July' 24, 1SSO
Part II j..'-"•'.•
. •' " • -.V- •••.
" ' ' . • 'h
Environmental
40 CHI" Parts 122 and 403
Genera? Pretreatrtient and National
Pollutant Discharge Eiimisiation System
Regulations; Final Flu!© --. '
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80082
Federal Register 'Vol. 55, '
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 122 and 403
[EN-FRL-3691-7]
BIN 2040-AA99
EPA Administered Permit Programs;
the National Pollutant Discharge
Elimination System; General
Pretreatment Regulations for Existing
and New Sources; Regulations To
Enhance Control of Toxic Pollutant
and Hazardous Waste Discharges to
Publicly Owned Treatment Works
AGENCY: Environmental Protection
Agency (EPA).
ACTION; Final rule.
SUMMARY: On November 23,1988 (53 FR
47632), EPA proposed to revise the
General Pretreatment and National
Pollutant Discharge Elimination System
regulations (40 CFR parts 122 and 403)
pursuant to section 3018{b) of the
Resource Conservation and Recovery
Act (RCRA) and sections 307(b) and
402(b)(8) of the Clean Water Act (CWA).
The proposed regulations were,'
developed in accordance with EPA's "
Report to Congress on the Discharge of
Hazardous Wastes to Publicly Owned
Treatment Works (EPA/530-SW-8&-
004, hereinafter referred to as "the
Domestic Sewage Study" or "the
Study"). Today the Agency is
promulgating a final rule to implement
many of the proposed revisions.
EPA submitted the Study to Congress
in response to section 3018{a) of RCRA.
This provision directed the Agency to
prepare a report for Congress on wastes
discharged through sewer systems to
publicly owned treatment works "
(POTWs) that are exempt from
regulation under RCRA as a result of the
Domestic Sewage Exclusion. The Study
examined the nature and sources of
hazardous wastes discharged to
POTWs, measured the effectiveness of
EPA's programs in dealing with such
discharges, and identified for Agency
consideration a number of possible
initiatives that could enhance control of
hazardous wastes entering POTWs.
Today's final rule is promulgated
pursuant to section 3018(b) of RCRA.
This section directs the Administrator to
revise existing regulations and
promulgate additional regulations as are
necessary to assure that hazardous
wastes discharged to POTWs are
adequately controlled to protect human
health and the environment.
DATES: This regulation shall become
effective on August 23,1990. For
purposes of judicial review, this
regulation is iss'ued at 1 p.m. on August
7,1990. "
ADDRESSES: Questions on today's rule of
a technical nature should be addressed
to: Marilyn Goode, Permits Division
(EN-336), Environmental Protection
Agency, 401M Street SW., Washington,
DC 20460. The record for this .
rulemaking, including all public
comments received on the proposal, is
available for inspection and copying at.
the EPA Public Information Reference
Unit, room 2402,401M Street SW.,
Washington, DC 20460. A reasonable fee
may be charged for copying.
FOR FURTHER INFORMATION CONTACT:
Marilyn Goode, Permits Division (EN-
336), Environmental Protection Agency,
401M Street SW., Washington, DC 20460
(202)475-9526.
SUPPLEMENTARY INFORMATION:
I. Background
II. Revisions , ,
A. Specific Discharge Prohibitions - '
1. Ignitability and Explosivity
2. Reactivity and Fume Toxicity
S.RCRAToxicity ,
4. Cprrosivity
5. Oil and Grease . ,
6. Solvent Wastes _ . . • .
B. Spills and Batch Discharges (slugs)
C. Trucked and Hauled Wastes , .
D. Notification Requirements . 1 .
E. Individual Control Mechanisms for ... ,
Industrial Users
F. Implementing the General Prohibitions'
Against Pass Through and Interference ,
1. Toxicity-Based Permit Limits
2. Sludge Control
3. Control of Indirect Dischargers:
Commercial Centralized Waste Treaters
4. Categorical Standards for Other
Industries
G. Enforcement of Categorical Standards
1. Revisions to Local Limits '
2. Inspections and Sampling of Significant
Industrial Users by POTWs
3. Definition of Significant Industrial User
4. Enforcement Response Plans for POTWs
5. Definition of Significant Violation
6. Reporting Requirements for Significant
Industrial Users
H. Miscellaneous Amendments
1. Local Limits Development and .
Enforcement - '
2. EPA and State Enforcement Action
3. National Pretreatment Standards:
Categorical Standards
4. POTW Pretreatment Program
Requirements: Implementation
5. Development and Submission of NPDES
State Pretreatment Programs .
6. Administrative Penalties Against .
Industrial Users
7. Provisions Governing Fra'ud and False ,.
Statements , ,
!UI, Executive Order 12291 , : ' ' • •• •
IV. Regulatory Flexibility Analysis
V. Paperwork Reduction Act, . , -..
1. Background
The regulatory changes promulgated
today are intended to improve control of
hazardous.wastes introduced into
POTWs under the Domestic Sewage : ,
Exclusion. The exclusion, established by
Congress in Section 1004(27) of the
Resource Conservation.and Recovery
Act (RCRA), provides that solid or
dissolved material in domestic sewage
is not solid waste as defined in RGRA. A
corollary is that such material cannot be
considered a hazardous waste for
purposes of RCRA,
The exclusion applies to domestic
sewage as well as mixtures of domestic
sewage and other wastes that pass
through a sewer system to a publicly-
owned treatment works (POTW) for
treatment (see 40 CFR 261.4(a)(l)). The
exclusion thus covers industrial wastes
discharged to POTW sewers containing
domestic sewage, even if these wastes
would be considered hazardous if "
disposed of by other, means. ••••:•
One effect of the exclusion is that > •;••
industrial facilities which generate "'•'-•'""•" "I
hazardous wastes and discharge such -
wastes to sewers containing domestic r
sewage are not subject to RGRA' ' ' ;
manifest requirements for the transport ''
of those excluded-wastes. However, , : :
depending on the Circumstances,! such, ,-;
industrial users may be required to! • ' .:; -
comply with certain other RCRA -.V""' './'"
requirements that apply to generators of ,
hazardous wastes. Some of these •:'. ; ::
requirements are: (1) Determining ; ; ••-•
whether a waste is:hazardous (40 CFR
262.11); (2) obtaining an EPA
identification number for hazardous
wastes not discharged to the sewer (40 '
CFR 262.12); (3) accumulation of ~
hazardous wastes (40 CFR 262.34); (4) ;
. recordkeepirig (40 CER 262.40 (c) and .
. (d)}; and (5) reporting (40 CFR 262.43).;
'Additional requirements will usually f
apply if the wastes are treatedbr stored :•,• ••••!•.;„
prior to discharge tp a POTW (see 40 < a
CFRpart264). - -'. ' " ; ."•-• :,- •-..••.:.
Another effect of the Domestic - :
Sewage Exclusion is that POTWs
• receiving mixtures of hazardous waste ;
anddomestic sewage through the sewer, '
system are not deemed to have received ; '"'
hazardous wastes. Therefore, such
POTWs are not required to meet-.the '
RCRA requirements of 40 CFR part 264 ' •"
for treating, storing, arid disposing of i
•these wastes. However, hazardous ' '
wastes delivered directly to" a POTW by 'j •
truck/rail, or dedicated pipe are not" • " ''
' covered by the Domestic Sewage •• : •
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r£edeicaS iiaigisler
-V''^^ Regulations
Exclusion. Industries sending their
wastes to POTWs in this manner are not
covered by the exclusion, and POTWs
receiving these wastes are subject to
regulation under the RCRA permit-by-
rule (see 40 CFR 270.6Q(c)).
In 1984, Congress enacted the
Hazardous and Solid Waste ,
Amendments to RCRA. Section 248 of
the Amendments created anew section
3018(a) of RCRA, requiring EPA to
prepare: . .
* * * a report to the Congress concerning
those substances identified or listed under
section 3001 which are not regulated under
this subtitle by reason of ihs exclusion for
mixtures of domestic sewage and other
wastes thai pass through a sewer system to a
publicly owned treatment works. Such report
shall include the types, size, and number of
generators which dispose of substances in
this manner, the types and quantities
disposed of in this manner, and the
identification of significant generators,
wastes, and waste constituents not regulated
under existing Federal law or regulated in «.„
manner sufficient to protest human health
and the environment.
EPA submitted its report (the Study)
to Congress on February 7,1986. In
performing the Study, the Agency '
reviewed information on 160,000 waste
dischargers from 47 industrial categories
and the residential sector. Because of
the nature of the available .data sources,
the Study provided estimates for the •
discharge of the specific constituents of
hazardous wastes (e.g., benzene,
acetone, etc.) rather than estimates for
hazardous wastes as they are more
generally defined under RCRA (ie.,
"characteristic" wastes such as ignitable
or reactive wastes, or "listed" wastes
such as spent solvents, electroplating
baths, etc.}. The Study also provided
more extensive estimates for those
hazardous constituents which are also
CWA priority pollutants. The CWA
priority pollutant list was originally
developed as part of a settlement
agreement between the Natural
Resources Defense Council (NRDC) and
EPA (NRDC V. Train, Nos. 2153-73, 75-
172, 75-1698,75-1267 (D.D.C. June 8,
1976)). This agreement required the
Agency to promulgate technology-based
standards for 65 compounds or classes
of compounds. Congress then
incorporated this list of toxic pollutants
as part of the 1977 amendments to the
CWA. From the list of .compounds or
classes of compounds, EPA later
developed a list of 126 individual
priority pollutants (see Appendix-A to
40 CFR part 423).
EPA was able to give estimates in the
Study on the types, sources, and :
quantities of many hazardous
constituents discharged to POTWs. The
Study provided information on
industrial categories ranging from large
hazardous waste generators (such as the
organic chemicals industry) to the
smaller generators (such as laundries
and motor vehicle services). The Study
also examined the fate of hazardous
constituents once they are discharged to
POTW collection and treatment systems
and discussed the potential for
environmental effects resulting from the
discharge of these constituents after —
treatment by POTWs. The Study then
discussed the effectiveness of existing
government controls in dealing with
; these discharges, particularly federal
and Ipcal pretreatment programs and
categorical pretreaiment standards '.
applicable to industrial users of POTWs.
After considering all the pertinent
data, EPA concluded' that the Domestic
Sewage^ Exclusion should-be retained at
the present time. The Study found that
CWA authorities are generally the best
way to control hazardous waste
discharges to POTWs. However, the
Study also recommended that these
authorities should be employed more
broadly and effectively to regulate
hazardous waste discharges. The Study
identified for Agency consideration a
number of possible initiatives with a
potential for enhancing GWA controls '
on hazardous wastes entering POTWs.
The legislative history of section 3018
of RCRA displays Congress'-
understanding that the appropriateness
of the Domestic Sewage Exclusion ,-
depends largely on an effective
pretreatment program under the CWA,
The pretreatment program (mandated by
sections 307(b) and 402(b)(8) of the
CWA) provides that industrial users
must pretreat pollutants discharged to
POTWs to prevent the discharge of
pollutants that would interfere with or
pass through the treatment works, or
that would be otherwise incompatible ,
with the POTWs.
As a follow-up to the Domestic
Sewage Study, section 3018(b) of RCRA
requires the Administrator to revise
, existing regulations and to promulgate
such additional regulations as are
necessary to assure that hazardous
wastes discharged to POTWs are
adequately controlled to protect human
health and the environment These
regulations are to be promulgated
pursuant to subtitle C of RCRA or any
other authority of the Administrator,
including section 307 of the CWA.
As a first step toward promulgating
the regulations called for by section
3Q18(b), the Agency published an
Advance Notice of Proposed '
Rulemaking (ANPS) in the Federal
Register on August 22,1986 (51 FR
30166). In the ANPR, EPA made
preliminary suggestions for regulatory
changes, which, if promulgated, would
imjprove the control of hazardous wastes
discharged to POTWs. The Agency also
hei,d three public meetings in
Washington, DC, Chicago, and San
Frsmcisco to solicit additional comments
onltheANPR.
ifthe comments received on the ANPR
were summarized and discussed in a
Fei Jeral Register notice published on
June 22,1987 (52 FR 23477). That notice
alsi> described many of the activities
which EPA is carrying out to address the
recommendations of the Study. Most
commenters suggested ways to make the
pretreatment program more effective in
controlling hazardous wastes •
discharged to municipal wastewater
treatment plants. On November 23,1988
(53! FR 47832), the Agency proposed
regulatory changes in response to the
recommendations of the Study and the
comments received on the ANPR.
EPA believes that today's rule will
satisfy the Congressional directive in
sectfion 3018(b) of RCRA that EPA revise
existing regulations and promulgate
such additional regulations "as are
necessary to assure that [hazardous
wastes] which pass through a sewer
system to a publicly owned treatment
works are adequately controlled to
prcitect human health and the
environment". These rules are designed
to assure POTW compliance with water
quality stan3afds, including narrative ; ...
water quality standards preventing the
discharge of toxic materials in toxic
amounts, and to provide necessary
information and regulatory tools to
POTWs to address problems that are
identified. .,.;-,,'
States and EPA have invested a great
deal of time and resources in developing
water quality standards that provide a
benchmark for determining whether
haimful concentrations of pollutants
exist in the nation's waters. Today's
rules include important new information
collection requirements that will inform
POTWs and NPDES permit writers of
the; likelihood that POTW discharges "
will violate water quality standards, and'
alsp provides new information and
regulatory tools with respect to
industrial user discharges -that may be
causing water quality violations through
the: POTW effluent
Of particular importance to
controlling hazardous waste discharges
to :POTWs are the following provisions
• of 'today'fs rule. First, under revisions to
40 CFR part 122, POTWs meeting
specified criteria will be required to test
- their effluent for toxicity which may be -
casised by industrial user discharges of
hazardous wastes or other toxic
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300M Federal Register / Vol. 55. No. 142 / Tuesday; July 24; 1990 / Rules and Regulations
substances. The results of this testing
may indicate that POTWs are violating
water quality standards, thereby
endangering human health and the
environment. Depending on the results
of this testing, POTWs may receive new
or more stringent permit limits regarding
discharges of toxic pollutants. In order
to comply with the revised permit limits,
POTWs may either alter their operations
or impose more stringent local limits on
industrial user discharges of hazardous
wastes. Imposition of such new or more
stringent local limits will be facilitated
by another requirement of today's rule:
the requirement in 40 CFR 403.120?) that
industrial users notify POTWs, States
and EPA of the nature and mass of
RCRA hazardous wastes that they
introduce into the sewers. In addition,
under today's revisions to 40 CFR
122.21(j)(2}, POTWs must evaluate in
writing, at the same tune as they submit
the data from toxicity testing to their
permit-issuing authority, the need to
revise local limits. This new provision
will allow the NPDES permit writer to
review the POTW's rationale for not
imposing more stringent local limits
when the results of toxicity testing
Indicate that such new limits may be
necessary to assure attainment of water
quality standards. Today's rule also will
ban the introduction to POTWs of
xvastes that exhibit the RCRA
characteristic of ignitability. This ban is
necessary to prevent explosions in
sewer systems that could disrupt POTW
operations and lead to releases of
hazardous wastes and other toxic or
hazardous substances in the sewers.
"Midnight dumping" of hazardous
wastes to sewers should be
substantially curtailed through the ban
in 40 CFR 403.5(b)(8) on the introduction
of trucked or hauled wastes to POTWs
except at discharge points identified for
such use by the POTW. Finally, through
general improvements in the
pretreatment program provided by
today's rule, such as industrial user slug
control plans, permits for significant
industrial users, and POTW
enforcement response plans, EPA
expects a significant enhancement over
the control of hazardous wastes and
other toxic and hazardous substances
introduced to POTWs. The Agency
notes that all pretreatment program
changes required by today's rule must
be incorporated in POTWs' NPDES
permits upon reissuance.
While EPA believes that today's rule
satisfies the requirements of section
3018(b), EPA intends to carefully review
the effect of today's rule and promulgate
in the future any additional regulations
that experience reveals are necessary to
improve control over hazardous waste •
and other industrial user discharges to
POTWs. In addition, EPA has always
recognized that additional categorical
pretreatment standards will form an .
important component of effective
controls over .pollutants discharged to
POTWs. On January 2,1990, EPA
recently issued a plan under section
304(m) of the Clean Water Act under
which it will develop regulations for four
new technology-based categorical
pretreatment standards and will revise
three existing standards (55 FR 80). The
categories of dischargers selected for the
development of new and revised
pretreatment standards discharge large
" amounts of toxic and nonconventional
pollutants to POTWs. The Domestic
Sewage Study was an important source
of data for the section 304(m) plan.
While EPA is not obligated to base
development of such technology-based
categorical standards on findings
relating to protection of human health or
the environment, EPA believes that
pollutant discharge reductions achieved
through implementation of new
categorical standards will advance the •
protection of human health and the
environment. '
It should be noted that today's rule
does not directly address potential air
emissions from the wastewater
collection system or POTWs. EPA's
Office of Air and Radiation is evaluating
potential air emissions from the
collection and treatment of wastewater
discharged to POTWs and plans to
address these air emissions under the
Clean Air Act.'
II. Revisions
' The Agency received comments ia
response to its proposal from .
approximately one hundred and sixty
individuals and groups. All significant
comments and the Agency's responses
to these comments are discussed below.
The Agency's responses to minor
comments are part of the record to this
rulemaking and are available for
inspection at the EPA Public Information
Reference Unit, Room 2402,401M Street
SW., Washington, DC 20460.
A. Specific Discharge Prohibitions
1. Ignitability and Explosivity
a. Proposed change. The specific
prohibitions of the general pretreatment
regulations (40 CFR 403.5(b)) forbid the
discharge of certain types of materials
which may harm POTW systems by
creating fire or explosion hazards,
causing corrosive structural damage,
obstructing flow, or creating heat in a
POTW influent which inhibits biological
activity. The August 22,1988 ANPR
discussed expanding these prohibitions
to forbid the discharge of characteristic
wastes under RCRA (i.e.; wastes .that
are defined as hazardous under 40 GFR
part 261, subpart C if they possess the
characteristics of ignitability, > > • ;
corrosivity, reactivity, or toxieity},,This
would provide greater specificity to the ,
largely, narrativfrstructure ofthe ;•
existing prohibitions in the pretreatment,
-program, . ; . ,,,",..
With respect to ignitability, the -
indirect discharge of.ignitable materials
has caused many documented cases of
explosions and fires in POTW collection
systems. These fire's arid explosions ,
often happen near the point of indirect
discharge, when the temperatures -
(normally above ambient) promote • . /
evaporation of ignitable wastes irito;a';•••• •
relatively fixed volume of air forming , )
vapors which are not dispersed into the
atmosphere; These vapors can be •
ignited by various sources^including
electric sparks, frictional heat, hot . /• '
surfaces such as manhole covers heated
by the sun, or chemical heat generated
by reactions. • ' : :
This specific discharge prohibitions (40 '•
CFR403.5(b)(l)) already prohibit the
discharge to sewers of materials • ,'- •. '• ',
creating a fire or explosion hazard;
However, this narrative provision lacks
specificity. As a result, the prohibition'! '
has limited effectiveness as a preventive
requirement. The standard is clearly
violated if there Was an actual fire or
explosion in the sewer or if an industrial
user violated a local limit designed to
implement the prohibition.
To provide for better implementation
of these provisions, EPA proposed to
revise 40 CFR 403.5(b) to prohibit the
introduction into sewer systems of
pollutants which create a fire or • '
explosion hazard in the POTW, •
'including but not limited to pollutants
with a closed cup flashpoint of less than
140 degrees Fahrenheit (sixty degrees
Centigrade), as determined by a Pensky-
Martens Closed Cup Tester using'the • '.• '
test method specified in ASTM standard
D-93-79 or D-93-80, or a Setaflash
Closed Cup Tester using the test method
specified in ASTM Standard' D-3278-78.
The Agency also proposed to revise 40
CFR403.5(b) to prohibit the discharge of
pollutants which cause an exceedeiice
of 10% of the lower explosive limit (LEL|
at any point within the POTW.
• A flashpoint is the minimum
temperature at which vapor combustion
will spread away from its source of
ignition. Below the flashpoint
temperature, combustion of the vapor: •
immediately above the liquid will either
not occur at all, or will occur- only at the
point of ignition. A140 degree Farenheit '••
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flashpoint standard has been used for
several years under RCRA to identify
liquid wastes that pose a fire hazard.
EPA proposed a similar standard for use
in a new prohibited discharge standard
in the pretreatment program.
The lower explosive limit was
proposed to deal with the problems of
mixing and dilution in the sewer. I&e
LEL of an organic vapor is the minimum
concentration required to form a
flammable or explosive vapor to air
mixture. The LEL is measured with an
explosimeter, an instrument that is
commonly used by POTW technicians to
protect against combustible vapors in
sewers. ;
In the preamble of the proposed rule,
the Agency solicited comments on: (!)
Whether or not the flashpoint
prohibition would be reasonable, unduly
stringent or insufficiently protective of
POTWs under worst case conditions
and whether it would sufficiently take
into account the effects of effluent
mixing or dilution in a POTW system;
(2) whether another technically feasible
and effective alternative exists; (3)
whether the regulation should exempt
aqueous solutions with less than 24%
alcohol by volume from the proposed
flashpoint prohibition; (4) whether the
LEL prohibition is practical, either alons
or in combination with the flashpoint
prohibition; {5J whether it is too difficult
to link an LEL exceedence to specific
discharges; {63 whether vapor phase
monitoring (sometimes needed to
determine the cause of any exceedence}
is too difficult or too expensive; and (7)
whether the flashpoint, approach or the
LEL approach would be sufficient alone
to prevent fires and explosions at
POTWs.
b. Response to comments". Most •
commenters supported the proposal to
adopt limits that would add specificity
to the existing narrative prohibition on
ignitable and explosive discharges.
However, other commenters believed
that existing local ordinances and the
existing specific prohibition were
sufficient and that the proposed
regulatory requirements would impose
excessive burdens and costs on both
municipalities and industrial users.
A majority of the commenters
supported the flashpoint prohibition,
either alone or in conjunction with the
LEL approach. These commenters stated
that the flashpoint prohibitions would
provide Control Authorities with a
quantifiable standard against which to
measure compliance. Other commenters
believed that because the flashpoint
limit is used under RCRA to define
which wastes exhibit the characteristic
of ignitability, it would have greater
credibility and enforceability than other
approaches. Many commenters stated
that the proposed flashpoint test would
be inexpensive and easy to implement
EPA agrees with those commenters
who supported the proposed flashpoint
prohibition. The Agency believes .that
the established flashpoint method is a
good measure of fire and explosion
hazard and will thus be, effective in
preventing interference with POTW
operations. The flashpoint prohibition
will also add specificity to the existing
narrative prohibitions, thus facilitating
effective prevention and enforcement.
The closed cup flashpoint test methods
are also relatively simple and
inexpensive. For these reasons, EJPA is •
today revising 40 CFR 403.5{b)(l) to
prohibit the introduction to POTWs of
pollutants which create a fire or
explosion hazard in the P&TW,
including, but not limited to,
wastestreams with a closed cup
flashpoint of less than 140 degrees
Fahrenheit (sixty degrees Centigrade).
Many commenters pointed out that
the language used in the proposed
regulation was not consistent with that
used in the preamble. The proposed
regulation stated that the flashpoint
prohibition applies to "pollutants,"
which could be interpreted to apply both
to specific constituents of the waste and
to the entire waste mixture generated by
indirect discharges. The preamble
discussion, however, clearly indicated
EPA's intent that the flashpoint
prohibition would apply to "wastewater L
discharge" and not wastewater
- constituents of the entire discharge or
combined wastestream. To clarify the
regulatory language, today's final rule
has been modified to read,
"* * * Pollutants which create a fire or
explosion hazard in the POTW,
including but not limited to,
wastestreams with a closed cup •
flashpoint of less than 140 degrees
Fahrenheit {sixty degrees
Centigrade) * * *"
Some commenters expressed
confusion as id.the exact point where ,
the flashpoint should be measured. The
modification made to the final rule
(discussed above) resolves any possible
ambiguity regarding the location where
the flashpoint should be measured.
Because the flashpoint prohibition
applies to the industrial user's
wastestream, the measuremsnt.should
be taken at the point of indirect
discharge.
Although most commenters approved
of the flashpoint prohibition, some
expressed concerns about its
limitations. One commenter stated that
a majority of POTWs do not have
industrial users that would warrant •;.
'closed cup testing. Another eommenter •
said that flashpoint was not a good
indication of fire and explosion hazard
because wastewater should not contain
enough hazardous constituents to be
fMmmable. la response, the Agency
believes that the flashpoint prohibition
is relevant because most POTWs do
harve at least a.few industrial users and
even one industrial user may sometimes
have the potential to cause fire or
explosion hazards in a POTW. Also the
Study found that hazardous constituents
are found in many different types of
wjistestreams. EPA believes that the
flabhpoint is an accurate indicator of fire
anti-explosion hazard caused by the >
presence of toxic and hazardous
pollutants in wastestreams.
Several commenters argued that the
disicussion on the use of existing
literature flashpoint values in the
preamble was jiot applicable to the vast
majority of wastes. These literature
values are only available for discharges
of "pure" substances, which are not
common. - -
The Agency suggested the use of
available literature values for those ~
"pure" substances believed present in a
waisiestream. EPA believes that iTthe
flashpointof a pure substance, or the
flashpoint of each known substance in a
mixture, is above 140 degrees F, then the
flashpoint of the wastestream containing
thei substance or substances (normally
diluted predominantly with water)
would usually also be above the limit If
the industrial user is unsure of this
correlation, the flashpoint test should be
performed on its wastestream or the
industrial user should consult the
Control Authority.
Several commenters stated that .
because industrial wastes are usually
variable, testing would ideally have to
be continuous." Since there are no •
continuous monitoring methods
eviiilable, these commenters feared that
the discharger would be faced with
retaining the entire discharge until a
flashpoint determination could be made.
At this point if the waste did not pass
thei test, it would then have to be
disposed of under RCRA, although it
coiild be sufficiently treated through the
POTW. A few eommenters had concerns
about sampling methodologies, and one
coitunenter said that sampling
methodologies should be specified in
addition to test methods. Another
coramenter said that -the reliability of
the; closed cup test for wastewater was
notigood.
EPA does not believe that most
wastestreams are sufficiently variable
to require continuous monitoring.
However, if an industrial user's
wastestream is determined to be '
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30086 Federal Register / Vol. 55, No. 142 /Tuesday, July 24, 1990 / Rules-and Regulations
extremely variable, the industrial'user
may wish to conduct frequent
monitoring if necessary to avoid
violating today's rule. When industrial
users are uncertain whether their
wastestreara can be adequately
characterized by intermittent
monitoring, they should consult the
Control Authority for monitoring
instructions. If monitoring indicates
periodic violations of the prohibition,
industrial users may wish to take
appropriate measures to pretreat their
•wastes so that they could be confident
that the discharges would not violate the
flashpoint prohibition. This would
prevent industrial users from the need to
retain their wastes pending flashpoint
analysis. With respect to sampling
methodologies, grab samples taken at
the point prior to discharge are generally
the appropriate methodology. However,
the number of grab samples which are
needed to characterize a wastestream
will vary. For most wastestreams, one
grab sample may be sufficient. For
variable wastestreams, a series of grab
samples may be appropriate. In order
for a waste to meet today's standard, no
single grab sample of the waste may be
below the 140 degree flashpoint limit.
With respect to reliability of the closed
cup method, this method has long been
in use under RCRA to measure the
Sgnitability of liquid wastes, with few
problems brought to EPA's attention.
The Agency sees no reason why the
method would not be equally useful on
%vastestreams discharged to POTWs. In
support of this view, many commenters
supported the test because of its
purported reliability.
Some commenters suggested changing
either the flashpoint or LEL limits, and
one commenter stated that the
flashpoint approach alone could result
in unnecessary regulation in
circumstances where in-sewer dilution
would effectively eliminate any
hazardous conditions. One commenter
urged that the proposed revision be
made less stringent by prohibiting only
those discharges with a flashpoint of
less than 100 degrees F. This commenter
noted that EPA had acknowledged that
140 degrees F is considerably above
expected waslewaler temperatures. The
commenter concluded that prohibiting
discharges ivith a flashpoint near this
temperature (140 degrees F) would
therefore be overly protective. Another
commenter urged EPA to allow case-by-
case variances from the prohibition
where it can be shown that the waste
will be rendered non-ignitable upon
mixture in the sewer system, and still
another suggested that the Agency
consider regional variations in
flashpoints which would take into
account differing temperatures in
different parts of the United States. "
The Agency is not convinced that
prohibiting discharges with a flashpoint
of less than 100 degrees F would be
sufficiently protective against fires and
explosions. Although the commenter !
stated that such a flashpoint would
better reflect the temperatures
encountered in most sewer systems
under actual conditions, the commenter
provided no data in support of this
argument. Although it is true that most
.wastewater temperatures are below 140
degrees F, many industrial users
discharge very hot wastestreams to
sewers, with wastewater temperatures
ranging from 120 to 212 degrees F (e.g..
industrial and commercial laundries, oil
refineries, food processors, textile
manufacturers, power generating
facilities, arid any facility discharging
boiler bknvdown). Temperatures of
wastewater in the sewer may therefore
reach or exceed 140 degrees F for brief
periods of time near the point of a very ..
hot discharge. In addition, some sewer
use ordinances prohibit the discharge of
wastewater hotter than 150 degrees F,
which indicates that wastewaters may
reach that temperature. Although such
discharges, are eventually diluted with
cooler water in the sewer, combustion
could be sustained near the point of
discharge if the sewer wastewater
reached or exceeded 140 degrees F, a
wastestream with a flashpoint below
140 degrees F were discharged, and a
source of ignition (such a friction spark
or a lighted cigarette] were present. For
this reason, EPA does not agree that in-
sewer dilutien always eliminates
hazardous conditions, or that a
flashpoint of 140 degrees F is
unnecessarily stringent. With respect to
case-by-case variances from the
flashpoint prohibition, the Agency
believes that the largest determinant of
sewer temperature at the point of
industrial discharge is the temperature
of the industrial wastewaters
discharged, rather than the temperatures
prevailing outside of the sewer. EPA has
decided not to allow case-by-case
variances based on ability of the waste
to be neutralized after mixture in the
sewer because such variances would
not protect against explosions that may
occur prior to such mixing. POTWs may
establish more stringent limits than
those promulgated today at their
discretion.
With respect to the current exclusion
under RCRA (40 CFR 261.21(aHl}) from
the ignitability characteristic for
aqueous solutions containing less than
24 percent alcohol by volume, some ' >
dommenters supported extending the"'
exemption to the proposed flashpoint '••'
prohibition, indicating that such'
solutions are quite soluble, readily •' '
diluted, effectively treated by POTWs,
and pose little threat to 'POTWs. One
commenter stated that such solutions
could flash but would not sustain
combustion, but acknowledged that the
ability to flash is connected to
explosiveness. This commenter believed
that deficiencies in operating practices
and equipment often accounted.for
explosions. Other commenters did not
support such an exemption. One
commenter stated that even.though' such
solutions may hot be able to sustain
combustion because of their high water ,
content, the more critical issue for i
substances discharged to sewer lines is
the ability, of the vapors above the •,
aqueous solution to sustain combustion.
After evaluating this issue, EPA has
concluded that an exemption froiri the •
flashpoint prohibition for aqueous
solutions containing less than 24 percent
alcohol by volume is not appropriate.
POTW collection systems are an ideal
environment for generation of • .
flammable/ignitable atmospheres; . : •
minimal air interchange within .''..-.,.!
collection systems ensures that ignitable
vapors once formed cannot easily be •
dispersed; Promulgation,of the,
exemption would allow the!discharge to' '•;
POTWs of wastewaters otherwise '
failing the flashpoint test, For example,
a flashpoint of 140 degrees F
corresponds to an aqueous solution
containing only 6 percent ethyl alcohol:
by volume; an aqueous solution
containing 24 percent ethyl alcohol by
volume would have a flashpoint of 90
degrees, well below the flashpoint
specified in today's rule. Other allowed
discharges would include potentially
flammable mixtures containing methyl
alcohol and isopropyl alcohol. The :
Agency believes that allowing an
exemption from1 the flashpoint '
, prohibition for aqueous solutions
containing less than 24 percent alcohol
. by volume would not sufficiently protect
POTWs, and is not promulgating such •
• an exemption uvtoday's rule. The
Agency agrees that deficiencies jn .. .
operating'practices^ and. equipment may
often be responsible for explosions, and
encourages industrial users to employ
the best methods available to'ensure
compliance with today's prohibition.
One commehter'notpd that many
POTWs use "a closed-cup Tagliabue test
to determine flammability, and '
suggested that EPA should consider '
• adding it to its list of closed cup testers,1 '
; The Ag'ency agrees and notes that 40 " •
CFR 261.21(a3(l). which specifies test :
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Vol. 55, No.;:i42
methods for the liquid ignitability ;
._ characteristic, allowsthe useof
equivalent test methods if approved by
the Administrator under the procedures
set forth in 40 CFR 260.20 and 260.21. To
enable POTWs to use equivalent test
methods according to these procedures,
the Agency has modified the proposed
prohibition to prohibit the discharge of
wastestreams with a closed cup
flashpoint of less than 140 degrees F
using the test methods specified in 40
CFR 261.21.
Many commenters favored keeping
both the flashpoint and LEL
prohibitions. These commenters
included State and local authorities who
said that these limits and methodologies
were both reasonable and necessary.
Other commenters, however, thought it
unnecessary to include both types of
prohibitions, and-favored retention of
the flashpoint limitation or the LEL
limitation only. One commenter stated
that the difficulty of enforcing the LEL
approach in no way diminishes the need
for this prohibition, because it is a much
more sensitive indicator of fire.or
explosion hazard. Some of the
commenters who supported both
.prohibitions wanted to have the freedom
to choose one or the other or both on a
case-by-case basis, and one commenter
suggested that the flashpoint and LEL
approach are better suited to be placed
in guidance dpcuments rather than in a
regulation.
, Few commenters supported use of the
LEL approach alone and many pointed
out limitations to the LEL methodology.
The most common criticisms were: (1)
Calibration of instruments is difficult
since wastestreams are a mixture of
substances; (2) tracing any sort of
exceedance in the collection system
would be almost impossible, since the
LEL reading cannot distinguish which
chemicals are causing the exceedence
• (although some commenters believed
: that LEL exceedances could be traced
by such means as tracking alarms to
certain points^iri the sewer system; (3)
unless continuously monitored, the I.F.T,
would be an instantaneous -
measurement and therefore subject to
too much variability to accurately
represent industrial users'
wastestreams; (4) the LEL. of a '.-.--
substance is difficult to measure with ~
portable instruments and depends on
many variables that will affect the
accuracy of the measurement, such as
ambient temperature, VOC, air. .
exchange rate, oxygen concentration,
humidity; (5) industrial users would
have difficulty ascertaining whether
their discharges would cause a
violation, due to the uncertainty of
conditions that may exist "downstream"
in the sewer system from their facilities,
and (6) the 10 percent LEL is top . ;
stringent, since higher percentages of the
LEL are routinely reached. One
commenter, however, favored use of the
^ LEL approach, arguing that it was more
effective than the flashpoint technique
in measuring expiosivity of mixtures
under actual sewer conditions.
EPA is persuaded by certain of the . . -
commenters'arguments against
specifying a national prohibition based
on the LEL approach. Although the
approach has proved very valuable for
many POTWs, EPA recognizes that.
•there are certain technical difficulties
associated with this approach which
make it more suitable for use on a case-
. fay-case basis at the discretion of the
particular POTW than as a nationally
applicable standard. The principal
. difficulty is associated with calibration 7
of the instruments. Although one
.commenter stated that the indicated LEL
is accurately represented for the
common solvents and does not require
knowledge of the substance monitored,
other commenters who addressed this
issue stated that unless the LEL meter is
calibrated using the exac^gas that is to
be measured, it may not give an -• "" •' .
accurate reading of the vapors present.
As an example, one comentar included a
table showing that great variation can
occur in LEL readings due to the'
presence of different chemicals. This
would present a problem because the
proposed rule would have established " :
an LEL for any point in a POTWs
collection system, and the air space in
such systems generally contains many
different kinds of gases derived from the
complex mixtures of substances in the
sewerage. EPA has therefore modified >
proposed 40 CFR 403.5(bj(l) to delete the
prohibition on discharges which result
.in an exceedance of 10 percent of the :
LEL at any point within the POTW.
In response to the commenters who
suggested that EPA allow POTWs to •-, ^
choose either, the LEL or the flashpoint
approach, the Agency acknowledges /
that the flashpoint prohibition in today's
rule will not necessarily account for the
' ignitability of mixtures of industrial user
discharges when combined in sewers.
However; owing to the effect of dilution
within thq sewer system, the Agency .-'
believes that it is generally reasonable
to assume that the concentrations of -----
combustible constituents in sewer .
wastewaters will be well below the
concentrations required for ignitability,
provided that ail industrial users are in
compliance with the flashpoint
prohibition. Fires and explosions from.'
the discharge of ignitable pollutants
often occur in tlie POTW collection •
systeni near the point of discharge, and
the temperature in the collection system
at thai! point may be above the ambient
temperature, prompting the evaporation'
of ignitable wastes and the formation of.
flammable vapor to air mixtures. For T
these reasons, the Agency believes that
today'ij flashpoint prohibition is
necessary 16 help prevent fires and :
explosion's at sewers, and is not '--• ,v
adopting the. suggestions, that POTWs be
allowed to choose between that
approaich and the LEL or that expiosivity
problems should be addressed in
guidance only. ; :
Howjever, the Agency recognises that
many POTWs have made effective use
of the IJ3L approach in preventing fires
and explosions, and encourages POTWs
to deveilop programs which employ this
approach, if they deem it appropriate.
Many cbmmenters who addressed
vapor phase monitoring used to trace
the source of an LEL exceedance stated
that suiih monitoring is too expensive.
Some cbmmenters were opposed to a
requirement for vapor phase monitoring,
stating that most POTWs do not have
access to the necessary methodologies,
and thait POTWs could already track
sources without this methodology. One
commenter suggested that vapor phase
monitoring be done at site-specific
points within the -POTW. Some
commenters argued that the regulation
should :aot require the POTW to identify
the compounds responsible for the
exceedences, .but one commenter stated
that the; details of a collections system,
the localtion of the LEL exceedence, and
the location of the industrial users will
make elimination of facilities not
causing[,the problem possible without
the specific identification of each '
industrial user's wastestream.
EPA .'did. not propose, and is not
finalizirlg, requirements that vapor
phase monitoring be performed, nor that
the identify of the compounds causing
the excaedences be revealed through
such monitoring. However, many
POTWs which adopt the LEL approach. '
may choose to adopt such monitoring on
an as-needed basis. In many cases the.
source cjf an exceedence can be
discovered by other means. :
c. Today's rule.^Today's final rule
prohibits the discharge of pollutants
which cij-eate a fire or explosion hazard
in the POTW, including, but not Limited
to, wastestreams with a closed cup
flashpoint of less than 140 degrees
Farenheit or 60 degrees Centigrade using
the test methods specified in 40 CFR
261.21.-"! - ,- '•.-'•'. . - -"' ';.. "•-• '•- '
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3G088
Federal Register / Vol. 65, No.
