Citation: 51 Fed. Reg. 21454 1986

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Federal Register / Vol. 51, No. 113 / Thursday, June 12, 1986 / Proposed Rules

ENVIRONMENTAL PROTECTIONAGENCY

40 CFR Parts 122 and 403

[FRL 2950-31

Water Pollution; General PretreatmentRegulations for Existing and NewSources

AGENCY: Environmental ProtectionAgency.ACTION: Proposed rule.

SUMMARY: The Environmental ProtectionAgency (EPA) today is proposingrevisions to the General PretreatmentRegulations (40 CFR Part 403). Theproposed modifications are intended toclarify existing regulations; respond torecommendations of the PretreatmentImplementation Review Task Force(PIRT); and conform the pretreatmentregulatibons, where appropriate, to theNational Pollutant DischargeElimination System (NPDES] permitregulations (40 CFR Part 122), andchanges thereto published September 26,1984 (49 FR 37998).DATES:.Comments must be received onor before August 11, 1986.ADDRESS: Comments should beaddressed to Hans I. E. Bjornson,-Permits Division (EN-336),Environmental Protection Agency, 401 MStreet, SW., Washington, DC 20460. Thesupporting information and allcomments on this proposal will beavailable for inspection and copying atthe EPA Public Information ReferenceUnit, Room 2402. The EPA publicinformation regulation (40 CFR Part 2)provides that a reasonable fee may becharged for copying.FOR FURTHER INFORMATION CONTACT:George E. Young, Permits Division (EN-336), Environmental Protection Agency,401 M Street, SW., Washington, DC20460, (202) 475-9539.SUPPLEMENTARY INFORMATION:

I. BackgroundII. Proposed Changes

A. Pretreatment Standards andRequirements1. Calculation of Equivalent Mass andConcentration Limits2. Centralized Waste Treatment3. Local Limits4. Combined Wastestream Formula5. Prohibition on Dilution

B. POTW Pretreatment ProgramRequirements1. Deadline for Program Approval-Newly Required POTW PretreatmentPrograms2. POTW Program Requirements-Remedies3. Modification of Approved POTWPretreatment Programs

C. POTW and State Pretreatment ProgramApproval1. POTW Pretreatment Program andRemoval Credit ApplicationSubmission-Approval Authority Action2. Approval of StatePretreatmentPrograms-State Regulations3. Approval Procedures for POTWPretreatment Programs and Authority toGrant Removal Credit

D. Reporting and Compliance Monitoring1. Baseline Monitoring Report-Deadlinefor New Sources2. Measurement of Pollutants3. Sampling Techniques4. Annual POTW Reports5. Signatory Requirements for IndustrialUser Reports6. Reporting Requirements-Extension toNon-Categorical Discharges7. Notification of Slug Loadings8.90-Day Compliance Report9. Industrial User Compliance Reports-Monitoring Requirements10. Self-Monitoring vs. POTW Monitoring11. Notification by Industrial Users ofChanged Discharge

E. Miscellaneous1. New Source Criteria2. New Source Compliance Deadline3. Variance for Fundamentally DifferentFactors4. Net-Gross Calculations5. Upset6. Bypass

III. Executive Order 12291IV. Paperwork Reduction ActV. Regulatory Flexibility ActVI. Judicial Review of Provisions Not

AmendedVII. EPA Documents Cited in This Notice

I. Background

On June 26, 1978, EPA promulgatedthe General Pretreatment Regulations,which established mechanisms andprocedures for controlling theintroduction of wastes from industryand other non-domestic sources intopublicly owned treatment works(POTWs) (43 FR 27736). Followingpromulgation, several parties broughtactions in Federal court challenging -'these regulations. Pursuant to the termsof a settlement agreement entered intoby EPA and some of the parties to thelitigation, the Agency promulgatedamendments to the GeneralPretreatment Regulations for Existingand New Sources on January. 28, 1981 (46FR 9404).

Several provisions of the amendedregulations were subsequentlychallenged. In National Association ofMetal Finishers et al. v. EPA, 719 F.2d624 (3d Cir. 1983), the United StatesCourt Of Appeals for the Third Circuitupheld the removal credit provision(§ 403.7) and the combined wastestreamformula (§ 403.6(e)) in their then existingforms. The Court also remanded to EPAthe definitions of "pass through,""interference," and "new source" for.

further action consistert with the CleanWater Act (CWA) and the Court'sopinion. Essentially, the Court held thatthe definition of "interference" mustprovide for liability by the industrialuser only when the user causedinhibition or disruption of the treatmentprocesses. The court ruled that the.definition of "pass through" had to berepromulgated according to the requiredprocedures of the AdministrativeProcedures Act; the Court did not ruleon the definition itself. The Court alsoheld that the definition of "new source"was inconsistent with the CWA becauseit excluded sources that would beconsidered new sources under the Act.

On February 10, 1984, the Agencypublished a final rule in the FederalRegister that suspended the definitionsof "new source" (§ 403.3(k)),"interference" (§ 403.3(i)) and "passthrdugh" (§ 403.3(n)). The "new source"definition was published as a final ruleon July 10, 1984 (49 FR 28058). Newdefinitions of "interference" and "passthrough" were proposed by EPA on June19, 1985 (50 FR 25526).

The Court in the NAMF decision alsoheld that Section 301(1) of the CleanWater Act prohibited EPA from grantingfundamentally different factorsvariances for toxic pollutants coveredby categorical pretreatment standards.The Agency petitioned the SupremeCourt to review this aspect of the ThirdCircuit's decision. On February 27, 1985,the Supreme Court overruled the ThirdCircuit's decision on FDF variances(Chemical Manufacturers Assn., et al. v.Natural Resources Defense Council, No.83-1013 (1985)). Under the SupremeCourt's decision, EPA has authority togrant FDF variances for toxic pollutantlimits. Consistent with that decision, theAgency has reinstated the FDF provision(§ 403.13) in its original form (50 FR38809, September 25,1985).

Subsequent to the NAMF decision,EPA promulgated revisions to theremoval credit provision (§ 403.7) tosimplify the procedures for documentingconsistent removal and obtainingremoval credits. These revisions werepublished in the Federal Register onAugust 3, 1984 (49 FR 31212). Theamended provision was recently struckdown by the United States Court ofAppeals for the Third Circuit in NaturalResources Defense Council, Inc. v. EPA,No. 85-3012 (3d Cir. 1986). EPA isreviewing this decision to determine theappropriate response.

Today's proposed revisions areintended to accomplish several goals.They make a number of substantivechanges to address short-comings in theexisting regulations that have been

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discovered since the January 28, 1981,pretreatment amendments were*promulgated. The revisions also respondto recommendations of the PretreatmentImplementation Review Task Force(PIRTI. PIRT was established, in .accordance with the Federal AdvisoryCommittee Act, by 'the Administrator ofEPA on February 3, 1984, to provide theAgency with recommendations onimproving implementation of thenational pretreatment program. TheTask Force, which was made up ofrepresentatives of POTWs, States,industry, environmental groups and EPARegional Offices, arrived at itsrecommendations through consensusamong the members after extensivediscussion. PIRT issued its InterimReport to the Administrator on June 12,1984. The Task Force's Final Report tothe Administrator was issued onJanuary 30,1985. Recommendationswere made in the areas of programsimplification and clarification.enforcement, resources, and roles andrelationships within the nationalpretreatment program. Therecommendations generally focus on theneed for guidance, training programs.technical assistance. policy statementsand regulatory amendments in theseareas.

Finally, the revisions will makeseveral provisions of the pretreatmentregulations compatible, whereappropriate, with their counterparts inthe NPDES regulations (40 CFR Parts122, 123. 124, and 125). Consistentregulations are generally appropriatebecause in many cases the logic.supporting the NPDES provision isequally applicable in the prelreatmentcontext. EPA promulgated finalrevisions to the NPDES regulations onSeptember 26,1984 (49 FR 38049).

There are twenty-eight amendmentsbeing proposed today. These fall intofive major areas: (1) Pretreatmentstandards and requirements, (2) POTWpretreatment program requirements, (3)POTW and State pretreatment programapproval procedures, (4) reporting andcompliance monitoring, and (5)miscellaneous provisions. The overallimpact of the proposal is to make theregulations easier to understand, reduceburdens on the regulated community,and generally improvetheimplementation of the nationalpretreatment program.

The proposed revisions do not alter .the existing regulatory framework. Norwill they affect the ability of POTWs orindustrial users to comply-in a timely.manner with existing or forthcomingpretreatment standards and other,,regulatory requirements. General

prohibitive discharge standards,specified in § 403.5 of the regulations,are unchanged. Similarly, categoricalpretreatment standards aie.unaffectedby this proposal. As''efor6emostmajorPOTWs are still required to develop andimplement-local -pretreatment programs,pursuant to § 403.8 and § 403.9, to '

ensure that non-domestic users of themunicipal system comply withapplicable pretreatment requirements.Approval -of State requests for authorityto administer the pretreatment programwill also continue as before. The basicreporting requirements of the regulations(e.g., § 403.12) remain intact.

II. Proposed Changes

A. Pretreatment Standards andRequirements

1. Calculation of Equivalent Mass andConcentration Limits (40 CFR 403.6[c))

a. Existing rule. National categoricalpretreatment standards establish limitson pollutants discharged to POTWs bycertain industries. In some cases, thecategorical standards set limitations interms of pollutant concentration. Otherstandards establish limitations in termsof both concentration and pollutantmass, which is established on the basisof production (i.e., x pounds of pollutantper unit of production). However, incertain categorical standards EPA hasset only production-based masslimitations. The purpose of suchlimitations is generally to reflect the useof flow reduction as part of thetechnological model for establishing thestandard.

Production-based limitations areadministratively more difficult for the'Control Authority to implement than,concentration limitations. To test forcompliance with a concentration-basedstandard, one need only take awastewater sample, measure theconcentration of the regulatedpollutant(s) -and compare this result tothe standard. ,For the production-basedstandards, 'however, one must alsomeasure the flow of the regulated waste-stream to translate the concentrationmeasurement into a pollutant mass -anddetermine the discharger's productionrate at the time of sampling. The mostdifficult step in determining whether anindustrial user is in compliance with aproduction-based standard, according toPIRT. is determining the applicableproduction rate. This rate will vary overtime, and in some 4ndustries will evenfluctuate daily.

For direct dischargers, the NPDESregulations simplify the implementationof production-based mass effluentlimitations guidelines by requiring thatthe permit limits be based upon a ....

reasonable measure of the actualproduction. Generally, this should be along-term average of the facility'sproduction. The permit (or a fact sheetdescribing the basis for the permit) mustspecify the production level that wasusedto derive the permit limit. Thisprocess establishes a single mass limitthat the permittee must meet, eventhough production and flows may varyover time. .(However, if production andflows change significantly, the permitteemust report these changes and thepermitting authority may modify thepermit accordingly. See 40 CFR 122.42(b)and 122.62(a)(1).)

The current pretreatment regulationscontain no specific provisions relating totranslation of production-basedlimitations into -mass or concentrationlimits. Thus, an industrial user'scompliance is determined based uponthe categorical standard -itself sinceusers must at all times meet thestandard.To determine compliance withproduction-based standards, theproduction and flow at the time ofcompliance evaluation must also bedetermined (since any monitoringresults would be expressed in terms ofconcentration)..

b. Proposed change. PIRT stated thatPOTWs would like to translateproduction-based categoricalpretreatment standards -into enforceablemass limits. Many POTWs would alsolike to convert these mass limits intoequivalent concentration limits. Suchconversions simplify complianceevaluation as noted above. However,PIRT indicated that POTWs are unsureof whether this is allowed under thepretreatment regulations, and, to theextent allowed, of the methodology tobe used and the legal status of theequivalent limits. As explained in EPA'sGuidance Manual for the Use ofProduction Based CategoricalPretreatment Standards and theCombined Wastestream Formula (1985),the existing regulations allow ControlAuthorities to calculate equivalentconcentration (or mass) limits as a toolfor determining compliance withapplicable categorical standards.However, an industrial user'scompliance with such equivalent limitsdoes not relieve the user of the legalrequirement to be in compliance withthe production-based standard itself.Thus, the -equivalent mass andconcentration limits do not shield theindustrial user from direct EPA or Stateenforcement of the production-basedstandard. Obviously, this undercuts thebenefits of the equivalent limits.

Based on PIRT's recommendation,EPA isproposing today to revise the

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pretreatment regulations to change thelegal status of equiivalept concentrationor mass limits calculated by ControlAuthorities from production-basedcategorical standards. Today's proposaladds a new paragraph to §403.6(c)stating that these equivalent limits,when properly calculated usingprocedures included in today's proposal,will be deemed pretreatment standardsfor the purposes of section 307(d) of theClean Water Act and shall beenforceable as such. In addition, theproposal specifically states thatindustrial users will be required to'comply with the equivalent limits, whenestablished, in lieu of the promulgatedCategorical standards from which theselimits were derived. As a result,industrial users that are in compliancewith equivalent concentration or masslimits calculated in accordance with theprocedures specified in today's proposalwill not be subject to direct EPAenforcement actions based on theproduction-based standard itself. Ratherthe equivalent limits will be federallyenforceable. The proposed rule willsupport the efforts of POTWs toestablish such limits as part of theirapproved pretreatment programs.

As part of today's proposal, EPA isalso setting forth in the regulations theprocedures to be used by ControlAuthorities to calculate equivalentconcentration and mass limits forproduction-based categorical standards..To convert a production-based standardto a mass limitation, the limit in thestandard is multiplied by an appropriateproduction rate. Consistent with 40 CFR122.45(b)(2) of the NPDES regulations,this production rate is based not uponthe designed production capacity butrather upon a reasonable measure of thefacility's actual long-term average dailyproduction (e.g., the daily averageduring a representative year). This is to'ensure that faailities operating belowthe full capacity are treating theirwastewater to the extent required by theClean Water Act's technology-basedpretreatment requirements, rather thanreducing their level of treatment due tounused production capacity. Such anapproach also ensures equity amongfacilities in the same industry,regardless of their design capacity.

To arrive at a concentrationlimitation, this mass limitation is furtherdivided by the industrial user's averagedaily flow rate of process Wastewaterr6gulated under the standard. Like theproduction rate,' this flow irate'must bebased on a reasonable measure of theactual long-term average daily flow ofthe regulatedprocess wastewater. Thesame production and flow figures'should

be used for calculating both thmaximum.daily and'maximumaverage (or 4-day average) limExamples of these calculationsbelow.

Method No. 1. EquivalentMass Limits.

Standards:Daily maximum ........................ 004 kg Cu/tMaximum monthly average....002 kg Cu/t

Conditions:Production ............................... 500 ton of p

month averFlow ......................................... Not Applhcablk

Calculations:.004 kg Cu/too x 500

ton/day = 2 kg Cu/day...002 kg Cu/ton x 500

ton/day=1 kg Cu/day.Equivalent Limits:

Daily maximum ....................... 2 kg Cu/day.Maximum monthly average. I kg Cu/day.

Method No. 2. Equivalent Concentration LimitStandards:

Daily Maximum ....................... 004 kg Cu/Maximum Monthly Average.. .002 kg Cu/

Conditions:Production ............................... 500 ton of p

month averFlow ................................ 2 million gal

average,,Calculations:

.004 kg Cu/ton x 500 ton/day

.2 mil gal/day x 3.78'

.002 kg Cu/ton x 500 ton/day

.2 mil ga./day x 3.78'

Equivalent Umits:Daily Maximum ...................... 2.6 mg/I Cu.Maximum Montlhy Average.. 1.3 mg/I Cu.

* This factor converts kg/rl gal'to mg/I.'

Today's proposal also requiindustrial user to immediatelyControl Authority if either theproduction or flow rate changesubstantially. Periodic fluctuashould not be reported under trequirement; these variationsfactored into the developmentcategorical standard. Howevesignificant additions to or redthe production level that willthe facility's production overtterm must be reported. The CAuthority will then adjust themass and concentration limitsthe changes. , :

EPA is also proposing to reiperiodic compliance report into require that for industrial usubject to production-based cpretreatment standards, the creports described in that secti

emonthlyitations.appear

include the user's actual averageproduction rate for the reporting period.This is to ensure that the ControlAuthority has up-to-date productioninformation.

2. Centralized Waste-Treatment (40 CFR403.6(e))

a. Background. The centralizedtreatment of industrial wastewater hasreceived increased attention recently.

on of product. The number of centralized waste'on of product, treatment (CWT) facilities also hasroduct/day, 12. increased as compliance deadlines fora ge. categorical pretreatment standards are

reached. Therefore, it is appropriate toprovide the public with a statement ofEPA's policy for regulating CWTfacilities. Today's preamble will discussthe requirements applicable to CWTfacilities and the regulatory changesproposed by the Agency to clarify theserequirements.

Typically, to comply with CWArequirements a plant will install the

ton of product. necessary control system(s) on site toton of product, treat its process wastewater prior toroducl/day, 12. discharging the effluent either directly

12mo. hinto receiving waters or indirectly/day, 12.mont through a POTW. For large industrial

concerns, on-site treatment is likely tobe the most cost-effective treatmentalternative. However, due to

=2.6 mg/ construction and operation andmaintenance costs, on-site treatmentmay not be preferable for some smallerplants generating small amounts of

='1.3 mg/I process wastewater. CWT represents analternative approach to on:sitetreatment, particularly for this lattergroup.-CWT facilities are constructed totreat industrial waste from multiplecontributors. Instead of constructingfacilities to provide on-site treatment ofits effluent, a plant conveys itswastewater through pipes, by.truck, in

res the drums, or by some othermeans to anotify the CWT facility. The CWT facility treatslong-term the wastewater, frequently ines conjunction with other compatibletions wastes, using predominantly the same

his technology as would be used had theare individual industrial contributorof the established treatment facilities on-site.r, The CWT facility then discharges theuctions in treated wastewater to either a receivingrepresent stream (subject to NPDES permittinghe long- requirements) or to. a POTW (subject toontrol pretreatment requirements).equivalent Several factors have contributed toto reflect the growing interest in CWT. First, used

appropriately, CWT can result invise the. considerable cost savings over the§ 403;12(e) construction and operation and.sers maintenance of on-site treatment atategorical individual plants. Second, CWTompliance facilities are gen'erally operated, by,.on must professional waste handlers and..

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thereforeoffer the possibility of moreeffective-treatment' and management ofindustrial users' waste. Finally, CWToffers increased potential for resourcerecovery, which often requires'largevolumes-of waste in, order to becost-effective. Of course, the full realization,of these benefits is contingent uponassuring that only compatible Wastesare combined at CWT facilities.

A'CWT facility that is a directdischarger is required to have an NPDESpermit. The permit must impose allapplicable permit requirements undersections 301 and 402 of the Act,including technology-basedrequirements based on best availabletechnology (BAT) and best conventionalcontrol technology (BCT). The Agencycan issue the permit either to the CWTfacility alone or jointly to the CWT andone or more of its contributors. InDecision of the General Counsel No. 43(June 1976), the Agency discussed itsstatutory authority to provide in anNPDES permit that a directlydischarging CWT facility and itsindustrial users are jointly and severallyresponsible for compliance with' theprovisions of a joint NPDES permitissued to all of them. In that Decision,EPA also determined that it may includemonitoring requirements at both theCWT facility and at individual or jointwastestreams upstream of the CWTfacility, and require each industrial userto provide information on productionrates for each product and consumptionrates for each raw material. TheDecision noted that where an industryuses a separate contracting facility totreat its wastes, that treatment choicewould not insulate the industry from therequirements of the' Act.

The Agency is treating CWT facilities.that are indirect dischargers (i.e., thosedischarging wastewater to a POTWJanalogously. These CWT facilities areindustrial users of POTWs and aresubject toall applicable pretreatmentstandards and requirements.Accordingly, CWT facilities are subjectto the General Pretreatment Regulations,categorical pretreatment standards andlocal pretreatment standards. (It shouldalso be noted that CWT facilities thataccept wastes defined as 'thazardouswastes" under 40.CFR Part 261 may be'subject to additional requirements underthe Resource Conservation and

.Recovery Act ("RCRA") and.implementing EPA regulations.)"Industrial users must comply with'anycategorical standard(s) applicable to thewastes they treat. Forexample, if'the :CWT facility handles wastbwat&s-fr6ma contributor subject to the '

electroplating categorical pretreatment-

standard, the'CWT facility's dischargeof these wastewaters would also, besubject,to'this standard. if thecontributor were a member of, forinstance, the "electroplating of commonmetals" subcategory, the limitedparameters would include, among -

others, cyanide, lead and cadmium.The Agency's treatment of indirect

discharging CWT facilities derives fromthe Clean Water Act. In section 307(b),Congress directed EPA to promulgatepretreatment standards "to prevent thedischarge of any pollutant throughtreatment works ...which arepublicly owned, which pollutantinterferes with, passes through, or isotherwise incompatible with suchworks." The categorical pretreatmentstandards promulgated by EPA apply tothe wastewaters generated by certainindustrial processes and discharged to aPOTW, regardless of whether they arefinally discharged from the industrial.generator or through some intermediateconduit. In other words, it is not bywhom these wastewaters are ultimatelydischarged to the POTW, but rathertheir nature and origin that determinesthe applicability of EPA's categoricalstandards.. If all the contributors to a CWTfacility are covered by a singlecategorical pretreatment standard, thenthe CWT facility must meet the limitscontained in that standard. Where thatstandard is production-based, the limit.would be derived using a reasonablemeasure of the production from all thecontributors. It is'likely, however, that aCWT facility's customers will includemembers of more than one industrialcategory covered by categorical.standards and/or "non-categorical"industrial users (i.e., those not currentlysubject to federal categoricalpretreatment standards). In such cases,CWT facilities, like all other industrialusers that mix process effluent regulatedby various categorical standards prior totreatment or mix process effluentregulated by-a categorical standard withwastewater that is not subject to thosestandards prior to'treatment, must -calculate an adjusted pretreatmentstandard using the combinedwastestream formula (see § 403.6(e)).This ensures that the treatment of'combined wastes performed at a CWT.facility is equivalent to on-site treatmentof the same combined wastes atequivalent integrated industrialfacilities. It also protects against 'dilution asa substitute for treatment ofcombined.wastewater flows. (See, 46 FR9419-9423, Januar y 28, 1981). For a moredelailed discussion of 'how to use the'combined wastestreamformula, see

EPA's Guidance Manual'for the* Use ofProduct ion-Based CategoricalPretreatment Standards and theCombined Wastestream Formula (1985).

