsection (h) as well as to all other 

non-categorical waste streams. The 

commenter stated that the discussion in 

the preamble to the proposed rule 

seemed to indicate these very specific 

requirements only apply to categorically 

regulated wastestreams. However, the 

commenter indicated that this intent 

was not adequately stated in the 

regulation itself. 

The commenter went on to state, 

‘‘Local limits are developed based on 

total daily average influent loadings and 

total daily flows from all sources 

tributary to the receiving treatment 

plant. Many IUs, particularly larger 

ones, will have wastewater flows, from 

sources such as cooling systems, boilers, 

etc. that continue throughout the 24- 

hour day, as well as flows from 

maintenance and clean-up activities that 

often occur during non-process periods. 

In some cases, continuing composite 

sampling during these ‘off-process’

periods may, in fact, reduce the daily 

average concentration of a pollutant. In 

other cases, pollutant Discharges during 

maintenance or clean-up activities, may 

contribute higher levels of pollutants 

than during normal processing periods. 

In either case, to determine compliance 

with local limits, it seems sampling 

should be conducted throughout the 

period of discharge, regardless of 

whether or not ‘process’ operations are 

occurring the entire time.’’

60160 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

In response, EPA removed the 

sentence from the proposed rule that 

read, ‘‘For those Industrial User 

Discharges subject to categorical 

Pretreatment Standards that do not 

operate on a 24-hour per day schedule, 

the samples must be collected at equally 

spaced intervals during the period that 

process wastewater is being 

discharged.’’ It would be too 

complicated to try to address all local 

limits variations in this section of the 

regulation, and as indicated by the 

commenter, the proposed language did 

not clarify the issue. 

G. Significant Noncompliance Criteria 

(40 CFR 403.8(f)(2)(viii)) 

1. What were the rules in effect prior to 

today’s rule? 

How is ‘‘Significant Noncompliance’’

(SNC) currently defined? 

The previous 40 CFR 403.8(f)(2)(vii) 

defined ‘‘Significant noncompliance’’

(SNC), as it applies to Industrial Users 

to include violations that meet one or 

more of eight criteria. The criteria are: 

(1) Chronic violations of Discharge 

limits (where 66 percent or more of all 

measurements taken for the same 

pollutant parameter during a six-month 

period exceed the daily maximum limit 

or the average limit); (2) Technical 

Review Criteria (TRC) violations (where 

33 percent or more of all measurements 

taken for the same pollutant parameter 

during a six-month period equal or 

exceed the product of the daily 

maximum limit or the average limit 

multiplied by the applicable TRC (TRC 

equals 1.4 for BOD, TSS, fats, oil and 

grease and 1.2 for all other pollutants 

except pH)); (3) any other violation of a 

Pretreatment effluent limit that the 

Control Authority determines has 

caused, alone or in combination with 

other Discharges, Interference or Pass 

Through; (4) any discharge of a 

pollutant that has caused imminent 

endangerment to human health, welfare 

or to the environment or has resulted in 

the POTW’s exercise of its emergency 

authority to halt or prevent such a 

discharge; (5) failure to meet, within 90 

days after the schedule date, a 

compliance schedule milestone 

contained in a local control mechanism 

or enforcement order for certain 

activities; (6) failure to provide required 

reports within 30 days after the due 

date; (7) failure to accurately report 

noncompliance; and (8) any other 

violation or group of violations which 

the Control Authority determines will 

adversely affect the operation or 

implementation of the local 

Pretreatment Program. 

What are the background and purpose of 

the SNC criteria? 

On July 24, 1990, EPA modified 40 

CFR 403.8(f)(2)(vii) to include the 

existing definition of SNC (55 FR 

30082). The purpose of this 

modification was to provide some 

certainty and consistency among 

POTWs for publishing their lists of 

Industrial Users in significant 

noncompliance. EPA modeled the 

modification after the criteria under the 

NPDES program used to determine SNC 

violations for direct dischargers. By 

making the modifications, EPA also 

established more parity in tracking 

violations by direct and indirect 

dischargers. 

What happens when an Industrial User 

facility is in SNC? 

POTWs are required to publish 

annually a list of Industrial Users in 

SNC at any time during the previous 

twelve months. In the previous rules, 

the POTW was required to publish this 

list in the largest daily newspaper 

published in the municipality in which 

the POTW is located. 

The Agency has emphasized that 

Industrial Users are liable for any 

violation of applicable Pretreatment 

Standards and Requirements, and has 

strongly encouraged Control Authorities 

to take some type of enforcement 

response for each such instance of 

noncompliance. Supporting this 

approach, EPA notes that the very 

underlying premise of the Enforcement 

Response Plan (40 CFR 403.8(f)(5)) is 

that there be some type of POTW 

response for each instance of 

noncompliance. Appropriate types of 

enforcement responses are addressed in 

the POTW’s Enforcement Response 

Plan, although EPA guidance 

recommends that violations rising to the 

level of SNC be met with some type of 

formal enforcement action like an 

enforceable order (Guidance For 

Developing Control Authority 

Enforcement Response Plans, EPA 832–

B–89–102, September 1989, (see http:// 

www.epa.gov/npdes/pubs/ 

owm0015.pdf.) 

2. What changes did EPA propose? 

EPA proposed the following 

modifications to the SNC provision in 

1999: 

a. Publication 

EPA proposed to amend the previous 

40 CFR 403.8(f)(2)(vii) to allow 

publication of the SNC list in any paper 

of general circulation within the 

jurisdiction served by the POTW that 

provides meaningful public notice 

rather than in the largest daily 

newspaper published in the 

municipality as is currently required. 

b. Applicability 

EPA proposed to amend the SNC 

criteria to apply only to Significant 

Industrial Users (SIUs). Under the 

existing regulations, SNC can apply to 

any Industrial User. 

c. Daily Maximum or Average Limit 

Violations 

EPA proposed to amend the previous 

40 CFR 403.8(f)(2)(vii)(A), (B), and (C) to 

include a broader set of violations than 

just daily maximum and average limits. 

d. Other Issues 

EPA also took comment on several 

other issues, but did not propose 

specific changes. These issues include 

Technical Review Criteria (TRC), late 

reports, and rolling quarters. 

3. What changes is EPA finalizing in 

today’s rule? 

EPA is finalizing four changes to 

amend 40 CFR 403.8(f)(2)(vii). 

a. Publication 

EPA is amending 40 CFR 

403.8(f)(2)(vii) (now 40 CFR 

403.8(f)(2)(viii)) to allow publication of 

the SNC list in any paper of general 

circulation that provides meaningful 

public notice within the jurisdiction 

served by the POTW. EPA’s intent in 

modifying this requirement is to be 

consistent with the July 17, 1997 

amendments to Part 403 regarding 

modifying POTW Pretreatment 

Programs (62 FR 38406). Under the 

amended 40 CFR 403.11(b)(1)(i)(B), 

publication can be in any paper of 

general circulation within the 

jurisdiction served by the POTW that 

provides public notice. It is EPA’s view 

that this new performance standard for 

publishing SNC violations properly 

balances the need to give the POTW the 

flexibility to choose an appropriate 

newspaper within its community, with 

the need to ensure effective public 

notice and deterrence of ‘‘bad actors.’’

b. Applicability 

EPA is amending the SNC criteria so 

that SNC will apply only to SIUs and to 

those Industrial Users that have caused 

Pass Through or Interference, have a 

Discharge that resulted in the POTW’s 

exercise of its emergency authority to 

halt or prevent such a Discharge, have 

caused imminent endangerment to 

human health, welfare, or the 

environment, or have otherwise 

adversely affected the POTW’s ability to 

operate its Pretreatment program. This 

approach is consistent with the NPDES 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60161 

SNC policy which only applies to major 

dischargers. See ‘‘Revision of NPDES 

Significant Noncompliance (SNC) 

Criteria to Address Violations of NonMonthly Average Limits,’’

memorandum from Steven A. Herman, 

Assistant Administrator for the Office of 

Enforcement and Compliance 

Assurance, September 21, 1995. 

Additionally, EPA emphasizes that the 

SNC criteria apply not only to SIUs, but 

also to IUs that cause significant adverse 

impacts to the POTW, human health or 

the environment. These modifications 

should cut down on administrative 

burdens and allow better resource 

targeting. These modifications ensure 

the POTW’s ability to address all 

potentially problematic Users 

adequately. The Agency wants to make 

it clear that this change is focused only 

on the POTW’s publication and 

reporting requirements. EPA fully 

expects POTWs to take appropriate 

enforcement actions against any 

Industrial User that violates a 

Pretreatment Standard or requirement. 

POTWs still have the option of 

publishing non-significant Industrial 

Users with violations that do not fall 

within one of the above-mentioned 

categories. 

c. Daily Maximum or Average 

Limitations 

EPA is amending 40 CFR 

403.8(f)(2)(vii)(A) and (B) (now 40 CFR 

403.8(f)(2)(viii)(A) and (B)) to apply to a 

broader range of violations such as other 

numeric limits, instantaneous limits, 

narrative limits, or operational 

standards, and amending 40 CFR 

403.8(f)(2)(vii)(C) (now 40 CFR 

403.8(f)(2)(viii)(C)) to address other 

Pretreatment Standards and 

requirements. This change is important 

since some local limits may be 

expressed as instantaneous limits or 

narrative limits. The revised language 

addresses other types of requirements 

like operational standards. The 

amendment is generally consistent with 

EPA’s revision to its NPDES SNC policy 

where EPA broadened the criteria to 

address non-monthly average 

limitations. See ‘‘Revision of NPDES 

Significant Noncompliance (SNC) 

Criteria to Address Violations of NonMonthly Average Limits,’’

memorandum from Steven A. Herman, 

Assistant Administrator for the Office of 

Enforcement and Compliance 

Assurance, September 21, 1995. 

d. Late Reports 

EPA is amending 40 CFR 

403.8(f)(2)(vii)(F) (now 40 CFR 

403.8(f)(2)(viii)(F)) so that SNC applies 

to reports that are provided more than 

45 days after the due date, instead of to 

reports that are 30 days late. The change 

applies to required reports such as 

baseline monitoring reports, 90-day 

compliance reports, periodic selfmonitoring reports, and reports on 

compliance with compliance schedules. 

EPA is making this change because 

many Control Authorities and Industrial 

Users that commented on the late report 

issue argued that the 30-day timeframe 

was too restrictive. EPA notes that 

Industrial Users that submit reports 

even one day late are in violation. 

4. What significant changes were made 

to the proposed rule? 

a. Applicability 

EPA modified the proposal by adding 

to the scope of SNC those nonsignificant IUs that cause Pass Through 

or Interference, have a Discharge that 

resulted in the POTW’s exercise of its 

emergency authority to halt or prevent 

such a Discharge, cause imminent 

endangerment to human health, welfare, 

or the environment, or otherwise 

adversely affect the POTW’s ability to 

operate its Pretreatment program. 

b. Daily Maximum or Average Limit 

Violations 

In the proposal, EPA proposed to 

modify the provisions of the then 

current 40 CFR 403.8(f)(2)(vii)(A), (B) 

and (C) (now 40 CFR 403.8(f)(2)(viii)(A), 

(B) and (C)) to address not only 

violations of daily maximum or longerterm average limits, but also a broader 

range of violations such as other 

numeric limits, instantaneous limits, 

narrative limits, or operational 

Standards. EPA has modified the 

proposal in the following ways: 

Chronic violations (40 CFR 

403.8(f)(2)(viii)(A): EPA has clarified the 

revised language to more accurately 

describe the target violations. The term 

‘‘numeric’’ was added to clarify that 

only Standards or Requirements that 

can be numerically quantified can be 

examined for possible chronic 

violations. Also, EPA specifies that 

chronic violations include violations of 

both ‘‘Standards and Requirements’; the 

term ‘‘Requirements’’ was not included 

in the proposal. The inclusion of this 

term provides the intended broader 

scope that EPA sought in the proposal. 

EPA also clarifies that violations of 

instantaneous limits are also to be 

considered for chronic violations. 

During the process of revising the 

chronic and TRC violations provision, 

EPA found the difference between the 

use of the phrase ‘‘for the same 

pollutant parameter’’ for chronic 

violations, and the phrase ‘‘for each 

pollutant parameter’’ for TRC violations, 

may have led to some unintended 

misinterpretation. It is EPA’s intention 

that the chronic and TRC criteria be 

applied to the ‘‘same pollutant 

parameter.’’ To avoid potential 

confusion, EPA modified both the 

chronic and TRC provisions to use the 

same phrase (i.e., for the same pollutant 

parameter), and to place the phrase in 

the most appropriate place in the 

provision to improve its clarity. 

TRC (40 CFR 403.8(f)(2)(viii)(B): EPA 

adopted the same changes for TRC 

violations that were made for chronic 

violations. 

Any other violations: EPA has 

modified the proposed rule by including 

clarifying language on what is meant by 

a ‘‘Pretreatment Standard or 

Requirement.’’ EPA provides 

parenthetical examples, including daily 

maximum, long-term average, 

instantaneous, or narrative Standards. 

c. Late Reports 

EPA did not propose any changes to 

the then current 40 CFR 

403.8(f)(2)(vii)(F) (now 40 CFR 

403.8(f)(2)(viii)(F)), which contains the 

SNC criterion for late reports. Instead, 

EPA sought comments on several 

options for the late report criterion. The 

options included tying SNC to a pattern 

of late reporting; applying the SNC 

criterion to a late report only if the 

report indicated that a violation of 

monitoring requirements or numeric 

limitations had occurred; allowing 

POTWs to extend ‘‘waivers’’ in some 

circumstances to Industrial Users that 

offered a satisfactory reason why reports 

were late; limiting the types of reports 

to which the SNC criterion applies; 

retaining the 30-day late report 

criterion, but changing the publication 

requirement as it pertains to late reports; 

extending the time after which a late 

report puts an Industrial User in SNC 

(e.g., to 45 days or 60 days); or 

providing the POTW with complete 

authority for determining when late 

reports trigger SNC. EPA is amending 

the criterion so that Industrial Users are 

in SNC if reports are not provided 

within 45 days after their due date. 

5. Summary of Major Comments and 

EPA Response 

a. Publication 

Most commenters were in favor of 

making the change that EPA is adopting 

in today’s rule. EPA is amending the 

regulation to allow publication of the 

SNC list in any paper of general 

circulation that provides meaningful 

public notice within the jurisdiction 

served by the POTW. One reason given 

60162 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

for supporting this change included 

possible lower costs to the municipality. 

Other commenters pointed out that the 

previous use of the largest daily 

newspaper requirement did not make 

sense in certain situations. Such 

examples included that the largest daily 

newspaper may not always have 

provided the most effective notice, and 

the fact that some municipalities may 

only have a weekly publication and no 

daily publication. 

EPA also sought comment on an 

appropriate definition for ‘‘meaningful 

public notice’’ to ensure some level of 

consistency across the Pretreatment 

programs. Some commenters provided 

suggestions for defining ‘‘meaningful 

public notice’’ such as linking it to the 

service area population, the circulation 

rate of the newspaper, or the official 

daily newspaper as determined by the 

Control Authority. Other commenters 

stated that the definition of ‘‘meaningful 

public notice’’ should be determined by 

the Control Authority because defining 

it by service population or circulation 

rate could be overly burdensome and 

not necessarily meet the intent of the 

Standard. EPA agrees with the 

commenters who suggested that 

defining ‘‘meaningful public notice’’

could be overly burdensome. Therefore, 

at this time, EPA has decided not to 

define ‘‘meaningful public notice.’’

b. Applicability 

The majority of commenters 

supported either modifying the 

application of SNC to SIUs only, or to 

SIUs and those Industrial Users which 

caused Pass Through or Interference, 

had a Discharge that resulted in the 

POTW’s exercise of its emergency 

authority to halt or prevent such a 

Discharge, caused imminent 

endangerment to human health, welfare, 

or the environment, or otherwise 

adversely affected the POTW’s ability to 

operate its Pretreatment program. Some 

commenters did not want to limit SNC 

to apply only to SIUs because not all 

Industrial Users which should be are 

properly identified as SIUs. The 

commenters also noted that all 

Industrial Users are required to comply 

with Pretreatment Standards and 

Requirements, regardless of whether 

they are designated as SIUs. (Several 

commenters also indicated that 

changing the SNC definition to apply 

only to SIUs would be unfair, because, 

with such a change, this definition 

would no longer apply to other 

Industrial Users that could cause the 

same types of impacts as SIUs.) EPA 

agrees that certain non-Significant 

Industrial Users should continue to be 

covered under the SNC provisions. By 

including the application of SNC to 

SIUs and those Industrial Users which 

cause the specific problems referenced 

above, the rule should address the 

commenters’ concerns. 

The distinction EPA is making today 

is not focused on the size of the facility; 

rather, EPA focuses on those dischargers 

with the largest potential to impact the 

system. EPA continues to strongly 

encourage POTWs to use their existing 

authority under what will now be 

codified as 40 CFR 403.3(v) to designate 

any Industrial Users as significant if 

they have the reasonable potential to 

adversely affect the POTW’s operation 

or to violate any Pretreatment Standard 

or Requirement. This includes 

considering smaller facilities that have 

the potential (either individually or 

collectively) to impact the system. 

Furthermore, all Industrial Users are 

required to comply with Pretreatment 

Standards and Requirements, regardless 

of whether they are designated as SIUs, 

and EPA expects appropriate 

enforcement to be taken for each 

violation by any Industrial User. 

c. Daily Maximum or Average Limit 

Violations 

Commenters were divided on this 

proposed rule language. One commenter 

mentioned that the revision would be 

much more consistent nationally if it 

were to apply only to numeric 

categorical Pretreatment Standards. 

Another commenter indicated that the 

Control Authorities often are required to 

make ‘‘subjective judgments regarding 

compliance with narrative Standards, 

instantaneous limits and some general 

prohibitions,’’ and that such a subjective 

judgment would be an inappropriate 

basis for an SNC determination. Another 

commenter indicated that all applicable 

Pretreatment Standards are enforced 

now, and that there would be no 

discernible benefit to expanding the 

types of violations that could trigger a 

SNC determination. Some commenters 

cited the possible increased burden on 

the Control Authorities if such 

additional Standards were used to make 

SNC determinations. 

On the other hand, several 

commenters were supportive of the 

proposed rule change. Some 

commenters indicated that the revision 

would better reflect the fact that 

Industrial Users must be in compliance 

with all applicable Pretreatment 

Standards and requirements in order to 

meet the goals of the national 

Pretreatment program. Other 

commenters focused on the fact that 

Interference or pass-through could be 

caused by violations of Standards other 

than categorical Pretreatment Standards, 

and therefore they saw a need to expand 

the SNC criteria. 

EPA agrees with those commenters 

who supported an expansion of the 

range of SNC criteria consistent with the 

proposed rule, and has added other 

numeric limits, instantaneous limits, 

narrative Standards, or operational 

Standards as part of the SNC criteria. 

This approach will give more equal 

weight to categorical Standards, local 

limits, and other Standards as 

applicable Pretreatment Standards and 

Requirements. This expansion of SNC 

criteria would also potentially enhance 

the Control Authority’s ability to 

address such violations (i.e., other 

numeric limits, instantaneous limits, 

narrative Standards, or operational 

Standards) by placing a higher priority 

on these violations. EPA has concluded 

that such a change would still provide 

national consistency and be more 

protective by better ensuring 

compliance with all applicable 

Pretreatment Standards and 

Requirements. Control Authorities are 

currently expected to address violations 

of all applicable Pretreatment Standards 

and Requirements, so that this proposal 

should not necessarily impose any 

increased enforcement responsibilities 

on the Control Authorities. In addition, 

as the preamble to the proposed rule 

states (64 FR 39593), this approach 

would be consistent with ‘‘EPA’s recent 

revision to its NPDES SNC policy where 

EPA broadened the criteria to address 

non-monthly average limit violations.’’

See ‘‘Revision of NPDES Significant 

Noncompliance (SNC) Criteria to 

Address Violations of Non-Monthly 

Average Limits,’’ memorandum from 

Steven A. Herman, Assistant 

Administrator for the Office of 

Enforcement and Compliance 

Assurance, September 21, 1995. 

Under the NPDES SNC policy, when 

a parameter has both a monthly average 

and a non-monthly average limit, a 

facility is only considered in SNC for 

the non-monthly average if the monthly 

average is also violated to some degree 

(but less than SNC). EPA sought 

comment on whether such a caveat is 

also appropriate for the Pretreatment 

Regulations. Very few commenters 

focused on this particular topic. A few 

commenters indicated that a 

determination that a particular violation 

or set of violations constituted SNC 

should only occur if there was a 

meaningful violation of the POTW’s 

NPDES Permit limit for that particular 

parameter. In the absence of significant 

comment and in recognition that 

effluent violations other than monthly 

average violations could have 

significant impacts on the POTWs, EPA 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60163 

has decided not to modify the 

regulations to restrict SNC for violations 

of non-monthly averages. 

d. Technical Review Criteria (TRC) 

In the existing regulations, the 

Technical Review Criteria (TRC) may be 

found at 40 CFR 403.8(f)(2)(vii)(B) (now 

found at 40 CFR 403.8(f)(2)(viii)(B)). As 

described in the preamble to the 

proposed rule (64 FR 39593), these TRC 

‘‘* * * are numeric thresholds used to 

define a subcategory of SNC * * * 

based on the magnitude of an effluent 

violation. A TRC violation occurs where 

33 percent or more of all of the 

measurements for each pollutant 

parameter taken during a six-month 

period equal or exceed the product of 

the daily maximum limit or the average 

limit multiplied by the applicable TRC.’’

TRC is equal to 1.4 times the applicable 

Standard for BOD, TSS, fats, oils and 

grease; TRC is also equal to 1.2 times the 

applicable Standard for all other 

pollutants except pH. 

As further stated in the preamble to 

the proposed rule (64 FR 39593), EPA 

was not proposing to amend the TRC. 

However, EPA did seek comment on 

this topic, particularly regarding local 

limits. EPA stated that it was ‘‘* * * 

interested in suggestions for workable 

alternatives * * * that would ensure 

that the magnitude of a violation * * *’’

continues to be part of the definition of 

SNC, with the condition that such 

alternatives ‘‘* * * would not unduly 

increase the workload on either the 

Control Authority or the Approval 

Authority.’’ Based on its review of the 

comments, EPA is not considering any 

further changes to TRC. 

Several commenters expressed a clear 

preference that TRC not be modified. 

Several commenters also provided 

alternative numeric thresholds for TRC. 

However, there was no consensus 

among the comments for an alternate 

threshold and a sufficient justification 

for the use of such alternative 

thresholds was not provided. As 

explained in the preamble to the 

proposed rule (64 FR 39593), the 

existing regulations are ‘‘consistent with 

the NPDES approach which has 

generally been accepted over the years 

as an indicator of a ‘significant’ level of 

exceedance which should be reviewed 

for enforcement purposes.’’

Furthermore, as that same preamble 

stated, ‘‘(T)he same considerations 

apply to the TRC as it is applied to 

categorical Standards in the 

Pretreatment program and may be 

relevant for local limits.’’ In a sense, by 

keeping the TRC the same for both 

direct dischargers to surface waters and 

indirect dischargers to POTWs, the 

criteria help maintain a ‘‘level playing 

field’’ by ensuring that this subcategory 

of SNC is linked to some nationallyconsistent designated magnitude above 

the applicable Standard, whether that 

Standard is an NPDES Permit effluent 

limit, a categorical Pretreatment 

Standard, or a local limit. 

Several commenters, using similar 

language, stated that ‘‘it is incumbent on 

EPA to develop TRC that are germane to 

the objectives of the Pretreatment 

program, developed in a manner that 

lends credence to application of effluent 

guidelines and local limits, and are 

technically sound and defensible.’’ Just 

as best achievable technology Standards 

(BAT) and stream use are factors 

considered in the development of 

effluent limits, BAT and protection of 

the POTW’s operations are factors 

considered in the establishment of 

categorical Pretreatment Standards and 

local limits respectively. Therefore, if 

these Pretreatment limits are properly 

derived for their intended purpose, the 

TRC are simply intended to represent 

numeric thresholds at magnitudes above 

these applicable Standards such that, 

above this level, such significant noncompliance should make the authority 

sufficiently concerned and warrant 

appropriate action. As such, EPA 

concludes that there is not sufficient 

reason to try to account only for 

instances of potential Pass Through or 

Interference, or to make allowances for 

the range of treatment plant 

performance, or to have different TRC 

for individual pollutant parameters for 

different POTWs. Such revisions would 

be contrary to EPA’s intent to keep the 

regulations simple to understand and 

implement, and to not unduly increase 

the workload on the Control Authority 

or Approval Authority. 

Some of the commenters advocated 

the elimination of the TRC entirely. EPA 

disagrees with these commenters. As 

indicated above, EPA asserts that a 

measure of the magnitude of the 

violation is an appropriate 

consideration in determining SNC. The 

preamble to the proposed rule (64 FR 

39593) stated that EPA was not 

proposing to amend the TRC, and EPA 

believes that radical revisions to the 

TRC are not warranted. 

One commenter indicated that TRC 

should only apply if the levels are at 

least five times the applicable Standard. 

EPA concludes that this level is far too 

high a threshold to serve as a proper 

deterrent to dischargers and as an 

adequate indicator of potential 

compliance problems. EPA emphasizes 

that POTWs should be concerned about 

reported results, the adequacy of 

industrial treatment, and potential 

impacts on the plant operations or 

receiving waters at levels which are 

much less than five times the applicable 

Standard. 

Some commenters sought to adjust 

the TRC by having them only apply to 

daily maximum limitations. Other 

commenters suggested that for the 

violations to rise to the level of SNC 

EPA modify the percentages for TRC 

and chronic criteria from 33 to 34% and 

from 66 to 67% of all measurements 

taken, respectively. EPA disagrees with 

these commenters, because it is not 

clear how these changes will improve 

the application of TRC or provide equal 

if not added environmental protection 

when compared to the existing TRC 

criteria. 

As stated above and in the preamble 

to the proposed rule (64 FR 39593), EPA 

did seek comment on the TRC, 

particularly regarding local limits. No 

commenters focused on whether TRC 

may be inappropriate for local limits, 

based upon a distinction in the 

derivation, site-specific variability and 

intent of local limits as compared to 

categorical Pretreatment Standards. 

Therefore, EPA did not adopt changes to 

reflect the use of TRC for local limits. 

e. Late Reports 

The existing regulations require that 

Industrial Users that submitted reports 

more than 30 days late be considered in 

SNC. This is consistent with the NPDES 

SNC approach for late reports. EPA did 

not propose any specific changes to this 

part of the SNC definition, but did 

solicit comment on possible options or 

combinations of options to modify this 

portion of the definition. The options 

included tying SNC to a pattern of late 

reporting; applying the SNC criterion to 

a late report only if the report indicated 

that a violation of monitoring 

requirements or numeric limitations had 

occurred; allowing POTWs to extend 

‘‘waivers’’ in some circumstances to 

Industrial Users that offered a 

satisfactory reason why reports were 

late; limiting the types of reports to 

which the SNC criterion applies; 

retaining the 30-day late report 

criterion, but changing the publication 

requirement as it pertains to late reports; 

extending the time after which a late 

report puts an Industrial User in SNC 

(e.g., to 45 days or 60 days); or 

providing POTWs with complete 

flexibility for determining when late 

reports trigger SNC. 

Comments on this issue were mixed. 

Many commenters noted that reporting 

is important in and of itself and it serves 

a vital role in ensuring adequate 

implementation and oversight of the 

Pretreatment program. Commenters 

60164 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

noted that failure to submit or late 

submittal of reports impede POTWs 

from meeting goals of their approved 

programs. Because of the importance of 

reporting, a few commenters (POTWs) 

argued that EPA should retain the 

existing SNC criterion for late reports. 

However, a majority of commenters 

asked EPA to modify the SNC criterion 

for late reports in some way. They noted 

that reports are sometimes late because 

of circumstances that are beyond the 

control of the Industrial Users. 

Commenters also stated that publication 

should be reserved to Industrial Users 

that violate numeric Pretreatment 

Standards or fail to monitor, rather than 

for violations that some commenters 

characterized as ‘‘administrative’’

violations. One commenter also noted 

that a 30-day criterion may be 

appropriate for NPDES permittees, but 

not for the Pretreatment Program 

because NPDES permittees generally 

submit reports more frequently than 

Industrial Users regulated by the 

Pretreatment Program and because the 

Pretreatment Program also relies on 

surveillance by the POTWs. Based on 

these comments, EPA agrees that 

modifications to the SNC criterion for 

late reports are appropriate. 

Although most commenters favored 

modifications to the SNC criterion for 

late reports, commenters disagreed on 

how the provision should be modified. 

Some commenters stated that POTWs 

should be given complete flexibility in 

determining whether late reports 

constitute SNC. Others argued that 

POTWs should be provided some 

amount of flexibility, but not total 

flexibility. It is EPA’s position that the 

definition of SNC should be consistent 

throughout the Pretreatment Program. 

Therefore, the Agency has chosen to 

establish a consistent SNC criterion for 

late reports that would avoid the use of 

different SNC criterion by various 

POTWs for the same type of reporting 

violations. 

Some commenters suggested that the 

SNC criterion for late reports should 

recognize a pattern of late reporting, or 

should consider the Industrial User’s 

compliance history. For example, some 

commenters suggested that a late 

reporter be considered in SNC if 33 

percent or more of required reports in a 

specified reporting period are provided 

more than 30 days late. Another 

commenter suggested that three 

monitoring reports submitted more than 

thirty days late could constitute a 

history of chronic late reports, and 

another commenter suggested that 

failure to submit a completed discharge 

monitoring report in any two months of 

any consecutive six month period 

should trigger SNC. EPA agrees that 

POTWs should take steps to address 

Industrial Users that demonstrate a 

pattern of late reporting. In addition, 

EPA strongly asserts that the SNC 

criterion for late reports must address 

reports that are submitted extremely late 

or that are never submitted, even if the 

extremely late submittal or failure to 

submit is a one-time occurrence. 

Some commenters argued that SNC 

for late reports should apply only if the 

report, once submitted, indicates that 

the Industrial User has violated a 

numeric Pretreatment Standard or failed 

to monitor. Others supported a 

provision in which reports provided 

more than 30 days late, but less than 45 

days, should trigger SNC only if they 

indicated another violation. EPA views 

this suggested change as potentially 

minimizing the importance of reporting 

as a tool for POTWs to implement local 

Pretreatment Programs. Also, EPA 

asserts that the SNC criterion for late 

reports must address reports that are 

submitted extremely late or that are 

never submitted, even if the extremely 

late submittal or failure to submit is a 

one-time occurrence and even if the 

report does not indicate monitoring or 

effluent violations. 

A number of commenters supported 

extending the number of days until 

which late reports trigger SNC from 30 

days to 45 days. EPA agrees that this 

change is appropriate and easy to 

implement. A few commenters 

suggested the option of extending the 

period from 30 days to 60 days. EPA has 

concluded that this change is not 

appropriate because most cases of late 

laboratory reports or other 

miscommunications can be addressed 

quickly. EPA also concludes that 

receiving data 60 days late would be 

more likely to jeopardize POTWs’

management of their Pretreatment 

Programs and have the potential to 

adversely impact the POTW and its 

receiving water. 