.' .luly "^-it.990 7 Rules and Regulations
2. Reactivity and Fume Toxieity
Wastes exhibiting the reactivity
characteristic are regulated underRCRA
because their extreme instability and -
tendency to react violently or explode
make them a hazard to human health
and the environment during waste
management. A solid waste exhibits the
RCRA characteristic of reactivity if it is
normally unstable and readily
undergoes- violent change without
detonating; reacts violently with water;
forms potentially explosive mixtures
with water; generates potentially
harmful quantities of toxic.gases, vapors
or fumes when mixed with water; is a
cyanide or sulfide bearing waste which
when exposed topH conditions between
2 and 12.5 can generate potentially
harmful quantities of toxic gases, vapors
or fumes; is capable of detonation or
explosive reaction if it is subjected to a
strong initiating, source or if heated
under confinement; ia capable of
detonation or explosive decomposition
or reaction at standard' temperature and
pressure; or is a forbidden, Class A, or
Class B explosive pursuant to 4ff CFR
part 173 [see 40 CFR 261.23Ca}).
The health and safety of POTW
workers has long been a serious concern
of the Agency. There is no question that
(he generation of toxic gases and vapors
can sometimes be dangerous to the
health and safety of these workers, thus-
Interfering with operations at the POTW
and even endangering human life. In
addition, the local general population
could alsa suffer if sufficient quantities
of toxic gases and vapors are released
from sewer vents or aeration, or
containment basins. Gases and vapors
may be caused by chemical reactions
between constituents of the industrial
discharge and the receiving sewage, or
mlcrobial metabolism. Some toxic gases
can be generated as the result of sudden.
drops in pi I. Besides generating toxic
gases and vapors when, mixed with
sewage, industrial discharges may have
sufficiently high concentrations of toxic
gases and volatile liquids to cause toxic
levels of gas or vapor to form above the
wastewater even if the discharge is
diluted by the sewage. There have beea
numerous instances of sewer
maintenance workers who have been
injured or killed from toxic gases formed
in sowers. While most accidents have
been caused by the formation of
hydrogen sulfide gases, more recent
incidents have been linked to certain
organic pollutants that either volatilized
or reacted with hydrogen sulfide within
the POTW collection system.
a. Proposed rale. The prohibition
against the discharge of pollutants
which create a fire or explosion hazard,
as modified by today's rule fa include- a
prohibition on the discharge of materials
with a flashpoint of less than 140
degrees F., will help prevent harm to
POTW workers, as will the requirement
promulgated today that POTWs
evaluate significant industrial users to
determine the need for plans to control
slug discharges £see pgirt B belowj. To
augment these prohibitions and provide
further protection, the Agency proposed:
on November 23>198S to revise 40 CFR
403.5(b) to add a new subsection; [6J
providing: that no discharge to a POTW
should result in toxic gases, vapors, or
fumes within the POTW in a quantity
that may cause acute worker health and
safety problems. EPA also proposed fo
revise 40 CFK403.5[c] to require POTWs
to implement the proposed narrative
prohibition in 40 CFR 403.5[b)f6) by
establishing numerical discharge limits
or other controls where necessary based
on existing human, toxicity criteria or
other information. Industrial users
would then be liable for any violations
of these limits or controls.
As. possible implementation
mechanisms, EPA suggested approaches
used by the American; Conference of
Government Industrial Hygjeniats
(ACGIH) or the Metropolitan Sewer
District of Cincinnati: The ACGfflL
publishes an annual list of threshold .
limit values fTLVs} for numerous toxic
inorganic and organic chemicals. The
threshold limit values represent"
estimated chemical concentrations in air.
below which harmful health effects in
exposed populations are believed; ta be
unlikely to occur. The Metropolitan
Sewer-District of Cincinnati approach
features the use of a vapor beadspace
gas chromatographic analysis of
equilibrated industrial wastewater
discharge [one volume of wastewater to
one volume of airhead space) at room'
temperature [24 degrees C); The analysis
measures the total vapor space organic
concentration by calculating the total
peak area of the chromatogram
expressed as parts per mffliori (ppm) of
equivalent hexanfii. '
The Agency solicited comments on -
the addition of this- prohibition- to- the
general pretreatment regulations and on
the feasibility of developing local limits
from human foxfeify criteria or other
information such, as those discussed
above. The Agency requested comments
on the practicality of such a prohibition,
or alternative regulatory ways to protect
worker health and safety, and on
whether worker health and safety is
adequately protected by the present
general and specific discharge
prohibitions.
b. Response to comments. The Agency '
received many comments on the
proposed rule. Comments were receive'd
from States, environmental groups,
POTWs and industries. The majority of
the commenters supported the narrative
prohibition: (proposed 40 CFR
403-5[b)[6}) but were against requiring,
implementation of numerical limits
(proposed 40 CFR 403.5(c)I. These
commenters generally believed that
such numerical limits would be too
difficult and expensive for POTWs to
develop. In-general; the commenters
believed that the approaches used by
ACGIH and the Metropolitan Sewer
District of Cmeinnati would be useful as
guidance eras a screening tool, but that
the actual criteria are so imprecise that
it would be best not to require POTWs
to implement them.
Some commenters pointed outfhatthe
Metropolitan Sewer District of
Cincinnati approach contained '
potentially serious flaws in that the 300
ppm equivalent hexane limit might not
provide adequate protection against
more toxic compounds. These
commenters said that the Cincinnati,
approach could thus provide workers
with a false, sense of safety. Other
commenters stated that the approach
would only be validif the wastewater in
the sewer was at equilibrium with the
air abqve the wastewater and the
wastewater acts as an ideal liquid-
mixture.
Some commenferss alsa expressed
concern about the ACGffi list of
chemical threshold limit values, stating ,
that the list includes skin and dust
' hazards as well as vapor hazards. The
commenters stated that the list of TLV
compounds appears to be very large, but
many of the compounds on the list are
not applicable to the Agency's purpose.
Only 136 compounds On the TLV list are
for short term" exposure [exposures of
less than 8 hours duration within the
POTW}. The 136 compounds can then be
further reduced by the removal of simple
asphyxiants (inert gases, vapors and
solids fdusts}). Thus, commenters
believed that the number of ACGEKf
listed chemicals- that could realistically
be limited by POTWs is very smalL
These commenters also said that
ACGIH specifically disclaims its TLV
list for setting environmental standards.
ACGIH'S basis for this disclaimer is that
the averaging-process involved in
determining-the TLVs_is inappropriate
for establishing; such standards.
Some commenters stated that even
though EPA has never explicitly
required: POTWs fo develop local limits
to prevent pass through or interference
due to reactive chemicals and fume
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Federal Register / Vol. 55, No. 142 / Tuesday,_]uly>j4, 1990 / Rides and Regulations
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Ti7~mP""l TTITirTiT'KUHMIlHILH
toxicity, almost all POTWs have
ordinance prohibitions or local limits to
handle common pollutants such as
sulfide that have been associated with
worker health and safety problems.
After evaluating this issue, the
Agency has' concluded that the actual
methods discussed in the November 23,
f!988 proposal (as well as other methods)
are not sufficiently precise at the ,
present time to require POTWs -to base
enforceable local limits upon these
• methods. None of the approaches
currently in use are necessarily suitable
for required use at all POTWs, although
, they may fit the needs of many POTWs
after certain modifications. For this
reason, ;EPA is not promulgating a
requirement to develop numerical limits
to protect worker health and safety
based upon specified procedures. The
Agency believes that a narrative
prohibition coupled with guidance on
. developing limits would allow POTWs
more flexibility to adopt implementation
procedures to meet their particular
needs while providing adequate
protection of worker health and safety.
EPA is therefore promulgating the
narrative prohibition on1 reactivity and
fume toxicity and plans to issue
guidance on developing numerical
limits.
One commenter suggested that EPA "
should require POTWs to use'proper ,
confined space entry procedures or to -
monitor their systems with portable gas
cliromatographs (GGs) to protect worker
' •. . health and safety. The commenter also
suggested that industrial users causing —
worker health problems should be
required to install activated carbon
'.. treatment systems or to perform
continuous monitoring using,GCs.
Another commenter said that POTWs
should conduct an extensive
"* investigation of the effects organic
compounds have on .their system, after
which limits could be developed for
contributors of organic pollutants. Other
commenters suggested requiring POTWs
to develop an intensive safety training
program for POTW employees, or "."
allowing POTWs to substitute such
measures as exposure surveys,
engineering controls, or personal safety
- equipment for numeric limits.
One commenter suggested that EPA
should require tests to be used by
industrial users to prevent the discharge
of wastewaters with high levels of toxic
constituents, such as the test used by
the Metropolitan Sewer District of
Cincinnati. The commenter also ,
suggested forbidding the discharge of
any wastewaters containing hazardous
constituents at concentrations which
could give rise to chronic worker
exposures higher than the relevant
. OSHA Time-Weighted Average
Occupational Standard (TWA).
According to the commenter, a simple
algorithm could be devised relating
TWAs to the concentration of hazardous
constituents in the discharge. Industrial
users would be prohibited from
discharging a wastewater which the
algorithm predicted would give rise to
vapor concentrations higher than the '"
TWA. As another .alternative, the
commenter suggested that EPA adopt"
* particular tests for certain types of -
wastes that can react in low or high pH
environments and give off toxic gases.
EPA should particularly consider
adapting to POTWs the simple scenario
it used to quantify the narrative
characteristic test used in RCRA for
cyanide and sulfide bearing wastes. /
. EPA encourages POTWs to use any or
all of .the above approaches (or
modifications thereof) which they find
necessary to protect worker health and
safety at their facilities. However, ,
because the, numbers and types of
industrial users vary so widely among
POTWs, the Agency does not believe
that any single test, tf aining program,
treatment technology, monitoring
approach, or combination thereof is
currently suitable for a nationally,
applicable rule to protect worker health
and safety. Today's rule allows POTWs ,
to impose controls on particular
industrial users based on numeric limits
on specific pollutants or through other
measures that address their own
particular site-specific concerns.
Pursuant to 40 CFR 403:5(d), the
approach selected by the POTW will be
federally enforceable. With respect to
the OSHA TWA approach suggested
above, the Agency notes that this
approach is similar to one suggested by
EPAinits Guidance Manual on the
Development and Implementation of - ,.--
Local Discharge Limitations Under the
Pretreatment Program. This Approach
involves using ACGIH threshold limit
value-time weighted averages (TLV-
TWAs) which serve as a measure of
fume toxicity from which screening
levels for all industrial user discharges
can be calculated. However, the Agency
notes that the TWA levels are the vapor
phase concentrations of compounds to
which workers may be exposed over
long periods of time without.adverse
effect. In general, POTW workers are
not exposed for extended periods of
time to sewer atmospheres. The Agency
also notes that the algorithm suggested
by the commenter did hot appear to take
into account the effect of possible
dilution or mixture with other
substances in the sewer." For these
realsons, the Agency recommends the
usei of such approaches as awray to
screen industrial users' discharges, but
recommends POTW reliance upon site-
speicific data in developing actual
controls for industrial users. In some
cas'es, the use of improved chemical
handling or management practices may
eliminate any problems. Similarly,
regarding the narrative characteristic
test under RCRA lor cyanide and sulfide
bearing wastes, the Agency believes '•
that this -test is best adapted by POTWs
on a case-by-case basis to address their
particular circumstances with respect to j
acidity or corrosivity which could result
infiimetoxicity. "-....- -:.'
One commenter urged that EPA
clarify that a specific discharge
constituent'must itself be a significant
source of actual toxic gas, vapor, or
fume problems in order to fall within the
scope of the prohibition, This '-';.'
conjmenter said that the proposed
regulatory language could prohibit the
discharge of biochemical oxygen
deniand (BOD), which contributes to
anaerobic conditions, and otherwise
mnibcuous sulfate (toxic hydrogen
sulfide levels can be generated in
; POTW sewers through the reduction of
sulfates by anaerobic bacteria, ..-*.
according to this;commenter). Another
cqmmenter urged the Agency to limit the
. applicability of the proposed prohibition
^tp tiiose situations where a POTW
interprets the prohibition through
adoption of specific numerical discharge
limits. In this way, industrial users
wotild not be subject to the prohibition
in tile absence of numerical limits
developed by the POTW. Another
suggested that EPA prohibit only those
subistances discharged in a quantity
known to cause worker health and
safety problems. This commenter
pointed out that the only instance cited
in the November 23,1988 preamble of
actual injury to workers involved
hydrogen sulfide, and stated that
: regulation of other substances was
uhjiistified because the existing .
prohibitions already protect worker •
health and safety. .
In: response, the Agency notes .that all
of the specific discharge prohibitions .' ~\
apply even in the absence of numeric
limits developed by the POTW to
implement such prohibitions. In .,
addition, EPA does not agree that
regulation of other"substances besides • "-
hydfogen sulfide is unjustified to protect
;. worker health and safety. The Domestic
Sewage Study found that adverse health
^effects on POTW workers have been
•caiuied by a variety of pollutants
(incl'.uding toluene, benzene,1 hexaiic.
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Federal Kegisier/ Vol. 55, No. 14&
July
phenol, hexi-Nfalent chromixnn, and
chloroform}.
However, the agency agrees that
there are certain situations in which
industrial usera should not be held
responsible for a violation of the general
prelreatment regulations (including
today's prohibition against fume
toxlcity) because they did not possess
the information necessary for them to
prevent the causative discharge. To
address this concern, EPA is today
amending 40 CER403^(a](2) to provide
that an industrial*user, in any action
brought against it alleging a violation; of
40 CFR 403.5(b)(7), shall have an
affirmative defense where that user can
demonstrate that it did not know or
have reason to know that its discharge,
alone or in conjunction, with, a discharge
or discharges from other sources* caused
pass through or interference. Pursuant to
40 CFR 403.5ta)(2). the affirmative
defense would also be available if the
industrial user were hi compliance with
local limits developed to prevent pass
through and interference, or fwhere no
such limits for the pollutants in question
had been developed) if the industrial
user's discharge had not changed
substantially in nature or constituents
from the user's prior discharge activity
when the POTW was in compliance
with the POTW's NPDESpemit or
applicable requirements for sewage
sludge use or disposal.
c. Today's rule. Today's rule adds a
new requirement (40 CFR 403.5(b){7j that
no discharge to the POTW shall result in
toxic gases, vapors, or fumes within the
POTW in a quantity that may cause
acute worker health and safety
problems. Today's rule also amends 40
CFR 403.5(aX2) to provide that an
industrial user shall have an affirmative
defense in any action brought against it
alleging a violation of 40 CFR403.5(bH7},
if it can make the appropriate
demonstrations pursuant to 40 CFR
403.5{a)(2)(f)and(ii).
3. RCRA Tojdcity
The Study discussed the possibility of
developing a specific prohibition to
forbid the discharge of waste exhibiting
the characteristic of toxlcity* as
measured by the Extraction Procedure
(EP) or Toxicily Characteristic Leaching
Procedure (TCLPJ. This, prohibition was
not proposed in the November 23,1988
rule,'but was discussed hi the ANPR
published in the Federal Register on
August 22,1986 (51FR 30168].
The EP toxicity test and the TCLP are
designed to simulate the propensity of
metals and organic contaminants to
leach from a landfitted or land-applied
waste into ground water. The EP toxicity
lest was used under RCRA to determine
which wastes are hazardous by virtue of
exhibiting the characf eristic of toxicity.
On March 29,1990 (55 FR 11798} the
Agency published a final nilemaking
which, when effective, will replace the
EP with the TCLP, which EPA believes
provides a better measure of the
propensity of pollutants to leach from s
land-disposed waste.
EPA solicited comments in the ANPR
on whether the EP toxicity test or the
TCLP would be appropriate for
determining whether particular l ,
pollutants are likely to cause pass
through and' Interference. EPA noted
that materials may be subsequently
'diluted when mixed with large amount*
of domestic sewage, and that PQTWs
are capable of removing many such
materials even in small amounts.
Comments to response ta the ANPR
were overwhelmingly opposed to adding
specific prohibitions to-the pretreataent
regulations based on- either the EP or the
TCLP tests. Commenters generally
asserted that since the tests model the
tendency for metals and organic
constituents to 1'ea'ch from a'landfilled or
land-applied waste info ground wafer,
the testa were in-appropriate for
assessing whether ani industrial
wastewater discharge- would cause pass
through or Interference at a POTW.
The-Agency believes that requiring
industrial wasfesfreams discharged to
POTWs to pass either of the RCRA
toxieity tests may result in both under-
regulation and over-regulation of
various pollutants with little technical
justification, since application of the
tests to industrial effluents does not take
into account POTW removal efficiencies:
nor the potential for adverse impact OR
POTW collection and treatment
systems. The Agency believes that
current controls on toxic discharges
from industrial users [the Interference
and pass through prohibition,
categorical standards, and: local limits)
and from POTWs (permit limits,
including controls on toxicity) are
currently the best way to regulate
materials that would warrant special
consideration under RCRA due to-
teachability characteristics. For these
reasons, EPA did not propose to change
the current specific discharge
prohibitions to add a prohibition based
on any RCRA toxieity characteristic, nor
is the Agency finalizing1 such a
prohibition in today's rule.
- One commenter on the ANPR, while
agreeing that the RGRA toxicity tests
were not necessarily.suitable for
industrial wastewafer discharges-,
suggested that the Agency develop a
leaching test applicable to such
discharges because of the likelihood that
they would leak from sewers and cause
contamination- of ground wafer.
EPA beEeves that such a test would
be premature at the present fame
because of the-lack of available
information about the extent of ground
wafer confamina'tion caused by leaky-
sewers. When more data is available,
the Agency may consider developing
such a test-if appropriate. .
4. Corrosivity (403.5(b)(2))
Section 4G3.5fb}{2)> of the general
prefreafmenf regulations currently
prohibits the discharge of "pollutants
which will cause corrosive structural
damage to the POTW, (fnclading)
discharges with pK lower than 5.0r
unless1 the works is specifically designed!
to accommodate such discharges,"' This.
prohibition provides a numeric limit on
the discharge of acidic wastes, but does
not contains corresponding pH
limitation for eaustic wastes. The Study
reviewed local ordinances arid found'
that many provided numeric limits on
the discharge of caustic wastes.
The RCRA eorrosivify characteristic is
designed to address wastes which could
endanger human'health? or the
environment due to their ability to
destroy human or animal tissue fit the
event of inadvertent contact; corrode
handling, storage, transportatiortr and
management equipment; OF mobilize
toxic metal's in a landfill environment,
Under 40-CFR 26S.22, an aqueous waste
exhibits the hazardous-characteristic-of
corrosivity if if s pH> Is less tham or equal
to 2 OF greater than or equal to 12.5, or if
it is liquid and capable of corroding
steel af a rate greater than 0:.250 inches
per year at a test temperature of 130
degrees F. EPA solicited comments JH
the ANPR (51 PR 30168) on whether the
discharge of sucb wastes to POTWs ,
should be prohibited.
Almost no- comments were received! .
on this issue-. One- commenter believed
that the current specific discharge
prohibitions were Inadequate to control
hazardous wastes which exhibit'the
corrosivity characteristic as defined
under RCRA. The eommenter suggested
that the prohibition be amended to
include a maximum pHf, because the
Study had found1 that- some local1
• ordinances were setting maximum pH
limitations in the range of 9.0 to H.Ol
Virtually all of the reported pH
related incidents af POTWs- involve
corrosion caused by the discharge of
acidic wastes, which are already
prohibited by the current specific
discharge prohibitions. The Agency has
no evidence that high pH wastes are a :
problem for most POTW collection
systems; For this reasort, the Agency is
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24' 199° 7
30091
not amending 40 CFR 403.5(b)(2) to add
a prohibition on high pH wastes at the
present time. However, EPA encourages
POTWs to address any problems with
caustic wastes through their local limits.
5. Oil and Grease .
a. Proposed rule. There are currently
no specific nation-wide prohibitions
against disposing of oil and grease in
sewers, although the existing
prohibitions forbid the discharge of
pollutants which cause pass through or
interference or which obstruct flow at
thePOTW. .
The Agency is concerned about the
possibility that the volume of used oil
discharged to sewers is increasing to the
point of causing interference or pass
through. The likely increase in volume of
used oil disposed of in this way.is due to
several factors, among them lower
prices for crude oil which make it less
profitable to recycle used oil. In
addition, the Agency is developing a
.regulatory program under RCRA to :
control the management of used oil,
including used oil that is recycled Such
regulations could lead to increased
discharges of used oil to sewers if there -"
are no controls imposed under the Clean
Water Act. • •• .
To address these concerns and to
strengthen the current prohibitions
against pass through and interference,
on November 23,1988 the Agency
solicited comment on revising 40 CFR
403.5(b) to add a new provision
prohibiting the discharge of used oil to
POTWs. "Used oil" was generally
describeias any oil that has been
refined from crude oil, used, arid, as a
result of such use, contaminated by
physical or chemical impurities. The
proposal would have covered ;
automotive lubricating oils, transmission
and brake fluid, spent industrial oils
such as compressor, turbine, and
bearing oils, hydraulic oils, ,
metalworking, gear, electrical, and ;
refrigerator oils, railroad drainings, and
spent industrial process oils. EPA
. solicited comment on the possible ••
advantages and disadvantages of such a
prohibition, and on which particular
kinds of used oil should be covered by
the prohibition." „
b. Response to comments. The
majority of commeriters who addressed
this issue believed that a complete
prohibition of the discharge of used oil
would not be practical, but many
commenters indicated support for a
numerical limitation. Most of these _
commenters suggested that any
prohibition should contain a de minimis
exemption for small quantities of used
oil, since discharges from many
industrial users contain small amounts
of oil from washdown or cleaning
- waters that may not be completely
removed by a grease trap or oil
separator. These commenters generally
believed that used oil in such small
quantities presented little danger of pass
through or interference, and that any
prohibition should apply only to bulk
dumping of large quantities. Three
commenters suggested a limitation of
100 milligrams per liter of fats, oils, and
grease as being reasonable and
consistent with local limits established"
by many POTWs. Other commenters
were opposed to any kind of prohibition,
stating that problems with used oil were
already adequately addressed by the
general and specific prohibitions against
. pass through and interference and local
limits for oil and grease, '
Some commenters pointed out that
.certain used oils (i.e., animal and
vegetable oils and certain oils Used in
machine cutting and metalworking) are
• highly biodegradable. These Y
commenters stated that biological
: digestion hi the POTW,treatment system
is the most appropriate treatment for
these substances, and that a complete
prohibition would lead to other methods
of disposal which would, ultimately be
less protective of the environment.
However, some of these commeriters
acknowledged that such oils could
interfere with POTW operations if
discharged in very large quantities. One
commenter suggested that the proposed
prohibition should include restaurant
grease because it has been known to .-.
7 cause interference, and is'easily ,.':
rendered. . • • • '.' \ -../.
Several commenters stated that the
discharge'of used oil to POTWs should.
not be completely prohibited until
sufficient methods were available, for
other kinds of disposal. -Some; of these
commenters recommended that EPA
encourage alternative mechanisms for
the safe, legal, and inexpensive recovery
of. oil-and disposal of the residue, along
with incentives for collecting and
recycling used oil. One commenter
'suggested a national educational
campaign directed towards dp-Tit- >
yourself oil changers. "'"".'\
Several commenters supported a
complete prohibition on the discharge of
used oil to sewers. One POTW stated
that such a prohibition would ensure
that it would not have to make ease-by-
case determinations on whether
requested discharges of used oil would
violate its local limits. Another
commenter stated that a prohibition
should also include restaurant greases
because these can interfere with POTW
operations and because current test
methods do not distinguish between
these oils and oils of other origin.
Anbther commenter who supported a
"complete prohibition stated that
. allowing the discharge of used oil would
contradict EPA's pollution prevention
policy,, which seeks to avoid cross-
media transfer of polIutants..This
conmlenter stated that a prohibition
would provide the incentive for .
generators to reduce the amount of used
oiLtheiy generate as well as to recycle
what they produce. A prohibition would
also stimulate development of a
recycling market that would reduce .
costs and promote the
mstitationalization of recycling habits
and ethics. ' : ..-,-
-.- EPA agrees with those commenters
who said that a complete prohibition on
the discharge of oil is unnecessary.
Trace amounts of such oil are very
difficult to eliminate from the
wastewaters of industrial users.
Compljete elimination could necessitate
costly process or treatment changes
which would be difficult to justify given
the Agency's assessment that the danger
of pasij: through or interference from.. :
small amounts of used oils is slight.
Although used oil is an energy resource
that might be better collected and
recycled than discharged to POTWs,
today's! rule would, go soine distance •"•-'
towards accomplishing this goal (as well
as the (aim of pollution prevention),
without incurring the disadvantages of a
complete prohibition^ ' : "/":
-. EPA agrees; with those commenters
who stilted that oils of animal or
vegetable origin (such as restaurant "
greases) can be more easily'accepted by
wastewater-treatment systems. These
oils (as^ well as certain synthetic oils
such asi machine cutting or '.,
metalworking oils) can be metabolized
by microorganisms in secondary waste
treatment facilities and are readily
reduced in concentration in aerobic and
anaerobic biological treatment systems.
For this; reason, the Agency believes that
a prohfoition or a national limitation on
such oils .would not be appropriate."
However, the Agency believes that
the discharge to POTWs of oils of :
^petroleum or mineral origin is of
potential concern, since these oils are
less biodegradable in secondary
treatment plants. Release of such oil
thus has more potential to interfere with
operations at POTWs, particularly in the
case of pmaller plants. In addition, these
oils cantcoritain a variety of-toxic or
hazardqus constituents such as PCBs,
benzene, chromium, arsenic, cadmium,
and leail EPA has analyzed the
potential for pass through of these
pollutants to surface waters and to
sludge; Results showed'that when large
volumes! of used oil;are discharged,
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Federal Register /
there is a potential forpass through and
violations of water quality criteria.
Some of the constituents in
contaminated used oil, such as
trichloroethane, are veiy water soluble
and thus are characterized by a high
mobility potential. Metals such as
cadmium, chromium, and lead are very
., persistent in the environment when
released from the POTW in sludge or in
wastewater effluent.
For these reasons, the Agency agrees
with those commenters who urged
limitations on petroleum and mineral-
based oil discharged to POTWs. In light
of comments received, EPA considered a
complete ban on the discharge of such
materials, a nation-wide numeric Emit.
or a new narrative prohibition. As
described above, EPA determined that a
complete ban waa not necessary
because small amounts of such oils, are
not expected to cause pass through, or
Interference. With respect to the option
of promulgating a national numeric
limitation on the discharge of such, oils
to POTWs, EPA doea not currently have
sufficient Information upon which to
base a limit of general applicability. For
this reason, EPA is not promulgating a
numeric limit of national applicability.
EPA is therefore revising the specific
discharge prohibitions to add a new
provision (40 CFR 403.5lb)[B}} to prohibit
the discharge of petroleum oil,
nonbiodegradable cutting oil, or
products of mineral oil origin in amounts
that will cause interference or pass
through. Under existing 40 CFR 403.5(c)
(1) and (ZJ, POTWs. with approved
pretreatment programs would then be
required to implement this prohibition
by developing specific limits- for such
substances, and other POTWs would be
required to develop such, limits in cases
where pass through or interference had
occurred and was likely to recur.
Today's rule thus provides more
specificity than is provided by the
existing general prohibitions against
pass through and interference by
including a specific prohibition
addressing petroleum and mineral-
based oils and nonbiodegradable cutting
oils.
In response to the commenters who
slated that the Agency should not
prohibit the discharge of used oil until
sufficient methods wer« available for
other kinds of disposal, EPA notes that
t(?day'»rule does not include a complete
prohibition on the discharge of any type
of oil to POTWsv For this reason, the
Agency is not adopting any specific
regulatory measures to incorporate
thcs® commenters* suggestions at the
present time, although the Agency
encourages voluntary efforts in this
regard. ,
As preliminary guidance to POTWs in
establishing local limif s, EPA reiterates
that some commenters'mentioned 100
milligrams- per liter as an oil and grease
limit frequently used by POTWs. Some
standard manuals of sewer use practice
and some studies have recommended
limitations of 25 to 75 milligrams per
liter of petroleum oils, nonbiodegradable
cutting oils, or products of mineral oil
origin. One commenter submitted a list
of eight municipalities in which the
commenter operated. Of the eight, five
had limits of 100 milligrams per liter on
oil and grease and two had more
stringent limits. Only one had limits
which were less stringent. POTWs
should adopt limits as stringent as
necessary to protect against pass
through or interference at their
particular facilities.
As discussed earlier in today's notice,
some commenters on. EPA.'s proposed
fume toxicity prohibition expressed
concern about possible liability for
violation of the prohibition, when they .
did not possess the information
necessary for themio prevent the.
causative discharge. The Agency
believes that this is also a valid concern
for potential violators of today's
prohibition against the discharge of
certain- types of oil ia amounts that
cause pass through or interference. To
address this concern, the Agency is
today amending 40 CFR 403.5[a)(2):to
provide that an industrial user, HI any r
action brought against it alleging a .
violation of 40 CFR 403.5(b)(6}, shall
have an affirmative defense where that
user can demonstrate that it did not
know or have reason to know that.its
discharge, alone oron conjunction with a .-
discharge or discharges from other
sources, caused pass through or
interference. Pursuant to 40 CFR
403.(a)(2}, the defense would also be
. available if the industrial user were in
compliance with local limits developed
to prevent pass through and
interference, or fwhere ao such limits for
the pollutants in question had been
developed} if the industrial user's
discharge had not changed substantially
in nature or constituents from, the user's
prior disdiarge activity when, the POTW
was in compliance with the POTW's
NPDES permit or applicable
requirements for sewage sludge use: or
disposal.
c. Today's-rule. Today's rule adds a
" new requirement (40 CFR 403.5{b}(6W
prohibiting th& discharge of petroleum
oil, nonbiodegradable cutting oil, or
products of mineral oil origin- in amounts
that will cause interference OE pass
through. Today's rule also amends 40
CFR 403.5(a](2J to provide1 that an
industrial1 user shall have an affirmative
defense in any action brought against it
alleging a violation of 40 CFR 403.5(b)(6j,
if it can make the appropriate
demonstrations pursuant to 40 CFR
6. Solvent, Wastes ,
a. Proposed rule. On November 23,
1988, EPA solicited.commenlon revising,
the specific discharge prohibitions to
prohibit the discharge of listed solvent
hazardous wastes from non-specific
sources as defined in 40 CFR 23L31
(EPA Hazardous Wastes Nbs. FQ01,
F002, F003,. FQ04, and F005). These
solvent listings (about 30 organic
compounds) encompass spent solvents,
spent solvent mixtures and still bottoms
from the recovery of spent solvents and
spent solvent mixtures. The. compounds
were listed on the basis of ignitability
and/ or toxicity, t
Discharges of solvent wastes to
POTWS have- involved actual firea or
explosions, or potential fires which
caused evacuation of treatment plant
buildings or other measures to protect
treatment or collection systems.
: Incidents have also- been documented
involving hazards tcp worker health and
safety and inhibition or upset of
biological treatment systems. In
addition, analysis; of pollutant fate
within POTW systems has shown that
significant quantities of solvents pass
through to receiving waters where
biological treatment systems are not
well atccBmated to the pollutant in
;question. Far these reasons, the Agency
solicited comment on. revising the
specific discharge prohibitions ta
prohibit the discharge of certain solvent
.wastes listed under 40 CFR 26131."
Specifically, EPA solicited comment on
whether existing local limils, the
proposed revisions to lihe specific
discharge prohibitions: concerning
ignitability and fume toxicity, and the
proposed solvent management
component of indastrial user spill and'
batch control plans would address most
of the; concerns discussed above,
possibly making a ban on solvents
redundant. The Agency stated that a
possible advantage of these proposed
revisions is that they would address the
discharge of organic compounds not
used as solvents. The Agency solicited
comment on whether the possible
impacts of solvents on receiving waters
would justify prohibiting these wastes
from being dischargee! to POTWs, and'
1 whether such a prohibition would be
appropriate for those highly wafer-
soluble solvent wastes which are more
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" and
appropriately treated by biological
degradation processes such as thoss
used at POTWs.
b. Response to comments. In general,
commenters did not support a ban on
the discharge of listed solvents. Many
commenters pointed out that a complete
ban would not be practical because
most industries cannot completely -'
eliminate detectable levels of solvents
from their discharges. Solvent recovery
systems reduce the total amount of '
, hazardous waste present in a V
wastestream but there is still a need to
dispose of the "F" listed still bottoms.
Commenters pointed out that some
solvent wastes (e.g., acetone, ethyl
acetate, and methanol) can be
effectively treated at POTWs using.
secondary treatment. Some commenters
stated that the presence of certain
organic solvent wastes can be beneficial
• to a biological, treatment system. _
' Many commenters believed that
existing or proposed regulations' ,
; concerning ignitability,-fume toxicity, .
solvent management plans,, categorical
standards and sludge control were
sufficient (along with local limits) to
prevent the discharge of listed solvent
,- wastes from caushig interference or
pass through at POTWs. These
commenters stated that a proposed ban
on the discharge of listed solvent wastes
would therefore be redundant.
However, several commenters did
support a ban on listed solvents. One
commenter urged the Agency to make
the prohibition constituent-specific so
that constituents of concern from the
RCRA "K" and*"U" lists could also be
included. This commenter also urged the
prohibition of alcohol and ketone
wastes, stating that these wastes pose
significant health problems. Other
commenters stated that numerical limits
should be established, or that an
aggregate limit.similar-to the Total Toxic
Organics standard for the electroplating
and metal finishing industries be
promulgated. One commenter suggested
that each significant industrial user be
required to institute a Toxics Organics :
Management Plan,
After reviewing the comments and
evaluating this issue, the Agency has:
decided not to prohibit the discharge of
RCRA listed solvents F001-F005 at this
time. EPA believes that such a
prohibition would not be justified in
light of all the existing controls
(including those promulgated today) ,
designed to address the problems
caused by solvents. For example, the
prohibition on the discharge of
wastestreams with a flashpoint below
140 degrees Farenheit (the RCRA
standard for ignitable liquid waste)
should effectively prevent the discharge •
of substances (including solvents) that
could cause fires at POTWs. Similarly,
the prohibition of discharges resulting in
toxic gases, vapors, or fumes in a .'-.
quantity that may causa acute worker
, health and safety problems should go
very far towards eliminating any
problems occasioned by the ;
volatilization of solvent discharges in
POTW collection and treatment---.-
systems. As discussed earlier, EPA is
preparing.guidance for POTWs on how
to implement this prohibition through
numeric limits. :
Today's final rule also contains a •"
requirement that all POTWs with
approved pretreatment programs
evaluate their significant industrial ;'"~
users to determine if these users heed
plans for the control and prevention of
, slug discharges. Such plans must contain
any necessary measures for controlling
toxic organics (including solvents). EPA
believes that this provision will be an
effective vehicle for extending solvent
management plans to nqncategorical
significant industrial users. Many
categorical users are already dovered by
Total Toxic Organic and solvent
management plan requirements. In light
of these requirements, the Agency does
not believe that it is necessary to
promulgate a total toxics organic
management plan requirement as part of
the general pretreatment standards.
With respect to establishing
numerical, constituent-specific, or
aggregate limits for specific solvents or
:waste constituents of concern, the
Agency believes that such limits would,
not be appropriate at the national level.
Such limits could not, of necessity,
address the concerns of particular
municipalities with their unique
combinations of industrial users and
site-specific problems. For this reason,
the Agency prefers at this time to leave
the development of such limit's to
POTWs. >
c. Today's Rule. For the reasons
discussed above, today's rule does not
contain a prohibition against the
discharge of listed solvent hazardous
wastes to POTWs. , ,:,
B. Spills and Batch Discharges (Slugs)
(40CFR403.8(f)(2)(v})
a, Proposed Change v -
The principal pretreatment regulation
addressed specifically to slugs is the
existing requirement in 40 GFR 403.12(f)
that all industrial users notify POTWs of
discharges that could cause problems at
their POTW, including any slug loadings
that would violate any of the specific
prohibitions of 40 GFR 403.5(b).
Spills and batch discharges present
special challenges to POTWs. As
dociumented by data on incidents at
PO'IWs, these discharges can cause
many problems at the treatment plant,;
including Worker ilhiess, actual or:
threatened explosion, biological upset or
inkibition, toxic fumes, corrosion; and
contamination of sludge and receiving
waters. A survey undertaken by the
Association of Metropolitan Sewerage
Agencies (AMSA) indicated that spills
to sewer systems were the most
common source of hazardous wastes at
the respondents' treatment plants. -
The current general pretreatment
regulations do not address these. ".,
problems comprehensively. To address
this Concern and to strengthen the'":
; existing prohibitions against pass
through and interference, EPA proposed
on November 23,1988, to revise 40 CFR
403. B(f)(2)(v) to provide that POTWs
must evaluate each of their significant
industrial users to determine whether
sucM users need a plan to prevent and
cqhlrol slug loadings, this evaluation '
was proposed ,to be required at the same
time that the POTW conducts inspection
or sampling of a significant industrial
user, POTWs would use the opportunity
of an inspection or sampling to examine
the operational practices and physical
premises of a significant industrial user
to dcicide whether these warranted the
development of a plan to handle and
.prevent accidental spills or non-routine
batch discharges.
The proposal would also have revised
40 CM 403.8(f)(2)(y) to provide that if
the F-OTW decides that such a plan is
warranted for a particular significant
industrial user, the plan must contain, at
a minimum,: the following elements: ,--<
(I)1 Description of discharge practices,
including nonroutine batch discharges;
(2)1 Description of stored chemicals;
(3) Procedures for promptly notifying
the FOlWof slug discharges as defined
under 40 CFR 403.5(b), with procedures
for fcillow-up written notification withii :
five days; , .'•'''.:'.'.
(4)-Any necessary procedures to
prevtjnt accidental spills, mcluding
maintenance of storage areas, handling
and transfer of materials, loading and
unloeiding operations, and control of
plant! site run-6ff;
(5):'Any necessary measures for
building any containment structures or
equip.ment; ..'•„'.
(6) Any necessary measures for
controlling toxic organics (including
solvents); •'•'••
(7) |Any necessary procedures and
equipment for emergency response; and :
(8) Any necessary follow-up practices
to Hirtit the damage suffered by the
treatment plant or the environment.
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1990 I Rules and Regulations
according to the commenter. Still
another commenter suggested that
industrial users with diked storage areas
or an absence of floor drains be
exempted. One commenter stated that
the proposed language would not
exempt non-significant industrial users
from slug control and prevention
-requirements. Another commenter
expressed concern about industrial
users who needed slug control plans "
because of storage of hazardous
chemicals, but who had little industrial
discharge to sewers.