A1 pliaon of the combined .wastestream formula requires severalsteps whena.CWt faciliiy acceptswastewater from an industrialcontributor regulated by a categoricalpretreatment standard expressed only interms of mass of pollutant per unit ofproduction (i.e., a "production-based"standard). The CWT facility.must obtainsufficient production-and wastewaterflow information to calculate anadjusted concentration or massstandard for each contributor. Allapplicable limits must be converted tothe same terms. The procedure forcalculating concentration or mass-per-day limits from production-basedstandards has been described above inthis preamble. (See also EPA's GuidanceManual for the Use of Production-BasedCategorical Pretreatment Standards andthe Combined Wastestream Formula,mentioned above, which addresses theconversion of production-basedstandards to equivalent mass-per-day orconcentration limits.) The adjusted limitshould be used in the combinedwastestream formula to calculate theapplicable standard for the CWT'sdischarge. If the industrial user sendsonly a portion of its waste to the CWT

.facility, then the CWT facility mustcalculate the portion of the adjustedstandard allocable to the CWT facility.Generally, this should be a flow-proportioned adjustment.

Although the wastewaters acceptedby CWT facility for treatment' can varyover time, application of the combinedwastestream formula will notn ecessarily mean that these facilitieswill be required to recalculate theapplicable limits on a daily basis. CWTfacilities need to know in advance thenature of the wastewaters they areaccepting in order to ensurecompatibility with their treatmentsystems. EPA assumes that most CWTfacilities will have an established coreof customers regularly sending in theirwastewat'rs for treatment, and.thattherefore, the composition of incomingwastewaters will generally be fairly .stable. The Agency invites comments onwhether this reflects actual practice.Moreover, EPA does not expect CWT

* facilities to recalculate their limits everytime'there is any change in their'incoming wastewaters. Rather, only'whenihereare substantial changes inthe make-up'.of wastewaters being '"-

accepted for'treatment by'the CWT•facility will'thelimitsn eed to be"' "recalculated. , I .

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Choosing a CWT facility for'treatmentof its wastewater does not necessarilyrelieve the industrial user ofresponsibility for those wastes; itgenerates. NPDES Decision of theGeneral Counsel No.. 43 explained the.Agency policy that industrialcontributors to a privately owned,directly discharging CWT facility maybe held jointly and sever ally liable forthe CWT facility's noncompliance witha single permit issued to the CWTfacility and its industrial contributors, tothe extent! that the noncompliance isattributable to wastes from suchindustrial contributors. Similarly, a plantsending its wastewater to an indirectlydischarging CWT may be heldresponsible for the proper treatment ofits wastes.. This includes compliance bythe CWT facility with pretreatmentstandards,. including categoricalpretreatment standards, the prohibitivedischarge standards in § 403.5(a) and(b), and local limits developed. under§ 403.5(c). Normally, EPA and the Stateswill hold the CWT facility itself liablefor any violation. However; where thisis not adequate, the contributors can beincluded.

A question has arisen as to whetheron-site treatment facilities used forclean-up actions taken pursuant to the.Comprehensive. EnvironmentalResponse, Compensation and LiabilityAct of 1980 ("CERCLA") and dischargingto POTWs are CWT facilities, forpurposes of.these regulations. Althoughthese CERCLA treatment facilities maytreat industrial wastes that wereinitially generated by processescurrently covered under one or more.categorical pretreatment standards, it,will in most cases not be possible toidentify the wastes' origins. Even where.%this is possible, it may be: difficult todetermine relative quantitiesofcategorical and non-categorical wastes.The combined wastestream formula isintended to apply where discrete,'identifiable discharges- are combinedprior to treatment. It does not apply tosituations where categorical wastescannot be identified and quantified.However, where the- treated waste issubsequently discharged to a POTW,other pretreatment standards, such asthe prohibitive discharge standards in§ 403.5 (a) and (b) and any local limitsestablished under § 403.5(c), are-applicable. In addition, if discretewastestreams contributing to the wastecan be identified, categorical standardsand the'combined wastestream formula,apply as- well.

Under EPA's recent policy entitled,"CERCLA ComplianceWith Other"Environmental Statutes," published at

50 FR 47946 (November 20; 1985),requirements of Federal. environmentaland public health laws other thanCERCLA that are "applicable' or"relevant and appropriate" to CERCLAresponse actions will be attained orexceeded except in certain limited'circumstances. Under this policy,."applicable" requirements are those:Federal requirements that would be;legally applicable to a response action ifthe action were not undertaken pursuantto CERCLA. As noted above, although it'will often be impossible to apply thecombined wastestream formula toCERCLA response actions, theprohibitive discharge standards in§ 403.5 (a) and (b), and any local limitsestablished under § 403.5(c) would applyto' these actions but for the fact that theyare undertaken pursuant to that statute.Therefore, these standards are"applicable," and must be attained orexceeded except in the limitedsituations enumerated in the policy.

b. Existing rule. As discussed above,indirectly discharging CWT facilities are"industrial users" under existingregulatory language and. definitions.They are, therefore, subject to theGeneral Pretreatment Regulations,categorical pretreatment standards andlocal pretreatment standards..As withother industrial users, the Agency hasapplied the combined wastestreamformula to determine applicable limitswhere CWT facilities treat differentwastes. Accordingly, the Agency has notissued specific regulatory languageimposing separate requirements onthese facilities.

c. Proposed change. In order to furtherpromote public awareness of EPA'sposition on the regulation of indirectdischarging CWT facilities, the Agencyis proposing to add a paragraph (4) to§ 403.6(e) of the pretreatmentregulations stating that the combinedwastestream formula is applicable to:CWT facilities when calculatingdischarge limits for the facility. Asdiscussed above, this proposal does notchange existing requirements but merelyclarifies their application. Since it isimportant that a CWT facility beadequately apprised of the wastes it isreceiving, EPA is also proposing to addspecific regulatory language requiringthat industrial contributors provide tothe CWT facility information on thenature of their processes (includingrelevant production'and flow rates,where necessary), volume of wastes,pollutant constituents, and anycategorical pretreatment standardsapplicabe to the contributor's.processes. This information is necessaryfor the CWT'facility to apply the

combinediwastestream formula, andthus determine effluent limits. TheAgency solicits comments on- whetherother information is necessary for suchan analysis and on whether EPA and/orthe. States should develop a form tostandardize the information provided toCWT facilities. (For transported wastesclassified as "hazardous" under 40 CFRPart 261, EPA regulations alreadyrequire the preparation of a "UniformHazardous Waste Manifest" identifyingthe waste, its volume and itsdestination. However, CWT facilitiesneed additional information (e.g.,applicable categorical standards,production information, etc.) in order tocomply with applicable pretreatmentstandards and requirements.) To ensure.that industrial contributors to CWTfacilities have the same confidentialityprotections as other industrial users,EPA is also proposing: to add a newparagraph (n)(4) to- § 403.12. This newparagraph would require industrial,contributors to maintain, and makeavailable to EPA, the State, and thePOTW, records of the information theysubmit to the CWT facility under thenew § 403.6(e)(4) being proposed today.Any of this information ultimatelysubmitted to these governmental entitieswould. be covered under J 403.14, whichsets forth the applicable confidentialityrequirements.

d. Alternatives. Over the past severalyears, a number of alternativeregulatory schemes have been suggestedfor controlling the discharges from CWTfacilities. One such alternative is thepromulgation of specific categoricalstandards for CWT facilities. However,it may not be possible to, characterizeCWT facilities and thus to establishappropriate uniform national limitssince the types of wastes to be treatedcould vary not only from facility tofacility, but also from time to time at thesame facility. This alternative could alsoresult in years of delay in obtainingtreatment of discharges from CWTfacilities.

Another alternative is to rely solely onPOTW-developed local limits to regulateCWT facilities. This could be doneeither through local limits applicable toall of the POTW's industrial users, or byestablishing limits specificallyapplicable to CWT facilitiescontributing to the POTW. Bothapproaches would provide considerableleeway at the local level to take accountof exact waste loading characteristicsand POTW treatment capabilities.However, they could also effectivelyallow industries in categories coveredby national pretreatment standards toavoid compliance with categorical

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standards simply by sending theirwastewaters to a CWT facility. Such aninterpretation is inconsistent with thetechnology-based treatmentrequirements of the Act.

A third alternative is to control eachpollutant discharged by.a CWT facility.by applying the most stringent numericallimit for the pollutant taken from all thecategorical standards applicable to thewastes received by the facility.However, this alternative may be toostringent in certain cases where theapplicable limit is determined by a verysmall volume of wastewater.

EPA solicits comments on thesealternatives and invites suggestions forother possible approaches. the Agencyalso requests additional comments onthe following: (1) The types and volumesof wastes received by CWT facilitiesthat discharge to POTWs; (2) the typesof contractual arrangements enteredinto by these facilities and theircontributors (e.g., long- or short-term);(3) whether, and if so how often, wastesare accepted from contributors withwhom the CWT facility does not have acontractual agreement; (4) the type ofinformation provided by the contributorto the CWT facility; and (5) the extent,type and frequency of monitoringperformed by the CWT facility onincoming wastes.

3. Local Limits (40 CFR 403.8(f))'

a. Background. The pretreatmentprogram is intended to prevent theintroduction to POTWs of pollutantsthat pass through or interfere with thetreatment works. One means to achievethis purpose is through categoricalpretreatment standards promulgated byEPA under section 307(b) of the CleanWater Act (CWA). These standards aretechnology-based minimumrequirements, each applicable to adifferent industry category. However,categorical standards are intended toapply to a broad group of dischargers.Because they are not site-specific, andbecause they only apply to dischargersin selected industrial categories, thesestandards do not necessarily prevent allproblems caused by industrialdischarges that might occur at aparticular POTW. Therefore, § 403.5(c)requires POTWs to develop additionallimits where necessary to ensure thatthe objectives of the pretreatmentprogram are met. Section 403.5(c)(1)provides that POTWs required toestablish local pretreatment programsunder § 403.8(a) must develop andenforce specific limits to implement thegeneral prohibitions against passthrough and interference in § 403.5(a)and the specific prohibitions listed in§ 403.5(b). As stated in the preamble to.

the 1981 amendments to the GeneralPretreatment Regulations:

These limits are developed initially as aprerequisite to POTW pretreatment programapproval and are updated thereafter asnecessary to reflect changing conditions atthe POTW. The limits may be developed on apollutant or industry basis and may be'included in a municipal ordinance which isapplied to the affected classes. In addition, oralternatively, the POTW may developspecific limits in the facility and incorporatethese limits in the facility's municipally-.issued permit or contract. By translating theregulations' general prohibitions into specificlimits for Industrial Users, the POTW willensure that the users are given a clearstandard to which they are to conform.

POTWs not required to develop localpretreatment programs must alsoestablish local limits if interference orpass through has occurred at the POTWand is likely to recur (§ 403.5(c)(2)).

The development of local limitsinvolves three basic steps. The POTWmust first determine which, if any, of thepollutants contributed to it by itsindustrial users have a reasonablepotential for passing through orinterfering with the POTW,contaminating the POTW's sludge, orjeopardizing the health or safety of thePOTW's workers. In making thisdetermination, a POTW should take abroad look at the types of pollutantsbeing discharged and not limit itself topollutants regulated in its NPDESpermit, regulated under establishedsludge criteria, or known to haveinterfered with plant operations orthreatened worker health or safety.Local limits are intended to bepreventative as well as reactive.Therefore, the POTW should, forexample, consider overall impacts onsludge quality to protect against likelyrestrictions on sludge use resulting fromfuture standards. Similarly, a POTWshould consider State water qualitystandards, even though these may notyet have been incorporated in thepermit. Although the POTW need not setlimits on all pollutants that may someday cause pass through or interference,they should consider whether locallimits on such pollutants areappropriate.

For each of the pollutants the POTWconcludes may be of concern, the POTWmust then determine, using the bestinformation available, the maximumloading that can be accepted by thetreatment facility without the .occurrence of pass through; interferenceor sludge contamination. A procedurefor performing this analysis is providedin the EPA Guidance Manual for POTW.Pretreatment Program Development(October 1983). Once maximum

allowable headworks loadings aredetermined for each of the pollutants ofconcern, the POTW must implement asystem of local limits to assure thatthese loadings will not be exceeded. ThePOTW may implement its local limits ina variety of ways, such as uniformmaximum allowable concentrationsapplied to all significant industrialdischargers, or maximum massdischarge limits on certain majordischargers. The POTW may select anymethod of control, so long as theselected method is enforceable andaccomplishes the required objectives.When setting these limits, the POTWmay also consider whether to add asafety factor to the maximum loadsdetermined to be necessary to preventproblems. A safety factor would alsoallow for future additions of industrialcontributors without the need forreadjusting the local limits (which mayentail a new headworks analysis). EPAstrongly encourages POTWs toincorporate such a safety factor and to.reserve some capacity for industrialexpansion.

There.is no single method of settinglocal limits which is best in allsituations. The EPA Guidance Manualfor POTW Pretreatment ProgramDevelopment mentioned abovediscusses several alternative methodsthat a POTW might use to allocate theacceptable pollutant load to industrialusers. The manual also provides anexample of the calculations a typicalPOTW would use to determine themaximum allowable headworksloadings for a pollutant and to allocatethat load to significant industrial users.

After local limits have been set, theymust be updated as necessary to reflectchanging conditions at the POTW suchas increased domestic wastewater flow,changes in the POTW's industrial userpopulation, or adjustments to thePOTW's maximum allowableheadworks loadings. Minor changes inthe amount of sanitary sewage enteringthe facility may not require an update ofthe limits. But any changes inwastewater contributions to the POTWthat could cause the local limits to beinadequate must result in a newanalysis of the pollutant loadings and, ifnecessary, modification of the locallimits.

In accordance with § 403.10(e) of theGeneral Pretreatment Regulations, someStates have assumed responsibility forimplementing State-,wide pretreatmentprograms in lieu of requiring POTWs todevelop individual local programs. Inthese States, the NPDES permits ofPOTWs that otherwise would have beenrequired to develop local pretreatment

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programs may need to be modified torequire the, development orlocal limitsas- provided in § 403.5(c)(1]. POTWs thatmay have recurring pass through orinterference problems are still requiredto develop local limits in such Statesunder §' 403.5(c)(2). Alternatively,, theState can perform. the required analysesat each of the POTWs that wouldnormally develop such limits andimplement the: appropriate local limitsnecessary to assure that the.goals of theprogram are achieved.. These limitswould then be enforced. in the- samemanner-as other pretreatmentrequirements, in accordance withproceduires included in the approvedState-run program. Where Statesassume-POTW responsibility forcarrying out pretreatment programrequirements, the Regional Offices ofEPA will monitor all aspects of'theState-run pretreatment program,including the development of locallimits, to ensure that the requirements ofthe national pretreatment program aremet.

Guidance on the development of locallimits is available from several sources,EPA's Guidance Manual for POTWPretreatment Program Development(October 1983), mentioned above,contains a detailed. description, withexamples, of the process of developinglocal limits. The Agency is currentlydeveloping additional technicalguidance for POTWs to supplement thelocal limits material now available inthat document. The Agency has also.developed a computer* program thatgreatly reduces the time required tocalculate the maximum allowableheadworks loading. The program also-.calculates industrial user limits. under anumber of optional. allocation methods,using data provided by the POTW. For-.additional information on this program,.contact Robert F. Eagen, Permits.Division (EN-336), EnvironmentalProtection Agency, 401 M Street, SW.,Washington, DC 20460, (2021-475-9529.

b4 Existing Rule. As discussed, § 403.5states when. specific locallimits must bedeveloped by POTWs. POTWs requiredunder § 403.8 to develop pretreatmentprograms must develop local limits toimplement the-general prohibitionsagainst interference and pass-through.irL§ 403.5(a) and the specific prohibitionslisted in § 4035(b). See. § 403.5[c)(1),

Section. 403.8(f) sets forth the requiredelements, of an approvable POTW , Ipretreatment program. That section .requires a- POTW seeking pretreatmentprogram. approval to demonstrate that ithas sufficient legal: authority to enforcelocal limits developed pursuant to§ 403.5(c), but does not explicitly make

the actual promulgation of such limits (ifneeded) a prerequisite to- local programapproval..

c.. Proposed change. Questions havearisen regarding whether POTWsrequired to develop pretreatmentprograms must develop any neededlocal limits prior to receiving programapproval. In the preamble to the 1981amendments to the General

- Pretreatment Regulations, EPA'statedthat."[local] limits, are developedinitially as a prerequisite to POTWpretreatment program. approval."However, the. regulations themselves arenot explicit on this point. Therefore, theAgency is proposing .today a revision, to,the regulations to clarify that thedevelopment of local limits (or ademonstration that they are notnecessary) is a prerequisite to POTWpretreatment program approval (and thecontinuing legal acceptability of a localprogram). The proposal will. add a newparagraph to the local programrequirements in § 403.8(f). As aminimum, all POTWs submitting localprograms must evaluate the need forlocal limits, as described above. Wherethe evaluation indicates that local limitsare needed to protect the treatmentworks against interference, pass throughor sludge contamination, the POTWmust develop appropriate limits beforeits program can. be approved. A POTWthat proposes to rely solely upon theapplication of the specific prohibitionslisted in § 403.5(b) and categorical

" pretreatment standards in lieu ofnumerical local limits shoulddemonstrate that: (1) It has determinedthat the industrial pollutants of concernwill not cause problems at :the treatmentfacility, (2) it has adequate resourcesand procedures for monitoring andenforcing compliance with theprohibitive discharge and categoricalstandards, and (3) full compliance withthe applicable categorical standards willmeet the objectives of the pretreatmentprogram.

When. a POTW is identified asrequiring. a pretreatment program, therequirement to develop such local limitsas are necessary will be incorporatedinto its. NPDES permit as part of therequirerent to develop a program.When the approved, program isincorporated, into the POTW's permit, arequirement that these local limits beupdated as necessary-will also beincluded.. Like. all other applicable,'pretreatment requirements, the failure to'develop (and update, as need'ed)necessary local limits Will,* f'course,continue to be subject to'. enforcement,either by EPA or an approved NPDES.

State, as a violation, of the POTW's.permit.

Any POTW whose program hasalready been approved without theanalysis of the impact of the pollutantsof concern and adoption of local limitswill be required to initiate an analysisas described above and adoptappropriate local limits. Thisrequirement will be incorporated in thePOTW's NPDES permit as soon asfeasible. POTWs that have previouslyadopted local limits but have notdemonstrated that those. limits arebased on sound technical analysis- alsowill be required to demonstrate that thelocal limits are sufficiently stringent toprotect against pass-through,interference and sludge contamination.POTWs which. cannot demonstrate thattheir limits provide adequate protectionwill be required to revise those limitswithin a specific time set forth in apermit modification.

4. Combined Wastestream Formula (40CFR 403.6(e))

a. Existing rule. The combinedwastestream formula (40 CFR 403.6(e)) isa method for calculating alternativepollutant limits at industrial facilitieswhere regulated process effluent ismixed with other wastewaters (eitherregulated or non-regulated) prior totreatment. As stated in the preamble tothe 1981 amendments to the generalpretreatment regulations (46 FR 9419),the formula is of primary importance tolarge, diversified industrial users withmultiple processes:

These Industrial Users of POTWsfrequently have. a number of individualprocesses producing different wastestreamsthat are not regulated by the same categoricalPretreatment Standard, or are not regulated atall. Many of these integrated facilities havecombined process sewers and. a-number have.'already constructed combined waste.treatment plants. In these situations, theIndustrial User often prefers to install, orcontinue to use, a pretreatment system on the_combined stream rather than installingseparate parallel systems on each individualstream. A combined wastestream formulapermits a facility to mix wastestreams, priorto treatment by providing it with analternative effluent limit for this combineddischarge.