A few commenters suggested that the 

SNC criterion for late reports should 

only apply to periodic self-monitoring 

reports and 90-day self compliance 

reports. EPA asserts that, in order to 

avoid confusion and ease tracking of 

late reports, the same criterion should 

be applied to all reports. One 

commenter asked that EPA amend the 

regulations so that SNC for late reports 

applies to ‘‘baseline monitoring reports, 

90-day compliance reports, periodic 

self-monitoring reports, or reports on 

compliance with compliance 

schedules’’ (rather than ‘‘baseline 

monitoring reports, 90-day compliance 

reports, periodic self-monitoring 

reports, and reports on compliance with 

compliance schedules’’). The 

commenter was concerned that the 

provision could be interpreted to imply 

that Industrial Users must submit both 

the 90-day compliance reports and the 

periodic self-monitoring reports to avoid 

being in SNC. The list of reports 

comprises a list of examples of 

‘‘compliance reports.’’ EPA does not 

agree that changes are needed to this 

language, nor does the Agency find the 

commenter’s arguments to be valid. 

In considering revisions to the late 

reporting criterion for SNC, EPA notes 

that implementation of the Pretreatment 

Program relies heavily on a self-policing 

and self-reporting system. This selfreporting is important to enforcement. If 

a failure to report becomes routine, the 

entire program can be weakened. EPA 

expects POTWs to take some level of 

enforcement action against any 

Industrial User that provides late 

reports. EPA would also like to 

emphasize that there is current 

flexibility in the existing rule to address 

some of the concerns related to one late 

report putting an Industrial User in 

SNC. For example, the Control 

Authority has some flexibility in setting 

the due date and can set it to coincide 

with some other established reporting or 

billing cycle. Also, in the enforcement 

response policy the POTW can have an 

escalation policy, whereby, for example, 

the Industrial User would receive a 

warning letter that the report is 5–10 

days late past the due date and/or fines 

associated with the report before it rises 

to the level of being in SNC. 

f. Rolling Quarters 

EPA memoranda circa 1991 and 1992 

form the basis of EPA’s policy that SNC 

for IUs should be calculated on a rolling 

quarter basis. (September 9, 1991 

memorandum from Michael B. Cook, 

Director of EPA’s Office of Wastewater 

Enforcement and Compliance to Water 

Management Division Directors, Regions 

I–X and approved Pretreatment State 

coordinators, ‘‘Application and Use of 

the Regulatory Definition of Significant 

Noncompliance for Industrial Users,’’

http://www.epa.gov/npdes/pubs/ 

application_use_regulatory.pdf, and 

January 17, 1992 memorandum from 

Mark B. Charles, Chief of RCRA and 

Pretreatment Enforcement Section, to 

the Regional Pretreatment Coordinators, 

Regions I–X, ‘‘Determining Industrial 

User Significant Noncompliance—One 

Page Summary,’’ http://www.epa.gov/ 

npdes/pubs/industrial_user.pdf). The 

term ‘‘rolling quarters,’’ under EPA’s 

national policy, refers to an approach 

which requires the Control Authority to 

evaluate an Industrial User’s 

compliance status at the end of each 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60165 

quarter by using data from the previous 

six-month period. In the regulations, 

determinations of significant 

noncompliance are based upon sixmonth periods (40 CFR 

403.8(f)(2)(viii)(A) and (B)). 

Many commenters expressed concern 

regarding the concept of rolling quarters 

and instead endorsed the adoption of 

static six-month periods that do not 

overlap. Many commenters were 

concerned that the use of rolling 

quarters could result in the need to 

publish the name of the Industrial User 

in two separate years for SNC for the 

same violation. 

Many commenters who supported the 

static six-month approach voiced 

concerns that the use of rolling quarters 

unnecessarily complicated the 

calculations of SNC and the annual 

publication of those IUs in SNC, 

without apparent benefits over the use 

of static six-month periods. They 

indicated that the concept was complex, 

difficult to implement and would only 

result in confusion for the Industrial 

Users and increased burden for the 

control authorities. 

Some commenters preferred to begin 

to ‘‘roll’’ time periods after a violation 

occurs, thus giving, as one commenter 

stated, the possibility to ‘‘* * * allow 

Industrial Users to achieve compliance 

and obtain additional samples’’ to verify 

compliance, all within the given time 

period. The commenters explained that 

this could give Industrial Users an 

opportunity to demonstrate compliance 

rather than being listed as being in SNC 

for violations that were corrected 

months ago. EPA noted in the preamble 

to the proposed rule (64 FR 39594, July 

22, 1999) that while the Agency 

provided some discussion of the various 

opinions regarding the use of rolling 

quarters, EPA did not ultimately 

propose a specific change regarding 

rolling quarters national policy, did not 

seek comment on whether to 

discontinue EPA’s national policy 

regarding the use of rolling quarters, and 

did not propose an alternative approach. 

It remains EPA’s intention to continue 

the existing national policy that SNC for 

Industrial Users be evaluated on a 

rolling quarter basis. This approach, 

which is the same as the one used in the 

NPDES program for the determination of 

SNC by direct dischargers, will remain 

the same. 

EPA did seek comment on whether 

the concept of rolling quarters should be 

codified in the Pretreatment 

Regulations. Some commenters 

expressed their opposition to such 

codification, based largely upon their 

preference to use an alternative to 

rolling quarters. A few commenters 

supported codification, indicating that 

by making the use of the rolling quarters 

approach mandatory, EPA would help 

ensure national consistency in its use by 

Control Authorities. One commenter 

recommended codification of the due 

date for the annual publication of 

Industrial Users in SNC. After 

considerable internal discussion and 

careful deliberation, EPA has decided 

not to codify rolling quarters in the 

Pretreatment Regulations. 

In the preamble to the proposed rule 

(64 FR 39594, July 22, 1999), EPA 

specifically sought comment on whether 

the regulations should be revised to 

allow Control Authorities to waive the 

second publication (as described above) 

‘‘where that second publication is based 

solely on the violations occurring in the 

last quarter of the previous Pretreatment 

year.’’ Many commenters sought the 

elimination of this double publication 

issue through a specific rule change to 

the publication requirements, 

particularly if the final rule implements 

the concept of rolling quarters. Those 

commenters indicated that such 

duplicate publications in the newspaper 

would be unfair to the Industrial User 

which had corrected its compliance 

problems and would mislead the public 

regarding the status of such an 

Industrial User. 

EPA’s 1991 memorandum, cited 

previously, addressed the issue of 

possible publication in two different 

years of an Industrial User that is in 

SNC for the same violation. EPA was 

clear on the point that double 

publication is not intended by the use 

of rolling quarters. It stated that ‘‘(I)f a 

facility has been determined to be in 

SNC based solely on violations which 

occurred in the first quarter of the 15- 

month evaluation period (i.e., the last 

quarter of the previous Pretreatment 

year) and the facility has demonstrated 

consistent compliance in the subsequent 

four quarters, then the POTW is not 

required to republish the Industrial User 

(IU) in the newspaper if the IU was 

published in the previous year for the 

same violations.’’ It is EPA’s position 

that no revisions are needed on this 

point. However, EPA wishes to clarify 

that a facility does not need to have full 

compliance to avoid double publication. 

Rather, if a facility was already 

determined to be in SNC during the 

previous pretreatment year, and the 

facility would not be in SNC in the 

current year but for violations occurring 

during the last three months of the 

previous year, then the facility is not 

considered in SNC for the current year. 

H. Removal Credits—Compensation for 

Overflows (40 CFR 403.7(h)) 

1. General Background 

Section 307(b) of the CWA which 

requires EPA to establish pretreatment 

standards also authorizes a 

discretionary program for POTWs to 

grant ‘‘removal credits’’ to their 

industrial users. The credit in the form 

of a less stringent categorical 

Pretreatment Standard would allow an 

Industrial User to discharge a greater 

quantity of a pollutant than would 

otherwise be authorized because the 

POTW’s treatment processes sufficiently 

reduce the concentrations of the 

pollutant. 

Section 307(b)(1) establishes a threepart test that a POTW must meet in 

order to obtain removal credit authority 

for a given pollutant. Removal credits 

may be authorized only if (1) the POTW 

‘‘removes all or any part of such toxic 

pollutant,’’ (2) the POTW’s ultimate 

discharge would ‘‘not violate that 

effluent limitation or standard which 

would be applicable to that toxic 

pollutant if it were discharged’’ directly 

rather than through a POTW, and (3) the 

POTW’s discharge would ‘‘not prevent 

sludge use and disposal by such 

[POTW] in accordance with section 

[405] * * *’’ (Sec. 307(b)). EPA 

promulgated removal credit regulations 

that are codified at 40 CFR 403.7 (See 

43 FR 27736, 46 FR 9404, 49 FR 31212, 

and 52 FR 42434). 

In this rulemaking, EPA proposed 

only one limited change to the removal 

credits provision of the General 

Pretreatment Regulations. A number of 

commenters, however, asked EPA to 

consider changes to the regulations to 

allow greater availability of removal 

credits for a broader range of pollutants. 

The Agency’s current plans with respect 

to sewage sludge regulations and 

removal credits are discussed in detail 

in a Notice published today with this 

rule. 

2. What are the existing rules governing 

how removal credit authority is affected 

by the occurrence of overflows in the 

POTW sewer system? 

Section 403.7 of the General 

Pretreatment Regulations describes the 

conditions under which removal credits 

may be available to an Industrial User. 

Among other things, the regulation 

provides that, given certain conditions 

are met, a POTW may grant a removal 

credit to an Industrial User equal to or 

less than its consistent removal rate for 

that pollutant. The regulation defines 

‘‘consistent removal rate.’’ In 

circumstances where a POTW ‘‘annually 

Overflows’’ untreated wastewater to 

60166 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

receiving water, the POTW may claim 

consistent removal of the pollutant only 

under the conditions specified either in 

40 CFR 403.7(h)(1) or (2). ‘‘Overflow’’

means the intentional or unintentional 

diversion of flow from the POTW before 

the POTW treatment plant. 

Under subsection (h)(1), a POTW may 

claim consistent removal only if, for 

example, the POTW has established 

plans for notifying Industrial Users in 

the event of a potential overflow and the 

Industrial User has, among other things, 

taken certain actions to provide 

containment of, or ceases or reduces, its 

discharges of the pollutant for which the 

removal credit is sought. Alternatively, 

in subsection (h)(2), the current rule 

provides that consistent removal may be 

claimed under a mathematical formula 

that reduces consistent removal to take 

account of the Overflows so long as the 

POTW has taken steps required by an 

EPA guidance document on combined 

sewer overflows (CSOs) published on 

December 16, 1975 (i.e., PRM 75–34). 

This latter requirement was intended to 

ensure that POTWs granting removal 

credits were taking appropriate steps to 

address CSOs as outlined in EPA’s thencurrent guidance. Since then, EPA has 

adopted the CSO Control Policy with 

updated requirements for addressing 

CSOs. Section 402(q) of the CWA 

provides that all NPDES permits must 

be consistent with the CSO Control 

Policy. 

3. What changes did EPA propose? 

EPA proposed to make Industrial 

Users that are upstream of Overflows 

ineligible for removal credits unless 

they could establish that their 

discharges would be consistently 

treated. Consistent with that approach, 

the proposal would have deleted the 

existing provision in 40 CFR 403.7(h)(2) 

which allows removal credits for 

discharges that are subject to Overflows, 

but reduces the credit by a percentage 

equal to the percentage of time in a year 

that the POTW is subject to Overflows. 

In addition, references in the regulation 

to the now obsolete guidance on 

construction grants review procedures 

for developing CSO control were to be 

removed by deleting Appendix A as 

well as discussion of that guidance in 40 

CFR 403.7(h)(2). 

4. What changes is EPA finalizing in 

today’s rule? 

Today, EPA is limiting its action to 

updating the references to obsolete 

guidance published in 1975, for the 

construction grants program. Existing 40 

CFR 403.7(h)(2)(ii) and (iii) and 

Appendix A are deleted and replaced 

with a requirement for the POTW to be 

in compliance with all NPDES permit 

requirements and other requirements in 

any orders or decrees issued pursuant to 

the 1994 CSO Control Policy. As noted 

above, CWA 40 CFR402(q) requires all 

NPDES permits to conform to this 

policy. The existing formula in 40 CFR 

403.7(h)(2)(i) for adjusting removal 

credits based on the number of hours of 

Overflow discharges occurring in a year 

is retained. 

EPA decided not to adopt the 

proposed revision which would have 

required that removal credits be limited 

to the percentage of the pollutant that 

was removed during the Overflow 

event. EPA does not have sufficient 

information to determine the impacts of 

such a change on existing programs 

using removal credits and is concerned 

that the adoption of this change may 

have disrupted these programs with 

little environmental benefit. 

Today’s rule also makes one technical 

correction in response to comments 

received. EPA corrects footnote 1 in 

Appendix G, Table I (Regulated 

Pollutants in Part 503 Eligible for a 

Removal Credit) by including a 

reference to the use of carbon monoxide. 

The Part 503 regulations now allow the 

use of either total hydrocarbon (THC) or 

carbon monoxide concentrations to 

represent organic compounds in exit gas 

from incinerators. EPA amended Part 

503 subpart E (59 FR 9095, February 25, 

1994) to authorize the demonstration of 

compliance with the 100 ppm THC 

operational standard by meeting a 100 

ppm CO limit. Therefore, EPA is 

modifying footnote 1 to reflect the fact 

that either total hydrocarbon or carbon 

monoxide, as a surrogate monitoring 

parameter, may be used. 

I. Miscellaneous Changes (40 CFR 

403.12(g), (j), (l), and (m)) 

Signatory Requirements for Industrial 

User Reports and POTW Reports (40 

CFR 403.12(l) and (m)) 

Today’s rule revises the signatory 

requirements for Industrial Users at 40 

CFR 403.12(l)(1)(ii) to adopt more 

flexible standards for determining who 

must sign reports on behalf of a 

corporation. EPA’s NPDES regulations 

include similar requirements for NPDES 

Permits. See 40 CFR 122.22(a)(1)(ii). 

Today’s amendments make similar 

changes to the signatory requirements 

for ‘‘duly authorized employees’’ of 

POTWs. See 40 CFR 403.12(m) and 

122.22(a). 

1. What were the rules in place prior to 

today’s rulemaking? 

Sections 403.12(l)(1)(ii) previously 

limited the circumstances in which a 

plant manager could sign a Pretreatment 

report as a responsible corporate officer. 

Prior to today’s rule, in order to sign a 

report on behalf of a company, the 

manager was required to manage a 

facility with more than 250 employees 

or $25 million in sales or expenditures. 

Section 403.12(i) addresses annual 

reporting requirements for POTWs. 

Prior to today’s rule, 40 CFR 403.12(m) 

required these reports to be signed by ‘‘a 

principal executive officer, ranking 

elected official or other duly authorized 

employee if such employee is 

responsible for overall operation of the 

POTW.’ ’’

2. What changes did EPA propose? 

EPA proposed to revise the signatory 

requirements for Industrial Users at 40 

CFR 403.12(l)(1)(ii) to adopt the same 

language that EPA proposed in 1996 (61 

FR 65268) and now uses for direct 

dischargers at 40 CFR 122.22(a)(1)(ii). 

On May 15, 2000, EPA finalized 

revisions to 40 CFR 122.22(a)(1)(ii) to 

replace the numeric criteria for 

designating an appropriate signer with 

more flexible narrative criteria (64 FR 

39595). Rather than conditioning 

signature authority on resource 

management size, the revised criteria 

describe the necessary signer in terms of 

general management authority and 

responsibilities. The revised criteria 

require the manager to have the 

authority to make capital investment 

decisions and assure long term 

environmental compliance. 

In addition, EPA also proposed to 

revise the signatory requirements for 

POTW reports at 40 CFR 403.12(m) so 

the requirement would be more 

consistent with signatory requirements 

in the current 40 CFR 122.22(a). EPA 

proposed to allow signature by a duly 

authorized employee having 

responsibility for the overall operation 

of the facility or activity such as the 

position of POTW Director, Plant 

Manager, or Pretreatment Program 

Manager. This authorization could be 

made in writing by the principal 

executive officer or ranking elected 

official, and submitted to the Approval 

Authority prior to the report being 

submitted. 

3. What changes is EPA finalizing in 

today’s rule? 

In today’s final rule, EPA adopts the 

proposed rule’s changes. The following 

modifications to the proposed rule were 

made: 

Duly Authorized Employee: The 

proposed rule provided examples of 

which POTW personnel could sign as a 

‘‘duly authorized employee.’’ EPA was 

concerned that the specific examples 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60167 

given (e.g., POTW Director, Plant 

Manager, or Pretreatment Program 

Manager) might have unintentionally 

limited the designation of ‘‘duly 

authorized employee’’ at a POTW in the 

case of an employee that did not have 

the same exact position title as any of 

the ones listed in the proposal. To avoid 

any confusion and provide intended 

flexibility, today’s rule adopts the 

proposal’s requirement that the duly 

authorized employee be ‘‘an individual 

or position having responsibility for the 

overall operation of the facility’’, yet 

simplifies the language by deleting the 

examples of specific POTW positions 

from the proposal. 

Authorization for Duly Authorized 

Employee: EPA clarifies in today’s rule 

that the POTW’s authorization of a duly 

authorized employee to sign POTW 

reports can be submitted to the 

Approval Authority ‘‘together with’’ the 

next annual report. The proposal only 

provided the option of submitting such 

authorization ‘‘prior to’’ the annual 

POTW report. 

4. Summary of Major Comments and 

EPA Response 

The following is a summary of major 

comments received and EPA’s response: 

Do individuals previously authorized 

to sign POTW reports need to comply 

with the new ‘‘duly authorized 

representative’’ requirements? Several 

commenters observed that individuals 

currently signing POTW reports for their 

program, who may have been signing 

such reports for numerous years, would 

now need to receive Approval Authority 

approval prior to signing the next report 

after today’s rule becomes effective. The 

commenter suggested that EPA add a 

grandfather provision which enables 

such individuals to continue signing 

POTW reports without having to 

comply with the ‘‘duly authorized 

representative’’ requirements at 40 CFR 

403.12(m). 

EPA has not adopted the commenter’s 

suggestion. In EPA’s view, the new 

language provides greater flexibility to 

POTWs than is currently provided by 

the Pretreatment Regulations and 

clarifies any uncertainty about which 

employees may be ‘‘duly authorized’’ to 

sign and submit Pretreatment reports. If 

the commenter chooses to continue its 

practice of delegating a duly authorized 

representative to sign relevant reports, 

this authorization, consistent with 40 

CFR 403.12(m) ‘‘must be made in 

writing and submitted to the Approval 

Authority prior to or together with the 

report being submitted.’’

EPA notes that the proposed rule 

made it seem as if the Approval 

Authority’s approval of duly authorized 

representatives needed to occur prior to 

the submission of the next report. 

Because this is inefficient for the POTW, 

EPA modified the proposed language in 

40 CFR 403.12(m), to indicate that the 

POTW can request such approval either 

‘‘prior to or together with’’ the POTW 

report being submitted. It is EPA’s 

opinion that this change addresses the 

commenters’ concerns about the 

inefficiency of waiting for approval from 

the Approval Authority before 

submitting a report. EPA sees no reason 

why the POTW’s request to use a duly 

authorized employee signatory not be 

considered by the Approval Authority at 

the same time that it receives the 

POTW’s report. 

For Industrial User reports, why is 

EPA no longer requiring the signatory to 

be a high level person of authority 

ultimately responsible for the overall 

management of the business? One 

commenter disagreed with the change to 

40 CFR 403.12(l) observing that the 

signatory should continue to be a high 

level person of authority who is 

ultimately responsible for the overall 

management of the business. EPA 

clarifies that today’s rule merely 

provides greater flexibility in the type of 

‘‘responsible corporate officer’’ who 

may sign reports on behalf of an 

Industrial User. The revised 

requirements do not significantly alter 

the type of official designated as 

signatory. The Industrial User is still 

given the same level of flexibility as 

existed prior to today’s rule to choose 

between a responsible corporate officer, 

a general partner or proprietor, or a duly 

authorized representative. 

Net/Gross Calculations (40 CFR 403.15) 

Today’s rule corrects an unintended 

error in the net/gross procedures for 

adjusting categorical Pretreatment 

Standards to reflect the presence of 

pollutants in the Industrial User’s intake 

water. The error appeared to make the 

test for using these procedures 

unintentionally difficult to meet. 

1. What were the rules in place prior to 

today’s rulemaking? 

Net/gross calculations allow 

pollutants in intake water to be 

considered when developing 

technology-based limitations. EPA 

modified 40 CFR 403.15, the section of 

the Pretreatment Regulations addressing 

net/gross calculations, in 1988 so that 

this provision would be consistent with 

the NPDES provision for net/gross 

which had been revised earlier. See 

discussion at 53 FR 40602–40605, 

October 17, 1988. The NPDES provision 

(40 CFR 122.45(g)) is an ‘‘or’’ test which 

allows net/gross adjustments either 

where effluent Standards are specified 

on a net basis or where control systems 

meet Standards in the absence of 

pollutants in the intake water. That is, 

meeting either condition allows 

consideration of adjustment. However, 

the actual language EPA used to modify 

40 CFR 403.15 in 1988 erroneously used 

the term ‘‘and’’ instead of ‘‘or’’, thus 

inadvertently establishing a test in 

which both conditions would have to be 

met. As there are no categorical 

Standards which specify application on 

a net basis, this resulted in an 

unintended prohibition on the use of 

the net/gross provision in the 

Pretreatment Program. 

2. What changes did EPA propose? 

EPA proposed to revise the language 

in section 40 CFR 403.15 to be 

consistent with the NPDES regulations 

and with the intent of the 1988 

modification. According to the proposal, 

categorical Pretreatment Standards 

could be adjusted on a ‘‘net’’ basis if 

either the applicable Pretreatment 

Standards allow for this calculation or 

the Industrial User demonstrates its 

control system meets those Pretreatment 

Standards. 

3. What changes is EPA finalizing in 

today’s rule? 

EPA has adopted the proposed rule 

change. No modifications were made to 

the proposal in the final rule. 

4. Summary of Major Comments and 

EPA Response 

There were no significant comments 

on this proposed change. 

Requirement To Report All Monitoring 

Data (40 CFR 403.12(g)) 

Today’s rule updates a requirement 

for Categorical Industrial Users (CIUs) to 

report all monitoring data to reflect the 

fact that this provision should similarly 

apply to non-categorical SIUs, since 

both types of Users are required to 

submit monitoring reports to the Control 

Authority. 

1. What were the rules in place prior to 

today’s rule? 

EPA changed 40 CFR 403.12(g) in 

1988 (see 53 FR 40614, October 17, 

1988) to require all monitoring by 

Industrial Users to be reported. This was 

done to avoid the situation in which an 

Industrial User that performs extra 

sampling might select the most 

favorable monitoring result to report to 

the Control Authority. At the time of 

this change, only CIUs were required by 

the regulations to report on a regular 

basis, and therefore, this requirement 

was limited to CIUs. In 1990, 40 CFR 

60168 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

403.12(h) was added to the regulations 

(see 55 FR 30131, July 24, 1990), 

requiring all non-categorical Significant 

Industrial Users to also sample and 

report. However, at the time this change 

was made, the regulations at 40 CFR 

403.12(g) were not updated to require 

all SIUs, categorical and noncategorical, to report all monitoring 

results to the Control Authority. 

2. What changes did EPA propose? 

EPA proposed to change the 

Pretreatment Regulations to require all 

SIUs, both categorical and noncategorical SIUs, to report all 

monitoring results for regulated 

parameters at the point of compliance, 

obtained using procedures specified in 

Part 136, to the Control Authority. 

3. What changes is EPA finalizing in 

today’s rule? 

EPA adopted the proposed rule 

change to 40 CFR 403.12(g)(6). No 

modifications were made to the 

proposal in the final rule. 

4. Summary of Major Comments and 

EPA Response 

Should non-SIUs be required to report 

all monitoring results? Two commenters 

suggested that EPA revise the scope of 

its provision to include all Industrial 

Users. While there are likely important 

reasons to apply this provision to nonSIUs on a case-by-case basis, EPA 

declines to do so in a requirement 

affecting all Pretreatment programs. 

First, EPA did not consider such a 

revision in the proposal, and it would 

be inappropriate to do so in this action. 

Second, while it may make sense to 

require reporting of all monitoring 

results for SIUs since they are already 

required to monitor and report to the 

POTW, non-SIUs are not currently 

required by the Pretreatment 

Regulations to monitor or report. Of 

course, POTWs may require non-SIUs to 

report all monitoring data to POTWs on 

a case-by-case basis if local laws allow. 

Such a decision is a matter of local 

discretion. 

Notification by Industrial Users of 

Changed Discharge (40 CFR 403.12(j)) 

Today’s rule clarifies that when the 

Industrial User provides notification of 

a changed Discharge it should go to the 

‘‘Control Authority’’, or the Control 

Authority and the POTW, where the 

POTW does not have an approved 

Pretreatment program. 

1. What were the rules in place prior to 

today’s rule? 

In 1988, the regulations were changed 

to add 40 CFR 403.12(j) (53 FR 40614, 

October 17, 1988) requiring all 

Industrial Users to promptly notify the 

POTW of any substantial change in 

volume or character of pollutants in the 

User’s Discharge to the POTW. This 

notification requirement did not include 

the Control Authority, which, in some 

cases, is not the POTW. 

2. What changes did EPA propose? 

EPA proposed to expand the 

notification requirement in 40 CFR 

403.12(j) so that the Industrial User 

must notify the ‘‘Control Authority’’, as 

opposed to the ‘‘POTW’’, and in cases 

where the Control Authority and the 

POTW are different organizations, the 

Industrial User would notify both the 

Control Authority and the POTW of any 

substantial change in volume or 

character of pollutants in the User’s 

Discharge to the POTW. 

3. What changes is EPA finalizing in 

today’s rule? 

EPA has adopted the proposed rule’s 

revision of 40 CFR 403.12(j). No 

modifications were made to the 

proposal in the final rule. 

4. Summary of Major Comments and 

EPA Response 

There were no significant comments 

on this proposed change. 

J. Equivalent Mass Limits for 

Concentration Limits (40 CFR 

403.6(c)(5)) 

This section of today’s final rule 

addresses the establishment of 

equivalent mass limits for 

concentration-based categorical 

Standards. EPA is finalizing provisions 

that allow Industrial Users to request 

(and, at their discretion, Control 

Authorities to approve) the conversion 

of concentration-based categorical limits 

to equivalent mass-based limits. The 

current rule requires that the Control 

Authority must control contributions to 

a POTW by all Significant Industrial 

Users (which include Categorical 

Industrial Users) through a Permit or 

equivalent individual control 

mechanism. See 40 CFR 403.3(t) (now 

found at 40 CFR 403.3(v)) and 40 CFR 

403.8(f)(1)(iii). Today’s change 

authorizes the Control Authority to 

calculate an equivalent mass limit for 

the Industrial User’s Permit (or control 

mechanism) for those categorical 

Pretreatment Standards that are 

expressed in terms of concentration. 

Once inserted into the Industrial User’s 

control mechanism, the equivalent limit 

replaces the promulgated concentrationbased Pretreatment Standard. See 40 

CFR 403.6(c)(7). The final rule includes 

requirements that an Industrial User 

must satisfy in order to qualify for this 

conversion. These include a 

requirement for the Industrial User to 

use water conservation methods and 

technologies during the term of the 

Industrial User’s control mechanism. 

The rule also specifies the procedures 

which the Control Authority must 

follow in calculating the equivalent 

mass limit. After the equivalent mass 

limits are in effect, the rule conditions 

the continued use of the limits on the 

Industrial User’s compliance with 

several requirements, including, at a 

minimum, the maintenance and 

effective operation of treatment 

technologies adequate to achieve 

compliance with the equivalent mass 

limits, the continuous recording of flow 

rates, the notification of the Control 

Authority where production is expected 

to be substantially changed, and the 

retention of water conservation 

measures. 

1. What were the rules in place prior to 

today’s rulemaking? 

National categorical Pretreatment 

Standards establish different types of 

pollutant limitations for different 

categories. EPA has established 

categorical Pretreatment Standards that 

include the following types: (1) 

Concentration-based Standards that are 

implemented directly as concentration 

limits; (2) mass limits based on 

production rates; (3) both concentrationbased and production-based limits; and 

(4) mass limits based on a concentration 

Standard multiplied by a facility’s 

process wastewater flow. Currently, 40 

CFR 403.6(c)(2) authorizes the Control 

Authority to convert production-based 

mass limits to equivalent daily mass 

limits or concentration limits. In 

addition, 40 CFR 403.6(d) allows the 

Control Authority to impose equivalent 

mass limits in addition to 

concentration-based Standards where 

the Industrial User is using dilution to 

meet applicable Pretreatment Standards 

or where the imposition of mass limits 

is appropriate. Under 40 CFR 403.6(d), 

both the mass limit and concentration 

limit are then enforceable, so the mass 

limit would not be an equivalent, ‘‘inlieu-of’’ limit. The regulations do not 

currently, however, authorize 

establishment of alternative mass 

limitations in the case of concentrationbased Standards except in the limited 

circumstances described in 40 CFR 

403.6. 

2. What changes did EPA propose? 

EPA proposed to revise the 

Pretreatment Regulations to authorize 

the Control Authority to establish 

equivalent mass limits in lieu of 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60169 

promulgated concentration-based limits 

for Industrial Users. The equivalent 

mass limit would only be available to 

Industrial Users that had installed 

control measures at least as effective as 

the model treatment technologies that 

serve as the basis for a particular 

categorical Pretreatment Standard and 

that are employing water conservation 

methods and technologies that 

substantially reduce water use. The 

Control Authority would be required to 

document how the equivalent mass 

limits were derived and make this 

information publicly available. 

3. What changes is EPA finalizing in 

today’s rule? 

EPA is finalizing changes to enable 

Control Authorities in limited 

circumstances to express a 

concentration-based categorical 

Standard as an equivalent mass limit in 

a control mechanism issued to an 

Industrial User. The equivalent mass 

limit replaces the promulgated 

categorical Pretreatment Standard once 

it is incorporated into the Industrial 

User’s control mechanism. To qualify 

for an equivalent mass limit, the CIU 

must meet certain eligibility conditions. 

These conditions require the CIU to: (1) 

Implement water conservation measures 

that substantially reduce water use; (2) 

use control and treatment technologies 

adequate to achieve compliance with 

categorical Pretreatment Standards, and 

demonstrate that it has not used 

dilution as a substitute for treatment; (3) 

provide monitoring data to establish its 

actual average daily flow rate and its 

baseline long-term average production 

rate; (4) demonstrate that it does not 

have daily flow rates, production rates, 

or pollutant levels that fluctuate so 

significantly that establishing equivalent 

mass limits would not be appropriate; 

and (5) have consistently complied with 

the applicable categorical Pretreatment 

Standards. 