EPA's "Guidance Manual for Control
of Slug Loadings to PQTWs" (September
1988), provides guidance on evaluating
industrial users for slug potential,
criteria for determining whether an
industrial user needs a control plan, and
guidance in developing slug control
requirements. The manual is divided
into three parts: (1) Evaluating the need
for a POTW slug control program, (2)
developing an industrial user control
program, and (3) developing a POTW
slug response program. Information is
provided on identifying potential
industrial user slug sources and their
risk categories, evaluating or improving
the legal authority to regulate slugs,
requiring selected industrial users to
develop slug control plans or measures,
inspecting and monitoring industrial
users, and developing emergency
response procedures and resources. EPA
believes that this guidance will be useful
to PQTWs in determining which.
industrial users need slug control plans,
and in developing such plans, thereby
reducing the potential for arbitrary
decisionmaking. However, EPA does not
believe that it should develop rigid
criteria in its regulation establishing •
*vhen slug control plans should be
required. POTWs are in the best
position to make such determinations
and, since such requirements will help
ensure continued compliance with its
NPDES permit, it is in the interest of the
POTW to do so. With respect to
exempting certain industrial users from
slug control requirements, the Agency
notes that today's rule requires that
POTWs evaluate significant industrial
users to determine whether such users
need slug control plans. EPA believes
that exemptions are best granted by
POTWs during the course of such
evaluations to allow them to take into
account the particular circumstances
present at the significant industrial
user's facility. Today's rule does not
specifically exempt non-significant
industrial users from slug control
requirements because POTWs may wish
to require such users to develop plans
on a case-by-case basis to address the
potential for adverse impact caused by
slug discharges from those facilities.
With respect to facilities with little or no
industrial discharge, the Agency notes
that non-domestic users which typically
. introduce only sanitary, as opposed to
industrial, waste to POTWs are
nevertheless subject to the general
pretreatment regulations andmay be
designated as significant industrial users
by POTWs for such reasons as the
potential of stored chemicals to enter
the sewer in an accident. They may also
be required to have slug control plans
pursuant to POTWs'local authorities.
One commenter suggested including
among the elements a timetable for
implementation. Still another said plans
should contain language requiring the
industrial user to immediately take
measures to cease the discharge and
remedy the damage. Several wanted to
see a requirement for plan certification
by professional engineers, and one
commenter suggested an equalization
system requirement for industrial users
with a history of slug discharges.
Although these elements may sometimes
be needed on an individual basis, EPA
does not believe that they are necessary
elements for all slug control plans issued
to significant industrial users and is
therefore not promulgating such
requirements as part of today's rule. For
example, today's rule already specifies
that control plans must contain any
follow-up measures necessary to lunit
the damage suffered by the treatment
plan or the environment. POTWs may
wish to require many industrial users to
immediately take measures to cease the
discharge as a follow-up measure, but
such a requirement may be superfluous:
for some industrial users because of the
nature of then- effluent or their discharge
practices. Similarly, although POTWs
may wish to require certain facilities to
have their plans certified by
professional engineers, certification may
not be needed for smaller, less complex
facilities. With respect to equalization
systems for facilities with a history of
slug discharges, EPA believes that in
many cases other measures-may be
equally as or more appropriate to
address the problem. Concerning
timetables for implementation, EPA
believes that it is preferable for POTWs
to decide on a case-by-case basis
whether such a timetable is needed in
order to address the potential for
adverse impact presented by a ,
particular significant industrial user.
Today's rule allows POTWs the
flexibility to require such timetables,
orders to cease discharge, or engineer
plan certification as POTWs deem
appropriate or necessary. However, the
Agency has modified today's rule
slightly from the proposal to require that
slug control plans must contain any
necessary measures for inspection as
well as maintenance of storage areas
and for any necessary worker training.
Inspection and maintenance of storage
areas j!s essential to see that stored
materials are, not leaking or improperly
placed;, and worker training is necessary
to instruct employees in the most
practicable methods to prevent, detect,
and respond to spills at the particular
facility.
Another commenter suggested that the
rule bej modified to.require that any
significant industrial user which
discharges a slug loading should not
only notify the POTW but also
specifically report (within thirty days)
what happened and what action would
be taksin to minmiize the possibility of
recurrejncs. However, EPA believes that
the coromenter's concern will be
adequately addressed by the
requirement m today's rule that slug
control, plans contain procedures for
prompt notification to the POTW of slug
discharges and follow-up written
notificsition within five days. Today's
rule also requires follow-up practices to
limit damage to the treatment plant or
the enujironment.
Several commenters asked for
clarification on how often the need for
slug plsins should be evaluated by the
PpTW;ii.e., whether the evaluation of
significant industrial users is to be a
one-time requirement or whether it must
be updated at the time of each sampling
or inspection. Also, some commenters
stated that POTWs need the flexibility
to perform frequent inspections without
having to evaluate the need for slug
plans every time. Another commenter
suggested that POTWs be required to
evaluate the need for slug plans only
when individual significant industrial
user peimits are reviewed- One .
commenter suggested implementation of
plans oirer & three-year period by
approved pretreatment POTWs.
Another commenter suggested that
POTWij should be allowed up to two
years tci complete all of the initial
evaluations, even if sampling or
inspection is more often than once every
two yea is. The commenter believed that
a.two-year interval provides adequate
time for the POTW to require, review,
and evaluate each slug loading control
plan. ;' :
EPA believes that evaluation of
significant industrial users to determine
the need for slug prevention and control
plans should be more than a one-time
requirement. Today's rule therefore
requires! POTWs to conduct such
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30096 Federal Register / Vol. 55, 'No. J4Z I'Tuesday,! July 24y J9SO /Rules and Regulations
evaluations of significant industrial
users for purposes of determining the
need for a slug prevention and control
plan at least once every two years,
However, the Agency notes that at least
one commenter apparently misconstrued
the language of the proposal to require
that POTWs review slug control plans
every two years. EPA reiterates that
under today's rule, POTWs would
evaluate significant industrial users to
determine the need for a slug control
and prevention plan. Actual evaluations
of already submitted plans would take
place according to a schedule of
POTWs' own choosing.
The November 23,1988 proposal
would have required POTWs to
evaluate significant industrial users to
determine the need for slug control and
prevention plans every two years, and
would have also required that the
evaluation be conducted at the same
time that the POTW conducted
Inspections and sampling of significant
industrial users. Under today's rule,
POTWs must inspect and sample
significant industrial users at least once
a year, instead of once every two years
as was proposed on November 23,1988
(see Part G.2 of today's notice). The
Agency believes that determining the
need for slug control plans need not take
place that often, and therefore is
maintaining in the final rule the ,
proposed requirement that PQTWs
make the determination a minimum of
once every two years. Under today's .,
rule, the determination need not
necessarily be made at the same, time as
inspections and sampling of the
particular significant industrial user,
since EPA believes that POTWs should
have the flexibility to conduct this
evaluation separately if they deem it
appropriate. Nevertheless, EPA believes
that inspections and sampling of
industrial users will generally provide
the POTW with the best opportunity for
determination of the necessity for slug
prevention and control plans, and
encourages POTWs to conduct such
evaluations at the same time as
Inspections and sampling are carried
out. Although EPA believes that where
slug control plans are developed,
compliance with the plans should be
made a requirement hi the significant
industrial users' individual control
mechanisms, no schedule for
implementation of plans is required in
today's rule. This will allow POTWs the
flexibility to set priorities with respect
to their own significant industrial users.
EPA also solicited comments on
whether spill or batch control
requirements should be imposed directly
on industrial users by EPA. In response,
some commenters indicated that it
would be appropriate for the industrial
users to bear the burden of preventing
harm to the POTW and its workers.
'However, the majority of commenters
did not support imposing the slug
control requirements directly on all
industrial users, on the basis that slug
control plans must be specific to each
industrial user in order to be effective
(although one commenter believed that
slug control requirements should be
uniform for all industrial users who
handle hazardous waste). Commenters
generally indicated that due to the
facility-specific nature of most control
plans, the POTW is in the best position
to determine whether a control, plan
contains appropriate measures. One
commenter said that the requirements
should be imposed directly on only
significant industrial users or those
industrial users with slug potential for
both hazardous and nonhazardous
discharges. .
EPA agrees that slug control plans
should not be imposed directly by EPA
because there are almost no . . '..
requirements that would be uniformly
appropriate for all industrial users or all
significant industrial users. POTWs will
be in the best position to develop slug
prevention and control requirements for
industrial users because, by fulfilling'
inspection and sampling requirements,
they will be familiar with the operations
of their individual industrial users, and
they will also know best what types of
discharges must be prevented to avoid
causing passthrough and interference.
Accordingly, today's rule provides that
the POTW will develop individual slug
control plan requirements as necessary.
With respect to expanding the
evaluation requirement to other
categories or all industrial users, ,
commenters generally preferred
requiring POTWs to evaluate only
significant indjistrial users as a way to
conserve POTW resources, especially
since POTWs may classify any user as
significant. A number of commenters ,
made their approval of the limitation to
significant industrial users contingent
upon adoption of an appropriate
significant industrial user definition.
One commenter stated that if POTWs
appropriately designate as significant,. •
those facilities that have a "reasonable
potential to adversely affect the
POTW's operation." the significant
industrial user limitation would be
appropriate. However, one commenter
stated that by implication the proposed
rule would make any facility that a
POTW believes should have a control
plan a significant industrial user, and ...
that this should not necessarily be the
case. Other commenters opposed to
expanding the' requirement beyond
significant industrial users generally
indicated that evaluating all industrial
users for slug control plans could result •
in development of unnecessary plans. '
Several commenters expressed concern
that EPA had not considered the costs of
expanding the proposed rule to include
all industrial users, especially small
facilities. •
However, a number of commenters
stated that all industrial users should be .
evaluated for slug control plans. One
commenter stated that all dischargers
should be covered by slug control
requirements to limit incentives for
industries to relocate to areas without
an approved pretreatment program.
Another commenter suggested that the
requirement for slug plan evaluations be
expanded to include industrial users
who submit notification of the discharge
of hazardous wastes (as proposed in 40
CFR 403.12(p)) and any incidental user
of the POTW who submits notification
of the discharge of hazardous waste .
pursuant to CERCLA, RCRA or SARA
requirements. , ,'. .-,-'••
Under today's rule, POTWs must, at a
.minimum, evaluate significant industrial,
users to-determine the needier slug
control plans. However, POTWs are free
to inspect and require slug control plans
of other industrial users. Today^s rule,
affords considerable POTW flexibility ,
in designating significant industrial : ,
users, and in selecting other appropriate
industrial users for slug plan -.--,- , •.- .
development. However, today's rule
, also does not require or imply that every
industrial user determined by the POTW
to need a slug control plan is a .•...
significant industrial user, because such ,
users may not fit the criteria for ,,,
significance found in the definition of,
significant industrial user promulgated.
today (for example, they may have the
potential for adversely affecting POTW
operations only in the event of a spill, in
which case the POTW may not wish to
designate them as significant for other
purposes). Industries that are not
significant industrial users, including
some that store or discharge hazardous
wastes, may sometimes need a slug ;
control plan, but EPA believes it is. . .
preferable, for POTWs to ascertain
whether this is .necessary on a caserby-
case basis. •
With respect to duplication of ••
CERCLA, SARA and/or RCRA .
requirements, all commenters expressed
an interest in administrative efficiency.
A number of commenters asked .that the
rule recognize the potentialexistence of
industrial user plans already prepared-
for rither permit or regulatory - ••'•• ..
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-
requirements, and partially exempt such
industrial users or incorporate their
RCRA or other permit elements by
reference. Several commenters asked for
clarification about whether an industrial
user can submit a copy of a document
prepared for another agency or
regulation to the POTW in lieu of
preparing a separate slug control plan.
Several commenters stated that the Spill
Prevention Control and Countermeasure
(SPCC) Plan requirements should suffice
for slug control. One commenter
requested clarification about whether a
facility would be required to have a
RCRAmanagement plan which could
serve as a slug control plan if the facility
generated a sufficient quantity of waste
to be subject to the formal reporting
requirements [the Agency assumes that
the commenter was referring to today's
hazardous waste notification
requirements).
EPA recognizes that a number of
existing requirements under other
statutes and regulations could serve as
components of slug control plans. If a
significant industrial user is covered by
such a plan, the POTW may accept such
plans m partial or complete fulfillment
of the requirements in today's rule, as
long as each element set forth in today's
rule is addressed in an acceptable
manner in some document or collection
of documents. POTWs may also impose
more rigorous requirements as
circumstances warrant. With respect to
today's hazardous waste notification
requirements for dischargers of
hazardous wastes to POTWs, EPA notes
that some, but not all, of such
dischargers are also subject to RCRA
management requirements because they
treat, store, or dispose of hazardous
waste pursuant to 4 CFR part 264.
With respect to exemptions from slug
notification requirements for industrial
users who submit CERCLA and SARA
notifications, almost no commenters
approved of this proposal. Although
SARA and CERCLA have notification
requirements that may overlap with slug
notification, most commenters believed
prompt and direct notification of the
POTW by the industrial user was
essential. These commenters pointed out
that prompt POTW response to slugs
would be delayed by a second-hand
notification from SARA or CERCLA
personnel. Another commenter pointed
out that the SARA list of Extremely
Hazardous Substances does not address
many potential POTW hazards.
Gasoline, toluene, and other conunon
flammable and explosive chemicals are
not included, while certain unusual
chemicals and medicines that may not
be of concern to POTWs are on the list.
One commenter expressed concern that
such an exemption would lead industrial
users to believe that spills below a
CERCLA reportable quantity (RQ) are of
no consequence to the POTW, when this
is bftennot.the case.
EPA believes that slug loading
notification requirements serve different
purposes from SARA/CERCLA
requirements and are not duplicative.
Direct notification to the POTW affected
by the slug is critically important
because time is essential in formulating
an appropriate response. Similarly, the
reportable quantities established under
CERCLA are not necessarily related to
the potential for pass through or
interference at the POTW, nor are the
hazardous substances required to be
reported under SARA necessarily the
substances of most concern to POTWs.
In the proposal, EPA requested
comment on whether an administrative
exemption from CERCLA section 103(a)
notification requirements would be
appropriate for releases into sewers
which pose little or no hazard to the -
POTW. The Agency received no data
indicating that such an exemption would
be appropriate. For this reason, EPA is
not addressing the issue of
administrative exemptions under
GERCLA in today's rulemaking.
c. Today's Rule ; ' :
Today's rule revises 40 CFR 403.8(fJ to
provide that POTWs with approved
pretreatment programs must evaluate, at
least once every two years, whether
each significant industrial user needs a
plan to control slug discharges as
defined under 40 CFR 403.5[b). If the
POTW decides that such a plan is
needed, the plan shall contain at least
the following elements:
• Description of discharge practices,
including nonroutme batch discharges;
• Description of stored chemicals;
• Procedures for promptly notifying
the POTW of slug discharges, including '
any discharge that would violate a
specific prohibition under 40 CFR
403.5(b), with procedures for follow-up
written notification within five days;
• If necessary, procedures to prevent
adverse impact from accidental spills,
including inspection and maintenance of
storage areas, handling arid transfer of
materials, loading and unloading
operations, control of plant site run-off,
worker training, building of containment
structures or equipment, measures for
containing toxic organic pollutants
(including solvents], and/or measures
and equipment for emergency response;
and ;
• If necessary, follow-up practices to
limit the damage suffered by the
treatment plant or the environment
C. Trucked and Hauled Waste (4OCFR
403.5(b)(8)) - ••
a. Proposed Change
Many POTWs have expressed
concern about discharges'from liquid
waste haulers. The Study identified the
strengthening of controls on these
dischargers as potentially deserving of
,th« Agency's attention. In June 1987 the
Agency issued guidance to help POTWs
control the discharge of hazardous
wastes from liquid waste haulers to
their systems {Guidance Manual for the
Identification of Hazardous Wastes
Deliveredto Publicly Owned Treatment
Works by Truck, Rail, or Dedicated
Pipe]. As a further response to the Study
and to further .the prevention of pass
through and interference, the Agency
proposed on November 23,1988 to add a
provision to 40 CFR 403.5(b) prohibiting
the;mtroduction to POTWs of any
truisked or hauled pollutants except at
discharge points designated by the
PO'fW. The Agency requested
comments on the proposal and on the
following issues: whether to revise 40
CFR 403.8 to require POTWs to specify
particular discharge sites; whether .the
proposed specific discharge prohibition
is too extensive and should be limited to
nphrseptic wastes only; and whether to
require POTWs to develop and obtain .
approval of additional procedures to
deal with trucked wastes, such as
requiring POTWs to monitor and sample
such wastes.
b. Response to Comments
The Agency received many comments
on tile proposed rule from POTWs,
States, private industry, trade
associations, and environmental groups.
; Conimenters generally favored the rule
although many suggested modifications.
The majority of commenters indicated
that Specific discharge sites would
provide, better control of trucked and
hauled waste, as well as improved
accountability for this type of
discliarger. Commenters generally
indicated that the rule would increase
POTWs1 control without adding
burdensome requirements. Additionally,
one commenter indicated that the
requirement for designation of discharge
poin!:s gives notice to all waste haulers
that the POTWs control authority is
backed by federal controls and
guidelines. One commenter stated that
as the land disposal of untreated
hazardous wastes is increasingly
prohibited under RCRA, surreptitious
disposal of unwanted hazardous wastes <
might become more commonplace, and
therefore better controls on trucked or
hauled discharges will be necessary.
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30098 Federal Register / Vol. 55, No,; 142'/ Tiiesday, July M,-1990 / Rules and Regulations
However, some commenters stated'
that there is no need for additional
federal requirements for liquid waste
haulers. Some commenters said that
current requirements established by
POTWs with approved pretreatment
programs for sampling, testing, and
manifesting are adequate to control the
discharge of non-septic trucked wastes.
Some commenters opposed to the rule
slated that RCRA is the appropriate
primary vehicle for control of trucked or
hauled hazardous waste in order to
avoid confusion, duplicative
requirements, and uncertainty. These
commenters stated that it would not be
productive to require duplicative
requirements under the pretreatment
program, since liquid waste haulers are
not covered by the domestic sewage ,
exclusion and are therefore subject to
RCRA transporter requirements.
The Agency does not agree with the
assertions that the proposed
requirement is redundant with existing
RCRA or pretreatment requirements or
that trucked or hauled wastes should
not be subject to specific regulation. ,
Because hazardous waste haulers must
comply with RCRA manifest
requirements (including transport of the
waste to a designated RCRA facility).;
the principal new legal effect of today's
requirement will be to prohibit the
discharge of trucked non-hazardous
wastes to POTWs except at designated
discharge points. Practically, however.
this requirement will give POTWs better
control of all wastes entering their
systems (including hazardous wastes]
by encouraging POTWs to designate
certain discharge points that they can
monitor to prevent the introduction bf
undesirable wastes into the sewer
system.
EPA believes that designation of
discharge points is an essential tool to
improve POTW control of trucked or
hauled wastes. Therefore, EPA is
revising 40 CFR 403.5(b) to add
paragraph (8) which prohibits the ;
introduction to POTWs of any trucked
or hauled pollutants except at discharge
points designated by the POTW. The
rule allows POTW flexibility in
implementing this prohibition. ,
Commenters were generally opposed
to requiring POTWs to specify particular
discharge sites. One commenter noted
that only POTWs accepting such waste
should designate discharge points. The
commenter concluded that requiring
POTWs to designate discharge points
would cause confusion because many
POTWs do not accept hauled waste.
EPA agrees that requiring all POTWs to
designate discharge points would not be
appropriate; not all POTWs are
equipped to handle additional loads
and/or types of pollutants which may be
introduced to their facilities by liquid
waste haulers. It is not EPA's intent to
require the designation of discharge
points by POTWs. Rather, EPA intends
that today's rule be interpreted as
prohibiting the discharge of hauled
waste to a POTW except to the extent
that the POTW allows such discharges
and the'y occur at locations designated
for such purposes by the POTW.
A number of commenters suggested
specific modifications to the rule. One
commenter stated that POTWs should
have explicit authority to refuse to
accept such wastes in order to protect .
the plant including a rejection because
proper analyses and certification were
not met This commenter indicated that
POTWs should also be able to specify
location of disposal, time and other
- conditions deemed necessary, including
local limits* The commenter favored
adding statements defining conditions
POTWs can impose prior to accepting
such wastes, including the use of local
limits. Two commenters suggested
POTW performance standards for
establishing discharge points, stating
that POTWs with a wide distribution of
industrial users should provide multiple
locations to minimize transportation
expenses and the risks inherent in all
transportation for industrial users who
haul their .wastes to the POTW. One
commenter suggested requiring that
designated discharge points be
supervised by POTW personnel at ail
times when discharging is permitted.
EPA believes that the conditions and
restrictions suggested by these ,
commenters are sometimes necessary
on an individual basis, but would
necessarily vary according to different
POTWs and their circumstances and
therefore are not appropriate for
inclusion in a uniform national rule. The
Agency notes that today's rule provides
POTWs with- the flexibility to adopt
specific conditions or restrictions such
as those suggested by the above
commenters. For example, POTWs may
designate multiple discharge points for
non-hazardous waste at any sites they ,
deem appropriate for particular types of
industrial users and they may provide
supervision at some or, all of these sites
as appropriate. Similarly, POTWs may
refuse to accept any trucked or hauled
waste if proper procedures have not
been followed, or they may:set specific '
limits for such wastes. EPA's "Guidance
Manual for the Identification of
Hazardous Wastes Delivered to Publicly
Owned Treatment Works by Truck, .
Rail, or Dedicated Pipe" (Office of ;:
Water Enforcement and Permits, June
1987), suggests numerous specific means.
to ensure that hazardous wastes are not
being discharged^.POTWs, including
permits,"waste tracking systems, •'.."
inspection and sampling analysis,
surveillance and investigative '-
techniques, and restricted discharge
permits. Because the need for such '••'••
measures will vary, today's rule leaves
it up to the POTW to adopt them when
necessary. . . .
A few commenters requested •
guidance on what specific tests to
perform on trucked waste, or suggested
the use of simple tests to determine the
hazardqusness'of wastes. EPA's above-
cited "Guidance Manual for the •. . •
Identification of Hazardous Wastes
Delivered to Publicly O.wned Treatment
Works by Truck, Rail, or Dedicated
Pipe" contains detailed guidance on
such,testing, including how to determine
if a waste .is.hazardous andhowito
establish a;waste monitoring program •
tailored to the POTW's needs. , ,
One commenter suggested that the .'.-
regulations should prohibit acceptance
of trucked or hauled materials which
may result »n interference'or pass . ,, '
through of pollutants. Another ;
commenter stated that categorical limits
should not apply to trucked wastes,
since this would unduly complicate the
process. Still another commenter stated
that establishment of dump sites away
from the treatment facility could create
a control problem for the POTW, and
that the most effective control method
would allow discharge only at the
POTW headworks.
In response, EPA notes that trucked
and hauled wastes are already subject
to both EPA's general pretreatment
regulations (including the general
prohibition against pass through and
interference) and to any categorical
pretreatment standards applicable to the
wastes. EPA agrees that in many
instances the most effective control ;
method may be to allow~discharges of .
trucked or hauled wastes only at POTW
headworks, and encourages POTWs to
adopt this method if they deem it
appropriate. In designating discharge
points, and establishing procedures to
ensure that wastes introduced to the-
POTW comply with all applicable
federal requirements, EPA suggests that
., POTWs keep two critical issues in miiid.
First, facilities generating wastes
covered by categorical pretreatment
standards may not avoid pretreatment
requirements simply by arranging for
waste removal by liquid waste haulers.
Accordingly, wastes generated by such
facilities may not be introduced to a,
POTW, by a liquid waste hauler unless ,
they have been.pretreated in accordance
-------
'
with the categorical pretreatment
standard(s) applicable to the waste.
Second, POTWs may not designate
discharge points outside of the POTW
facility boundary for the introduction of
hazardous wastes to the sewer system.
Under the RCRA regulations, hazardous
wastes may only be transported to
designated facilities permitted to handle
the waste described in the manifest [see
40 CFR 262.20, 283.21). For POTWs
operating under a RCRA permit-by-rule,
the area outside the POTW property
boundary, including most of the sewer
collection system, is not part of the
-permitted facility, so cannot be used as
a location, for accepting hazardous -
waste. See EPA's 1987 "Guidance for
Implementing RCRA Permit-by-Rule
Requirements at POTWs," p. 11. For
POTWs operating under or considering
applying for a RQRA permit, EPA has
stated that "manifested wastes may
only be delivered to an approved
(hazardous waste management facility),
and sewer systems will not be approved
for that purpose". 45 FR 33320 (May 19,
1980).
Many commenters supported limiting
the prohibited discharge standard to
non-septic wastes, stating that
designating discharge points for all
trucked or hauled wastes could
potentially put an undue burden on
small POTWs because of supervising
discharges at these points, and that
limiting the prohibition to non-septic
wastes would not prevent a POTW from
specifying specific discharge points for
septic waste if deemed appropriate by
the POTW.
However, other commenters believed
that both septic and non-septic wastes
should be included in the prohibition.
These commenters indicated that the
prohibition would be difficult to enforce
if septic wastes are excluded, since it is
sometimes difficult to ascertain without
sampling whether a truck is carrying
septic or non-septic wastes.
EPA agrees with those commenters
who expressed concerns about the
potential presence of toxic and
hazardous pollutants from non-domestic
sources in septic wastes. For this
reason, the Agency is today prohibiting
the discharge of all trucked and hauled
wastes except at designated discharge
points. This will give PQTWs better
controLof all such wastes potentially
containing toxic and hazardous
pollutants.
One commenter stated that the ,
prohibition does not distinguish between
a liquid waste hauler's off-site discharge
to a POTW and an on-site discharge
from a truck which is used to transport
waste from one industrial plant building
to another, then rinsed.out and the
residue discharged to the sewer at the -
industrial user's site. In response, EPA
notes that the intent of today's rule was
to regulate the discharge of wastes
trucked or Tiauled off-site to the POTW
from an. industrial facility. Wastes
discharged from a truck to the collection
system at an industrial user's facility are
not covered by today's prohibition, since
such waste would not normally differ
from that discharged by the facility
during its usual operations. The purpose
of today's prohibition, on the other
hand, is to give POTWs better control of
potentially harmful wastes which may
be difficult to identify or which may
have no easily ascertainable origin.
Most commenters did not support
requiring other procedures for trucked
and hauled wastes, although a few
commenters recommended requiring
additional sampling and monitoring
procedures. However, most commenters
generally indicated that while
monitoring and sampling of-truck loads
are important, specific procedures
should be developed by each POTW on
a case-by-case basis to address its own
particular situation. A number of ^
POTWs discussed their own procedures
for controlling trucked and hauled
wastes, such as a certification or
manifest requirement to track wastes
entering the treatment plant, continuous
supervision of designated discharge
points, inspection of wastes (visual or
through chemical and/or physical
analysis) prior to acceptance by the
POTW, requiring that trucked wastes be *
subjected to a minimum annual
characterization and compatibility
testing, and individual truck load
sampling. Commenters believed that the
extent' of discharge management control
exercised by the POTW should be
tailored to facility-specific conditions,
such as volume of specific material
which the treatment process can
accommodate over a period of time •
without loss of treatment effectiveness.
'EPA believes that requiring uniform
POTW procedures for handling trucked
and hauled waste is not appropriate at-
the present time, since such procedures
are very dependent on site-specific
situations which POTWs are generally
best equipped to address on, their own.
For this reason, EPA is not requiring -
POTWs to develop any particular
measures to deal with trucked or hauled
wastes, other than the prohibition on
discharges except at locations
designated by the POTW.
c. Today's Rule '
. Today's rule adds a new provision {40
CFR 403.5(b)(8)) prohibiting the
discharge of trucked or hauled
pollutants except at discharge points
designated by the POTW.
D« Notification Requirements (40 CFR
403.12(p))
a. Proposed Change
Section 3010 of RCRA requires that
ar,ty person who generates or transports
hazardous waste* or who owns or
oplerates a facility for the treatment,
storage, or disposal of hazardous waste
must file a notification with EPA or with
a State with an authorized hazardous
waste management program. Pursuant to
th<; Domestic Sewage Exclusion in 40
Cm. 261.4(a)(l), any material mixed with
domestic sewage that passes through a
sewer system to a publicly-owned
treatment works for treatment is not a
solid waste, and therefore cannot be a
hazardous waste. However, section
30:i.8(d) of RCRA (enacted as part of the
Hazardous and Solid Waste
Amendments in 1984) provides that the
notification requirements of RCRA
section 3010 "shall apply to solid or
dissolved materials, in domestic sewage
to,She same extent and in the same
manner as such provisions apply to
hazardous waste." There is currently no
regulatory requirement that industrial
usgjrs report the discharge of all -
hazardous wastes to sewers. The Study
therefore identified the implementation
of siection 3018(d) as a potentially useful
component of an improved pretreatment
program. The Agency believes that the
information provided by such
notification is needed for the ultimate
development by POTWs of controls to
prevent pass through and interference.
On November 23,1988, EPA proposed
to revise 40 GFR 403.12 to add a new
paragraph;(p) that would require all
industrial users to notify EPA Regional
Waste Management Division Directors,
State Hazardous Waste authorities, and
their POTW of any discharge into a
POTW of a substance which is a listed
or characteristic hazardous waste under
section 3001 of RCRA. Such notification
woiild include a description of any such
waiftes discharged, specifying the
voiiune and concentrations of the
wasites, the type of discharge
(continuous, batch, or other) and
identifying the hazardous constituents
contained in the listed wastes. The
notification would also include an
estimate of the volume of hazardous
wastes expected to be discharged during
the following twelve months. The •
notification would take place within six
months of the effective date of the final •
rules. ' -.'.-.•
Ttj.further ensure control of hazardous
wastes discharged to sewers, the .
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Federal Register / Vol.,55, No. 142 / Tuesday, July 24,:a990 / Rules arid Regulations:
proposed rule would require all
industrial users who submit notification
of the discharge of hazardous wastes to
certify that they have a program in place
to reduce the volume and toxicity of
wastes generated to the degree they,
have determined to be economically
practicable, and that they have selected
the practicable methods of treatment.
storage, and/or disposal currently
available to them which minimize the
present and future threat to human
health and the environment. A similar
certification requirement already applies
to all generators of hazardous wastes
(other than those that discharge their
wastes to sewers) under section 3002(b)
of RCRA.
In the October 17,1988 revisions to
the general pretreatment regulations (53
FR 40562,40614) EPA added a
requirement at 40 CER 403.12Q)) that all
industrial users promptly nbtify the
POTW in advance of any substantial
change in the volume or character of
pollutants in their discharge. To clarify
that 40 CFR 403.120) also applies to the
discharge of hazardous wastes, the
Agency also proposed to require that all
industrial users promptly notify the
POTW in advance of any substantial
change in the volume or character of
pollutants in their discharge, including
changes in the volume or character of
any listed or characteristic hazardous
wastes for which the industrial user has
submitted initial notification under 40
CFR403.12(p).
Under proposed 40 CFR 403.12(p)
generators would have been exempt
from notification requirements during
any calendar month in which they
generated not more than 100 kilograms
of hazardous waste, except for those
wastes identified under 40 CFR 261.5 (e),
(f), (g) and (j). Generators of more than
100 kilograms of hazardous wastes in
any given month would be required to
file the one-time notification.
In the proposed rule, the Agency
solicited comments on the small
quantity generator exemption and on
•whether any of the existing RCRA forms
might be suitable for submission of the
proposed notification requirements. EPA
also requested comment on whether .
those industrial users required to submit
FormR (a Toxic Release Inventory form
required under section 313 of SARA to
be submitted annually by industrial
users with over ten employees who
discharge certain listed toxic chemicals}
should send a copy of Form R to the
POTW, in lieu of the proposed
hazardous waste notification
requirements, if the toxic chemicals
reported by the industrial user on Form
R include those RCRA hazardous
wastes for 'which notification would .be;
required. The Agency also requested
comments on whether.additional (or .
more specific) management
requirements should be imposed to
control wastes for which notification
would be submitted under the proposal,
b. Response to Comments .
The majority of the commenters
expressed strong support for notifying at
least the POTW of hazardous waste
discharged into its system. Supporting
comments were that such notification
would augment existing controls on
spills and accidental discharges and
give the POTW more knowledge of and
control over previously .unreported
discharges. .
Other commenters opposed any
additional notification.requirements,
stating they would be duplicative and
burdensome for all parties concerned.
Several commenters stated that the
requirement was not necessary because
the discharge of hazardous waste was
already prohibited in their sewer
ordinances and therefore did not occur
unless it was an uncontrolled spill. Still
other commenters believed that the
information needed by the POTW
should be available through the State
and Federal RCRA or SARA databases .
for them to obtain as necessary.
Because the proposal would impose
only a one-time notification requirement
which can frequently be fulfilled with
available information, EPA does not
believe it to be burdensome for
industrial users. The information will
also be useful to POTWs in developing
programs to better control the
introduction of hazardous wastes into
treatment and collection systems. Sewer
ordinances do not generally contain a
prohibition against the discharge of
hazardous waste, and these wastes are
frequently present in part because of the
Domestic Sewage Exemption provided
under RCRA. Although some of the
information in the proposed
notifications is accessible through State
and Federal databases, much of it is not.
For example, hazardous substances for
which notification is required under
SARA are not necessarily the same as '
the listed and characteristic hazardous
wastes for which notification would be
provided under today's rule.
Most of the POTWs and States who
commented believed that POTWs, State
authorities, and EPA should receive the
notification. But many commenters
(mostly industries) supported
notification of the POTW only. They
stated that notifying the State hazardous
waste management authorities, as/well
as EPA, would be redundant.
Section13018(d) of RCRA makes ,the ,
. requirements of section 3010 applicable
to solid or dissolved; materials in. , < ,..-' •
domestic sewage "to the same extent '
and in the same .manner as, such
provisions apply to hazardous waste,','•,
Section 3piO(a) states that "any persc/n
generating pr transporting [hazardous
waste] or owning or'pperating a facility
for treatment, storage, or disposal of
such substance .shall file with the ..> . -
Administrator (or with States having
authorized hazardous waste permit .
programs under section 3006) a ..-. ,,
notificatipn.stating the location and ,,
. general description of such activity arid .
the identified or listed, hazardous Wastes, ,
handled by such person" (emphasis ,
added). The statute thus mandates, that, ...
at the least, State or EPA hazardous, ,.
waste personnel be notified. However, ,
EPA does not Interpret section 3018(d)
as limiting the recipients of notification :
provided for under that section to the ',.
recipients specified under 3010{a). EPA's
authority to tailor, notification
requirements to meet the needs of the
pretreatment program is based in,
section 307(b) of the Act, authorizing
EPA to promulgate such standards as ,",
are necessary to prevent pass through;" fV.
and interference. Also, RGRA section; ,v
30l8(b) directs EPA to revise existing,./.
regulatipns,"io assure that substances
identified or listed under (RCRA section ,
.3001) .which pass .through a sewer; , „....
-. system to a publicly owned treatment : ;".
works are adequately controlled to '-,-t:.
protect human health and the '•"•:•
environment." A?, described below, EPA
believes that proper control of materials
identified or listed under RCRA will be,
facilitated by a requirement that , ...
notifications required by today'-? rule be..."
submitted'to POTWs, State authorities.
andEPA. - " • . ' -, •'. ... . ..' ]
EPA agrees with the commenters who
support notification of the POTW
because it is directly affected by the
discharge of such wastes. POTWs need
to fully understand the nature of influent
wastes to their plants !to ensure proper
treatment at the plant, establish '
appropriate local limits, and meet permit
requirements. EPA beljeves that it is*
important for. States to receive the:. •
notification so that they may use it hi-
issuing NPDES permits, implementing
State pretreatment programs, and '
protecting public health and welfare. In
addition, submission of the notification
requirements to EPA may assist the •
Agency in issuing NPDES permits to •••
POTWs where, it is the permitting ; _ - :
authority and in establishing
pretreatment requirements where it,is :
, the Control Authority. Notification, pf;'
EPA will make possible the - ,',,.-'. ,
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Federal Register / Vek^Jf.l'lii:f ^^
*'l's»~"—™«"a'aBg**»im
eliminate some of the redundancy, since
POTWs have different programs and
ordinances and could then choose, that
information which would best suit their
'needs.
. Today's rule requires a minimum ;
amount of information that is to be ,
reported by all industrial users ' ' -.
discharging hazardous wastes to sewers,
except for dischargers of less than
-;- fifteen kilograms .per month of non-acute
hazardous wastes. EPA believes that
these minimum requirements will be
very useful to POTWs, States and EPA.
POTWs have the flexibility to request
additional information to suit the needs
of their specific programs,.
Several commenters expressed
concern about the requirement to
estimate the volumes of hazardous
waste that would be discharged over a
12 month period. Commenters believed
that the estimates would be unreliable
and would result in possible liabilities
(possibly from failure to report ; •-
accurately). They questioned how to
account for dramatic variation in
discharges over the twelve-month
estimation period and also questioned ,
the purpose of the requirement. One
commenter stated that although this
kind of information might be useful,
POTWs could not enforce a failure to
report accurately. Another commenter
suggested that an estimation over 30
days might be more useful.
The Agency believes, that the ,
information received through this
requirement will be useful for POTW
planning purposes. The information
requested from industrial users is only
an estimate of what they know or have
reason to believe will be discharged-
over the next 12.month period, taking
any variability into account. The
estimation is not intended to constitute
an enforceable limit. Industrial users are
reminded that under 40 QFR 403.12ft) of
today's rule, POTWs must be notified hi
advance of any substantial change in
the volume or character of pollutants in
their discharge. POTWs may choose to
develop enforceable local limits based
on the information submitted.
. One commenter mentioned that the
last line of 40 CFR 403.12(p)(l) allows an
exemption from the notification •
requirement for pollutants already listed
under the self-monitoring requirements.
The commenter stated that self- ;
monitoring information alone would not
be sufficient to prevent pass through or .
interference.
The purpose of this proposed '-'-;'.
exemption is to avoid duplicative
requirements, since in some instances
information required under the
hazardous waste notification provisions
will have already been submitted under -
40 CFR 403.12. The Agency notes that
neither the self-monitoring requirements
nor the hazardous waste notification
requirements are intended primarily to
prevent immediate pass through or
interference. The purpose of the 40 CFR
403.12 requirements is to monitor
compliance with categorical standards. ;
: The pidmary purpose of the hazardous
waste 'notification requirements is to
gather as much information as is needed
to assijss the potential effects of
hazardous and .toxic Waste discharged .
to POtWs. It should be rioted that the
exempltion for, pollutants reported under
the 40 CFR 403.12 self-monitoring
requirements applies even though "such
. jeportiing may not necessarily include all
elements submitted under, today's
notification requirements, such as an
estimate of the wastes expected to be
discharged over the next twelve months.
Since the 40 CFR 403,12 provisions
require the submission of actual
sampling results and periodic reporting
every aix months, the Agency believes
that such reports are an adequate
substitute for the section 3018(dj
requirements. Although self-monitoring
reports! under 40 CFR 403.12 are
submitted only to the Control Authority
and not to EPA and the States as are
today's; section 3018(d) notifications, '..-:
EPA believes that the existence of an
afceady established, easily accessible
database for 40, CFR 403.12 self- ' ,
monitoring requirements obviates the
need toj notify additional parties, as is
required for one-time notifications or"
hazardipus waste discharges under
sectiom 3018(d).