EPA wishes to minimize the need forseparation of wastestreams and for treatmentby parallel systems when comparable levelsof treatment can be attained in combinedtreatment plants. Separate treatment. ofwastes at an integrated plant can be costly,wasteful of energy, inefficient andenvironmentally counterproductive. In.addition, such an approach reduces theenvironmental gains resulting from thevoluntary treatment of'unregulated streams.prior to the imposition of regulatory,requirements. However, the Agency also

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recognizes that the countervailing concerns ofavoiding the attainment of limits throughdilution and ensuring that adequate treatmentis provided may sometimes lead to theconclusion that segregation of streams is theonly appropriate way to meet applicablepretreatment limits. The combinedwastestream formula attempts to strike aproper balance between theseconsiderations. It is the Industrial User'schoice whether to combine or segregate itswastestreams. However, if the User decidesto combine wastestreams prior to treatment,and at least one of these wastestreams iscovered by a categorical pretreatmentstandard, then alternative limits for allregulated pollutants in the combinedwastestream must be calculated using thecombined wastestream formula.

b. Proposed rule. Where an industrialuser combines wastestreams prior totreatment, compliance with anapplicable categorical standard can bedetermined either prior to combining thewastestreams or following treatment ofthe combined wastestream (by applyingthe combined wastestream formula).Some industrial users have'indicatedthat they woultd like to be able to switchbetween monitoring at these two pointsfor purposes of evaluating compliancewith categorical standards. The currentregulations are silent on whether thisoption is allowed.

Today, EPA is proposing to add a newparagraph (e)(5) to the combinedwastestream provision in § 403.6 toclarify the approach to be taken in suchcases. Under the proposed rule, anindustrial user has an initial choice ofmonitoring either the segregatedwastestream(s) or the combinedwastestream and then applying theappropriate numerical limits. If, at somelater date, the industrial user wishes tochange its initial choice of monitoringpoints, it may do so only after receivingapproval from the Control Authority.This is necessary to enable the ControlAuthority to verify the applicable limits(e.g., alternative limits calculated usingthe combined wastestream formula) andensure that the change in samplingpoints will not allow the industrial userto substitute dilution (either by non-regulated process water or by "dilutionflow" as defined in § 403.6(e)) forpretreatment.

EPA is also proposing today to addstormwater and reverse osmosis ordemineralizer backwash to thedefinition of "FD" in § 403.6(e)(1), whichrefers to streams that aie treated asdilute for purposes of calculatingalternative limits under the combinedwastestream formula. Like the otherstreams included in this definition,stormwater and reverse osmosis ordemineralizer backwash streams do notgenerally contain significantconcentrations of-regulated pollutants.Today's proposal takes this fact intoaccount.

As with boiler blowdown and non-contact cooling water streams, however,in certain circumstances a stormwaterstream or reverse osmosis ordemineralizer backwash stream couldcontain a significant amount of apollutant that could be substantiallyreduced if the industrial user combinedthis stream with its regulated processwastestream(s) prior to treatment.Under today's proposal,'the industrialuser could request the Control Authorityto classify the stream as an"unregulated" stream rather than a"dilution" stream. The industrial userwould be required to provide.engineering, production, and samplingand analysis information sufficient .toallow a determination by the ControlAuthority on how the stream should beclassified. The Control Authority wouldhave discretion to classify the stream inquestion as either a "dilution" or an"unregulated" stream.

EPA is also proposing to revise§ 403.6(e)(3). That section describes theself-monitoring required to insurecompliance with alternative limitsderived using the combinedwastestream formula, and referencesself-monitoring requirements incategorical pretreatment standards.However, the categorical standards donot contain such self-monitoringrequirements. The Agency is proposingto delete the existing § 403.6(e)(3) toreflect this fact. In place of the deletedprovision, the Agency is proposing anew § 403.6(e)(3) that will requirecompliance with the monitoringrequirements in § 403.12(g), which isalso being proposed to be amendedtoday (see discussion below).

c. Additional clarifications. Severalother questions have recently beenraised concerning application of thecombined wastestream formula. Sincethese questions have broadapplicability, it is appropriate to addressthem here. One question is whichindustrial facilities must use the formulato determine alternative dischargelimits. Under the regulations, anyindustrial user who combines aregulated process wastestream prior totreatment with any other wastestream-be it some other regulated stream, adilution stream (as defined in theformula) or-an unregulated stream (onenot covered by a categorical standardand not a dilution stream)}-and whochooses to monitor the combined-wastestream for compliance must usethe combined wastestream formula todetermine the applicable dischargelimits. If the industrial user choosesinstead to monitor the regulated process-wastestream separately, the formuladoes not apply and the user mustcomply with the limits in the applicablecategorical standard immediatelydownstream from the regulated process

(prior to combining with otherwastestreams). A detailed discussion ofthe formula can be found in EPA'sGuidance Manual for the Use ofProduction-Based CategoricalPretreatment Standards and theCombined Wastestream Formula (1985).

A second question concerns theapplicability of the combinedwastestream formula wherewastestreams are combined aftertreatment (i.e., a treated regulatedprocess wastestream is combined with anon-regulated wastestream prior tobeing discharged to the POW). Theindustrial user may choose to monitorthe combined wastestream, rather thanmonitoring the individual regulatedstreams prior to their combination withother streams. Many of these facilitiesare covered by local limits which areapplicable at the point the dischargeenters the sewerage system. Bysampling after combining wastestreams, the industrial user would onlyneed to-sample once to determinecompliance with both local limits andcategorical standards. Some ControlAuthorities have required sampling at asingle point for this reason.

By its terms, the combinedw'astestream formula does'not applywhere wastestreams are combined aftertreatment because, as stated in§ 403.6(e), the formula applies only"[wihere process effluent is mixLd priorto treatment" with other wastewaters(emphasis added). Where wastestreamsare mixed after treatment, the user mustmeet the categorical standard at thetreatment facility, prior to combination.However, EPA recognizes the need fortranslating the standard into a limit afterall streams are combined. To do this, allwastestreams contributing to thecombined stream must be properlyaccounted for to ensure thai complianceis not achieved through dilution. In somecases, the combined wastestreamformula may be used. even though it isnot technically applicable. However, asdiscussed below, use of the combined•wstestream formula will not beappropriate in other cases, because itwould allow dilution. In these cases, adifferent, but similar, calculation mustbe performed.

The combined wastestream formularepresents a careful compromise ofcompeting concerns. It allows dilution incases where the actual pollutantconcentration in an unregulated streamis less than the categorical standard forthe regulted stream. This result istolerated as a trade-off for the benefit oftreating unregulated streams as well asregulated streams., See-the discussion-in46 FR-9419-9423 (January 28, 1981).However, where unregulated streamsare untreated and combinmd withregulated streams only after the

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regulated streams have been treated, nosuch trade-off exists to justify theacceptance of dilution in some cases.Thus, consistent with the prohibitionagainst using dilution to achievecompliance with pretreatment standards(see preamble discussion on dilutionunder § 403.6(d), the use of thecombined wastestream after treatmentis prohibited where it would allowdilution.

To establish an equivalent alternativelimit where monitoring takes place aftertreated and untreated streams arecombined, the Control Authority mustuse a flow-weighted average or morestringent approach. (Where thecombined wastestream formula isavlilable, as discussed above, it will beat l ast as stringent as a flow-weightedaverage.) The applicable standard(s)must be adjusted to reflect the actualamount of a particular regulated

Regulated. Unregulatwastestream(s) Wastestrea

Treatmer

0 AIo B

to P01T

At Point A, the industrial user must becomply with an alternative limit recalculated using the combined inwastestream formula. At Point B, the stcombined wastestream formula may be 0used if the nonregulated wastestream(s) be

(1) AdJustad Concentration Limit- .

(Combined Wastestream Formula Con- X (Flow atPoint A)centration Limit for Point A)

For example, if the alternative limitcalculated under the combinedwastestream formula for Point A is 10milligrams per liter (mg/i), the flow atPoint, A is 3,000 liters per.day (1/day),the mass of the regulated pollutant in

pollutant in the non-regulatedwastestream. If the standard isexpressed in terms of mass-per-day, thelevels of the regulated pollutant in theindividual non-regulated wastestreamsare simply added together with the masslimits on the regulated streams todetermine the applicable limit on thatpollutant in the combined wastestream.For concentration-based standards, aflow-proportioning calculation must beperformed in order to properly accountfor the level of the regulated pollutant inthe noi-regulated wastestream(s), If the -resulting adjusted standard is below thelimit of detectability, monitoring of theindividual regulated wastestreams forcompliance must be performed prior tothe point of combination with the non-regulated wastestreams.

Figure 1 illustrates the situation wherewastestreams are combined aftertreatment.

ure 1

edMt(S)

DiluteWastestream(s)I ,

Other(Nonrequlated)Wastestreams( s)

ring added after treatment contain(s)gulated pollutants in at least the leveldicated in the applicable categoricalandard(s) (i.e., no dilution occurs).therwise; the following formulas mustused:

+ (Actual Mass of Pollutant in NbnegulatedWaslestreams Added After Treatment)

the nonregulated wastestream addedafter treatment is 5,000 mg/day, and theflow at Point B is 5,000 1/day, theadjusted concentration limit applicableat Point B would be calculated asfollows:

10 mg/1 X3,000 1/day+5,000 mg/day 35,000 mg/day=7 mg/I

5,000 1/day 5,000 i/day

Calculating and adjusted mass limit forPoint B would be even simpler. If the

mass limit calculated under thecombined wastestream formula for point

A is 10,000 mg/day, the adjusted masslimit at Point B would be calculated asfollows:10,000 mg/day+5,000 mg/day=15,000 mg/

day

Today's clarification is merely alogical extension of the dilutionprohibition in § 403.6(d), and thereforedoes not necessitate a regulatorychange. Categorical standards apply tospecific process wastestreams. wherethese are combined with otherwastestreams prior to treatment, theregulations require application of thecombined wastestream formula.However, the formula by its terms doesnot apply where other, nonregulatedwastestreams are added after treatment.Therefore, in those cases wherecompliance monitoring is performedafter these additional streams areadded, the actual amount of regulatedpollutants in any nonregulatedwastestreams added after treatmentmust be accounted for in order to ensurethat compliance with applicablestandards is not achieved throughdilution, as prohibited by § 403.6(d).,

The Agency realizes that its positionon this issue has not been made clear inthe past and, in fact, may have beenstated incorrectly to allow use of thecombined wastestream formula wheredilution would result. This may haveresulted in some confusion andmisunderstanding on the part of ControlAuthorities and industrial users.Therefore, those who have in good faithacted on the assumption that theformula is applicable wherewastestreams are combined aftertreatment will be given a reasonableamount of time to make any necessaryadjustments. Industrial users subject tolimits made more stringent by thesechanges will have a reasonable amountof time to comply with the new limits.EPA solicits comments on possibleimplementation problems resulting fromtoday's clarification.

Another question that has arisen withregard to the combined wastestreamformula is how to calculate alternativelimits when an industrial user is subjectto one or more categorical standardsexpressed only as production-basedlimits and others expressed only asconcentration limits. In these cases, theuser and/or Control Authority shouldtranslate the terms into a commonstandard, either mass or concentration(since most POTWs will determinecompliance using concentration limitsand analysis, the common standardgenerally will be concentration). Thesecalculations should be done in the samemanner mass and concentration limitsare normally derived. Thus, where thealternative limits are to be expressed interms of concentration, the production-

(Flow at Point 8)

(2) Adjusted Mass Limi=(Combined Wastestream Formula Mass Limit for Point + (Actual Mass of Pollutant in Nonragulated Wasteatream

A) I Added After Treatment)

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based standard is multiplied by areasonable measure of the industrialuser's long term average dailyproduction rate (e.g., the average dailyproduction rate during the last 12months) and the product is divided by areasonable measure of the long-termaverage daily flow of the regulatedprocess wastestream (e.g., the averagedaily flow from the regulated processduring the last 12 months). (Anamendment to § 403.6(c), also beingproposed by EPA today, would codifythis calculation for those situationswhere the Control Authority wishes toapply an equivalent concentration limitto an industrial user subject to aproduction-based categorical standard.)Where the alternative limit is to beexpressed in terms of mass, theconcentration limit is converted to amass limit by multiplying theconcentration limit by the appropriateflow of the stream to which theconcentration limit applies. The relevantformula would then be applied.

5. Prohibition Against Dilution (40 CFR403.6(d))

a. Existing Rule. Section 403.6(d) ofthe current regulations prohibits the useof dilution as a means of achievingcompliance with categoricalpretreatment standards in place ofadequate treatment. It has been EPA'sconsistent policy that dilution may notbe substituted for treatment ofpollutants. The General PretreatmentRegulations promulgated in 1978 clearlystated this policy. The underlying policyof the Clean Water Act is to reduce theamount of pollutants entering theNation's waters (Section 101.) Thispolicy will not be met if industrial usersmeet concentration limits by dilutionand thereby discharge the same mass ofpollutants at a lower concentration.While dilution may in the short termminimize some water quality problems,it does not reduce the mass of pollutantsentering the POTW. The prohibition ondilution is supported by the Act'slegislative history and subsequent caselaw. (See the detailed discussion of theprohibition on dilution in the preambleto the 1981 amendments to the GeneralPretreatment Regulations (46 FR 9419,January 28, 1981)).

b. Proposed change. The language ofthe existing prohibition in § 403.6(d)applies only to the use of dilution toachieve compliance with categoricalpretreatment standards. However, the'underlying statutory policy of reducingthe total mass of pollutants enteringwaters of the United States is alsoapplicable to other pretreatmentstandards and requirements,'su6h asmore stringent locallimits developed

under § 403.5(c). To the extent that locallimits regulate pollutants that the POTWis not able to effectively treat (i.e., thosethat pass through the POTW orcontaminate the POTW's sludge),dilution is not an acceptable substitutefor adequate treatment. Therefore, EPAis proposing to modify the dilutionprohibition to clarify that it is notlimited to categorical pretreatmentstandards. This will more clearly trackthe statutory intent.

Under the proposal, industrial userswill be prohibited from diluting tocomply with local limits. Thisprohibition will not affect the POTW'sdevelopment of such limits and itsability to factor in the dilution impact ofthe sanitary sewage contribution to thePOTW. However, once the POTWdetermines its local limits in accordancewith § 403.5(c), the industrial users maynot use dilution to meet those limits.

B. POTW Pretreatment ProgramRequirements

1. Deadline for Program Approval-Newly Required POTW PretreatmentPrograms (40 CFR 403.8(b)

a. Existing Rule. Under the currentregulations, POTWs required to developpretreatment programs under § 403.8(a)must request and receive approval ofsuch programs within three years ofpermit reissuance or modification torequire program development, but notlater than July 1, 1983 (§ 403.8(b)).Although the regulations recognize thatEPA or States may subsequently requireother POTWs to develop programs afterthis date, the existing rules do notspecify a deadline forprogram submittalor approval.

b. Proposed change. EPA is todayproposing to amend § 403.8(b)) toestablish an outside compliance date forprogram development and submissionwhere the Approval Authority identifiesa POTW as needing a pretreatmentprogram after July 1, 1983. EPA proposesto require program submission to theApproval Authority as soon as possible,but no later than one year after the dateon which the POTW was notified by the

-Approval Authority, in writing, of itsresponsibility to develop a program.While this time period is shorter thanthe "up to three year" period authorizedfor POTWs prior to July 1, 1983,experience indicates that one year isreasonable for POTWs newly requiredto develop programs. Moreover, theexisting three-year deadline includesreceiving approval of the program; thedeadline. being proposed today. appliesonly to the submission of an approvableprogram. Based upon the POTWs thathave developed programs, EPA has

determined that, in most cases acomplete program submission can bedeveloped within 6 to 12 months.Moreover, EPA and the approvedpretreatment States have alreadyidentified most POTWs that will berequired to develop pretreatmentprograms; those identified in the futurewill be able to benefit from the workand experience that has taken placesince 1978. In addition, EPA hasdeveloped and disseminated guidanceon program development and inconjunction with the States will provideguidance and assistance to POTWswhere needed.

Under the proposal, ApprovalAuthorities will impose programdevelopment requirements on POTWsusing the same procedures as for

,programs previously required. When anew POTW is identified as requiring apretreatment program, the ApprovalAuthority will modify the POTW'sNPDES permit as provided under§ 403.8(e) (1) and (5) to incorporate acompliance schedule that includes aprogram submission date, progressreports and such other interim dates asare needed to insure timely programdevelopment.

2. POTW Program Requirements-Remedies (40 CFR 403.8(f))

a. Existing Rule. POTWs seekingapproval of local pretreatment.programsmust have adequate legal authority toadminister 'the local program. Therequired minimum legal authoritiesinclude the authority to obtain remediesagainst industrial users that violatepretreatment standards andrequirements (§ 403.8(f)(1)(vi)(A)). Inaddition to having authority to seekinjunctive relief, POTWs must be able toimpose monetary penalties. Thepretreatment regulations do not specifythe minimum penalty amounts thatPOTWs must be able to collect.

POTWs that have legislative powerunder State law can meet therequirement to obtain monetarypenalties by simply passing appropriatelegislation (i.e., local ordinances or artequivalent). However, where a POTWdoes not have the authority to enactordinances or other local legislation, theregulations require the POTW to enterinto contracts with its industrial users.Monetary penalties are to be imposedthrough the use of liquidated damagesclauses. A.liquidated damages clause isa contract provision that sets theamount of money to be paid by a partywho breaches the contract (i.e., anindustrial user who violates apretreatment standard or requirement).

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b. Proposed changes. It is a generalprinciple of contract law that damagesfor a breach of contract shouldadequately compensate the lossresulting from the breach. Where acontract includes a liquidated' damagesclauser,.the amount of money to be paidfor a breach of the contract must bereasonably related to the amount theparties anticipate will compensate for.the loss. Moreover, the law in someStates may bar the imposition ofpenalties through such clauses.

Under the pretreatment regulations,liquidated damages clauses in contractsbetween POTWs and their users mustprovide for damages that compensatefor any violation of pretreatmentstandards. However, it is difficult todetermine, in advance of a breach, theextent of damage to.a POTW caused bythe breach and thus difficult to select anappropriate sum to be included in aliquidated damages clause in a contractbetween a POTW and an industrialuser. Furthermore, Congress clearlyintended that a violation of pretreatmentstandards be deterred by the possibilityof substantial penalties that are notnecessarily tied to measurable damagecaused by the violations. See section 309of the Act. Since liquidated damagesclauses may not contain penalties,contracts do not appear to be anadequate enforcement mechanism.

To require POTWs to have adequateenforcement authority, EPA is proposingto delete that portion of§ 403.8(f)(1)(vi)(A) that provides for theuse of contracts as a mechanism forassuring compliance with pretreatmentstandards and requirements. The effectof today's proposal.would be to requireall POTWs developing POTW:pretreatment programs to pass locallegislation enabling them to assess civilor criminal penalties against industrialusers in violation of pretreatmentstandards and requirements. POTWsthat do not already have authorizationto pass such legislation under State lawwould have to seek such authority priorto program approval. Those POTWswith approved pretreatment programsthat depend upon contracts forimplementation and enforcement ofpretreatment standards andrequirements would also be required toobtain the necessary authority from theState to enable them to directly assesscivil or criminal penalties againstviolating industrial users. This' authoritywould have to be obtained within oneyear of the effective date of this,amendment unless the State would berequired to enact or amend a statutoryprovision, in which case the POTW

would have two years in-which toobtain this authority.

Today's proposal is not likely to havea widespread impact on the nationalpretreatment program. It appears that arelatively'small percentage of industrialusers are currently being regulatedthrough contracts with POTWs.'However, the Agency invites commentson this approach and suggestions forother approaches, such as retaining theoption to use contracts, but requiring thePOTW's legal representative (e.g., theCity Solicitor) to certify that suchcontracts, and particularly theliquidated damages provisions, are validunder State law. The certification underthis option would also have to state thata reasonable penalty could also berequired in the contract.

Today's proposal is not intended todiscourage the use of liquidateddamages clauses in contracts betweenPOTWs and their industrial users.Where these provisions are currently inuse, POTWs should continue to invokethem where a user violates the contract.EPA's intent is to ensure that POTWsrequired to develop pretreatmentprograms have adequate authority toimpose monetary penalties for allviolations of pretreatment standardsand requirements, including those thatdo not cause any measurable damage tothe POTW. The proposed change wouldmerely ensure the use of mechanismsthat provide adequate enforcement andremedial authorities.

EPA is also proposing another changeto the remedies provision of § 403.8(f)today. Section 403.8(f)(1)(vi) speaks interms of civil or criminal penalties, butdoes not contain any guidance as tominimum amounts that POTWs must be.able to collect. This has created someconfusion' and inconsistency in settingpenalties. As a result, EPA 'is proposingto requite that all POTWs withpretreatment programs have authority toobtain a maximum penalty of at least$300 per day of violation for both civiland criminal penalties. This amount isconsistent with EPA's ProceduresManual for Reviewing a POTWPretreatment Program Submission (1983)and provides a minimally acceptabledeterrent effect. The POTW shouldprovide for larger penalties whereappropriate (e.g., where the industrialuser has a history of violations, etc.). Ofcourse, by stating this minimum amountin the regulations, EPA in no way limitsits (or the States') ability to seek largerpenalties in appropriate cases. The $300amount is simply a minimumforpurposes of the POTW's authorityto'assess civil and criminal penalties. Itmay not beused as adefense in:an

enforcement action, brought by thePOTW, the State, or EPA against anindustrial user, in which a'larger'amoU~tis sought.

In proposing the $300 minimum today,EPA does not mean to imply that thisamount will in all cases be sufficient todeter violations or force compliance byrecalcitrant industrial users. In somecases, monetary penalties may need tobe coupled with termination of sewerageservice or other measures in order toachieve compliance. However, theAgency believes it is important toensure that POTWs developingpretreatment programs have authority toimpose sufficient monetary penaltiesregardless of whatever other measuresmight also be appropriate in a givencase.