Under the final rule, while a CIU may 

request an equivalent limit, the Control 

Authority has the discretion to decide 

whether an equivalent mass limit is 

appropriate. If the Control Authority 

approves the request, it then calculates 

the equivalent mass limit by 

multiplying the promulgated 

Pretreatment Standard (expressed as 

concentration) by the Industrial User’s 

actual average daily flow rate and the 

appropriate unit conversion factor. For 

example, the unit conversion factor is 

8.34 when multiplying a concentration 

limit (expressed as milligrams/liter) by 

flow (expressed as millions of gallons 

per day). The CIU is subject to the 

equivalent mass limit when its control 

mechanism containing the mass limit is 

effective. During the term of the control 

mechanism, or in a subsequent control 

mechanism term, the Control Authority 

may determine that it is necessary to 

revise the mass limit to reflect a 

significant change in the rate of 

production. The Control Authority is 

not required to recalculate the 

equivalent mass limits in subsequent 

control mechanism terms if the actual 

average daily flow rates were reduced 

solely as a result of implementing water 

conservation methods and technologies, 

and the flow rates used in the original 

calculation of the equivalent mass limits 

were not based on the use of dilution as 

a substitute for treatment pursuant to 40 

CFR 403.6(d), and the Industrial User is 

not bypassing its treatment technologies 

pursuant to 40 CFR 403.17. 

After the Control Authority develops 

an equivalent mass limit and issues a 

control mechanism with the mass 

limits, the continued applicability of the 

equivalent mass limit depends on the 

Industrial User’s continued compliance 

with certain requirements. To comply 

with these requirements, the Industrial 

User must: (1) Maintain and effectively 

operate control and treatment 

technologies adequate to achieve 

compliance with the equivalent mass 

limits; (2) record the facility’s flow rates 

through the use of a continuous effluent 

flow monitoring device; (3) continue to 

record the facility’s production rates 

and notify the Control Authority if the 

rates vary by more than 20 percent from 

the production rates used as the basis 

for the equivalent mass limits; and (4) 

continue to employ the same or 

comparable water conservation 

measures which made the facility 

eligible for receiving the equivalent 

mass limits. The Control Authority 

should consider including the four 

conditions listed above in the CIU’s 

control mechanism to make it clear to 

all such Industrial Users that continued 

use of the equivalent mass limits is 

subject to ongoing compliance with 

these minimum requirements. Failure to 

comply with these conditions will 

disqualify the CIU from coverage by the 

equivalent mass limit. The pre-existing 

concentration-based Pretreatment 

Standards will be automatically 

enforceable at the time of 

disqualification. 

Section 403.8(f)(1) requires that 

POTW Pretreatment Programs must 

have the legal authority to control the 

contribution to POTWs from each 

Industrial User to ensure compliance 

with Pretreatment Standards and other 

requirements. In the case of Significant 

Industrial Users, this control must be 

achieved through a Permit or other 

equivalent control mechanism. The 

Permit or control mechanism must 

contain, among other things 

‘‘* * * [e]ffluent limits based on 

applicable general Pretreatment 

Standards in part 403 of this chapter, 

categorical Pretreatment Standards, 

local limits, and State and applicable 

local law.’’ 40 CFR 403.8(f)(1)(iii)(C). 

When a Control Authority develops 

equivalent mass limits under today’s 

provision, these limits will meet the 

requirement that the Permit or control 

mechanism include ‘‘effluent limits 

based on categorical Pretreatment 

Standards.’’ As is the case with any 

equivalent Standard established under 

40 CFR 403.6(c), in order for the 

Approval Authority and the public to be 

able to verify compliance by the CIUs 

with these equivalent Standards, the 

Control Authority will need to 

document how the mass limit 

calculations were derived and make the 

documents publicly available (i.e., to 

the Approval Authority, EPA, the 

general public or any third party 

requesting this information). 

Establishing mass limits that are 

equivalent to promulgated 

concentration-based categorical 

Pretreatment Standards does not 

improperly transfer Standard-setting 

authority to the Control Authority. As 

noted above, EPA’s current regulations 

already require the inclusion in 

Industrial User Permits (or other control 

mechanisms) of effluent limits based on 

the categorical Standard. Moreover, 

current 40 CFR 403.6(c)(6) provides that 

equivalent limits calculated in 

accordance with the regulation are 

deemed Pretreatment Standards for 

purposes of section 307(d) of the CWA. 

If a Control Authority develops an 

equivalent mass limit, in lieu of the 

concentration-based categorical 

Standard, the equivalent limit is a 

Pretreatment Standard. Where it is 

determined that the equivalent mass 

limit is not properly calculated, the 

Control Authority must modify the 

Industrial User’s control mechanism to 

require immediate compliance with the 

correctly calculated limits. 

Which categorical industries are 

potentially affected by this provision? 

Section 403.6(c)(5) applies to qualifying 

indirect dischargers that are currently 

subject to Pretreatment Standards 

expressed as concentration limits. 

Currently, there are 14 categorical 

Pretreatment Standards that are 

expressed as concentration limits alone 

and are therefore eligible for equivalent 

mass limits under new 40 CFR 

403.6(c)(5). The following categories are 

included in this list: 

• Inorganic Chemicals (40 CFR part 

415) 

60170 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

• Fertilizer Manufacturing (40 CFR 

part 418) 

• Petroleum Refining (40 CFR part 

419) 

• Steam Electric Power Generating 

(40 CFR part 423) 

• Leather Tanning (40 CFR part 425) 

• Glass Manufacturing (40 CFR part 

426) 

• Rubber Manufacturing (40 CFR part 

428) 

• Metal Finishing (40 CFR part 433) 

• Pharmaceutical Manufacturing (40 

CFR part 439) 

• Transportation Equipment Cleaning 

(40 CFR part 442) 

• Paving and Roofing Materials (40 

CFR part 443) 

• Commercial Hazardous Waste 

Combustors Subcategory of the Waste 

Combustors Point Source Category (40 

CFR part 444) 

• Carbon Black Manufacturing (40 

CFR part 458) 

• Electrical and Electronic 

Components (40 CFR part 469) 

In finalizing the rule, EPA is making 

the following changes to the proposed 

rule: 

Discretionary Use of Equivalent Mass 

Limits: The final rule emphasizes that 

the decision on whether to convert the 

CIU’s concentration-based categorical 

Pretreatment Standard to an equivalent 

mass limit rests with the Control 

Authority. Though EPA intended that 

the Control Authority’s decision would 

be discretionary, there was considerable 

uncertainty and concern among the 

commenters that the proposed language 

was not clear on this issue (e.g., ‘‘* * * 

the Control Authority may convert the 

limits * * * ’’). Several Industrial Users 

expressed concern that they might be 

compelled to accept equivalent mass 

limits. EPA has clarified the language of 

the final rule. The rule now states that 

Industrial Users initiate the process by 

requesting that their concentrationbased limits be converted to equivalent 

mass limits. The final rule states it this 

way: ‘‘* * * the Industrial User may 

request that the Control Authority 

convert the limits to equivalent mass 

limits. The determination to convert 

concentration limits to equivalent mass 

limits is within the discretion of the 

Control Authority.’’

Industrial User Eligibility Conditions: 

EPA has included requirements that the 

Industrial User must first meet before 

the Control Authority may establish an 

equivalent mass limit. Several of these 

eligibility requirements are also 

conditions that must be met in order to 

continue use of equivalent mass limits 

after becoming effective. The final rule 

includes the following requirements: 

(1) Implementation of Water 

Conservation: EPA has revised the 

proposed language requiring the 

Industrial User to be ‘‘employing water 

conservation methods and technologies 

that substantially reduce water use’’ to 

make it clear that current as well as 

future water conservation efforts can 

both qualify for the use of equivalent 

mass limits. The final rule also requires 

water conservation during the initial 

term of the Industrial User’s control 

mechanism which includes equivalent 

mass limits. The revised rule language 

is as follows: ‘‘the Industrial User must 

employ, or demonstrate that it will 

employ, water conservation methods 

and technologies that substantially 

reduce water use during the term of its 

control mechanism.’’ See 40 CFR 

403.6(c)(5)(i)(A). The final rule also 

requires that the Industrial User 

‘‘continue to employ the same or 

comparable water conservation methods 

and technologies as those implemented 

pursuant to paragraph (5)(i)(A) so long 

as it discharges under an equivalent 

mass limit.’’ See 40 CFR 

403.6(c)(5)(ii)(D). 

(2) Use of Effective Control and 

Treatment Technologies: The proposed 

rule required ‘‘control measures at least 

as effective as the model treatment 

technologies that serve as the basis for 

that particular Standard.’’ The final rule 

revises this language, while retaining 

the principle of requiring the 

installation and use of effective control 

measures to meet the applicable 

Pretreatment Standards for Existing 

Sources (PSES) or Pretreatment 

Standards for New Sources (PSNS). The 

revised language is as follows: ‘‘The 

Industrial User must * * * currently 

use control and treatment technologies 

adequate to achieve compliance with 

the applicable categorical Pretreatment 

Standard, and not have used dilution as 

a substitute for treatment.’’

The proposal discussed the fact that 

the Pretreatment Regulations in 40 CFR 

403.6(d) contain a strict prohibition 

against the use of dilution as a 

substitute for treatment, and that 

requirement remains. This provision 

states that no Industrial User 

introducing wastewater pollutants into a 

POTW may increase the use of process 

wastewater or otherwise dilute the 

wastewater as a partial or total 

substitute for adequate treatment to 

achieve compliance with a Pretreatment 

Standard. EPA has concluded that it is 

appropriate to require CIUs seeking to 

use an equivalent mass limit to 

demonstrate their past compliance with 

the dilution prohibition in 40 CFR 

403.6(d). See 40 CFR 403.6(c)(5)(i)(B). 

For example, the Industrial User can 

compare its current flows to the flows 

that are assumed as part of the model 

technology for the categorical 

Pretreatment Standard. Consistent with 

the dilution requirement, this 

requirement is intended to provide the 

Control Authority with a means of 

identifying facilities that may have used 

dilution in the past. Such CIUs would 

be precluded from obtaining less 

stringent equivalent mass limits by 

taking advantage of historically high 

flows based on dilution. The Control 

Authority may review historical 

monitoring and inspection reports, and 

process descriptions from the 

appropriate categorical Standard 

Technical Development Document 

published with each categorical 

Standard, when evaluating the 

Industrial User’s demonstration of no 

dilution. See 40 CFR 403.6(c)(5)(i)(B). 

The final rule also requires, as a 

condition of using equivalent mass 

limits, that Industrial Users ‘‘maintain 

and effectively operate control and 

treatment technologies adequate to 

comply with the equivalent mass 

limits.’’ See 40 CFR 403.6(c)(5)(iii)(A). 

EPA revised the proposed rule language 

because of a concern that Industrial 

Users not be locked into a particular 

control technology or be required to 

make a complex technical showing that 

one treatment system is ‘‘no less 

effective’’ than another. By requiring 

that existing treatment be ‘‘adequate to 

achieve compliance with applicable 

categorical Pretreatment Standards’’ and 

that Industrial Users ‘‘maintain and 

effectively operate control and treatment 

technologies adequate to comply with 

the equivalent mass limits’’, EPA has 

concluded that the final rule language 

ensures that CIUs with equivalent mass 

limits continue to provide appropriate 

treatment. See 40 CFR 403.6(c)(5)(ii)(A). 

(3) Establishment of Actual Average 

Daily Flow Rate and Baseline LongTerm Average Production Rate: The 

proposal had indicated that it would be 

sufficient to provide a ‘‘reasonable 

estimate of the flow required to achieve 

the facility’s production goals using 

BAT and in the absence of the water 

saving technology.’’ See 64 FR 39570, 

July 22, 1999. The final rule changes 

this approach to require, consistent with 

current regulations and guidance, that 

equivalent mass limits be based on the 

CIU’s actual average daily flow rate and 

that flows be measured, as opposed to 

estimated, using a continuous effluent 

flow monitor. The final rule requires 

that the flow rate used be representative 

of current operating conditions; the 

actual period of flow used to develop 

the equivalent limits should reflect 

actual current production and water 

usage. See 40 CFR 403.6(c)(5)(i)(C). EPA 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60171 

also conditions the use of equivalent 

mass limits on the continued use of an 

effluent flow monitoring device to 

record the facility’s flow rates. See 40 

CFR 403.6(c)(5)(iii)(B). 

In addition, the preamble of the 

proposed rule suggested that the flow 

component of the equivalent mass limit 

be based on estimated flows ‘‘required 

to achieve the facility’s production 

goals.’’ See 64 FR 39570, July 22, 1999. 

EPA did not discuss in the preamble 

how the mass limit may need to change 

if the Industrial User changed its 

production goals, resulting in 

potentially substantial changes in 

process wastewater flow. In adopting a 

later amendment to its regulations that 

authorized the establishment in limited 

circumstances of equivalent mass limits 

for certain Industrial Users in the City 

of Owatonna, Minnesota, however, EPA 

did require Industrial Users subject to 

equivalent mass limits to notify the 

Control Authority where ‘‘production 

rates are expected to vary by more than 

20 percent from a baseline production 

rate’’ determined when the mass limit 

was first established. See 65 FR 59741 

(October 6, 2000); see 40 CFR 403.19(b). 

Accordingly, EPA has modified the final 

rule to include a similar requirement for 

the Industrial User to provide the 

Control Authority with sufficient 

information to establish an average daily 

production rate. See 40 CFR 

403.6(c)(5)(i)(C). The Industrial User 

must also notify the Control Authority 

of substantial changes in the rate so that 

the Control Authority is given an 

opportunity to alter the equivalent mass 

limit in the event of such changes (e.g., 

greater than 20 percent from the 

baseline rate). See 40 CFR 

403.6(c)(5)(ii)(C) and (iii)(B). 

(4) Use of Equivalent Mass Limits for 

Relatively Uniform Operating 

Conditions: The final rule includes an 

additional requirement that the 

Industrial User demonstrate that it must 

‘‘not have daily flow rates, production 

levels, or pollutant levels that vary so 

significantly that an equivalent mass 

limit is not appropriate to control the 

Discharge.’’ See 40 CFR 403.6(c)(5)(i)(D). 

(5) Consistent Compliance with 

Standards: The availability of 

equivalent mass limits is also 

conditioned on consistent compliance 

with applicable categorical Pretreatment 

Standards. The final rule does not 

specify the period during which the CIU 

must have demonstrated full 

compliance, but allows the Control 

Authority to assess the available 

compliance records to the extent that 

they are representative of current 

operating conditions and reflect the 

Industrial User’s understanding of the 

regulatory obligations that must be 

achieved for compliance with these and 

related regulations. See 40 CFR 

403.6(c)(5)(i)(E). 

(6) Calculation of Equivalent Mass 

Limit: The final rule specifies how 

Control Authorities are to calculate the 

equivalent mass limit. The following 

language is used to describe the 

calculation: In the first term of the 

control mechanism, ‘‘A Control 

Authority which chooses to establish 

equivalent mass limits must * * * 

calculate the equivalent mass limit by 

multiplying the actual average daily 

flow rate of the regulated process(es) of 

the Industrial User by the concentrationbased daily maximum and monthly 

average Standard for the applicable 

categorical Pretreatment Standard and 

the appropriate unit conversion factor.’’

See 40 CFR 403.6(c)(5)(iii)(A). The rule 

further provides that the Control 

Authority ‘‘may retain the same 

equivalent mass limit in subsequent 

control mechanism terms if the 

Industrial User’s actual average daily 

flow rate was reduced solely as a result 

of the implementation of water 

conservation methods and technologies, 

and the actual average daily flow rates 

used in the original calculation of the 

equivalent mass limit were not based on 

the use of dilution as a substitute for 

treatment pursuant to 40 CFR 403.6(d). 

The Industrial User must also be in 

compliance with 40 CFR 403.17 

(regarding the prohibition of bypass).’’

See 40 CFR 403.6(c)(5)(iii)(C). 

(7) Pollutants Excluded from 

Equivalent Mass Limits: EPA has 

adopted specific language from 40 CFR 

122.45(f)(1)(i) which identifies the 

following pollutants as being 

inappropriate for the use of equivalent 

mass limits: pH, temperature, and 

radiation. See 40 CFR 403.6(c)(5)(iv). 

4. Summary of Major Comments and 

EPA Response 

Discretionary Use of Equivalent Mass 

Limits: Several commenters raised 

concerns regarding who would initiate 

the use of equivalent limits and how 

much discretion the Control Authority 

has in imposing these limits. A 

consistent theme raised among 

commenters representing Industrial 

Users was the concern that the proposed 

rule would enable the Control Authority 

to impose equivalent mass limits over 

the objection of the Industrial User. 

Where POTW and state commenters 

provided comments on this issue, they 

expressed concern that equivalent mass 

limits would create additional burden 

and generally emphasized that the 

decision to use equivalent mass limits to 

regulate a particular indirect discharger 

should be left to the POTW’s discretion. 

EPA notes that these positions appear 

consistent with one another. The final 

rule allows for an Industrial User to 

request equivalent mass limits and 

emphasizes that the decision to convert 

concentration-based limits to equivalent 

mass limits lies within the Control 

Authority’s discretion. EPA does not 

anticipate that an Industrial User would 

request the implementation of 

equivalent mass limits if it would create 

an unacceptable amount of additional 

burden for the facility, nor would the 

Control Authority accept an undue 

burden upon itself if a benefit would not 

be foreseen. 

What level of treatment must be in 

place prior to being eligible for 

equivalent mass limits? A few 

commenters objected to the proposal’s 

requirement that in order to be eligible 

to use equivalent mass limits the 

Industrial User be utilizing control 

measures at least as effective as the 

model treatment technologies that serve 

as the basis for the particular categorical 

Standard. These commenters instead 

supported the availability of equivalent 

mass limits where the Industrial User 

could demonstrate that the 

concentration limits can be met without 

treatment. One POTW and an 

environmental organization took the 

opposite position, indicating that 

treatment must be in place prior to the 

use of equivalent mass limits. Today’s 

final rule requires that the Industrial 

User be using control and treatment 

technologies adequate to achieve 

compliance with the applicable 

categorical Pretreatment Standard. The 

final rule also requires that the 

Industrial User maintain and effectively 

operate control and treatment 

technologies adequate to achieve 

compliance with the equivalent mass 

limits. 

EPA is imposing this requirement for 

a number of reasons. First, the use of 

technologies adequate to achieve 

compliance with applicable Standards 

provides the Control Authority with a 

level of assurance that qualifying 

Industrial Users have not been meeting 

their concentration-based Standards 

through dilution, which is prohibited in 

40 CFR 403.6(d). Second, although 

water conservation typically increases 

the concentrations of pollutants in the 

process wastewater prior to treatment, 

facilities with on-site treatment 

typically show a reduction of pollutant 

loadings in the final effluent prior to its 

discharge to the POTW sewer system 

even where the facility has instituted 

water conservation. This reduction can 

be attributed to the fact that many 

wastewater treatment technologies are 

60172 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

limited more by physical/chemical 

properties of the pollutants in the 

wastewater, than by influent 

concentrations. Therefore, reducing the 

wastewater Discharge flow will 

generally reduce the overall pollutant 

load from the facility. This is based on 

the assumption that the reduced 

wastewater flow to the treatment system 

will allow the system to more 

successfully treat the increased 

pollutant concentrations in the 

wastewater treatment influent stream. 

This is a key reason EPA has concluded 

it is appropriate to provide this 

incentive for water conservation. More 

information on water conservation 

techniques and methods can be found in 

the rule docket (see OW–2002–0007–

0091). 

In assessing whether the Industrial 

User has installed adequate control and 

treatment technologies, the Control 

Authority may review the 

corresponding categorical Standard 

Development Document for potential 

control options. For instance, the 

Development Document for Effluent 

Limitations Guidelines and Standards 

for the Metal Finishing Point Source 

Category (EPA 440/1–83/091, June 1983) 

identifies that PSES for the waste 

streams containing complexed metals is 

based on the segregation of the 

complexed metals waste stream with 

separate treatment for the precipitation 

of metals and the removal of suspended 

solids. A figure depicting the different 

model treatment technologies for the 

complexed metals and other 

wastestreams can be found in Figure 

10–1 (page X–2) of the Development 

Document. (pages X–1–4, and XII–1) 

The Control Authority might also 

review current trade association 

literature for other control options that 

have become available since the 

Development Document was produced, 

as well as sources available through 

EPA’s ‘‘Sector Strategies’’ programs and 

EPA’s Office of Compliance Assistance: 

http://www.epa.gov/sectors/ 

program.html, http://www.epa.gov/ 

compliance/resources/publications/ 

assistance/sectors/notebooks/ 

index.html. 

Prohibition Against Dilution: A few 

commenters indicated their concern that 

implementation of equivalent mass 

limits might allow Industrial Users to 

secure lenient standards through the 

calculation of equivalent mass limits 

based on flows that reflect diluted 

wastestreams. The proposal discussed 

the fact that the Pretreatment 

Regulations have a strict prohibition 

against the use of dilution as a 

substitute for treatment (see 40 CFR 

403.6(d)). This provision indicates that 

no User introducing wastewater 

pollutants into a POTW may increase 

the use of process wastewater or 

otherwise dilute the wastewater as a 

partial or total substitute for adequate 

treatment to achieve compliance with a 

Pretreatment Standard. EPA has 

concluded that it should require CIUs 

seeking to obtain an equivalent mass 

limit to demonstrate their past 

compliance with the dilution 

prohibition in 40 CFR 403.6(d). This 

requirement is intended to provide the 

Control Authority with a means of 

screening out those facilities that may 

have used dilution in the past in order 

to prevent their benefiting from higher 

than necessary flow rates when 

calculating a mass limit. (There are a 

number of ways the Control Authority 

may evaluate whether the CIU was 

diluting its flows. This evaluation can 

be made by comparing the CIU’s 

product to flow ratio relative to that of 

other facilities within its industry or 

requesting an explanation of why it uses 

the level of process water that it uses.) 

How should compliance status affect 

an Industrial User’s eligibility for 

equivalent mass limits? Several POTWs 

and one environmental organization 

recommended that the proposed rule be 

revised to require the Industrial User to 

demonstrate that it is able to maintain 

compliance with applicable 

Pretreatment Standards prior to water 

conservation and to restrict eligibility 

based on such compliance. EPA agrees 

with the commenters’ suggestions. The 

final rule adopts the requirement that 

interested Industrial Users must have 

consistently complied with all 

applicable categorical Standards prior to 

the request to be subject to mass-based 

limits. Compliance with the underlying 

categorical Standards is an appropriate 

benchmark for the Control Authority to 

use in determining the eligibility of an 

individual discharger. Where the 

Industrial User has demonstrated 

consistent compliance, the Control 

Authority will be given some level of 

confidence that the User will be able to 

adjust to the use of a limit that is 

considered equivalent to the 

concentration-based Standard. It is 

EPA’s view that the reverse is also true 

in that the lack of compliance may 

indicate a User’s inability to comply 

with an equivalent limit. EPA is not 

specifying a minimum time period over 

which an Industrial User must be in 

consistent compliance. EPA notes that 

regulations in 40 CFR 403.12(o) require 

that Industrial Users maintain records of 

all information from any monitoring 

activities for a minimum of three years. 

These records should be reviewed and 

considered to the extent that they reflect 

compliance with current conditions. At 

a minimum, EPA expects that no 

Industrial User found to have been in 

significant noncompliance (SNC) at any 

time during the previous two years 

would be considered to have achieved 

consistent historical compliance. 

Incompatibility of equivalent mass 

limits with particular industries: One 

trade association commented that the 

use of mass limits is incompatible with 

their industry due in large part to the 

fluctuating conditions in their 

operations. It is EPA’s view that certain 

facilities do not have operations that are 

compatible with the use of equivalent 

mass limits. For example, a high degree 

of variability in a CIU’s flows, 

production, or pollutant Discharge 

levels will likely make it an 

inappropriate candidate to use mass 

limits to control its Discharge. For this 

reason, the final rule now requires 

Industrial Users to ‘‘not have daily flow 

rates, production levels, or pollutant 

levels that vary so significantly that an 

equivalent mass limit is not appropriate 

to control the Discharge.’’ See 40 CFR 

403.6(c)(5)(i)(D). 

Water Conservation as a Qualifier for 

Eligibility: Several commenters stated 

that the implementation of equivalent 

mass limits should not be restricted to 

Industrial Users that have already 

implemented water conservation 

measures. EPA agrees that this 

provision’s intent is to encourage 

innovative water conservation methods 

and should not include the precondition that Industrial Users have 

already employed water conservation 

measures. This will allow ongoing as 

well as future water conservation efforts 

by enabling both to use equivalent mass 

limits. Regardless of whether a facility’s 

water conservation methods are ongoing 

or have yet to be implemented, this final 

rule does require that the Industrial 

User demonstrate that it will employ 

water conservation methods and 

technologies that will substantially 

reduce water use during the term of its 

control mechanism. The Industrial User 

is also required to employ water 

conservation to remain eligible for 

equivalent mass limits. 

This final rule does not specify the 

amount of water conservation that 

should be achieved or that constitutes a 

substantial reduction in water use. EPA 

notes that several existing programs 

define thresholds that the Control 

Authority may consider for use in this 

context. For example: 

• The final rule for the Pretreatment 

Community XL (XLC) Site-Specific 

Rulemaking for Steele County, MN (65 

FR 59743) of 40 CFR 403.19(b), 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60173 

indicates that the participating 

Industrial Users committed as a group to 

reduce water usage by 10% over the 

initial 5 year project period. 

• National Metal Finishing Strategic 

Goals Program promotes a 50% water 

reduction from each particular 

participating industry’s baseline 1992 

water usage. http:// 

www.strategicgoals.org/coregoals.cfm. 

• EPA considers a ± 20% change in 

flow rate to be a significant change in a 

flow rate. See page 2–14 of the EPA 

Guidance Manual for the Use of 

Production Based Pretreatment 

Standards and the Combined 

Wastestream Formula (Sept. 1985). 

How do facilities employ water 

conservation? Currently there are many 

water reduction technologies in use in 

manufacturing facilities across the 

United States. Many of the technologies 

that EPA evaluated when establishing 

the categorical Standards included 

water conservation techniques and 

technologies. The Technical 

Development Document for a particular 

categorical Standard is a valuable tool 

for information on these technologies. 

Technologies that reduce wastewater 

Discharge rates usually increase the 

concentrations of pollutants in the 

wastewater leaving the industrial 

operation. However, for facilities with 

wastewater treatment systems on site, 

these technologies may still reduce the 

final effluent pollutant loading, because 

many of the wastewater treatment 

technologies are limited more by 

physical/chemical properties of the 

pollutants in the wastewater, than by 

influent concentrations. Therefore, 

reducing the wastewater Discharge flow 

will generally reduce the overall 

pollutant load from the facility. 

In the Metal Finishing (MF) industry, 

facilities apply flow reduction practices 

to process baths or rinses to reduce the 

volume of wastewater discharged. One 

method that conserves water is cascade 

rinsing: when water is reused from one 

rinsing operation to another, less critical 

rinsing operation, before being 

discharged to treatment. Facilities can 

also reduce water use by coordinating 

and closely monitoring rinse water 

requirements. Matching water use to 

rinse water requirements optimizes the 

quantity of rinse water used for a given 

work load and tank arrangement. More 

information on water conservation 

techniques and methods can be found in 

rule record (see OW–2002–0007–0091). 

Assessing how reduced Discharges 

will affect POTWs: One commenter 

asserted that EPA would be violating 

Section 307 if the Agency finalizes the 

proposal by failing to address the issue 

of whether the more highly 

concentrated wastestreams that would 

result from reduced water consumption 

‘‘would cause environmental harm at 

either the POTW or in the receiving 

stream or result in long-term sediment 

contamination.’’ EPA disagrees that the 

wastestreams resulting from water 

conservation present a potential 

problem for the environment or POTWs 

for a number of reasons. First, in order 

to qualify for an equivalent mass limit, 

the Industrial User must have been in 

consistent compliance with its 

categorical Pretreatment Standards prior 

to the Industrial User’s request to be 

subject to equivalent mass limits. 

Second, the Control Authority must 

properly convert the concentrationbased Pretreatment Standard to an 

equivalent mass limit using the CIU’s 

actual long-term average daily flow rate. 

This will ensure that there will be no 

adverse impacts to human health or the 

environment as the pollutant 

concentrations discharged under the 

equivalent mass limits will be no greater 

than the concentration-based 

Pretreatment Standard. Third, EPA’s 

existing regulations ensure continued 

protection of receiving waters and 

POTW operations. 

EPA emphasizes that the use of 

equivalent limits to regulate individual 

Industrial Users does not relieve the 

Control Authority of the need to 

establish and enforce local limits in 

accordance with 40 CFR 403.5(d) and 

require compliance with the General 

and Specific Prohibitions of 40 CFR 

403.5(a) and (b) which are protective of 

the POTW operations, and prevent Pass 

Through and Interference. 

Consequently, the use of equivalent 

mass limits would not be authorized if 

it resulted in a violation of any of the 

General and Specific Prohibitions or 

local limits established under 40 CFR 

403.5(d). Furthermore, this provision 

may be implemented only following 

determination of its feasibility by 

Control Authorities, and not unilaterally 

by Industrial Users. Control Authorities’

local limits will continue to ensure 

protection of the individual POTW 

operations and its receiving 

environment. Finally, the requirements 

of today’s rule ensure that there will be 

no increase in the quantity of pollutants 

reaching the POTW as a result of 

adopting equivalent mass limits. 

How should the equivalent mass limit 

be calculated? One POTW commenter 

suggested that EPA clarify how to 

calculate the Industrial User’s 

equivalent mass limit in order to specify 

which flow to use. EPA agrees that it is 

important to provide specific 

instructions on how the equivalent limit 

is to be calculated, especially with 

regard to which flow rate is the correct 

one to use. Today’s final rule at 40 CFR 

403.6(c)(5)(iii)(A) includes the following 

formula to be used to calculate the 

equivalent mass limits: 

• For converting daily maximum 

concentration Standards to equivalent 

daily maximum mass limits: The 

product of the facility’s actual average 

daily flow rate and the applicable 

concentration-based categorical daily 

maximum Standard, and the 

appropriate unit conversion factor. The 

unit conversion factor is 8.34 when 

multiplying a concentration limit 

(expressed as milligrams/liter) by flow 

(expressed as millions of gallons per 

day). 

• For converting monthly average 

concentration Standards to equivalent 

monthly average mass limits: The 

product of the facility’s actual average 

daily flow rate and the applicable 

concentration-based categorical monthly 

average Standard, and the appropriate 

unit conversion factor. The unit 

conversion factor is 8.34 when 

multiplying a concentration limit 

(expressed as milligrams/liter) by flow 

(expressed as millions of gallons per 

day). 

It is important to note that the same 

flow value, the CIU’s actual long-term 

average daily flow rate, is used in the 

calculation of both the daily maximum 

and monthly average equivalent mass 

limits. 

Why are equivalent mass limits 

calculated using the actual average 

daily flow rate? EPA specifies in 40 CFR 

403.6(c)(5)(iii)(A) that the equivalent 

mass limits are calculated by 

multiplying the actual average daily 

flow rate by the applicable 

concentration-based categorical 

Pretreatment Standard and the 

appropriate conversion factor. The use 

of the actual average daily flow rate as 

the flow basis for the limits is consistent 

with existing EPA regulations and 

guidance. The current Pretreatment 

Regulations already require the Control 

Authority to calculate ‘‘equivalent 

concentration limits’’ by using the 

‘‘average daily flow rate of the Industrial 

User’s regulated process wastewater.’’