One commenter stated that
notification should extend to all "
pollutants of concern in addition to ...
hazardous wastes. This commenter
suppbrlied notification of the discharge
of hazardous constituents listed in: 40
CFR part 261, appendix VIII. The
dommenter stated that this would keep
the focus of the notification on the,
chemisiiry of the discharge rather than
the legal status of the wastestream, and
would cjlsp assure more equitable
treatment of different types of
dischargers. Some commenters also
indicatsid that the notification,
requirements should be oriented toward
volumeis and types of waste based on ,
their chemistry after treatment, rather ,
than using the RCRA codes to describe
the waste. The rationale was that the
RGRA "Iderived from" and "mixture"
rules fall to provide information about
the waste after treatment, other than to
define the status of the waste as
hazardous up until the point of
discharge into a domestic sewage
system.! • " - '-•' • ... '.:... ..;- .
The Agency believes that notification
of the discharge of all appendix VIII
constituents is not routinely necessary. .
EPA believes it is preferable for the
POTW to ^require such information on a
ease-byicase basis when appropriate to-
protect ikgainst potential pass through or
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30102
Federal Register / Vo1' 55- N°-
interference. The Agency also notes that
today's rule requires the industrial user
to report hazardous constituents
discharged, if known. If an industrial
user is not aware of the hazardous
constituents contained in its hazardous
•waste discharge, EPA believes that
POTWs, after receipt of notifications
received under today's rule, will be in
the best position to institute
requirements for follow-up information
on an as-needed basis based on the data
already acquired about the industrial
user's hazardous waste. Such additional
information may provide more detail on
the chemistry of the discharge, and thus
fill in any data gaps that may result from
use of RCRA waste codes and RCRA
definitional constructs such as the
mixture and derived from rules.
Some commenters objected to the
requirement that industrial users notify
the POTW of "any discharge into the
POTW" and questioned whether the
presence of a section 3001 RCRA waste
in levels below the detection limits
would requlra notification. One
commenter opposed requiring that
constituents be identified in the
notification, stating that it would be
burdensome to identify all constituents
and calculate their volumes. Another
commenter believed that such a
requirement would be redundant
because the constituents are already
reported under section 313 of SARA.
Some commenters also stated that the
presence of a hazardous waste does not
mean that certain constituents are
always present, nor does the presence of
constituents indicate that a waste is
hazardous,
EPA notes that under 40 CFR 261,11,
any person generating a solid waste is
responsible for determining whether
that waste is a listed or characteristic
hazardous waste. Thus, industrial users
who are generators of hazardous wastes
are already required to have knowledge
of such wastes. Today's rule requires all
parties discharging hazardous wastes to
POTWs to file a one-time notification.
The notification must include a
description of any such wastes
discharged. To clarify this requirement
and make description easier, today's
rule requires that industrial users
include the name of the hazardous
waste and the EPA hazardous waste
number for each hazardous waste
discharged (these numbers are found in
40 CFR part 281, subpartD). Today's
rule also requires an identification of the
constituents discharged, along with their
mass and concentration in the
wastestream, but only to the extent that
these constituents and their mass and
concentrations are known and readily
available to the user. The Agency is
requiring notification, of mass rather
than volume (as was proposed] because
mass is a more useful measure of the
quantity of chemicals discharged.
Where a discharger has knowledge that
such constituents are present in its
discharge, the discharger should identify
such constituents in its required section
3018{d) notification, notwithstanding
inability to detect the exact levels of
such constituents in .its discharge (e.g.,
because constituent levels are below
analytical detection limits).
In response to concerns expressed by
commenters, the Agency has clarified in
the language of today's rule that
identification of the constituents of
hazardous waste and their mass and
concentration need only be made if
these are known by the industrial user
(unlike the notification of the discharge
of the hazardous waste and its
description by name and EPA hazardous
waste number). Monitoring for the
presence of these constituents is not
specifically required. It is not correct
that all of these constituents are
reported under SARA section 313, since
the list of toxic chemicals required to be
reported under that provision does not
include all hazardous constituents under
RCRA. The Agency believes that many
industrial users will already have
information about the constituents of
their waste and that this information Is
often useful to POTWs. If the
information is not available, the POTW
may request additional monitoring on an
as-needed basis.
Under the proposed .rule, generators
would have been exempt from the
notification requirements during any
calendar month in which they generate
no more than 100 kilograms of
hazardous wastes, except for certain
acute hazardous wastes.
Many commenters supported this
exemption. The commenters suggested
that by retaining the exclusion, EPA
would provide regulatory relief for small
industries while not jeopardizing the
protection of human health .and the
environment.
A few commenters who supported the
small quantity generator exemption
suggested that the exemption be
widened to include generators of
volumes between 100 to 1000 kilograms
per month. These commenteis stated
that section SOQl(d) of RCRA
specifically discusses the regulation o?
these generators, and that during
evaluation of an appropriate regulatory
scheme for such generators, EPA paid
special attention to minimizing
paperwork burdens. Commenters stated
that by proposing to impose notification
requirements on these generators, EPA
was ignoring its previous position on
minimizing the burdens associated with
recordkeeping and reporting.
In response, EPA notes that no
POTWs suggested widening the 100
kilogram per month exemption to 1000
kilograms per month. In fact, several
POTWs were concerned that the 100
kilogram per month exemption was
unjustified and believed that such an
exemption could jeopardize human
health and the environment, since a
discharge of 100 kilograms of certain
substances would be very likely to
cause pass through or interference.
.The majority of the commenters who
opposed the small quantity generator
exemption were POTWs and State
governments. They believed that
discharges ofless than 100 kilograms
per month could at times have a serious
impact on collection systems, POTWs
and worker health or safety, and that
POTWs would be interested in
ascertaining all quantities of hazardous
wastes discharged to sewers.
Some commenters who opposed the
small quantity generator exemption
stated Jhat the Agency's proposal to
exempt such generators from
notification was not supported by the
evidence cited in the preamble. These
commenters also pointed out that EPA
acknowledged that a 100 kilogram
discharge of some RCRA hazardous
wastes could be problematic for a
POTW (particularly small and/ or.".
unacclimated ones). Another commenter
pointed out mat any exemption should .
be tied to the discharge, rather than fhe
generation, of a hazardous waste.
After evaluation of these comments,
EPA believes that a complete exemption
from the notification requirements for
many dischargers of less man 100
kilograms per month would not be
environmentally justified. The Agency
also agrees that any exemptions should
be tied to the discharge rather than the
generation of hazardous wastes, since
only wastes actually discharged will
usually be of concern tp the POTW.
The Agency believes that a discharge
of less than 100 kilograms of certain
types of hazardous wastes may cause
problems for POTWs (particularly small
and unacclimated ones) if discharged at
once or over a short period of time (e.g.,
spent electroplating baths, certain spent
solvents such as benzene, or discarded
unused formulations containing tri-,
tetra-, or pentacloiophenol). Although
one or two dischargers of approximately
one hundred kilograms per month may
have little potential for adverse impact
.on .a POTW (depending on the wastes
discharged) many POTWs have a
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142 / Tuesday, July 24/1990 /Mies, and; Re^feiions
30103
, significant number of such generators
discharging hazardous, waste to the
§ewer system, which cumulatively pose
a potential for causing pass through or
interference. EPA believes that some
degree of notification from these
dischargers is the only way for POTWs
to be aware of which hazardous wastes
are entering their collectioniand
treatment systems. On the other hand,
the Agency believes that most
dischargers of considerably smaller
amounts of hazardous wastes will not,
as a general rule, present the potential
for adverse impact at the POTW.
As a general rule, the Agency believes
that dischargers of less than fifteen
kilograms per month (the equivalent of
about one pound per day) of hazardous
waste to POTWs present little danger of
adverse impact to such POTWs. For this
reason, today's rule provides an
exemption for such dischargers, unless
the hazardous wastes are acute
hazardous wastes as specified in 40 GFR
261.30(d) and 26i.33(e). Today's rule also
provides that all non-exempt
dischargers of hazardous wastes must
.submit, the name of the hazardous waste
discharged, the EPA hazardous waste
number, and the type of discharge :
(whether batch or continuous). The
Agency believes that this is the essential
information which is needed to enable
POTWs to be aware of which hazardous
wastes are entering their, systems and to
enable them to decide whether to
request further data from a particular
discharger. Today's rule also requires
those industrial users discharging more
than 100 kilograms per month of a
hazardous waste to a POTW to submit,
additional information, to the extent
such information is known and readily
available to the user. The additional
information consists of an identification
of the hazardous constituents contained
in the listed wastes, an estimation of the
mass and concentration of such
constituents in the wastestream -^.
discharged during that month, and an
estimation of the mass of such
constituents in the wastestream ;;
expected to be discharged during the
following twelve months. POTWs may
decide to require more detailed
information from any discharger on a
case-by-case basis in the exercise of
authorities granted under local law.
POTWs may also decide, in the exercise
of local authorities, not to.provide any of
the above exemptions or reduced
reporting requirements if they do not
deem them appropriate for their
particular systems.
Two cdmmenters stated that because :
of the .application of the "mixture rule"
in 40 CFR 261.3(a)(2)(iii), facilities
discharging wastewater containing any
amount of hazardous waste would be
subject to the proposed notification
requirements, regardless of the proposed
exemption for small quantity generators.
The regulation cited by-the
commenters provides that waste •
mixtures that include a hazardous waste,
that is classified as hazardous solely by
virtue of exhibiting a hazardous
characteristic identified in 40 CFR
261.20-261.24 are hazardous only if the
mixtures themselves exhibit a -:
hazardous characteristic. A companion
ralfri- 40 CFR 261.3(a)(2)(iv), provides that
mixtures that include a hazardous waste
listed in 40 CFR 261.30-261.33 (other
than one which is hazardous solely
because it exhibits a characteristic ':
identified in 40 CFR 261.20-261.24) are \
hazardous unless the resultant mixture
is "delisted" pursuant to;40 CFR 260.20, :
26Q.22, or one of the exceptions in 40
CFR 261.3(a)(2){iv)(A)-(E) applies..The
result of these rules is that mixtures of ;
small quantities of certain hazardous
wastes with large quantities of process
or other solid wastes render the'entire,
mixture a hazardous waste. These rules
apply to industrial users covered by
today's rule; accordingly, for purposes of
ascertaining whether an industrial user
discharges between 0 and 15 kilograms
per month, 15 to IGO.kilograms per
month or over 100 kilograms per month
of hazardous waste, the industrial user
must apply the RCA mixture rules to
calculate the volume of hazardous waste
being introduced to the sewer. -
"•; Two commenters stated that the
Agency should limit the notification
requirement to significant industrial
users as defined in proposed 40 CFR •
403.3(u) who have never before notified
EPA of their hazardous waste activities.
This commenter stated that less than
one percent of all hazardous wastes '
'generated is associated with non-
significant industrial users.
The Agency believes that limiting the
' notification requirement to significant
industrial users would not be adequate
to fulfill the statutory requirement of "
section 3018(d), since the definition of
significant industrial user does not
.necessarily include the dischargers' of
hazardous wastes covered.under RCRA
section 3010. In addition, EPA believes
that notification by all hazardous waste'
dischargers will assist POTWs in
ascertaining whether the cumulative .
effect of many small discharges of
hazardous waste may cause pass
through or interference. Prior
notification to EPA of hazardous wdste
activitiesninder RCRA does not
constitute compliance with today's rule,
since the notification would not
necessarily include all the items of :
information-specified inthisrule.. ,
Some commenters suggested that EPA
: provide an exemption for the discharges
described in 40 CFR 261;3(a)(2)(AHE}
and an exemption from notification
requirements for acute hazardous ,
wastes. They recommended that the
exclusion should specify a level for each
characteristic waste as well as for total
listed wastes.
The Agency notes .that 40. GFR
26i3(a)(2)(iv) (AME) describes.certain
- wastes that are not classified as
haziardOus waste. Discharge of such
materials to a POTW would not, .
therefore, trigger today's .notification
requirements, In addition, the Agency
believes that such discharges .present
littlfe potential danger of pass-through,or
interference at POTWs, However,
POTWs may'require notification of
these discharges on a case-by-case basis
pursuant to local authorities. :
Today's rule .does not grant an
exemption for acute hazardous wastes.
Such wastes have been identified under
the. RCRA program as meriting controls
moije stringent than for other types of
hazardous waste, (e.g., there is a less
extensive small quantity generator
exemption), and EPA believes that
information on the discharge of any = -
quantities of such wastes to a POTW is
important for POTW planning to prevent
pass through or interference.
Some commenters questioned the
: reqiiirement that industrial users . ,
provide notification to the POTW of any
substantial change in the volume or ,
character of hazardous wastes
discharged. Notification of substantial
changes in pollutants discharged is -
already required pursuant to 40 CFR
_• 403.12(j),; and will be modified by
-todety's rule to specifically provide for
notification with regard to substantial
changes in hazardous waste discharges.
Theise cpmmeiiters requested
clarification about the definition of
"substantial change in the volume or
character of pollutants" as well as the
means of notification. Another :
commenter felt that the language should
be:deleted because it implied continuous
monitoring. ' : • •-.'
The possibility of providing a
regulatory definition for "substantial
change" in the volume or character of ;
pollutants in an industrial user
discharge was specifically addressed in
the preamble to the final PIRT rule (53
FR 40562), which was promulgated oil
October 17,1988. The preamble
discussion of 40 CFR 403.12(j) stated
that EPA has determined that a
regulatory definition of "substantial
change" in the volume or character of
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30104 Federal Register / Vol. 55, No. 142 /Tuesday. July 24, 1890 / jRuLesand Regulations
pollutants discharged is inadvisable
because what is substantial in a given
situation will depend on several
variables (53 FR 40599). The Agency
stated that substantial change should be
determined by the comparable notice
requirements for direct dischargers
under the NPDES regulations and
supplemental, or more stringent, notice
requirements adopted by the POTW or
required by the permitting authority in
the POTWs NPDES permit With
respect to substantial changes in the
volume or character of pollutants
discharged, the Agency stated that these
should include a substantial change in
any characteristic of the industrial
user's wastewater discharge, including
volume, flow, the amount or
concentration of pollutants, and the
discharge of new pollutants not
previously reported to the POTW. Only
changes which the industrial user
expects to occur on a regular basis over
an extended period of time (three
months or more) need to be reported.
Sporadic or episodic changes in the
volume or character of a discharge are
not ordinarily covered fay the changed
discharge notification. However,
depending on the circumstances, the
industrial user may have to report these
discharges in accordance with other
prelrcatment requirements, e.g., the
"slcg load" notification requirements (40
CFR 403.12(fJ). the upset provision (40
CFR 403.16), or bypass provision (40
CFR 403.17)). In most cases, a
substantial change in the volume or
character of a user's discharge will
result from a deliberate or planned
change to the user's facility or
operations. "Substantial" should be
based on the magnitude of change to the
industrial user's existing discharge and
not on the anticipated effect of the
changed discharge on the POTW,
Therefore, a regulation specifying
absolute numbers, such as an increase
or decrease of X gallons of flow
discharged, would not be appropriate.
Although the approach, taken today may
result in notifications about changed
dischai^es which will not have a
demonstrable effect on the POTW's
Influent, effluent or sludge quality, EPA
has determined that any incidental
"over notification" is justified by the
need of the POTW (and NPDES
permitting authority) to have
information on a timely basis to
determine whether, considering other
changes to the POTW's system or
pollutant control requirements, new
limits on pollutant discharges are
necessary, or should be further
evaluated to prevent pass through or
interference (see 53 FR 40GOO).
One commenter inquired about the
mechanism that would be used to *
ensure that all industrial users were
made aware of the one-time notification
requirement. Another commenter
suggested that the regulations should
require POTWs to develop procedures
for notification of changes in a user's
discharge.
The principal mechanism used to
ensure that industrial users are made
aware of the notification requirement is
through the publication of this notice in
the Federal Register. In addition,
POTWs may wish to send notices to • •
their industrial users on the procedures
that they wish them to follow. With
respect to requiring POTWs to develop
procedures for notification of discharge
changes, EPA prefers to leave this
question to the discretion of the specific
POTW.
Some oommenters stated that the •
certification requirements seemed
inappropriate for wastewater effluents.
EPA disagrees with these commenters. -
The Agency believes that a certification'
requirement is appropriate for industrial
users because waste minimization will
improve the quality of the effluent which
enters the POTW and, eventually, the
discharge that enters navigable waters
through the POTW. The Certification
requirement will also further EPA's
stated goal of pollution prevention by
helping to reduce loadings of hazardous
wastes to sewers. -
However, the Agency has modified
the language of the certification
requirement somewhat from the . ;
November 23,1988 proposal in order to
make the requirement more appropriate
to discharges of hazardous wastes to
POTWs. Today's language clarifies that
the requirements apply only to
hazardous wastes for which notification
was submitted under 40 CFR 403.12(p).
In addition, the language now requires
the industrial user to certify that it has a
program in place to reduce the volume
and toxicity of wastes generated to the
degree it has determined to be
economically practical. The Agency has
substituted the phrase "economically
practical" for "economically
practicable" because it believes the
former phrase more accurately conveys
that generators should choose those
means of reducing the volume and
toxicity of their wastes that are feasible
and cost-effective.
EPA has also deleted the proposed _
language requiring notifiers to certify
that they have selected the treatment,
storage, and/or disposal methods
currently available to the user which
minimize the present and future threat
to human health and the environment.
By recommending retention of the
Domestic Sewage Exclusion, the Agency
has made a determination that disposal
of hazardous wastes to sewers in
compliance with pretreatment
,requiremerits is an environmentally
acceptable disposal method. In addition,
many industrial users discharging
hazardous waste to sewers also treat,
store, or dispose of hazardous waste by
other means and are already subject to
the waste minimization certification
requirements of 40 CFR 264.73. This
deletion will therefore eliminate '.
duplicative paperwork requirements for
those facilities while still protecting
POTWs and fulfilling Congressional
intent to encourage the selection of
optimal waste management techniques'
to reduce or eliminate the generation of
hazardous waste.
One commenter suggested that the
waste minimization certification
requirement should allow POTWs or
industries to_f ocus on alternative control
mechanisms such as source control and
best management practices. .
In response, the Agency notes that the
requirement that industrial users certify
that a program is in place to reduce the
volume and toxicity of wastes to the
degree that the user has determined to
be economically practical allows
complete flexibility to the industrial
user, including the nse of source controls;
and best management practices to '
minimize the generation, of .hazardous
wastes.
One commenter suggested Chat the
regulations include a requirement that
all industrial users be placed on -a 5-year
schedule to eliminate hazardous wastes
discharged under the Domestic Sewage
Exclusion. However, the Study
demonstrated that in general, POTWs
are capable of accepting a certain
amount of hazardous waste without
threatening the POTW, human health or
the environment The Agency therefore-
believes that with proper controls, such
as those in today's rule, elimination of
all hazardous waste discharges from
industrial users is unnecessary at the
present time.
With respect to the use of
.supplemented EPA Form R or RCRA
Forms to fulfill the proposed notificatio?
requirement, the majority of the
commenters who addressed this issue
supported the tise of such forms. The
commenters-believed that the use of
these forms would lessen duplicative
and burdensome paperwork
requirements. Other commenters
opposed the use of these forms, stating
that the use of such forms wouldlead to
extraneous or misleading information
that would create an administrative
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Vol. 55,"-No. :142,/ Tuesday,:-July 24, 1990 / Rukfs and Regulations': 30105
burden for POTWs. They stated that
Form R might simplify the reporting
requirement for some industrial users,
but would not simplify POTWs' task of
evaluating the form and sorting out
unnecessary information. ..:.'-
In response to these comments,-the
Agency is clarifying today that EPA "
Form R and existing RGRA forms may
. be used to fulfill the notification
requirement as long as .the industrial
user submits all information required in
today's rule. However, POTWs may
require industrial users to use other
forms if they wish. Industrial users may
also submit the required information by
other means, such as a letter.
Two commenters stated that the
information on Form R would be based'
on pure estimates on the part of the
discharger. In response, EPA points out
that today's notification requirement
also requires estimates for the mass and
concentration of hazardous waste ' '
constituents, as well as the mass of
constituents discharged over the •
following twelve months. These
estimates should be based on the best
available data. -
Commenters,stated that Form R would
not cover a sufficient range of pollutants
and that the list of SARA compounds
was very different from the; list of
hazardous wastes under section 3001 of
RCRA.In the case of substances which
are listed or characteristic wastes under
section 3001 of RGRA which do not
appear on Form R, the industrial user
.must submit the .required information on
those wastes to EPA, the States, and the
POTW. In addition, although section 313
of SARA only requires notification for
industrial users with more than ten
employees, today's rule does not include
any exemptions based on the number of
employees at the facility.
• A commenter suggested that the :
reporting requirements under 40 CFR
403.12 be used to fulfill the notification
requirement. In response, the Agency
notes that pollutants reported under 40
CFR 403.12 (b), (d). or (e) need not be
reported under today's notification
requirement. However, the reporting
requirements under the above-
mentioned provisions of 40 CFR 403.12 :'.
apply to pollutants regulated under
applicable categorical pretreatment
standards; Thus the reporting
requirements under 40 CFR 403.12 may
not necessarily address hazardous
wastes and would fulfill today's • . T
requirements only if such wastes had -
been reported under 40 CFR 403.12 (b),
(d),or(e). -.;•-. ; ,
To clarify that today's rule applies to.
new industrial users or to existing
industrial users which will discharge
hazardous waste only in the future, EPA
has added a provision requiring
industrial users who commence
discharging after the effective date of
today's rule to provide the notification
no later than 180 days after the -'.- .
discharge of the hazardous waste.
c. Today's Rule ; , '-'_'-
Today's rule provides that the
industrial user shall notify the POTW,
the EPA Regional Waste Management
Division Director, and State hazardous
waste authorities in writing of any
discharge into the POTW of a
substance, which, if otherwise disposed
of, would be a hazardous waste under
40 CFR part 261. Such notification must
include the name of the hazardous
waste as set forth in 40 CFR part 261, the
EPA hazardous waste number, and the
typebf discharge (continuous, batch, or
other). If the industrial user discharges
more than 100 kilograms -of such waste
per calendar month to the POTW, the
notification shall also contain the
following information to the extent such
information is'known and readily '
available to the industrial user: an .. . '
identification of the hazardous
constituents contained in the wastes, an -
estimation of the mass and -
concentration of such constituents in the
wastestream discharged during that
calendar month, and an estimation of
the mass of constituents in the
wastestream expected to be discharged
during the following twelve months. All
notifications must take place within 180
days of the effective date of this rule.
industrial users who commence /
discharging after the effective date of
this rule shall provide the notification no
later than 180 days after the discharge of
the hazardous waste/Any notification
under this paragraph need be submitted
only orice for each hazardous waste
discharged. However, notifications of
changed discharges must be submitted
under 40 CFR 403.120]. The notification
requirement in this section does not
apply to pollutants already reported
under the self-monitoring requirements
of 40 CFR 403.12 (b), (d), and (e).
Industrial users are exempt from the
above .requirements during a calendar
month in which they discharge no more -
than fifteen kilograms of hazardous
wastes, unless the wastes are acute
hazardous wastes as specified in 40 CFR
261.30(d) and 26l.33(e). Discharge of
more than fifteen kilograms of non-acute
hazardous wastes in a calendar month,
or of any quantity of acute-hazardous
wastes as specified hi 40 CFR 261.30(d)
and 261.33(e), requires a one-time
notification. Subsequent months during
which the industrial user discharges
additional quantities of such hazardous
waste; do not require additional
notification. ...:•-' -
In the case of new regulations under
seetiejn 3001 of RCRA identifying
additional characteristics of hazardous
waste or listing "any additional
substance as a hazardipus waste, the
industrial user must notify the POTW,
the ElJA Regional Was te Management
Divisibii Director, and State hazardous
waste authorities of the discharge of
such substance within 90 days of the
effective date of such regulations.
In tie case of any notification made
under! today's rule, the industrial user "
shall (pertify that it has a program in
place to reduce the volume or toxicity of .•
hazardous wastes generated to the
degree it has determined to be • '--
economically practical.
E. Individual Control Mechanisms for
Industrial Users (40'CFR 403.8(f)(l)(iii))
a. Proposed Change .-...•' . .
The existing pretreatment regulations
require PQTWs with approved
pretreatment programs to have the legal
authdifity to control, through permit,
order,.|b? similar means, the contribution
to the POTW by each industrial user to
ensure compliance with pretreatment
standards and requirements. EPA's
experience in developing and overseeing
the pretreatment program has led it to
believe that individual control
mechanisms are the best way to ensure
.compliance with.applicable , ' :
pretreatment standards and , :
requirements. Such a system gives .the
industrial user individual notice of all of
the pretreatment requirements to which
it is subject, thus making it-easier for
such users to understand their
obligations before a violation occurs
and ensuring more effective prevention
of pass through and interference. '
For these reasons, the Agency •• :
propowed on November 23,1988 to
revise 40 CFR 403.8[f) to require that
POTWs with approved pretreatmerit
.programs issue discharge permits or
equivalent individual control '-.-••
mechanisms to industrial users
identified as significant under proposed
40 CFR 403.3(u). Under the proposal,
such control mechanisms would contain;
at a minimum, the following elements:
(1) Statement of duration (in rid case
more than five years); - •"
(2) Sitatement of npri-transferability
without prior POTW approval;
(3) Applicable effluent limits based on
categorical pretreatment standards and
local limits; ,
(4) Applicable.monitoring, sampling,
and reporting requirements;:' .
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3010B Federal Register / ^oL 55. No. 142 / Tuesd^, July 24.' 1990 / Rules'and Regulation^
(5) Notification requirements for slug
discharges as defined in 40 CFR403.5{b);
and
(6) Statement of applicable civil and
criminal penalties for violation of
prelrcatment standards and
requirements.
Tha Agency solicited comment on the
merits of the proposed revision.
Specifically, the Agency requested
comment on: (1) The appropriateness of
limiting the requirement to industrial
users defined as significant under
proposed 40 CFR 403.3[u), or the
appropriateness of additional or
alternative targets, such as categorical
users or notlfiers of hazardous waste
discharges under proposed 40 CFR
403.1S(p); (2) whether the requirement
should apply only to POTWs with more
than a specified number of industrial
users (and, if so, what number would be
appropriate as a cut-off point); and (3)
whether the list of conditions proposed
should be reduced, expanded, or
modified.
b. Response to Comments
Hie Agency received many comments
on this issue. Commenters included
States, POTWs, trade associations,
industries and environmental groups. Of
these, most supported the proposal in
some form and many supported it as
proposed.
Several commenters suggested that
some instruments other than permits,
such as contracts or administrative
orders, might serve as equivalent control
mechanisms. Most of those opposing the
requirement stated that the POTW
should have the flexibility to choose
whether or not to implement a system of
individual control mechanisms. One
commenter stated that the requirement
was redundant, because every POTW
with an approved program is already
required to notify users of pretreahnent
requirements and to have the authority
to prohibit harmful pollutants from
entering the.POTW.
POTWs are required under the
existing pretreatment regulations to
have and exercise the authority to
control through permit, order, or similar
means, the contribution of individual
industrial users to the POTW {40 CFR
4Q3.8{f)(iii)). It !s also true that, under the
existing regulations, POTWs are
required to notify users of applicable
prelreatment standards and
requirements and to ensure compliance
with such standards and requirements.
The Agency does not believe, however,
that POTWs have consistently exercised
their discretion under the existing
regulations to develop adequate
industrial user control mechanisms.
Audits conducted of local pretreatment
programs have led the Agency to
conclude that many existing control
mechanisms are inadequate to ensure
compliance with pretreatment
requirements and that industrial users
should often be provided with better
notice of pretreatment requirements.
The Agency continues to believe that
individual control mechanisms are the
best ivay to accomplish these objectives.
For this reason, EPA proposed to require
POTWs to issue permits or other
individual control mechanisms to
significant industrial users.
Today's rule will provide substantial .
benefits to the POTW, to the industrial
user, and to the pretreatment program as
a whole. For instance, a user subject to
both categorical standards and local
limits would receive individual notice of
which limits are applicable (i.e., the
most stringent of the two) for each ,
regulated pollutant in its discharge.
Similarly, a user with equivalent mass-
or concentration-based limits or
alternative limits derived by the
combined wastestream formula would
be informed of such limits in its permit
or other individual control mechanism.
Users would also be individually
notified of sampling and reporting
requirements, including any
.requirements more stringent than the
applicable Federal minimum
requirements. An individual control
mechanism also benefits the user by
providing notice of applicable
requirements before a violation occurs,
rather than afterwards. In addition,
individual control mechanisms provide a
mechanism for the POTW to impose ,
individualized pretreatment
requirements (e.g., for sampling and
reporting) on an industrial user. Finally,
as some commenters pointed out, this
requirement would bring greater
consistency to administration and
implementation of the national
pretreatment program across the ' ,
country. Some commenters also felt that
uniform Federal requirements were
necessary to ensure fairness in the
administration of the program.
Several commenters stated that
mandatory individual control
mechanisms would be costly for
POTWs. One commenter said that the
rule wpuld require POTWs to "scrap"
existing and approved pretreatment
programs. Some POTWs stated that they
were unnecessary because they already
had effective ordinances.
Although the Agency is sensitive to
concerns regarding costs, EPA notes that
many POTWs already issue permits or
other individual control mechanisms to
some or all of their users and will
probably need little or no modification
to their existing program to meet these
requirements. POTWs which heretofore
have relied entirely on ordinances to
ensure compliance will require greater
modification of their programs to comply
with today's rule. However, EPA
believes that the long-term benefits of
this approach will justify the costs, even
for POTWs that now rely on ordinances
as their only control mechanism. -
POTWs will be able to reduce their
costs by utilizing existing data and by
incorporating some existing
requirements into the new system.
Substantive requirements of. the ,
POTW's program (such as prohibited
discharges, monitoring and reporting
requirements, and penalty provisions)
should be. self-implementing under the
POTW's ordinance. Many of these
requirements could simply b'e written
into the individual control mechanism,
while others could be adjusted with
slight modifications to reflect the
particular circumstances of the user.
Where the POTW already possesses all
necessary data from its users to enable
it to identify the character and volume
of pollutants contributed by each user to
the POTW, there would be lio need to
collect that information again. In
support of its view, EPA points out that
one POTW commented that it was
initially reluctant when required to
, implement a permit system by its State
Approval Authority. However, it found
that implementation was fairly simple
when standardized forms were
developed, and its users preferred to
have all of their requirements listed in
one document
One POTW commented that its State
law prohibits municipalities with a .
population of greater than 500,000 from
using permits to control individual
discharges to the POTW. The • " '
commenter did not indicate whether all
.individual control mechanisms were
similarly prohibited. If not, under the
rule as promulgated, the commenter may
use some other equivalent individual
control mechanism. Alternatively, the
commenter would have to seek a
revision in its State law. In another
context, a commenter requested that the
Agency clarify the meaning of
"equivalent control mechanisms" which
could be used in place of permits.
Another commenter stated that, if
approaches other than permits have
been approved and foiind effective, they
should be allowed to continue and that
EPA should not limit the definition of
individual control mechanisms to
permits only.
In this regard, the Agency would like
to clarify-both what it considers to be an
acceptable "permit" .under today's rule,
and what may constitute "equivalent
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•;..-". -'.;'-."' ' : - ; -.'•''-•_ - . .K " • •
Federal Register / Vol. 55, No. 142"•--/ Tuesday, July 24, 1990 / Rifles and Regulations
control mechanisms". Where possible,
analogies or distinctions are drawn
between pretreatment permits and
NPDES permits because most POTWs
are very familiar (as NPDES permittees)
with the NPDES program. First, unlike
federal requirements applicable to direct
dischargers, industrial users are not
required under today's rule to obtain a:
permit prior to discharging to a POTW. ;
(However, POTWs may establish, such a
requirement pursuant to their own legal
authorities); Second, industrial users
must comply with all applicable
pretreatment requirements under federal
law, whether or not they are contained
in the permit or equivalent individual
control mechanism. As a corollary,
compliance by the industrial user with
the terms of the permit does not shield it:
from liability for failure to comply with
federal pretreatment requirements not
set forth in the permit. However, EPA
expects that the POTW will do
everything possible to ensure that the
limits and other requirements in the ;
permit are as accurate'and complete as
possible, and will'notify the user, of any
changes in applicable pretreatment
requirements which become effective ,
subsequent to the issuance of the permit.
As stated in the preamble to the
proposed rule, the Agency will require
issuance of "individual discharge
permits or equivalent control
mechanisms." An adequate equivalent •
control mechanism is one which ensurejs
the same degree of specificity and
control as a permit. To clarify that the
conditions of the individual control
mechanism must be enforceable against
the significant industrial user through
the usual remedies for noncompliance
(set forth in 40 GFR 403.8(f)(l)(vi)(A)),
EPA has amended the language of 40
CFR 4Q3.8(f)(l)(vi)(B) to provide that
pretreatment requirements enforced
through the remedies of 40 CFR
403.8(f)(l)(vi)(A) shall include the
requirements set forth in individual
control mechanisms. In addition, the :
Agency has added to proposed 40 CFR
403.8(f)(l)(iii) a statement that individual
control mechanisms must be
enforceable.
EPA notes that the most effective
control mechanisms should also be
"strictly enforceable" under local law.
Generally, for an individual control
mechanism to be strictly enforceable,
the local ordinance must specify that the
terms and conditions of the control
mechanism can be challenged
(administratively and/or in court) only
within a very limited time period after
the control mechanism becomes:
effective. If the control mechanism is not
challenged within the alloted time
- period, it cannot later be challenged in
.- an enforcement proceeding (for
guidance on this and other issues
concerning individual control *
mechanisms, see EPA's Industrial User
Permitting Guidance Manual,
(September 1989)).
Commenters suggested several
alternatives to the use of permits as
• individual control mechanisms. These
included ordinances, administrative
orders, and contracts. Although only
two commenters discussed the use of an
ordinance as a control mechanism, some
POTWs rely on brdinances as their
principal control mechanism. An
ordinance may offer fairness and
• consistency in its application, but it
does not provide specificity and
individual notice to significant industrial
users. One POTW stated that its
ordinance, together with notice by mail
to individual users, was sufficient. In
response, the Agency emphasizes that,
although a letter, provides notice to the /
individual user of applicable limits and
other requirements, an ordinance system
contains the same limits for all
industrial users and does not provide for
POTW evaluation of significant
industrial users to determine whether, .-.
individual requirements are necessary
for that User. Accordingly, an ordinance
will not be considered an equivalent
control mechanism.under today's rule.
Two commenters discussed the use of
administrative orders as an alternative
.control mechanism. One commenter
stated that administrative orders are an
effective method of imposing ,
pretreatment and reporting requirements
on industrial users and are less
paperwork-intensive than peririits. One
POTW commented that it modified its
administrative orders to attempt,to '. •
comply with EPA's oversight requests, •
but did not succeed in meeting all
requirements. This commenter also
stated that it is necessary for the
Agency to clearly specify the
: requirements.for individual control
mechanisms. .-'_'.-
The Agency agrees that detailed
administrative orders may be an
equivalent individual control
mechanism. In order to completely
- satisfy today's requirement with an
administrative order system, the POTW
must issue administrative orders to its
significant industrial users whether or
not they are complying with all
applicable pretreatment standards and
requirements. In addition, such orders
must contain all of me-minimum -
elements of an individual control
mechanism-specified in today's rule. The
use of administrative orders therefore ,
'may not-be necessarily less paperwork-
intimsive than other individual control
mechanisms. Finally, administrative
orders that are typically issued only in .
thetcontext of an enforcement action
may not meet one or more of the criteria
. for an adequate control mechanism
described above and thus would not
satisfy today's requirements. POTWs- ,
may, of course, use a mix of appropriate
adininistrative prders; permits, and /
other equivalent individual control
mechanisms'.to satisfy today's rule.
Several commenters mentioned the
use of contracts as a control mechanism.
One stated that the success'ful use of
contracts precluded the need for '
permits, and two others equated the use
of contracts with the use of permits.
Two commenters stated that the permit
shciuld be.signed by the permittee and
"act [as a] legal contract between the
POTW and the permittee."
•The use of contracts as a control
mechanism was addressed in a previous
rulemaking (53 FR .40562, October 17,
1988). m that rulemaking,;EPA stated
: that contracts do not provide a POTW
... with the requisite penalty authority for
an approved program and are not an
adequate control mechanism for POTWs
with'an approved pretreatment program.
As a result, all references to the use of
contracts as a control mechanism were
deleted from the general pretreatment
regulations (for a discussion, of this
issue, see the' above-mentioned Federal
Rejpstei noticeat 53 FR 40574 et seg.). A
"permit" sigiied by the permittee (i.e.,
the industrial user) may be deemed a
, coritract and thus lose its effectiveness
ass a control mechanism. POTWs that
"currently use contracts as control
mechanisms may incorporate most of
•the^terms* of such contracts into their
newly issued non-contractual individual
cor.ttrol mechanisms if such terms are
current, reflect applicable pretreatment -
standards and requirements, and
otherwise meet the requirements of
today's rule. ; '-, •
Several commenters appeared to be .
confused about the meaning .of the
statement in the preamble to the
proposed rulemaking that the Agency
wasproposing to require POTWs with
approved programs to have "the legal
authority to issue individual discharge
permits or equivalent control
mechanisms." Several POTWs
cortimented that they supported the
proposal, as some of them already had
the authority to issue permits. One State
commented that the proposal was not
'"adequate unless the POTW is also
required to actually issue the control
mechanism. One POTW supported a •
requirement that POTWs have permit
authority, but not a requirement to issue
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30108 Federal Register / Vol. 55, No. 142 / Tuesday, July 24, 1990 / Rules and Regulations
MI[,j;»i»!Ji.mr:imMll^MB»tamsmjJU^Ub»»«Jg^r331il»l, <•, ZZ^^l^-^a^MMaaaKaXlmzxam.-K^wfaa'i ilir.Ttr.a' 'naM^W.Jd£*«^J^fa^U^^^gg^3KgiO^«KTg*SW^^
permits. Finally, one trade association
commenteoMhat the Agency should
remove the word "permits" from the
requirement if permit issuance was not
intended to be a mandatory
requirement.
EPA intended that the proposed-rule
be interpreted consistently with the
Agency's interpretation of other
requirements of 40 CFR403.8{f](l), i.e.,
the requirement that the POTW have the
authority to undertake various activities
means that the POTW must, in fact,
engage in those activities. EPA is
revising the language of 40 CFR 403.8(f)
to clarify that POTW pretreatment_
programs must be implemented to "
exercise the authorities in 40 CFR
403.8(0(1).
In the proposed rulemaking, the
Agency also requested comments oh (1)
the appropriateness of limiting the
requirement to industrial users defined
as significant under proposed 40 CFR
403.3{u), or the appropriateness of
additional or alternative targets, such as
categorical users ornotifiers of
hazardous waste discharges undo?
proposed 40 CFR 403.12(p); (2) whether
the requirement should apply only to
POTWs wilh more than a specified
number of industrial users (and, if so,
what number would be appropriate as a
cut-off point); and (3) whether the list of
proposed conditions should be
contracted, expanded, or modified. Hie
Agency received a number of comments
In response to these questions.
Roughly half of the commenters on the
proposal responded to the question of
which Industrial users should be
required to have Individual control
mechanisms. Several commenters stated
that the POTW should have the
flexibility to decide which users should
be covered. However, most commenters
who supported the proposal agreed that
EPA should specify certain classes of
industrial users for which POTWs
would be required to issue individual
control mechanisms. Most of these
supported the proposal to require the
use of individual control mechanisms for
significant industrial users. With respect
to dischargers other than significant
users, including dischargers of
hazardous wastes, most commenters
stated that the use of control
mechanisms for such users should be at
the discretion of the Control Authority.