EPA solicits comments on thisproposal, and also invites suggestions asto other appropriate minimum penaltyamounts. the Agency is particularlyinterested in receiving comments on thealternatives of requiring POTWs to be.able to collect at least $1,000 (per day ofviolation), and using the same penaltyamounts that are required for StateNPDES programs in 40 CFR123.27(a)(3)(i), (ii), (i.e., a maximum of$5000 per day of violation for civilpenalties, $10,000 for criminal fines).

3. Modification of Approved POTWPretreatment Programs (40 CFR 403.18)

a. Existing rules. A POTW seeking•approval of a POTW pretreatmentprogram must submit a programcontaining the information specified in§ 403.9(b). This submission must includea 'statement by the POTW's legal .representative identifying the legal .authorities and procedures under whichthe POTW plans to operate the program'.It must also contain a copy of allrelevant legal authorities, a descriptionof the POTW's organization with respectto program administration afid*adescription of available resources.

When EPA or the State approves theprogram, conditions requiringimplementation of the program areincorporated into the POTW's permit(see § 403.8(c)). The POTW is thenrequired to operate the program incompliance with applicable regulations,the approved program submission andany other conditions incorporated intothe permit. However, changingconditions at the POTW may warrantchanges in the operation of the program.These changes in program operationmay result in a program that differs fromthat described in the approved programsubmission and requited to be followedby the permit conditions. Changes thatmay require program modification,

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include the addition of new industrialusers, new connections With outlyingjuridictions, the establishment of newwater quality standards, the use of newtreatment techniques or sludge use ordisposal methods, changing resourceconditions, a desire by the POTW tomodify its control mechanismor itsinspection and monitoring program,detection of new pollutants in thePOTW's influent, and a finding ofdeficient legal authority. The currentregulations, however, contain nospecific provisions on when or howPOTW pretreatment programs should bemodified to reflect such changes.

b. Proposed change. EPA is proposingtoday to add a new § 403.18 establishingprocedures and criteria for modificationof approved programs. This sectionlargely tracks the program approvalprocess. Under the proposal, either aPOTW or the Approval Authority couldinitiate the program modificationprocess to reflect changing conditions atthe POTW. This would ensure that thesechanging conditions are fully consideredby the Approval Authority just asexisting conditions are fully consideredprior to initial program approval.Moreover, the modification will ensurethat the program remains enforceableand that changes do not undermine theeffectiveness of the approved program,.

To modify its pretreatment program, aPOTW would be required to submit tothe Approval Authority: (1) A statementexplaining why the programmodification is being sought, (2) amodified program submission indicatingthose aspects of the program submittedby the POTW pursuant to § 403.9(b) at thetime the POTW initially requestedPOTW pretreatment program approvalthat would be affected by the requestedprogram modification (including thelegal authorities, program description, orresource commitments), and (3) anyother relevant documents the ApprovalAuthority determines to be necessaryunder the circumstances, including, forexample, any supporting technicaldocuments. Where the ApprovalAuthority initiates the modification, itmay request the POTW to submit anynecessary Information, including theitems listed above.

Under proposed § 403.18, all programmodifications must be approved by theApproval Authority. After the POTWsubmits a modification request, theApproval Authority reviews thesubmission to determine whether theprogram modification is consistent withthe local program requirements of§ 403.8(f). If the Approval Authoritydetermines that the, program .modification is substantial, the review

and approval must be in accordancewith the procedures in § 403.11(b)-(f),including adequate public notice. Itwould be administratively impossible tous'e these full procedures for all programmodifications. Therefore, today'sproposal'provides that for allmodifications other than thosedetermined by the Approval Authorityto be substantial, the ApprovalAuthority is not required to follow theseprocedures, but may act on the requestwithout notice.

Substantial modifications are thoseaffecting the fundamental operation ofthe program. Today's proposal lists fourexamples of substantial modifications:(1) Changes to the POTW's enforcementauthorities (e.g., remedies available forviolations of pretreatment standardsand requirements by industrial users);(2) changes to local limits contained inmunicipal ordinances; (3) changes to thePOTW's control mechanism, asdescribed in § 403.8(f)(1)(iii); and (4)changes to the POTW's method forimplementing categorical pretreatmentstandards (e.g., incorporation byreference, separate promulgation, etc.).The Approval Authority woulddetermine whether other modificationsare substantial on a case-by-case basis.Criteria include: (1) Whether the changewould have a significant impact on theoperation of the program, (2) whetherthe change would result in an increase,in pollutant loadings at the POTW, and(3) whether the change would imposeless stringent requirements on industrialusers of the POTW. Where. the changemeets one or more of these criteria, themodification would be consideredsubstantial. EPA solicits comments onthese criteria and on what othersubstantial modifications, if any, shouldbe identified in § 403.18, as well as anyother comments on the proposedapproach.

The procedures for review byApproval Authorities of substantialmodifications under today's proposal(§ 403.11(b)-(f)) are identical to theprocedures for approving local programsand provide for public notice andcomment on the proposed modification(and an opportunity for a hearing).'Significant changes to an approvedprogram, like program approvals, arelikely to be of interest to the public andregulated community and should only beacted on after the public has been,notified and had an opportunity tocomment on the changes. Moreover,public notice and comment enhances theenforceability of any modified or new

.provisions that are subsequentlyapproved. The program modificationprocedures proposed today are

consistent with EPA regulationsgoverning State NPDES programrevisions (40 CFR 123.62). The publicnotice requirement for substantialmodifications is also consistent with theencIouragement of public participation,which is a fundamental policy of theClean Water Act (section 101(e)).

Today's proposal provides thatmodifications to POTW pretreatmentprograms become effective uponapproval by the Approved Authority.Notice of approval of substantialmodifications must be published in thelargest daily newspaper within thejurisdiction(s) served by the POTW.Notice of approval of non-substantialprogram modifications may also begiven by such publication, or by a letterfrom the Approval. Authority to the. ,POTW, a copy of which the POTW shallsend to its industrial users. This "procedure is identical to the equivalentprocess in the NPDES regulations forState program revisions. As With Stateprogram reviews, POTWs must confinueto'operate their approved program untila modification is approved by the. Stateor EPA.

Under today's proposal, programmodifications must be incorporated intothe POTW's NPDES permit, since thepermit contains conditions based uponthe original program. For substantialmodifications, the permit must bemodified as soon as possible afterapproval of the modification. Sincethese modifications will already havebeen subject to the public noticerequirements of'§ 403.11, a second roundof public notice and comment should notbe required when the POTW's permit ismodified to incorporate the programchanges. Therefore, EPA is proposing toamend 40 CFR 122.63(g) of the NPDESregulations (paragraph (g) was added ina final rule recently published by theAgency in the Federal Register) to allowthe incorporation of substantial POTWpretreatment program modifications intoa POTW's NPDES permit to be carriedout as a minor permit modification.Alternatively, the Approval Authoritymay conduct -concurrent program andpermit modification, thus combining thepublic notice and comment processes.(Many Approval Authorities haveadopted this approach for local programapprovals.) For non-substantial programmodifications, today's proposal providesthat these are to be incorporated intothe POTW's permit when it is nextreissued or modified for any otherreason.

The procedures proposed by EPAtoday would require all. POTW .pretreatment program modifications tobe approved prior to adoption and

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implementation by the POTW. However,the Agency recognizes that somemodifications (e.g., minor changes to thePOTW's data management system) areso minor that the effort required toreview and approve them may dutweightheir significance with respect to theoperation-of the POTW's program as awhole. In light of this, EPA is 'considering alternatives to the approachbeing proposed today that would allowthe POTW to make certain changes inthe operation of its pretreatmentprogram without receiving priorapproval from the Approval Authority.First, the Agency could specify in§ 403.18 all modifications for which thePOTW would not be required to obtainprior approval. This approach wouldrequire an exhaustive listing of non-substantial modifications. Anotherapproach would be to specifysubstantial modifications (as in theproposal) and provide additional criteria(such as those outlined above) fordetermining when a modification issubstantial, and require prior approvalonly for changes specified as substantialor meeting these criteria. This approachwould leave to the POTW thedetermination of whether a givenchange (other than one specified assubstantial) meets the criteria for beinga substantial modification. EPA solicitscomments on these alternativeapproaches. In particular, the Agencyrequests detailed comments regardingwhich specific modifications should beidentified as not requiring prior approvalunder the first approach.

C. POTW and State PretreatmentProgram Approval

1. POTW Pretreatment Program andRemoval Credit ApplicationSubmission-Approval Authority Action(40 CFR 403.9(e))

a. Existing Rule. A POTW seekingpretreatment program approval mustsubmit to the Approval Authoritycertain information described in§ 403.9(b), including a statementcertifying that the POTW has adequateauthority to carry out the program,copies of all relevant legal authorities, adescription of the POTW's organizationfor administering the program, andadiscussion of resources available forprogram implementation. POTWsapplying for removal credit authoritymust submit an application containingthe information required in § 403.79(e)including a list of pollutants for whichremoval credits are proposed, data onthe POTW's consistent removal of thesepollutants, proposed'revised limits, acertification that the POTW has anapproved pretreatment program, a

description of the POTW's sludge useand disposal methods, and acertification that granting removalcredits will not cause a violation of thePOTW's NPDES permit. The proceduresfor'Approval Authority review andaction of these requests are the same.After receiving the applicablesubmission(s),. the Approval Authority isrequired to make a preliminarydetermination of whether thesubmission contains all the itemsrequired under § 403.9(b) or. ifappropriate, § 403.7(e). If the submissionis determined to be complete, theApproval Authority must notify thePOTW and initiate the public notice andreview procedures set forth in § 403.11.Following public comment, the ApprovalAuthority completes its review of theprogram submission and issues its finaldetermination. The regulations requirethe Approval Authority to issue its finaldecision within 90 days, unless thecomment period is extended beyond 30days, in which case the ApprovalAuthority shall have an' additional 90days to complete its review. However,the existing regulations do not specifyhow much time the Approval Authorityhas in which to make its initialcompleteness determination.

b. Proposed changes. PIRT's finalreport stated that the lack of a deadlinefor the Approval Authority'scompleteness determination for POTWPretreatment Program and removalcredit submissions has led tounnecessary delays. To address thisperceived problem, PIRT recommendedthat the Approval Authority should have60 days from the date of a POTWpretreatment program or removal creditapplication to determine whether thissubmission meets the applicablerequirements of paragraphs (b) and(d)of § 403.9. Therefore, EPA is proposingto amend § 403.9(e) to add such a 60-daytime limit. The proposed time limit, inconjunction with current time periodsfor final Approval Authority action,should help ensure that local programand removal credit requests are actedon within a maximum of 240 days,assuming the request is complete.

2. Approval of State PretreatmentPrograms-State Regulations (40 CFR403.10(g)(1)(iii))

a. Existing rule. The CWAamendments of 1977 required that allState NPDES programs includepretreatment programs. For new Stateprograms, a pretreatment program must-be included as part of the NPDESsubmission. Approved NPDES Stateswere required to request modification toinclude pretreatment by March 27, 1980,(§ 403.10(a)).

In general. States seeking approval ofpretreatment programs must have.detailed regulations in place beforeprogram approval. However,, under§ 403.10(g)(1)(iii) EPA may authorize anNPDES State to, operate a pretreatmentprogram without implementingregulations in effect if the State hassufficiently detailed statutory authorityand has submitted a detailed descriptionof the procedures by which it proposesto implement the program. There is nocomparable provision in the NPDESregulations, which require allimplementing regulations to be in effectprior to NPDES program approval. See40 CFR 123.21(a).

EPA adopted § 403.10(g)()(iii) in 1980for several reasons. First, several Statessuggested that having pretreatmentregulations in effect was not essential toensure implementation of thepretreatment program in NPDES Statesthat had already demonstrated theirability to carry out a complex NPDESpermit program on a statewide level.'Second, the delay resulting in somecases from the promulgation ofregulations was seen as an impedimentto substantial environmental benefitsthat would follow from early approval ofState pretreatment programs. Third,some of the authorities necessary forsuccessful implementation of thepretreatment program are part of theNPDES program as well and areencompassed by the State's existingNPDES regulations. For those mattersunique to the pretreatment program,EPA believed that a comprehensivestatement describing how- the Stateintended to carry out this portion of theprogram and indicating the State'sreadiness to promulgate regulations inthe future, in concert with detailedstatutory authority, would providesufficient public notice and assurance ofthe State's authority and intention tocarry out the program.

This revision was intended tofacilitate State program approval wherethe State had adequate authorities. Evenwhere States were approved withoutregulations, it was expected that theState would promulgate pretreatmentregulations at a later date. Moreover,EPA recognized that all States wouldneed to revise their NPDES regulationsto conform to the May 19, 1980 FinalConsolidated Permits Regulations. Theaddition of § 403.10(g)(1)(iii) allowedStates to coordinate those rule changeswith promulgation of pretreatmentregulations.b. Proposed change. EPA is proposingto delete § 403.10(g)(1)(iii), thus requiringall States to have adequate regulationsat the time of program approval. Under

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existing regulations, the option of notdeveloping regulations prior to programapproval is available only if the Stateprogram description fully describes theprocedures it intends to use and how itintends to implement each of therequired legal authorities in the absenceof regulations. This also necessitates adetailed discussion of how each of theserequired legal authorities can be directlyapplied and enforced. In addition, theAttorney General's Statement must fullyexplain the State's legal authority, withspecial emphasis on the directapplicability and enforceability of theState statute without implementingregulations. Obviously, a State can onlymeet this burden if the statute is sodetailed as to be "self-implementing."

EPA's experience has shown that it ishighly unlikely that a State will havesufficiently detailed statutory authorityto operate a pretreatment programwithout implementing regulations. Inthose States whose programs wereapproved without regulations in effect.problems have arisen, particularly withregard to enforcement of categoricalpretreatment standards againstindustrial users. One State that hassince developed regulations informedEPA that it found it could not enforce itspretreatment program, notwithstandingthe commitments in its programdescription. In its Final Report to theAdministrator, PIRT noted theseproblems and recommended that§ 403.10(g](1)(iii) be deleted. EPA agreeswith the Task Force's recommendation.In order to eliminate this problem, theAgency is proposing today to delete theprovision. This will make thepretreatment regulations consistent with.the NPDES regulations and mean that inthe future, States requesting approval oftheir State pretreatment programs willhave to have all necessary implementingregulations in place before theirprograms can be approved. In addition,those approved States lackingpretreatment regulations will have topromulgate regulations where theabsence makes their program deficientunder the revised § 403.10.

3. Approval Procedures for POTWPretreatment Programs and Authority toGrant Removal Credits (40 CFR403.11(b))

. a. Existing Rule. Section 403.11 setsout the procedures for approving POTWpretreatment programs and applicationsfor removal credit authority. Uponreceipt of a local program submission orremoval credit application, the ApprovalAuthority must first determine whetherthe submission is complete. Theelements of a complete submission areset out in § 403.9(b) for POTW program

approvals and §§ 403.7(e) and 403.9(d)for removal credits. After determiningthat a submission is complete, theApproval Authority must provide noticeand an opportunity to request a publichearing. Section 403.11(b) requiresissuance of the public notice within 5days after the completenessdetermination.

b. Proposed change. PIRT hasrecommended changing the 5-day timelimit for issuing public notice following acompleteness determination to 20 workdays. PIRT concluded that 5 days wastoo short because Approval Authorityprocedures are often not sufficientlyexpeditious to meet that limit. EPAagrees with PIRT's recommendation. Alonger time period in which to issuepublic notice and an opportunity torequest a hearing appears to be bothnecessary and appropriate. The 20-daylimit recommended by PIRT andproposed by EPA today is more realisticwhile still conforming to the basic intentof providing prompt public notice ofsubmissions that are under Agencyreview. Moreover, since elsewhere inthis Federal Register notice, EPA isproposing a time limit for the ApprovalAuthority to determine whether thesubmission is complete (see discussionof proposed amendment to § 403.9(e)above), Approval Authorities must actexpeditiously at all stages of the reviewprocess.

D. Reporting and ComplianceMonitoring

1. Baseline Monitoring Report-Deadlinefor New Sources (40 CFR 403.12(b))

a. Existing rule. To establish aneffective local pretreatment program, itis essential that the POTW havecomplete information on the nature andquantity of pollutants contributed byeach of its industrial users. Section403.12(b) requires that all industrialusers, including new sources, that aresubject to categorical pretreatmentstandards submit baseline monitoringreports ("BMRs") to the ControlAuthority. These reports supply basicinformation to identify each contributingindustrial user, the characteristics of theuser's discharge and the user'scompliance status. Information requiredto be reported in BMRs includes: a list ofenvironmental control permits held bythe industrial user, a description of theuser's operations, information on flowand amounts of regulated pollutantsdischarged to the POTW, and acertification of whether the'user is.currently in compliance with theapplicable categorical standard(s). If theindustrial user is not in compliancewhen the BMR is.prepared, the report

must also include a compliance scheduleshowing the shortest time by whichcompliance will be achieved. Thebaseline monitoring report does notapply to industrial users not covered bycategorical standards. (Elsewhere in thisFederal Register rlotice, EPA isproposing to clarify that POTWs mustrequire appropriate reports where thePOTW determines that information onthese "noncategorical" discharges isnecessary. [See discussion of proposed§ 403.12(h) below.])

Section 403.12(b) requires industrialusers to submit BMRs to the ControlAuthority within 180 days after theeffective date of the applicablecategorical standard, or within 180 daysafter a final decision on a categorydetermination request, whichever islater. However, there is no deadlinespecified for new sources. Nor does§ 403.12(b) contain a deadline forsubmission of BMRs by directlydischarging existing sources thatbecome indirect dischargers subsequentto the promulgation of an applicablecategorical pretreatment standard.

b. Proposed change. Today's proposalwould revise § 403.12(b) to require newsources, and existing sources thatbecome industrial users subsequent tothe promulgation of an applicablecategorical standard, to submit abaseline monitoring report at least 90days prior to commencement of thefacility's discharge to a POTW. EPA isalso proposing to clarify that for newsources, the industrial user shall provideestimates for the information onproduction, flow.and the presence andquantity of regulated pollutants in itswastestream requested in § 403.12(b)(3)-(5).

EPA solicits comments on whether the90-day pre-discharge BMR deadline isadequate. It should be borne in mindthat BMRs are not intended to be thefirst contact between a new industrialuser and the POTW. EPA encouragesthe earliest possible communicationbetween POTWs and new sourceindustrial users. Early contact can occurin several ways. Many new sources willbe constructing new facilities, and willthus be required to obtain a constructionpermit from the municipality long beforethey begin to discharge. Even wherethere is no new construction (e.g., thenew source is moving into an existingfacility), the new source will need toapply for water and sewer service wellin advance of any discharge. The POTWmay. also learn of potential newindustrial users through its inspection ofexisting industrial users. When contactwith a new industrial user is made, thePOTW'should obtain as much

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information as possible regarding thenature of theuser's expected dischargeand should inform the user of applicablepretreatment standards andrequirements, including, to the extentpossible at that time, any local limits towhich the user will be subject. (Ofcourse, if the user is a member of a tradeassociation (e.g., the NationalAssociation of Metal Finishers), it willgenerally be kept up-to-date onapplicable categorical standards.)Therefore, the BMR functions not as apreliminary assessment of the expectedpollutant loading from a new source, butrather as a final check prior tocommencement of discharge. By thetime the BMR is due, the industrial usershould already be aware of most, if notall, of its pretreatment responsibilitiesand will have had an opportunity tostart taking whatever actions arenecessary to fulfill them.

EPA recognizes that BMRs submittedby new sources under the proposeddeadline cannot be complete; for.instance, new sources cannot certifywhether they will be in compliance withapplicable categorical standards sincethey have not yet commenced discharge.For this reason, the current regulationsdo not require new sources to include acompliance certification or complianceschedule in their BMRs. Similarly, newsources cannot monitor the flow orpollutant constituents andconcentrations of their wastestreams,nor can they provide actual productiondata. However, an industrial user that isa new source can, and under today's 'proposal would be required to, provideestimated data on these items. Thisinformation will allow the ControlAuthority to assess the potential impactof the new source on the POTW, thereceiving waters into which the POTWdischarges and current and alternativesludge use or disposal options. TheControl Authority can also use thisinformation to make a preliminarydetermination of whether additionallimits beyond those in the applicablecategorical pretreatment standard (i.e.,local limits) will be necessary to preventpass-through and interference at thePOTW. In some cases, the POTW mayneed to set more stringent local limits onother contributors to the system to, avoidpermit violations. Early submission ofthis information provides the POTWadequate time to determine whethersuch steps are needed. Without such.estimates, the POTW would only learntoo late that local limits were needed toavoid a permit violation. Obviously, it ispreferable to avoid such violatfons.

Within 90 days after discharge hascommenced, §,403.12(d- requires the

new source to submit actual flow andpollutant data in addition to rcompliance certification and, ifnecessary, a statement of whatadditional steps are necessary toachieve compliance. The POTW canthen reevaluate the impact of theindustrial user's, discharge using actualdata on pollutant loadings and adjust itslimits if needed. The. approach beingproposed today, i.e., requiring estimateddata that is later followed up with actualdata, is consistent with proposedamendments to'the NPDES regulations,which would require directlydischarging new sources to useestimated data in preparing their NPDESpermit applications (see 49 FR 38815,October 1, 1984).