See 40 CFR 403.6(c)(4). The provision 

further states that ‘‘this average daily 

flow rate shall be based upon a 

reasonable measure of the Industrial 

User’s actual long-term average flow 

rate, such as the average daily flow rate 

during a representative year.’’ CIUs are 

elsewhere required to report in the 

baseline monitoring report (BMR) flow 

measurements showing the ‘‘measured 

average daily and maximum daily flow, 

in gallons per day, to the POTW’’ (see 

40 CFR 403.12(b)(4)) and to include in 

60174 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

the periodic report ‘‘a record of 

measured or estimated average and 

maximum daily flows’’ (see 40 CFR 

403.12(e)(1)). 

Perhaps most importantly, use of the 

long-term average daily and monthly 

flow is the only way to ensure that 

mass-based limits are truly equivalent; 

that is, that they do not result in any 

increased discharge of pollutants to the 

POTW or the environment. If a higher 

than average flow rate were used, it 

would be possible for the total 

Discharge of pollutants to increase, 

which would violate the fundamental 

basis of this streamlining change. 

EPA notes that its decision to use 

long-term average daily flows has been 

discussed in numerous categorical 

Pretreatment Standard rulemakings, 

including the final Pesticides 

Manufacturing Standard. See 58 FR 

50679 (September 28, 1993). In 

addition, Chapter 2.8 of EPA’s Guidance 

Manual for the Use of Production-Based 

Pretreatment Standards and the 

Combined Wastestream Formula 

(September 1985) describes important 

considerations when determining the 

appropriate flow rate for use in 

developing equivalent limits including 

that the same average rate is to be used 

to calculate both daily maximum and 

maximum monthly average alternative 

limits, to avoid the use of data for too 

short a time period (particularly, 

‘‘estimating the average rate based on 

data for a few high days, weeks, or 

months is not appropriate’’) (page 2–14). 

Likewise, it is important here to use a 

long-term average that reflects current 

operating conditions (‘‘actual long-term 

average flow’’). Use of flow data from a 

period that does not represent current 

production and water use would result 

in mass limits that are not equivalent. 

Thus, the period of time used to 

compute the actual long-term average 

must reflect recent production changes 

as well as reductions in water use. 

Why are continuous effluent flow 

monitoring devices required? The final 

rule requires that an Industrial User 

subject to equivalent mass limits must 

continuously monitor its flow. 

(1) Flow monitoring is required to 

ensure the equivalency to Federal 

categorical Pretreatment Standards: 

When calculating the equivalent limits 

and determining compliance, the 

Control Authority must accurately 

characterize the existing conditions. 

EPA is therefore requiring that the flow 

value used in the translation of the 

concentration limit to the equivalent 

mass limit and the flows utilized during 

compliance assessment be based upon a 

measured value using a continuous flow 

measuring device. 

Several industry commenters and one 

trade association representing 

municipalities indicated that they 

would support the use of estimation 

methods to derive facility flow rates for 

establishing the mass limit and for 

determining compliance. These 

commenters emphasized that estimation 

methods have been proven to be 

accurate and cost-effective. Some 

commenters supported the proposal’s 

allowance for ‘‘a reasonable estimate of 

the flow * * *’’, but did not indicate 

whether they would support a 

requirement to use only measured 

flows. Several commenters, including 

three states, two POTWs, and one 

environmental interest group agreed 

that the level of accuracy obtained from 

flow measurements, in contrast to flow 

estimation, is required in order to 

ensure equivalency with the categorical 

Standards in calculating the mass limits. 

These commenters stressed that flow 

measurement was also necessary in 

order to adequately assess compliance 

with the equivalent Standard. One state 

went so far as to declare that the 

proposal was flawed in that it had not 

required flow measuring devices. These 

factors as well support EPA’s decision 

to require continuous effluent flow 

monitors. 

(2) The relative costs and benefits of 

using flow monitoring devices should be 

considered: In terms of the relative cost 

of implementing flow monitoring 

devices, the CIU and Control Authority 

may wish to evaluate the expense of the 

installation of the continuous flow 

measuring device with the benefits that 

may be achieved by institution of water 

conservation methods and technologies. 

Cost effective flow measurement devices 

are estimated to cost $400–$1500. See 

Utility Supply of America, 2004–05. 

USA BlueBook: Everything for Water & 

Wastewater Operations, Vol. 115. In 

contrast, commercial/industrial 

facilities using municipal water and 

sewer systems incur an average $28,000 

monthly charge for their water and 

sewer use (survey of 194 U.S. cities, 

conducted by Raftelis Financial 

Consulting), consisting of over $12,000 

per month for water charges and over 

$16,000 per month for wastewater 

charges (2000 Water and Wastewater 

Rate Survey, Exhibit 2, page 19, and 

Exhibit 5, page 44). Based on these 

figures, it is EPA’s view that it is likely 

that benefits of water conservation will 

outweigh the cost of the meter in many 

situations. However, if this is not the 

case, the Industrial User does not have 

to request equivalent mass limits. 

Furthermore, measurement of water 

usage may bring water conservation 

benefits over and above those resulting 

from other technology changes. 

Accurate measurement of the water use 

is beneficial to identifying the amounts 

and usage of water so that behavioral 

practices can be modified and tracked. 

‘‘Monitoring the amount of water used 

by an industrial/commercial facility can 

provide information on quantities of 

overall company water use, the seasonal 

and hourly patterns of water use, and 

the quantities and quality of water use 

in individual processes. Baseline 

information on water use can be used to 

set company goals and to develop 

specific water use efficiency measures. 

Monitoring can make employees more 

aware of water use rates and makes it 

easier to measure the results of 

conservation efforts. The use of meters 

on individual pieces of water-using 

equipment can provide direct 

information on the efficiency of water 

use’’ (Cleaner Water Through 

Conservation, EPA 841–B–95–002, April 

1995, page 7). 

(3) Flow monitoring is required to 

determine compliance with equivalent 

mass limits: Accurate flow measurement 

is required to determine compliance 

with a mass limit based on a 

concentration sample result received 

from the laboratory. To such end, 

‘‘Relying on water consumption records 

when determining compliance with 

mass-based limits is not an acceptable 

practice’’ (Industrial User Inspection 

and Sampling Manual for POTW’s (EPA 

831–B–91–001, April 1994, page 88). A 

permanent device that continuously 

records the flow allows the POTW to 

ensure compliance with mass-based 

limits. 

On the day(s) that the Control 

Authority conducts its mandatory oneper-year monitoring of the Industrial 

User, the relevant actual flow from the 

facility is required to assess whether the 

User is in compliance with its mass 

limits. Requiring the use of an effluent 

flow monitoring device, therefore, will 

also facilitate the accurate assessment of 

compliance. 

For compliance assessment purposes, 

EPA advises Control Authorities to use 

the following approach: 

• For a daily maximum equivalent 

mass limit, EPA recommends 

determining compliance by comparing 

the limit with the total mass of the 

pollutant discharged over the day, 

calculated as the product of the actual 

pollutant concentrations in the 

Industrial User’s Discharge sampled 

pursuant to 40 CFR 403.12(g) and the 

actual flow from the Industrial User on 

the day the sample is taken based on 

measurements from the continuous 

effluent flow monitoring device and an 

appropriate conversion factor. 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60175 

• For an average monthly equivalent 

mass limit, EPA recommends 

determining compliance by comparing 

the limit with the sum of all daily mass 

Discharges measured during a calendar 

month divided by the number of days 

measured during that month. The 

monthly limit must still be met when 

only one discharge day is sampled. 

This approach mirrors the approach 

of EPA’s NPDES regulations based on 

the definition of ‘daily discharge’ in 40 

CFR 122.2 defined as the ‘‘discharge of 

a pollutant measured during a calendar 

day or any 24-hour period that 

reasonably represents the calendar day 

for purposes of sampling. For pollutants 

with limitations expressed in units of 

mass, the ‘daily discharge’ is calculated 

as the total mass of the pollutant 

discharged over the day. For pollutants 

with limitations expressed in other 

units of measurement, the ‘daily 

discharge’ is calculated as the average 

measurement of the pollutant over the 

day.’’

How are limits established for new 

Industrial Users? Several POTW 

commenters noted that the proposed 

rule was silent regarding whether 

equivalent mass limits would be 

available to new Industrial Users. The 

commenters observed that flow rate 

information is available for many 

existing Users, but a baseline of 

information will not exist for new 

dischargers. Today’s final rule is silent 

regarding specific procedures to follow 

in establishing limits for new 

Discharges. The rule does not prohibit 

Control Authorities from calculating 

equivalent mass limits for such 

Dischargers. However, EPA notes that in 

general it will not be possible for new 

dischargers to satisfy the requirements 

in today’s rule unless some historical 

information about them is available. 

First, recognizing that 40 CFR 

403.6(c)(5)(i)(E) requires the Industrial 

User to ‘‘have consistently complied’’

with Pretreatment Standards’’, before 

considering the use of equivalent mass 

limits, the Control Authority will need 

to allow for a sufficient period of time 

to pass in order to properly assess the 

User’s compliance record. 

Second, the new discharger will need 

some time to collect an adequate 

amount of flow rate data from its 

continuous effluent flow monitor to 

establish its actual average daily flow 

rate and, in turn, to provide the Control 

Authority with sufficient information to 

calculate the equivalent mass limit. 

Although 40 CFR 403.6(c)(5)(i)(C) does 

not specify a minimum amount of time 

over which the long-term flow rate is 

developed, the rule does specify that the 

flow rate must be ‘‘representative of 

current operating conditions.’’

Therefore, EPA recommends that the 

Control Authority establish some 

minimum period of time during which 

it will require the new discharger to 

have monitored its flow before 

considering equivalent mass limits. 

Third, new dischargers will be subject 

to Pretreatment Standards for New 

Sources (PSNS), and as such will be 

expected to begin discharging in 

conformance with Standards that 

represent the most stringent controls 

attainable through the application of the 

best available demonstrated control 

technology for pollutants that pass 

through, interfere with, or are otherwise 

incompatible with the operation of 

POTWs. 67 FR 64219 (October 17, 

2002). EPA does not anticipate that new 

dischargers will immediately need to 

reduce water use. Presumably, these 

dischargers will have had the 

opportunity prior to commencing their 

discharge to implement optimal water 

consumption practices that meet their 

own production demands and cost 

efficiency standards. Over time, and 

after considering such factors as the cost 

of water and production needs, the 

facility may become interested in 

pursuing further water conservation 

measures. 

Recalculation of equivalent mass 

limits to adjust for production changes 

during the term of the control 

mechanism: A few commenters were 

concerned that once set, the equivalent 

mass limits would be locked in place 

permanently and Industrial Users would 

be forced to comply with one mass limit 

forever. They specified that this would 

potentially restrict a facility from 

increasing production. The final rule 

requires that the Industrial User notify 

the Control Authority whenever 

production rates are expected to vary by 

more than 20 percent from baseline 

production rate. Upon notification of a 

change in production rate, the Control 

Authority would then reassess the 

appropriateness of the equivalent mass 

limit. The Control Authority may 

determine that it is necessary to change 

the equivalent mass limit to reflect flow 

changes that may result from substantial 

changes in production. As such 

production-based flow changes may 

occur, the approach EPA is adopting for 

alternative mass limits is consistent 

with regulations at 40 CFR 403.6(e) that 

discuss alternative limits based on the 

combined wastestream formula: 

‘‘The Industrial User shall comply 

with the alternative daily maximum 

limit and monthly limits fixed by the 

Control Authority until the Control 

Authority modifies the limits or 

approves an Industrial User 

modification request. Modification is 

authorized whenever there is a material 

or significant change in the values used 

in the calculation to fix alternative 

limits for the regulated pollutant.’’

Recalculation of equivalent mass 

limits in subsequent terms of the 

Industrial User’s control mechanism: A 

few commenters asked whether and to 

what extent equivalent mass limits 

would need to be recalculated to reflect 

changed circumstances at the facility 

prior to reissuance of the control 

mechanism. When a Control Authority 

reissues an Industrial User’s control 

mechanism, the Control Authority may 

determine that changed conditions 

suggest the need to revisit the 

equivalency of the mass limits to the 

categorical Pretreatment Standards that 

were included in the prior control 

mechanism. For example, EPA 

anticipates that the Control Authority 

may choose not to recalculate 

equivalent mass limits if effluent flow 

was reduced as the result solely of the 

implementation of water conservation 

techniques and methods. See 40 CFR 

403.6(c)(5)(iii)(C). However, the Control 

Authority may determine that, in cases 

where a reduction in discharged effluent 

flow was accompanied by a decrease in 

production, a reevaluation is warranted. 

This reevaluation is consistent with 

EPA’s long-standing approach under 

existing section 403.6(c) with respect to 

equivalent mass or concentration limits. 

See 53 FR 40563–67 (October 17, 1988). 

Today’s rule conditions an Industrial 

User’s eligibility for the establishment of 

equivalent mass limitations on the 

requirement that the Industrial User is 

providing adequate treatment to achieve 

compliance with the Pretreatment 

Standards and is not using dilution to 

achieve compliance in lieu of treatment 

(in accordance with 40 CFR 403.6(d)). 

Industrial Users must continue to 

operate and maintain their treatment 

systems as a requirement to continue to 

benefit from the flexibility granted by 

equivalent mass limitations. This 

approach, in addition, is consistent with 

40 CFR 403.17, which prohibits the 

intentional diversion of wastestreams, 

including categorical process 

wastewater, from any portion of an 

Industrial User’s treatment facility 

unless such is ‘‘unavoidable to prevent 

loss of life, personal injury, or severe 

property damage [and] there were no 

feasible alternatives to the bypass, such 

as the use of auxiliary treatment 

facilities, retention of untreated wastes, 

or maintenance during normal periods 

of equipment downtime,’’ and proper 

notice has been submitted to the Control 

Authority. Where a bypassing of 

treatment may still result in discharged 

60176 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

effluent that complies with the 

applicable Pretreatment Standards or 

Requirements, an Industrial User may 

only allow the bypass of its treatment 

facility if it ‘‘is for essential 

maintenance to assure efficient 

operation.’’ Therefore, Industrial Users, 

in order to continue to qualify for 

equivalent mass limit conversions from 

categorical Pretreatment Standards, 

must continue to effectively operate and 

maintain their control and treatment 

technologies. 

Is this provision consistent with the 

Clean Water Act? One commenter 

objected to the proposed rule stating 

that EPA lacks the authority to delegate 

its standard-setting authority to Control 

Authorities, an authority which 

Congress gave to EPA alone under 

Section 307 of the Clean Water Act. The 

commenter reasoned that the provision 

would require that local authorities 

make ‘‘significantly more complicated 

decisions than mere arithmetic’’, and 

that the proposal would require them to 

become ‘‘expert in both pollution 

control and water conservation in each 

regulated industry.’’

EPA is promulgating the changes to 

its Pretreatment Regulations in part 

under section 307(b) of the Clean Water 

Act. Section 307(b) clearly authorizes 

EPA from time to time to revise 

Pretreatment Standards as ‘‘control 

technology, processes, operating 

methods or other alternatives change.’’

Therefore, today’s action is not in 

violation of section 307(b) to the extent 

this provision authorizes Control 

Authorities to establish equivalent mass 

limits for the Pretreatment Standards for 

certain categories of industry subject to 

concentration-based Standards. See list 

of affected industries in Section III.J.3 

above. As EPA has explained, the 

amendments to the regulations will 

facilitate both User’s compliance and 

POTW oversight for industries engaging 

in water conservation, a practice EPA 

wants to encourage. 

EPA’s decision to authorize the 

establishment of equivalent mass limits 

for Industrial Users in limited 

circumstances is not inconsistent with 

its decision in some circumstances to 

adopt categorical Pretreatment 

Standards for specific industry 

categories whose Standards are 

expressed in 40 CFR Subchapter N as 

concentration limits. A number of 

reasons support this conclusion. First, 

EPA’s general preference in most cases 

is to express wherever possible effluent 

limitations and Pretreatment Standards 

in terms of mass limitations. EPA’s 

decision to establish concentrationbased Pretreatment Standards, however, 

for certain industrial categories, is the 

result, in part, of the wide variation in 

process water use within a particular 

industrial category. These variations 

prevented EPA from developing water 

allowances associated with particular 

achievable treatment technologies. Due 

to the complexity and variation among 

facilities covered by categorical 

Standards, EPA did not have enough 

data, could not adequately measure 

production or could not find a 

consistent production normalizing 

relationship in order to establish mass 

limits on a nationwide basis. The effect 

of concentration limits also is, over 

time, to reduce mass Discharges of 

pollutants as water use is reduced in 

some circumstances. But concentration 

limits may in some circumstances serve 

as a disincentive to water conservation. 

Second, the establishment of an 

equivalent mass limit would not result 

in any increase in the mass of pollutants 

discharged. Eligibility for an equivalent 

limit is dependent on a number of 

conditions including implementation of 

water conservation measures and 

demonstration of a history of 

compliance with the concentrationbased Pretreatment Standard. As noted 

above, the implementation of water 

conservation efforts may have already 

resulted in some reduction of total mass 

Discharges. Further, because the mass 

limit is based on water use during the 

period of compliance with the 

concentration limit, in no event, could 

mass Discharges under the new 

equivalent limit exceed these mass 

Discharge levels. Another condition for 

the establishment of mass limits is that 

the facility report to the Permitting 

Authority in the event of substantial 

changes in production rates. This 

provides the Permitting Authority with 

an opportunity to monitor the 

equivalent limits and determine 

whether some modification to the limit 

may be required. 

There will be no adverse 

consequences either to POTWs or to 

receiving waters from the adoption of 

the provision authorizing the expression 

of concentration-based Pretreatment 

Standards as mass limits. Industrial 

Users must continue to comply with the 

General and Specific Prohibition in 40 

CFR 403.5(a) and (b). Thus, Discharges 

under an equivalent limit may not result 

in Discharges that result in Pass 

Through or Interference, create hazards 

to the POTW, or threaten the health and 

safety of POTW workers. Section 

403.5(c) would prohibit the 

establishment of an equivalent mass 

limit if the equivalent limit would result 

in a violation of these General and 

Specific Prohibitions. 

Finally, EPA disagrees that the final 

rule would illegally transfer the 

Agency’s Standard-setting authority to 

Control Authorities. As noted 

previously, a Control Authority is 

already required to translate categorical 

Pretreatment Standards into Permit (or 

control mechanism) effluent limits. EPA 

also disagrees with the commenter’s 

observation that this provision would be 

too complicated for Control Authorities 

to use and oversee. EPA notes that the 

use of this provision is solely at the 

discretion of the Control Authority. If a 

particular Control Authority is 

concerned that it does not have the 

expertise to develop and oversee 

equivalent mass limits, today’s final rule 

does not in any way allow the Industrial 

User to demand that the Control 

Authority convert existing 

concentration-based Standards to 

equivalent mass limits or require that 

the Control Authority implement massbased limits if requested by the 

Industrial User. As a matter of daily 

implementation of approved 

Pretreatment Programs, states and 

POTW Control Authorities conduct 

complex activities: Review Baseline 

Monitoring Reports (40 CFR 403.12(b)) 

and other data to issue control 

mechanisms to Industrial Users, 

calculate production-based standards 

and alternative limits using the 

Combined wastestream formula when 

necessary, and evaluate and assess the 

POTW plant processes to determine 

technically based local limits that are 

protective of Pass Through and 

Interference. 

Public Review and prior Approval 

Authority approval: Many commenters 

(21) did not support requiring public 

and/or Approval Authority review of an 

Industrial User’s proposed mass limit 

prior to Control Authority approval. 

Most were concerned that such a 

requirement would create additional 

administrative burden. EPA notes that 

this provision is intended to allow the 

Permit limitation to be expressed in an 

equivalent manner and is not 

anticipated to require a change in a 

Control Authority’s enabling legislation 

to issue and enforce control 

mechanisms. Changes affecting 

individual Industrial Users are not 

substantial modifications within the 

principles of 40 CFR 403.18(b)(6). 

‘‘ ‘Changes to the POTW’s control 

mechanism’ refers to a change in the 

type of mechanism used (e.g., permit 

versus orders) and not to change[s] in 

one facility’s permit or to changes in the 

boilerplate or other details of the 

permit.’’ (62 FR 38408) However, the 

new equivalent limit is subject to review 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60177 

as part of routine Approval Authority 

oversight activities, such as a 

Pretreatment Compliance Inspection or 

a Control Authority Audit, as are other 

control mechanisms that implement 

categorical Standards, local limits, and 

any other equivalent limits. Also, in 

accordance with current regulations, 

Industrial User Permit files and 

information necessary for determining 

Permit limitations and compliance, 

must be publicly available. Therefore, 

EPA has decided not to require 

additional review or approval 

mechanisms for implementation of 

equivalent mass limits. 

K. Oversight of Categorical Industrial 

Users (40 CFR 403.3(v)(2), 403.8(f)(2)(v), 

403.12(e), (g), (i), (q) 

Today’s rule authorizes a Control 

Authority to reduce certain of its 

oversight responsibilities and sampling 

and inspection requirements for a newly 

established class of indirect discharger, 

the ‘‘non-significant categorical 

Industrial User’’ (NSCIU). A NSCIU is a 

discharger that discharges no more than 

100 gallons per day of total categorical 

wastewater to the POTW. Today’s final 

rule also allows Control Authorities to 

reduce the reporting requirements for 

certain Categorical Industrial Users with 

a record of consistent compliance with 

applicable Pretreatment Standards and 

Requirements in the following 

circumstances. Reduced reporting may 

be approved when the Industrial User’s 

categorical wastewater flow does not 

exceed (1) the smaller of 5,000 gallons 

per day or 0.01 percent of the POTW’s 

design dry weather hydraulic capacity; 

(2) 0.01 percent of the POTW’s design 

organic treatment capacity; and (3) 0.01 

percent of the maximum allowable 

headworks loading (MAHL). The POTW 

may also now be authorized to reduce 

its own required annual inspections and 

monitoring of those Categorical 

Industrial Users eligible for reduced 

reporting. 

1. What are the existing rules? 

The current regulations require 

certain minimum oversight of SIUs by 

POTWs with Approved Pretreatment 

Programs (and States acting as 

Pretreatment Control Authorities). The 

required minimum oversight includes 

inspection and sampling of each SIU 

annually, reviewing the need for a slug 

control plan, and issuing a Permit or 

equivalent control mechanism with a 

duration not to exceed five years (40 

CFR 403.8(f)(1)(iii) and (2)(v) and 

403.10(f)(2)(i)). Industrial Users that are 

not SIUs are not specifically subject to 

this oversight. 

The definition of ‘‘Significant 

Industrial User,’’ previously at 40 CFR 

403.3(t) (now found at 40 CFR 403.3(v)), 

includes two types of facilities. The first 

includes all Industrial Users that are 

subject to categorical Pretreatment 

Standards under 40 CFR 403.6 and 40 

CFR chapter I, subchapter N. The 

facilities subject to these Standards are 

now described as Categorical Industrial 

Users (CIUs). There are no current 

exceptions to the classification of all 

CIUs as SIUs. The second category of 

facilities included in the definition of 

SIU are certain facilities that are not 

CIUs, that Discharge 25,000 gallons per 

day or more of process wastewater, 

facilities that contribute a process 

wastestream constituting 5 percent or 

more of the POTW’s capacity, and any 

Industrial User that the Control 

Authority designates on the basis that it 

has a reasonable potential for adversely 

affecting the POTW’s operation or for 

violating any Pretreatment Standard or 

requirement. The Control Authority may 

exclude facilities meeting any of the 

second category’s criteria from the SIU 

definition based upon a finding that it 

does not have a reasonable potential to 

adversely affect the operation of the 

plant or violate any Pretreatment 

Standard or requirement. However, a 

Control Authority may not similarly 

exclude CIUs from the classification as 

an SIU. 

The regulations require that all CIUs 

submit to their Control Authority twice 

per year, unless required more 

frequently, a report indicating the flow, 

nature, and concentration of pollutants 

in their effluent which are limited by 

the applicable categorical Pretreatment 

Standards (40 CFR 403.12(e)(1)). The 

report must be based on data obtained 

through sampling and analysis of the 

effluent which is representative of 

conditions occurring during the 

reporting period at a frequency 

necessary to assess and assure 

compliance with applicable Standards 

(40 CFR 403.12(g)). The regulations 

make clear that these are minimum 

requirements and Control Authorities 

have the flexibility to increase sampling 

and reporting requirements. 

2. What changes did EPA propose? 

EPA proposed to allow Control 

Authorities to exempt certain CIUs from 

the definition of SIU. The proposal 

would have defined NSCIUs as (1) 

facilities that never discharge untreated 

concentrated wastes that are subject to 

the categorical Pretreatment Standard as 

identified in the development document 

for the Standard, and never discharge 

more than 100 gallons per day (gpd) of 

other process wastewater, and (2) 

Industrial Users subject only to 

certification requirements after having 

met baseline monitoring report 

requirements (e.g., pesticide formulators 

and packagers). In addition to proposing 

to set the NSCIU definitional threshold 

at 100 gpd, EPA also requested 

comment on alternative criteria for 

determining ‘‘non-significant’’ status, 

such as a percentage of a POTW’s total 

flow discharged by a particular 

Categorical Industrial User (64 FR 

39574, July 22, 1999). 

In conjunction with the establishment 

of a NSCIU category, EPA also proposed 

that such Users not be subject to 

minimum inspection and sampling 

requirements. Instead, the new 

requirements would have allowed the 

Control Authority to establish the 

appropriate level of inspection and 

sampling for these facilities. In addition, 

EPA would have established new 

minimum reporting requirements for 

NSCIUs. EPA proposed that at a 

minimum, a non-significant facility 

would be required to annually report 

and certify its status as a non-significant 

facility, and certify that it is in 

compliance with the applicable 

Pretreatment Standards. A Control 

Authority could have required more 

frequent sampling, inspections, or 

reporting as it finds necessary to ensure 

compliance with the categorical 

Standards. 

3. What changes is EPA finalizing in 

today’s rule? 

EPA is establishing an NSCIU 

category based on the 100 gpd 

threshold. If a POTW chooses to treat a 

qualifying Categorical Industrial User as 

an NSCIU, the oversight requirements 

for the NSCIU (and POTW with respect 

to the NSCIU) will be significantly 

reduced. In response to support among 

commenters for establishing alternative 

criteria for oversight reduction, EPA is 

also creating a ‘‘Middle Tier’’ category 

of Categorical Industrial Users which 

will still be considered SIUs, but will be 

eligible for reductions in reporting and 

Control Authority monitoring and 

inspections. These changes will be 

discussed in detail below. 

In the period before the Agency 

proposed regulatory changes to 

streamline elements of its Pretreatment 

Regulations, EPA engaged in an 

extensive effort to solicit the views of 

the interested public. In 1995, EPA’s 

Office of Wastewater Management 

initiated an evaluation of all of the 

General Pretreatment Regulations in 40 

CFR Part 403 in order to identify 

streamlining opportunities. Based on 

input from various stakeholders, EPA 

developed issue papers that 

60178 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

summarized 11 areas in which the 

Pretreatment Regulations might be 

streamlined. In May 1996, the issue 

papers were distributed to a broad base 

of external stakeholders (States, cities, 

trade associations, professional 

organizations, and environmental 

interest groups). As EPA explained in 

the preamble to the proposal (64 FR 

39573–74, July 22, 1999), in 1997, EPA 

solicited comment on revising the 

definition of Significant Industrial User 

to reduce the reporting and permitting 

requirements for certain non-significant 

facilities that are subject to National 

categorical Pretreatment Standards. An 

earlier Water Environment Federation 

(WEF)/Association of Metropolitan 

Sewerage Agencies (AMSA) 

Pretreatment Streamlining Workshop 

had recommended excluding facilities 

under 100 gpd from the definition of 

Significant Industrial User, exempting 

from the definition of SIU any CIU that 

has no reasonable potential to adversely 

affect the POTW’s operation and 

allowing Control Authorities more 

flexibility in the oversight of facilities 

that would continue to be defined as 

SIUs. EPA’s 1997 letter sought comment 

on these recommendations and also on 

whether to allow POTWs more 

flexibility in sampling SIUs that had 

been in consistent compliance. 

Most commenters on the earlier 

options supported allowing POTWs to 

reduce oversight of non-significant 

CIUs, recommending NSCIU be defined 

as below thresholds of from 100 gpd to 

4,000 gpd. Some commenters opposed 

any definition based on flow and 

preferred one based on total mass or 

impact on the POTW. The record to the 

proposed rule included all of the 

material submitted by commenters as 

well as the information developed by 

the WEF/AMSA workshop. 

While EPA based its 1999 proposed 

streamlining revision of the definition of 

SIU on a 100 gpd threshold, the Agency 

did seek comments on a number of 

alternative thresholds that reflected the 

earlier suggestions from the public. As 

EPA stated: 

‘‘In today’s proposal EPA is again 

requesting comment on alternative 

criteria for determining non-significant 

status. Such alternative criteria might 

include a higher flow cutoff or a 

numeric cutoff based on some 

alternative criteria such as the estimated 

mass of pollutant loadings or the 

percentage of a POTW’s total flow 

discharged by a particular CIU. 

Alternatively, the criteria might be 

narrative and include a qualitative 

description of what constitutes a 

Significant Industrial User. Commenters 

are encouraged to provide data on the 

likely effects of alternate criteria, 

including the number of CIUs that 

would be eligible for non-significant 

status and any adverse impacts on 

POTWs or the environment that might 

result.’’ 64 FR 39574, July 22, 1999. 

Today’s final rule provides reduced 

oversight responsibilities for POTWs 

and reporting requirements for CIUs that 

represent an accommodation between 

the alternatives considered by EPA in 

the proposal (including the 

recommendations earlier submitted to 

the Agency and discussed in detail in 

the proposal) and those suggested by 

commenters in response to the 

proposal’s solicitation of views. Thus, 

the final rule combines EPA’s proposed 

approach to non-significant CIUs and 

reduced POTW oversight requirements, 

with the suggestions of many 

commenters provided both in comments 

before and after proposal that EPA 

consider thresholds based on POTW 

treatment capacity. Consequently, the 

final rule adopts a fixed threshold 

requirement for NSCIUs, while 

establishing threshold expressed in 

terms of percentage of POTW flows for 

the ‘‘Middle Tier’’ CIUs. EPA views this 

approach as balancing the need for 

required minimum oversight of larger 

dischargers with the appropriate 

flexibility to POTWs to target oversight 

resources where they will provide the 

greatest benefit in terms of reducing the 

risk to the POTW and the environment. 

For the reader’s assistance, the 

following chart distinguishes between 

NSCIUs, ‘‘Middle Tier’’ Significant 

Categorical Industrial Users, and all 

other Significant Categorical Industrial 

Users: 

Control mechanism required? Minimum CIU reporting requirements Minimum POTW inspection/sampling requirements 

NSCIUs ............................................................................ No* ..................................... Certification only (no reporting), one time per 

year.

Not required. 

‘‘Middle Tier’’ Significant CIU .......................................... Yes .................................... One time per year (if representative of Discharge 

conditions during reporting period).