However, other commenters suggested
that the Agency extend the requirement
to include dischargers of hazardous
wastes or to include all industrial users.
Finally, a few commenters wanted the
requirement limited to categorical users.
None of these comments provided a
compelling reason for the Agency to
change the proposed requirement that
permits or equivalent individual control
mechanisms be issued to aUsignificant "
industrial users. The Agency agrees with
those commenters who supported
limiting the requirement to significant
users, including categorical users. The
Agency also agrees with those
commenters who believed thai the
definition of significant industrial user is
sufficiently inclusive and flexible to "
ensure that the necessary users are
regulated by individual control
mechanisms. The definition of
significant industrial user, as
promulgated in today's rulemaking,
includes all categorical dischargers and
all noncatcgorical dischargers meeting
certain criteria, except to the extent that
the Control Authority, with the approval
of the Approval Authority, modifies the
list of significant industrial users in
accordance with criteria specified in 40
CFR403.3(t)(l){ti).
EPA believes that issuing individual
control mechanisms to non-significant
users should be at the discretion of the
POTW because this class of users does
not typically have sufficient potential to
cause pass through or interference to
warrant a requirement for individual
control mechanisms. For this reason,
today's rule does not require that
POTWs issue individual control
mechanisms to all industrial users. A
POTW may, however, require non-
significant users to Have permits or
other individual control mechanisms.
One POTW commented that there
should be two classes of industrial user
permits. In response, EPA points out that
POTWs are free to implement this
approach if they wish, although the
Agency does not believe that a two-
class approach would be appropriate for
all POTWs in a national rule.
EPA disagrees with those commenters
who stated that the requirement for
individual control mechanisms should
be limited to categorical users. Such a
requirement would fail to include many
users whose discharges significantly
affect POTWs. One commenter stated
that the Agency should not require
permits for small dischargers, but
supported requiring permits for
categoricals. However, the Agency
believes that even small dischargers
shduld be required to obtain individual
control mechanisms if they qualify as
significant industrial users because they
may have a significant effect on a
POTW. On the other hand, if a non-
categorical user is not classified as a
significant industrial user, it would not
be required to obtain an individual
control mechanism under today's rule.
A few commenters addressed the
question of whether the requirement
should apply only to POTWs with more
than a specified number of industrial
users. Several commenters stated that
the requirement should apply to all
POTWs with approved programs.
One stated that even a small POTW
may need to issue individual control
mechanisms to significant dischargers.
Another commenter stated that small
POTWs (less than 5 million gallons per
day) with a small number of significant
users (less than ten) should not be
required to issue such control
mechanisms to their significant users.
However, one large POTW commented
that this requirement should only apply
tcTsmaller POTWs (under 20 mgd). ; -,,
In response to the commenter who
wanted to limit the applicability of the
requirement to smaller POTWs, the
Agency believes that the larger the
POTW (and the greater the number of
industrial users), the greater the benefit
to be derived from individual control
"mechanisms. On the other hand, the
Agency does not believe that POTWs
with a small number of significant users
should be categorically exempted from
this requirement. Even a small number
of significant users may have a
substantial impact on a POTW,
particularly where their discharges
represent a large percentage of the flov .
In addition, industrial users will benefit
, from individualized notification of the
• limits and monitoring requirements that
apply to them, regardless of the size of
the POTW.
Several commenters addressed the
minimum elements to b,e included in an ,
individual control mechanism. A POTW
opposed to the proposal commented that
there should be no minimum elements if
permits were to be required because the
POTW is in the best position to •
determine the necessary contents of a
permit, and none of the elements would
be appropriate under all circumstances.
Another commenter recommended feat
the Agency allow incorporation by
reference as an alternative to listing
conditions in the permit or alternative
individual control mechanism. Most
commenters, however, appeared to be
satisfied with the list of conditions in
the proposal. One POTW commented -
that the requirements concerning non-
transferability, slug load notification,
and penalties be dropped from the list,
because these are already set forth in its •
local requirements.
The Agency believes that there should
be minimum requirements for individual
control mechanisms. Otherwise, the
requirement that POTWs" issue such
mechanisms would be ineffective. The
Agency believes that incorporation by
reference is generally not appropriate
because of the importance of effective
-------
Federal Register / Vol. 55, No. 142 / Tuesday, July 24, 1990 /Rules and Regulations 30109
...„._,.,.. .,.^-j... t.. .«^^t..^^i,.i^--rr»r?--.JHf^^^J«^«wl..Jl.-V-»Li^e"-.M..M»l1.. .'. ..?- .i-^.-l.^».^^. *^llB.>Jv^*.....J^.^v.^fl!!W.».^^,^AJ.^^
notice to the significant industrial user
of all pretreatment requirements
contained in the individual control
mechanism.
Several commenters stated that the
list of minimum requirements for
individual control mechanisms should
be expanded Two commenters said that
the list should include [any required) .
compliance schedules. One commenter
suggested that the list should include a
statement of severabiliiy. One POTW
described its own additional '. •
requirements, which included: A
.regularly updated spill prevention
program; a water and wasteload '-..
balance calculation; a wastewater
characterization data base; a schematic
flow diagram; a building layout diagram,
including all drains to the collection
system; arid a description-of the
pretreatment systen
The requirements listed in the ; •
proposed rule were intended to be
minimum requirements. This leaves the
POTW much flexibility in adding other
elements. Elements such as water and
wasteload calculations, flow diagrams,
building layouts, etc., are more suitable
for inclusion on a case-by7case basis
rather than through a national rule.
POTWs may also include a statement of
severability, but the Agency is not .
requiring .such a statement because even
if a control mechanism is found-to be
invalid under local law because of a
single provision, the user is nonetheless
required to comply with all applicable
pretreatment standards and
requirements.
The Agency has issued detailed
guidance on the development of
industrial user permits (see the EPA
Industrial User Permitting Guidance •
Manual, September 198S).The
information in this manual should be of
use to all POTWs in utih'zing individual
control mechanisms to implement
pretreatment requirements.
The Agency agrees that where a
compliance schedule is required it
. should be included in the individual
control mechanism. For this reason,
' today's-rule includes such a
requirement. The Agency points out that
such compliance schedules cannot
relieve an industrial user of its federal
' obligation to comply with categorical
pretreatment standards or any other
federal pretreatment requirements in a '
timely manner, and language to this
effect has also been added to today's
rule. Compliance schedules placed in
individual control mechanisms are those
necessary for the attainment of new or
revised categorical pretreatment
standards or more stringent local limits,
.rather than those which are the result of
enforcement actions against the
significant industrial user.
Several commenters opposed the *
proposal that individual control
mechanisms have a duration of no more
than five years. One POTW commented
that locking a user into a set of
standards based on the combined
wastestreain formula would result in
annual changes to the control < •
mechanism as flow conditions change.
Two other POTWs commented that a
five-year limit would be unduly
burdensome for POTWs. One stated
that permits should only need to be;
renewed or amended when there are
changes in the quality or quantity of the
user's discharge. The other stated that
there is no need to modify the user's
control mechanism as long as the user is
in compliance.
In the first instance, the Agency does
not believe that a user is "locked" into a
particular set of standards with any
individual control mechanism.The
municipality may structure its permit
program to allow the use of reopener
clauses which would allow the
individual control mechanisms to be ....
modified if and when the POTW revises
its local limits. In addition, -where
production rates or flow rates are highly
variable, effluent limits can be written
to reflect such variability. The Agency
has provided some .guidance on how this
may be accomplished (see the above-
mentioned Industrial User Permitting
Guidance Manual\. The Agency believes
that a five-year maximum period is
reasonable, due to the inevitability of
changes to the POTWs program and
changes in the characteristics of ,
wastewater discharged to the POTW.
This is consistent with the requirement
promulgated in today's rulemaking that
all POTWs must evaluate the need to
revise their local limits every five years
when they apply for renewal of their
NPDES permits. There are many reasons
for changing the control mechanism
requirements, whether or not the-user
has changed the quality or quantity of
its discharge, and the Agency believes
that each control mechanism should be
reevaluated at least once every five
years to ensure that it is up to date, ;
The Agency'also proposed to require
a statement prohibiting transferability to
a new owner or operator without prior
POTW approval. Only one commenter
specifically addressed this issue. This
commenter stated that so long as
compliance has been maintained under
the conditions of a permit, the POTW
should have ample authority to enforce
the permit, although notification to the
new owner or operator would be
appropriate. The Agency agrees-with
this laommenter. POTWs may have
authority to enforce permits that have
been; transferred. However, the
indhfidual control mechanism is based
upoiiinformation provided to the POTW
by a particular owner or operator; The
POTW must, at a minimum, know of the
change in ownership or operation to be
able to learn of any forthcoming major
changes'to the industrial user's
oper.ktionsi Similarly, the new owner of
"operator should have a copy of the
existing .control mechanism in order to
havei adequate notice of applicable
pretteatment requirements. To ensure
'that this occurs, the Agency believes
that prior notification of the POTW and
of the new owner or operator is needed
and i.s therefore promulgating 40 CFS
403.8(f)(l}{iii)(B) to provide that each
individual control mechanism must
include a statement of •
^nontransferability without, at a
minimum, prior notification to the : •
POTJWf of the change in ownership or
operation and without, at a minimum,
provision of a copy .of the existing
individual control mechanism to the
new owner or operator. Today's rule
doesfnot, however, require prior
approval by the POTW. POTWs may
decide to require such prior approval in
the permits they issue.
. The Agency also received several
-comments on the proposed requirement
that Individual control mechanisms
should include applicable effluent limits
based upon categorical standards and
local limits. Two POTWs sought to limit ,
. this^requirement. One of these
commenlers stated that, due to the
. inheirent variability of certain effluent
limits, incorporation of such limits by
reference is preferred. The other
commented that permit limits should
only include end-oi>process limits and
incorporate by reference local limits and
the combined wastestream formula. It is
unclear to the Agency why this
com Center believed that:onlyend-of-
procBss limits should be included in
, individual control mechanisms, but the
Agency assumes that this commenter
was 'also concerned about variability of
certain effluent limits. As discussed
above, EPA does not believe that .
variability of flow and production ••.'--.
should prevent the inclusion of
appropriate limits in individual control
mechanisms, EPA's policy is that
POTWs should develop, and place in
individual control mechanisms, case-by^
case individual end-of-pipe limits for
significant industrial .users pursuant
either to 40 CFR 403.5(c) and/or limits
reflecting the application of categorical
standards to the permittee's specific ...
operations. : • •;-.
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30110
Federal Register
142 /Tuesday, July 24, 1990 / Rules and Regulations
A State suggested that "applicable
State standards" be added to the
category. The Agency agrees that where
these standards apply, they should be
included as elements in permits or
equivalent control mechanisms. Early
calculation of all end-of-pipe limits,
including those based on state law, will
result in better compliance with
applicable standards. Today's rule
therefore includes a requirement in 40
CFR 403.8(f)(lHiii) to include in the
individual control mechanism effluent
limits based on any applicable State or
local law. The Agency has also added a
requirement that the individual control
mechanism include effluent limits based
on applicable pretreatment standards in
part 403."
Finally, the Agency received two
comments on the requirement that
applicable monitoring, sampling, and
reporting requirements be included in
individual control mechanisms. A State
commented that control mechanisms
should also include sampling location(s)
to ensure that compliance is assessed at
the point where the limits are applied. A
POTW suggested that the requirement
be modified in order to clarify that the
requirement refers to self-monitoring
instead of the POTWs own compliance
monitoring activities.
The Agency agrees with both of these
commenters. Sampling requirements
should normally specify sampling
localionfs), and the location(s) should be
po!nt(s] at which the limitations set
forth in the individual control
mechanism apply. Moreover, the Agency
intended in the proposal to require that
Individual control mechanisms contain
self-monitoring requirements. The final
rule requires that individual control
mechanisms specify an identification of
the pollutants to be monitored, sampling
location and self-monitoring
requirements, as well as sampling
frequency and sample type. The Agency
is also adding a requirement that the
control mechanism contain
recordkeeping requirements where
applicable, since recordkeeping may be
very useful in tracking compliance and
in otherwise enabling the POTW to
obtain needed information about
significant industrial users. In addition,
EPA has deleted from the proposed rule
a separate requirement for notification
of slug discharges, since such a
requirement might imply that other types
of notification should not be included in
individual control mechanisms. Instead,
the Agency is requiring that such
mechanisms contain "applicable"
notification requirements, which should
include, as well as slug discharges, other
notification requirements contained in
part 403 such as non-compliance
reporting and notification of changed
discharge.
c. Today's Rule
Today's rule requires POTWs with
approved pretreatment programs to
issue permits or equivalent individual
control mechanisms to each significant
industrial user. The mechanisms shall bs
enforceable and shall contain, at a
minimum, the following elements:
• Statement of duration [in no case
more than five years);
• Statement of non-transferability of
the individual control mechanism
without, at a minimum, prior notification
to the POTW and provision of a copy of
the existing control mechanism to the
new owner or operator; .
• Effluent limits based on applicable
general pretreatment standards in part
403 of this title, categorical pretreatment
standards, local limits, and State and
local law;
• Self-monitoring, sampling, reporting,
notification, and recordkeeping
requirements, including an identification
of the pollutants to be monitored,
sampling location, sampling frequency,
and sample type, based on applicable
general pretreatment standards in part
403 of this title, categorical pretreatment
standards, local limits, and State and
local law; and
* Statement of applicable civil and
criminal penalties for violation of
pretreatment standards and
requirements and, where required, any
applicable compliance schedules. Such
schedules may not extend the
compliance date beyond applicable
federal deadlines.
F. Implementing the General
Prohibitions Against Pass Through and
Interference
1. Toxicity-Based Permit Limits (40 CFR
122.21(j)(l)(2) and (3)}
a. Proposed rule. To supplement
numerical NPDES permit limits for
specific chemicals, EPA has strongly
encouraged NPDES permitting
authorities to establish toxicity testing
requirements in municipal permits and
to develop whole effluent toxicity-based
permit limitations to control toxicity to
aquatic life. Expanded use of toxicity
testing and water quality-based
permitting for POTWs was also one of
the principal recommendations of the
Domestic Sewage Study. EPA has
encouraged this approach to controlling
toxic effluents because it allows POTWs
and permit writers to better controi'pass
through by identifying certain toxic
effects (such as lethality and effects on
growth and reproduction) of a complex
mixture with one measurement.
Toxicity-based permit limits can also be
useful where national categorical
pretreatment standards do not
adequately address pollutants that
cause local toxicity or where there are
no current numerical water quality
criteria for individual chemicals, as is
the case for many toxic and hazardous
constituents. In such cases, toxicity-
based permit limits provide a numeric
•measure of the narrative water quality'
"no toxics in toxic amounts" standard.
When such a toxicity-based limit is
violated, a toxicity reduction evaluation
(TRE) can be used to investigate the
causes, sources, and methods to control
the toxicity. A TRE is a procedure used
to find control methods to reduce or
eliminate toxicity. A TRE provides
systematic methods for locating sources
of POTW whole effluent toxicity and/or
assessing the treatabilily of the toxicity,
whether through pretreatment (source
control) or through unproved treatment
at the POTW. A toxicity identification
evaluation (TIE) is part of a TRE which
uses toxicity tests to characterize,
identify, and confirm the specific •
causative agents of effluent toxicity.
EPA recently enacted regulations
requiring that whole effluent toxicity
limits be placed in NPDES permits in
appropriate circumstances. See 40 CFR .
122.44(d)). .'„',.
On November 23,1988, EPA proposed
to revise 40 CFR 122.21(j) to require that
all existing POTWs conduct whole
effluent toxicity testing and submit the
results of such testing in their NPDES
permit applications. The information
Would be used by permit writers to
justify permit limitations and toxicity
reduction evaluations (TREs) when the
testing reveals a potential for violations
of water quality standards. The toxicity
testing information could also form the
basis for monitoring requirements and
other permit conditions when needed to ,
ensure ongoing compliance with water
quality standards. ; ,
In encouraging the use of toxicity
testing, EPA has recommended that
testing requirements be based on the
technical recommendations and
principles found in the Technical
Support Document for Water Quality-
based Toxics Controlr(TSD) (EPA/440/:
4-85-032, September 1985, revised .
edition to be published in 1990), and
EPA's toxicity testing protoc9ls, or
equivalent procedures designated by the
Director (i.e., the EPA Regional
Administrator or the NPDES permitting
authority in a State that is federally •
approved to administer the NPDES
program). The TSD describes the
• rationale for whole effluent toxicity
-------
Na W-/. Tuesaay!' July24; J99Jy7
30111
controls and the assessment of receiving
water effects.
b. Response to comments. EPA
received approximately 90 comments on
the topic of toxicity testing. Most of the '
comments focused on the heed for
toxicity testing at all POTWs and the
test procedures outlined in the proposal.
The majority of the commenters
asserted that toxicity testing at all ""•'-
existing POTWs was unnecessary and
in some cases redundant. In addition, a
majority of commenters objected to the
testing procedures and the frequency of
testing required on the basis of cost and
the possibility that they may conflict
with state toxic control strategies :
already in place. The various comments
are discussed in more detail below.
Several cbmmenters stated that EPA
or the permitting authority should'.'.'..
/demonstrate that toxicity is a problem
before requiring whole effluent toxicity
testing. L
« Section 101(a) of the Clean Water Act
establishes a national policy of restoring ..
and maintaining the chemical, physical,
and biological integrity of the Nation's
waters. In addition, section 101[a]C3)
clearly states the national policy that
the discharge of toxic pollutants in toxic
amounts is prohibited. Dischargers with
NPDES permits must meet all of the
technology-based requirements of the
CWA as well as any more stringent:
requirements necessary to achieve
water quality standards established
under section 303. Section 301pb)(l][G)
and section 402{a)(l) of the CWA
require that NPDES permittees achieve
the effluent limitations necessary to
attain and maintain the numeric and
narrative water quality standards set by
the states or, in appropriate instances,
by EPA. EPA also has authority under
sections 308 and 402(a)flH2) to require
such monitoring as is necessary to
develop effluent limitations consistent
with the Act.
Many POTWs have been found to ,
discharge toxic substances in toxic
amounts,. Effluent toxicity testing allows
permitting authorities to assess whether
a discharger, is complying with state /
water quality standards and provides a
justification for establishment, where
necessary, of permit limitations to
achieve those standards. EPA's surface
water toxics control program uses both :
chemical and biological methods to
assess and protect water quality. Whole
effluent tp^icity testing is especially
appropriate where, as for POTWs, . -".
complex chemical interactions may
occur and where a chbmical specific
evaluation alone cannot fully assess the
toxic effects of the effluent or
attainment or nonattainment of the
narrative water quality standard for
toxicity. -
One commenter stated that these
regulations should require that water
quality modeling and comprehensive
water quality studies be completed
before toxicity testing is required.
The toxicity testing required by
today's rule is designed to reveal if a
POTW is causing or contributing to
instream toxicity. Toxicity tests are
necessary in assessing the toxicity of an
effluent. The results of such tests in
conjunction with any applicable water
quality modeling information can lead to
decisions concerning appropriate water
quality-based limits'on whole effluent
toxicity. However, EPA does not believe
that water quality modeling should be a
.precondition for toxicity testing.
Many commenters stated that it
would be more appropriate to use ,
toxicity testing as an optional
monitoring tool rather than as the basis
for an enforceable limit.
EPA emphasizes that today's rule
does not explicitly require the ,
establishment of permit limits based on
the results of toxicity tests. Instead, it
requires certain POTWs to submit the
results of toxicity tests with.their permit
applications. EPA's regulations at 40
CFR122.44tdKl)(iv), however, ah-eady,
require whole effluent toxicity limits
where, a discharge causes, has the
reasonable potential to cause, of
contributes to an in-stream excursion.
above a numeric criterion for whole,
effluent toxicity. A similar requirement
exists regarding excursions above
narrative criteria, except that limits on
whole effluent toxicity may not be
necessary if the permitting authority
demonstrates that chemical-specific
limits for the effluent are sufficient to "
attain and maintain the applicable state
standard. EPA will continue to use the .
results of effluent toxicity testing and
other data to establish permitting - '
priorities, to assess whether a ;
discharger is in compliance with state
water quality standards, arid to develop
permit limitations to achieve those
standards. :'
Several commenters said that toxicity
. tests cannot distinguish between
toxicity.caused by "common materials,"
such as ammonia and chlorine, and
toxicity caused by section 307(a) priority
pollutants .and therefore such tests are
of limited use in controlling priority
pollutants. ;••'•• • ,
In response, the Agency points out
that state narrative standards
prohibiting the discharge of toxics in
toxic amounts are not limited to section
307(a) priority pollutants. Toxicity tests
will account for toxicity caused by any
pollutant, whether priority, conventional
or nbnconventional. Any effluent that
causes unacceptable toxicity in the
receiving waters would violate general
proliibitions on the discharge of toxic
pollutants in toxic amounts and controls
must be established accordingly.
In addition, a few commenters stated
that state disinfection requirements :
would often cause'failure of a toxicity
test due to the presence of chlorine, and
therefore toxicity testing should be*
conducted before disinfection.
Rosidual chlorine and other
byproducts of chlorination {i.e. monp-
and dichloroamines) can be highly toxic ,
to aquatic life. Therefore, EPA
: recommends that any use of chlorine for
disinfection be carefully evaluated. If
unacceptable effluent toxicity is found
to b
sometimes acute tests are sufficient, and
at other times a combination of both
acute! and chronic tests are necessary to
accurately assess the toxicity of an
effluent to aquatic life.
One commejqiter stated that the
Indus-trial pretreatment program has ..:.'
adequately screened and identified
toxicity problems so that in smaller
systems (where the pretreatment
program doesjript indicate a potential,
for toxic discharges) it is unnecessary
for POTWs to conduct toxicity testing.
EPA has found that P^OTWs With . .
pretruatineht programs receive the
majoiity of indirect industrial discharges
and therefore have a significant
potential for effluent toxicity. Even In
smaller POTWs with pretreatment
-------
30112 Federal Register / Vol. 55, No. 142 / Tuesday, July 24, 1990 / Rules and•
programs, all the toxics in a complex
effluent cannot, as a practical matter, be
measured or limited singly and, as
stated previously, chemical-specific
testing methods may not address the
interactive effects of the mixture.
Toxicity testing provides a way to
characterize and ultimately to limit, if
necessary, whole effluent toxicity where
necessary to meet water quality
standards. It may also help identify the
presence of particular pollutants of
concern so that chemical-specific local
limits or other controls can be
developed.
One commenter suggested using a
priority pollutant scan in lieu of toxicity
testing to screen a POTW's influent for
the presence of toxic wastes in
concentrations which would cause
damage to the POTW.
EPA agrees that POTWs should
generally test their influent for the
presence of individual toxic pollutants.
However, a POTW's effluent may be
toxic due to non-priority pollutants.
complex mixtures of pollutants, or
chemicals added or created during the
treatment process a,t the POTW. The
revisions to 40 CFR 122,210) require
POTWs to conduct whole effluent
toxicity testing to determine the impact
of the effluent on water quality.
Several commenters suggested that
toxicity testing should not be required
for wastewater discharged to dry creek
beds, ephemeral drainages, sloughs,
ditches, etc. because these places have
no aquatic life to protect and do not
affect waterways. One commenter
recommended the use of only chemical-,
specific controls in such circumstances.
In response, EPA notes that narrative
water quality criteria apply to all
designated uses at all flows unless
otherwise! specified in state water
quality standards. It is EPA's policy that
no acutely toxic conditions may exist in
any state waters, regardless of
designated use. Likewise, criteria for
protection against chronic effects must
bo met at the edge of the mixing.zone,
where the state water quality standard
allows a mixing zone. Dry creek beds,
ephemeral drainage areas, intermittent
streams, sloughs, or ditches may act as
reservoirs for pollutants which can be
flushed into larger permanent waters,
causing toxic impact.
Many commenters stated that the
requirements for toxicity testing in the
proposed rule conflict with existing state
toxic control strategies. Some
commenters wanted EPA to be more
specific in setting toxicity testing
procedures, while others wanted states
to have more flexibility.
EPA intended in the proposed rule to
provide flexibility for the states by
allowing the use of testing procedures
equivalent to EPA's protocols if they are
accepted by the Director. This provision
was apparently misunderstood by many
of the commenters. The proposal, at 50
FR 47653 (proposed 40 CFR 122.21(j)(l))
provided that the Director may require
alternative test procedures and may
require the submission of definitive
testing data generated according to
procedures specified by the Director to
replace or supplement the test data
specified in the proposal. Today's rule
also provides much flexibility to the •
Director in specifying test methods. For
example, paragraph 122.21(j)(3) allows
the use of EPA's methods or other
established protocols'which are
scientifically defensible and sufficiently
sensitive to detect aquatic toxicity. To
clarify this requirement, the Agency has
deleted the provisions in the proposed
rule which referred to the use of specific
protocols and dilution criteria.
A number of commenters stated that
biomonitoring has already been
completed or will be completed for their
facilities as part of the toxics control
programs required under section 304(1)
of the CWA. In response, EPA points out
that if a POTW has submitted the
results of toxicity tests with its permit
application to meet water quality-based
permitting requirements established by
the CWA section 304(1) regulations (40
CFR 122.44(d)), then the POTW has met
the toxicity testing requirements in
today's rule. Whenever that POTW's
permit is up for renewal, the POTW will
again be required to submit the results
of toxicity tests with its permit
application pursuant to today's rule. The
tests must be conducted since the last
NPDES permit reissuance or permit
modification under 40 CFR 122.62(a),
whichever occurred latest. For more
detail on the relationship between the
regulations at 40 CFjR. 122.44(d)(l)(ii) and
the testing required'by today's rule, see
the discussion on the requirements of 40
CFR 122.44(d) below.
Some commenters suggested that any
proposal affecting application
requirements for municipalities should
be included in the new municipal
NPDES application form currently being
developed by EPA.
EPA plans to propose new application
requirements for POTWs in the near
future, along with a form to be used in
submitting the application. The final
application forms, when promulgated,
will reflect the requirements of today's
rule.
Two commenters suggested that EPA
should formally promulgate whole
effluent toxicity testing procedures
pursuant to section 304(h) of the CWA,
Although toxicity test procedures
have not yet been promulgated under
section 304(h) of the CWA, EPA has
proposed new biological measurements
and test procedures for the analysis of
pollutants under section 304(h) (54 FR
50216, December 4,1989), The proposal
would amend 40 CFR part 136 by adding
methods to measure the toxicity of
pollutants in effluents and receiving
waters, by adding methods to measure
mutagenicity and to monitor viruses,
and by updating citations to
microbiological methods. In addition,
EPA and States have routinely used
certain other test methods. EPA's
published guidance documents on acute
and chronic toxicity test methods have
undergone extensive public comment
and peer review prior to their
publication, following the standard
Office of Research and Development
public comment and peer review
process. In 1984, the Agency concluded
that "* * * toxicity testing is sufficiently
refined to be used in setting effluent *
limitations* * *" (49 FR 38009 (1984)).
EPA's studies since 1984 reinforce this
conclusion. The absence of promulgated
guidelines under section 304(h) does not
affect EPA's authority to require toxicity
testing, nor does it affect the reliability
of the Agency's toxicity testing
protocols.
A number of commenters objected to
a perceived objective of the proposal to
"codify elements of the TSD" because
that document is intended only as
technical guidance and is currently
being revised. These commenters
apparently misunderstood EPA's. intent.
. EPA recommends the use of the
technical methods and principles
presented in the, TSD because this
document is in wide use and has proven
to be a useful tool for conducting
toxicity protocols. However, in the
proposed and final rules, EPA has
provided a considerable degree of
flexibility,to states desiring to use other
testing procedures. .
Some commenters stated that toxicity
test procedures are still in the ' :
developmental stage and are not
reliable or precise enough for p'urposes
of enforcement.
EPA studies indicate that toxicity test
methods are comparable in accuracy
and precision to chemical analytical
measurements in common use. The TSD
discusses the precision of toxicity test
methods, and cites various studies that
have led EPA to conclude that toxicity
test methods, where properly followed,
exhibit an acceptable range of
variability. EPA recently conducted two
interlaboratory studies of chronic
toxicity testing using Ceriodaphnia.
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Federal Register /Vol.^55, No: .142
These studies showed that a high
percentage of the 21 participating ;
laboratories met the survival and
reproduction criteria for acceptability of
test results. Furthermore, EPA has
•demonstrated a direct correlation
between effluent toxicity (where
exposure is adequately assessed) and
actual instream impact. The Agency
began a series of eight studies in 1981 to
determine whether effluent toxicity
correlates to an impact oh receiving
waters. At eight water quality impacted
sites around the country, EPA conducted
extensive biosurveys, calculated actual
instream waste concentrations, and
compared the results to measured
effluent toxicities. Final reports for these
studies are presently available from
EPA. These reports reveal that if an
effluent is found to be toxic at a certain
concentration using standard toxicity
tests, a toxic effect can be expected in
the receiving water if that concentration
is met or exceeded instream. .
Several commenters stated that
POTWs are not equipped to handle
certain chemicals that may cause
toxicity. One commenter also stated that
the proposed rule Hoes notaddress how •
to develop local limits for toxics control
when specific chemicals cannot be
readily identified as the causative
toxicants during a TRE. One commenter
stated that POTWs would not be able to
identify sources of toxicity and would
therefore impose arbitrary local limits
on industrial users.
EPA recognizes that many POTWs are
not designed to treat certain toxics and
that therefore these pollutants tend to
pass through or interfere with the
treatment system at the POTW. The
national pretreatment program and .
today's regulations are intended to
identify and control these effects.
POTWs with approved local
pretreatment programs often require -
industrial users who are identified as
the source of pass through or
interference to conduct toxicity
monitoring or take other measures to
help identify the specific chemicals
causing toxicity. Industrial users are
often able to easily identify potential
toxics used in or created by their
processes. The POTW can then derive
local limits, if necessary, from those
results. The Agency anticipates that in
most cases POTWs will:be able to
determine the source of any toxicity and
will be able to develop appropriate local
limits if needed to address the problem.
EPA has also, developed TRE and TIE
protocols to help address problematic
discharges where causative agents are
not readily identified {see, e.g., Methods
for Aquatic Toxicity Identification
Evaluations: Phase J Toxicity <;
Characterization Procedures, U.S. EPA,
September 1988, EPA 600/3^88/034;
Methods for Aquatic Toxicity
Identification Evaluations: Phase II
Toxicity Identification Procedures, U.S.
EPA, February 1989, EPA 600/3-88/035;
Methods for Aquatic Toxicity
Identification Evaluations: Phase III
Toxicity Confirmation Procedures, U.S.
EPA, February 1989, EPA 600/3-88/036;
Generalized Methodology for
Conducting Industrial Toxicity
Reduction Evaluations (TREs), U.S.
EPA, March 1989, EPA 600/2-88/070;
and Toxicity'Reduction Evaluation
Protocol for Municipal Wastewater
Treatment Plants, U.S. EPA, April 1989,
EPA 600/2-38/062).
Several commenters were concerned
about the reliability of TREs because
they are allegedly in the developmental
stage and because TREs do not identify
specific causes of toxicity or chemical
constituents causing acute or chronic
toxicity.
EPA has fpund the TRE and TIE
methods currently available to be useful
in helping dischargers to achieve their •
NPDES permit limits and comply with
State water quality standards. TRE's
often do identify specific chemical
causes of toxicity. EPA will continue to
develop and refinfe TRE methods and
provide technical assistance to -
permittees. EPA anticipates that there
may be a few cases where a POTW will
be unable to attain or.,maintain
compliance with toxicaty-based limits
despite implementing an exhaustive
TRE, applying appropriate influent and
effluent controls, vigorously enforcing
existing pretreatment requirements
against industrial users, and maintaining
continued compliance with all other
permit limits and requirements. In such
cases, EPA will work with the permittee
to resolve the problem and will exercise
its enforcement discretion when '
considering unusual problems faced by
certain POTWs in complying with
toxicity-based limits.
A majority pf the commenters strongly
opposed the requirement that all
existing POTWs conduct toxicity --'
testing. Most of these wanted to see
testing procedures applied on a case-by-
case basis, after considering a number
of different factors.
EPA was persuaded by these
comments to reconsider the requirement
that all existing POTWs be required to
• conduct toxicity testing as part of their
NPDES permit applications. The Agency
agrees that not all POTWs can be;
, anticipated to exhibit toxicity and that
toxicity testing for such POTWs could
create an unnecessary burden. ,
Howoyer, EPA expects that with few; '
exceptiohsrall POTWs with design
influeint- flows greater than one million
gallons per day and PQTWs with
pretripatment programs will need to be
evaluated to determine whether they
have ;a reasonable pptential to cause in-
streaijh excursions that violate a State
water quality standard. As stated above,
POTWs with pretreatment programs
receive the majority of indirect
industrial discharges and therefore have
a significant potential for effluent
toxicity. In addition, one million gallons
per day is the point at which the flow of
the wastewater usually begins to reach •
critical instream waste concentrations
that sire more likely to result in impacts
causejd by effluent toxicity. The Agency
believes that design influent flow is a
more appropriate criterion than actual
effluent flow because of the possibility
, that I'OTWs with a design influent flow
of one rniilibri gallons^per day :will reach
that capacity during a five-year permit
term flue to the addition of new
industrial users. For these reasons, in
lieu oif the requirement that all POTWs
submit the results of toxicity tests with
their permit applications, EPA is today
requMng valid toxicity testing results to
be submitted as part of the permit
application requirements for: (1) Any
POTW with a design influent flow
exceeding one million gallons per day,
or, (2]| any POTW with ah approved
pretreatment program or that is required
to develop a pretreatment program.
Today's regulations also provide that
the Director has the discretion to require
additj|orial POTWs to submit the results
of tojjjcity tests with their permit '-> -
applications based on Consideration of
one o,ir more of the following factors
found! at 40 CFR 122.44(j)(2): Existing
controls on point and nonpoint source
pollution {including total maximum daily
load calculations for the. waterbody ".
segment and relative contribution of the
POT\V), the variability of pollutants or
pollulant parameters in the effluent
{including existing chemical-specific
information and type of treatitnent
facility), the dilution of the effluent in
the receiving water {ratio of effluent
flow ijo receiving stream flow), receiving
stream characteristics, arid other
considerations. Any tests submitted
under today's rule must have been
conducted since the last NPDES permit
reissHance or permit modification under
§ 122,jB2{a), whichever occurred later.
If toxicity tests follow established
protocols and quality assurance
requirements are followed, the validity
of the; test will be assured. An invalid
test will not meet the.requirements of
today's rule. Testing protocols that
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Rules and
adhere to tlie principles presented in the
TSD and EPA's test methods will meet
the requirements of today's rule;
however, other valid procedures may
also be used. While today's rule requires
larger POTWs to conduct toxicity
testing, it also provides the Director the
flexibility to require small POTWs
located on small stream segments where
available dilution is minimal to conduct
toxicity tests, or to require POTWs
discharging to near coastal waters to
conduct such tests.
In making the determination that the
categories of POTWs listed in 40 CFR
122.21(j)(l) shall conduct toxicity tests
as part of the permit application
process, EPA was influenced by the
findings of the Domestic Sewage Study
and the conclusion in that Study that
EPA should consider expanding the use
of blomonitoring techniques and water
quality-based permitting to improve
controls over hazardous waste
discharged to POTWs. To strengthen its
water quality-based permitting program,
EPA recently revised its permitting
regulations at 40 CFR 122.44(d) (54 FR
23808, June 2,1989). These regulations
now require, with limited exceptions,
permit limits on whole effluent toxicity
where the Director determines, using
toxicity testing or other information, that
a discharge causes or has the potential
to cause excursions above State water
quality standards for toxicity. But 40
CFR 122.44(d) does not explicitly require
the discharger to generate toxicity
testing data, nor does it require
dischargers to submit such data with
their permit applications. EPA believes
that it is necessary to require toxicity
testing data from certain POTWs with
their permit application so that at the
time of application the Director will
have sufficient information to determine
whether limits on whole effluent toxicity
are required in the POTW's permit. EPA
recognizes that toxicity testing data will
not be necessary for certain categories
of POTWs. While EPA maintains the
authority to require toxicity testing data
from all POTWs, it would not be
appropriate to require POTWs that have
little or no chance of causing excursions
above State water quality standards for
toxicity to conduct toxicity tests and
submit the results with their permit
applications.
Based on the results of the Study, and
in conjunction with EPA's ongoing
integrated approach to water quality-
based toxics control, the Agency has
determined that toxicity testing data is
necessary and is required to be
submitted by POTWs described in 40
CFR 122.21GH1) and by POTWs
designated by the Director under
paragraph (j)(2). Furthermore, under 40
CFR 122.44(d) (iv) and (v), the Director
must use this data in determining
whether limits on whole effluent toxicity
are required in the POTW's permit.
Paragraph (j)(2) provides the Director
with the flexibility to require additional
POTWs to submit toxicity data with
their applications. In exercising this
option, the Director is to consider the
factors listed in paragraphs (j)(2](i)-[v]!.
These factors are general principles
which EPA has consistently
recommended that permitting
authorities consider when assessing a
discharger's potential to cause or
contribute to instream toxicity. These
principles are compatible with EPA's
"Policy on Development of Water
Quality-Based Permit Limitations for
Toxic Pollutants" (49 FR 9016, March
1984), The Technical Support Document
for Water Quality-Based Toxics
Controls, and EPA's revisions to 40 CFR
122.44(d) to implement CWA section
304(1). • . \ .
Once the Director has determined that
a POTW meets any of the criteria in
paragraph (j) (1) or has designated a
POTW under paragraph (j)(2), and that
POTW must therefore submit the results
of toxicity testing as part of the permit
application process, paragraph (j)(3)
provides that POTWs shall use a
toxicity testing protocol that is
scientifically defensible and sufficiently
sensitive to detect aquatic toxicity.
Approved State NPDES programs that
do not presently allow permitting
authorities to require POTWs in the-
categories described in paragraphs (j)
(1) and (2) to submit toxicity test results
with their permit applications will need
to revise their applicable law to conform
. to today's requirements. Under 40 CFR
123.62(e), regulatory revisions must
occur within one year of the effective
date of today's rule; unless statutory
changes are necessary, in xvhich case
such revisions must take place within
two years.
One commenter suggested that the
requirement that all POTWs conduct
toxicity testing is inequitable when the
proposal does not require such testing
for private dischargers. As stated above,
40 CFR 122.21(j) no longer requires all
POTWs to conduct toxicity testing. ;
Instead, POTWs that meet any of the
criteria listed hi 40 CFR 122.21Q)(1) or
are designated by the Director under.
paragraph (j)(2) are required to conduct
such testing. Moreover, the new
amendments to 40 CFR 122.44(d) require
the Director to determine whether any
discharge causes, has the reasonable
potential to cause, or contributes to an
excursion above a narrative or numeric
criteria within a State water quality*
standard. Such procedures will include
toxicity tests by direct industrial
dischargers in many cases.
One commenter stated that toxicity-
based limits in NPDES permits are not
an effective way of preventing toxicity
because nonpoint sources may also be
significant contributors to toxicity. EPA
reiterates that today's regulations do not
explicitly require the establishment of
toxicity limits.