2. Measurement of Pollutants (40 CFR403.12(b)(5)(iv))

a. Existing Rule. Section.403.12(b)(5)(iv) establishes the frequencywith which an industrial user mustsample and analyze its wastestream tocompile data forits baseline monitoringreport. Under !be present scheme, anindustrial usermust take multiplesamples of each regulated wastestream,with the frequencies determined by theflow of those streams being sampled.Where the flow of the stream beingsampled is less than or equal to 250,000gallons per day, the industrial user musttake three samples within a one-weekperiod. Where the flow of the streambeing sampled is greater than 250,000gallons per day, the industrial usersmust take six samples within a two-week period. Each of these samplesmust be analyzed separately and thedata submitted on the baselinemonitoring report. The purpose of thissampling is to provide information todetermine whether the industrial user isin compliance with the applicablecategorical pretreatment standard(s).

b. Proposed change. EPA is proposingto reduce the baseline samplingrequirements for industrial users and seta uniform, minimum samplingrequirement applicable to all' industrialusers. Today's proposal requires that ata minimum, for purposes of compilingdata for the baseline report, only onesampling analysis of pollutants isrequired. This proposal would not alterthe required sampling techniques (i.e.,24-hour composite sampling), asprovided in § 403.12(b)(5)(iii].

A pretreatment baseline report iscomparable to the industry NPDESpermit application form for directdischargers (i.e., form 2C)'. Both aremeans of collecting preliminaryinformation about the particular facilityand its discharge, and are used as abasis for determining whether additional

steps need to be taken to achievecompliance with. applicable dischargelimits. Only one sampling and analysisof the specific pollutants is required forthe NPDES permit application. See 40CFR 122.21(g)(7). The proposed changeto the baseline monitoring reportsampling requirement will, therefore,.bring it in line with that required by itscounterpart in the NPDES program.

Today's proposed amendment wouldsignificantly reduce the paperworkburden associated with baselinemonitoring reports without significantlyimpairing EPA's ability to identify andcontrol pollutants. A single samplinganalysis is generally adequate toprovide Control Authorities with apreliminary picture of an industrialuser's processes and wastestreamcharacteristics. However, in morevariable industries, more sampling maybe necessary to ensure that the ControlAuthority obtains representative data.The single sampling proposed today is.intended to be a minimum. If the ControlAuthority determines that additionaldata and sampling are needed toevaluate the impact of the user'sdischarge or to set local limits, it can,and should, require such analysis. Todetermine compliance with categoricalstandards, the Control Authority willuse an industrial user's self-monitoringprogram and compliance reports, inaddition to any sampling programconducted by the Control Authority. Thereduced sampling for the baseline reportwill not affect other sampling andanalysis requirements.

3. Sampling Techniques (40 CFR403.12(b)(5)(iii))

a. Existing rule. Section403.12(b)(5](iii) provides that, wherefeasible, the samples required inpreparing an industrial user's baselinemonitoring report must be obtainedusing "the flow-proportional compositesampling techniques specified in theapplicable categorical PretreatmentStandard." Where composite samplingis not feasible, industrial users may takea single grab sample instead of eachrequired composite sample.

b. Proposed change. In its Final Reportto the Administrator, PIRT pointed outthat the categorical pretreatmentstandards do not specify requiredsampling techniques. Accordingly, EPAis proposing to revise § 403.12{b][5)(iii)to correct this error. The proposal wouldrequire that,, except for five namedpollutants, the industrial user mustobtain 24-hour composite samplesthrough flow proportioned techniqueswhere feasible.

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For five pollutants-pH, cyanide, totalphenols, oil and grease, and sulfide-today's proposal would require the useof grab samples. These pollutants aresubject to rapid degradation andtherefore cannot be accurately sampledthrough 24-hour composite methods.This proposal would make the samplingrequirements of the GeneralPretreatment Regulations consistentwith the NPDES regulations. Those rulesrequire the use of 24-hour compositesamples in permit applications, exceptfor seven pollutants for which grabsampling must be used (pH,temperature, cyanide, total phenols,residual chlorine, oil and grease, andfecal coliform). 40 CFR 122.21(g)(7).Unlike the NPDES rules, temperature,residual chlorine and fecal coliform arenot included on the list of pollutants forwhich grab samples are requiredbecause they are not regulated undercategorical pretreatment standards andthus need not be reported on the BMR.EPA is proposing to add sulfide, whichis not included in the NPDES provision,since it is regulated under categoricalstandards and tends to rapidly oxidizeand/or gasify.

PIRT also recommended that time-proportional sampling be allowed whereflow-proportional automatic sampling isnot feasible. In support of itsrecommendation, the Task Force statedthat time-proportioned samples, whilenot as accurate as flow-proportionedsamples, are more representative of anindustrial user's daily discharge than thesingle grab sample curreitly allowed inthe regulation.

In response to PIRT'srecommendation, EPA is proposing tochange the type of sampling that will beallowed by industrial users where flow-proportional composite sampling is notfeasible to allow time-proportioned orgrab sampling. Under today's proposal,the industrial user must demonstrate tothe Control Authority that the use of anautomatic sampler is infeasible and thattime-proportional saqipling or grabsampling will provide a representativesample of the effluent being discharged.The proposal also would require theControl Authority to make thedetermination of whether flow-proportional sampling is feasible. Wherethe Control Authority determines thatflow-proportional sampling is infeasible,it would waive the requirements andallow grab or time-proportionalsampling.

Consistent with recent revisions to theNPDES regulations (49 FR 38046,September 26, 1984) EPA is alsoproposing to amend § 403.12(b)(5)(iii) toprovide that where grab sampling is

used, a minimum of four grab samplesmust be taken.

4. Annual POTW Reports (40 CFR403.12(i))

a. Existing rule. As a means tooversee the implementation of POTWpretreatment programs, EPA and manyapproved States usually include in thePOTW's NPDES permit a conditionrequiring that the POTW periodicallysubmit a report describing its programimplementation activities during theperiod covered by the report. Thesepermit conditions, which are inserted atthe time the conditions of the hpprovedprogram are added, generally require thesubmission of an annual report. Thesereports are typically required to includean update of the POTW's industrial userpopulation, information on thecompliance status of the industrialusers, information on the POTW'scompliance monitoring and enforcementactivities, and information onmodifications to the POTW's approvedpretreatment program. The majority ofPOTWs with approved programs haveconditions requiring such reports in theirNPDES permits. Although these permitconditions are authorized by law (seesections 402(b)(8) and 308 of the CWA)the General Pretreatment Regulations donot contain a specific provisiondescribing the contents of the reportsPOTWs should submit on the status oftheir prefreatment programimplementation.

b. Proposed change. PIRT hasrecommended that EPA set forth in thegeneral pretreatment regulations therequirement of an annual POTW reportfor all POTWs with pretreatmentprograms. This report would besubmitted to the Approval Authorityand would describe programimplementation activities conducted bythe POTW during the preceding year.The Task Force stated that such a reportis essential to the adequate oversight, byEPA or approved States, of POTWpretreatment programs. By describingthe annual report in the regulations, EPAcould ensure some degree of uniformityamong reports and thus obtain a clearerpicture of the status of programimplementation on a national scale.

In response to PIRT'srecommendation, EPA is proposing toadd a new paragraph (i} to § 403.12requiring each POTW with an approvedpretreatment program to submit a reportto the Approval Authority at leastannually describing programimplementation activities. (Thesubmission date will be set in thePOTW's NPDES permit.) The reportmust contain, among other things, anupdated list of the POTW's industrial

users (or a list of additions anddeletions keyed to a previous list)showing the categorical pretreatmentstandards and/or local limits applicableto each, a summary of the compliancestatus of each industrial user over theperiod covered by the report, a summaryof compliance monitoring andenforcement activities (includinginspections) conducted by the POTW

.during the reporting period, and anyother information requested by theApproval Authority, as appropriate foradequate oversight of the POTW'spretreatment program. This informationwill provide the Approval Authoritywith the means to effectively perform itsoversight responsibilities with respect tothe POTW pretreatment programswithin its jurisdiction. By adding theprovision to the regulations, all suchreports will be required to contain atleast the same minimum information,thus providing some consistency. Ofcourse, the Approval Authority mayimpose such other requirements as maybe necessary or appropriate. Byexpressly providing for adequateoversight in this way, the obligations ofEPA, the State, and POTWs with respectto the implementation of the nationalpretreatment program can be met moreeffectively.

EPA is currently preparing a guidancedocument entitled "PretreatmentCompliance Monitoring andEnforcement Guidance," which willcontain additional information on thesereports. This document will be availablein the near future.

5. Signatory requirements for industrialuser reports (40 CFR 403.12(k))

a. Existing rule. The signatoryrequirements for industrial user reportsin the general pretreatment regulationswere patterned after a similar provisionin the NPDES regulations. Section403.12(i)(1) currently states that reportssubmitted on behalf of a corporationmust be signed by a "principal executiveofficer of at least.the level of vicepresident" or an authorizedrepresentative of that person who isresponsible for the overall operation ofthe facility from which the dischargeoriginates. The signatory requirement isintended to ensure that the corporationis legally accountable for theinformation submitted. The signature onreports or authorization by a principalexecutive officer provides thisaccountability.

b. Proposed change. In the past twoyears, EPA has revised the NPDESsignatory requirements governing permitapplication (48 FR 39611, September 1.1983) and reports from permittees (49 FR

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37998, September 26, 1984). Thesechanges were made to reduce theburden of investigating and signingapplications and reports for officers oflarge corporations while continuing tomaintain a sufficiently high level ofcorporate responsibility. This rationaleapplies equally to industrial user reportsin the pretreatment program. Therefore,EPA is proposing to amend thepretreatment signatory provision(§ 403.12(i)) to make it consistent withits NPDES counterpart. (EPA is alsoproposing to redesignate this paragraphas § 403.12(k) to account for theinsertion of new paragraphs (h) and (i)in § 403.12, also being proposed today.)

Today's proposal would change theexisting regulations to allow reports tobe signed by "a responsible corporateofficer," or an authorized representativeof that individual. "Responsiblecorporate officer" includes thepresident, secretary, treasurer, or a vice-president of the corporation in charge ofa principal business function. It alsoincorporates into the regulation EPA'sinterpretation of "executive officer ofthe level of vice president" adopted in apreviously published policy statementregarding the NPDES permit process (45FR 52149, August 6, 1980). Thatstatement clarified that an officerperforming "policymaking functions"similar to those performed by acorporate vice-president coluld signNPDES permit applications submittedby direct dischargers. In addition, themanager of one or more manufacturing,production, or operating facilities of acorporation can now qualify as a"responsible corporate officer" if thefacility (or facilities) employs more than250 persons or has gross national salesor expenditures exceeding $25 million,as long as the manager has beenauthorized to sign reports in accordancewith proper corporate procedures.Formal assignments or delegations ofauthority are hot necessary forcorporate officers identified in theproposed provision; it is presumed thatthese responsible corporate officershave the requisite authority unless theControl Authority has been notifiedotherwise.

Consistent with the NPDESregulations, the proposal would alsoallow a "duly authorizedrepresentative" of a "responsiblecorporate officer", to sign reportsrequired under the pretreatmentprogram. This reduces the burden on theregulated community while at the sametime providing an equal degree of legalaccountability on the part of the"responsible corporate officer." Byauthorizing a representative to sign

reports, the responsible official does notlose legal accountability for theaccuracy of the information that issubmitted. A "duly authorizedrepresentative" may be an individual orposition responsible for the overalloperation of an industrial user's facility(e.g., a plant manhger). It may also bethe individual in charge of allenvironmental matters for the industrialuser. The person will, in many cases,have the best knowledge of thecompany's facility. Since he or she musthave overall environmentalresponsibility within the company, andsince their authorization to sign thereport mus t come from a responsiblecorporate officer, the proposal will alsoensure corporate responsibility.

This provision also is proposed to berevised by including the requirementthat all reports submitted pursuant tothat subsection shall include the oathset forth in § 403.6(a)(2)(ii). This isconsistent with the NPDES regulations,which require a similar certificationfrom signatories to NPDES permitapplications and reports (see 40 CFR122.22(d)). '

6. Reporting Requirements-Extensionto Non-categorical Discharges (40 CFR403.12(h))

a. Existing rule. Section 403.12describes the reports industrial userssubject to categorical pretreatmentstandards must submit. These reports,individually discussed in more detailelsewhere in this preamble, includebaseline monitoring reports (BMRs)required under § 403.12(b), 90-daycompliance reports required under§ 403.12(d), and periodic compliancereports required under § 403.12(e). Thepurpose of these reports is to providethe Control Authority with information,together with additional data obtainedthrough the Control Authority's ownmonitoring program, on the quantity andnature of discharges to the POTW andon the industrial user's compliance withapplicable pretreatment standards andrequirements.

b. Proposed change. The industrialcategories for which categoricalpretreatment standards have been andare being developed by EPA includethose from which significant toxicpollutant discharges occur across theindustry nationally. However, individualindustrial users that are not covered bycategorical standards ("non-categorical"industrial users) have the potential todischarge significant amounts of toxicpollutants to POTWs, resulting in waterquality, sludge disposal or otherproblems. In addition, non-categoricalindustrial users may discharge otherpollutants in quantities sufficient to

cause serious interference or passthrough problems at the POTW.Although the regulations generallyrequire that such discharges beregulated by the POTW, they do notspecifically require non-categoricalindustrial users to submit reports to theControl Authority regarding theircompliance with applicablepretreatment requirements.

The lack of any specific reportingrequirements for non-categoricalindustrial users in the regulations hascaused some confusion as to whetherControl Authorities are expected torequire reporting from these industrialusers. Most POTWs currently requiresome reporting from their non-categorical industrial users as a meansto have an effective complianceprogram; some POTWs even requirereports from all of their industrial users.

Although specific reportingrequirements are listed only forcategorical industrial users, it has neverbeen EPA's intent to exempt non-categorical industrial users from allreporting requirements. One of theregulatory requirements for anapprovable POTW pretreatmentprogram is legal authority to require,from all industrial users, such reports asare necessary to assess and assurecompliance with applicablepretreatment standards andrequirements. See § 403.8(f)(1)(iv). Thisrequirement is explicitly not limited tothe specific reports required ofcategorical industrial users. Adequateinformation on the quantity and natureof pollutant discharges to the sewersystem by all industrial users isessential if the POTW is to effectivelyregulate its users and prevent violationof pretreatment standards.

Because of the confusion on thereporting required by non-categoricalusers, EPA is proposing to add a newparagraph (h) to § 403.12 (andredesignating the existing paragraph (h)accordingly) clarifying that the ControlAuthority must impose appropriatereporting requirements on industrialuser discharges that are not regulated bycategorical standards. POTWs shoulduse this authority to require sampling forpollutants not regulated by categoricalstandards where those pollutants maycause passthrough or interference. Ofcourse, the appropriate monitoring andreporting to be required of non-categorical industrial user dischargeswill vary depending on thecircumstances. Factors to be consideredinclude the size of the industrial user,the percentage of the POTW's total flowattributable to the industrial user, thenature of the industrial user's discharge

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(e.g., whether the industrial user isdischarging pollutants of concern to thePOTW), and the industrial user'scompliance history. These and otherrelevant factors should be considered bythe Control. Authority in establishingappropriate reporting requirements forits non-categorical industrial users.Under the proposal, if the ControlAuthority determines that reporting bythese users is appropriate, the ControlAuthority would be required to imposesome monitoring and reportingrequirements.

Industrial users covered bycategorical pretreatment standards mayalso discharge significant amounts ofpollutants that are not addressed inthose standards. These discharges maybe of pollutants in the regulatedwastestream that are not limited in thecategorical standard, or they may befrom other wastestreams to which thestandard does not apply. Today'sproposal also applies to thesedischarges from categorical industrialusers. Under the proposed provision, theControl Authority must requireappropriate reporting concerning allpollutant discharges to the-POTW thatare not specifically regulated in acategorical standard (and thus are notsubject to the other reportingrequirements of § 403.12), includingthose'from industrial users that areotherwise subject to categoricalstandards.

7. Notification of Slug Loadings (40 CFR403.12(f)

a. Existing rule. Section 403.12(f)requires industrial users to immediatelynotify the POTW to which they aredischarging of any slug loading. A slugloading is defined in § 403.5(b)(4) as thedischarge of any pollutant at, a flow rateand/or pollutant concentration that willcause "interference" (as defined in§ 403.3(i)) with the POTW. Section403.5(b)(4) specifically prohibits slugloadings. The notification requirement isintended to ensure that POTWs arepromptly alerted to any loadings to theirsystems that would cause problems atthe treatment plant. The language of§ 403.12(fo and its location in a sectionthat deals primarily with reportingrequirements for industrial users subjectto categorical pretreatment standardshas raised questions about whether theslug load notification requirement

- applies only to categorical industrialusers. Despite its location, EPA intendedthat this requirement apply to any suchdischarge by industrial users.

b. Proposed change. Therefore, EPA isproposing to change the language of§ 403.12(f) to clarify that this slug loadnotification requirement applies to non-

categorical, as well as categorical,industrial users..

The Agency is also proposing toexpand § 403.12(fo to reference§ 403.5(b)( )-(5) instead of only§ 403.5(b)(4). The reason for this changeis that there are some slug lbadings (e.g.,sulfides) that may not cause interferenceat the POTW (and thus are notprohibited by § 403.5(b)(4)), but arecorrosive and hazardous to workers'safety. Referencing § 403.5(b) (1), (2), (3),and (5) in addition to § 403.5(b)(4) in-§ 403.12(f) will ensure that the POTWwill be promptly notified of alldischargers that might cause problems,including interference, at the POTW.

8. 90-day Compliance Report (40 CFR403.12(d))

a. Existing rule. Within 90 days afterthe compliance date of a categoricalpretreatment standard, each existingindustrial user subject to the categoricalstandard must submit to the ControlAuthority a report indicating whetherthe user is in compliance with thestandard (§ 403.12(d)). New sourcesmust submit this report within 90 daysfollowing commencement of dischargeinto the POTW. The report required by§ 403.12(d) must contain information onthe nature and concentration ofregulated process pollutants in theindustrial user's discharge, the averageand maximum daily flow of theseregulated process wastestreams and asigned statement indicating whether theuser is in compliance with theapplicable standard(s). If the user is notin compliance, the report must indicatethe additional steps that are necessaryto achieve compliance. The purpose ofthis report is to provide information thatwill allow the Control Authority todetermine whether those industrialusers subject to categorical pretreatmentstandards have met the applicabledeadlines for compliance with thesestandards.

(b). Proposed change. The informationrequired in 90-day compliance reports isbasically the same as that required forbaseline monitoring reports (BMRs)(§ 403.12(b)), although the latter reportmust contain certain additionalinformation. Under both reportingrequirements, the industrial user mustindicate the nature and concentration ofregulated pollutants in the user'sdischarge, the flow of the user'sregulated process wastestreamswhether the user is in compliance withapplicable categorical pretreatmentstandards, and, if not, what steps arenecessary to bring the user intocompliance. (BMRs must also containinformation identifying the industrial'users, a list of any environmental

permits held by the user, and a briefdecription of the user's operations.)Although this same basic information isrequired in both reports, the regulatoryrequirements for BMRs(§ 403.12(b)(4)(6)) are much moredetailed than those for the-90-daycompliance reports in § 403.12(d). Tobetter specify the information to besubmitted in 90-day compliance reports,therefore, the Agency is proposing torevise § 403.12(d) to specify theinformation required in these reports inthe same detail as the equivalent BMRprovision'. The proposed revision doesnot change the existing requirements,but is merely intended to clarify thecontents of the 90-day compliancereport.

Elsewhere in this Federal Registernotice, EPA is proposing to revise theBMR sampling requirements in§ 403.12(b)(5) to require a minimum ofone sampling analysis (see discussion ofproposed amendment to§ 403.12(b)(5)(iv) above). This sameminimum would apply to 90-daycompliance reports. As with BMRs, theControl Authority may requireadditional sampling and analysis wherenecessary to obtain representative datasufficient to determine compliance.

EPA is also proposing anotheramendment to §'403.12(d) today. Forthose industrial users subject tocategorical pretreatment standardsexpressed only in terms of mass per unitof production, it is imperative that theControl .Authority have currentproduction data in order to determinewhether compliance with the standardhas been attained. Although allindustrial users are required to includeproduction data as part of the baselinemonitoring report (see § 403.12(b)(3)),this data may be outdated by the timethe compliance report required under§ 403.12(d) is submitted (usually severalyears later). Therefore, the Agency isproposing to amend § 403.12(d) torequire that these reports also containthe industrial user's current actualaverage production rate. This willensure that the Control Authority hasup-to-date production data fordetermining whether the deadlines forcompliance with applicable production-based standards have been met.