One time every other year. 

All Other Significant CIUs ................................................ Yes .................................... Two times per year (at a 

minimum).

One time per year. 

* If the Control Authority determines that an existing NSCIU no longer meets a required criterion for being categorized as non-significant, such 

as the requirement to be in consistent compliance with Pretreatment Standards and Requirements, the User becomes an SIU and must be 

issued a control mechanism. 

EPA emphasizes that a Control 

Authority’s decision to categorize 

certain CIU facilities as ‘‘nonsignificant’’ or ‘‘Middle Tier’’ does not 

in any way relieve the affected CIUs of 

the duty to comply with the applicable 

categorical Pretreatment Standards. The 

provisions in this final rule merely 

affect the reporting and inspection 

frequency imposed on these Users. 

a. Non-Significant CIU—Definition and 

Oversight Requirements 

Today’s final rule adopts the 

proposed definition of ‘‘non-significant 

categorical Industrial User’’ (NSCIU) 

with minor modifications and the 

proposal’s approach of, if the Control 

Authority chooses to do so, reducing 

required oversight for such Users. A few 

modifications, which will be detailed 

further below, were made to the 

proposed provisions in response to 

concerns raised by commenters. The 

final rule retains the 100 gpd threshold 

for defining a NSCIU, as well as the 

condition that the User never discharges 

‘‘untreated concentrated wastes’’. 

However as pointed out by one 

commenter, the proposed rule would 

have applied the 100 gpd threshold to 

‘‘other process wastewater’’ rather than 

‘‘categorically regulated process 

wastewater,’’ which the commenter 

thought was a more appropriate basis 

for the threshold. Because facilities are 

deemed to be CIUs by virtue of their 

discharges of categorical process 

wastewater, rather than process 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60179 

wastewater generally, EPA agrees that it 

is appropriate to base the threshold for 

non-significant CIUs on their discharge 

of categorically-regulated process 

wastewater and has revised the 

definition of NSCIU accordingly in the 

final rule. As was the case with the 

proposed rule, in order to be considered 

an NSCIU, the User must fulfill its 

annual certification requirement. The 

final rule also retains the Control 

Authority’s discretion to reduce the 

NSCIU’s sampling and reporting 

requirements as long as the User 

annually reports and certifies that it still 

meets the definition of a NSCIU. In 

addition, because the User is no longer 

an SIU, there is no requirement to 

control the User through a permit or 

other control mechanism. POTWs will 

be required to provide a list of the 

facilities that are being regulated as nonsignificant CIUs in the POTWs annual 

Pretreatment report. After an initial list 

is provided, deletions and additions 

should be keyed to the previously 

submitted list. 

Regardless of whether an Industrial 

User is determined to be a NSCIU, it is 

still a categorical discharger and, as 

such, is still required to comply with 

applicable categorical Pretreatment 

Standards and related reporting and 

notice requirements in 40 CFR 

403.12(b), (c), (d), (f), (j), and (p). 

Control Authorities will still be required 

to perform the same minimum oversight 

of a NSCIU that is required for other 

facilities that are not SIUs, including 

notifying the CIU of its status and 

requirements (403.8(f)(2)(iii)); receiving 

and reviewing required reports 

(403.8(f)(2)(iv) and 403.12(b), (d), & (e)); 

random sampling and inspection 

(403.8(f)(2)(v)); and investigating 

noncompliance as necessary 

(403.8(f)(2)(vi)). 

Why did EPA choose the 100 gpd 

threshold for NSCIUs? EPA recognizes 

that any numeric flow cutoff will have 

both advantages and disadvantages. The 

100 gpd criterion was supported by 

commenters, although many suggested 

alternative, higher volume cutoffs. The 

100 gpd flow cutoff is a conservative 

number. EPA estimates 15 percent of 

current CIUs might be eligible for 

NSCIU status, based on an extrapolation 

of data from a range of POTWs across 

the country. 

Does EPA expect the annual NSCIU 

certification to be supported by 

sampling data? Today’s final rule does 

not require that each certification 

statement be supported by sampling 

data. NSCIU facilities, however, must 

have a reasonable basis for their 

compliance certifications. When 

sampling is not performed, the nonsignificant CIU must describe the basis 

for its compliance certification, such as, 

for example, the absence of changes in 

processes that generate categorical 

wastewaters or in raw materials used 

since the last sampling data was 

analyzed. 

Does EPA expect the Industrial User 

or Control Authority to perform annual 

monitoring for NSCIUs? Today’s final 

rule does not establish any minimum 

sampling requirements for the Industrial 

User or Control Authority. However, 

EPA recommends that sampling by the 

Industrial User or Control Authority be 

performed from time to time to confirm 

compliance with the categorical 

Standards. 

Significant Changes to the Proposed 

Rule 

EPA made the following significant 

changes to the provisions affecting 

NSCIUs: 

Discharge Volume Cutoff: The 

definition of NSCIU now specifies that 

the 100 gpd cutoff is to be measured as 

the ‘‘total categorical wastewater 

(excluding sanitary, non-contact cooling 

and boiler blowdown wastewater, 

unless specifically included in the 

Pretreatment Standard)’’ discharged. 

The term ‘‘total’’ clarifies that the 

volume discharged is a maximum limit. 

Averaging the Discharge volume for 

purposes of meeting the 100 gpd cutoff 

is not authorized (e.g., enabling a 

discharger to exceed the limit on some 

days as long as the average is 100 gpd 

or less). EPA had requested comments 

in the proposal on whether to allow the 

non-significant definition to include 

facilities that discharge up to 500 

gallons of process wastewater once-perweek. EPA has concluded that requiring 

a definitive, total daily cutoff is the 

easiest and most efficient way to oversee 

and implement the NSCIU provisions. 

EPA also notes that the definition of 

NSCIU specifically enables Users to 

exclude non-categorical wastewater 

Discharges such as sanitary, non-contact 

cooling and boiler blowdown 

wastewater in the determination of the 

Discharge volume, unless specifically 

included in the Pretreatment Standard. 

See 40 CFR 403.3(v)(2). 

Additional Definitional Conditions: 

The final rule includes a few 

modifications to the conditions that a 

User must meet to be considered ‘‘nonsignificant’’. These modifications 

include: 

(1) Consistent Compliance with 

Pretreatment Standards: In order to be 

considered an NSCIU, the User, prior to 

the Control Authority’s findings, must 

have consistently complied with all 

applicable categorical Pretreatment 

Standards and Requirements. See 40 

CFR 403.3(v)(2)(i) and discussion above 

regarding the consistent compliance 

criteria for equivalent mass limits. 

(2) Documentation and Certification 

of Compliance: The final rule also 

requires that the NSCIU certify that its 

Discharge is in compliance with all 

applicable categorical Pretreatment 

Standards and requirements and 

annually submit the certification using 

the statement in 40 CFR 403.12(q). See 

40 CFR 403.3(v)(2)(ii). 

Signatory Requirements: Today’s final 

rule clarifies that the annual 

certification statement must be signed in 

accordance with requirements in 40 

CFR 403.12(l). See 40 CFR 403.12(q). 

Annual List of NSCIUs: The final rule 

makes explicit what was discussed in 

the preamble to the proposed rule that 

a Control Authority is required to 

include a list of Users considered to be 

NSCIUs in its annual report to the 

Approval Authority. See 40 CFR 

403.12(i). 

Annual Evaluation of NSCIU Status: 

The proposed rule is modified to require 

that a Control Authority evaluate, at 

least once per year, whether an 

Industrial User previously determined 

to be an NSCIU still meets the ‘‘nonsignificant’’ criteria in 40 CFR 

403.3(v)(2). See 40 CFR 403.8(f)(2)(v). 

EPA anticipates that this evaluation will 

primarily involve the Control 

Authority’s verification that certification 

forms have been submitted by the 

NSCIUs documenting continued 

eligibility for NSCIU status and 

compliance with applicable 

Pretreatment Standards and 

Requirements. 

b. Middle Tier Categorical Industrial 

Users—Definition and Oversight 

Requirements 

EPA is today establishing a new 

category of Categorical Industrial Users 

(CIUs), the ‘‘Middle Tier’’ CIUs. The 

term ‘‘Middle Tier’’ is used because the 

applicable requirements for these CIUs 

are more stringent than for NSCIUs, but 

authorize less reporting than for other 

(larger) Significant CIUs. Note that both 

‘‘middle tier’’ and other CIUs (except 

NSCIUs) are still considered SIUs. Refer 

to above table comparing applicable 

requirements of all types of CIUs in 

Section III.K.3. An Industrial User may 

be considered a Middle Tier CIU if its 

Discharge of categorical wastewater 

does not exceed any of the following: 

• 0.01 percent of the design dry 

weather hydraulic capacity of the 

POTW, or 5,000 gpd, whichever is 

smaller, as measured by a continuous 

effluent flow monitoring device unless 

60180 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

the Industrial User discharges in 

batches; 

• 0.01 percent of the design dry 

weather organic treatment capacity of 

the POTW; and 

• 0.01 percent of the maximum 

allowable headworks loading for any 

pollutant for which approved local 

limits were developed by a POTW. 

The Control Authority must also 

demonstrate that the CIU has not been 

in significant noncompliance for any 

time in the past two years, and that the 

CIU does not have daily flow rates, 

production levels, or pollutant levels 

that vary so significantly that decreasing 

the reporting requirement for this 

Industrial User would result in data that 

are not representative of conditions 

occurring during the reporting period. 

See 40 CFR 403.12(e)(3)(i–iii). 

What are the reporting and 

monitoring requirements for Middle Tier 

CIUs? Once eligible for Middle Tier CIU 

status, the Control Authority may 

reduce the required periodic monitoring 

report for such Users from a minimum 

of twice per year to a minimum of once 

per year. EPA notes that any reduction 

in reporting must satisfy the 

requirements of 40 CFR 403.12(g)(3) 

which states that reports such as 

Industrial User periodic monitoring 

reports must be based upon ‘‘data 

obtained through appropriate sampling 

and analysis performed during the 

period covered by the report, which 

data are representative of conditions 

occurring during the reporting period.’’

(emphasis added) Therefore, it is 

important that facilities authorized to 

use the new minimum sampling 

frequency conduct their sampling on 

representative wastewater flows. For 

example, while certain batch 

dischargers will have sufficiently 

uniform processes, such that reduced 

sampling will be representative and able 

to meet the Middle Tier criterion 

concerning variable flow rates, 

production levels, or pollutant levels 

(40 CFR 403.12(e)(3)(iii)), other batch 

dischargers may vary their processes 

seasonally or unpredictably, hence 

making it difficult for the Control 

Authority to demonstrate both that a 

minimum of one sample per year will be 

representative, and that the discharger 

complies with 40 CFR 403.12(e)(3)(iii). 

In addition, POTWs may also reduce 

their own obligations to inspect and 

sample these Middle Tier CIUs from 

once per year to once every two years. 

See 40 CFR 403.8(f)(2)(v)(C). 

Why is EPA proposing the Middle Tier 

CIU category? In the preamble to the 

proposed rule, EPA solicited comment 

on ‘‘alternative criteria for determining 

non-significant status * * * [such as] 

the percentage of a POTW’s total flow 

discharged by a particular CIU.’’ See 64 

FR 39574 (July 22, 1999). Eighteen (18) 

POTW commenters responded by 

suggesting that EPA adopt the following 

three tier system. The first tier would 

encompass CIUs discharging less than 

100 gpd. Referred to as ‘‘de minimis’’

CIUs, this tier is similar to today’s 

promulgation of the NSCIU category. 

The second tier (referred to by the 

commenters as ‘‘non-significant CIUs’’) 

would have included CIUs that meet all 

of the following conditions: 

• The CIU’s discharge of categorical 

wastewater does not exceed 0.01 

percent of the design dry weather 

hydraulic capacity of the receiving 

POTW, nor does it exceed 10,000 gpd; 

• The CIU’s discharge of categorical 

wastewater does not exceed 0.01 

percent of the design dry weather 

organic treatment capacity of the 

receiving POTW; 

• The CIU’s discharge of categorical 

wastewater does not exceed 0.01 

percent of the maximum allowable 

headworks loading (MAHL) for the 

receiving POTW of any pollutant 

detected at the POTW headworks for 

which the CIU is subject to a categorical 

Pretreatment Standard; and 

• The CIU has not been in significant 

noncompliance (SNC) for the most 

recent four consecutive six-month 

periods. 

Where a CIU met the criteria of the 

second tier, the Control Authority 

would have the option of reducing the 

Industrial User’s monitoring to once per 

year (as compared to the current 

minimum of twice per year) and the 

Control Authority’s inspection and 

monitoring requirements to once every 

two years (as compared to the current 

minimum requirement of once every 

year). It is important to note that the 

commenters’ second tier would not have 

enabled the Control Authority to reduce 

oversight requirements to the degree 

that the first tier would. The third tier 

of the commenters’ system would have 

included all other CIUs subject to the 

full array of oversight requirements. 

In August 2000, EPA approved a 

project under the Agency’s Project XL 

program for the Metropolitan Water 

Reclamation District of Greater Chicago 

(MWRDGC) to pilot the use of the ‘‘nonsignificant CIU’’ criteria supported by 

the POTW commenters on the proposed 

rule. In exchange for agreeing to a 

variety of measures to improve the level 

of environmental performance by the 

POTW, MWRDGC was given authority 

to apply the ‘‘non-significant CIU’’

criteria (similar to the criteria referred to 

in this final rule as the ‘‘Middle Tier’’

CIU criteria) to its CIUs. For more 

information, refer to EPA’s website for 

the pilot project http://www.epa.gov/ 

projectxl/mwrd/page1.htm. EPA notes 

that this project is no longer active due 

to intergovernmental issues. 

EPA has concluded that the basic 

approach suggested by the commenters 

in their second tier (referred to now as 

‘‘Middle Tier’’ CIUs), and approved for 

use by the Metropolitan Water 

Reclamation District of Greater 

Chicago’s Project XL initiative, has 

merit in its focus on reducing reporting, 

inspection, and monitoring 

requirements for CIUs contributing a 

very small fraction of the POTW’s 

design flow and pollutant loading. 

However, while adopting the basic 

criteria for the second tier (now referred 

to as the ‘‘Middle Tier’’), EPA has 

decided to adopt a ceiling of 5,000 gpd 

as compared to the recommended 

10,000 gpd. EPA has concluded that the 

5,000 gpd ceiling will provide 

significant streamlining while providing 

additional assurance that larger 

dischargers which may have significant 

potential to cause Pass Through or 

Interference will continue to receive full 

SIU oversight. 

In addition, EPA has added additional 

safeguards designed to ensure the 

selection of appropriate CIUs and the 

proper documentation of data 

supporting the inclusion of individual 

CIUs in the Middle Tier. For instance, 

new 40 CFR 403.12(e)(3)(iii) binds the 

Control Authority’s discretion by 

requiring eligible CIUs to ‘‘not have 

daily flow rates, production levels, or 

pollutant levels that vary so 

significantly that decreasing the 

reporting requirement for this Industrial 

User would result in data that are not 

representative of conditions occurring 

during the reporting period pursuant to 

paragraph (g)(3) of this section.’’ In 

addition, EPA specifies that any 

documentation supporting the Control 

Authority’s finding that a specific CIU 

fits the Middle Tier criteria must be 

retained for a period of three years after 

the expiration of the term of the affected 

CIU’s control mechanism. See 40 CFR 

403.12(e)(3)(v). 

How should the Control Authority 

develop its site-specific Middle Tier 

criteria? The criteria in 40 CFR 

403.12(e)(3)(i) must first be translated 

into thresholds that are meaningful for 

the specific POTW. Each site-specific 

threshold will then be used to 

determine whether individual CIUs 

qualify for Middle Tier status. To 

complete the necessary calculations, the 

Control Authority will need to have the 

following information: 

• The POTW’s design dry weather 

hydraulic treatment capacity: These 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60181 

values, typically expressed in units of 

millions of gallons per day, are 

generally found in the POTW’s design 

and specifications documents, and in 

many cases are identified in its NPDES 

Permit or Fact Sheet. 

• The POTW’s design dry weather 

organic treatment capacity: These 

values, typically expressed as pounds 

per day, are also generally found in the 

POTW’s design and specifications 

documents, and Operations and 

Maintenance manuals. Biochemical 

Oxygen Demand (BOD) measurements 

are used as a measure of the organic 

strength of wastes in wastewater. The 

Control Authority must use the design 

organic treatment capacity value that 

has been documented in their records 

for use in translating to useable 

thresholds for the Middle Tier CIUs. 

• The MAHL (Maximum Allowable 

Headworks Loading) for any pollutant 

for which approved local limits were 

developed by the POTW: The MAHL for 

each pollutant will be found in the 

POTW’s approved technically based 

local limits supporting document and 

may also be identified in the POTW’s 

local sewer use ordinance. EPA notes 

that a MAHL for a pollutant is not the 

same thing as the local limit for that 

pollutant. An MAHL is an estimate of 

the upper limit of pollutant loading to 

a POTW, intended to prevent Pass 

Through or Interference. MAHLs are the 

building blocks for local limits, as 

distinct from a local limit which is an 

allocation of the industrial portion of 

the headworks loading (MAHL) specific 

to one or more Industrial Users. 

Therefore, the Middle Tier criterion 

relating to MAHL is calculated as a 

percentage of the MAHL, not a 

percentage of a local limit. For 

additional information regarding the 

development of MAHLs and local 

limits, refer to Local Limits 

Development Guidance (EPA 833–R–

04–002A, July 2004). 

Once the Control Authority has 

located this information, it will then 

need to multiply each value by 0.01% 

to translate those numbers into the 

criteria to be used to determine whether 

individual CIUs are eligible for Middle 

Tier status. Where the design hydraulic 

treatment capacity is concerned, if the 

product of 0.01 percent and the 

hydraulic capacity exceeds 5,000 gpd, 

then the regulations require the Control 

Authority to use the smaller number, or 

in this case 5,000 gpd. 

In addition, EPA recommends that the 

Control Authority list out the applicable 

Middle Tier eligibility criteria in the 

Industrial User’s control mechanism. 

This will ensure that the CIU is 

specifically aware that its Middle Tier 

status only applies as long as it meets 

the eligibility criteria. 

How will Control Authorities 

determine if a specific Industrial User is 

eligible for Middle Tier status? EPA 

recommends that the initial 

determination of whether or not an 

Industrial User is eligible be made by 

comparing the User’s actual Discharge 

(in units of flow or mass loading 

depending on the specific criterion) for 

the previous two years to each of the 

criterion to verify that the industry 

meets all of the criteria on a consistent 

basis. EPA notes that CIUs are required 

to establish eligibility by measuring 

their flow through the use of a 

continuous effluent flow monitor. See 

40 CFR 403.12(e)(3)(i)(A). However, 

recognizing that continuous flow 

monitors are not appropriate for use in 

batch Discharges, the final rule provides 

an exception for those CIUs that 

discharge by batch. In such 

circumstances, EPA recommends that 

the batch discharger provide some other 

similarly accurate measure of flow, such 

as by providing a reasonable estimate of 

actual volume discharged from process 

wastewater containers. 

What documentation is required to 

designate Middle Tier CIUs? The 

Control Authority is required to 

document the specific criteria used in 

determining whether specific Industrial 

Users are considered Middle Tier CIUs. 

This documentation should show: (1) 

The translation of the 40 CFR 

403.12(e)(3)(i)(A)–(C) criteria into values 

that are specific to each Control 

Authority, and (2) the basis for 

including specific CIUs in the Middle 

Tier category. This information must be 

retained for a period of three years after 

the expiration of the term of the control 

mechanism. See 40 CFR 403.12(e)(3)(iv). 

Industrial Users will also need to 

retain sufficient information to verify 

that they continue to be eligible for 

Middle Tier CIU status, such as records 

showing their daily flows of categorical 

wastewater. The Control Authority (and 

Approval Authority in some instances) 

will use this information to validate the 

inclusion of Industrial Users in the 

Middle Tier CIU category. Industrial 

Users will find it necessary to have 

records of daily flows to be able to 

provide notification to the Control 

Authority if they exceed the flow 

criteria in 40 CFR 403.12(e)(3)(i)(A). 

How often would an individual 

POTW’s Middle Tier criteria be expected 

to change? It is not anticipated that the 

values upon which an individual POTW 

assigns Middle Tier status would 

change during the term of the POTW’s 

NPDES control mechanism. Some 

scenarios which may necessitate a 

change to the POTW’s Middle Tier 

criteria are: 

• Operations and maintenance work 

to correct excessive inflow and 

infiltration in the collection system: 

Where such changes affect actual 

wastewater flow, the POTW’s local 

limits may need to be adjusted to 

account for this capacity change, 

thereby affecting the calculation of the 

plant’s maximum allowable headworks 

loading (MAHL). Such adjustments to 

the MAHL may necessitate a 

recalculation of the POTW’s Middle 

Tier criteria, which in turn may affect 

which CIUs are eligible for inclusion. 

• Collection System Expansions or 

Extensions/Treatment Plant Upgrades: 

Such modifications typically are 

conducted over a period of time and the 

effect on the treatment capability or 

efficiency of the POTW may not be 

instantaneously realized. When such 

improvements are completed, the 

Middle Tier criteria may need to be 

modified accordingly to reflect the new 

hydraulic and organic treatment 

capacities, as well as the MAHL. EPA 

notes that these situations are each 

identified in the Agency’s local limits 

guidance as reasons to re-evaluate a 

POTW’s local limits. See Chapter 7 of 

Local Limits Development Guidance 

(EPA 833–R–04–002A, July 2004). EPA’s 

guidance (page 7–5) indicates ‘‘usually, 

a POTW will undertake a detailed 

reevaluation of its local limits in 

response to one of more significant 

changes at the treatment works or in the 

Discharges it receives. Recalculating 

existing MAHLs or determining MAHLs 

for new [pollutants of concern] is 

generally an appropriate response to 

changes in: Removal efficiencies; Total 

POTW or [Industrial User] loading; 

Limiting criteria (NPDES Permits, water 

quality standards, sludge criteria); 

Sludge characteristics or method of 

disposal (e.g., percent solids, disposal 

site life); Background concentrations of 

pollutants in receiving water.’’ In 

addition, treatment efficiencies are 

verified annually, when the POTW 

submits its annual report, to the 

Approval Authority, which summarizes 

the changes within the Control 

Authority’s Pretreatment program over 

the past year. 

• Local Limits Reevaluations: Formal 

reevaluations of a POTW’s technically 

based local limits must be conducted 

with each renewal of the POTW’s 

NPDES Permit. See 40 CFR 

122.21(j)(2)(ii) EPA recommends, 

therefore, that recalculation of the 

Middles Tier criteria be performed and 

coordinated for submittal to the 

Approval Authority at the same time as 

the periodic local limits reevaluation, 

60182 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

easing the burden of separate reviews 

for both the Approval and Control 

Authorities. 

EPA notes that in situations where the 

Middle Tier criteria are modified, the 

Control Authority must submit the 

revised criteria to the Approval 

Authority as a modification to the 

POTW Pretreatment Program. 

Depending on the specific situation, 

Approval Authorities will determine 

whether a modification is a substantial 

or non-substantial modification of the 

approved Pretreatment Program. In 

either case, at a minimum, such 

modifications must be submitted to the 

Approval Authority by the Control 

Authority at least 45 days prior to 

implementation pursuant to 40 CFR 

403.18. 

What criteria should a Control 

Authority apply if the Approved POTW 

Pretreatment Program involves more 

than one treatment plant? Similar to 

guidance provided in page 9–2 of the 

Local Limits Development Guidance 

(EPA 833–R–04–002A, July 2004), the 

Control Authority has options for how 

it applies or allocates its MAHLs. The 

Control Authority could decide to 

provide local limits to the Industrial 

Users based on the evaluation for the 

individual treatment works which serve 

those Users. Alternatively, the Control 

Authority could select the lowest (most 

stringent) local limit for each pollutant 

across all of the treatment plants. When 

establishing the Middle Tier criteria, the 

Control Authority can either apply the 

MAHL on a per POTW Treatment plant 

basis to only those IUs serviced by the 

individual treatment works, or it could 

identify and use the most stringent 

MAHL across all of its treatment plants. 

What happens if the CIU, after 

becoming eligible for Middle Tier status, 

exceeds the Middle Tier criteria? As 

stated previously, the CIU’s eligibility 

for Middle Tier status depends on its 

ability to meet all of the criteria in 40 

CFR 403.12(e)(3). If for any reason, a 

Middle Tier CIU finds that it no longer 

meets the conditions in 40 CFR 

403.12(e)(3)(i), (ii), or (iii), the CIU must 

notify the Control Authority and must 

immediately begin complying with the 

full SIU reporting requirements in 40 

CFR 403.12(e)(1). For example, if a CIU 

exceeds its eligibility criterion for flow 

on any day as determined by its 

continuous effluent flow monitor, that 

User no longer meets the conditions for 

Middle Tier status, and must 

immediately notify the Control 

Authority and begin complying with the 

non-reduced frequency of SIU reporting 

requirements. Although not specified in 

the Middle Tier provisions, EPA 

recommends that Control Authorities 

consider whether they should preclude 

those CIUs which lose their Middle Tier 

status from regaining that status for at 

least the remainder of the term of the 

control mechanism. Where the 

Industrial User can demonstrate its 

ability to once again meet the eligibility 

conditions after sufficient passage of 

time (e.g., the remainder of the term of 

the control mechanism), the Control 

Authority may then consider renewing 

the User’s status as a Middle Tier CIU. 

What type of oversight will EPA 

provide over the implementation of the 

Middle Tier CIU provisions? As with 

any new regulatory provision, given the 

number of conditions involved in the 

Middle Tier CIU category, EPA expects 

that the Agency will need to ensure that 

these provisions are implemented as 

intended. EPA will pay close attention 

to the Control Authority’s adherence to 

these eligibility conditions and the 

overall implementation of these 

provisions. POTW Pretreatment 

Program audits and Pretreatment 

Compliance Inspections (PCIs) will 

provide EPA, as well as state Approval 

Authorities, with important 

opportunities to assess how the Control 

Authorities’ are implementing this 

measure. Like any implementation issue 

in the Pretreatment Program, if a Control 

Authority has incorrectly applied the 

eligibility conditions such that one or 

several Industrial Users are erroneously 

considered Middle Tier CIUs, EPA will 

recommend in its audit or PCI findings 

that the Middle Tier status be revoked 

for those Users. 

4. Summary of Major Comments and 

EPA Response 

Should EPA establish an NSCIU 

category? The overwhelming majority of 

commenters supported the proposed 

establishment of the NSCIU category, 

although many differed on what flow 

threshold would be the most 

appropriate for identifying such 

Industrial Users. One commenter 

expressed strong opposition to the 

creating the NSCIU category. This 

commenter indicated that EPA had not 

shown a basis in the record for this 

regulatory change, any evidence that the 

facilities and Control Authorities to be 

given streamlined oversight actually 

comply with applicable requirements, 

any evidence that Control Authorities 

will be able to detect noncompliance in 

a timely fashion without these oversight 

requirements, and any evidence that the 

change adequately protects POTWs and 

the environment. As outlined above, 

EPA is today finalizing provisions 

which enable Control Authorities to 

designate certain Categorical Industrial 

Users as NSCIUs, at their discretion, if 

the facilities meet all of the eligibility 

conditions, including discharging fewer 

than 100 gpd of total categorical 

wastewater. 

EPA disagrees with the commenter’s 

rationale for opposing the establishment 

of the NSCIU category and the 

opportunity to reduce oversight for such 

Users. First, there is a basis in the record 

for this regulatory change. In the 

preamble to the proposed rule, EPA 

discussed the concerns of Control 

Authorities which supported the need 

for the proposal. Such concerns 

included the widely held perception 

that SIU oversight requirements are 

rigid, ‘‘especially with respect to smaller 

facilities that are subject to categorical 

Pretreatment Standards and facilities 

that they believe have no potential to 

cause Pass Through or Interference.’’

See 64 FR 39572 (July 22, 1999). EPA 

sought comment on the concept of 

allowing the Control Authority to 

identify Users as NSCIUs where they 

discharged fewer than 100 gpd, and to 

reduce the oversight required for such 

non-significant facilities. EPA provided 

an estimate of the percentage of CIUs 

that might be affected (1–2 percent), and 

has since projected that this number 

may be as high as 15 percent. Because 

these facilities will need to be good 

actors to be eligible (e.g., the regulations 

require a record of consistent 

compliance and annual certification of 

compliance with applicable Standards 

and Requirements), and because they 

individually contribute an insignificant 

amount of flow to the POTW, the 

Agency has concluded that it has an 

adequate basis for allowing Control 

Authorities to reduce oversight 

requirements for such facilities. 

Second, although EPA agrees that an 

Industrial User’s compliance is a critical 

factor in whether the Control Authority 

may treat the User as an NSCIU, the 

Agency has concluded that it is 

unnecessary to evaluate overall 

compliance among these small CIUs 

prior to finalizing these provisions. 

What EPA is establishing in the final 

rule is the discretionary ability for 

Control Authorities to reduce oversight 

for select small Users. EPA is not 

requiring that this optional authority be 

used for any specific Industrial Users or 

that it be used in all cases. In fact, EPA 

would expect that the Control Authority 

will be reluctant to designate any 

particular CIU as an NSCIU if it has any 

concerns about the potential for any 

particular CIU to affect adversely the 

POTW or receiving water. Thus, the 

final rule requires, as a condition of 

eligibility for designation, that an 

Industrial User has a record of 

consistent compliance with applicable 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60183 

Pretreatment Standards and 

Requirements prior to being defined as 

an NSCIU. See 40 CFR 403.3(v)(2)(i). 

After becoming an NSCIU, the User is 

then required to annually certify that it 

meets the definition of ‘‘non-Significant 

Categorical Industrial User’’ and that it 

has complied with all applicable 

Pretreatment Standards and 

Requirements. See 40 CFR 403.12(q). 

With these safeguards in place, EPA 

concludes that the final rule addresses 

the commenter’s concern about the lack 

of evidence on overall compliance. 

Third, EPA does not agree with the 

commenter’s argument that Control 

Authorities will not have sufficient 

information to detect noncompliance in 

a timely fashion. It should be noted that 

the NSCIU provisions do not compel the 

Control Authority to reduce or eliminate 

applicable reporting, monitoring, and 

inspection requirements for every CIU 

with non-significant status. In fact, EPA 

expects that the Control Authority 

should assess each NSCIU to determine 

the extent to which oversight should be 

reduced. In addition, the combination of 

the NSCIU provisions and other existing 

regulatory requirements provide 

mechanisms for timely detection of 

noncompliance. Each Industrial User 

qualifying for NSCIU status must first 

demonstrate that it has consistently 

complied with applicable Pretreatment 

Standards and Requirements. After 

becoming an NSCIU, the User must 

annually certify that it still meets the 

requirements for non-significant status, 

and that it has complied with applicable 

Standards and Requirements. Lastly, as 

with all Industrial Users, the NSCIU is 

affected by the notification requirement 

in 40 CFR 403.12(j), which requires 

facilities to ‘‘promptly notify the Control 

Authority (and the POTW if the POTW 

is not the Control Authority) in advance 

of any substantial change in the volume 

or character of pollutants in their 

Discharge * * *.’’ And, each NSCIU 

must also comply with 40 CFR 

403.12(f), which provides that ‘‘all 

categorical * * * Industrial Users shall 

notify the POTW immediately of all 

Discharges that could cause problems to 

the POTW * * *.’’