However, the Agency disagrees with
the argument that POTWs should not
monitor or limit toxicity because
nonpoint sources may also contribute to
such toxicity. If a POTW's effluent is
found to cause instream toxicity (after
consideration of any applicable mixing
zone allowances) then discharge of such
effluent is in violation of State water
quality standards that prohibit
discharges of toxic pollutants hi toxic
amounts. In such instances, appropriate
limits aimed at achieving compliance
with State standards must be
established.
One commenter stated that permit
limits on toxicity should be required in
the permit when the results of testing
indicate that there is or may be a
problem with toxicity in the discharge. .
As a general rule, EPA agrees with this
statement. For further details on
appropriate measures to be taken, see
EPA's section 304(1) regulations (54 FR
23868, June 2,1989) at 40 CFR 122.44(d). ,
The regulations at 40 CFR 122.44(d)
describe the procedures that permitting
authorities must use when determining
whether a discharge causes, has the '
reasonable potential to cause, or
contributes to an instream excursion
above a narrative or numeric toxicity
criterion within a State water quality
standard. • " '
Many commenters expressed concern
over the cost of toxicity testing and the
lack of qualified laboratory facilities
available to perform the tests. EPA has
found that costs for toxicity testing
range from a few hundred dollars for a
simple one time screening analysis to
one or two thousand dollars per month
for a monthly chronic toxicity analysis.
Typical monthly or quarterly testing
costs are comparable to many other
types of chemical monitoring costs.
EPA has also found that there are
many competent labs around the
country capable of performing these
tests. The Agency recently contracted
with several labs to perform toxicity
tests in support of each EPA Region's
toxics control program. It is the
responsibility of the permittee to find an
appropriate facility and have its
samples shipped, if necessary, and
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ons
analyzed. EPA's Environmental
Monitoring and Support Lab in
Gincinnatils currently developing
guidance for lab certification which
States can use to certify competent labs
and to provide permittees with lists of
labs capable of conducting toxicity tests.
One commenter stated that the
regulations should allow time for .the
solicitation and subsequent Awarding of
contracts to conduct toxicity tests and
that the proposed deadline for •
submission of test results would be
unreasonably burdensome;
In response, the Agency points out
that the regulations do not require
POTWs to solicit contracts for the
performance of toxicity tests. Since
toxicity testing is only required every
five years as part of certain POTWs'
NPDES permit applications, these
POTWs should have ample time to find
suitable laboratories.
One commenternoted that the added
workload to permitting authorities for
reviewing the screening data has not
been addressed. EPA has estimated
these and other costs associated with .
implementing the proposed
requirements and they are available as
part of the public record of this
rulemaking. The Agency believes that
improved control of toxic and hazardous
pollutants occasioned by today's
toxicity testing requirements-justifies the
added workload to permitting
authorities,
c. Today's Rule'_.''':'.
Today's rule provides that any POTW
with a design influent flow equal to or
greater than one million gallons per day ..-
and any POTW with an approved
pretreatment program or which is
required to have such a program must
provide the results of whole effluent
biological toxicity testing to the Director .
as part of their NPDES permit;
applications. Tests submitted under
today's rule must have been conducted
since the last NPDES permit reissuance
or permit modification under § 122.62(a),
whichever occurred later. The Director
. may also require other POTWs to .
submit the results of toxicity tests with
their applications, based on
consideration of the variability of
pollutants in the effluent, the dilution of
the effluent in the receiving water,,
existing controls oh point and nonpoint
sources, receiving'stream •
characteristics, and other
considerations. In conducting the
testing, POTWs must use EPA's methods
or other protocols which are '
scientifically defensible and sufficiently
sensitive to detect aquatic toxicity.
2. Sludge Control
The provisions of the amended CWA
dealing with the regulation of sewage .
sludge have far-reaching implications
for the pretreatment program. The
amendments mandate the promulgation
of specific numeric limits for toxic
pollutants in sewage sludge; and/or the
specification of acceptable sludge
management practices, and require that
these standards be implemented through
permits. To carry out these
requirements, EPA has proposed
technical standards for an initial group
of toxic pollutants for the five major
sludge use and disposal methods:
agricultural and non-agricultural land
application, distribution and marketing,
incineration, sludge-only landfills, and
surface disposalsites. These standards
were proposed on February 6; 1989 (54
FR 5746), EPA earlier proposed ..= -.--'•
regulations governing sludge disposal in
municipal solid waste landfills
(MSWLFs) on August 30,1988 (53 FR
33314).
In addition to calling for the
promulgation of technical criteria for the
use and disposal of sewage sludge, the
1987 amendments to section 405 also -
contain a significant departure from .
previous statutory provisions regarding
implementation. The amendment
prohibits the use or disposal of sludge
except in compliance with EPA's
regulations and requires the
implementation of the standards through
a permitting system. This means that, for
the first time, federal technical ,
standards will be implemented through
permits issued to treatment works
treating domestic sewage. When the
sludge standards are promulgated,
NPDES permits issued to POTWs or
other treatment works treating domestic
sewage must include these requirements
unless they are included:in another .
permit under listed federal permit
programs or an approved state sludge
management program. On May 2,1989,
EPA promulgated final regulations for i.
implementing sludge standards into
NPDES permits and for developing
approvable State sludge permitting .
programs.
Section 405{d)(4) as amended also
requires that, before promulgation of the
criteria, the Administrator shall include
sludge conditions in permits issued to
POTWs under section 402 or take ssuch
other measures as the Administrator
deems appropriate to .protect public '
health and the environment from ,
adverse effects which may occur "from
toxic pollutants in sewage sludge. To
incorporate sludge conditions into
:permits before promulgation of the
standards, such conditions will have to
be;developed on a case-by-case basis.
To! implement this requirement, the
Ag;ency has developed a "Sewage
Sludge Interim Permitting Strategy" ':
- wilich explains EPA's strategy in
implementing.this CWA provision. EPA
has also completed guidance (signed in
December 1989) which will be
distributed in early 1990 to EPA Regions,
States, and interested parties. This
"Guidance for Writing Case-by-Case ...
Peirinit Requirements for Municipal
Sewage Sludge" is designed to assist
pe]anit writers in developing "best '
professional judgment" permit
conditions prior to promulgation of the
technical standards. In September 1989,
, EPA also issued the "POTW Sludge ,
Sampling and Analysis Document" for
us« fa sewage sludge monitoring. -In •
adfiition, the Agency conducts ; .
workshops several times a year on
writing sludge permit conditions.
ITiis improved regulation of sewage
sludge quality will drive the
.development of local limits to keep
pollutants that could contaminate the
sludge arid interfere/with its proper use
and disposal from entering the treatment
plant. Thus, this effort will further the
development of effective pretreatment
prcigrams and will help to identify and
control the discharge of hazardous
wastes and hazardous constituents to
POTWs. ,- ;
3. Control of Indirect Dischargers.' •
Commercial Centralized Waste Treaters
(40; CFR 403.3 (e) and (o), 403.5(c},
403.6(6}, 403.8)) ;
& Proposed change, Commercial
centralized waste treaters (referred to"
herein as CWTs) are facilities that treat
wastes received from off-site generators -
of fihose wastes. The Agency first
preiposed to specifically address CWTs
that discharge to POTWs as part of the
proposal, published on June 12,1986 (51
FR 21458), to implement the
recommendations of the Pretreatment
Implementation Review Taskforce ' .
("PIRT"). The preamble to-that proposal
clarified that under the current
requirements, categorical pretreatment
standards apply to the wastewaters
generated by certain industrial
processes and discharged to a POTW,
regardless of whether they are finally
discharged by an industrial generator or
' some intermediate entity sucli as a ,:
CWT. For those CWTs that mix process
categorical wastewater with other
wastes prior to pretreatment, the
preamble indicated that the combined
wastestream formula (C WF) in 40 CFR
40S.6(e) should be. used to calculate ..'
alternate discharge limits. The proposed
rule would have codified this
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30116IJ Federal1 Register / Vol." %5^ tfo!*14"2 /' Tuesclajv July 2*4, "1990i/ Rules and Regulations
requirement and would have required
generators of wastes to supply the
Information necessary for calculating
the limits. Three other alternatives were
discussed in the June 12,1986 proposal:
(1) Promulgating national categorical
standards for CWTs, [2J relying solely
on POTW-developed local limits, and (3)
limiting each pollutant discharged from
the CWT by applying the most stringent
parameter for that pollutant taken from
all the categorical standards applicable
to the wastes received by the CWT. EPA
did not amend its regulations, or current
requirements applicable to CWTs, in the
final PIRT rule. Instead the issue was
deferred and again addressed in the
proposal to today's rule (November 23,
1988,53 FR 47632). That proposal
solicited comment on the same
alternatives, but proposed an additional
one; POTWs would be required to
obtain and implement authority to
regulate CWTs by developing local
limits based on the best available
technology economically achievable
(GAT), which would be determined by
each POTW for its CWTs using best
professional judgment (BPJ). If the
POTW determined that the combined
removal fay the CWT and the POTW
u as less than the removal that would be
achieved by BAT, the POTW would set
a limit equal to the BAT limits, but
adjusted for removal by the POTW.
b. Response to comments. The Agency
received numerous comments in support
of and opposing each alternative and
recommending additional alternatives.
These comments raised technical, legal
and economic concerns. The Agency has
decided to collect additional data before
deciding whether to finalize any of the
alternatives. Data that would assist in
the decision include more information
en the types, variability, environmental
effects, and treatability of wastes
received and discharged by CWTs. Such
data would also assist the Agency in
providing guidance on how to implement
itb decision. Once the data are obtained,
the Agency may determine that it is
necessary to consider options not within
the current proposals, and to make
additional proposals. Otherwise it will
base its decision on the proposals
currently outstanding and the comments
received thereon.
The Agency reiterates its previously
slated position (see 51 FR 214S8) that
arty national categorical standard that
would apply to a waste if discharged by
its generator continues to apply if the
v.aste is shipped off-site to a CWT that
is an industrial user of a POTW. Where
such wastes are mixed with other
process wastestreams prior to discharge^
the combined wastestream formula may
be used to determine the applicable
limit. The Agency recognizes the
practical difficulties in applying the
CWF faced by CWTs that receive
categorical wastes in substantial or
highly variable quantities. CWTs
experiencing difficulties in applying the
CWF may wish to either: (1) Segregate
categorical wastes and provide batch
treatment to the levels required by
applicable categorical standards, or (2)
treat a mixture of categorical and other ,
wastes such that each pollutant
discharged is in compliance (after
correction for dilution flows) with the
most stringent numerical limit
prescribed for that pollutant in any of
the categorical standards applicable to
the wastes being treated. EPA believes
that either of these options has the
potential for substantially reducing the
paperwork of CWTs that would
otherwise be required to use the CWF,
while still assuring treatment of
categorical wastes in accordance with
categorical standards.
As discussed in section H.1 below,
today's rule requires POTWs to
determine the necessity of developing
local limits to prevent pass through and
interference. The Agency encourages
POTWs to pay particulat attention to
the effluent from CWTs in developing
those limits.
c. Today's rule. The Agency is
postponing promulgation of any
additional regulations pursuant to the
proposals regarding CWTs.
4. Categorical Standards for Other
Industries
Section 304(m) of the Clean Water
Act, added by the Water Quality Act of
1987, requires the Agency to establish a
schedule for the annual review and
revision of promulgated effluent
guidelines, and to establish a schedule
for promulgation of new BAT guidelines
and new source performance standards
for industries discharging toxic or
nonconventional pollutants. On August
25,1988 (53 FR 32584), the Agency
published a notice of its proposed plan
to implement section 304(m). That notice
contained a discussion of the Agency's
proposed decision-making process to set
priorities for the development of new or
revised effluent guidelines. Although not
required by section 304(m), that notice
said that EPA would develop categorical
pretreatment standards whenever
appropriate when developing guidelines
for categories of dischargers. Some of
the categories which the Agency said it
would consider as candidates for new or
revised guidelines were identified in the
Study as significant contributors of
hazardous constituents to POTWs.
One commenter on the November 23,
1988 proposal criticized EPA for not
moving swiftly enough to 'promulgate
new or revised categorical pretreatment
standards in accordance xyith the
recommendations of .the Study and the
mandate of section 304(m). This ^
commenter. stated that existing . , ' "
categorical standards cover an '
insufficient number of toxic and
hazardous pollutants, and that many
industries discharging large amounts of '
such pollutants are not covered by
categorical standards at all.
On January 2, 1990, the Agency •
published a final notice announcing the
Agency's initial plan for reviewing
existing guidelines and promulgation of
new.effluent guidelines to implement
section 3Q4(m). This notice established a
schedule for reviewing existing
regulations and for selecting categories
of dischargers of toxic or
nonconventional pollutants for which
guidelines have not previously been
published. Many of the industries for
which the Agency has established
schedules were recommended by the
, Study as potential candidates for new or
revised categorical pretreatment
standards.
G. Enforcement Issues
1. Revision to Local Limits (40 CFR
a. Proposed change. The existing
pretreatment regulations provide that
the development of local limits (or a
demonstration that they are not
necessary) is a prerequisite to approval
of a POTW pretreatment program and
the continuing legal acceptability of an
approved program. Although the '
Existing regulatory language does not
explicitly require POTWs to update
local limits, EPA has previously stated
that local limits must be updated as
necessary to reflect changing conditions
at the POTW (51 FR 21459, June 12,
1986). Because of the importance of up-
to-date local limits in controlling pass
through and interference from toxic and
hazardous pollutants, EPA proposed on
November 23, 1988 to revise 40 CFR
.122.21(j)(2) to require POTWs to
evaluate in writing the need to update
their local limits as part of their NPDES"
permit application (i.e., once every five
years at a minimum). If the Director
determines that a particular PQTW ,
should evaluate the need for revision
more often, it may so specify in the ,
NPDES permit or approved pretreatment
program (as incorporated by reference
in the permit).
This provision would not require
POTWs to update their local limits
-------
'when such revisionis not needed.; "'•<• -
Instead, EPA is establishing a minimum
frequency, for formal evaluation of the •••••
need for revised limits. Examples of •
events that might indicate the need for
such a revision, include changes in the
POTW's NPDES permit; changes in •
sludge dispos'al standards of POTW ; • •
sludge disposal methods, modifications
to the treatment plant, addition or "
deletion of significant industrial users,
and changes in industrial users'
processes .or pretreatment operations,
These events could all affect the
likelihood of interference with PGTW;; .'.
operations or possible lack bf : ;, ' ,
compliance 'with the POTW's NPDES .-•-•••
permit, .The minimum frequencyiof : ,
formal evaluations will give the PplWs
more precise notice of their legal
responsibilities and should facilitate ,
EPA enforcement actionsin some,
situations where POTWs are not
fulfilling their obligations to develop and
update local limits. Regular evaluation
of the need for revised limits should also
lead to more effective limits on the
discharge of toxic and hazardous;
wastes, thereby preventing pass through!
and interference. . .'••'"•••
.The Agency solicited comments: on
whether POTWs should be required to .
conduct the evaluation more often. For
example, POTWs might be required to,
conduct the evaluation whenever . \ ;
multiple instances of pass throiigH or
interference had occurred (such .as two
or more violations in a quarter}, in order
to determine if existing local limits were
adequate to prevent these ocdurrehces. :
POTWs could also be required to submit
such evaluations annually as part of the
annual reports required under 40 CFR"
403.8(i),V- ' .. . _'•' •'.','.' .:•• • • ,'
* b. Response to comments^ The Agency.
received many comments oil the
proposed rule from States,, POTWs,
. environmental groups, and Industry. The
vast majority of the commenters favored
the rule as proposed. A small minority .of
commenters expressed concern over the
proposed provision. - .,
One area of concern involved the
level of POTW discretion in the timing".
and performance of local limits
evaluation's. One commenter stated that
the frequency foi evaluation of local
limits 'should be left entirely to the
POTW since the POTW is in fee best •
, position to-know the nature and effect of
the discharges into its system. Another
commenter observed that development
of local limits should already have taken
into 'account changes in a" POTW's .
system (e.g., projected.increase in the .
number of industrial users, etc.). -.. •
Therefore; it was believed that the .
POTW should determine when changes
to local limits-should be made.- * _ -N
EPA is not persuaded by the argument
that no,mrniimum frequency for
. evaluating the need for revision is ._
necessary.-The Agency believes that the
evaluation of local limits at least every:
five years is necessary to address any
changes in the POTW's NPDES permit,
any problems in compliance with the
permit, changes .in sludge disposal- .:
methods, or changes to the:treatment-
plant. However, actual changes to local
limits would be made only when the
evaluation indicates the need for
, updating the local .limit, or when ,
otherwise required by applicable,;
provisions,in POTW's apprpxed ';' ' '
.. programs or KIPDBS permits.,. :. •".'•". ....."
0ne commenter. inquired as to, whit:,
was meant by a "formal eyaluation" of •
local limits. The Agency intends the
formal evaluation to, be a written . ,
technical evaluation by the Control
Authority determining whether or not
there is a need to revise the existing
local limits at the time of permit
application, and the reasons for this
determinationvTo clarify this
requirement, today's rule requires a ,
written technical evaluation of the need
fo revise local limits, rather than a :
"formal" evaluation. "-,• '•.'.>-.
There was almost universal
opposition to the suggestion that local
limits shpuid be evaluated annually. The
/Agency* agrees that annual evaluation of
local limits ;is not routinely necessaipy
and therefore'is not promulgating-that
requirement as part of today's final rules..
c. Today's rale. Today's rule provides
that all POTWs must provide a written
technicalevaluation of the need to
revise local limits as part of their NPDES
permit applications; "';•' : ,
2. Inspections and Sampling (40 CFR
403.8(f3(23(v3} • , ;
a. Proposed'change. The existing - •
regulations (40 CFR 403.8(ll(23(v)}
require that POTWs with approved ' •
pretreatment programs must be able to
. randomly sample and analyze the „
effluent from their industrial users and
conduct surveillance and inspections to
identify noncompliance with •-,•"•'•
pretreatment requirements. However,
„ these regulations do not specify how
often such POTWs must perform the
sampling analysis and surveillance.
In the 1986 "PretreatmenfCompliance
•' Monitoring and Enforcement Guidance,"
the Agency recommetided that POTWs
conduct atleast one inspection and/or
sampling visit annually to all -.-': •" . ...
"signiBcarit industrial users." E?A
emphasized in the Guidance that more
, frequent monitoring should probably be
conducted in certain cases: e.g., where :
,an industrial facility-has exhibited a ; . .
marked inability to achieve^nd , , •
mahiteiin cofflpliance with, pretreatment '
'standards; ''".':'' ••' '- -'•:";-'.. ' ." -:'.;"
." In oi[der to facilitate-implementatidn: ••'-;-
of exisjting requirements by.speGifyirig a ,
standalrd for how often POTWs must ,,
inspect and sample-the effluent of their .-•
significant industrial users, EPA
proposled on November 23,1988 to
modifj] 40 CFR 403.8(f)(23(v} to require •
POTWfs with approved pretreatment:, •'•
prograrns to inspect and sample all
"signilicahtlndustrialusers" atleast •
once e^ery two years. EPA believes -that
inspection and sanipling'bf these users-'
atleasi tiiis often should help POTWs
avert pass through and interference by,
keepiEJg better traek.bf the more ; '
'signifiiiant industrial dischargers into
their t:eatmerit and collection systems
(especially dischargers of tpxic and
hazardous pollutants). The proposed ,
revisicins should- also provide a uriiforin
.program requirement that EPA can
readily; enforce if necessary. ' ,,;•.."
: The lAgency solicited comments on :
whether the'bienhial inspections and
sampling requirement was sufficient or
if ahniial inspections and sampling • ,
should be required. EPA also requested
comnientpn whether the proposed •.- ^
regulation represented a redundant . -
requirement in the face of existing '
reporting and monitoring requirements
and whether to require POTWs to target
certaiii compounds (such as RCRA. ";-
appendix VIE hazardous constituents)
' in thefc sampling of significant industrial
user discharges.. " . .-.,-•
b.Response'to comments. The Agency
received many comments oh.the
propoised rule. Cpmmehts were
submitted by States, POTWs,
environmental groups, and private
industry. The; commenters were evenly
split v/ith regard to favorhig or opposing
the proposed rule. Many commenters
stated that the rule should specify
annual.inspections and sampling while
others? stated that a' minimum of biennial
inspections and sampling was adequate.
A few of the commenters believed that
the frequency of inspections and ,
sampling should be left entirely to the
POTV^'« discretion. Some of the •
comnrenters stated that the proposed ;
rule was redundant in light of existing ;
.requirements for^elf-monitoring and-
repbr)Eing by categorical uidustrial users
and proposed requirements for -
significant non-categorical industrial
users,; - • "-:: •'* ' •;; • :,''- ' •-.v:..'; •. • •
The Agency does iiot agree with the
assertion that these requirements are
redundant. One of the principal
. purpcjses and-beneflts .-of an annual ,• .
compliance monitoring programis the
-------
independent verification of the
compliance status of the industrial user
by the Control Authority. This annual
presence provides a means to determine
whether the information the POTW
receives is adequate in terms of
sampling techniques and lab procedures.
It also provides a way to evaluate the
rccordkcoplng procedures of the
industrial user as well as the operation
end maintenance of the pretreatment
facility. This annual presence also
provides a deterrent value by
encouraging the industrial user to
maintain appropriate operation and
maintenance procedures as well as
helping to ensure proper recordkeeping
and lab procedures. These benefits are
not possible through the review of self-
monitoring reports alone. Therefore, the
Agency disagrees with the claim that
this is a redundant requirement, because
the goal of this provision is not simply to
receive data but also to provide
effective oversight of industrial user
operations.
One commenter stated that any
specification of inspection and
monitoring frequency would limit the
ability of the POTW to make rational
determinations based on local
considerations. It was felt that any more
stringent frequency would excessively
limit the needed flexibility of the POTW
in planning for inspections and sampling
of its industrial users. Another
commenter was of the opinion that more
frequent than biennial inspections and
sampling might become so demanding
as to prevent a POTW from focusing its
attention on actual cases of effluent
violations.
However, other commenters did not
believe that a minimum frequency of
biennial inspections and sampling was
sufficient to oversee industrial user
compliance. One POTW stated that it
supported a minimum frequency, but it
believed that it would be difficult to
maintain, in the face of competing
programs, its current level of two to
eight visits per year in the face of
regulations which allow for a
significantly reduced effort. Many
commenters pointed out that the
proposed rule was inconsistent with
existing EPA guidance regarding
inspections and sampling of significant
industrial users. These commenters
stated that previous instructions from
EPA during audits and inspections as
well as in workshops directed Control
Authorities to establish annual
monitoring frequencies for their
significant industrial users. Another
commenter expressed concern over
allowing biennial monitoring and stated
its belief that annual oversight provided
greater credibility to the reported self-
monitoring information. A final
commenter said that this proposal ran
counter to the recommendations found
in the Domestic Sewage Study and that
the intent of these recommendations
was to provide a stronger effort in
pollution control.
EPA is persuaded by these arguments
in favor of a requirement for annual
, inspections and sampling of significant
industrial users. The purpose of the rule
is to ensure consistent tracking of
industrial users with the potential to
adversely affect the operation of the
treatment works. Requiring annual
inspections and sampling will provide
for more effective oversight of industrial
user compliance, consistent with EPA
Guidance. For these reasons, EPA is
today requiring that POTWs with
approved pretreatment programs sample
and inspect all significant industrial
users at least once a year.
The Agency does not agree with those
commenters who said that specifying a
minimum inspections and sampling
frequency would excessively limit thes
POTW in planning for inspections and
sampling of industrial users. The
Agency, in its 1986 "Pretreatment
Compliance Monitoring and
Enforcement Guidance" recommended
that Control Authorities conduct at least
one inspection and/or sampling visit
annually for all significant industrial
users. This recommendation has also
been made during pretreatment
inspections and program audits. By
specifying a minimum compliance
monitoring frequency, the Agency is
establishing uniform program
requirements to assist in program
oversight and which can be readily
enforced if necessary. In addition, the
Agency points out that this requirement
applies only to significant industrial
users. EPA has allowed considerable
flexibility and discretion for non-r
significant industrial users with regard
to effluent sampling and other
regulatory requirements. EPA does not
believe that implementation of today's
rule will prevent POTWs from dealing
with actual cases of effluent violations
or from adequately implementing other
requirements of their approved
programs. Many POTWs are already
implementing an inspections and
sampling scheme with frequencies far
greater than required by today's rule,
and there have been no observed
difficulties in addressing violations or-
maintaining compliance with other
requirements of approved programs. .
Finally, the Agency solicited
comments on whether to require that
POTWs target certain compounds in
their sampling, such as RCRA appendix
VIII hazardous constituents. There was
universal opposition to this proposal
and many commenters indicated that it
would be excessively burdensome
without producing environmental
benefits. Upon evaluation of the
comments submitted,. EPA has
determined that routine monitoring for
RCRA appendix VIR hazardous
constituents is not nationally necessary
for preventing interference or pass
through or for preventing sludge
contamination. The POTW has the
flexibility to require monitoring of these
substances if they pose potential
problems for the operation of the
POTW. The POTW should, however*
sample for all regulated pollutants
discharged to the treatment works.
c. Today's rule. Today's rule requires
POTWs with approved pretreatment
programs to conduct at least one
inspection and sampling visit annually
for each significant industrial user.
3, Definition of Significant Industrial
User (40 CFR 403.3[t))
a. Proposed change. AH industrial
users which discharge wastes to POTWs
are required to comply with the general
pretreafment regulations found in 40
CFR part 403. While the general
pretreatment regulations include, very
specific requirements for categorical
industries, the regulations are less clear
about certain obligations for
noncategorical industries. In the 1986
"Pretreatment Compliance Monitoring
and Enforcement Guidance", the Agency
established a definition for what would
constitute a significant industrial user.
This definition was in part designed to
identify those non-categorical industrial
users which are likely to have the most
significant impact on the POTW, and for
which additional pretreatment
requirements might be Justified.
• In order to provide, national
consistency in the application of
pretreatment requirements and to
enhance program enforceability, the •
Agency proposed on November 23,1988
to amend 40 CFR 403.3 to add a new
definition of "Significant Industrial
User" which was generally consistent
with the 1386 Guidance. Under the
proposal, a "significant industrial user"
was defined as: (1) All dischargers
subject to categorical pretreatment
standards: (2) all noncategorical
dischargers that, in the opinion of the
Control Authority, have a reasonable
potential to adversely affect the
POTW's operation; (3) all
noncategorical dischargers that .
contribute a process wastestream which
makes up 5 percent or more of the
-------
.Federal
average dry weather capacity of the?
POTW treatment plant, or that . :
discharge an averajge of 25,000 gallons
per day of more of process^ wastewater ,
to the POTW. Under the proposal, the
Control Authority need not designate as
significant any noncategorical industrial "
; user in category [3} above that, in the
opinion of the Control Authority and -
with the agreement of the Approval
Authority, had no potential for 1 , ',
adversely affecting the POTW's
operation or for violating any • •.-•--,•;.•."
pretreatment standard or requirement
The agreement of the Approval .''--„
Authority would not be necessary in
cases where the rioncategbrical •
discharger would have been'designated
as significant only because of an %
average discharge of 25,000 gallons per
day Prmore of process wastewater. The-:-',•••
; proposal also would have allowed any
noncategorical industrial user .= ; ;
designated as significant to petition the
Control Authority to be deleted from the;
Est of significant industrial users;on-the
grounds that it had no potential for '•••-'"
adversely affecting the POTW's
operation or violating any pretreatment '~f
Standard or requirement '•;.; . ••• L,O- , .
' The Agency intended to provide with
this definition a means for POTWs to set
priorities for monitoring and..-.'.'
enforcement activities, including self-: ;
' monitoring by the, mdiis.trial user.; In1 ; ;
addition, the definition v^ould proyicle a
basis for establishing reporting; '
requirements for non-categorical •-.
industrial users and for Control
Authority reporting to the Approval
Authority regarding industrial user
compliance. The definition would also
provide national consistency in the
implementation and'reporting of
pretreatment requirements :and would
assist Control Authorities in identifying
the effective use of permitting,
monitoring and enforcement resources.
In addition to these benefits, the
proposed regulatory definition would
provide better notice to POTWs of what
constitutes a well-structured '
pretreatment program. One basic goal •
was to require that similar industrial
facilities be treated consistently with
regard to reporting and monitoring
, requirements. . . '-• • ..'•"•" '
EPA solicited comments oil the "".
Noveber 23,1988 proposal, and also
invited comments and suggestions oil
the following issues: whether to allow
POTWs to delete categorical users from
the significant industrial user list;' the
appropriateness of the 25,000 gallons per
day criteria; the role of the Approval :
Authority in designating significant': • '••:'-
industrial users; expanding the : .:
definition of significant industrial user' :
to include notifiers of hazardous waste-:
dischargers; and requiring PQTWs to
estimate in annual reports whether the
amo'unf of hazardous waste received
during the last calendar year has
increased significantly and whether any
'change has affected operations at the
POTW. ' . :.,' "-'..' "••-'-, ''.•;"'-'
b. Response to -comments. TheAgency
received many comments on the ,
proposed rule which were submitted by
States, local POTWs, environmental
groups and private industry. The
majority of the cdmmenters generally
favbre'd-tiie rale, although many ;
suggested modifications. Some'
cbmmeiiters were of the opinion that
there should not be any regulatory;"
definition for significant industrial user.
As explained above; and in the preamble
to the proposed rule; the purpose behind
the proposed definition is to provide
natibnaLednsistency and program
enfbrceability; as well as to provide
notice of what constitutes a well-
structu?ed pretreatment program and to
ensure equity in'program" "
implementatioh. It is EPA's belief that :
Lithis definition is necessary since sfeyeral
' parts of today's rule'tmpose ,
requirements applicable only to;
significant industrial users.
1,' Role of the approval authority iii '•
identifying significant industrial, users.
The largest number of comments' '---'•.:
received On the proposed :definitidii !
addressed the procedures for listing or
delisting industrial users and the role
which the Approval Authority would
play in this process. All commenters .
seemed to agree that the POTW should
be allowed to add or delete certain
industrial users from the significant
industrial user list, but there was ,
disagreement on whether and under
what circumstances to require the .
agreement of the Approval Authority in
this process. Two comments from
POTWs stated that there should not be
a requirement to seek prior consent from
the Approval Authority to delete or add
an industrial user from the list of ' '
significant industrial users-because the .
Approval Authority can review these
changes in the POTW's annual
pretreatment report and during other
oversight functions. Another commenter
stated that the Approval Authority is
not in a position to evaluate a
discharger's potential to adversely affect
a POTWs operation. It was stated that
the Approval Authority must rely on the
recommendation and data supplied by
the Control1 Authority in designating
significant industrial users and that
• requiring the agreement of the Approval
Authority would create an unnecessary
•bureaucratic step which would"lead to"'
delaysi It was recommended that the •
Control-Authority,be allowed to simply ,: ••.
notify |ie Approval Authority of its
intent rapt to include, or remove, an;
iridustifial-user frbm the;list and to have
that deicisibja.stand unless the Gontror, '
Autho]fjty was in yiolation of its NPJ3ES
permiffriquirements. ,p ;'"'•' : ;:;.:
Sonie of &e commenters, on .the, otiier .
hand, iayqred a strong role for the
Approyal Authority in designating the:
tmivei'iBe"of. sigrjificant industrial users.
One cpimnieaterjDelieved that the .,,,
, politiciil influence: often .exercised by . ,
significant industrial users was ; : ,
sufficient tpi require a strong oversight,lv ..
presence by the Approval Authonty..It
was stated that the ^independent ":,'.'.,''. '.
eyaluaiipn of the Apprpval Authority,' ,
was neicessary as an important check :bn
IhePCjTW's exiercise of its discretion,
""especially in cases where -there might Toe.-.,
pressure exerted by the industry ton be /,
-removjjd from,the list of significant:.,,.--.;•/.,..
indusMal usjers [and^the subsequent; ,' •
regulatory requirements for such; • ,-.,••
industjfial «sers).:In addition, it was :.,
, stated !that.if the ControLAuthority.fails ••,
toplac^e a/significant industrial user on : :
the lisli,- the Approval Aiithbrity should
have tike power to require the listing of :
.thatiniiustrjaluser.. •: . ;.>.'> .-.'it.--.~~-
The Agency does not agree that. -' - >
^adequate1 oversight can be achieved -'-:•
thrbugh'a'sMplexeview of the POTW's
annual; pretf"eatnient report or through -
other iiautine compliance monitoring
activities on tne part of the Approval
Authority. The; Agency believes that -'
notification should be required to make. .
the Approval Authority aware of any
changes to the approved program. : ,
Prompt notification is necessary for
proper j oversight of approved programs . )
and toJensiire'prbper enforcement of
program requirements. The Approval •
Authority has the obligation to evaluate .
cofnpli'ance.and therefore needs to be
made (iware of any changes to the scope
of the program as soon as possible, ;
rather than hi an annual report. For ;
example, the Approval Authority needs
to know if the numbers of industrial •'
users iiubjectto permitting, monitoring,
and reporting are undergoing a • ;
significant'change; If the" Approval
Authority is not made aware of these: ^
changib, tracking program
; implerbentation' would become
extreiiiely difficult. In'addition, if the
Approval Authority does not have the :
opporliUnity to object to unjustified •
desigii;ations pr de^designations of
signifipant industrial users, then the , • • •
Gbritrpl Authority might'be subsequently •
liable to (enforcement a'fctipn from the •
'• 'Ap'projvaiAuthority. '' : : •--_••''•-' •'"•. '--.:-.-" '•'•'• -."-
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3012Q
199Q
Regulations
There was also some stated confusion
regarding at what point Approval
Authority consent would be necessary,
including whether the POTW should use
the procedures for non-substantial
program modifications promulgated in
40 CER 403.18{b)(2). One commenter
believed that the rule should explicitly
state that listing and delisting of SIUs
constitutes a minor program
modification.
To address these concerns and avoid
possible confusion, the Agency has
modified the language of the proposal
concerning consent of the Approval
Authority. Today's rule adds a new
provision, 40 CFR 403.8(fJ(6}, which
requires the POTW to prepare a list of
its significant industrial users. The list
shall identify the criteria for significance
applicable to each industrial user. For
non-categorical users meeting the
criteria for significance, the list shall
Indicate whether the POTW has made a
determination that such industrial user
has no reasonable potential for
adversely affecting the POTW's
operation or for violating any
pretreatment standard or requirement.
This list, and any subsequent
modifications thereto, shall be
submitted to the Approval Authority as
a minor program modification pursuant
to 40 CFR 403.18{b](2). EPA believes that
this language gives dearer notice to
POTWa of their responsibilities and of
the role of the Approval Authority in
approving significant industrial user lists
and subsequent modifications. 40 CFR
403,8{f](6) replaces the proposed
revisions to 40 CFR 403.12(1X1) that
would have required updating lists of
significant industrial users in POTW
annual reports and an explanation of
why certain noncategorical users were
not designated as significant. Today's
rule requires that any modifications to
the list of significant industrial users be
submitted to the Approval Authority as
a minor program modification. Since
modifications to the list will normally
take place at a minimum of once a year
in most prelreatment cities, th'e Agency
believes that requiring an update of
significant industrial users in the annual
report is not necessary. EPA notes that
40 CFR 12(i]((4) provides that the annual
reports shall contain "any other relevant
information requested by the Approval
Authority". Approval Authorities may
therefore request additional information
or more frequent updating of a particular
POTW's significant industrial user list if
they believe it appropriate.
Today's rule also makes a conforming
change to proposed 40 CFR
403.8(f)(2)[iii) to provide that, within 30
days of approval pursuant to 40 CFR
403.8(f)(6) of a list of significant
industrial users, the POTW must notify
each significant industrial user of its
status as such and of all pretreatment
requirements applicable to it as a result
of such status.
&. Use of flow in determining
significance. The use of the 25,000 gallon
per day flow criterion received
considerable comment from States,
POTWs, environmental groups, and
private industry. In general, the
commenters were of the opinion that the
25,000 gallon per day criterion was
either too low or that no flow criterion
should be included in the definition, at
all. One commenter believed that the
flow criterion served no purpose
because the proposed definition allows
the Control Authority to fail to designate
or to delete these industrial users
without the consent of the Approval
Authority. Another commenter stated
that relative, not absolute size is
important in determining significance
and that size is adequately covered in
the 5 percent criterion in the existing
definition. One POTW suggested that a
two-tiered approach be used with
POTWs with less than 5 million gallons
per day design flow using 25,000 gallons
per day and POTWs with a design flow
greater than 5 million gallons per day
using 50,000 gallons per day.
The major purpose of defining
significant industrial user is to provide a
means by which EPA can set priorities
in its general pretreatment standards
and Control Authorities can set
priorities for permitting, monitoring and
enforcement The Agency believes that
the flow criterion can be used as a
screen by the POTW to set priorities for
permit applications in their initial
evaluation of industrial users, and for
updating the significant industrial user
list annually. The 25,000 gallon per day
measure will provide a general cutoff
point for consideration in determining
whether a facility should be targeted for
compliance monitoring and enforcement
activities. Under 40 CFR 403.8(a), the
Regional Administrator or Director may,
at his discretion, require that a POTW
with a design flow of 5 million gallons
per day or less develop a pretreatment
program in order to prevent pass
through or interference. The smallest
POTWs generally required by the
Regional Administrator or Director to
have a pretreatment program under the
discretionary authority of 40 CFR
403.8(a] have a design flow of 500,000
gallons per day. EPA chose 25,000
gallons per day as a flow criterion for
significant industrial users in part
because that figure represents five
percent of the flow of the smallest
POTWs required to have a pretreatment
program. The Agency believes that a
50,000 gallons per day criterion would
not capture many non-categorical
significant industrial users with a
potential to adversely affect smaller
POTWs. POTWs may, in their
discretion, and subject only to review by
the Approval Authority as a minor
modification, delete any or all of the
facilities which were placed on the
significant industrial user list based
solely on flow. EPA does not wish to
overrule POTWs on a routine basis
when it comes to the designation of
industrial users as significant. The
purpose of the notification requirement
is to pro vide the Approval Authority
with information necessary to prevent
the deletion of significant industrial
users by POTWs .without justification. It
is EPA's position that this notification is
necessary for proper and appropriate
oversight of program implementation.
One commenter believed that the new
regulatory definition would impose an
increased paperwork and administrative
burden on the POTW. The proposed
definition of significant industrial user is
closely related to the recommended
definition provided in the 1988
"Pretreatment Compliance Monitoring
and Enforcement Guidance," and as
such, has been available to POTWs for
over three years. Many Control
Authorities have already adopted the
definition found in the Guidance. EPA
believes that most Control Authorities
are familiar with the definition and have
already incorporated it in their
implementation activities.
iii. Other. The Agency also solicited
comment on whether to allow deletion
of categorical users from the list of
significant industrial users. A majority
of the commenters favored a procedure
for deleting categorical industrial users
from the lists, but one Approval
Authority stated its strong objection to
any procedure for deregulating
categorical industrial users. There was a
suggestion that a de minimis limit of
1000 gallons per day could be used for
delisting categorical industrial users
from the list of SIUs. Another
commenter suggested that only the
Approval Authority should be allowed
to delete a categorical industrial user
from the list of SIUs.