9. Industrial User Compliance Reports-Monitoring Requirements (40 CFR403.12(g))

a. Existing rule. Under the currentGeneral Pretreatment Regulations,industrial users subject to categoricalpretreatment standards must submitcompliance reports in June andDecember (or more frequently as

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required by the Control Authority). See§ 403.12(e). These reports must containinformation on the nature and amount ofpollutants that are subject to thecategorical standard(s) in the indusffialuser's effluent. The industrial user mustalso include measured or estimatedaverage and maximum daily flows forthe reporting period, or more detailedflow information as required by theControl Authority. Section 403.12(g)provides that these compliance reportsmust contain the results of sampling and.analysis of the industrial user'sdischarge, but does not specify theamount of sampling and analysis thatmust be performed for each report. Nordo the categorical standards containsuch monitoring frequency requirements.(EPA has recently published a technicalamendment deleting from § 403.12(g) thesentence stating that monitoringfrequency requirements for industrialusers are found in the appropriatecategorical standard.)

b. Proposed change. Although thepretreatment regulations do not specifythe amount of monitoring required forthese reports, POTWs may, of course,specify monitoring frequencies in theirown sewer use ordinances andindividual industrial user permits. ManyPOTWs have in fact done this.However, the lack of any monitoringfrequency requirements, either in theGeneral Pretreatment Regulations or thecategorical pretreatment standards, hasresulted in some confusion as to theamount of monitoring required forperiodic compliance reports underk403.12(e).

Therefore, to establish an adequatelevel of monitoring for the periodiccompliance report, the Agency isproposing today to raise § 403.12(gl toclarify that the reports required under§ 403.12(e) must be based on anappropriate amount of-sampling andanalysis performed during the periodcovered by the report. Implicit in§ 403.12(e) is that each biannual reportcontain at least some data for the periodcovered by the report.

The appropriate monitoring frequencyfor indirect dischargers will vary fromfacility-to facility, and must bedetermined by the Control Authority ona case-by-case basis. In making thisdetermination for a particular industrialuser, the Control Authority shouldconsider the monitoring frequencyconsidered by EPA in developing, anddetermining the Costs associated with.the applicable categorical standard. Thisinformation can be found in thepreamble and/or developmentdocument accompanying eachcategorical standard. The Control

Authority should also consider suchfactors as the size of the industrialuser's flow and the user's compliancehistory. Control Authorities may alsochoose to consider the'monitoringfrequency that would be imposed on asimilar direct'discharger in its NPDESpermit. Ultimately, the choice is theControl Authority's. EPA would like toclarify that this is not a substantivechange to existing requirements. By itslack of specificity, the Agency intendedto require that each report be based onan appropriate amount of sampling forthe particular industrial user. However,today's proposal should eliminate anyconfusion.

EPA is proposing two additionalchanges to § 403.12(g) today. The first isa provision requiring that all monitoringperformed by the industrial user bereported in the compliance reports under§ 403.12(e). Industrial users, like otherdischargers, may monitor morefrequently than required by theregulations or the Control Authority.The proposed revision would prevent anindustrial user that performs extrasampling from selecting the mostfavorable monitoring results to report tothe Control Authority. Otherwise,dischargers whose sample indicates aviolation could perform additionalmonitoring once compliance is attainedand report only the latter results.Clearly, the intent of self-monitoring isthat all monitoring be reported. Thisprovision is consistent with § 122.44(i) ofthe NPDES regulations, which requiresthat permittees report all monitoringresults.

The Agency is also proposing to add aprovision stating that if sampling andanalysis performed by the industrialuser indicates a violation, the user mustrepeat the sampling and analysis andsubmit the results of both analyses tothe Control Authority within 21 days.This provision would allow the ControlAuthority to detect patterns ofcontinuing noncompliance by'itsindustrial users, and thus assist indistinguishing isolated violations fromchronic noncompliance. EPA invitescomments on the scope of thisrequirement, i.e., whether it shouldapply to all industrial users or to alimited group of industrial users,'such asthose subject to categoricalpretreatment standards.

10. Self Monitoring vs. POTWMonitoring (40 CFR 403.12(g))

a. Existing rule. Industrial users arerequired to perform certain samplingand analyses for purposes of preparingthe various reports described in § 403.12(the baseline monitoring report, 90-daycompliance report, and period

compliance reports). See § 403.12(g). TheControl Authority is also required toconduct its own independentcompliance monitoring program. See§ 403.8(f)(2)(v). In addition, States andEPA periodically sample industrialusers. These industrial user reportsbased on the results of self-monitoringare the primary means by which Controland Approval Authorities determinecompliance with pretreatmentstandards. However, compliancesampling by Control and ApprovalAuthorities is used primarily as aperiodic check on the industrial user'smonitoring and to generate additionaldata for enforcement.

b. Proposed change. PIRT hasrecommended that § 403.12 be amendedto expressly allow POTW monitoring inlieu of self-monitoring by industrialusers. According to the Task Force,some POTWs have indicated theywould prefer to base their complianceprogram on sampling and analysis theyperform themselves rather than on self-monitoring by industrial users becausethe reports submitted by some industrialusers are not reliable. PIRT also notedthat some industrial users would preferthat the POTW conduct the monitoringprocedures. The General PretreatmentRegulations are not clear as to whetherthis is allowed.

In response to PIRT'srecommendation, EPA is proposing toamend § 403.12(g) to allow the ControlAuthority to.perform the sampling andanalyses required for baselinemonitoring reports, 90-day compliancereports and periodic compliance reportsin lieu of the industrial user. POTWschoosing to perform their own samplingand analyses for purposes of the reportsin § 403.12 must perform at least thesame amount of sampling and analysisas is required of industrial users.(Elsewhere in this Federal Registernotice, EPA is clarifying that the reportsrequired under § 403.12(e) must bebased on an appropriate amount ofsampling and analysis performed duringthe period covered by the report [seediscussion of other proposedamendments to § 403.12(g) above].)

Where the Control Authority choosesto perform the required sampling andanalysis itself, the industrial user wouldstill have to submit any otherinformation required by the applicableparagraph of § 403.12. For example,where the Control Authority isperforming the sampling and analysesotherwise required of the industrial userfor a BMR, the user would still berequired to submit the identifyinginformation, list of environmentalpermits, production information and

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description of operations described in§ 403.12(b)(1)-(3). The user would'alsoremain responsible for providing theControl Authority with the compliancecertification described in § 403.12(b)(6)and, if necessary, the complianceschedule described in § 403.12(b)(7).

If the Control Authority chooses to.-monitor in lieu of the industrial users, itis not bound by the July and Decemberreporting frequency for periodic reportsin § 403.12(e). Under § 403.12(e), theControl Authority has the discretion toalter the months during which thesereports are to be submitted, and thus themonths during which it must perform therequired sampling and analysis.

EPA solicits comments on thisproposal and invites additionalsuggestions as to how PIRT'srecommendation can best beimplemented.

11. Notification by Industrial Users ofChanged Discharge (40 CFR 403.12(j))

a. Existing rules. Under 40 CFR122.42(b)(2) of the NPDES regulations,POTWs are required to notify theirpermitting authority of any substantialchange in the volume or character ofpollutants being introduced into thePOTW by its industrial users. Of course,in order to fulfill this requirement, thePOTW must obtain the necessaryinformation from its industrial users.However, the current pretreatmentregulations do not require an industrialuser to notify the POTW of substantialchanges in the user's discharge to thePOTW. The industrial user compliancereports under § 403.12(e) are required tocontain information on the nature andcondentration of pollutants in theindustrial user's effluent that areregulated under categoricalpretreatment standards. However, thesereports are not adequate to provide thePOTW with the information required by40 CFR 122.42(b)(2) because: (1) Theyare not required to contain informationon wastestreams not regulated bycategorical standards (except for flowsof these streams as necessary to allowuse of the combined wastestreamformula under § 403.6(e)), and (2) theyare only required-to be submittedbiannually (unless the Control Authorityrequires more frequent submittal).

b. Proposed change. EPA is proposingto add a new paragraph (j) to § 403.12requiring all industrial users to promptlynotify the POTW of any substantialchange in the volume or character ofpollutants in the user's discharge to thePOTW. This will ensure that the POTWhas the necessary information to meetits obligation under 40 CFR 122.42(b)(2).

E. Miscellaneous

1. New Source Criteria (40 CFR 403.3(k))

a. Existing rule. "New source" isdefined for the purpose of thepretreatment program at 40 CFR 403.3(k)of the General Pretreatment Regulations.Under the. original definition, a facilitywas a new source if constructioncommenced after an applicablecategorical pretreatment standard wasproposed under section 307(c) of theClean Water Act as long as the standardwas thereafter promulgated within 120days of the proposal. If the standardwas not promulgated within, 120 days,the facility was not a new source unlessconstruction commenced after thestandard was promulgated. Thisdefinition was challenged by the NaturalResources Defense Council on thegrounds that the exclusion of thosesources whose construction began afterthe publication of the proposedstandard, but prior to promulgation offinal rule, was inconsistent with -the Act.The United States Court of Appeals forthe Third Circuit, in National

Association of Metal Finishers (NAMF)et al. v. EPA, 719 F.2d 624 (3d Cir. 1983),agreed, findiig the regulatory definitionof "new source" to be inconsistent withthe definition of that term in section306(a)(2) of the Act, which does notcontain a similar 120-day time limit. TheCourt remanded the definition to EPAfor action in accordance with itsdecision. On July 10, 1984, the Agencyrepromulgated the new source definitionto comport with the Third Circuit ruling(49 FR 28058). The new definitioneliminates the 120-day. deadline andbasically restates the statutorydefinition.

b. Proposed change. The GeneralPretreatment Regulations do not,however, address the basis fordetermining whether constructioncreates a new source at a site, and thusmakes the industrial user subject topretreatment standards for new sources,or merely modifies an existing source.The NPDES regulations, at 40 CFR122.29(b), contain specific criteria fornew source determinations for directdibchargers. This provision was revisedon September 26, 1984 (49 FR 37998). Asstipulated in § 122.29(b), constructionactivities could result in a "new source"if (1) it is construction of a source at anew or "greenfield" site; (2) it isconstruction at a site of an existingsource which totally replaces theprocess or production equipmentcausing the discharge at an existingsource; or (3) it creates not only a new"building, structure, facility, orinstallation," but it is "substantiallyindependent" of an existing source at

the same site. The new sourcedetermination criteria in § 122.29(b) alsoinclude factors to be considered inapplying the "substantial independence"test, and provide a clarification of whenconstruction is deemed to commence.

It is equally important that Approvaland Control Authorities, indirectdischargers and the public be able todetermine whether construction at thesite of an indirect discharger's existingfacility would result in a new source orsimply a modification of an existingsource. Like direct dischargers, indirectdischargers that are new sources mustmeet different, and generally morestringent standards than existingsources. Therefore, EPA is todayproposing "to add new sourcedetermination criteria identical to thosefound in the NPDES regulations to thepretreatment definition of "new source.". As in the NPDES regulations, the

proposed changes set out tfiree criteria.Construction by an industrial userwould be classified as a new source if:(1) The construction is carried out at asite at which no other source is located,(2) the construction totally replaces theprocess or production equipment thatcauses the discharge of pollutants at anexisting source, or (3) the production orwastewater generating processes of theconstructed facility are substantiallyindependent of an existing source at thesame site. The first two criteria dealwith situations where it is obviouslyappropriate to impose the generallymore stringent new source standards.The third criterion, the "substantialindependence" test is based on thenotion that in those situations wherethere is new construction but less thantotal replacement at 'an existing facility,the classification decision should bebased on the degree to which theconstructed facility functionsindependently of the existing source.The proposed substantial independencetest also sets forth two factors thatshould be considered in making thedetermination of whether constructionat an existing facility results inprocesses that are substantiallyindependent and therefore qualify as anew source: (1) The extent to which thenew facility is integrated with theexisting plant; and (2) the extent towhich the new facility is engaged in thesame general type of activity as theexisting source. Any construction at thesite of an existingfacility that does notmeet the above criteria will not result ina new source.

'Today's proposal, like the parallelNPDES provision, also states thatconstruction is deemed to -commencewhen the following are begun as part of

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a continuous on-site constructionprogram: (1) Installation or assembly of.facilities or equipment, or (2) significantsite preparation work necessary for suchinstallation or assembly. Construction isalso deemed to commence when theowner or operator of the facility hasentered into a binding contractualobligation for the purchase of facilitiesor equipment which are intended to beused in its operation within areasonable time. The proposal alsoclarifies that options to purchase orcontracts that can be terminated ormodified without substantial loss, andcontracts for feasibility, engineering anddesign studies do not constitute such acontractual obligation.

2. New Source Compliance Deadline (40CFR 403.6[b))

Existing rule. The current regulationsstate that compliance with categoricalpretieatment standards for new sourceswill be required "upon promulgation." 40CFR 403.6(b). However, new sourcesgenerally will commence discharge afterpromulgation of a categorical standardapplicable to them. For these industrialusers, compliance "upon ptomulgation"is meaningless and essentially requiresthem to comply with the pretreatmentstandard for new sources uponcommencement of discharge.Interpreting this provision to requireimmediate compliance by new sourcesis inconsistent with the NPDESregulations, which instead requirecompliance by direct dischargers thatare new sources "within the shortestfeasible time riot to exceed 90 days),"although new ,ources must "install andhave in oper- ni condition, and start-upall pollution trol equipment...before begin t4 to discharge." 40 CFR122.29(d)(41 -se NPDES provisionsrecognize th. .n after the appropriatetechnology i. tled, dischargers mayneed a shor, I operation period, toadjust treat i vels or start upcertain trea -4ystems (e.g.,biological tr- .-ni.

Proposed, m.e Today EPA isproposing to - in § 403.6(b}language ide , 'to that in 40 CFR122.29(d)(4 ) espect to, the deadlinefor complian - new sources. Underthis proposa v 'i source indirectdischargers. ' ew source directdischargers ' -,1d be required to installand start-up., ,o necessary pollutioncontrol equipi,,n before beginning todischarge. These sources would then berequired to atil'-eve compliance withapplicable ca,1tgorical standards withinthe shortest ledsible time, not to exceed90 days, aftei commencement ofdischarge. Toddy's proposal. wouldensure that indirect discharges that are

new sources have a meaningfulcompliance deadline consistent withthat for direct dischargers.

3. Variance for Fundamentally DifferentFactors (40 CFR 403.13)

a. Existing rule. Under § 403.13, anyinterested person or EPA may request afundamentally different factors (FDF)variance from the limits in a categoricalpretreatment standard. An FDF variancerequest must generally be submittedwithin 180 days after the effective dateof the categorical pretreatment standardfor which the variance is sought.However, if the industrial user hasrequested a category determinationpursuant to § 403.6(a), the FDF variancerequest must be made within 30 daysafter a final decision has been made onthe category determination request. Therequestor must submit data specific toan industrial user indicating that factorsrelating to the discharge controlled bythe categorical standard arefundamentally different from the factorsconsidered by EPA in establishing thestandard. Under current regulations,applications must be submitted to theState Director (in approved States), orthe Administrator of EPA or his delegate(in unapproved States). (On April 30,1986, EPA published a final rule revising.§ 403.13 to provide that the finaldecision on an FDF variance request isto be made by the Administrator or hisdelegate. 51 FR 16028. This authority iscurrently delegated to the RegionalAdministrators. See 51 FR 16029.) When'the initial application is submitted to theDirector, his decision to deny therequest is final. However, if the Directorfinds that fundamentally differentfactors do exist, he may recommendapproval to the Administrator (or hisdelegate). The Administrator (or hisdelegate) makes the final decision,subject to any subsequent request for ahearing on the matter (see §403.13(m)).POTW participation in this process islimited to receiving notice of and ariopportunity to review and comment onthe application, and being notified of thefinal decision.

b. Proposed change. POTWs withapproved pretreatment prograins haveprimary responsibility for controllingdischarges to their systems.Accordingly,. these POTW& should havemore input into whether industrial usersdischarging into their treatment plantswill be granted a variance under§ 403.13. POTWs are best. positioned toknow whether granting a variance in aparticular case will cause problems atthe POTW. For example, one of thecriteria applicable to adjustmentsmaking limits less stringent is whetherthe alternative limits; will result in a

violation of prohibitive dischargestandards under § 403.5, including boththe prohibited discharge standardslisted in § 403.5 (al and (b) and locallimits established by POTWs under§ 403.5(c). See § 403.13(c)(12)(ii). If sucha violation would occur, the variancerequest cannot be approved. POTWs areespecially qualified to judge whether thegranting of an FDF variance in aparticular case is likely to causeinterference, pass through, sludgecontamination or the violation of locallimits. In addition, POTWs are alwaysallowed to impose more stringent limitson industrial users than the Federalregulations (unless otherwise providedunder State law). See § 403.4. Where aPOTW wants to impose more stringentlimits than those resulting from approvalof an FDF request, it'should be able toprevent a less stringent variance frombeing granted.

Therefore, EPA is proposing to amendparagraphs (j)(2) and (j)(3) to providePOTWs with a greater role in the FDFprocess. Under the proposal, if thePOTW objects to the request for an FDFvariance during the 30-day commentperiod, the request will automatically bedeemed denied. The POTW will provide,in writing, its reasons for objecting tothe request. The Director or theAdministrator (or his delegate) willnotify the requestor (and the industrialuser where they are different) of thedenial and provide a copy of the reasonsgiven by the POTW. If the requestorwishes to challenge the denial, this mustbe done in State or local court. If thePOTW does not object to the requestduring the comment period, the Directoror the Administrator (or his delegate)will make a determination on therequest taking into consideration anycomments received. Notice of this finaldecision will be provided to therequestor (and the industrial user wherethey are different), the POTW and allpersons who submitted comments on therequest.

Today's proposal is consistent withthe ability of States with approvedpretreatment programs to deny FDFvariance requests (see § 403.13(k)).*Unlike States, however, POTWs wouldnot recommend approval of an FDFvariance request, but would only begiven the opportunity to deny therequest. POTWs cannot reasonably' beexpected to have the detailedknowledge regarding the basis andscope of national pretreatmentstandards that is necessary to determinewhether fundamentally different factorsexist in a given case. Today's proposalrecognizes this while still allowing thePOTW to impose more stringent limits

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where it chooses to do so by preventingthe granting of an FDF variance.

Today's proposal will not affect theremainder of § 403.13. As always, theindustrial user remains liable for anyviolations of applicable categoricalpretreatment standards until a finaldecision is made on a pending FDFvariance request.

4. Net/Gross Calculations (40 CFR403.15)

a. Existing rule. Section 403.15 allowsindustrial users to request that EPAadjust an applicable categoricalpretreatment standard to reflect creditfor pollutants in the intake water. Thissection was patterned after a similarprovision in the NPDES regulations (40CFR 122.45(f)). It differs from the NPDESprovision by providing that only EPAmay grant net credits, where the NPDESprovision allows approved States togrant credits.

An industrial user may obtain a creditunder § 403.15 if it demonstrates that: (1)Its intake water is drawn from the samebody of water into which the dischargefrom its publicly owned treatment worksis made, (2) the pollutants present in theintake water will not be entirelyremoved by the treatment systemoperated by the industrial user, (3) thepollutants in the intake water do notvary chemically or biologically from thepollutants limited by the applicablestandards, and (4) the industrial userdoes not significantly increaseconcentrations of pollutants in theintake water, even if the total mass ofpollutants remains the same. Net/grosscredits are available only to the extentthat pollutants are not removed byintake and effluent treatment systemsused by the industrial user.

b. Proposed changes. EPA recentlypromulgated a revised net/grossprovision for the NPDES program(§ 122.45(g); 49 FR 37998, September 26,1984). The revised rule was.designed tobe a less complicated and moreworkable approach to granting requestsby direct dischargers for a limitation ona net basis. A full discussion of theconsiderations underlying EPA'samendment of the NPDES provision canbe found at 49 FR 38025-38028(September 26, 1984). These sameconsiderations are equally applicable tothe pretreatment program. EPA istherefore proposing today to amend thenet/gross provision in the GeneralPretreatment Regulations to make itconsistent with the revised NPDESprovision.

Today's proposal would provide thatupon the request of an industrial user,an applicable categorical pretreatmentstandard will be adjusted to reflect

credit for pollutants in the intake waterif the user demonstrates that the controlsystem it proposes or uses to meet thecategorical standard wouldif properlyinstalled and operated, meet thestandard in the absence of pollutants inthe intake water. The basic principle isthat such a control system must beapplied to the discharger's effluent, butthat credit is available as necessary tomeet applicable limitations after thecontrol system is applied. In addition,under today's proposal, credit forgeneric pollutants (e.g., BOD, COD, TSS,oil and grease) is not allowed unless theindustrial user demonstrates that theconstituents of the generic measure inits effluent are substantially similar tothe constituents of the generic measurein the intake water, or unlessappropriate additional limits are placedon process water pollutants either at theoutfall or elsewhere. The purpose of thisrestriction is to prevent the discharge ofwastes that are more toxic than intakewater pollutants, but are controlled by alimitation that does not measure thisdifference in toxicity, such as an oil andgrease limit.

Under today's proposal, credit forintake pollutants is only allowed to theextent necessary to meet the applicablecategorical standard, up to a maximumvalue equal to the influent value. Also,the user must generally demonstratethat the intake water is drawn from thesame body of water as that into whichthe POTW discharges. While anindustrial user should not be heldresponsible for pollutants alreadyexisting in its water supply if the POTWdischarges into the same body of waterfrom which the user takes its water, thesame reasoning cannot supportallowance of a credit where the POTW'sdischarge is into another body of Water.The grant of a credit in the latter casewould allow a discharger to transferpollutants from one body of water toanother, thus resulting in the addition ofpollutants to particular receiving watersfor the first time. Today's proposalallows the Control Authority to waivethis "same body of water" requirementif he finds that no environmental

'degradation will result. An examplemight be where intake waters.are takenfrom a relatively clean tributary of arelatively dirty body of water anddischarged by the POTW to the latterbody, possibly adjacent to where thetributary itself flows into the large body.