Fourth, EPA has concluded that the 

NSCIU provisions will not affect 

protection of the POTW and the 

environment, contrary to the 

commenter’s position. While the 

discretionary decision to treat an 

Industrial User as an NSCIU does 

relieve the Control Authority of certain 

oversight requirements with respect to 

the affected Industrial User, the 

facility’s requirement to meet all 

applicable categorical Pretreatment 

Standards and its status as a CIU are not 

changed. Just because the CIU has been 

categorized as an NSCIU does not 

relieve it of its obligation to comply 

with categorical Pretreatment Standards 

and other applicable Pretreatment 

requirements, such as the notification 

provisions of 40 CFR 403.12(f) and (j). 

Also, the NSCIU is required to annually 

certify that it has met applicable 

Pretreatment Standards and 

Requirements. Therefore, with these 

safeguards in place, EPA finds that the 

NSCIU provisions are fully protective of 

the POTW and the environment. 

How should the 100 gpd and Middle 

Tier criteria be applied to CIUs that 

commingle categorical and noncategorical wastestreams? Several 

commenters asserted that EPA should 

change the terms of the NSCIU language 

to indicate that only categorical 

wastestreams should be included when 

assessing whether an individual CIU 

meets the threshold for being designated 

as non-significant. EPA agrees, and has 

changed the definition of NSCIU to 

indicate that the CIU never discharges 

more than 100 gpd of ‘‘total categorical 

wastewater.’’ EPA finds it important to 

note that in many instances, all or most 

process wastewater discharged by 

NSCIUs will be categorical wastewater. 

And where facilities co-mingle different 

types of categorical wastewater, the 

threshold for determining whether or 

not a facility may be considered a nonsignificant CIU would be based on the 

total amount of categorical wastewater 

discharged. That is, the breakdown of 

categorical wastewater flows by 

industrial category would not affect the 

threshold determination. However, EPA 

recognizes that there may be cases 

where facilities discharge both 

categorical wastewater and noncategorical process wastewater. This 

would occur where some of a facility’s 

process wastewater Discharges were 

regulated under a National categorical 

Standard, while others were not, either 

because they were generated by 

operations from a different (nonregulated) industrial category, or 

because they were specifically excluded 

from coverage at the time the categorical 

Standards were promulgated. In cases 

where categorical and non-categorical 

process wastewater flow volumes 

cannot be reliably distinguished, the 

threshold determination should be 

based on total process wastewater flow 

volume. 

Middle Tier CIUs (discussed further 

below) also apply flow thresholds that 

are measured against an Industrial 

User’s ‘‘total categorical wastewater’’

flow. EPA notes that the same approach 

for co-mingled wastewater that applies 

to NSCIUs also applies to the Middle 

Tier CIUs. 

Do POTW’s need to conduct annual 

inspections or sampling of NSCIUs? 

Several commenters recommended that 

EPA specifically reduce oversight of 

NSCIUs by limiting Control Authority 

inspections and/or sampling. The 

recommended frequencies ranged 

between every other year to as often as 

once-per-year. Other commenters 

supported completely eliminating 

inspection and sampling requirements. 

With the adoption of today’s rule, EPA 

is not establishing any minimum 

inspection and sampling requirements 

for NSCIUs. Today’s rule instead 

requires the Control Authority to 

perform an evaluation, at least once per 

year, on whether the NSCIU meets the 

criteria of 40 CFR 403.3(v)(2). As part of 

the annual evaluation, EPA 

recommends that the Control Authority 

conduct an on-site inspection of the 

facility in order to maintain awareness 

of the facility’s process and to determine 

to the extent possible whether the 

discharger is complying with its 

Pretreatment Program requirements. As 

part of the evaluation, the Control 

Authority should verify the NSCIU’s 

certification under 40 CFR 403.12(q) 

and review any other documentation 

provided by the facility. The level of 

effort devoted to an evaluation can be 

tailored to the facility. EPA again notes 

that it anticipates that this evaluation 

will primarily involve the Control 

Authority’s verification that certification 

forms have been submitted by all 

NSCIUs documenting eligibility for 

NSCIU status and compliance with 

applicable Pretreatment Standards and 

Requirements. The Control Authority is 

not required to control the NSCIU 

through a Permit or other control 

mechanism. However, the Control 

Authority could, on a case by case basis, 

determine whether individual control 

mechanisms are necessary for NSCIUs 

and develop adequate sampling and 

inspection frequencies. 

One commenter suggested that some 

type of annual correspondence, at 

minimum, be incorporated into the 

Pretreatment Regulations to remind the 

NSCIU and Control Authority of their 

responsibilities and obligations under 

the Pretreatment Program. EPA agrees 

with the comment and has modified the 

rule language to include requirements 

that NSCIUs annually certify they are in 

compliance with all applicable 

Pretreatment Standards using the 

certification statement at 40 CFR 

403.12(q). Further, the Control 

Authority must perform an NSCIU 

evaluation, at least once per year, and 

provide an updated list of NSCIUs to the 

60184 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

Approval Authority as part of its annual 

POTW Pretreatment report. 

Can EPA provide some clarification of 

the NSCIU definition? Commenters 

expressed the need for clarification in 

the proposed definition of NSCIU. 

Several commenters were concerned 

that the language, as proposed, would 

allow Control Authorities to exempt a 

greater number of Industrial Users from 

Pretreatment Program requirements than 

what was intended under the proposal. 

These commenters interpreted the 

proposed definition to potentially allow 

an unlimited amount of treated 

concentrated wastewater (the proposal 

prohibited ‘‘untreated concentrated 

wastes’’) to be discharged to the POTW 

while still falling under the NSCIU 

threshold since it only required that 

Discharges of ‘‘other process 

wastewater’’ not be more than 100 gpd. 

Many commenters stated that a CIU 

could be deemed ‘‘non-significant’’, 

under the proposed definition, if it 

could merely demonstrate that it did not 

discharge ‘‘untreated concentrated 

wastes’’ subject to the categorical 

Pretreatment Standards and not more 

than 100 gpd of other process 

wastewater. Upon further consideration, 

EPA agrees that the proposed criteria for 

becoming a NSCIU was open to more 

than one interpretation and has revised 

the language in the final rule to further 

clarify the definition. Therefore, with 

the adoption of today’s rule, EPA is 

clarifying the NSCIU definition to 

include ‘‘100 gpd of total categorical 

wastewater’’ in order to emphasize the 

fact that it is the ‘‘total’’ Discharge of 

100 gpd or less of categorical process 

wastewater which qualifies a User for 

NSCIU status (as long as the other 

required conditions of 40 CFR 

403.3(v)(2) are met), not some smaller 

subset of treated concentrated 

wastewaters. 

Why didn’t EPA promulgate a higher 

flow threshold? Many commenters 

supported the concept of creating a flow 

cut-off threshold, but suggested that the 

100 gpd ceiling was too low to provide 

any significant relief in burden. 

Commenters suggested alternative flow 

thresholds ranging from 300 gpd to 

25,000 gpd, and also suggested that 

facilities that have little or no potential 

to impact the operation of the receiving 

POTW be included in this classification. 

Other POTW commenters supported the 

Association of Metropolitan Sewerage 

Agencies (AMSA, now renamed as the 

National Association of Clean Water 

Agencies) proposal of an alternative 

cutoff which would be specific to the 

POTW. 

EPA’s intent in establishing the 

NSCIU category was to reduce the 

burden on Control Authorities of 

regulating Industrial Users which could 

truly be considered to present minimal 

impact to the treatment plant and the 

Pretreatment Program in general. It was 

not EPA’s intention to remove a large 

segment of contributing CIUs from 

Pretreatment Program oversight, and the 

Agency has a limited amount of flow or 

other Discharge data from which to 

establish with any certainty the impact 

on the Pretreatment Program of allowing 

the NSCIU category to include a greater 

number of Users. EPA generally views 

the 100 gpd threshold as corresponding 

to the de minimis dischargers. 

In the proposal, EPA estimated that 

about 2 percent of the current CIUs 

might be eligible for non-significant 

status. A recent evaluation of 75 POTW 

Pretreatment Programs indicated that an 

average of 15 percent of all CIUs in 

these municipalities would meet the 

100 gpd threshold for NSCIU. EPA 

anticipates that the 100 gpd threshold 

will result in NSCIU eligibility for 

higher numbers of CIUs in select cities 

or regions. 

One commenter was opposed to any 

higher flow or narrative threshold for 

batch dischargers based on the fact that 

the proposal would have eliminated 

minimal, but critical, requirements for 

annual inspection and sampling, 

biennial slug control plan reviews, and 

permit reviews once every 5 years, 

while ignoring the compliance history 

and the discharger’s potential to harm 

the POTW. EPA wishes to clarify that a 

Control Authority will have discretion 

to designate certain CIUs as NSCIUs if 

they meet specific criteria, and to 

exercise that discretion in the case of 

any individual CIUs, but will not be 

obligated to exercise this discretion in 

any particular case. Although certain 

facilities may be considered NSCIUs, 

EPA does not specify what types of 

reporting requirements are necessary. 

Although the Control Authority may 

choose a lesser amount of currently 

required sampling and reporting, the 

final rule does not mandate this 

decision. [As stated above, EPA does 

require that the Control Authority 

conduct at a minimum an annual 

evaluation.] EPA expects that this 

evaluation will primarily involve the 

Control Authority’s verification that 

certification forms have been submitted 

by all NSCIUs documenting eligibility 

and compliance with Pretreatment 

Standards and Requirements. EPA has 

also created conditions that address the 

commenter’s concern about facility 

compliance. For example, to be eligible 

for NSCIU status, a facility must have 

consistently complied with all 

applicable categorical Pretreatment 

Standards and Requirements prior to the 

Control Authority’s findings. Further, 

the NSCIU must certify on an annual 

basis (per the certification requirement 

in 40 CFR 403.12(q)) that its Discharge 

is in compliance with all applicable 

categorical Standards and 

Requirements. 

May averaging be allowed in the 

NSCIU determination? EPA solicited 

comment on whether averaging should 

be allowed in determining whether a 

CIU fell under the 100 gpd threshold. 

Several commenters indicated that they 

concurred with the 100 gpd flow 

threshold, but suggested that the Agency 

include facilities that discharge up to 

500 gallons per week. Today’s final rule 

does not authorize the use of averaging 

to meet the 100 gpd threshold. EPA is 

concerned that allowing such an 

approach could be difficult to oversee 

from the Control Authority’s 

perspective, and could be burdensome 

to implement from the CIU’s 

perspective. A greater degree of 

precision and a higher frequency of 

reporting would be needed to support a 

threshold that allows for an averaging of 

flow values. For instance, the CIU 

would need to record precise flow 

measurements every day to be able to 

determine whether its average discharge 

volume falls below the threshold, 

requiring the Industrial User to establish 

a more sophisticated approach for 

tracking the facility’s Discharge. Also, 

the use of an averaging approach will 

make it harder for the Control Authority 

to be able to determine compliance on 

the days it conducts its inspections. 

Because the 100 gpd approach is 

applied as a threshold which cannot be 

exceeded, it can be implemented in a 

more straightforward manner which is 

expected to minimize the opportunity 

for misinterpretation. If a facility is a 

batch discharger and currently 

discharges more than 100 gpd, EPA 

recommends that the Industrial User 

install some form of flow restrictor that 

will ensure that its discharge of 

categorical process wastewater will 

never exceed 100 gallons on any single 

day. 

Does a facility have to treat its 

wastewater to be considered nonsignificant? Several commenters 

expressed concern that it appeared from 

the proposal that a facility would need 

to install and provide treatment for all 

its wastewater prior to discharge. EPA 

clarifies that a facility does not need to 

have treatment in place in order to be 

considered non-significant, consistent 

with the fact that the categorical 

Standards do not dictate what types of 

treatment technologies the CIU must use 

so long as the facility’s Discharge, with 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60185 

or without treatment, remains in 

compliance with the categorical 

Standard. The Standards only provide 

the limits with which any Industrial 

User’s Discharge must comply. On the 

other hand, the final NSCIU criteria 

require that the facility not discharge 

any ‘‘untreated concentrated 

wastewater’’ since it may be assumed 

that untreated concentrated wastewater 

(i.e., plating baths and rinses, solvents, 

sludges, etc.) would not be in 

compliance with the categorical 

Standard. Regardless of whether 

treatment exists at the CIU, the final rule 

requires that the facility must have 

consistently complied with all 

applicable categorical Pretreatment 

Standards and Requirements in order to 

be considered an NSCIU. Furthermore, 

the facility must, at minimum, annually 

certify that its Discharge is in 

compliance with all applicable 

categorical Pretreatment Standards and 

requirements. 

EPA should adopt a third tier of CIUs 

which provide further oversight 

flexibility based on the impact of the 

Industrial User on the specific POTW: 

As stated previously, eighteen (18) 

POTW commenters recommended that 

EPA adopt the following category of CIU 

in addition to the NSCIU and SIU 

categories: 

• The CIU’s categorical wastewater 

Discharge does not exceed 0.01 percent 

of the design dry weather hydraulic 

capacity of the receiving POTW, nor 

does it exceed 10,000 gpd; 

• The CIU’s categorical wastewater 

Discharge does not exceed 0.01 percent 

of the design dry weather organic 

treatment capacity of the receiving 

POTW; 

• The CIU’s categorical wastewater 

Discharge does not exceed 0.01 percent 

of the maximum allowable headworks 

loading (MAHL) for the receiving POTW 

of any pollutant detected at the POTW 

headworks for which the CIU is subject 

to a categorical Pretreatment Standard; 

and 

• The CIU has not been in significant 

noncompliance (SNC) for the most 

recent four consecutive six-month 

periods. 

As explained in Section III.K.3.b, EPA 

has included this basic approach in the 

final rule, with the exception of 

changing the volume ceiling from 

10,000 gpd to 5,000 gpd. 

IV. Description of Areas Where EPA Is 

Not Taking Action on the Proposed 

Rule 

A. Specific Prohibition Regarding pH 

(40 CFR 403.5(b)(2)) 

This section discusses EPA’s proposal 

to amend 40 CFR 403.5(b)(2) to 

authorize the introduction of Discharges 

with pH less than 5.0 in certain 

circumstances. EPA has decided not to 

adopt the proposed changes to 40 CFR 

403.5(b). EPA concluded that 

inadequate scientific information was 

available to determine the effects of 

short-term, low pH Discharges on the 

integrity of the POTW collection 

systems to support a change to the 

current prohibition on the introduction 

of Discharges with a pH lower than 5.0 

into POTWs. 

1. What is the existing rule? 

Acidic wastes can corrode sewer 

pipes with a resulting release of 

pollutants into the environment. To 

address this concern, the current 

regulations include a limit on the 

acidity of wastes, a minimum pH limit, 

in the specific prohibitions at 40 CFR 

403.5(b). This prohibition applies to all 

nondomestic dischargers to POTWs. 

Section 403.5(b)(2) prohibits the 

discharge of ‘‘pollutants which will 

cause corrosive structural damage to the 

POTW, but in no case discharges with 

pH lower than 5.0, unless the works is 

specifically designed to accommodate 

such Discharges.’’

2. What changes did EPA propose? 

EPA proposed to allow POTWs with 

Approved Pretreatment Programs to 

authorize temporary excursions below 

pH 5.0 provided that the POTW 

maintain a written technical evaluation 

supporting the finding that the 

alternative pH requirements did not 

have the potential to cause corrosive 

structural damage to the POTW or 

otherwise violate 40 CFR 403.5(a) and 

(b). This change would have allowed 

POTWs to accept Discharges below pH 

5.0 from Industrial Users that 

continuously monitored the pH of their 

Discharges, or to accept such temporary 

excursions by a limited group of 

Industrial Users. EPA proposed that any 

alternative pH requirement developed 

by a POTW would be enforceable as a 

Pretreatment Standard under the Clean 

Water Act. (The general narrative 

prohibition against pollutants that cause 

corrosive structural damage at 40 CFR 

403.5(b)(2) would still have applied.) 

3. What action is EPA taking today? 

EPA has decided not to adopt any 

changes to 40 CFR 403.5(b)(2). The 

existing specific prohibition against 

Discharges with pH lower than 5.0 will 

remain in effect. 

In arriving at this decision, EPA has 

found that most of the current literature 

on the relationship between low pH and 

corrosion of sewer pipes is general and 

qualitative. References rarely address 

short-term Discharges of low pH and 

tend to only discuss effects of 

continuous exposure. Furthermore, 

predicting the effects of corrosion on 

POTW sewer pipes is complicated by a 

variety of factors, including wastewater 

characteristics such as pH, temperature, 

volume, velocity, turbulence, alkalinity, 

dissolved oxygen, as well as sewer pipe 

characteristics such as size, age, 

material of construction, pipe 

configuration, and time since last 

cleaning. EPA has concluded that 

insufficient research is available that 

investigates the synergistic effects of 

these factors as well as data on the 

effects of short-term Discharges of low 

pH and therefore modifications to the 

current regulations are not appropriate 

at this time. 

What significant changes were made to 

the proposed rule? 

EPA has decided not to change the 

current rule regarding Discharges less 

than pH 5.0. EPA lacks sufficient 

information on the effects of short-term 

or long-term Discharges with pH lower 

than 5.0 on the structural integrity of 

POTWs. The current regulations at 40 

CFR 403.5(b) remain in effect. 

4. Summary of Major Comments and 

EPA Response 

Many commenters gave qualified 

support for the proposed modifications 

with suggestions for implementation. 

EPA also received comments on the 

proposed rule stating that the proposal 

did not adequately protect POTWs. One 

commenter cautioned that systems 

constructed of acid-resistant materials 

often include manhole inverts 

constructed of concrete and similar 

materials that are susceptible to 

corrosion, and are thus rarely entirely 

resistant to such effects. Some requested 

that EPA make the current pH limit 

more stringent (i.e., above pH 5.0) 

because there are systems that are 

currently experiencing corrosion 

damage. A few commenters questioned 

whether the proposed modifications 

would actually provide a significant 

burden relief for POTWs, on the basis 

that adequate evidence does not exist 

that shows POTWs devote a substantial 

amount of resources to dealing with 

short-term violations. Several 

commenters requested guidance on 

various implementation topics, 

60186 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

including how POTWs should assess 

and maintain the integrity of their 

systems with respect to corrosion. These 

outstanding issues influenced EPA’s 

decision not to finalize the proposed 

modifications at this time. 

Even though EPA has decided not to 

finalize this proposed provision, all 

comments that were submitted on the 

proposal will be carefully considered as 

EPA further explores the issue of shortterm pH Discharges. Please see the 

Response to Public Comment Document 

for responses to specific comments. 

Application of 40 CFR 401.17 Criteria: 

Some commenters suggested that the pH 

provisions at 40 CFR 401.17 could serve 

as a basis for alternative pH 

requirements. The effluent guideline 

regulations list certain conditions under 

which excursions from pH limits are 

allowed for direct dischargers. EPA 

developed 40 CFR 401.17 based on the 

Agency’s determination that direct 

dischargers could continuously meet a 

pH limit between 6.0 and 9.0. In 

comparison, Pretreatment requirements 

are based on preventing corrosion in 

POTWs and are much less restrictive. It 

is EPA’s view that it would be 

inappropriate to attempt to use 40 CFR 

401.17 as a basis for alternative pH 

requirements because the reason behind 

establishing the pH requirement is 

different. However, POTWs may 

implement and enforce local pH limits 

in a manner that is more stringent than 

the federal regulations. EPA refers 

commenters to EPA’s May 13, 1993 

letter to Mary Jo M. Aiello of the New 

Jersey Department of Environmental 

Protection and Energy, for a discussion 

of an acceptable analogous application 

to the Pretreatment program. See 

http://www.epa.gov/npdes/pubs/ 

owm0113.pdf. 

Use of Enforcement Response Plans to 

Address pH Violations: Several POTW 

commenters expressed concern over the 

level of burden imposed on them by the 

existing pH limit since they are 

obligated to treat all exceedances as 

violations. In EPA’s view, it is relevant 

to clarify the inherent flexibility present 

in a POTW’s Enforcement Response 

Plan provisions to define varying levels 

of response to temporary pH violations. 

EPA advises POTWs to incorporate a 

preferred method of dealing with 

violations of local limits into their 

Enforcement Response Plans and refers 

commenters to the Guidance for 

Developing Control Authority 

Enforcement Response Plans (EPA, 

1989). See http://www.epa.gov/npdes/ 

pubs/owm0015.pdf. EPA notes that 

POTWs make their own decisions 

regarding the utilization of resources in 

response to low pH Discharges when 

developing an Enforcement Response 

Plan. Excursions under pH 5.0 are 

Pretreatment Standard violations (40 

CFR 403.5(b)(2)), and, in determining 

the appropriate response, EPA 

recommends that the Control Authority 

consider the following criteria: 

frequency, duration, magnitude, effect, 

and/or compliance. A record should be 

made of the response, and the person 

responsible for screening the data 

should alert enforcement personnel to 

the noncompliance. EPA recognizes that 

the Control Authority’s appropriate 

response (including no further action, a 

phone call, or a notification letter) may 

vary. This flexibility may help reduce 

the burdens on the commenters’

programs. 

V. Changes to Part 122 

EPA is also making the following 

changes to the part 122 regulations: 

• 40 CFR 122.21(j)(6)(ii): Change 

reference to definition of ‘‘Significant 

Industrial User’’ to 40 CFR 403.3(v), 

instead of 40 CFR 403.3(t). This 

reference change is a direct result of 

renumbering associated with today’s 

rule. 

• 40 CFR 122.44(j)(1): Correct 

typographical error referring to 

‘‘significant indirect dischargers’’

instead of the correct term, ‘‘Significant 

Industrial Users discharging’’. 

• 40 CFR122.62(a)(7): Correct 

typographical error referencing an 

incorrect provision relating to 

modifications. The correct reference 

should be 40 CFR 403.18(e). 

VI. Considerations in Adopting Today’s 

Rule Revisions 

How does a POTW adopt today’s rule 

provisions? 

Section 40 CFR 403.18(a) generally 

requires review and approval by the 

Approval Authority of modifications to 

the POTW Pretreatment Program when 

there is a ‘‘significant change in the 

operation of a POTW Pretreatment 

Program that differs from the 

information in the POTW’s [program] 

submission * * * .’’ Consistent with 

this rule, before many of today’s 

streamlining provisions may be 

implemented by local Pretreatment 

authorities, POTWs will need to modify 

their Pretreatment Program procedures 

and authorities. Once the POTW has 

determined what program revisions it 

will make in response to today’s 

streamlining provisions, the 

modifications must then be submitted to 

the Approval Authority (either the State, 

if it has Pretreatment Program authority, 

or the EPA Regional Administrator) for 

approval. The regulations also require 

that the program modification be 

accompanied by a statement of basis for 

the changes, a description of the 

modifications and other information the 

Approval Authority may request as 

appropriate. See 40 CFR 403.18(c)(1). 

Although not required as part of 

today’s final rule, EPA encourages a 

POTW to submit its Pretreatment 

Program modifications to its Approval 

Authority as a package, rather than 

sending changes piecemeal. This will 

help make the review process more 

efficient and less burdensome. 

Is the POTW required to make any of 

today’s streamlining changes? 

EPA notes that many of today’s 

streamlining provisions are changes that 

the POTW may adopt at its discretion. 

Many of these changes (e.g., the 

authority to use general control 

mechanisms, monitoring waivers for 

pollutants neither present nor expected 

to be present, BMPs in lieu of numeric 

local limits, application of equivalent 

concentration limits in place of flowbased mass limits for OCPSF, petroleum 

refining, or pesticide chemicals 

facilities, creation of a category of nonsignificant CIUs, and application of 

equivalent mass limits for concentration 

based categorical Standards) involve 

features that provide program flexibility 

and are not required to be incorporated 

into the POTW’s Pretreatment Program. 

However, a few of today’s rule 

provisions are changes that the POTW is 

required to make because they clarify 

certain minimum requirements, and to 

the extent that the POTW’s approved 

program is inconsistent with these 

requirements, it would need to be 

modified. These required changes 

include: 

(1) 40 CFR 403.8(f)(1)(iii)(B)(6): 

Clarification that slug control 

requirements must be referenced in SIU 

control mechanisms. The POTW is 

required to adopt this change because it 

specifies new minimum requirements 

for all SIU control mechanisms. 

(2) 40 CFR 403.8(f)(2)(viii)(A)(B)(C): 

Revisions to the significant 

noncompliance (SNC) definition. These 

revisions are required because they 

expand the definition of SNC to include 

additional types of Pretreatment 

Standards and Requirements which 

were not clearly covered in previous 

definitions. 

(3) 40 CFR 403.12(g): Modifications to 

the sampling requirements and a 

clarification to the requirement to report 

all monitoring results. SIUs are now 

required to follow sampling 

requirements in 40 CFR 403.12 for 

periodic compliance reports (40 CFR 

403.12(e)), whereas they were 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60187 

previously only explicitly applicable to 

baseline monitoring reports and 90-day 

compliance reports. Also, the final rule 

now requires that non-categorical SIUs 

report all monitoring results, whereas 

the previous regulations only made this 

requirement explicit for categorical 

SIUs. The POTW is required to adopt 

these revisions because they set new 

minimum requirements for sampling 

and notification. 

What is the difference between a 

‘‘substantial modification’’ and a ‘‘nonsubstantial’’ modification? 

Different review procedures apply to 

program modifications depending on 

whether the modification is substantial 

or non-substantial. 

The Approval Authority’s review of a 

substantial modification, unlike a nonsubstantial modification, must follow 

the same procedures used for approving 

the initial POTW Pretreatment Program, 

including the issuance of a public notice 

to inform the public of the POTW’s 

modification Submission. By contrast, 

where the Submission is reviewed as a 

non-substantial modification, the 

Approval Authority has 45 days to 

either approve or disapprove the 

modification. Where the Approval 

Authority does not notify the POTW 

within 45 days of its decision to 

approve or disapprove the modification, 

or to treat the modification as 

substantial, the POTW may implement 

the modification as if it were approved 

by the Approval Authority. 

How will the POTW’s adoption of 

today’s streamlining provisions be 

reviewed by the Approval Authority? 

EPA has concluded that all of the 

changes related to today’s rule may be 

treated as non-substantial if the changes 

to a POTW’s local ordinance to 

incorporate the changes directly reflect 

the federal requirements. The current 

regulations provide that modifications 

that relax a POTW’s legal authorities are 

substantial modifications ‘‘except for 

modifications that directly reflect a 

revision to this Part 403 or to 40 CFR 

Chapter I, subchapter N, and are 

reported pursuant to paragraph (d) of 

this section.’’ EPA has explained its 

reasons for adopting this provision as 

follows: 

• ‘‘Today’s regulation excludes from 

the definition of ‘substantial 

modification’ those changes in POTW 

legal authority that results in less 

prescriptive programs, but which 

directly reflect a revision to Federal 

Pretreatment Regulations (for example, 

if the federal regulations are 

streamlined). 40 CFR 403.18(b)(1). Such 

modifications would have already 

undergone public notice and comment 

when promulgated by EPA. As long as 

the POTW’s local ordinance is revised 

to directly reflect the new federal 

requirements, further public notice 

would be unnecessary * * *.’’ 62 FR 

38406, 38409 (July 17, 1997). 

The Approval Authority, however, 

may treat such modifications as 

substantial when appropriate. 40 CFR 

403.18(b)(7) authorizes the Approval 

Authority to designate modifications as 

substantial if the Approval Authority 

concludes that the modification could 

have a significant effect on POTW 

operation, could result in an increase in 

POTW pollutant loadings or could 

result in less stringent requirements 

being imposed on Industrial Users. For 

example, a POTW may wish to make 

adjustments to the wording of some of 

the streamlining provisions so that they 

fit better with the way the specific 

Pretreatment program is operated. Such 

adjustments may or may not trigger the 

need to review individual modifications 

as substantial, which would not 

otherwise need to be treated as 

substantial if today’s provisions are 

adopted directly. 

Will the POTW’s NPDES Permit need 

to be modified? In general, the 

Pretreatment provisions of the POTW’s 

NPDES Permit will need to be modified. 

This regulatory action does not modify 

individual state regulations or 

authorities, POTW legal authorities, nor 

modify NPDES Permits issued to 

POTWs. Consequently, today’s rule does 

not relieve a POTW from operating in 

accordance with existing state laws, 

regulations, Permits, and similar 

actions. If a POTW’s Pretreatment 

program ‘‘modification relates to an 

enforceable element of the POTW’s 

NPDES Permit’’, then the program 

‘‘modification requires a permit 

modification,’’ in accordance with 40 

CFR 403.8(c). 62 FR 38408 (July 17, 

1997). After a POTW’s Pretreatment 

program modification has been 

approved in accordance with the 

procedures in 40 CFR 403.18, those 

conditions may be incorporated into the 

POTW’s NPDES Permit as a minor 

NPDES modification under 40 CFR 

122.63(g). 

VII. Regulatory Requirements 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866, [58 

Federal Register 51,735 (October 4, 

1993)] the Agency must determine 

whether the regulatory action is 

‘‘significant’’ and therefore subject to 

OMB review and the requirements of 

the Executive Order. The Order defines 

‘‘significant regulatory action’’ as one 

that is likely to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

Pursuant to the terms of Executive 

Order 12866, it has been determined 

that this rule is a ‘‘significant regulatory 

action.’’ As such, this action was 

submitted to OMB for review. Changes 

made in response to OMB suggestions or 

recommendations will be documented 

in the public record. 

B. Paperwork Reduction Act 

The Office of Management and Budget 

(OMB) has approved the information 

collection requirements contained in 

this rule under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. and has assigned OMB 

control number 2040–0009. 

The regulatory changes in today’s 

rulemaking are designed to reduce the 

overall burden from technical and 

administrative requirements that affect 

Industrial Users, local Control 

Authorities and Approval Authorities. 

The estimated savings in annual burden 

hours and costs to the affected 

respondents (i.e., Industrial Users, 

POTWs, and States) is about 240,000 

hours or $10.1 million. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

60188 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

Although the regulatory changes in 

today’s final rule provide greater 

flexibility to regulated entities, it is 

necessary to collect certain types of 

information to assure that Pretreatment 

Program requirements continue to be 

met and that the final benefit meets 

EPA’s stated goal of providing better 

environmental results at less cost. 

Today’s final rule includes regulatory 

changes that cover a variety of technical 

and administrative changes. Most of the 

regulatory changes result in either 

reduced annual cost and burdens on a 

continuing basis or have no measurable 

effect on cost or burden. There are a few 

regulatory changes (equivalent 

concentration limits for flow based 

Standards, monitoring waivers for 

pollutants not present, and general 

control mechanisms) that will impose 

additional short-term increases in 

burden on those POTWs or Industrial 

Users that elect to exercise this 

flexibility. However, when considered 

over a longer time period, these costs 

are outweighed by the expected benefits 

of the provisions. 