After reviewing these comments, EPA
is not persuaded that a POTW should be
able to delete categorical industrial
users which, in the opinion of the
POTW, have no reasonable potential to
adversely affect the operation of the
POTW. In the development of
categorical standards, EPA made a
determination that these standards were
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Federal Register /:;yo!;;s55,'K6:'l42^y8Tfl§Mly^f
necessary in the case of certain
industries to prevent pass through and '
interference. Based on this ,;-•'•"
determination, the Agency promulgated
standards which restrict the discharge
of pollutants by these industries. It is
therefore important that the compliance
of these industries with categorical
standards be assured. Therefore, today's
rule does not allow categorical
industrial users to.be deleted from the
list of significant industrial users. ' - - '
Some commenters expressed concern
over the burden required to prove-that..
an industrial user had "no potential" to
adversely affect the operation of the
POTW. It was suggested that EPA
provide guidance regarding this issue if
the current language is maintained in
the final rule. In the 1986 "Pretreatment
Compliance Monitoring and
Enforcement Guidance," the Agency
stated that the Control Authority may
remove any noncategorical industrial'
user from the SIU list if it has "no
reasonable potential" to violate any
pretreatment standards. Under today's
rule, the Control Authority may remove
an industrial user (subject to the consent
of the Approval Authority) based on. ' •
whetherithas'aj'easoriable potential far
adversely affect the operation of the
POTW or to violate any pretreatment
standard or requirement. The
determination'of reasonable potential ••
should be based on the best professional -
judgment of the POTW and should take
into account the~compliance history of •-.
the facility, the nature and character of .
the effluent, and the flow of the facility.
One cornmenter fronva State ~ "•."-.--
Approval Authority stated that the
proposed definition lacks sufficient :
objective criteria for determining ; •
significance. It was suggested that •
objective, criteria are needed regarding
potential impact of an industrial user in
terms of the design capacity of the
treatment works. In relation to this,'
another commehter noted that the 1986
Guidance provides that a-facility - .
"contributfing] a process wastewater
which makes up 5 percent or more of the
average dry weatherjiydraulic or
organic capacity of:the treatment plant"
would be considered:significant. This
commenter suggested that the final rule
should conform to the Guidance ' .
definition. EPA agrees that facilities
contributing 5 per cent or more of the.
average organic capacity of the
treatment plant may have significant • .-•
potential to adversely affect the POT-W,
since large concentrations of •'
Biochemical. Oxygen Demand (BOD) or
Total Suspended Solids (TSSj could
.impair the biological capacity of the'
plant to treat all 'incoming wastes^The - '
final rule will therefore incorporate
organic capacity as'part of the
regulatory definition. . v
One industry comnienterobjected to
the proposed definition of significant ,
industrial user on the grounds that it
created additional reporting and
monitoring requirements for categorical
industrial users. However, today's rule
places no additional reporting or
monitoring requirements on categorical
significant industrial users.
A final issue raised by the proposed
rule was whether to expand the ,
definition of significant industrial user
: to include notifiers of hazardous waste
discharges under proposed 40 CFR
403.12(p). There was almost unanimous
opposition to this proposal from the
commenters. In light of this opposition
and upon reviewing this issue, it is
EPA's position that'notifiers of
hazardous waste discharges should not
be automatically considered significant ;
industrial users for purposes of
pretreatment," since the discharge of
small amounts of hazardous waste do
not necessarily have" the potential to ;
adversely affect the POTW. The POTW,
'of course, may designate such facilities •
•as significant if a particular facility has
the potential to cause interference, pass-
through, or sludge contamination at ;the
POTW, or pursuant to state or local law.
c. Today's rule. Under today's rule, a
significant industrial user is: (1) Any;
discharger subject to categorical ' ;
pretreatment standards; (2) any other
industrial user that discharges ari'
-average of 25,000 gallons per day far
more'of process wastewater (excluding
sanitary, :nbncontact cooling and boiler
blowdown wastewaters) to the POTW
or that contributes a process'
wastestream which makes up 5 percent
or more of the average dry weather .
, hydraulic or organic capacity of the •••
POTW treatment plant; or (3] that is
-designated as such by the Control
Authority on the basis that the'industrial
user has a reasonable for adversely -• '
affecting the POTW's operation or for
violating any pretreatment standard or
requirement; Upon a finding 'that a ;
noncategorical user has no reasonable -
potential for adversely affecting the" •
POTW's operation or for violating any '
pretreatment standard or requirement,
the Control Authority may at any time, -
upon its own initiative or in response to
a petition received from a
noncategorical industrial user of POTW
and with the consent of the Approval ••
Authority, determine that such industrial
user is not a significant industrial user.
Today's rule also requires POTWs to
prepare a list.of their significant -
, industrial users, identify the criteria = ;
applicable to, such users, and Indicate
whether' the POTW has made a ;•"-- :P '
:- determination that any noncategorical
user meeting the criteria in 40 CFR
4Q3.3(t)(l)(ii) should not be a significant
industrial user. This list, and any
subsequent modifications thereto, shall
be' submitted to the Approval Authority
as;a minor program modification
pursuant to 40 CFR 403.18(bp3. Within
30 Mays of approval of the list, the
POTW shall n'otify each significant .
industrial user of its status as such and •
of all pretreatment requirements
applicable to it as a result of such status.
4. Enforcement Response Plans for
POTWs (40 CFR 403.8(f)(53J
!a. Proposed change. The existing
general pretreatment regulations do not
specify detailed enforcement ;
requirements applicable to POTWs with
approved pretreatment programs.
Splecific enforcement sanctions •
idontified in the general pretreatment '••
rejgulations are the requiremeht to : ' . ••
annually publish the names of
' significant violators in the largest daily
newspaper,1 and the requirement.that
POTWs have authority to seek or assess
mijiimum civil or criminal penalties of
$1QQO per day* -The existing regulations •••
require POTW program submissions to •
iidi3ntifyhow-the POTW intends to
ensure compliance, arid also require ; '
POTWs to enforce all pretreatment
standards fahd' requirements and obtain
re:cnedies for noncompliance (40 CFR -;
403!8(f)(l)}. However, POTWs are riot -
further informed what their legal •; ;
reisponsibilities are in carrying out. ...';-
enforcement actions. ; ".-. , •' • •
In the 1986 ."Pretreatment Compliance
Mpriitoring arid Enforcement Guidance",
th>e Agency encouraged each POTW to '
develop an Enforcement Response
: Guide, which is a set of procedures
describing how the POTW will
investigate hidustrial user violations
1 aiiid which corrective or enforcement
. acjtions the POTW will take to respond
to::such violations (the Guidance
suggested certain procedures). In order.
. to eiisure that POTWs develop and •;;'•"'
iiriplemeht specific enforcement •;?
prbcedures, EPA proposed on November
, 23;, 1988 to add 40 CFR 403.8(f3(5) ,to
require all POTWs with approved
pre.treatmerit programs to develop and
implement an-enfofcement response
plan describing how the POTW will
investigate and respond to instances of
industrial user noncbinpliance> including
time' frames'within.which the responses
wiUtakeplace. ' ' : •'•••-• .-. •.•-.-.••,'.1.-%:
- The Agency believes that the 'process
of ."developing these plans will be Very
valuable in helping POTWs decide what
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80122 8ralRegfcter/
No. 142 /Tuesday, July 24, 1990 / Rules and Regulations
resources are needed to enforce their
p re treatment standards and how they
will actually deal with industrial user
violations. Such plans will also make it
easier for EPA to determine whether a
POTW is complying with its
pretrealment implementation
requirements for enforcement The rule
will not interfere with the ability of the
PQTW to carry out their programs in a
manner suited to their needs, nor should
such a plan be difficult to develop. The
POTW should use the 1986 Guidance,
EPA's recently issued Guidance for
Developing Control Authority Response
Plans (September 1989) and its own
expertise to develop a reasonable plan
to address and remedy noncompliance.
The Agency solicited comments on
whether to include more specific
elements in the regulation.
b. Response to comments, EPA
received many comments on the
proposed rule. Comments were
submitted by States, POTWs. private
Industry and environmental groups. The
commenters were generally evenly
divided, with regard to favoring or
opposing the proposed rule. Several
commenters were of the opinion that
there should not be any regulatory
requirement to develop enforcement
response plans and that any such
provision should be developed as
guidance only.
EPA believes that enforcement
response plans will help POTWs decide
what resources are needed to enforce
their pretreatment standards and assist
in dealing with industrial user
violations. In addition, a dearly defined
enforcement response plan will provide
notice to industrial users of what to
expect if they violate any pretreatment
requirement. By alerting industrial users
to the possible response they may face
in the event of noncompliance, the
Control Authority will demonstrate that
it is serious about its compliance
expectations and is ready to respond to
violations with firm measures. This
heightened awareness by industrial
users should improve their compliance
status. Therefore, the Agency is of the
opinion that it is appropriate to define
these enforcement response plans in the
regulation. For this reason, the Agency
is today requiring all POTWs with
pretreatment programs to develop and
implement enforcement response plans.
The majority of the comments against
the rule claimed that the procedures
outlined in the proposed rule would
prevent the POTW from exercising its
enforcement discretion by locking the
POTW into a cookbook approach to
addressing violations. One commenter
from private industry believed that the
rule would force the POTW to address
all instances of moncompliance with
equal vigor, regardless of the magnitude
of the violation. A POTW commented
that rigid enforcement response plan
requirements could result in less
vigorous POTW pretreatment program
implementation. Another POTW stated
that establishing standardized national
elements for the enforcement response
plans would remove necessary
flexibility in program implementation. A
third commenter believed that the
current rule would inhibit innovative
means of enforcement In general, these
commenters believed that the rule
would hinder rather than help the
POTW in its efforts to promote
industrial user compliance.
An effective enforcement response
plan should provide that similar
violations will be dealt with in a similar
manner, and that more serious
violations will be addressed with more
stringent enforcement responses.
Therefore, it is incorrect to think that the
enforcement response plans will
address all instances of noncompliance
with equal vigor. With regard to the
issue of flexibility, the Agency
understands that enforcement strategies
will be different from jurisdiction to
jurisdiction and that the responses
selected by each Control Authority will
depend on their legal authority and local
circumstances. EPA is defining the
principles for enforcement in the
regulation, but it is up to the local
Control Authority to decide how to
incorporate these principles into a
functional enforcement strategy, taking
into account local circumstances. The
Agency does not believe that the use of
such plans precludes innovative
enforcement strategies.
Even those commenters who favored
the rule were concerned that EPA
provide enough flexibility to the POTW
to decide the details of response
procedures appropriate for a particular
situation. One commenter believed that
the rule as written provided enough
flexibility to accommodate the
differences in the enforcement process
for each community. Most commenters,
however, felt that requiring the
specification of time frames within the
rule itself would place an unreasonable
restraint on the POTWs enforcement
discretion. Another commenter stated
that time frames necessarily vary from
case to case.
Enforcement is the necessary driving
force that makes environmental laws
work. One of the foundations of
effective enforcement is the timely
response upon discovery of a violation.
The Agency is not persuaded by the
argument that requiring the development
of time frames in the regulation will
place an unreasonable restraint on the
POTWs enforcement discretion. The
actual time frames to be incorporated
into the enforcement response plan are
being left to the discretion of the POTW
[with the agreement of the Approval
Authority). EPA understands and
appreciates the need for local flexibility
in determining appropriate responses,
but the Agency believes that requiring
the establishment of time frames is an
appropriate condition for effective
enforcement The Agency emphasizes
that both the proposal and today's rule
would not require the same time frames
for different types of industrial user
noncompliance.
Many of the POTWs that commented
stated concern that this rule would
make them easier targets for EPA
enforcement action. One POTW
asserted that the rule was an attempt by
EPA to fit local programs into the
federal mold and to improve EPA's
enforcement capabilities against
POTWs. It was thought that a more
appropriate requirement would be to
make these enforcement response plans
a permit requirement for POTWs with
interference or pass through problems
due to inadequate enforcement
One of the legitimate purposes of this
requirement is to provide EPA with a
means to evaluate program
implementation by the Control
Authority. The present general
pretreatment regulations already require
POTWs to ensure compliance by
industrial users with all pretreatment
standards and requirements. Today's
revision to the regulations serves to
make this requirement more explicit
One of the difficulties in implementing
and enforcing pretreatment programs for
POTWs has stemmed from a lack of
clearly defined policies and procedures.
The process of developing enforcement
response plans will compel the POTW
to lay out its enforcement rationale and
will therefore serve to minimize or
eliminate the uncertainties concerning
enforcement The Agency is requiring
that POTWs lay out a clearly defined
strategy to be used in addressing
violations. One of the benefits of such
an approach is that when the Control ,
Authority discovers that its local
enforcement authority has been
insufficient to return a recalcitrant
industrial user to compliance, the
Control Authority may wish to report
that situation to the Approval Authority
as a possible candidate for joint '•
enforcement action. This partnership
between the local Control Authority and
the Approval Authority is an anticipated
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Federal Register / Vol. gg, -No.^142 / Tuesday,
ftjtl?
uea^and Regulations
• 30123
consequence of this requirement. To
provide the Approval Authority with
knowledge of who is responsible for the
various levels of response, the Agency is
today adding a new, provision (40 CFR
403.8(f)(5)Ciii», requiring the POTW to
identify in enforcement response plans
the officiaKs} responsible for
implementing each type of enforcement
response.
One eommenter was uncertain
whether the requirement for the
development of enforcement response
plans would apply to POTWs that
already have approved programs. It is
the Agency's intent that all Control
Authorities, including those with
existing approved programs, develop
and implement the requirement of this
rale. Therefore, all POTWs with
approved programs and those POTWs
required to develop a program under 40
CFR 403.8(a) will be required to develop
an enforcement response plan. This
commenter also suggested that a
compliance date be established for the^
development of these plans. Although
the Agency does not agree that a
uniform compliance date need be •:..
specified in the regulation, EPA points
out that all enforcement response plans
(as well as other program changes
required by today's rule) must be
included in the POTWs NPDES permit
upon reissuance.
c. Today'&nile. Today's rule provides
that POTWs with approved programs
must develop and implement an
enforcement response plan. This plan
shall contain detailed procedures
indicating how a POTW will investigate
and respond to instances of industrial
user noncompliance and shall, at a
minimum:
(1) Describe how the POTW will
investigate instances of noncompMance;
(2) Describe the types of escalating
enforcement responses the POTW will
take in response to all anticipated types
of industrial user violations and the time
periods within which responses will
take place;
(3) Identify by title the official(s)
responsible for implementing each type
of enforcement response; and • :.-.-
(4) Adequately reflect the POTW's
primary responsibility to enforce all
applicable pretreatment requirements
and standards, as provided in 40 CFR
403.8(f) (1) and (2).
5. Definition of Significant ' ''.'-
Noncompliance [40 CFR403.8{f)(2}(vii}}
a. Proposed change. The existing
regulations [4O GFR 403.8(f)(2)(vii)}
require Control Authorities to publish, in
the "daily newspaper with the largest
circulation in the service community, a
list of industrial users which had
significant violations of applicable
pretreatment standards and
requirements during the previous twelve
months. This list must be published at
least once per year. "Significant
violation" is defined as a violation
which remains uncorrected 45 days after
notification of noncompliance; which is
part of a pattern of noncompliance over
a twelve month period; which involves a
failure to accurately report
npncompliance; or which resulted in the
POTW exercising its emergency .•:-..- "
authority under 40 CFR «333(fJ(lj(vi)(B)..
This definition includes criteria
similar to those previously used by
QuarterlylNoncompliance Reports
(QNCRs) for direct dischargers. The
Agency uses QNCRs to track the
progress and measure the effectiveness
of NPDES compliance and authorized
state enforcement against direct
dischargers. However, in. 1985 EPA
revised the criteria for the types of
violations to be reported in QNCRs (see
40 CFR Part 123.45). The revisions
established more precise criteria, known
as technical review criteria (TRC), to be
used for reporting certain permit
violations. The TRC are based on the
magnitude and/or duration of the ;
violations and provide a means to
quantify severity of violations for
reporting of direct discharger
noncompliance.
In the 1986 Pretreatment Compliance
Monitoring and Enforcement Guidance*
the Agency included a detailed '
recommended definition of significant
noncompliance by industrial users
' which incorporated the essence of the
new criteria used in determining the
violations required to be reported in the
QNCR. In the Guidance, EPA
recommended the national use of this
definition to identify the most serious ;
.violations by industrial users and to set \
priorities for enforcement actions.
Experience with the current regulatory
definition of significant violation has
shown that POTWs vary, considerably
in their application: of this definition
when selecting which names of violators
to publish in the local newspaper. This
is particularly true in deciding what
constitutes a "pattern of '.
noncompliance" under 40 CFR
403.8(f)(2)(vii], To eliminate these
inconsistencies and to establish more
parity in tracking violations committed
by direct and indirect dischargers, the
Agency proposed on November 23rl988
to revise 40 GFR 403.8(f)(2Kvii} to
replace the definition of significant
violation with a new definition which
essentially incorporates the criteria used
in determining direct discharge
violations to,be reported on the QNCR.
Under the proposal, an industrial user
would be in significant violation if its
violations met one or more of the
following criteria:
• Chronic violations of wastewater
- discharge limits, defined as those in •
which sixty-six percent or more of all of
the measurements taken during a six-
month period exceed (by any
magnitude) the daily maximum limit or
the average limit for the same pollutant
parameter;
» Technical review criteria (TRC)
violations, defined as those in which
thirty-three percent or more of all of the
measurements taken during a six-month
period equal or exceed the product of
the daily average maximum limit or the
average limit times'the applicable TRC
(TRC =j? 1.4 for BOD, TSS, fats, oil, and
grease,| and 1.2 for all other pollutants
except pH); '.'-..
• Any other violation of a
pretrealtment effluent limit (daily ;
maximum or longer-term average) that
the Coiitrol Authority believes has
caused, alone or in combination with
other discharges, interference or pass
throug'i (including endangering the, . .-
health of POTW personnel ox the
general public);
^ » Any discharge of a pollutant that
Eas caused imminent endangerment to
human health, welfare or to the
environment and has resulted in the
POTW's exercise of its emergency
, authority under paragraph (f](l)(vi)(B) of
this section to halt or prevent such a
discharge; .
-*•' Violation, by ninety days or more
after Use schedule date, of-a compliance
schedule milestone contained in a local
control mechanism or enforcement
order, i:or starting construction,
completing construction, or attaining
final compliance; , : ;
--••-•" Failure to provide required reports
such asi baseline monitoring reports, 90-
day comph'ance reportsr periodic self-
monitoring reports, and reports on
compliance with compliance schedules
within ithirty days of the due date;
• Failure to accurately report
noncoijiipliance; or
• Aiiy other violation or group of
violati»5ns which the Control Authority
considers to be significant.
The Agency believes that this new
definition will provide POTWs with
more precise instructions regarding
which Industrial users in violation of
pretreettment standards should have ..
their npmes published in local
newspapers.
EPA ^solicited comments on the
approiiriateness of the definition
criteria, but emphasized that industrial
users would continue to be liable for
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30121 Federal Register /_ Vol. 55, No. 142 / Tuesday. July 24, 1990 / Rules and Regulations
any violation of applicable pretreatment
requirements.
b. Response to comments. EPA
received many comments on the
proposed rule from States, POTWs,
environmental groups, and private
industry. The commenters were
generally evenly divided with regard to
favoring or opposing the proposed rule.
By far the greatest number of
comments addressed the fact that under
the proposed definition of significant
violation, an industrial user could be
considered a significant violator based
on a single sampling event This means
that if the industrial user performs the
minimally acceptable level of
monitoring (generally twice per year)
and detects a violation, then that
industrial user, by definition, would be
considered a significant violator. There
was a recommendation from several
commenters to lengthen the evaluation
period for the criteria for chronic
violations of wastewater discharge
limits and technical review criteria
violations from six months to twelve
months to allow for the accumulation of
more data. Alternatively, one
commenter suggested that EPA should
specify a minimum number of samples
for the determination of what is a
significant violation.
In response, EPA points out that the
general prelreatment regulations specify
only the minimum monitoring and
reporting requirements for implementing
the pretreatment program. Although it is
true that an industrial user can be
classified as a significant violator based
on data from a single sampling event, an
industrial user may increase its
sampling frequency to lessen the chance
that, for chronic or TRC violations,
significant noncompliance will be based
on only one sampling event. In addition,
it should be noted that 40 CFR
4G3.12(g)(2) provides that if sampling
performed by a categorical industrial
user indicates a violation, the user shall
repeat the sampling and analysis and
submit the results of the repeat analysis
to the Control Authority within 30 days
after becoming aware of the violation.
Three commenters were of the opinion
that the technical review criteria (TRC)
were too low and that a more realistic
and appropriate level for the TRC would
be 2,0 for conventional pollutants and
1.5 for all other pollutants. One
commenter suggested eliminating this
component of the definition altogether.
Another commenter suggested that the ,
TRC be separately calculated for each
pollutant by incorporating the removal
efficiencies at the treatment works. A
POTW commented that the TRC criteria
should have language which specifies
that the TRC applies for "each pollutant
parameter."
One of the reasons for the
development of the significant violator
criteria was to promote parity between
the tracking of violations for direct arid
indirect dischargers. 40 CFR 123.45(a)(2)
establishes criteria for determining
significant violations for direct
dischargers. In the 1986 Guidance, the
Agency recommended adopting these
same criteria for evaluating significant
noncompliance for indirect dischargers.
The reportability criteria for the
Quarterly Noncompliance Report
(QNCR) uses TRC values of 1.2 and 1.4.
Therefore, EPA proposed to adopt these
same criteria in the regulatory definition
of significant violation in the -
pretreatment program. The Agency does
not believe that basing TRC values on
the removal efficiencies at the POTW is
a viable means to define significant
violations, since it would involve -
calculations by each POTW on its
removal efficiencies for many
pollutants. EPA does agree, however,
that the language hi the TRC would be
clearer if it specified for "each pollutant
parameter," and has accordingly
included such language in today's final
rule.
Three commenters believed that
criterion "C" of the proposed definition
would promote arbitrary and
.inconsistent implementation of the
definition and should be eliminated. A
separate commenter stated that this
criterion was inappropriate because the
determination of a significant violation
should be based on actual fact and not a
"belief that a discharge has caused
interference or pass-through. This
commenter recommended that we
change the wording of this criterion to
"has reason to believe." There was a
related concern from private industry
that the definition, as proposed, would
allow for arbitrary or indiscriminate
enforcement without providing for
adequate or meaningful legal recourse
on the part of the industrial user deemed
to be in significant violation of
pretreatment requirements. It was stated
that certain, of the criteria were
sufficiently vague as to penalize
dischargers without adequate warning
and without any opportunity for appeal.
EPA recognizes the need to base
allegations of violation on information
and not on simple belief. Today's final
definition therefore incorporates the
phrase "which the Control Authority
determines has caused, alone or in
combination with other discharges,
interference or pass through * * *"
instead of the language in the proposed
definition. For the same reason, the
Agency has also incorporated the
phrase "which the Control Authority
determines will'adversely affect the -
operation or implementation of the local
pretreatment program" in the last,
criterion for significant violation,
instead of "which the Control Authority
considers to be significant", as was
proposed. The Control Authority's
determination may include a technical
analysis documenting interference or
pass through or other appropriate
evidence which it deems sufficient. EPA
believes that the above changes
decrease the chance of arbitrary
judgments by Control Authorities.
One commenter stated that an
affirmative defense should be explicitly
included in the definition of significant
noncompliance. However, EPA does not
believe that POTWs should be burdened
with ascertaining which industrial users
may be eligible for an affirmative
defense under 40 GFR 403.5(a)(2) before
satisfying the publication requirement in
40 CFR 403.8(f)(2)(vii). Incorporating the
commenter's suggestion into the rule
could lead to protracted and ' .
; counterproductive efforts by POTWs if
they had to investigate the eligibility of
an industrial user for an affirmative
defense prior to publication. In addition,
where the eligibility for an affirmative
defense is unclear, this requirement
would leave POTWs uncertain about,
their obligations under 40 CFR
403.8(fJ(2)(vii). Since the listing of an
industrial user in the newspaper does
not involve an administrative penalty or
judicial action, eligibility for an
affirmative defense is unaffected by
such a listing, and such eligibility will be
determined during administrative
penalty or judicial enforcement
proceedings. Accordingly, today's rule
does not provide for the consideration of
eligibility for an affirmative defense in
determining whether an industrial user
is in significant noncompliance.
In response to the comment that the
industrial user is not provided with
adequate or meaningful legal recourse,
EPA believes that Control Authorities
will not arbitrarily list industrial users
as being in significant violation of
pretreatment requirements. The Control
Authority is most likely to base this
decision on a reasoned professional
judgment in cases where there is
discretion provided to the POTW.
Three commenters stated that the
POTW should develop its own criteria
for what is considered significant
because it was believed that the POTW
is in the best position to determine what
violations cause the greatest damage to
the treatment works. These commenters •
suggested that EPA provide support by
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Federal Register /Vol. 55, No.142 / Tuesday* July 24.1990 /'Rufeita^a tCeg^latieis
maintaining its current criteria in ,., ,
guidance. One commenter was .
concerned that the Agency be very
careful not to foster activities which _
might inhibit relations between the
POTW and its industrial users. If the
POTW then fails to follow its criteria* it
would be liable to enforce action by the
Approval Authority. In response, EPA
points out that both the proposal and
today's rule allow,POTWs discretion to
list any violations they consider
significant. Today's rule establishes only
minimum requirements, and should not
affect relations between POTWs and
then1 industrial users.
One commenter requested
clarification regarding whether proposed
criterion G, "failure to accurately report
noncompliance", included only willful
failures or any failures to report.
The general pretreatment regulations
specify the signatory requirements for
reports submitted by industrial users to
the Control Authority. This requirement
is designed to provide accountability on
,the part of the industrial user for the ,
contents of any report, including
required'reports of noncompliahee..Ih
signing the report, the person so signing
has confirmed that the report is V ,
complete arid accurate in all respects.
Any failure to report accurately is
sufficient justification to list the
industrial user as a significant violator.
As noted above, the Agency's 1986 .
guidance on. this subject referred to .
"significant noncompliance" rather than,
"significant violation'* (the term used in
the November 23,1988 proposal). Since
that time EPA has directed Control
Authorities and Approval Authorities to
use the "significant noncompliance"
, criteria in determining appropriate
responses to industrial user
pretreatment violations. Thisierm has
been employed in EPA workshops and
seminars- and is also used as a basis for
tracking industrial user noncompliance •
in the Pretreatment Permits Enforcement
Tracking Systems (PPETs), a computer
system which assists the Agency in
overseeing pretreatment program
implementation. For the sake of program
consistency, today's regulation therefore
refers to "significant noncompliance".
c. Today's rule. Today's rule provides
that an industrial user is in significant
noncompliance if its violations meet one
or more of the following criteria: ;
• Chronic violations ofwastewater
discharge limits, defined as those in
which sixty-six percent or more of all of
the measurements taken during a six-
month period exceed (by any
magnitude) the daily maximum limit or
the average limit for the same pollutant
parameter; ;
• Technical review criteria (TRC)
violations, defined as those in which
thirty-three percent or more of all of the
measurements for each pollutant
parameter- taken during a six-month
period equal or exceed the product of
the, daily average maximum limit or the
average limit times the applicable TRC •
(TRC== 1.4 for BOD. TSS, fats, oil, and
grease, and 1.2 for all other pollutants
exceptpH); •
« Any other violation of a
pretreatment effluent limit (daily
maximum or longer-term average) that
the Control Authority determines has :
caused, alone or in, combination with
other discharges, interference or pass
through (including endangering the
health of POTW personnel or the -.".'
general public);
• Any discharge of a pollutant that
has caused imminent endangennent to
human health, welfare or to the
environment or has resulted iii the
POTW's exercise of its emergency
authority under paragraph (f)(l)(vi)(B} of
this section to halt or prevent such a
discharge; . '
.•" Failure to meet, within 90 days after
the scheduled date, a compliance
schedule milestone contained in a local
control mechanism or enforcement -
order, for starting construction,"
completing construction, or attaining
.final compliance; .-•-..
« Failure to provide, within 30 days
after the due date, required reports such.
as baseline monitoring reports, 90-day
' compliance reports,, periodic self-
, monitoring reports, and reports oh :
"compliance with compliance schedules;
« Failure to accurately report
noncompliance;, or .
» Any other violation or group of
violations which the Control Authority
determines will adversely affect the
operation or implementation of the local
pretreatment program, .'.'• "..'-'-.
6. Reporting Requirements, for
Significant IndustrialUsers. (40 CFR V
403.12(h)}
a. Proposed rule. 40 CFR 403.12
describes the reporijfthat industrial
users must submit to their Control
Authorities. To demonstrate continued
compliance with pretreatment ?
standards, industrial users subject to ,
categorical standards must submit seimV
annual reports that include effluent
. monitoring data takenduring the
reporting period, as provided ur40 CFR
403;12(e). The existing regulations
provide that Control Authorities must
'. require appropriate reporting from those
industrial users with discharges hot-
subject to categorical standards.
However* the regulations do not specify
a minimum frequency for.reporting fay
noncategorical industrial users to the
Control Authority regarding their
compliance with applicable
pretreatment requirements.
To provide for more effective .
implementation of the existing
requirements and; to ensure that this
reporting is carried out regularly, EPA
proposed on November 23,1988 to
revise r» CFR 403.12(h) to require that
all^significant industrial users (as
defined under proposed 40 CFR 403.3(u)}
submit to their Control Authorities, at
least twice a year, a description of the
nature, concentration, and flow of
pollutsints selected for such reporting by
the Control Authority. In addition, the
proposal would require all significant
industrial users to base their reports on
data obtained through appropriate .
sampling and analysis performed during
the peifiod covered by tiie report. ;
Contrcil Authorities may require more •
frequent monitoring as appropriate.
Tlie Agency solicited commeats on
the proposed twice-yearly reporting
frequency, on limiting the reporting
requirements to significant industrial
users, land on whether to require
significant industrial users to sample for
certaiii compounds, such as the RCRA '
' appemdix VIII hazardous constituents.
b. Response to comments. The Agency
received many comments on the
-•- proposied rule from States, POTWs,
environmental groups, and industry. A
majority of the commenters favored the
proposal to require significant industrial
. users to report with the same frequency
as categorical industrial users.
A few of the commenters expressed .'
concern that the rule would require
dupliclktive reporting for categorical
industrial users. The assumption was
' that this provision would require
categorical, industrial users to report
more ttfjten than is currently required.
'_ This was not EPA's intent in the
proposial, is indicated by the title of
proposied 40 CFR 403.12(h)—"Reporting
Requirements for Industrial Users Not' ""
Subjeci to Categorical Standards".
'Today's, rule clarifies this intent by
referring in. 40 CFR 403,12^) to
"signjjicant noncategorical? industrial •
"
A few other commenters stated that
the ciCTeht reporting requirements Sunder
40 CFIjl 403.12(h) were sufficient and
allowed for necessary flexibility in
establishing reporting requirements for
non-categorical industrial users. There
was a concern that the current proposal
'would; restrict that flexibility. These
commenteKs believed that the current
regulation is more suitable in dealing
with the highly variable group of
nbncategorical discharges.
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30126 Federal Register / Vol. 55,
A
24, 1990 /Rules and Regulatlo as
. The Agency believes that the
reporting requirements for all significant
industrial users, including categorical
and non-categorical users, should
generally be the same. Since
noncalegorical significant industrial
users are also likely contributors of
toxic and hazardous pollutants to
POTWs, EPA sees no reason for less
frequent reporting for this group of
dischargers. With respect to POTW
flexibility, the Agency emphasizes that
today's rule establishes only what it
believes to be the minimum acceptable
frequency for sampling and reporting.
POTWs are free to require additional
sampling and reporting as frequently as
Is necessary for a particular discharger.
EPA believes that these requirements
will give POTWs much more accurate
knowledge of non-categorical wastes
entering their treatment and collection
systems. This knowledge is particularly
important because many toxic and
hazardous pollutants are not covered by
categorical standards. EPA also believes
that establishing minimum monitoring
frequencies is the only way to ensure
that the samples submitted to the POTW
are representative and up to date. In
order to help ensure that sampling is
conducted once every six months
Instead of twice in one month (as the
proposed rule would technically have
allowed), the Agency is today requiring
sampling reports to be submitted "at
least once every six months on dates
specified by the Control Authority",
Instead of "at least twice a year" as was
proposed.
Two commenters stated a belief that
POTW monitoring should be specified
as an acceptable alternative in lieu of
industrial user monitoring, as is
currently stated in 40 CFR 403.12(g).
Since the intent of the regulation is to
provide parity between categorical and
significant non-categorical dischargers,
EPA has amended 40 CFR 403.12(h] to
specify that POTW monitoring is
acceptable in lieu of industrial user self-
monitoring.
With respect to requiring significant
industrial users to sample for certain
compounds or classes of compounds
(such as RCRA appendix VIII hazardous
constituents), there was almost
universal opposition to this suggestion
from the commenters. EPA does not
believe that monitoring for these
constituents is necessary on a routine
basis to prevent pass through or
interference. POTWs may require an
Industrial user to monitor for any or all
of these constituents if appropriate on
an individual basis. Therefore, this
requirement Is not part of today's rule.
1 lowever, EPA has added a requirement
to 40 CFR 403.8(f)(l)(iii) that any
pollutants required to be monitored
must be identified in the individual
control mechanism issued to the
significant industrial user.
c. Today's rule. Today's rule requires
noncategorical significant industrial
users to submit to the Control Authority
at least once every six months (on dates
specified by the Control Authority) a
description of the nature, concentration,
and flow of the pollutants required to be
reported by the Control Authority. The
reports shall be based on sampling and
analysis performed in the period- •
covered by the report, and, where
possible, performed in accordance with
the techniques described in 40 CFR part
136. The sampling and analysis may be
performed by the Control Authority in
lieu of the significant noncategorical
industrial user.
H. Miscellaneous Amendments
In addition to the substantive
regulatory changes proposed on
November 23,1988, EPA also proposed
to clarify certain of the general
pretreatment regulations. These
proposed non-substantive revisions are
discussed below.
1. Local Limits Development and
Enforcement
a. Proposed change. 40 CFR 403.5(c)
provides that POTWs "developing" ~
pretreatment programs must develop
and enforce specific limits to implement
the general and specific discharge '
prohibitions. In order to clarify that
POTWs with already approved
pretreatment programs must also
develop and enforce local limits, EPA
proposed to revise 40 CFR 403.5(c) to
provide that POTWs shall continue to
develop and enforce appropriate local
limits after developing an approved
pretreatment program.
b. Response to comments. No
significant comments were received on
this proposed revision.
c. Today's rule. Today's rule revises,
40 CFR 403.5(c)(l) to provide that
POTWs with approved pretreatment
programs shall continue after
pretreatment program submission and
approval to develop local limits as
necessary and effectively enforce such
limits.
2. EPA Enforcement Action
a. Proposed change. 40 CFR 403.5(e)
summarizes procedures that EPA
follows to bring certain enforcement
actions against an industrial user that
has caused interference or pass through
at a POTW, i.e., give the POTW 30 days
notice to initiate its own enforcement
action. However, 40 CFR 403.5(e) may be
misleading in not stating that this notice
requirement only applies to federal
enforcement under section 309(f) of the
Act and not to State or other federal
, enforcement actions. In order to avoid
misunderstanding, the Agency proposed
to revise the title of 40 CFR 403.5(e) to
indicate that these notice procedures
only apply to actions brought under
section 309(fJ of the Act.
b. Response to comments. No
significant comments were received on
this proposed revision. EPA notes that in
addition to the above-mentioned title,
the text of 40 CFR 403.5(e) is also
misleading in that it refers to NPDES
States in the context of enforcement
actions. Since this provision is intended
to apply only to actions brought under
section 309(f) of the Act, EPA has
deleted all references to NPDES States
from 40 CFR 403.5(e).
c. Today's rule. The title of 40 CFR
403.5(e) has been changed to read "EPA
enforcement actions under section 309(f)
of the Clean Water Act", and the text of
40 CFR 403.5(e) has been revised to
delete all references to NP.DES States.
3. National Pretreatment Standards:
Categorical Standards
a. Proposed change. 40 CFR 403.6
provides that categorical pretreatment
standards, unless specifically noted
otherwise, shall be in addition to the
general prohibitions established in 40
CFR 403.5. There was an unintentional
omission from this provision of a
reference to the specific discharge
prohibitions. In order to rectify this
omission, the Agency proposed to revise
40 CFR 403.6 to add that national
- pretreatment standards, unless
specifically noted otherwise, shall be in
addition to all prohibitions and limits
established under 40 CFR 403.5(c).
b. Response to comments. No
significant comments were received on
this proposed revision. The Agency has
noted, however, that the proposed
modification could be interpreted as
being in conflict with requirements in
part 403, other than the general and
specific prohibitions, that apply to
categorical dischargers. Since this was
not the Agency's intent, EPA is today
clarifying in 40 CFR 403.6 that
categorical industrial users must comply
with all applicable pretreatment
standards and requirements set forth in
part 403, as well as national categorical
pretreatment standards.
c. Today's rule. Today's rule revises
40 CFR 403.6 to provide that categorical
industrial users must comply with all
applicable general pretreatment
standards and requirements set forth in
40 CFR part 403.
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Federal Register / VoL'sk jfoT ffi-'/'f^lgffi/ffiilfe. J
4. POTW Pretreatment Program
Requirements: Implementation -•"•'..-.-.
a. Proposed change. 40 CFR 403.8[f}
establishes the requirements that a
POTW pretreatment program must
satisfy. Section 403.8[f)[lJ provides that
a POTW must have the legal authority
which enables it to deny, condition and.
control pollutant contributions, require
compliance by industrial users, conduct
inspections of industrial users, and
perform other essential attributes of a
pretreatment program. The rule doeanot
specifically state that POTWs must
implement these procedures, although
this has been EPA's consistent ;
interpretation of the rule. To avoidany
possible misunderstanding, the Agency
proposed to revise the introductory
sentence of 40 CFR403.8[f) to state that
"a POTW Pretreatment Program shall be
developed andimplemented to meet the
following requirements.". EPA also
proposed to amend the title of 40 CFR
403.6 to read "POTW Pretreatment
Programs: Development and
Implementation.}^ POTW" [emphasis.
addedj.
b. Response to comments;. Several
commenters specifically endorsed the
proposed changes to 40 CFR 403.8(f)
regarding implementation of approved
pretreatment programs, stating that the
proposed language clarified an
important requirement. To further clarify
this requirement, the introductory
language to 40 CFR 403.8[fj has been
changed from the proposal to read: "a
POTW pretreatment program must be
based on the following legal authority .
and include the following procedures.
These authorities and procedures shall
at all times be fully and effectively
exercised and implemented".
c.'Today's rule. Today's rule amends
the title of 40 CFR 403.8 to read: "POTW
Pretreatment Program Requirements:
Development and Implementation by
POTW". The introductory paragraph to
40 CFR 403.8(fJ now provides that .
POTW pretreatment programs must be
based on legal authorities and
procedures which shall at all times be
fully and effectively exercised and
implemented. . .