Today's proposal also incorporates aPIRT recommendation that ControlAuthorities be allowed to make net/gross determinations. The Task Forcebased its recommendation of severalfactors. First, PIRT pointed out that net/gross determinations for direct

dischargers are routinely made by theNPDES permit issuing authority, whichis the functional equivalent of thepretreatment Control Authority. Second,PIRT stated that net/grossdeterminations for indirect dischargersare an activity that can be delegated toPOTWs and States implementing thepretreatment program, provided thatEPA develops suitable guidance onmaking such determinations. Finally,PIRT noted that § 403.15 currentlyprovides that net/gross determinationscan only be made by the EPA"'Enforcement Division Director," aposition that no longer exists at theRegional level. (EPA has recently issueda final rule in the Federal Registermaking technical amendments to theGeneral Pretreatment Regulations,including changing all references to the"Enforcement Division Director" to read"Water Management Division Director"to correctly reflect the Agency's currentorganization.) EPA agrees with PIRT'srecommendation and is thereforeproposing to amend § 403.15 to allownet/gross determinations to be made bythe Control Authority. The Agency willprovide appropriate guidance as needed.

5. Upset (40 CFR 403.16)

a. Existing rule. Existing § 403.16provides an affirmative defense in anenforcement action if the industrial usershows that noncompliance with acategorical pretreatment standard wasdue to factors beyond the reasonablecontrol of the discharger. This provisionin the pretreatment regulations ispatterned after that found in the NPDESregulations at 40 CFR 122.41(n) (47 FR52072).

b. Proposed change. EPA revised theupset provision for direct dischargers onSeptember 26, 1984. EPA is todayproposing to revise § 403.16 of thepretreatment regulations to make itconsistent with the 1984 revisions to theNPDES rule to clarify the showingnecessary to prove that an upset hasoccurred. The existing rule requires adischarger to prove that an upsetoccurred and that the "the IndustrialUser can identify the specific causes(s)of the upset. . .". In some cases, overlyliteral application of this requirementwould require a discharger to produce alevel of proof that is not scientificallypossible to obtain. The proposeddeletion of the word "specific" from§ 403.16(c)(1) clarifies that the regulationdoes not require investigation to animpossible degree of certainty. Theremay be cases where biological activity-is disrupted in a treatment system (forexample, where no change in raw wastecharacteristics could be identified) and

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where a thorough investigation by theindustrial user could not identify theprecise cause of the violation. Suchevidence could be adduced to show the"cause" required by the regulation, eventhough the precise cause eludeddetection. In these cases, it is sufficientthat the available evidence vindicatesthe industrial user although it does notspecifically identify the responsibleparty or event.

In the context of the upset provision ofthe NPDES regulations, several personsinquired whether a demonstration of"cause" of an upset can be based uponcircumstantial evidence rather thandirect evidence. Proof of fact may bemade through circumstantial as well asdirect evidence. Indeed, circumstantialevidence may be all that is available.However, it is not enough simply toshow that normal operating procedureswere followed at the time effluentlimitation were exceeded. Theregulation requires at least a thoroughinvestigation of the causes of anincident. Obviously, a claim of upsetwill require a stronger showing whereprevious violations have occurred andno efforts or insufficient efforts weremade to identify and remedy the causeor causes.

6. Bypass (40 CFR 403.17)

a. Existing rule. For directdischargers, the'NPDES regulationsprohibit bypass, which is defined as theintentional diversion of waste streamsfrom any portion of a discharger'streatment facility except in certainsituations. This provision thus requiresNPDES permittees to operate their entiretreatment facility at all times. There are,however, exceptions to the strictprohibition on bypass even whereeffluent limitations may be violated as aresult. Bypass may be excused if thebypass was unavoidable to prevent lossof life, personal injury or severeproperty damage, and where there wereno feasible alternatives to the bypass,such as the use of auxiliary treatmentfacilities, retention of untreated wastes,or maintenance during normal periods ofequipment downtime. The "no feasiblealternatives" criterion is not satisfied if,in the exercise of reasonableengineering judgment, the permitteeshould have installed adequate back-upequipment as preventative maintenanceor to prevent a bypass that occurredduring normal periods of equipmentdowntime.

The prohibition of bypass in theNPDES regulations applies even wherethe permittee does not violate permitlimitations during the bypass. However,permittees may bypass if they do notexceed effluent limitations and if the

bypass was for essential maintenance toassure efficient facility operations.

The NPDES bypass provision servestwo basic purposes. First, it excusescertain unavoidable or justifiableviolations of permit effluent limitations,provided the permittee can meet the 'bypass criteria. Second, it requires thatpermittees operate pollution controlequipment at all times, thus obtainingmaximum pollutant reductionsconsistent with technology-basedrequirements mandated by section 301of the Clean Water Act. Thus, thebypass provision furthers the Act's goalof eliminating the discharge of allpollutants. Section 101(a)(1) of the Act.Without such a provision, dischargerscould avoid appropriate technology-based control requirements.

b. Proposed change. EPA today isproposing to add a bypass provision tothe general pretreatment regulationssimilar to that in the NPDES program.The purposes served by the NPDESbypass provision are equally importantin the pretreatment context, and,therefore, the prohibition against bypassshould also apply to industrial usersdischarging to POTWs. Like the NPDESprovision, today's proposal wouldrequire industrial users to operate theirtreatment systems at all times.

Today's proposal, like the parallelNPDES provision, generally prohibitsbypass, even where the dischargerwould still comply with applicablecategorical standards and local limits.However, the proposal would allow anindustrial user to bypass where thebypass does not cause a violation of anyapplicable pretreatment standards orrequirements, if it is made for essentialmaintenance purposes to assureefficient operation of treatmentequipment. EPA's rationale for

* prohibiting bypass even where noviolation of applicable limitations wouldresult is stated in the preamble to theSeptember 26, 1984, NPDES rule-making(49 FR 38036-38037):

EPA's effluent limitations guidelines andstandards-setting process are predicted [sic]upon the efficient operation and maintenanceof removal systems. A number of the effluentlimitations guidelines and standards uponwhich NPDES permits are based do notcontain specific limitations for all of thepollutants of concern for the giiren industry,

The data available to EPA show thateffective control of these [unregulated]pollutants can be obtained by controlling thedischarge of the pollutants regulated by thestandard ... to levels achievable by themodel treatment technology upon which theeffluent guideline limits are based.*. *, * A*

If bypass of treatment equipment isallowed, there is no assurance that theseunlimited pollutants will be controlled, eventhough those specifically limited still meetpermit limitations.

Consistent with the parallel NPDESprovision, today's proposal also wouldnot prohibit bypasses that violateapplicable limitations when they areunavoidable to prevent loss of life,personal injury, or severe propertydamage, and there are no feasiblealternatives to bypassing, such as theuse of auxiliary treatment facilities,retention of untreated wastes, ormaintenanc6 during normal periods ofequipment downtime. As with theNPDES rule, this "no feasiblealternatives" condition is not met if, inthe exercise of reasonable engineeringjudgment, adequate back-up equipmentshould have been installed to prevent abypass which occurred during normalperiods of equipment downtime orpreventative maintenance. Properengineering practices often involve theuse of redundant or back-up systems forequipment such as pumps or powersupplies. Such practices can eliminateany noncompliance during periods ofequipment malfunction or maintenance.Under the proposal, the ControlAuthority will take into account whetherback-up equipment should have beenavailable in a given case.

EPA is also proposing to establish anotice requirement for situations wherea bypass by an industrial user results inthe violation of applicable pretreatmentstandards or requirements (includinglocal limits established in accordancewith § 403.5(c)). If the industrial userknows in advance of the need for abypass, it must give prior notice to theControl Authority, if possible at leastten days before the date on which thebypass is to occur. If the bypass is notanticipated, the industrial user mustnotify the Control Authority orallywithin 24 hours of becoming aware ofthe bypass. This 24-hour notice must befollowed within five days by a writtendescription of the bypass, its cause, itsduration (or, if it has not been corrected,how long it is expected to continue), andwhat has been done to rectify theproblem. Consistent with the NPDESbypass provision, the Control Authoritymay waive the written report on a case-by-case basis if the oral report has beenreceived within 24 hours.

1Il. Executive Order 12291

Under Executive Order 12291, EPAmust judge whether a regulation is"Major" and therefore subject to therequirement of a Regulatory ImpactAnalysis. These-amendments generally

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clarify the meaning of pretreatmentrequirements and do not imposesignificant new burdens on affectedparties. They do not satisfy any of thecriteria specified in section 1(b) of theExecutive Order. Therefore, this is not aMajor rulemaking.

This regulation was submitted to theOffice of Management and Budget forreview as required by Executive Order12291. Any comments from OMB andEPA and any EPA response to thosecomments are available for publicinspection at the EPA Public InformationReference Unit, Room 2402, U.S.Environmental Protection Agency, 401 MStreet, SW., Washington, DC 20460.

IV. Paperwork Reduction Act

The information collectionrequirements in this proposed rule havebeen submitted for approval to theOffice of Management and Budget(OMB) under the Paperwork ReductionAct of 1980, 44 U.S.C. 3501 et seq.Information Collection Requestdocuments (ICR Nos. 0088,0822, 1291)have been prepared by EPA and copiesmay be obtained from, NanetteLiepman; Information Policy Branch;EPA; 401 M St., SW. (PM-223);Washington, DC 20460 or by calling 202-382-2742. Submit comments on theserequirements to EPA and: Office ofInformation and Regulatory Affairs;OMB; 726 Jackson Place, NW.;Washington, DC 20503; Attention:Richard Otis. The final rule will respondto OMB or public comments on theinformation collection requirements.

V. Regulatory Flexibility Act*

Under the Regulatory Flexibility Act, 5U.S.C. 601 et seq., EPA is required toprepare a Regulatory FlexibilityAnalysis to assess the impact of rules onsmall entities. No regulatory flexibilityanalysis is required, however, where thehead of the agency certifies that the rulewill not have a significant economicimpact on a substantial number of smallentities. Today's proposed amendmentsto the regulations clarify the meaning ofseveral pretreatment requirements anddo not impose any significant newburdens.on affected parties.Accordingly, I hereby certify, pursuantto 5 U.S.C. 605(b), that theseamendments will not have a significantimpact on a substantial number of smallentities.

VI. Judicial Review of Provisions NotAmended

In the regulatory sectionof this notice,EPA has, for the sake of clarity,sometimes reprinted portions ofregulatory text that would. not beamended by today's proposal Those

-portions of the June 26, 1978 regulationsand the January 28, 1981 regulatoryamendments that are not substantivelyamended in today's Federal Registerwere only subject to judicial review inthose petitions for review that were filedwithin 90 days of the date of issuance ofthe June 26, 1978 regulations, and theJanuary 28, 1981 amendments thereto,respectively. Moreover, EPA does notsolicit comments on regulatoryprovisions for which no amendments areproposed.

VII. EPA Documents Cited in ThisNotice

The following EPA documents arereferenced in the preamble section ofthis notice:

Guidance Manual for the Use ofProduction Based CategoricalPretreatment Standards and theCombined Wastestream Formula (1985).

Guida'ce Manual for POTWPretreatment Program Development(1983).

Procedures Manual for ReviewingPOTW Pretreatment ProgramSubmission (1983).

Pretreatment Implementation ReviewTask Force-Final Report to theAdministrator (1985).

Pretreatment Compliance Monitoringand Enforcement Guidance to bea ,ailable in the near future.)

Copies of these documents can beobtained by contacting Hans I.E.Bjornson, Permits Division (EN-336),-Environmental Protection Agency, 401 MStreet, SW., Washington, DC 20460,(202) 475-9530.

List of Subjects in 40 CFR Part 403

Confidential business information,Reporting and recordkeepingrequirements, Waste treatment anddisposal, Water pollution control.

Dated: May 27, 1986.Lee M. Thomas,Administrator.

For the reasons set out in thepreamble, Chapter I of Title 40 of theCode of Federal Regulations is proposedto be revised as follows:

PART 403-GENERALPRETREATMENT REGULATIONS FOREXISTING AND NEW SOURCES

1. The authority citation for Part 403continues to read as follows:

Authority: Sec. 54(C)(2) of the Clean WaterAct of 1977 (Pub. L. 95-217), Sections204(b](1)(C), 208(b)(2)(C)(iii), 301(b)(1)(A)(ii),301(bl[2){A)(ii), 301(b)(2)(C), 301(h)(5),301(i)(2), 304(e), 304(g), 307, 308, 309, 402(b),405, and 501(a) of the Federal Water PollutionControl Act (Pub. L 92-500), as amended bythe Clean Water Act of 1977.

2. Section 403.3 is proposed to beamended by revising paragraph (k) toread as follows:

§ 403.3 Definitions.

(k)(1) The term "New Source" meansany building, structure, facility orinstallation from which there is or maybe a Discharge of pollutants, theconstruction of which commenced afterthe publication of proposedPretreatment Standards under section307(c) of the Act which will beapplicable to such source if suchStandards are thereafter promulgated inaccordance with that section, providedthat:

(i) The building, structure, facility orinstallation is constructed at a site atwhich no other source is located; or

(ii) The building, structure, facility orinstallation totally replaces the processor production equipment that causes thedischarge of pollutants at an existingsource; or

(iii) The production or wastewatergenerating processes of the building,structure, facility or installation aresubstantially independent of an existingsource at the same site. In determiningwhether these are substantiallyindependent, factors such as the extentto which the new facility is integratedwith the existing plant, and the extent towhich the new facility is engaged in thesame general type of activity as theexisting source should be considered.

(2) Construction on a site at which anexisting source is located results in amodification rather than a new source ifthe construction does not create a newbuilding, structure, facility, orinstallation meeting the criteria ofparagraph (k)(1) (ii) or (iii) of this sectionbut otherwise alters, replaces, or adds toexisting process or productionequipment.

(3) Construction of a new source asdefined under this paragraph hascommenced if the owner or operatorhas:

(i) Begun, or caused to begin as part ofa continuous onsite constructionprogram:

(A) Any placement, assembly, orinstallation of facilities or equipment; or

(B) Significant site preparation workincluding clearing, excavation, orremoval of existing buildings, structures,or facilities which is necessary for theplacement, assembly, or installation ofnew source facilities or equipment; or

(ii) Entered into a binding contractualobligation for the purchase of facilitiesor equipment which are intended to beused in its operation within areasonable time. Options to purchase or

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contracts which can be terminated ormodified without substantial -loss, andcontracts for feasibility, engineering,and design studies do not constitute acontractual obligation under thisparagrabh.* * * *, *

3. Section 403.6 is proposed to beamended by revising paragraph (b),redesignating paragraph (c) asparagraph (c)(1), adding new paragraphs(c)(2), (c)(3), (c)(4), (c)(5), (c)(6) and(c)(7), revising paragraph (d), revisingthe definition of "FD" in paragaphs (e)(1)(i) and (ii), revising paragaph (e)(3), andadding paragraphs (e)(4), and (e)(5) toread as follows:

§403.6 National Pretreatment Standards:Categorical Standards.

(b) Deadline for Compliance WithCategorical Standards. Compliance byexisting sources with categoricalPretreatment Standards shall be within3 years of the date the Standard iseffective unless a shorter compliancetime is specified in the appropriatesubpart of 40 CFR Chapter I, SubchapterN. Direct dischargers with NPDESpermits modified or reissued to providea variance pursuant to section 301(i)(2)of the Act shall be required to meetcompliance dates set forth in anyapplicable citegorical PretreatmentStandard. Existing sources whichbecome Industrial Users subsequent topromulgation of an applicablecategorical Pretreatment Standard shallbe considered existing Industrial Usersexcept where such sources meet thedefinition of a New Source as defined in§ 403.3(k). New Sources shall install andhave in operating condition, and shall"start-up" all pollution controlequipment required to meet applicablePretreatment Standards beforebeginning to Discharge. Within theshortest feasible time (not to exceed 90days), the New Source must meet allapplicable Pretreatment Standards.

(c)(1) * * *(2) When the limits in a categorical

Pretreatment Standard are expressedonly in terms of mass of pollutant perunit of production, the Control Authoritymay convert the limits to equivalentlimitations expressed either as mass ofpollutant discharged per day or effluentconcentration for purposes ofcalculating effluent limitationsapplicable to individual IndustrialUsers.

(3) A Control Authority calculatingequivalent mass-per-day limitationsunder paragraph (c)(2) of this sectionshall calculate such limitations bymultiplying the limits in the Standard bythe Industrial User's average rate of

production. This average rate ofproduction shall be based not upon thedesigned production capacity but ratherupon a reasonable measure of theIndustrial User's actual long-term dailyproduction, such as the average dailyproduction during a representative year.For new sources, actual production shallbe estimated using projected production.

(4) A Control Authority calculatingequivalent concentration limitationsunder paragraph (c)(2) of this sectionshall calculate such limitations bydividing the mass limitations derivedunder paragraph (c)(3) of this section bythe average daily flow rate of theIndustrial User's regulated processwastewater. This average daily flowrate shall be based upon a reasonablemeasure of the Industrial User's actuallong-term average flow rate, such as theaverage daily flow rate during arepresentative year.

(5) Equivalent limitations calculatedin accordance with paragraphs (c)(3)and (c](4) of this section shall bedeemed Pretreatment Standards for thepurposes of section 307(d) of the Act andthis Part. Industrial Users-will berequired to complywith the equivalentlimitations in lieu of the promulgatedcategorical standards from which theequivalent limitations were derived.

(6) Many categorical pretreatmentstandards specify one limit forcalculating maximum daily dischargelimitations and a second limit forcalculating maximum monthly average,or 4-day average, limitations. Wheresuch Standards are being applied, thesame production or flow figure shall beused in calculating both types ofequivalent limitations.

(7) The Industrial User shallimmediately notify the ControlAuthority of any significant change inthe production or flow rates described inparagraphs (c)(3) and (c)(4) of thissection. The Control Authority shallthen adjust the applicable equivalentlimitation(s) to account for such change.

(d) Dilution Prohibited as Substitutefor Treatment. Except where expresslyauthorized to do so by an applicablePretreatment Standard or Requirement,no Industrial User shall ever increasethe use of process water, or in any otherway attempt to dilute a discharge as apartial or complete substitute foradequate treatment to achievecompliance with a PretreatmentStandard or Requirement. The ControlAuthority (as defined in § 403.12(a)) mayimpose mass limitations on IndustrialUsers which are using dilution to meetapplicable Pretreatment Standards orRequirements, or in other cases wherethe impositjon of mass limitations isappropriate.

(e) * * *(1) * * *

(i) and (ii) * * *FD=the average daily flow (at least a

30-day average) from (a) boilerblowdown streams, non-contact coolingstreams, stormwater streams, andreverse osmosis or demineralizerbackwash streams; provided, however,that where such streams contain asignificant amount of a pollutant, andt~e combination of such streams, priorto treatment, with an Industrial User'sregulated process wastestream(s) willresult in a substantial reduction of thatpollutant, the Control Authority, uponapplication of the Industrial User, mayexercise its discretion to determinewhether such stream(s) should beclassified as diluted or unregulated. Inits application to the Control Authority,the Industrial User' must provideengineering, production, sampling andanalysis and such other information sothat the Control Authority can make itsdetermination, or (b) sanitarywastestreams where such streams arenot regulated by a categoricalPretreatment Standard, or (c) from anyprocess wastestreams which were orcould have been entirely exempted fromcategorical Pretreatment Standardspursuant to paragraph 8 of the NRDC v.Castle Consent Decree (12 ERC 1833) forone or more of the following reasons(see Appendix D):

(1) the pollutants of concern are notdetectable in the effluent from theIndustrial User (paragraph (8)(a)(iii));

(2) the pollutants of concern arepresent only in trace amounts and areneither causing nor likely to cause toxiceffects (paragraph (8)(a)(iii));

(3) the pollutants of concern arepresent in amounts too small to beeffectively reduced by technologiesknown to the Administrator (paragraph(8)(a)(iii)): or

(4] the wastestream contains onlypollutants which are compatible withthe POTW (paragraph (8)(b)(i)).

(3) Self-monitoring. Self-monitoringrequired to insure compliance with thealternative categorical limit shall beconducted in accordance with therequirements of § 403.12(g).

(4) Centralized Waste Treatment. Analternative pretreatment limit shall bederived by the combined wastestreamformula and applied to the Discharge ofa privately owned centralized wastetreatment facility where such facilityreceives wastes from one or moreindustrial contributors whose processwastewaters are regulated by one ormore categorial PretreatmentStandards and combines such

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wastewater(s) prior to treatment. Eachindustrial contributor shall inform thecentralized waste treatement facility,prior to conveyance of its waste(s) tosuch facility, of the nature of itsprocesses (including relevant productionand flow rates, where applicable), thevolume and pollutant constituents of thewaste(s), and any categoricalStandard(s) applicable to such waste(s).An industrial contributor remainsresponsible for compliance by thecentralized waste treatment facility withapplicable Pretreatment Standards.