The table below (Table 1) shows an 

estimate of burden hours and cost 

savings for each rule provision. 

TABLE 1.—ESTIMATED CHANGES IN BURDEN AND COST

Provision 

Total respondents Change in total 

number of 

responses 

Hours per 

response 

Annual 

responses per 

respondent 

Change in 

burden States POTWs IUs 

Mass Limits ..................... 24 40 80 over 3 yrs .... 8 ....................... Varies ............... 512 

Equivalent Concentration 

Limits.

1,464 15 ..................... 8.0 .................... 0.01 .................. 122.67 

NSCIUs/Middle-Tier CIUs 34 1,464 2,374 NA ..................... See Note 1 ....... Varies ............... ¥113,381 

Slug Control Plans .......... 34 1,464 ¥13,394 ........... 0.5 .................... 1 ....................... ¥6,697 

Pollutants Not Present—

CIUs.

34 1,464 12,362 NA ..................... See Note 2 ....... 2 ....................... ¥117,703 

General Control Mech’s, 

Savings for CAs.

34 20 1,500 ................ ¥20.0 ............... 0.2 .................... ¥6,000 

General Control Mech’s, 

Requests for Coverage.

1,500 1,500 over 3 yrs 0.5 .................... One-Time .......... 250 

General Control Mech’s, 

CA Use of Data.

34 20 1,500 over 3 yrs 0.5 .................... One-Time .......... 250 

Total ......................... 34 1,464 12,362 ...................... ...................... ...................... ¥242,645 

Note 1: For 34 states, the annual number of responses for permit issuance (20 hrs) drops by 0.6 per state. For 34 states, the number of inspections per year (8 hours) drops by 4.6 per state. For 34 states, the number of CIUs sampled per year (15.2 hours) drops by 4.6 per state. For 

34 states, the number of NSCIU evaluations (2 hours) increases by 3.0 per state. For 34 states, total hours for review of CIU monitoring reports 

drops by 424 hours per year. For 1,464 POTWs, the annual number of responses for permit issuance (20 hrs) drops by 0.15 per POTW. For 

1,464 POTWs, the number of inspections per year (8 hours) drops by 1.1 per POTW. For 1,464 POTWs, the number of CIUs sampled per year 

(16.2 hours) drops by 1.1 per POTW. For 1,464 POTWs, the number of NSCIU evaluations (2 hours) rises from 0 to 0.73 per POTW. POTW 

burden for review of CIU monitoring reports drops a total of 8,664 hours. In addition, 796 CIUs reduce sampling and analysis (15.6 hours) from 

twice per year to never, 372 CIUs reduce sampling and analysis from twice per year to once every 5 years, and 1,206 CIUs reduce monitoring 

from twice to once per year. Also, 2,374 CIUs reduce reporting (1 hour) from twice to once per year. IU recordkeeping is eliminated for 1,168 

IUs, saving 2337 hours (2 hrs per IU) per year; state recordkeeping decreases by 513 hours per year. POTW recordkeeping is assumed to be 

unchanged. 

Note 2: Hours per response drops from 18.8 to 15.2 for states, 10.0 to 8.1 for POTWs, and 14.3 to 11.6 for CIUs. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. In 

addition, EPA is amending the table in 

40 CFR part 9 of currently approved 

OMB control numbers for various 

regulations to list the regulatory 

citations for the information 

requirements contained in this final 

rule. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small business 

according to RFA default definitions for 

small business (based on SBA size 

standard; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

In determining whether a rule has a 

significant economic impact on a 

substantial number of small entities, the 

impact of concern is any significant 

adverse economic impact on small 

entities, since the primary purpose of 

the regulatory flexibility analyses is to 

identify and address regulatory 

alternatives ‘‘which minimize any 

significant economic impact of the rule 

on small entities.’’ 5 U.S.C. 603 and 604. 

Thus, an agency may certify that a rule 

will not have a significant economic 

impact on a substantial number of small 

entities if the rule relieves regulatory 

burden, or otherwise has a positive 

economic effect on all of the small 

entities subject to the rule. 

As previously explained, the 

modifications to the Pretreatment 

requirements in this final rule will 

reduce the regulatory costs to POTWs 

and Industrial Users of complying with 

Pretreatment requirements. The 

regulatory changes will provide certain 

POTWs and Industrial Users with less 

costly alternatives to the current 

requirements. For example, this rule 

includes a modification that would 

allow a POTW, in specified 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60189 

circumstances, to control contributions 

from Industrial Users through general 

permits or control mechanisms rather 

than more costly individual permits or 

control mechanisms. This rule also 

authorizes a POTW to relieve an 

Industrial User of its sampling and 

analyzing requirements if the User 

demonstrates and certifies that the 

pollutant is neither present nor 

expected to be present in its process 

waste stream or is present only in 

background levels in the intake water. 

The final rule includes provisions that 

provide flexibility for POTWs and 

Industrial Users. For instance, POTWs 

will be allowed to use Best Management 

Practices (BMPs) as local limits in lieu 

of numeric effluent limits. This option 

will give POTWs a feasible alternative 

when numeric local limits are not the 

appropriate or practical method to 

prevent pollutant Pass Through or 

Interference. EPA does not expect that 

any POTW or Industrial User will 

choose the voluntary regulatory 

requirements over current requirements 

if the cost of the alternative were greater 

than the cost of complying with current 

regulations. We have therefore 

concluded that today’s final rule will 

either relieve regulatory burden or have 

no significant impact for all small 

entities. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), P.L. 104–

4, establishes requirements for Federal 

agencies to assess the effects of their 

regulatory actions on State, local, and 

tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and tribal governments, in the aggregate, 

or to the private sector, of $100 million 

or more in any one year. Before 

promulgating an EPA rule for which a 

written statement is needed, section 205 

of the UMRA generally requires EPA to 

identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most costeffective or least burdensome alternative 

that achieves the objectives of the rule. 

The provisions of section 205 do not 

apply when they are inconsistent with 

applicable law. Moreover, section 205 

allows EPA to adopt an alternative other 

than the least costly, most cost-effective 

or least burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. 

Before EPA establishes any regulatory 

requirements that may significantly or 

uniquely affect small governments, 

including tribal governments, it must 

have developed under section 203 of the 

UMRA a small government agency plan. 

The plan must provide for notifying 

potentially affected small governments, 

enabling officials of affected small 

governments to have meaningful and 

timely input in the development of EPA 

regulatory proposals with significant 

Federal intergovernmental mandates, 

and informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

EPA has determined that this rule 

does not contain a Federal mandate that 

may result in expenditures of $100 

million or more for State, local, and 

tribal governments, in the aggregate, or 

the private sector in any one year. 

Today’s final rule is ‘‘deregulatory’’ in 

nature and reduces burden on the 

affected State, local, and tribal 

governments and the private sector. 

Thus, today’s rule is not subject to the 

requirements of sections 202 and 205 of 

the UMRA. 

EPA has determined that this rule 

contains no regulatory requirements that 

might significantly or uniquely affect 

small governments. Additional 

flexibility is granted to all POTWs, 

which will provide opportunities for 

reducing the burden of administering 

their Pretreatment programs. 

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

This final rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. Today’s rule is 

basically deregulatory in nature and is 

expected to reduce administrative and 

resource burdens on affected State, 

local, and tribal governments and the 

private sector. Thus, Executive Order 

13132 does not apply to this rule. 

Although section 6 of Executive Order 

13132 does not apply to this rule, EPA 

did consult with representatives of State 

and local officials in developing this 

rule. Annual EPA/State National 

Pretreatment Workshops have provided 

the opportunity for EPA and States to 

discuss current technical and policy 

issues as well as the future direction of 

the National Pretreatment Program. 

Representatives of EPA, States, and 

local Pretreatment programs have also 

convened annually at the Association of 

Metropolitan Sewerage Agencies’

(AMSA’s) Pretreatment Workshop. In 

the spirit of Executive Order 13132, and 

consistent with EPA policy to promote 

communication between EPA and State 

and local governments, EPA solicited 

comment on the proposed rule from all 

stakeholders. A summary of EPA’s 

response to concerns raised is provided 

in Sections III and IV of the preamble 

(see specifically subsections entitled 

‘‘Summary of Major Comments and EPA 

Response’’ for each separate 

streamlining issue) and in the response 

to comment document in the record. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 6, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ ‘‘Policies that have tribal 

implications’’ is defined in the 

Executive Order to include regulations 

that have ‘‘substantial direct effects on 

one or more Indian tribes, on the 

relationship between the Federal 

government and the Indian tribes, or on 

the distribution of power and 

responsibilities between the Federal 

government and Indian tribes.’’

This final rule does not have tribal 

implications. It will not have substantial 

direct effects on tribal governments, on 

the relationship between the Federal 

government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

government and Indian tribes, as 

specified in Executive Order 13175. 

There are no Pretreatment programs 

administered by Indian tribal 

governments. This final rule will neither 

‘‘significantly nor uniquely’’ affect the 

communities of Indian tribal 

governments. Thus, Executive Order 

13175 does not apply to this rule. 

60190 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

Moreover, in the spirit of Executive 

Order 13175, and consistent with EPA 

policy to promote communications 

between EPA and tribal governments, 

EPA specifically solicited comment on 

the proposed rule from all stakeholders. 

EPA did not receive any comments from 

tribal governments. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

Executive Order 13045, ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This final rule is not subject to the 

Executive Order because it is not 

economically significant as defined in 

Executive Order 12866, and because the 

Agency does not have reason to believe 

the environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. This 

final rule does not impose any new or 

amended Standards for discharged 

wastewater or the sludge resulting from 

treatment of a POTW. (EPA notes that 

the final rule does enable POTWs to use 

alternative, equivalent concentration 

limits for an industry’s current flowbased mass Standards and equivalent 

mass limits where conditions warrant. 

However, EPA considers these new 

limits to be equivalent to the Standards 

previously used, and therefore does not 

involve the establishment of new or 

amended Standards.) Treatment and 

disposal of wastewater occurs in a 

restricted system (e.g., buried sewer 

lines and fenced wastewater treatment 

facilities) that children are unlikely to 

come in contact with on a routine basis. 

This rule has no identifiable direct 

impact upon the health and/or safety 

risks to children and the regulatory 

changes will not disproportionately 

affect children. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355 (May 

22, 2001)) because it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

The final rule does not contain any 

compliance requirements that will: 

1. Reduce crude oil supply in excess 

of 10,000 barrels per day; 

2. Reduce fuel production in excess of 

4,000 barrels per day; 

3. Reduce coal production in excess of 

5 million tons per year; 

4. Reduce electricity production in 

excess of 1 billion kilowatt-hours per 

year or in excess of 500 megawatts of 

installed capacity; 

5. Increase energy prices in excess of 

10 percent; 

6. Increase the cost of energy 

distribution in excess of 10 percent; 

7. Significantly increase dependence 

on foreign supplies of energy; or 

8. Other similar adverse outcomes, 

particularly unintended ones. 

Thus, EPA has concluded that this 

rule is not likely to have any adverse 

energy effects. 

I. National Technology Transfer and 

Advancement Act 

As noted in the proposed rule, 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law No. 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This rule does not involve technical 

standards, except to the extent that 

various sampling procedures in the 

Pretreatment Regulations are being 

updated to reflect current EPA methods. 

Therefore, EPA did not consider the use 

of any voluntary consensus standards. 

J. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A Major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule 

will be effective on November 14, 2005. 

List of Subjects 

40 CFR Part 9 

Environmental protection, Reporting 

and recordkeeping requirements. 

40 CFR Part 122 

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Hazardous substances, Reporting and 

recordkeeping requirements, Water 

pollution control. 

40 CFR Part 403 

Environmental protection, 

Confidential business information, 

Reporting and recordkeeping 

requirements, Waste treatment and 

disposal, Water pollution control. 

Dated: September 27, 2005. 

Stephen L. Johnson, 

Administrator. 

■ For the reasons set out in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is amended as 

follows: 

PART 9—OMB APPROVALS UNDER 

THE PAPERWORK REDUCTION ACT 

■ 1. The authority citation for part 9 

continues to read as follows: 

Authority: 7 U.S.C. 135 et seq., 136–136y; 

15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671, 

21 U.S.C 331j, 356a, 348; 31 U.S.C. 9701; 33 

U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 

1321, 1326, 1330, 1342, 1344, 1345 (d) and 

(e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 

1971–1975 Comp. p. 973; 42 U.S.C. 241, 

242b, 243, 246, 300f, 300g, 300g–1, 300g–2, 

300g–3, 300g–4, 300g–5, 300g–6, 300j–1, 

300j–2, 300j–3, 300j–4, 300j–9, 1857 et seq., 

6901–6992k, 7401–7671q, 7542, 9601–9657, 

11023, 11048. 

2. In § 9.1 the table is amended by 

adding an entry in numerical order 

under the indicated heading to read as 

follows: 

§ 9.1 OMB approvals under the Paper 

Work Reduction Act. 

* * * * * 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60191 

40 CFR citation OMB control 

No. 

General Pretreatment Regulations for Existing and New Sources of Pollution 

* *; * * * * * 

403.12(q) .................................................................................................................................................................................................. 2040–0009 

* * * * * * 

PART 122—EPA ADMINISTERED 

PERMIT PROGRAMS: THE NATIONAL 

POLLUTANT DISCHARGE 

ELIMINATION SYSTEM 

■ 3. The authority citation for Part 122 

continues to read as follows: 

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

1251 et seq. 

■ 4. Section 122.21 is amended by 

revising paragraph (j)(6)(ii) introductory 

text to read as follows: 

§ 122.21 Application for a permit 

(applicable to State programs, see § 123.25). 

* * * * * 

(j) * * * 

(6) * * * 

(ii) POTWs with one or more SIUs 

shall provide the following information 

for each SIU, as defined at 40 CFR 

403.3(v), that discharges to the POTW: 

* * * * * 

■ 5. Section 122.44 is amended by 

revising the first sentence of paragraph 

(j)(1) to read as follows: 

§ 122.44 Establishing limitations, 

standards, and other permit conditions 

(applicable to State NPDES programs, see 

§ 123.25). 

* * * * * 

(j) * * * 

(1) Identify, in terms of character and 

volume of pollutants, any Significant 

Industrial Users discharging into the 

POTW subject to Pretreatment 

Standards under section 307(b) of CWA 

and 40 CFR part 403. 

* * * * * 

■ 6. Section 122.62 is amended by 

revising paragraph (a)(7) to read as 

follows: 

§ 122.62 Modification or revocation and 

reissuance of permits (applicable to State 

programs, see § 123.25). 

* * * * * 

(a) * * * 

(7) Reopener. When required by the 

‘‘reopener’’ conditions in a permit, 

which are established in the permit 

under § 122.44(b) (for CWA toxic 

effluent limitations and Standards for 

sewage sludge use or disposal, see also 

§ 122.44(c)) or 40 CFR 403.18(e) 

(Pretreatment program). 

* * * * * 

PART 403—GENERAL 

PRETREATMENT REGULATIONS FOR 

EXISTING AND NEW SOURCES OF 

POLLUTION 

■ 7. The authority for Part 403 

continues to read as follows: 

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

■ 8. Section 403.3 is amended by 

redesignating paragraphs (e) through (u) 

as paragraphs (g) through (w); by 

revising newly designated paragraphs 

(m)(2) and (v); and by adding new 

paragraphs (e) and (f) to read as follows: 

§ 403.3. Definitions. 

* * * * * 

(e) The term Best Management 

Practices or BMPs means schedules of 

activities, prohibitions of practices, 

maintenance procedures, and other 

management practices to implement the 

prohibitions listed in § 403.5(a)(1) and 

(b). BMPs also include treatment 

requirements, operating procedures, and 

practices to control plant site runoff, 

spillage or leaks, sludge or waste 

disposal, or drainage from raw materials 

storage. 

(f) The term Control Authority refers 

to: 

(1) The POTW if the POTW’s 

Pretreatment Program Submission has 

been approved in accordance with the 

requirements of § 403.11; or 

(2) The Approval Authority if the 

Submission has not been approved. 

* * * * * 

(m) * * * 

(2) Construction on a site at which an 

existing source is located results in a 

modification rather than a New Source 

if the construction does not create a new 

building, structure, facility or 

installation meeting the criteria of 

paragraphs (m)(1)(ii) or (m)(1)(iii) of this 

section, but otherwise alters, replaces, 

or adds to existing process or 

production equipment. 

* * * * * 

(v) Significant Industrial User. (1) 

Except as provided in paragraphs (v)(2) 

and (v)(3) of this section, the term 

Significant Industrial User means: 

(i) All Industrial Users subject to 

Categorical Pretreatment Standards 

under 40 CFR 403.6 and 40 CFR chapter 

I, subchapter N; and 

(ii) Any other Industrial User that: 

discharges an average of 25,000 gallons 

per day or more of process wastewater 

to the POTW (excluding sanitary, 

noncontact cooling and boiler 

blowdown wastewater); contributes a 

process wastestream which makes up 5 

percent or more of the average dry 

weather hydraulic or organic capacity of 

the POTW Treatment plant; or is 

designated as such by the Control 

Authority on the basis that the 

Industrial User has a reasonable 

potential for adversely affecting the 

POTW’s operation or for violating any 

Pretreatment Standard or requirement 

(in accordance with 40 CFR 403.8(f)(6)). 

(2) The Control Authority may 

determine that an Industrial User 

subject to categorical Pretreatment 

Standards under § 403.6 and 40 CFR 

chapter I, subchapter N is a NonSignificant Categorical Industrial User 

rather than a Significant Industrial User 

on a finding that the Industrial User 

never discharges more than 100 gallons 

per day (gpd) of total categorical 

wastewater (excluding sanitary, noncontact cooling and boiler blowdown 

wastewater, unless specifically included 

in the Pretreatment Standard) and the 

following conditions are met: 

(i) The Industrial User, prior to the 

Control Authority’s finding, has 

consistently complied with all 

applicable categorical Pretreatment 

Standards and Requirements; 

(ii) The Industrial User annually 

submits the certification statement 

required in § 403.12(q) together with 

any additional information necessary to 

support the certification statement; and 

(iii) The Industrial User never 

discharges any untreated concentrated 

wastewater. 

(3) Upon a finding that an Industrial 

User meeting the criteria in paragraph 

(v)(1)(ii) of this section has no 

reasonable potential for adversely 

affecting the POTW’s operation or for 

violating any Pretreatment Standards or 

60192 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

requirement, the Control Authority may 

at any time, on its own initiative or in 

response to a petition received from an 

Industrial User or POTW, and in 

accordance with 40 CFR 403.8(f)(6), 

determine that such Industrial User is 

not a Significant Industrial User. 

* * * * * 

■ 9. Section 403.5 is amended by 

revising paragraph (b)(1) and adding a 

new paragraph (c)(4) to read as follows: 

§ 403.5 National pretreatment standards: 

Prohibited discharges. 

* * * * * 

(b) * * * 

(1) Pollutants which create a fire or 

explosion hazard in the POTW, 

including, but not limited to, 

wastestreams with a closed cup 

flashpoint of less than 140 degrees 

Fahrenheit or 60 degrees Centigrade 

using the test methods specified in 40 

CFR 261.21; 

* * * * * 

(c) * * * 

(4) POTWs may develop Best 

Management Practices (BMPs) to 

implement paragraphs (c)(1) and (c)(2) 

of this section. Such BMPs shall be 

considered local limits and Pretreatment 

Standards for the purposes of this part 

and section 307(d) of the Act. 

* * * * * 

■ 10. Section 403.6 is amended as 

follows: 

■ a. By revising paragraph (b). 

■ b. By revising paragraph (c)(2). 

■ c. By redesignating paragraphs (c)(5) 

through (c)(7) as paragraphs (c)(7) 

through (c)(9). 

■ d. By adding new paragraphs (c)(5) 

and (c)(6). 

■ e. By revising newly designated 

paragraphs (c)(7) and (c)(8). 

■ f. By revising paragraph (d), and the 

first sentence of paragraph (e) 

introductory text. 

§ 403.6 National pretreatment standards: 

Categorical standards. 

* * * * * 

(b) Deadline for compliance with 

categorical standards. Compliance by 

existing sources with categorical 

Pretreatment Standards shall be within 

3 years of the date the Standard is 

effective unless a shorter compliance 

time is specified in the appropriate 

subpart of 40 CFR chapter I, subchapter 

N. Direct dischargers with NPDES 

Permits modified or reissued to provide 

a variance pursuant to section 301(i)(2) 

of the Act shall be required to meet 

compliance dates set in any applicable 

categorical Pretreatment Standard. 

Existing sources which become 

Industrial Users subsequent to 

promulgation of an applicable 

categorical Pretreatment Standard shall 

be considered existing Industrial Users 

except where such sources meet the 

definition of a New Source as defined in 

§ 403.3(m). New Sources shall install 

and have in operating condition, and 

shall ‘‘start-up’’ all pollution control 

equipment required to meet applicable 

Pretreatment Standards before 

beginning to Discharge. Within the 

shortest feasible time (not to exceed 90 

days), New Sources must meet all 

applicable Pretreatment Standards. 

(c) * * * 

(2) When the limits in a categorical 

Pretreatment Standard are expressed 

only in terms of mass of pollutant per 

unit of production, the Control 

Authority may convert the limits to 

equivalent limitations expressed either 

as mass of pollutant discharged per day 

or effluent concentration for purposes of 

calculating effluent limitations 

applicable to individual Industrial 

Users. 

* * * * * 

(5) When the limits in a categorical 

Pretreatment Standard are expressed 

only in terms of pollutant 

concentrations, an Industrial User may 

request that the Control Authority 

convert the limits to equivalent mass 

limits. The determination to convert 

concentration limits to mass limits is 

within the discretion of the Control 

Authority. The Control Authority may 

establish equivalent mass limits only if 

the Industrial User meets all the 

following conditions in paragraph 

(c)(5)(i)(A) through (c)(5)(i)(E) of this 

section. 

(i) To be eligible for equivalent mass 

limits, the Industrial User must: 

(A) Employ, or demonstrate that it 

will employ, water conservation 

methods and technologies that 

substantially reduce water use during 

the term of its control mechanism; 

(B) Currently use control and 

treatment technologies adequate to 

achieve compliance with the applicable 

categorical Pretreatment Standard, and 

not have used dilution as a substitute 

for treatment; 

(C) Provide sufficient information to 

establish the facility’s actual average 

daily flow rate for all wastestreams, 

based on data from a continuous 

effluent flow monitoring device, as well 

as the facility’s long-term average 

production rate. Both the actual average 

daily flow rate and long-term average 

production rate must be representative 

of current operating conditions; 

(D) Not have daily flow rates, 

production levels, or pollutant levels 

that vary so significantly that equivalent 

mass limits are not appropriate to 

control the Discharge; and 

(E) Have consistently complied with 

all applicable categorical Pretreatment 

Standards during the period prior to the 

Industrial User’s request for equivalent 

mass limits. 

(ii) An Industrial User subject to 

equivalent mass limits must: 

(A) Maintain and effectively operate 

control and treatment technologies 

adequate to achieve compliance with 

the equivalent mass limits; 

(B) Continue to record the facility’s 

flow rates through the use of a 

continuous effluent flow monitoring 

device; 

(C) Continue to record the facility’s 

production rates and notify the Control 

Authority whenever production rates 

are expected to vary by more than 20 

percent from its baseline production 

rates determined in paragraph 

(c)(5)(i)(C) of this section. Upon 

notification of a revised production rate, 

the Control Authority must reassess the 

equivalent mass limit and revise the 

limit as necessary to reflect changed 

conditions at the facility; and 

(D) Continue to employ the same or 

comparable water conservation methods 

and technologies as those implemented 

pursuant to paragraph (c)(5)(i)(A) of this 

section so long as it discharges under an 

equivalent mass limit. 

(iii) A Control Authority which 

chooses to establish equivalent mass 

limits: 

(A) Must calculate the equivalent 

mass limit by multiplying the actual 

average daily flow rate of the regulated 

process(es) of the Industrial User by the 

concentration-based daily maximum 

and monthly average Standard for the 

applicable categorical Pretreatment 

Standard and the appropriate unit 

conversion factor; 

(B) Upon notification of a revised 

production rate, must reassess the 

equivalent mass limit and recalculate 

the limit as necessary to reflect changed 

conditions at the facility; and 

(C) May retain the same equivalent 

mass limit in subsequent control 

mechanism terms if the Industrial User’s 

actual average daily flow rate was 

reduced solely as a result of the 

implementation of water conservation 

methods and technologies, and the 

actual average daily flow rates used in 

the original calculation of the equivalent 

mass limit were not based on the use of 

dilution as a substitute for treatment 

pursuant to paragraph (d) of this 

section. The Industrial User must also 

be in compliance with § 403.17 

(regarding the prohibition of bypass). 

(iv) The Control Authority may not 

express limits in terms of mass for 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60193 

pollutants such as pH, temperature, 

radiation, or other pollutants which 

cannot appropriately be expressed as 

mass. 

(6) The Control Authority may 

convert the mass limits of the 

categorical Pretreatment Standards at 40 

CFR parts 414, 419, and 455 to 

concentration limits for purposes of 

calculating limitations applicable to 

individual Industrial Users under the 

following conditions. When converting 

such limits to concentration limits, the 

Control Authority must use the 

concentrations listed in the applicable 

subparts of 40 CFR parts 414, 419, and 

455 and document that dilution is not 

being substituted for treatment as 

prohibited by paragraph (d) of this 

section. 

(7) Equivalent limitations calculated 

in accordance with paragraphs (c)(3), 

(c)(4), (c)(5) and (c)(6) of this section are 

deemed Pretreatment Standards for the 

purposes of section 307(d) of the Act 

and this part. The Control Authority 

must document how the equivalent 

limits were derived and make this 

information publicly available. Once 

incorporated into its control 

mechanism, the Industrial User must 

comply with the equivalent limitations 

in lieu of the promulgated categorical 

standards from which the equivalent 

limitations were derived. 

(8) Many categorical Pretreatment 

Standards specify one limit for 

calculating maximum daily discharge 

limitations and a second limit for 

calculating maximum monthly average, 

or 4-day average, limitations. Where 

such Standards are being applied, the 

same production or flow figure shall be 

used in calculating both the average and 

the maximum equivalent limitation. 

* * * * * 

(d) Dilution prohibited as substitute 

for treatment. Except where expressly 

authorized to do so by an applicable 

Pretreatment Standard or Requirement, 

no Industrial User shall ever increase 

the use of process water, or in any other 

way attempt to dilute a Discharge as a 

partial or complete substitute for 

adequate treatment to achieve 

compliance with a Pretreatment 

Standard or Requirement. The Control 

Authority may impose mass limitations 

on Industrial Users which are using 

dilution to meet applicable Pretreatment 

Standards or Requirements, or in other 

cases where the imposition of mass 

limitations is appropriate. 

(e) Combined wastestream formula. 

Where process effluent is mixed prior to 

treatment with wastewaters other than 

those generated by the regulated 

process, fixed alternative discharge 

limits may be derived by the Control 

Authority or by the Industrial User with 

the written concurrence of the Control 

Authority. * * * 

* * * * * 

■ 11. Section 403.7 is amended by 

revising paragraphs (h) introductory text 

and (h)(2) to read as follows: 

§ 403.7 Removal credits. 

* * * * * 

(h) Compensation for Overflow. 

‘‘Overflow’’ means the intentional or 

unintentional diversion of flow from the 

POTW before the POTW Treatment 

Plant. POTWs which at least once 

annually Overflow untreated 

wastewater to receiving waters may 

claim Consistent Removal of a pollutant 

only by complying with either 

paragraphs (h)(1) or (h)(2) of this 

section. However, paragraph (h) of this 

section shall not apply where Industrial 

User(s) can demonstrate that Overflow 

does not occur between the Industrial 

User(s) and the POTW Treatment Plant; 

* * * * * 

(2)(i) The Consistent Removal claimed 

is reduced pursuant to the following 

equation: 

r r Z c m = 8760 −

8760

Where: 

rm = POTW’s Consistent Removal rate 

for that pollutant as established 

under paragraphs (a)(1) and (b)(2) of 

this section 

rc = removal corrected by the Overflow 

factor 

Z = hours per year that Overflows 

occurred between the Industrial 

User(s) and the POTW Treatment 

Plant, the hours either to be shown 

in the POTW’s current NPDES 

permit application or the hours, as 

demonstrated by verifiable 

techniques, that a particular 

Industrial User’s Discharge 

Overflows between the Industrial 

User and the POTW Treatment 

Plant; and 

(ii) The POTW is complying with all 

NPDES permit requirements and any 

additional requirements in any order or 

decree, issued pursuant to the Clean 

Water Act affecting combined sewer 

overflows. These requirements include, 

but are not limited to, any combined 

sewer overflow requirements that 

conform to the Combined Sewer 

Overflow Control Policy. 

■ 12. Section 403.8 is amended as 

follows: 

■ a. By revising paragraphs (f)(1)(iii), 

(f)(1)(v), and the first sentence of 

paragraph (f)(1)(vi)(B). 

■ b. By revising paragraph (f)(2)(v). 

■ c. By redesignating paragraphs 

(f)(2)(vi) and (f)(2)(vii) as paragraphs 

(f)(2)(vii) and (f)(2)(viii); 

■ d. By adding a new paragraph 

(f)(2)(vi). 

■ e. By revising newly designated 

paragraphs (f)(2)(viii) introductory text, 

(f)(2)(viii)(A), (f)(2)(viii)(B), 

(f)(2)(viii)(C), (f)(2)(viii)(F), and 

(f)(2)(viii)(H). 

■ f. Revising paragraph (f)(6). 

§ 403.8 Pretreatment Program 

Requirements: Development and 

implementation by POTW. 

* * * * * 

(f) * * * 

(1) * * * 

(iii) Control through Permit, order, or 

similar means, the contribution to the 

POTW by each Industrial User to ensure 

compliance with applicable 

Pretreatment Standards and 

Requirements. In the case of Industrial 

Users identified as significant under 

§ 403.3(v), this control shall be achieved 

through individual permits or 

equivalent individual control 

mechanisms issued to each such User 

except as follows. 

(A)(1) At the discretion of the POTW, 

this control may include use of general 

control mechanisms if the following 

conditions are met. All of the facilities 

to be covered must: 

(i) Involve the same or substantially 

similar types of operations; 

(ii) Discharge the same types of 

wastes; 

(iii) Require the same effluent 

limitations; 

(iv) Require the same or similar 

monitoring; and 

(v) In the opinion of the POTW, are 

more appropriately controlled under a 

general control mechanism than under 

individual control mechanisms. 