5. Development and Submission of
NPDES State Pretreatment Programs
a. Proposed change. 40 CFR 403.10(e}
states that "the EPA shall * * * apply
and enforce Pretreatment Standards and
Requirements until the necessary
implementing action is taken by the
State." This sentence might give the
wrong impression that the Agency will
cease to enforce pretreatment
requirements when a State has received
program approval. Since this is not the
case, EPA proposed to delete this
sentence from 40 CFR 403.10. ;
fa. Response to comments. No
significant comments were received on
this proposed revision. .
c. Today's rale; Today's rule deletes
the first sentence of 40 CFR 403.10(c}.
6. Administrative Penalties Against
Industrial Users •. . ;'- , -.,-..
a. Proposed mle. The sepond to last
sentence in 40 CFR 403.8(f)El]fvi)(B)
states that "the Approval Authority
shall have authority to seek judicial
relief for noneompBance by Industrial
Users when the POTW has acted to
seek such relief but has sought-a penalty
which the Approval Authority finds to ™
be insufficient [emphasis added]". This
provision could arguably be read to
preclude the Agency From seeking
administrative penalties in sach :
instances. In order to clarify that EPA or
a State Approval Authority may use any
of their enforcement authorities in .
instances where a POTW has sought
relief for industrial user noncompliance
that the Approval Authority finds to be
insufficient, the Agency proposed to
revise 40 CER403^fJ(l}[vij(B) to
provide that the Approval Authority
shall have the authority to seek judicial
relief and may also seek'administrative
relief when the POIW has acted to seek
- such relief but has sought a monetary
penalty which the Approval Authority
finds to be insufficient/
b. Response to comments. Some
commenters did not support this
proposed revision. These commenters
believed that the Control Authority was
the only proper entity to establish >
monetary penalties for discharges under
its jurisdiction. One commenter pointed
out that state and local ordinances limit
most POTWs in the fines that they can
levy. This commenter also stated that
the proposed change would encourage
industrial users to attempt to deal
directly with the Approval Authority in
cases of violation, bypassing the POTW.
The commenters appear to have been
confused about the extent of the
Approval Authority's existing authority
, to levy fines against industrial users
when the POTW has sought an.
insufficient monetary penalty. Under the
authority of sections 309(b] and 309[d) of
the Clean Water Act, EPA has always
been able to seek a judicial penalty
against noncomplying industrial users
when the POTW has sought an
insufficient monetary penalty, including
instances where the insufficiency was
due to State or local limitations on fines
that could be levied. The proposed
amendments merely clarified that EPA
may now seek administrative penalties
as well/under the authority of section
309fe) of the Water Quality Act of 1987. ~
It is clear that Congress intended to give
the AdijuiiistrafoE-the authority to seek
Judicial or administrative penalties
direc,tlyLaga"?st noncompiying industrial
users. ,' v . • •: ... '•
c. Today's rule. Today's rule revises
40 CFR ;MJ3.8[f][l}fvi)CB} to provide that
the Approval Authority shall have the
authori% to seek judicial relief but also
may use administrative penalty ....-.•
authority when the POTW has sought a
monetarypenalty which the Approval
Authority finds to be insufficient. ,
7. Provisions Governing Fraud and False
Statements
a. Proposed change. 40 CFR 403.12[n)
regardmg fraud and false: statement*
ineorre«;2y states that certain reporting
'requirements are subject to the
provisions of section 309[c)(2} of the
Clean Water Act. The reference should
have belen to sections 309(e): (4) .and [6}
of the A;ctt as amended. EPA therefore _
proposeid to revise 40 CFR 403.12(n}
accordingly.
b. Response to comments. No ...•.'
significimt comments were received on
this proposed revision. To further clarify
the existing requirements, the language
of 40 C1[R 4Q3.12(n} has been changed
from this proposal to read:
*-. * * the reports and other documents
required; Jo be submitted or maintained under
this section shall be subject to: 1) the
pro visions of 18 U.S.G. section 1001 relating
to fraud and false statements; 2} the
provisions of section 309(c}£4) of the Act, as
amendeil, governing false statements,
representation or certification; and 3} the
provisioffls of section, 399{c}[8} regarding
responsible corporate officers. --../-
c. Today's rale. Today's rule revises
40 CFRj403[ny to clarify that reports and
other 'diocumehts submitted under 40
CFR 403.12 are subject to sections
309(c}[4) and 309fc)[a) of the Clean .
Water Act.
HI. Executive Order 12291
Uhde|r Executive Order 12291, EPA
.must judge whether a regulation is
"Major" and therefore subject to the ,
requirement of Regulatory Impact
Analysis. Major rules are those which
imposei a cost on the economy of $100
million'or more annually or have certain
other economic impacts. The Agency
completed a general estimate of the
annual costs to industrial users and
POTWs of the revisions proposed on '
November 23,1988, wMch is included in
the administrative record for this -,. _
ralemaking, and which showed
compliance costs at well below $100
minion. Today's rule contains certain
changes from the proposalwhich
-------
30128
Regulations
increase costs to POTWs and industrial
users. For example, the cost for the
notification requirements has risen from
approximately $250,000 in the proposed •
rule to approximately $800,000 in the
final rule. Similarly, the cost for POTW
inspections and sampling of significant
industrial users has increased from
approximately $1,100,000 in the
proposed rule to $10,000,000 in the final,
rule. However, other changes from the
proposal decrease such costs to POTWs
and industrial users. For example, the
cost of toxicity testing by POTWs has
decreased from approximately
$7,500,000 in the proposed rule to
approximately $1,200,000in the final
rule, and the cost of technology-based
limits for CWTs has decreased from
approximately $21.000,000 in the
proposed rule to no cost in the final rule.
These changes are detailed in the
Information Collection Request (ICR) for
this rule submitted to the Office of
Management and Budget COMB)
pursuant to the Paperwork Reduction
Act. Since the net effect of these
changes does not cause the annual
economic impact of today's rule to
approach $100 million, this rule does not
meet the criteria of a major rule as set
forth in section l(b) of the Executive
Order. This regulation has been
approved by OMB pursuant to Executive
Order 12291.
IV, Regulatory Flexibility Analysis
The Regulatory Flexibility Act, 5
U.S.C. 601 etseq., requires EPA and
other agencies to prepare an initial
regulatory flexibility analysis for all
proposed regulations that have a
significant impact on a substantial
number of small entities. No regulatory
flexibility analysis is required, however,
where the head of the Agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. Most of the
amendments promulgated today will
affect larger POTWs [those with
approved pretreatment programs and
design influent flow of more than one
million gallons per day) and significant
industrial users, who are less likely than
the average industrial user to be a small
business. Those requirements which
affect small industrial users do not
impose significant costs. I hereby
certify, pursuant to 5 U.S.C. 605(b) that
this regulation will not have a
significant impact on a substantial
number of small entities.
V. Paperwork Reduction Act
The information collection
requirements contained in this rule were
approved by the Office of Management
and Budget (OMB) under the provisions
of the Paperwork Reduction Act, 44
U.S.C. 3501 etseq.
Public reporting burden for this
collection of information is estimated to
average 49 hours per response for
POTWs and 6 hours per response for
industrial users, including time for
reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed, and
completing and reviewing the collection
of information.
Send comments regarding the burden
estimate or any other aspect of this
collection of information, including
suggestions for reducing this burden, to
Chief, Information Policy Branch, PM-
223, U.S. Environmental Protection
Agency, 401M St., SW., Washington, DC
20460; and to the Office of Information
and Regulatory Affairs, Office of
Management and Budget, Washington,
DC 20503, marked "Attention: Desk
Officer for EPA".
List of Subjects
40 CFR Part 122
Administrative practice and
procedure, Reporting and recordkeeping
requirements, Water pollution control,
Confidential business information.
40 CFR Part 403
Confidential business information,
Reporting and recordkeeping
requirements, Waste treatment and
disposal, Water pollution Control.
Dated: July 3,1990.
William K. Reffly,
Administrator.
40 CFR chapter I is amended as
follows:
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS: THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
1. The authority citation for part 122 ,
continues to read as follows:
Authority: Clean Water Act, 33 U.S.C. 1251
etseq.
Z. Section 122.21 is amended by
adding paragraphs O')(l). Q)(2), (j)(3), and
Q)(4) to read as follows:
§ 122.21 Application for 3 permit,
(application to State programs, see
§123.25). -
(1) The following POTWs shall
provide the results of valid whole
effluent biological toxicity testing to the
Director:
(i) All POTWs with design influent
flows equal to or greater than one
million gallons per day;
pi) All POTWs with approved
pretreatment programs or POTWs
required to develop a pretreatment
program; *
(2) In addition to the POTWs listed in
paragraph (j)(l) of this section, the
Director may require otlier POTWs to
submit ,the results of toxicity tests with
their permit applications, based on
consideration of the following factors:
p) The variability of the pollutants or
pollutant parameters in the POTW
effluent (based on chemical-specific
information, the type of treatment
facility, and types of industrial
contributors);
pi) The dilution of the effluent in the
receiving water (ratio of effluent flow to
receiving stream flow);
pii) Existing controls on point or
nonpoint sources, including total
maximum daily load calculations for the
waterbody segment and the relative
contribution of the POTW;
(iv) Receiving stream characteristics,
including possible or known water
quality impairment, and whether the
POTW discharges to a coastal water, '
one of the Great Lakes, or a water
designated as an outstanding natural
resource; or
(v) Other considerations (including
but not limited to the history of toxic
impact and compliance problems at the
POTW), which the Director determines
could cause or contribute to adverse
water quality impacts.
(3) For POTWs required under .
paragraph (j)(l) or Q)(2) of this section to
conduct toxicity testing, POTWs shall
use EPA's methods or other established
protocols which are scientifically
defensible and sufficiently sensitive to
detect aquatic toxicity. Such testing
must have been conducted since the last
NPDES permit reissuance or permit
modification under 40 CFR 122.62(a),
whichever occurred later. - :
(4) All POTWs with approved -
pretreatment programs shall provide the
following information to the Director: a
written technical evaluation of the need
to revise local limits under 40 CFR
403.5(c)(l).
PART 403—GENERAL
PRETREATMENT REGULATIONS FOR
EXISTING AND NEW SOURCES
i. The authority citation for part 403
continues to read as follows:
Authority: Sec. 54[c)(2) of the Clean Water
Act of 1977 (Pub. I;; 95-217), sees. 204fb)fll[C],
208{b)(2)(C)(m), 301(b)(l)(A)Cii),
301(b)(2)(A)(u), 3dl(bK2}(C), 301(h)(5),
301(i}[2). 304 (e) and (g), 307,308,309,402(b),
405 and 501(a) of the Federal Water Pollution
Control Act (Pub. L. 92-500), as amended by
the Clean Water Act of 1977 and the Water
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199°
.
aiiaL Regulations
30129
Quality Act of 1987; sees. 2002 and 3018[d] of
the Solid Waste Disposal Act as amended.
2. Section 403.3 is amended by
redesignating existing paragraph (tj as
paragraph [u] and adding new
paragraph (t} to read as follows:
§403.3 Definitions.
# * * * *
(t) Significant Industrial User. (1)
Except as provided in paragraph (t)(2) of
this section, the term Significant
Industrial User means:
(i) All industrial users subject to •-..
Categorical Pretreatment Standards
under 40 CFR 403.6 and 40 CFR Chapter
I, Subchapter N; and : •'"'.-
(u) Any other industrial user.that:
discharges an average of 25,000 gallons
per day or more of process wastewater
to the POTW (excluding sanitary,
noncontact cooling and boiler
blowdown wastewater}; contributes a
process wastestream which makes up 5
percent or more of the average dry
weather hydraulic or organic capacity of
the POTW treatment plant; or ia
designated as such by the Control
Authority as defined in 40 CFR 403.12(a]
on the basis that the industrial user has .
a reasonable potential for adversely ""'
affecting the POTW's operation or for
violating any pretreatment standard or
requirement (in accordance with 40 CFR
403.8(f)(6)). .
(2) Upon a finding that an industrial
user meeting the criteria in paragraph
(t)(l)(ii) of this section has no
reasonable potential lor adversely <•.--"
affecting thePOTW'a operation or for
violating any pretreatment standard or,
requirement, the Control Authority (as
defined hi 40 CFR 403.12(a))i may at any
time, on its own initiative or in response
to a petition received from an industrial
user or POTW, and in accordance with
40 CFR 403.8(11(6), determine that, such
industrial user is not a significant
industrialuser.
* * * * .. *
3. Section 403.5 is amended by
revising paragraphs (a}{2) introductory
text, (b)(l), anif (e), adding text to the
end of (c)(l}, ana adding new
paragraphs (b)(6), (b)(7), and (b}(8) to
read as follows:
§ 403.5 National Pretreatment Standards:
Prohibited Discharges.
(a) * • -.?;
(2) Affirmative Defenses. A User shall
have an affirmative defense in any
action brought against it alleging-^
violation of the general prohibitions
established in paragraph (a)(l) of this
section and the specific prohibitions in
paragraphs (b}(3), (b)(4), (b)(5), (b}(6>,
and(b){7jof this section where the User
can demonstrate that: - ;
.. .
(1) Pollutants which create a fire or
explosion hazard in the POTW, :
including, but not limited to,
wastestreams with a closed cup
flashpoint of less than 140 degrees
Farenheit or 60 degrees Centigrade using
the test methods specified in 40 CFR
261.22.
*- - * * * *• - * •
(6) Petroleum oil, nonbiodegradable
cutting oil, or products of mineral oil
origin in amounts that will cause
interference or pass through; ,
(7) Pollutants which result in the ,
presence of toxic gases, vapors, or
fumes within the POTW in a quantity
that may cause acute worker health and
safety problems;
(8) Any trucked or hauled pollutants,
except at discharge points designated by
thePOTW. :•"-..
(c}> *;*:. -•-.- - .. .-.-• .. .-•• • =
(1) * * * Each POTW with, an
approved pretreatment program shall
continue to develop these limits as
" necessary and effectively enforce such
limits. .
* * „ •*. , .. *-,"'*' " -•
(e) EPA enforcement .actions under
section 309(fJ of the Clean Water Act.
If, within. 30 days after notice of . an
Interference or Pass Through violation
has been sent by EPA to the POTW, and.
to persons or groups who have
_ requested such notice, the POTW fails
to commence appropriate enforcement
action to correct the violation, EPA may
take appropriate enforcement action
under the authority provided in section
309(f) of the Glean Water Act
4. Section 403.6 is amended by
revising the introductory text to read as
follows:. /, •
§403.6 National Pretreatment Standards:
Categorical Standards.
National pretreatment standards
specifying quantities or concentrations ;
of pollutants or pollutant properties
which may be discharged to a POTW by
existing or new industrial users in
specific industrial subcategories will be
established as separate regulations •
under the appropriate subpart of 40 CER
chapter I, Subchapter N. These
standards, unless specifically noted
otherwise, shall be in addition to all
applicable pretreatment standards and
requirements set forth in this part.
* . . * * * . > *
5. Section .403.8 is amended by
revising the section heading,, the
introductory text to paragraph (f),
paragraphs (f)(l)(iii), (f)(l)(vi)(B),
(f3(2)(yl, and ff)(2)(vii), adding text to the
end of ffj(2)(iii}, and adding new. ^
paragraphs (f](5J and (f}(6) to read as
follow;s: '•.' : ..'•'.
§ 403.8; Pratreatmsnt Program
Requijsmenis: Deve'.opment and
ImplsmenSation by POTW.
• *
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80130~
/•
•—•'•I --•,', , • ,
I Rules and Regulations
orders issued by the POTW; any
requirements set forth in individual
control mechanisms issued by the
POTW: or any reporting requirements
imposed by the POTW or these
regulations. The POTW shall have
authority and procedures (after informal
notice to the discharger) immediately
and effectively to halt or prevent any
discharge of pollutants to the POTW
which reasonably appears to present an
imminent endangerment to the health or
welfare of persons. The POTW shall
also have authority and procedures
(which shall include notice to the
affected industrial users and an
opportunity to respond) to halt or
prevent any discharge to the POTW
which presents or may present an
endangerment to the environment or •
which threatens to interfere with the
operation of the POTW. The Approval
Authority shall have authority to seek
Judicial relief and may also use
administrative penalty authority when
the POTW has sought a monetary
penally which the Approval Authority
believes to be insufficient
*****
(2) * * *
(Hi) * * * Within 30 days of approval
pursuant to 40 CFR 403.8{fJ(6), of a list of
significant industrial users, notify each
significant industrial user of its status as
such and of all requirements applicable
to it as a result of such status.
*****
(v) Randomly sample and analyze the
effluent from industrial users and
conduct surveillance activities in order
to identify, independent of information
supplied by industrial users, occasional
and continuing noncompliance with
pretreatment standards. Inspect and
sample the effluent from each
Significant Industrial User at least once
a year. Evaluate, at least once every two
yaars, whether each such Significant
Industrial User needs a plan to control
slug discharges. For purposes of this
subsection, a slug discharge is any
discharge of a non-routine, episodic
nature, including but not limited to an
accidental spill or a non-customary
batch discharge. The results of such
activities shall be available to the
Approval Authority upon request. If the
POTW decides that a slug control plan
is needed, the plan shall contain, at a
minimum, the following elements:
(A) Description of discharge practices,
including non-routine batch discharges;
(B) Description of stored chemicals;
(C) Procedures for immediately
notifying the POTW of slug discharges,
including any discharge that would
violate a prohibition under 40 CFR
403.5(b), with procedures for follow-up
written notification within five days;
(D) If necessary, procedures to
prevent adverse impact from accidental
spills, including inspection and
maintenance of storage areas, handling
and transfer of materials, loading and
unloading operations, control of plant
site run-off, worker training, building of
containment structures or equipment,
measures for containing toxic organic
pollutants (including solvents), and/or
measures and equipment for emergency
response;
* * * * *
(vii) Comply with the public
participation requirements of 40 CFR
part 25 in the enforcement of national
pretreatment standards. These
procedures shall include provision for at.
least annual public notification, hi the
largest daily newspaper published in the
municipality in which the POTW is
located, of industrial users which, at any
time during the previous twelve months,
were in significant noncompliance with
applicable pretreatment requirements.
For the purposes of this provision, an
industrial user is in significant
noncompliance if its violation meets one
or more of the following criteria:
(A) Chronic violations of wastewater
discharge limits, defined here as those in.
which sixty-six percent or more of all of
the measurements taken during a six- ,
month period exceed (by any
magnitude) the daily maximum limit or
the average limit for the same pollutant
parameter;
(B) Technical Review Criteria (TRC)
violations, defined here as those in
which thirty-three percent or more of all
of the measurements for each pollutant
parameter taken during a Six-month
period equal or exceed the product of
the daily maximum limit or the average
limit multiplied by the applicable TRC
(TRC=1.4 for BOD, TSS, fats, oil, and
grease, and 1.2 for all other pollutants
except pH.
(C) Any other violation of a
pretreatment effluent limit (daily
maximum or longer-term average) that
the Control Authority determines has
caused, alone or in combination with
other discharges, interference or pass
through (including endangering the
health of POTW personnel or the
general public); ' -: .
(D) Any discharge of a pollutant that
has caused imminent endangerment to
human health, welfare or to the
environment or has resulted in the
POTW's exercise of its emergency
authority under paragraph (f)(lj(vi)(B) of
this section to halt or prevent such a
discharge; . • •
(E) Failure to meet, within 90 days
after the schedule date,'a compliance < '
schedule milestone'contained in a local
control mechanism or enforcement order
for starting construction, completing
construction, 'or attaining final
compliance; ,
(F) Failure to provide, within 30 days
after the due date, required reports such
as baseline monitoring reports, 90-day
compliance reports, periodic self- ,
monitoring reports, and reports on ,
compliance with compliance schedules;
(G) Failure to accurately report
noncompliance; '
(H) Any other violation or group of ,
violations which the Control Authority
determines will adversely affect the
operation or implementation of the local
pretreatment program.
* * : * * *
(5) The POTW shall develop and
implement an enforcement response
plan. This plan shall contain detailed
procedures indicating how a POTW will:
investigate arid respond to instances "of
industrial user noncompliance. The'plan
shall, at a minimum:
(i) Describe how the POTW will
investigate instances of noncompliance;
(ii) Describe the types of escalating
. enforcement responses the POTW will
take in response to all anticipated types
of industrial user Violations and the time
periods within which responses will
take place;
(iii) Identify (by title) the officiai(s)
responsible for each type of response;
(iv) Adequately reflect the POTW's
- primary responsibility to enforce all
applicable pretreatment requirements
and standards, as detailed hi 40 CFR
403.8 (f)(l) and (f)(2).
(6) The POTW shall prepare a list of
its industrial users meeting the criteria
in 40 CFR 403.3(t)(l). The list shall
identify the criteria in 40 CFR 403.3(t)(l)
applicable to each industrial user and,
for industrial users meeting the criteria
in 40 CFR 403.3(t)(l)(ii), shall also
indicate whether the POTW has-made a '
determination pursuant to 40 CFR
403.3(t)(2) that such industrial user
should not be considered a significant
industrial user. This list, and any '
subsequent modifications thereto, shall
be submitted to the Approval Authority
as a nonsubstantial program
modification pursuant to 40 CFR
403.18(b)(2). Discretionary designations
or de-designations by the Control
Authority shall be deemed to be
approved by the Approval Authority 90
days after submission of the list or
modifications thereto, unless the
Approval Authority determines that a •
modification is in fact a substantial
modification.
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,. 'No.-142.;•/ Tuesday, July 24,^990 /, Rutea..tod.-tega^tioa8-^v.; -30181^:
§403.10
8. Section 403.10 is amend
removing the first sentence in paragraph
(c). '-:,"•:•: ' :- ••"•; .:.-;-."•• . :
• 7. Section 403,12 is amended by - -
adding text to the end df paragraph (h)i
by revising paragraphs 0) and '(a), and
adding new paragraph (p] to lead as . ' ~
foliows: .;-.-. '.' ' \ ' .;.
§403.12 Reporting fs«3u!remant* for
POTWs and Industrial Users.
• * • * -~ * . * ' * ,' „,-'.,
• (h) * •*•.-*• Significant Noncategorical
Industrial Users shall submit to fee
Control Authority at least once every six
months fon dates specified by the ; •
Control Authority} a description of the
mture, concentration, and flow of the
," pollutants required to be reported by the
Control Authority. These reports shall
be based on sampling and analysis
performed in the period covered by the
report, and performed in accordance^
with the techniques described in 40 CFR
part 136 and amendments thereto.
Where 40 CFR part 136 does not contain
sampling or analytical techniques for the
pollutant in question, or where the
Administrator determines that the part
136 sampling and analytical techniques
are inappropriate for the pollutant in
question, sampling and analysis shall be
performed by using validated analytical
methods or any other applicable ,
sampling and analytical procedures,
,' including procedures suggested by the .-
POTW or other persons, approved by :
the Administrator;. This sampling and :
analysis may be performed by the ;
Control Authority in lieu of the
significant noncategorical industrial .•••
user. Where the POTW itself collects all
• the information required for the report,
the noncategorical significant industrial
user will not be required td. submit the
report/ ' . . '' •.'"." " .•'"
*.. -* * * * ..-..-
03 Notification of changed discharge.;,
All Industrial Users shall promptly -'.
notify the POTW in advance of any:_'
substantial change hi the volume or
character of pollutants in their ;
discharge, including thelisted or, .
characteristic hazardous wastes for
which the Industrial User has submitted.
. initial notification under 40 CFR
- 403,i2(p}.' •-" •'-.'.. "' "..':'•"',"
- * * *- * *
(n) Provisions Governing Fraud and
False Statements: The reports and other
documents required to be submitted or
maintained under this section shall be •
subject to: • ' . . :,.'-.
(1) The provisions of 18 U.S.C, section
1001 relating to fraud and false '..: ;• . • •
• statements; - '•.••'.••-•'• '••'•:-':'
(2) The provisions of sections S09{c]{4)
of the Act, as amended, governing falsa
statements, representation or ; , ,
certification; and V,
(3) The provisions of section 309(c)(63:
regarding responsible corporate officers.
(p](l) The todustrial User shall notify
the POTW, the EPA Regional Waste
Management Division Director, and •
State hazardous waste authorities in;
writing of any discharge into the POTW
of a substance, which, if otherwise
disposed of, would be a hazardous
waste under 40 CFR part 261. Such
, notification must include the name of
the hazardous waste as set forth in 40
CFR part 261, the EPA hazardous waste
number, and the type of discharge
(continuous, batch, or other). If fee
-Industrial User discharges more than lOQ
kilograms of such waste per calendar
month to the POTWi the notification
shall also contain the following
information to,the extent such
information is known and readily
available to the Industria.1 User: Ah
identification of the hazardous
constituents contained in the wastes, an
estimation of the mass and
concentration of such.constituents in the
wastestream discharged during that
calendar month, and an estimation of
the mass of constituents in the
wastestream expected to be discharged
during the following twelve months. All
notifications must take place within 180
days of the effective date of this rule.
Industrial users who commence
discharging after the effective date of
this rule shall provide the notification'no
later than 180 days after the discharge of
the listed or characteristic hazardous
waste. Any notification under this
paragraph need be submitted only once
for each hazardous waste discharged. ,.
However, notifications of changed
discharges must be submitted under 40
CFR 403.12 0). The notification
requirement in this section does not ,
apply to pollutants already reported
under the self-monitoring requirements
of 40CFR403.12 (b), (d), and(e).
(2) Dischargers are exempt from the
requirements of paragraph jp}(l) of this
section during a calendar month in
which they discharge no more than
fifteen kilograms of hazardous wastes,
unless the wastes are acute hazardous
was.tes as specified in 40 CFR 261.3Q(dJ
and 261.33(e). Discharge of more than
fifteen kilograms of non-acute
hazardous wastes in a calendar month,
or of any quantity of acute hazardous
wastes as specified in 40 CFR 261.30{d3
and 261.33(e), requires a one-time, ;
.notification.
Subsequent months during which the
Industrial User discharges more than
such qujmtities,:;pf any hazardous waste'.
do not rjsquire. additional notification, --;;;'
(3) M $ie .case ;of any new regulations
under se'ttioa 3001 of RCRA identifying:,
- additional characteristics of hazardous
waste 01; listing any additional. •:.'-•:- -..
substaniie. as a hazardous waste, the.
Industrial. User .must notify the P.QTW,
the EPAiRegional Waste Management. i*
Waste EiMsionDirector,,and State. • •
hazardd'118 waste authorities of the-
dischargie of such substance within 90,
days.of Ithe effective date of such -'-"'-.' .•
-regulations, ^-- ••'••• - "'-: • •.-•:.
(4) in Jthe case, of any notification- • :..
. made ujiider paragraph (plpf this •; - '••'
.section,ihe Industrial User shall certify ;
that it has a program m.place tp-'reduce .-..-
the volume an'd toxicity of hazardous , "\-
wastes ijenerated to the degree it has
determined to be economically practical;
Editoritd l^ots; TUs appendix will not ''. '
appear in. the Code of. Federal Regulations.
Appendk—Hazardous Wasia Authorities: •
Notifications jiB.dsi 40 CFR 403.12(p)
Region I , . -'.'-.."'••'. ' - , '
Director.jiWaste Sdanagement Divisioii, .„;
' .Enviroijm'enta! Prpteclioa Agency, John F. •
" Kennedy Bsiilding, Bpstoii.-Maasacbiasettis.
022)3 r '>. • ; ; - - - '•;.;'.'• \"; '.-.
Region E. . • . - ' "• . ' .
Director, 'Air ft Waste Management.pivisiohi •
EnviroamenJal Proteetibn Agency, 26 - • ..
Federal Plaza, New York,' New York 10278 :
Region A . '•/•''•. '' ' • ' •' ' '•"'
. Director,;jHazardou's Waste Management '• • -
Diviskia, EByiionmerital Protection Agency,
841 Chestnut Street, Philadelphia,
' '
Director,,iWaste:Maaagement Division, - .
Environmental Protection Agency,- 345 .'-.'..
'Conrtlnhd St N.E,, Atlanta, Georgia S0365 ? -
RegionV • . . •. ' ' ,.,-'.
' Director,; Waste Management Division, .;
Erivironmienta! Protection Agency, 230
South Bearlxsm Street, Chicago, Illinois
- 60604'1 ; .; •'• ,";•'-; .." ' '• /:.- "•
Region 1*1 -:; , ,' .' , ';
Pirectoriiliazardons Waste-Management ;•.
• Divisio'ii, Envlionniental Prbtectiioii "Agency, .
1445 'RbssfAvenue^Suite 1200, Dallas, -,- :-'.'
'Texas 7520,2.; -' '• ; " '. : . . ,':-;'-:-'''
-RegionVIf, ',.-,' ... '.-..-:-. -..•".-•
1 Director,! Waste Mafiagement Division, - .. '.
EnvirflpHi8nta!,Protectibn Agencyi 728 . :. - :
Minnesota Avenue, Kansas City, Kansas ..'-.
"
Region li7ZT.' . ..'. ' ,: "'---' ... - '-' ;
Director'rHazariioas Waste Management
- Division, Envirbnmental Protection Agency,
One Diehver Plac'e, S99 18th St., Suite 500, •
:DeaveT,.-Col0tadp 80202-3405 ••: ' , • . ,:/
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80132
Federal Reglster/VoL S5,
Director, Hazardous Waste Management
Division, Environmental Protection Agency,
1235 Mission Street, San Francisco,
California 04103
Res/on X
Director, Hazardous Waste Division,
Environmental Protection Agency, 1200 6th
Avenue, Seattle, Washington 93101
States
Alabama
Chief, Land Division, Alabama Department of
Environmental Management, 1751 Federal
Drive, Montgomery, Alabama 36130
Alaska
Chief, Solid and Hazardous Waste
Management Program, Division of
Environmental Quality, Department of
Environmental Conservation, 3200 Hospital
Drive, P.O. Box O, Juneau, Alaska 99811-
1800
Arizona
Assistant Director, Office of Waste and
Water Quality Management, Arizona
Department of Environmental Quality, 2005
N. Central Avenue, Room 304, Phoenix,
Arizona 85004
Arkansas
Chief, Hazardous Waste Division, Arkansas
Department of Pollution Control and
Technology, 8001 National Drive, P.O. Box
0583, Little Rock, Arkansas 72209
California
Chief, Deputy Executive Officer, California
Waste Management Board, 1020 9th Street/
Suito 300, Sacramento, California 85814
Colorado
Director, Waste Management Division,
Colorado Department of Health, 4210 E.
llth Avenue, Denver, Colorado 80220
Connecticut
Chief, Bureau of Waste Management,
Connecticut Department of Environmental
Protection, Hazardous Materials
Management Unit, 105 Capital Avenue,
Hartford, Connecticut 00106
Delaware
Director, Division of Air & Waste
Management, Department of Natural
Resources and Environmental Control, P.O.
Box 1401,89 King's Highway, Dover,
Delaware 19003
District of Colombia
Chtof, Pesticides and Hazardous Materials
Divlsion/Superfund, Department of
Consumer and Regulatory Affairs, 614 H
Street NW- Room 505, Washington, DC
20001
Florida
Director, Division of Waste Management,
Underground Storaga Tanks, Department of
Environmental Regulations, Twin Towers
Office Building, 2600 Blair Stone Road,
Tallahassee, Florida 32301
Georgia
Chief, Land Protection Branch, Industrial and
Hazardous Waste Management Program,
Floyd Towers East/Room 1154,205 Butler
Street, SB., Atlanta, Georgia 30334
Hawaii .
Manager, Solid and Hazardous Waste
Branch, Hawaii Department of Health,
Hazardous Waste Program, P.O. Box 3378,
Honolulu, Hawaii S8801
Idaho, Chief, Hazardous Materials Bureau,
Department of Health and Welfare, Idaho
State House, 450 W. State Street, Boise, Idaho
83720 " ;
Illinois
Manager, Illinois Environmental Protection
Agency, 2200 Churchill Road, P.O. Box
19276, Springfield, Illinois 62794-9276
Indiana -»
Assistant Director, Indiana Department of
Environmental Management, 105 S.
Meridian Street, P.O. Box 6015,
Indianapolis, Indiana 46225
Iowa
Chief, Air Quality and Solid Waste
Protection, Department of Water, Air, and
Waste Management, 900 East Grand
Avenue, Henry A. Wallace Building, Des
Moines, Iowa 50319-0034
Kansas
Director, Bureau of Waste Management,
Department of Health and Environment,
Forbes Field, Building 321, Topeka, Kansas
66820
Kentucky
Director, Division of Waste Management,
Department of Environmental Protection,
Cabinet for Natural Resources and
Environmental Protection, 18 Reilly Road,
Frankfort, Kentucky 40601
Louisiana
Assistant Secretary, Hazardous Waste
Division, Office of Solid Waste and
Hazardous Waste, Louisiana Department
of Environmental Quality, P.O. Box 44307,
N. Fourth Street, Baton Rouge, Louisiana
70804
Maine ' .
Director, Bureau of Solid Waste Management,
. Department of Environmental Protection,
State House #17, Augusta, Maine 04333 .
Maryland -
Director, Hazardous and Solid Waste
Management Administration, Maryland
Department of the Environment, 201 W.
Preston Street, room 212, Baltimore,
Maryland 21201
Massachusetts
Director, Division of Solid and Hazardous
Waste, Massachusetts Department of
Environmental Quality Engineering, One
Winter Street, 5th Floor, Boston,
Massachusetts 02103
Michigan
Chief, Technical Services Section, Waste
Management Division, Department of
Natural Resources, Box 30038, Lansing,
Michigan 48909
Minnesota
Director, Solid and Hazardous Waste
Division, Minnesota Pollution Control
Agency, 520 Lafayette Road, North, St.
Paul, Minnesota 55155
Mississippi
Director, Division of Solid Waste
Management, Bureau of Pollution Control,
Department of Natural Resources, P.O. Box
10385, Jackson, Mississippi 39209
Missouri
Director, Waste Management Program,
Department of Natural Resources, Jefferson
Building, 205 Jefferson Street [13th-14th
floors), P.O. Box 170, Jefferson City,
Missouri 65102 •
Montana . 4
Chief, Solid and Hazardous Waste Bureau,
Department of Health and Environmental
Sciences, Cogswell Building, Room B-201,
Helena, Montana 59620 "
Nebraska
Chief, Hazardous Waste Management
Section, Department of Environmental
Control, State House Station, P.O. Box
98477, Lincoln, Nebraska 68509
Nevada .
Director, Waste Management Program,
Division of Environmental Protection,
Department of Conservation and Natural
. Resources, Capitol Complex, 201 South Fall
Street, Carson City, Nevada 89710
New Hampshire '
Chief, Division of Public Health Services,
Office of Waste Management, Department
of Health and Welfare, Health and Welfare
Building, 6 Hazen Drive, Concord, New
Hampshire 03301
New Jersey
Assistant Commissioner, Division of HQ
Waste Management, Department of
Environmental Protection, 401 East State
Street, Trenton, New Jersey 08625
New Mexico
Chief, Groundwater and Hazardous Waste
Bureau, Environmental Improvement
Division, New Mexico Health and
Environment Department, P.O. Box 988,
Santa Fe, New Mexico 87504-0968
New York , :
Director, Division of Hazardous Substance
Regulation, Department of Environmental
Conservation, 50 Wolfe Road, Room 209,
Albany, New York 12233 • ,
North Carolina
Head, Solid and Hazardous Waste
Management Branch, Division of Health
Services, Department of Human Resources,
P.O. Box 2091, Raleigh. North Carolina
27602
North Dakota
Director, Division of Hazardous Waste
Management, Department of Health, 1200
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e, Room 302, Bismarck,
North Dakota 58502-5520
Ohio
Chief. Division of Solid and Hazardous
Watte Management. Ohio Environmental
Protection Agency. 1800 Watermark Drive,
P.O. Box 1049, Columbus. Ohio 43266-0149
Oklahoma
Chief, Waste Management Service.
Oklahoma Stale Department of Healta.
P.O Box 53551.1000 Northeast 10th Street
Oklahoma. Oklahoma 73152
Oregon
Director. Hazardous andSolid Waste •
Division, Department of Environmental
Quality. 811 Southwest 6th Avenue.
Portland. Oregon 97204
Pennsylvania
Director. Bureau of Waste Management,
Pennsylvania Department of ,
Environmental Resources. P.O. Box 2083 /
Fulton Building, Harrisburg, Pennsylvania
17120
Rhode Island
Director. Solid Waste Management Program,
Department of Environmental
^^•'SSSSSSS^
South Dakota . ..
Director. Office of Air Quality and Solid
Waste. Department of Water andNaturai
Resources 523 E. Capitol Foss Building,
( Room 416, Pierre, South DaJcota 57501
Tennessee ^
Director. Division of SoUd Waste _
Management. Tennessee Department of
"'Public Health. 701 Brpadwayr Customs
House, 4th Floor. Nashville, Tennessee
Texas
Director, Hazardous and Solid Waste
Division, Texas Water CommissMMvP.O,
Box 13087. Capitol Station, Austin. Texas
78711-3087-
Vermont
'Chief. Waste Management Division^ Agency
of Environmental Conservation, 103 South
Main Street. Waterbury, Vermont 05876
Virginia . ....-'
Executive Director. Division of TechmcaT
epartment of Waste
South Carolina
Chief. Bureau of Solid Waste Management.
Hazardous Waste Management,
Department of Health and Environmental
Control 2000 Bull Street. Columbia. South
Carolina 29201
e
101 North 14th Street, Richmond,
23219
Washington
Manager. Solid and Hazardous. Waste
Management Division Department of .
Ecology. Mail Stop PV-11 Qlympa,
Washington 98504 . • :
West Virginia
Chief, Waste Management Division, _
Department of Natural Resources, 1260
Greenbrier Street, Charleston, West
Virginia 25311
Wisconsin
"Director, Bureau of Solid Waste, Department
of Natural Resources, P.O. Box 7921. ...
Madison, Wisconsin 53707 ' • _. • ',
Wyoming '•• ' ' ^'- .- "^
Supervisor, Solid Waste Managemejit"" '
'' Program, Department of Enytfonmental
Quality, 122 West 25tb Street, Herschler
Building,.Cheyejmei Wyoming 82002
American Samoa ,'.
DirectorrSolidWiste Division, _;._
Environmental Quality Commission,.
-^•-Gpvernment of American'.Samoa, Pago _ ,
"'. y^go, AmericaB Samoa S6799 •-.-.:,
Guam • : •• ,
' "Directbri Hazardous-Waste Management. -
Prosram, Guam Eflvironmental Protection
Agency, P.O.'Box 2999..Agana, Guam96910>
Coamonwe^thofNoAemMananaislands '
Chief. Division of Environmental Quality*
Department Of Public Health and , ,
Environmental Services, Comfflonwealtijof
flie Northern Mariana Islands, Office of the
Governor, Saipan,' Mariana Islands 96950,
Puerto Rico •' ' .. '*'; '••
President, EnvlroninentaiQuality Board, v ;.--.
Santurce, Puerto Rico 00910-1488 •
Virgin Islands, ' . . • • : . • ,»
Director! Departoent.of ConservaUra ancj
" Cultural Affairs. P.O. Box 4399, Charlotte, .
St Thomas,'Virgin Islands 00801 ... ., ..
:[FRBoc. 80-16525 Filed7-23-SO; 8:45 ami-
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