(5) Choice of monitoring locatin.Where a treated process wastestream iscombined prior to treatment ofwastewaters other than those generatedby the regulated process, the IndustrialUser may monitor either the segregatedprocess wastestream or the combinedwastestream for the purpose ofdetermining compliance with applicablePretreatment Standards. If the IndustrialUser chooses to monitor the segregatedprocess wastestream, it shall apply theapplicable categorical PretreatmentStandard. If the User chooses to monitorthe combined wastestream, it shallapply an alternative discharge limitcalculated using the combinedwastestream formula as provided in thissection. The Industrial User may changemonitoring points only after receivingapproval from the Control Authority.The Control Authority shall ensure thatany change in an Industrial User'smonitoring point(s) will not allow theUser to substitute dilu-tion for adequatetreatment to achieve 'Compliance withapplicable Standards.

4. Section 403.8 is proposed to beamended by revising paragraphs lb) and(f)(1)(vi}(A), and adding a newparagraph (f)(4)to read as follows:

§ 403.8 POTW pretreatment programs:Development by POTW.

(b) Deadline for Program Approval. APOTW which meets the criteria ofparagraph (a) of this section mustreceive approval of a POTWPretreatment Program no later than 3years after the reissuance ormodification of its existing NPDESpermit but in no case later than July 1,1983. POTWs whose NPDES permits aremodified under section 301(h) of the Actshall have a Pretreatment Programwithin less than 3 years as provided forin 40 CFR Part 125, Subpart G (44 FR34783 (1979)). POTWs identified afterJuly 1,1983 as being required to developa POTW Pretreatment Program underparagraph (a) of this section shalldevelop and submit such a program forapproval as soon as possible, but in nocase later than one year after written

notification from the Approval Authorityof such identification. The POTWPretreatment Program shall meet thecriteria set forth in paragraph (f) of thissection and shall be administered by thePOTW to ensure compliance byIndustrial Users with applicablePretreatment Standards andRequirements.

(f) * *

(vi)(A) Obtain remedies fornoncompliance by any Industrial Userwith any Pretreatment Standard andRequirement. All POTW's shall be ableto seek injunctive relief fornoncompliance by Industrial Users withPretreatment Standards andRequirements. All POTWs shall alsohave authority to assess civil or criminalpenalties in at least the amount of $300 aday for each violation by IndustrialUsers of Pretreatment Standards andRequirements. POTWs whose approvedPretreatment Programs requiremodification to conform to therequirements of this paragraph shallsubmit a request for approval of aprogram modification in accordancewith § 403.18 by [one year from effectivedate of amendment] unless the Statewould be required to enact or amend astatutory provision, in which case thePOTW shall submit such a request by[two years from effective date ofamendment].

(4) Local limits. The POTW shalldevelop local limits as required in§ 403.5(c)(1).

5. Section 403.9 is proposed. to beamended by revising paragraph (e), toread as follows: '

§ 403.9 POTW pretreatment programsand/or authorization to revise pretreatmentstandards: submission for approval.

(e) Approval authority action, AnyPOTW requesting POTW PretreatmentProgram approval shall submit to theApproval Authority three copies of theSubmission described in paragraph (b),and if appropriate, (d) of this section.Within 60 days after receiving theSubmission, the Approval Authorityshall make a preliminary determinationof whether the Submission meets therequirements of paragraph (b) and, ifappropriate, (d) of this section. If theSubmission is determined to meet theserequirements, the Approval Authorityshall:

(1) Notify the POTW that theSubmission has leen received and isunder review; and

(2) Commence the public notice andevaluation activities set forth in § 403.11.

§ 403.10 [Amended]6. Section 403.10 is proposed to be

amended by removing paragraph(g){l ]{iii).

-7. Section 403. 11 is proposed to beamended by revising the introductorytext of paragraph (b) to read as follows:

§ 403.11 Approval procedures for POTWpretreatment programs and POTW grantingof removal credits.

(b) Public notice and opportunity forhearing. Upon receipt of a Submissionthe Approval Authority shall commenceits review. Within 20 Work days aftermaking a determination that aSubmission meets the requirements of§ 403.9(b), and, where removalallowance approval is sought,§ § 403.7(d) and 403.9(d), or at such latertime under § 403.7(c) that the ApprovalAuthority elects to review the removalallowance Submission, the ApprovalAuthority shall:

8. Section 403.12 is proposed to beamended by revising the introductory'text of paragraph (b), revisingparagraphs (b)(5)(iii), (b)(5)(iv), (d), (f),and (g), redesignating paragraphs (h)through (1) as (k) through (o), revisingnewly designated paragraph (1), adding(o)(4) to newly designated paragraph (o),and by adding new paragraphs (e)(3),.(h), (i), and (j) to read as follows:

§ 403.12 Reporting requirements.forPOTWs and Industrial users.

(b) Reporting requirements forindustrial users upon effective date ofcategorical pretreatment standard-baseline report. Within 180 days afterthe effective date a categoricalPretreatment Standard, or 180 days afterthe final administrative decision madeupon a category determinationsubmission under § 403.6(a){4),whichever is later, existing IndustrialUsers subject to such categoricalPretreatment Standards and currentlydischarging to or scheduled to dischargeto a POTW shall be required to submitto the Control Authority a report whichcontains the information. listed inparagraph (b) (1)-(7) of this section.Where reports containing thisinformation already have beensubmitted to the Director or RegionalAdministrator in compliance with therequirement of 40 CFR 128.140(b) (1977),the Industrial. User will not be requiredto submit this information again. At

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last 90 days prior to commencement ofdischarge, New Sources, and sourcesthat become Industrial Users subsequentto the promulgation of an applicablecategorical Standard, shall be requiredto submit to the Control Authority areport which contains the informationlisted in paragraphs (b) (1)-(5) of thissection. New Sources may giveestimates of the information requestedin paragraphs (b) (4) and (5) of thissection:* * * * *

(5) * *

(iii) Grab samples must be used forpH. cyanide, total phenols, oil andgrease, and sulfide. For all otherpollutants, 24-hour composite samplesmust be obtained through flow-proportional composite samplingtechniques where feasible. The ControlAuthority may waive flow-proportionalcomposite sampling for any IndustrialUser that demonstrates that the use ofan automatic sampler is infeasible. Insuch cases, samples may be obtained'through time-proportional compositesampling techniques or through aminimum of four (4) grab samples wherethe User demonstrates that this willprovide a representative sample of theeffluent being discharged..

(iv) The User shall take a minimum ofone representative sample to compilethat data necessary to comply with therequirements of this paragraph.

(d) Report on compliance withcategorical pretreatment standarddeadline. Within 90 days following thedate for final compliance withapiplicable categorical PretreatmentStandards or in the case of a NewSource following commencement of theintroduction of wastewater into thePOTW, any Industrial User subject toPretreatment Standards andRequirements shall submit to theControl Authority a report containingthe information described in paragraphs(b) (4)-(6) of this section. This reportshall also contain the Industrial User'scurrent actual average production rate.(e) * * *(3) For Industrial Users subject to

categorical Pretreatment Standardsexpressed only in terms of mass per unitof production, the reports required bythis section shall include the User'sactual average production rate for thereporting period.

(f) Notice of slug loading. AllIndustrial Users shall notify the POTWimmediately of any slug loading, asdefined by § 403.5(b) (1)-(5), by theIndustrial User.

(g) Monitoring and analysis todemonstrate continued compliance. The

report required in paragraphs (b), (d),and (e) of this section shall contain theresults of sampling and analysis of thedischarge, including the flow and thenature and concentration or productionand mass where requested by theControl Authority, of pollutantscontained therein which are limited bythe applicable Pretreatment Standards.The frequency of monitoring shall beprescribed in the applicablePretreatment Standard. This samplingand analysis may be performed by theControl Authority in lieu of theIndustrial User. These reports shall alsocontain the results of all samplihg andanalysis performed by the IndustrialUser during the period covered by thereport. If sampling and analysisperformed by the Industrial Userindicates a violation, the User shallrepeat the sampling and analysis andsubmit the results of both analyses tothe Control Authority within 21 days.The reports required in paragraph (e)shall be based upon data obtainedthrough appropriate sampling andanalysis performed during the periodcovered by the report, which data isrepresentative of conditions occurringduring the reporting period. The ControlAuthority may require whateverfrequency of monitoring it deemsnecessary to assess and assurecompliance by Industrial Users withapplicable Pretreatment Standards andRequirements. All analyses shall beperformed in accordance withprocedures established by theAdministrator pursuant to section 304(h)of the Act and contained in 40 CFR Part136 and amendments thereto or with anyother test procedures approved by theAdministrator. (See §§ 136.4 and 136.5.)Sampling shall be performed inaccordance with the techniquesapproved by the administrator. Where40 CFR Part 136 does not includesampling or analytical techniques for thepollutants in question, or where theAdministrator determines that the Part136 sampling and analytical techniquesare inappropriate for the pollutant inquestion, sampling and analyses shallbe performed using validated.analyticalmethods or any other sampling andanalytical procedures, includingprocedures suggested by the POTW orother parties, approved by theAdministrator.

(h) Reporting requirements forIndustrial Users with dischqrges notsubject to categorical PretreatmentStandards. The Control Authority shallrequire appropriate reporting from thoseIfdustrial Users with discharges that arenot subject to categorical PretreatmentStandards.

(i).Annual POTW reports. POTWswith approved Pretreatment Programsshall provide the Approval Authoritywith a report that briefly describes thePOTW's program activities, includingactivities of all participating agencies, ifmore than one jurisdiction is involved inthe local program. The report requiredby this section shall be submitted nolater than one year after approval of thePOTW's Pretreatment Program, and atleast annually thereafter, and shallinclude, at a minimum, the following:

(1) An- updated list of the POTW'sIndustrial Users, including their namesand addresses, or a list of deletions andadditions keyed to a previouslysubmitted list. The POTW shall providea brief explanation of each deletion.This list shall identify which IndustrialUsers are subject to categoricalPretreatment Standards and specifywhich Standards are applicable to eachsuch Industrial User. The list shall alsoindicate which Industrial Users aresubject to local Standards that are morestringent than the categoricalPretreatment Standards. The POTWshall also list the Industrial Users thatare subject only to local Standards.

(2) A summary of the compliancestatus of each Industrial User over thereporting period;

(3) A summary of compliance andenforcement activities (includinginspections) conducted by the POTWduring the reporting period; and

(4) Any other relevant informationrequested by the Approval Authority.

(j) Notification of changed Discharge.All Industrial Users shall promptlynotify the POTW of any substantialchange in the volume or character ofpollutants in their discharge.

(1) Signatory requirements forindustrial user reports. The reportsrequired by subsections (b), (d), and (e)of this section shall include thecertification statement as set forth in§ 403.6(a)(ii), and shall be signed asfollows:

(1) By a responsible corporate officer,if the Industrial User submitting thereports required by paragraph (b), (d)and (e) of this section is a corporation.For the purpose of this paragraph, aresponsible corporate officer means (i) apresident, secretary, treasurer,.or vice-president df the corporation in charge ofa principal business function, or anyother person who performs similarpolicy- or decision-making functions forthe corporation, or (ii) the manager ofone or more manufacturing, production,or operation facilities employing morethan 250 persons or having gross annualsales or expenditures exceeding $25

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million (in sdcond-quarter 1980 dollars).if authority to sign documents has beenassigned or delegated to the manager inaccordance with corporate procedures.

(2) By a general partner or proprietorif the Industrial User submitting thereports required by paragraphs (b), (d)and (e) of this section is a partnership orsole proprietorship respectively.

(3) By a duly authorizedrepresentative of the individualdesignated in paragraph (e)(1), or (e](2)of this section if:

(i) The authorization is made inwriting by the individual described inparagraph (1)(1) and (1)(2);

(ii) The authorization specifies eitheran individual or a position havingresponsibility for the overall operationof the facility from which the IndustrialDischarge originates, such as theposition of plant manger or a position ofequivalent responsibility, or havingoverall responsibility for environmentalmatters for the Industrial User; and

(iii) The written authorization issubmitted to the Control Authority.

(4) Any industrial contributor to aprivately owned centralized wastetreatment facility that discharges to aPOTW shall maintain records of allinformation provided to the centralizedwaste treatment facility pursuant to§ 403.6(e)(4), including any results ofmonitoring activities carried out for thepurpose of complying with that section.Records of monitoring data shall includethe information listed in paragraph (1)(1)of this section. The industrialcontributor shall retain the recordsdescribed in this paragraph for aminumum of 3 years and shall makesuch records available for inspectionand copyihg by the POTW, the Director,and the Regional Administrator. Thisperiod of retention shall be extendedduring the course of any unresolvedlitigation regarding the industrialcontributor or the centralized wastetreatment facility, or when requested bythe POTW, the Director, or the RegionalAdministrator.

9. Section 403.13 is proposed to beamended by revising paragraphs (j){2)and (j)(3) to read as follows:

§ 403.13 Variances from categoricalpretreatment standards for fundamentallydifferent factors.

(j) * *

(2) The public notice shall provide fora periQd of not less than 30 daysfollowing the date of the public noticeduring which time interested personsmay review the request and submit theirwritten views on the request. If the

POTW into which the Industrial Userdischarges objects to the request duringthe comment period, the request shallautomatically be deemed'denied. ThePOTW shall provide, in writing, itsreasons for objecting to the request. TheDirector or Administrator (or hisdelegate) shall notify the requestor (andthe Industrial User where they are notthe same) of the denial and provide acopy of the reasons given by the POTWtherefor.

(3) Following the Comment period, andprovided that the POTW into which theIndustrial User discharges has notobjected to the request, the Director orAdministrator (or his delegate) will.make a determination on the requesttaking into consideration any commentsreceived. Notice of this final decisionshall be provided to the requestor (andthe Industrial User where they are notthe same), the POTW into which theIndustrial User discharges and allpersons who submitted comments on therequest.

10. Section 403.15 is proposed to berevised to read as follows:

§ 403.15 Net/Gross calculation.Categorical Pretreatment Standards

may be adjusted to reflect the presenceof pollutants in the Industrial User'sintake water in accordance with thissection:

(a) Application. Any Industrial Userwishing to obtain credit for intakepollutants must make application to theControl Authority. Upon request of theIndustrial User, the applicable Standardwill be calculated on a "net" basis, i.e.,adjusted to reflect credit for pollutantsin the intake water, if the requirementsof paragraph (b) of this section are met.

(b) Criteria. (1) The Industrial Usermust demonstrate that the controlsystem it proposes or uses to meetapplicable categorical PretreatmentStandards would, if properly installedand operated, meet the Standards in theabsence of pollutants in the intakewaters.

(2) Credit for generic pollutants suchas biochemical oxygen demand (BOD),total suspended solids (TSS), and oiland grease should not be granted unlessthe Industrial User demonstrates thatthe constituents of the generic measurein the User's effluent are substantiallysimilar to the constituents of the genericmeasure in the intake water or unlessappropriate additional limits are placedon process water pollutants either at theoutfall or elsewhere.

(3) Credit shall be granted only to theextent necessary to meet the applicablecategorical Pretreatment Standards(s),up to a maximum value equal to the

influent value. Additional monitoringmay be necessary to determineeligibility for credits and compliancewith Standard(s) adjusted under thissection.

(4) Credit shall be granted onlyif theUser demonstrates that the intake wateris drawn from the same body of wateras that into which the POTWdischarges. The Control Authority maywaive this requirement if he finds thatno environmental degradation willresult.

11. Section 403.16 is proposed to beamended by revising paragraph (c)(1) toread as follows:

§ 403.16 Upset povislon.}* * **

(1) An Upset occurred and theIndustrial User can identify .the cause(s)of the Upset;

12. 'Part 403 of Title 40 of the Code ofFederal Regulations is proposed to beamended by adding a new § 403.17 toread as follows:

§ 403.17 Bypass.(a) Definitions. (1) "Bypass" means

the intentional diversion ofwastestreams from any portion of anIndustrial User's treatment facility.

(2) "Severe property damage" meanssubstantial physical damage to property,damage to the treatment facilities whichcauses them to become inoperable, orsubstantial and permanent loss-ofnatural resources which can reasonablybe expected to occur in the absense of abypass. Severe pfoperty damage doesnot mean economic loss caused bydelays in production.

(b) Bypass not violating applicablePretreatment Standards orRequirements. An Industrial User mayallow any bypass to occur which doesnot cause Pretreatment Standards orRequirements to be violated, but only ifit also is for essential maintenance toassure efficient operation. Thesebypasses are not s'ubject to theprovision of paragraphs (c) and (d) ofthis section.

(c) Notice. (1) If an Industrial Userknows in advance of the need for abypass, it shall submit prior notice to theControl Authority, if possible at leastten days before the date of the bypass.

(2) An Industrial User shall submitoral notice of an unanticipated bypassthat exceeds applicable PretreatmentStandards to the Control Authoritywithin 24 hours from the time theIndustrial User becomes aware of thebypass. A written submission shall alsobe provided within 5 days of the time

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the Industrial User becomes aware ofthe bypass. The written submission shallcontain a description of the bypass andits cause; the duration of the bypass,including exact dates and times, and, ifthe bypass has not been corrected, theanticipated time it is expected tocontinue; and steps taken or planned toreduce, eliminate, and preventrecurrence of the bypass. The ControlAuthority may waive the written reporton a case-by-case basis if the oral reporthas been received within 24 hours.

(d) Prohibition of bypass. (1) Bypass isprohibited, and the Control Authoritymay take enforcement action against anIndustrial User for a bypass, unless;

(i) Bypass was unavoidable to preventloss of life, personal injury, or severeproperty damage;

(ii) There were no feasiblealternatives to the bypass, such as theuse of auxiliary treatment facilities,retention of untreated wastes, ormaintenance during normal periods ofequipment downtime. This condition isnot satisfied if adequate back-upequipment should have been installed inthe exercise of reasonable engineeringjudgment to prevent a bypass whichoccurred during normal periods ofequipment' downtime or preventativemaintenance; and

(iii) The Industrial User submittednotices as required under paragraph (c)of this section.

(2) The Control Authority mayapprove an anticipated bypass, afterconsidering its adverse effects, if theControl Authority determines that it willmeet the three conditions listed inparagraph (d)(1) of this section.

13. Part 403 of Title 40 of the Code ofFederal Regulations is proposed to beamended by adding a new § 403.18 toread as follows:

§ 403.18 Modification of POTWPretreatment Programs.

(a) General. Either the ApprovalAuthority or a POTW with an approvedPOTW Pretreatment Program mayinitiate program modification at anytime to reflect changing conditions at the

POTW. Program modification isnecessary whenever there is asignificant change in the operation of aPOTW Pretreatment Program thatdiffers from the information in thePOTW's Submission, as approved under§ 403.11.

(b) Procedures. POTW PretreatmentProgram modifications shall beaccomplished as follows:

(1) The POTW shall submit to theApproval Authority a statement of thebasis for the desired modification, a%modified program description (see§ 403.9(b)), and any other documents asthe Approval Authority determines to benecessary under the circumstances.

(2) The Approval Authority shallapprove or disapprove all modificationsbased on the requirements of § 403.8(f).For substantial modifications, theApproval Authority shall follow theprocedures in § 403.11 (b)-(f).

(3) Modifications shall beincorporated into the POTW's NPDESpermit after approval. For substantialmodifications, the permit will bemodified to incorporate the approvedmodification as soon as possible asprovided in 40 CFR 122.63(f). For allother modifications, the permit will bemodified to incorporate the approvedmodification the next time the permit isreissued or modified for any otherreason.

(4) POTW Pretreatment Programmodifications shall become effectiveupon the approval of the ApprovalAuthority. Notice of approval ofsubstantial modifications shall bepublished in the same newspaper as thenotice of the original request forapproval of the modification under§ 403.11(b)(1)(i)(B). Notice of approval ofnon-substantial modifications may alsobe given by such publication, or by aletter from the Approval Authority tothe POTW, a copy of which the POTWshall also send to its Industrial Users.

(c) Substantial modifications. (1)Substantial modifications include, butare not limited to, the following:

(i) Changes to the POTW'senforcement authorities (e.g.. remedies

available for violations of P'etreatmentStandards and Requirements byIndustrial Users);

(ii) Change's to local limits containedin municipal ordinances;

(iii) Changes to the POTW's controlmechanism, as described in§ 403.8(f)(1)(iii); and

(iv) Changes to the POTW's methodfor implementing categoricalPretreatment Standards (e.g.,incorporation by reference, separatepromulgation, etc.).

( (2) The Approval Authority willdetermine, on a case-by-case basis,whether other modifications aresubstantial. The criteria to be applied inmaking such determinations include:

(i) Whether the modification wouldhave a significant impact on theoperation of the POTW's PretreatmentProgram;

(ii) Whether the modification wouldresult in an increase in pollutantloadings at the POTW; and

(iii) Whether the modification wouldresult in less stringent requirementsbeing imposed on Industrial Users of thePOTW.

PART 122-[AMENDED]

14. The authority citation for Part 122continues to read as follows:

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

15. 40 CFR 122.63 is proposed to beamended by adding paragraph (g) toread as follows:

§ 122.63 Minor modifications of permits.

(g) Incorporate conditions of a POTWpretreatment program that has beenapproved in accordance with theprocedures in 40 CFR 403.11 (or amodification thereto that has beenapproved in accordance with theprocedures in 40 CFR 403.18) asenforceable conditions of the POTW'spermit.

[FR Doc. 86-12718 Filed 8-11-86; 8:45 am]BILING CODE 6S60-50-M

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