(2) To be covered by the general 

control mechanism, the Significant 

Industrial User must file a written 

request for coverage that identifies its 

contact information, production 

processes, the types of wastes generated, 

the location for monitoring all wastes 

covered by the general control 

mechanism, any requests in accordance 

with § 403.12(e)(2) for a monitoring 

waiver for a pollutant neither present 

nor expected to be present in the 

Discharge, and any other information 

the POTW deems appropriate. A 

monitoring waiver for a pollutant 

neither present nor expected to be 

present in the Discharge is not effective 

in the general control mechanism until 

after the POTW has provided written 

notice to the Significant Industrial User 

that such a waiver request has been 


ER14OC05.000</GPH>
60194 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

granted in accordance with 

§ 403.12(e)(2). The POTW must retain a 

copy of the general control mechanism, 

documentation to support the POTW’s 

determination that a specific Significant 

Industrial User meets the criteria in 

paragraphs (f)(1)(iii)(A)(1) through (5) of 

this section, and a copy of the User’s 

written request for coverage for 3 years 

after the expiration of the general 

control mechanism. A POTW may not 

control a Significant Industrial User 

through a general control mechanism 

where the facility is subject to 

production-based categorical 

Pretreatment Standards or categorical 

Pretreatment Standards expressed as 

mass of pollutant discharged per day or 

for Industrial Users whose limits are 

based on the Combined Wastestream 

Formula or Net/Gross calculations 

(§§ 403.6(e) and 403.15). 

(B) Both individual and general 

control mechanisms must be 

enforceable and contain, at a minimum, 

the following conditions: 

(1) Statement of duration (in no case 

more than five years); 

(2) Statement of non-transferability 

without, at a minimum, prior 

notification to the POTW and provision 

of a copy of the existing control 

mechanism to the new owner or 

operator; 

(3) Effluent limits, including Best 

Management Practices, based on 

applicable general Pretreatment 

Standards in part 403 of this chapter, 

categorical Pretreatment Standards, 

local limits, and State and local law; 

(4) Self-monitoring, sampling, 

reporting, notification and 

recordkeeping requirements, including 

an identification of the pollutants to be 

monitored (including the process for 

seeking a waiver for a pollutant neither 

present nor expected to be present in 

the Discharge in accordance with 

§ 403.12(e)(2), or a specific waived 

pollutant in the case of an individual 

control mechanism), sampling location, 

sampling frequency, and sample type, 

based on the applicable general 

Pretreatment Standards in part 403 of 

this chapter, categorical Pretreatment 

Standards, local limits, and State and 

local law; 

(5) Statement of applicable civil and 

criminal penalties for violation of 

Pretreatment Standards and 

requirements, and any applicable 

compliance schedule. Such schedules 

may not extend the compliance date 

beyond applicable federal deadlines; 

(6) Requirements to control Slug 

Discharges, if determined by the POTW 

to be necessary. 

* * * * * 

(v) Carry out all inspection, 

surveillance and monitoring procedures 

necessary to determine, independent of 

information supplied by Industrial 

Users, compliance or noncompliance 

with applicable Pretreatment Standards 

and Requirements by Industrial Users. 

Representatives of the POTW shall be 

authorized to enter any premises of any 

Industrial User in which a Discharge 

source or treatment system is located or 

in which records are required to be kept 

under § 403.12(o) to assure compliance 

with Pretreatment Standards. Such 

authority shall be at least as extensive 

as the authority provided under section 

308 of the Act; 

(vi) * * * 

(B) Pretreatment requirements which 

will be enforced through the remedies 

set forth in paragraph (f)(1)(vi)(A) of this 

section, will include but not be limited 

to, the duty to allow or carry out 

inspections, entry, or monitoring 

activities; any rules, regulations, or 

orders issued by the POTW; any 

requirements set forth in control 

mechanisms issued by the POTW; or 

any reporting requirements imposed by 

the POTW or these regulations in this 

part. * * * 

* * * * * 

(2) * * * 

(v) Randomly sample and analyze the 

effluent from Industrial Users and 

conduct surveillance activities in order 

to identify, independent of information 

supplied by Industrial Users, occasional 

and continuing noncompliance with 

Pretreatment Standards. Inspect and 

sample the effluent from each 

Significant Industrial User at least once 

a year, except as otherwise specified 

below: 

(A) Where the POTW has authorized 

the Industrial User subject to a 

categorical Pretreatment Standard to 

forego sampling of a pollutant regulated 

by a categorical Pretreatment Standard 

in accordance with § 403.12(e)(3), the 

POTW must sample for the waived 

pollutant(s) at least once during the 

term of the Categorical Industrial User’s 

control mechanism. In the event that the 

POTW subsequently determines that a 

waived pollutant is present or is 

expected to be present in the Industrial 

User’s wastewater based on changes that 

occur in the User’s operations, the 

POTW must immediately begin at least 

annual effluent monitoring of the User’s 

Discharge and inspection. 

(B) Where the POTW has determined 

that an Industrial User meets the criteria 

for classification as a Non-Significant 

Categorical Industrial User, the POTW 

must evaluate, at least once per year, 

whether an Industrial User continues to 

meet the criteria in § 403.3(v)(2). 

(C) In the case of Industrial Users 

subject to reduced reporting 

requirements under § 403.12(e)(3), the 

POTW must randomly sample and 

analyze the effluent from Industrial 

Users and conduct inspections at least 

once every two years. If the Industrial 

User no longer meets the conditions for 

reduced reporting in § 403.12(e)(3), the 

POTW must immediately begin 

sampling and inspecting the Industrial 

User at least once a year. 

(vi) Evaluate whether each such 

Significant Industrial User needs a plan 

or other action to control Slug 

Discharges. For Industrial Users 

identified as significant prior to 

November 14, 2005, this evaluation 

must have been conducted at least once 

by October 14, 2006; additional 

Significant Industrial Users must be 

evaluated within 1 year of being 

designated a Significant Industrial User. 

For purposes of this subsection, a Slug 

Discharge is any Discharge of a nonroutine, episodic nature, including but 

not limited to an accidental spill or a 

non-customary batch Discharge, which 

has a reasonable potential to cause 

Interference or Pass Through, or in any 

other way violate the POTW’s 

regulations, local limits or Permit 

conditions. The results of such activities 

shall be available to the Approval 

Authority upon request. Significant 

Industrial Users are required to notify 

the POTW immediately of any changes 

at its facility affecting potential for a 

Slug Discharge. If the POTW decides 

that a slug control plan is needed, the 

plan shall contain, at a minimum, the 

following elements: 

(A) Description of discharge practices, 

including non-routine batch Discharges; 

(B) Description of stored chemicals; 

(C) Procedures for immediately 

notifying the POTW of Slug Discharges, 

including any Discharge that would 

violate a prohibition under § 403.5(b) 

with procedures for follow-up written 

notification within five days; 

(D) If necessary, procedures to prevent 

adverse impact from accidental spills, 

including inspection and maintenance 

of storage areas, handling and transfer of 

materials, loading and unloading 

operations, control of plant site run-off, 

worker training, building of 

containment structures or equipment, 

measures for containing toxic organic 

pollutants (including solvents), and/or 

measures and equipment for emergency 

response; 

* * * * * 

(viii) Comply with the public 

participation requirements of 40 CFR 

part 25 in the enforcement of National 

Pretreatment Standards. These 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60195 

procedures shall include provision for 

at least annual public notification in a 

newspaper(s) of general circulation that 

provides meaningful public notice 

within the jurisdiction(s) served by the 

POTW of Industrial Users which, at any 

time during the previous 12 months, 

were in significant noncompliance with 

applicable Pretreatment requirements. 

For the purposes of this provision, a 

Significant Industrial User (or any 

Industrial User which violates 

paragraphs (f)(2)(viii)(C), (D), or (H) of 

this section) is in significant 

noncompliance if its violation meets 

one or more of the following criteria: 

(A) Chronic violations of wastewater 

Discharge limits, defined here as those 

in which 66 percent or more of all of the 

measurements taken for the same 

pollutant parameter during a 6-month 

period exceed (by any magnitude) a 

numeric Pretreatment Standard or 

Requirement, including instantaneous 

limits, as defined by 40 CFR 403.3(l); 

(B) Technical Review Criteria (TRC) 

violations, defined here as those in 

which 33 percent or more of all of the 

measurements taken for the same 

pollutant parameter during a 6-month 

period equal or exceed the product of 

the numeric Pretreatment Standard or 

Requirement including instantaneous 

limits, as defined by 40 CFR 403.3(l) 

multiplied by the applicable TRC 

(TRC=1.4 for BOD, TSS, fats, oil, and 

grease, and 1.2 for all other pollutants 

except pH); 

(C) Any other violation of a 

Pretreatment Standard or Requirement 

as defined by 40 CFR 403.3(l) (daily 

maximum, long-term average, 

instantaneous limit, or narrative 

Standard) that the POTW determines 

has caused, alone or in combination 

with other Discharges, Interference or 

Pass Through (including endangering 

the health of POTW personnel or the 

general public); 

* * * * * 

(F) Failure to provide, within 45 days 

after the due date, required reports such 

as baseline monitoring reports, 90-day 

compliance reports, periodic selfmonitoring reports, and reports on 

compliance with compliance schedules; 

* * * * * 

(H) Any other violation or group of 

violations, which may include a 

violation of Best Management Practices, 

which the POTW determines will 

adversely affect the operation or 

implementation of the local 

Pretreatment program. 

* * * * * 

(6) The POTW shall prepare and 

maintain a list of its Industrial Users 

meeting the criteria in § 403.3(v)(1). The 

list shall identify the criteria in 

§ 403.3(v)(1) applicable to each 

Industrial User and, where applicable, 

shall also indicate whether the POTW 

has made a determination pursuant to 

§ 403.3(v)(2) that such Industrial User 

should not be considered a Significant 

Industrial User. The initial list shall be 

submitted to the Approval Authority 

pursuant to § 403.9 or as a nonsubstantial modification pursuant to 

§ 403.18(d). Modifications to the list 

shall be submitted to the Approval 

Authority pursuant to § 403.12(i)(1). 

■ 13. Section 403.12 is amended as 

follows: 

■ a. By removing and reserving 

paragraph (a). 

■ b. By revising paragraphs (b)(4)(ii) and 

(b)(5)(ii). 

■ c. By removing paragraph (b)(5)(iii). 

■ d. By redesignating paragraphs 

(b)(5)(iv) through (b)(5)(viii) as 

paragraphs (b)(5)(iii) through (b)(5)(vii). 

■ e. By revising paragraph (b)(6). 

■ f. By revising paragraph (e)(1). 

■ g. By redesignating paragraphs (e)(2) 

and (e)(3) as paragraphs (e)(3) and (e)(4). 

■ h. By adding a new paragraph (e)(2). 

■ i. Revising newly designated 

paragraph (e)(3). 

■ j. Revising paragraphs (g)(1), (g)(2) and 

(g)(3). 

■ k. By redesignating paragraphs (g)(4) 

and (g)(5) as paragraphs (g)(5) and (g)(6). 

■ l. By revising newly designated 

paragraph (g)(6). 

■ m. By adding paragraph (g)(4). 

■ n. By revising paragraph (h). 

■ o. By revising paragraph (i)(1). 

■ p. By revising paragraph (j). 

■ q. By revising paragraph (k)(2). 

■ r. By revising paragraphs (l) 

introductory text, (1)(1) introductory 

text, (l)(1)(ii), (l)(2), (m), (o)(1) 

introductory text, and the first sentence 

of paragraph (o)(2). 

■ s. By adding paragraph (q). 

§ 403.12 Reporting requirements for 

POTWs and Industrial Users. 

* * * * * 

(b) * * * 

(4) * * * 

(ii) Other streams as necessary to 

allow use of the combined wastestream 

formula of § 403.6(e). (See paragraph 

(b)(5)(iv) of this section.) 

* * * * * 

(5) * * * 

(ii) In addition, the User shall submit 

the results of sampling and analysis 

identifying the nature and concentration 

(or mass, where required by the 

Standard or Control Authority) of 

regulated pollutants in the Discharge 

from each regulated process. Both daily 

maximum and average concentration (or 

mass, where required) shall be reported. 

The sample shall be representative of 

daily operations. In cases where the 

Standard requires compliance with a 

Best Management Practice or pollution 

prevention alternative, the User shall 

submit documentation as required by 

the Control Authority or the applicable 

Standards to determine compliance 

with the Standard; 

* * * * * 

(6) Certification. A statement, 

reviewed by an authorized 

representative of the Industrial User (as 

defined in paragraph (l) of this section) 

and certified to by a qualified 

professional, indicating whether 

Pretreatment Standards are being met on 

a consistent basis, and, if not, whether 

additional operation and maintenance 

(O and M) and/or additional 

Pretreatment is required for the 

Industrial User to meet the Pretreatment 

Standards and Requirements; and 

(e) * * * 

(1) Any Industrial User subject to a 

categorical Pretreatment Standard 

(except a Non-Significant Categorical 

User as defined in § 403.3(v)(2)), after 

the compliance date of such 

Pretreatment Standard, or, in the case of 

a New Source, after commencement of 

the discharge into the POTW, shall 

submit to the Control Authority during 

the months of June and December, 

unless required more frequently in the 

Pretreatment Standard or by the Control 

Authority or the Approval Authority, a 

report indicating the nature and 

concentration of pollutants in the 

effluent which are limited by such 

categorical Pretreatment Standards. In 

addition, this report shall include a 

record of measured or estimated average 

and maximum daily flows for the 

reporting period for the Discharge 

reported in paragraph (b)(4) of this 

section except that the Control 

Authority may require more detailed 

reporting of flows. In cases where the 

Pretreatment Standard requires 

compliance with a Best Management 

Practice (or pollution prevention 

alternative), the User shall submit 

documentation required by the Control 

Authority or the Pretreatment Standard 

necessary to determine the compliance 

status of the User. At the discretion of 

the Control Authority and in 

consideration of such factors as local 

high or low flow rates, holidays, budget 

cycles, etc., the Control Authority may 

modify the months during which the 

above reports are to be submitted. 

(2) The Control Authority may 

authorize the Industrial User subject to 

a categorical Pretreatment Standard to 

forego sampling of a pollutant regulated 

by a categorical Pretreatment Standard if 

60196 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

the Industrial User has demonstrated 

through sampling and other technical 

factors that the pollutant is neither 

present nor expected to be present in 

the Discharge, or is present only at 

background levels from intake water 

and without any increase in the 

pollutant due to activities of the 

Industrial User. This authorization is 

subject to the following conditions: 

(i) The Control Authority may 

authorize a waiver where a pollutant is 

determined to be present solely due to 

sanitary wastewater discharged from the 

facility provided that the sanitary 

wastewater is not regulated by an 

applicable categorical Standard and 

otherwise includes no process 

wastewater. 

(ii) The monitoring waiver is valid 

only for the duration of the effective 

period of the Permit or other equivalent 

individual control mechanism, but in no 

case longer than 5 years. The User must 

submit a new request for the waiver 

before the waiver can be granted for 

each subsequent control mechanism. 

(iii) In making a demonstration that a 

pollutant is not present, the Industrial 

User must provide data from at least one 

sampling of the facility’s process 

wastewater prior to any treatment 

present at the facility that is 

representative of all wastewater from all 

processes. 

The request for a monitoring waiver 

must be signed in accordance with 

paragraph (l) of this section and include 

the certification statement in 

§ 403.6(a)(2)(ii). Non-detectable sample 

results may only be used as a 

demonstration that a pollutant is not 

present if the EPA approved method 

from 40 CFR part 136 with the lowest 

minimum detection level for that 

pollutant was used in the analysis. 

(iv) Any grant of the monitoring 

waiver by the Control Authority must be 

included as a condition in the User’s 

control mechanism. The reasons 

supporting the waiver and any 

information submitted by the User in its 

request for the waiver must be 

maintained by the Control Authority for 

3 years after expiration of the waiver. 

(v) Upon approval of the monitoring 

waiver and revision of the User’s control 

mechanism by the Control Authority, 

the Industrial User must certify on each 

report with the statement below, that 

there has been no increase in the 

pollutant in its wastestream due to 

activities of the Industrial User: 

Based on my inquiry of the person or 

persons directly responsible for managing 

compliance with the Pretreatment Standard 

for 40 CFR _______ [specify applicable 

National Pretreatment Standard part(s)], I 

certify that, to the best of my knowledge and 

belief, there has been no increase in the level 

of ______ [list pollutant(s)] in the wastewaters 

due to the activities at the facility since filing 

of the last periodic report under 40 CFR 

403.12(e)(1). 

(vi) In the event that a waived 

pollutant is found to be present or is 

expected to be present based on changes 

that occur in the User’s operations, the 

User must immediately: Comply with 

the monitoring requirements of 

paragraph (e)(1) of this section or other 

more frequent monitoring requirements 

imposed by the Control Authority; and 

notify the Control Authority. 

(vii) This provision does not 

supersede certification processes and 

requirements established in categorical 

Pretreatment Standards, except as 

otherwise specified in the categorical 

Pretreatment Standard. 

(3) The Control Authority may reduce 

the requirement in paragraph (e)(1) of 

this section to a requirement to report 

no less frequently than once a year, 

unless required more frequently in the 

Pretreatment Standard or by the 

Approval Authority, where the 

Industrial User meets all of the 

following conditions: 

(i) The Industrial User’s total 

categorical wastewater flow does not 

exceed any of the following: 

(A) 0.01 percent of the design dry 

weather hydraulic capacity of the 

POTW, or 5,000 gallons per day, 

whichever is smaller, as measured by a 

continuous effluent flow monitoring 

device unless the Industrial User 

discharges in batches; 

(B) 0.01 percent of the design dry 

weather organic treatment capacity of 

the POTW; and 

(C) 0.01 percent of the maximum 

allowable headworks loading for any 

pollutant regulated by the applicable 

categorical Pretreatment Standard for 

which approved local limits were 

developed by a POTW in accordance 

with § 403.5(c) and paragraph (d) of this 

section; 

(ii) The Industrial User has not been 

in significant noncompliance, as 

defined in § 403.8(f)(2)(viii), for any 

time in the past two years; 

(iii) The Industrial User does not have 

daily flow rates, production levels, or 

pollutant levels that vary so 

significantly that decreasing the 

reporting requirement for this Industrial 

User would result in data that are not 

representative of conditions occurring 

during the reporting period pursuant to 

paragraph (g)(3) of this section; 

(iv) The Industrial User must notify 

the Control Authority immediately of 

any changes at its facility causing it to 

no longer meet conditions of paragraphs 

(e)(3)(i) or (ii) of this section. Upon 

notification, the Industrial User must 

immediately begin complying with the 

minimum reporting in paragraph (e)(1) 

of this section; and 

(v) The Control Authority must retain 

documentation to support the Control 

Authority’s determination that a specific 

Industrial User qualifies for reduced 

reporting requirements under paragraph 

(e)(3) of this section for a period of 3 

years after the expiration of the term of 

the control mechanism. 

* * * * * 

(g) * * * 

(1) Except in the case of NonSignificant Categorical Users, the 

reports required in paragraphs (b), (d), 

(e), and (h) of this section shall contain 

the results of sampling and analysis of 

the Discharge, including the flow and 

the nature and concentration, or 

production and mass where requested 

by the Control Authority, of pollutants 

contained therein which are limited by 

the applicable Pretreatment Standards. 

This sampling and analysis may be 

performed by the Control Authority in 

lieu of the Industrial User. Where the 

POTW performs the required sampling 

and analysis in lieu of the Industrial 

User, the User will not be required to 

submit the compliance certification 

required under paragraphs (b)(6) and (d) 

of this section. In addition, where the 

POTW itself collects all the information 

required for the report, including flow 

data, the Industrial User will not be 

required to submit the report. 

(2) If sampling performed by an 

Industrial User indicates a violation, the 

User shall notify the Control Authority 

within 24 hours of becoming aware of 

the violation. The User shall also repeat 

the sampling and analysis and submit 

the results of the repeat analysis to the 

Control Authority within 30 days after 

becoming aware of the violation. Where 

the Control Authority has performed the 

sampling and analysis in lieu of the 

Industrial User, the Control Authority 

must perform the repeat sampling and 

analysis unless it notifies the User of the 

violation and requires the User to 

perform the repeat analysis. Resampling 

is not required if: 

(i) The Control Authority performs 

sampling at the Industrial User at a 

frequency of at least once per month; or 

(ii) The Control Authority performs 

sampling at the User between the time 

when the initial sampling was 

conducted and the time when the User 

or the Control Authority receives the 

results of this sampling. 

(3) The reports required in paragraphs 

(b), (d), (e) and (h) of this section must 

be based upon data obtained through 

appropriate sampling and analysis 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 60197 

performed during the period covered by 

the report, which data are representative 

of conditions occurring during the 

reporting period. The Control Authority 

shall require that frequency of 

monitoring necessary to assess and 

assure compliance by Industrial Users 

with applicable Pretreatment Standards 

and Requirements. Grab samples must 

be used for pH, cyanide, total phenols, 

oil and grease, sulfide, and volatile 

organic compounds. For all other 

pollutants, 24-hour composite samples 

must be obtained through flowproportional composite sampling 

techniques, unless time-proportional 

composite sampling or grab sampling is 

authorized by the Control Authority. 

Where time-proportional composite 

sampling or grab sampling is authorized 

by the Control Authority, the samples 

must be representative of the Discharge 

and the decision to allow the alternative 

sampling must be documented in the 

Industrial User file for that facility or 

facilities. Using protocols (including 

appropriate preservation) specified in 

40 CFR part 136 and appropriate EPA 

guidance, multiple grab samples 

collected during a 24-hour period may 

be composited prior to the analysis as 

follows: For cyanide, total phenols, and 

sulfides the samples may be composited 

in the laboratory or in the field; for 

volatile organics and oil & grease the 

samples may be composited in the 

laboratory. Composite samples for other 

parameters unaffected by the 

compositing procedures as documented 

in approved EPA methodologies may be 

authorized by the Control Authority, as 

appropriate. 

(4) For sampling required in support 

of baseline monitoring and 90-day 

compliance reports required in 

paragraphs (b) and (d) of this section, a 

minimum of four (4) grab samples must 

be used for pH, cyanide, total phenols, 

oil and grease, sulfide and volatile 

organic compounds for facilities for 

which historical sampling data do not 

exist; for facilities for which historical 

sampling data are available, the Control 

Authority may authorize a lower 

minimum. For the reports required by 

paragraphs (e) and (h) of this section, 

the Control Authority shall require the 

number of grab samples necessary to 

assess and assure compliance by 

Industrial Users with Applicable 

Pretreatment Standards and 

Requirements. 

* * * * * 

(6) If an Industrial User subject to the 

reporting requirement in paragraph (e) 

or (h) of this section monitors any 

regulated pollutant at the appropriate 

sampling location more frequently than 

required by the Control Authority, using 

the procedures prescribed in paragraph 

(g)(5) of this section, the results of this 

monitoring shall be included in the 

report. 

(h) Reporting requirements for 

Industrial Users not subject to 

categorical Pretreatment Standards. The 

Control Authority must require 

appropriate reporting from those 

Industrial Users with Discharges that are 

not subject to categorical Pretreatment 

Standards. Significant Non-categorical 

Industrial Users must submit to the 

Control Authority at least once every six 

months (on dates specified by the 

Control Authority) a description of the 

nature, concentration, and flow of the 

pollutants required to be reported by the 

Control Authority. In cases where a 

local limit requires compliance with a 

Best Management Practice or pollution 

prevention alternative, the User must 

submit documentation required by the 

Control Authority to determine the 

compliance status of the User. These 

reports must be based on sampling and 

analysis performed in the period 

covered by the report, and in 

accordance with the techniques 

described in part 136 and amendments 

thereto. This sampling and analysis may 

be performed by the Control Authority 

in lieu of the significant non-categorical 

Industrial User. 

(i) * * * 

(1) An updated list of the POTW’s 

Industrial Users, including their names 

and addresses, or a list of deletions and 

additions keyed to a previously 

submitted list. The POTW shall provide 

a brief explanation of each deletion. 

This list shall identify which Industrial 

Users are subject to categorical 

Pretreatment Standards and specify 

which Standards are applicable to each 

Industrial User. The list shall indicate 

which Industrial Users are subject to 

local standards that are more stringent 

than the categorical Pretreatment 

Standards. The POTW shall also list the 

Industrial Users that are subject only to 

local Requirements. The list must also 

identify Industrial Users subject to 

categorical Pretreatment Standards that 

are subject to reduced reporting 

requirements under paragraph (e)(3), 

and identify which Industrial Users are 

Non-Significant Categorical Industrial 

Users. 

* * * * * 

(j) Notification of changed Discharge. 

All Industrial Users shall promptly 

notify the Control Authority (and the 

POTW if the POTW is not the Control 

Authority) in advance of any substantial 

change in the volume or character of 

pollutants in their Discharge, including 

the listed or characteristic hazardous 

wastes for which the Industrial User has 

submitted initial notification under 

paragraph (p) of this section. 

(k) * * * 

(2) No increment referred to in 

paragraph (k)(1) of this section shall 

exceed nine months; 

* * * * * 

(l) Signatory requirements for 

Industrial User reports. The reports 

required by paragraphs (b), (d), and (e) 

of this section shall include the 

certification statement as set forth in 

§ 403.6(a)(2)(ii), and shall be signed as 

follows: 

(1) By a responsible corporate officer, 

if the Industrial User submitting the 

reports required by paragraphs (b), (d), 

and (e) of this section is a corporation. 

For the purpose of this paragraph, a 

responsible corporate officer means: 

* * * * * 

(ii) The manager of one or more 

manufacturing, production, or operating 

facilities, provided, the manager is 

authorized to make management 

decisions which govern the operation of 

the regulated facility including having 

the explicit or implicit duty of making 

major capital investment 

recommendations, and initiate and 

direct other comprehensive measures to 

assure long-term environmental 

compliance with environmental laws 

and regulations; can ensure that the 

necessary systems are established or 

actions taken to gather complete and 

accurate information for control 

mechanism requirements; and where 

authority to sign documents has been 

assigned or delegated to the manager in 

accordance with corporate procedures. 

(2) By a general partner or proprietor 

if the Industrial User submitting the 

reports required by paragraphs (b), (d), 

and (e) of this section is a partnership, 

or sole proprietorship respectively. 

* * * * * 

(m) Signatory requirements for POTW 

reports. Reports submitted to the 

Approval Authority by the POTW in 

accordance with paragraph (i) of this 

section must be signed by a principal 

executive officer, ranking elected 

official or other duly authorized 

employee. The duly authorized 

employee must be an individual or 

position having responsibility for the 

overall operation of the facility or the 

Pretreatment Program. This 

authorization must be made in writing 

by the principal executive officer or 

ranking elected official, and submitted 

to the Approval Authority prior to or 

together with the report being 

submitted. 

* * * * * 

60198 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Rules and Regulations 

(o) * * * 

(1) Any Industrial User and POTW 

subject to the reporting requirements 

established in this section shall 

maintain records of all information 

resulting from any monitoring activities 

required by this section, including 

documentation associated with Best 

Management Practices. Such records 

shall include for all samples: 

* * * * * 

(2) Any Industrial User or POTW 

subject to the reporting requirements 

established in this section (including 

documentation associated with Best 

Management Practices) shall be required 

to retain for a minimum of 3 years any 

records of monitoring activities and 

results (whether or not such monitoring 

activities are required by this section) 

and shall make such records available 

for inspection and copying by the 

Director and the Regional Administrator 

(and POTW in the case of an Industrial 

User). * * * 

* * * * * 

(q) Annual certification by NonSignificant Categorical Industrial Users. 

A facility determined to be a NonSignificant Categorical Industrial User 

pursuant to § 403.3(v)(2) must annually 

submit the following certification 

statement, signed in accordance with 

the signatory requirements in paragraph 

(l) of this section. This certification 

must accompany any alternative report 

required by the Control Authority: 

Based on my inquiry of the person or 

persons directly responsible for managing 

compliance with the categorical Pretreatment 

Standards under 40 CFR llll, I certify 

that, to the best of my knowledge and belief 

that during the period from llllllll 

llll, to llllllll, llll 

[month, days, year]: 

(a) The facility described as 

llllllll [facility name] met the 

definition of a non-significant categorical 

Industrial User as described in § 403.3(v)(2); 

(b) the facility complied with all applicable 

Pretreatment Standards and requirements 

during this reporting period; and (c) the 

facility never discharged more than 100 

gallons of total categorical wastewater on any 

given day during this reporting period. This 

compliance certification is based upon the 

following information: 

lllllllllllllllllllll

lllllllllllllllllllll

■ 14. Section 403.13 is amended by 

revising the first sentence of paragraph 

(g)(3) to read as follows: 

§ 403.13 Variances from categorical 

pretreatment standards for fundamentally 

different factors. 

* * * * * 

(g) * * * 

(3) Where the User has requested a 

categorical determination pursuant to 

§ 403.6(a), the User may elect to await 

the results of the category determination 

before submitting a variance request 

under this section. * * * 

* * * * * 

■ 15. Section 403.15 is revised to read 

as follows: 

§ 403.15 Net/gross calculation. 

(a) Application. Categorical 

Pretreatment Standards may be adjusted 

to reflect the presence of pollutants in 

the Industrial User’s intake water in 

accordance with this section. Any 

Industrial User wishing to obtain credit 

for intake pollutants must make 

application to the Control Authority. 

Upon request of the Industrial User, the 

applicable Standard will be calculated 

on a ‘‘net’’ basis (i.e., adjusted to reflect 

credit for pollutants in the intake water) 

if the requirements of 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] 

■ 16. Appendix A to part 403 is 

removed and reserved. 

■ 17. Appendix G to part 403 is 

amended as by revising Footnote 1 to 

Table I to read as follows: 

Appendix G to Part 403—Pollutants 

Eligible for a Removal Credit 

I. Regulated Pollutants in Part 503 Eligible for 

a Removal Credit 

* * * * * 

1 The following organic pollutants are 

eligible for a removal credit if the 

requirements for total hydrocarbons (or 

carbon monoxide) in subpart E in 40 CFR 

Part 503 are met when sewage sludge is fired 

in a sewage sludge incinerator: Acrylonitrile, 

ldrin/Dieldrin(total), Benzene, Benzidine, 

Benzo(a)pyrene, Bis(2-chloroethyl)ether, 

Bis(2-ethylhexyl)phthalate, 

Bromodichloromethane, Bromoethane, 

Bromoform, Carbon tetrachloride, Chlordane, 

Chloroform, Chloromethane, DDD, DDE, 

DDT, Dibromochloromethane, Dibutyl 

phthalate, 1,2-dichloroethane, 1,1- 

dichloroethylene, 2,4-dichlorophenol, 1,3- 

dichloropropene, Diethyl phthalate, 2,4- 

dinitrophenol, 1,2-diphenylhydrazine, Dinbutyl phthalate, Endosulfan, Endrin, 

Ethylbenzene, Heptachlor, Heptachlor 

epoxide, Hexachlorobutadiene, 

Alphahexachlorocyclohexane, Betahexachlorocyclohexane, 

Hexachlorocyclopentadiene, 

Hexachloroethane, Hydrogen cyanide, 

Isophorone, Lindane, Methylene chloride, 

Nitrobenzene, N-Nitrosodimethylamine, NNitrosodi-n-propylamine, 

Pentachlorophenol, Phenol, Polychlorinated 

biphenyls, 2,3,7,8-tetrachlorodibenzo-pdioxin, 1,1,2,2,-tetrachloroethane, 

Tetrachloroethylene, Toluene, Toxaphene, 

Trichloroethylene, 1,2,4-Trichlorobenzene, 

1,1,1-Trichloroethane, 1,1,2-Trichloroethane, 

and 2,4,6-Trichlorophenol. 

* * * * * 

[FR Doc. 05–20001 Filed 10–13–05; 8:45 am] 

BILLING CODE 6560–50–P