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National Pretreatment
Program
(40CFR403)
Pretreatment Streamlining Rule
Fact Sheet 6.0: Optional Sampling
Waiver for Pollutants Not Present
Summary
Who is affected by
this provision?
What is meant by
"pollutants not
present"?
In the Pretreatment Streamlining Rule of October 14,
2005, EPA finalized changes to the General
Pretreatment Regulations that allow approved publicly
owned treatment works (POTW) pretreatment
programs, or Control Authorities (CAs), to reduce or
waive certain monitoring requirements that apply to
Industrial User (IU) discharges subject to categorical
Pretreatment Standards. Such Ills are often referred to
as Categorical Industrial Users or CIUs. Under EPA's
revised regulations (see specifically 40 CFR
403.8(f)(2)(v) & 403.12(e)), in States that have
adopted these provisions, the CA has the discretion to
waive sampling of a pollutant if the CIU demonstrates
to the CA's satisfaction that the pollutant is neither
present nor expected to be present in the discharge, or
is present only at background levels from intake water
without any increase in the pollutant due to the CIU's
activities. For this fact sheet, EPA abbreviates the
phrase "pollutants neither present nor expected to be
present" by using "pollutants not present" instead.
These sampling waiver provisions apply to CAs that
choose to implement this provision, as well as CIUs
regulated by those CAs that are subject to semiannual
reporting requirements and that comply with the
requirements to demonstrate that a particular pollutant
is neither present nor expected to be present in its
discharge.
When a pollutant is "neither present nor expected to
be present," this means that the pollutant is neither
present nor expected to be present in the discharge
above background levels. A pollutant can still be
"neither present nor expected to be present" if it is
present solely because of inputs from the intake water
and not due to any addition or increase of the pollutant
from the CIU's activities. In addition, the pollutant can
be considered to be not present if it is added solely to
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April 2008
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What process is
used to request a
sampling waiver?
the sanitary wastewater from domestic-type activities
and is present only at levels that are typical of
domestic wastewater in the CA's service area. The
waiver is not allowed for pollutants that are added only
in negligible amounts, nor for pollutants that are added
but not reasonably expected to violate the applicable
Pretreatment Standard.
Each CA that chooses to implement this provision will
most likely establish its own process for CIUs to follow
in seeking approval for a sampling waiver. The CIU
should first check with its CA to determine how to
request the waiver.
At a minimum, however, the National Pretreatment
Regulations require the CIU to submit the following
information with its request for a sampling waiver:
1. Sampling data and other technical factors
demonstrating that the pollutant is not present
in the discharge;
2. Data from at least one sampling of the facility's
process wastewater prior to any treatment; and
3. The signed certification statement in 40 CFR
403.6(a)(2)(ii).
The CA is authorized to waive the monitoring
requirements for semiannual reports required under 40
CFR 403.12(e) for any individual pollutant for which
the CA is satisfied that the CIU has demonstrated that
a particular pollutant (including indicator or surrogate
pollutants) is not present. The CIU is required to
continue monitoring at least twice per year until the CA
grants the waiver and incorporates it into the lU's
control mechanism.
Even if the CA decides to grant the CIU's waiver
request for a given pollutant, the CA can still require
the CIU to conduct some continued monitoring despite
having demonstrated that a particular pollutant is not
present. Where the CA elects to require such
monitoring, it may determine the appropriate
frequency of monitoring, including frequencies that are
less than twice per year. In addition, if the CIU elects
to monitor on its own, even though the requirement to
do so has been waived, the CIU must submit the
results of these samples to the CA in accordance with
40 CFR403.12(g)(6).
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What monitoring
requirements may
be waived?
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What monitoring
requirements may
not be waived?
How does a CIU
demonstrate that a
pollutant is not
present?
What should the
technical evaluation
include?
The waiver is not available for monitoring required for
the baseline monitoring report required under 40 CFR
403.12(b) or the 90-day compliance report required
under 40 CFR 403.12(d). In addition, the waiver for
pollutants not present cannot be used in place of any
certification process established in a categorical
Pretreatment Standard, such as the certification
process for total toxic organic pollutants under the
metal finishing regulations. Nor does the waiver
supersede requirements that are specific to the
categorical Pretreatment Standard—for example,
monitoring requirements for the pharmaceutical
industry can be reduced only by the waiver procedures
to a frequency of once per year and cannot be waived
entirely (40 CFR 439.2(a)).
To be eligible for the waiver, the CIU requesting the
waiver must demonstrate through a technical
evaluation of the facility and wastewater sampling that
a given pollutant is not present. The CA must have a
high degree of certainty that the pollutant will not
show up in the discharge to the POTW. If the CIU
cannot demonstrate this to the satisfaction of the CA,
the waiver cannot be granted.
Technical Evaluation: The CIU's technical evaluation
should include a facility-wide accounting of raw
materials, products, by-products, and other chemicals
with the potential to be discharged. The CIU should
either conduct its own analysis of each raw material or
chemical used on-site, or obtain a certificate of
analysis from the manufacturer of the material
demonstrating the absence of the pollutant. The
evaluation must include materials not necessarily used
in the manufacturing operation, such as chemicals
used in equipment cleaning, cooling towers, boilers,
and wastewater treatment. Although wastewater
treatment chemicals are used to reduce the levels of
pollutants in the CIU's discharge, analysis of the
chemicals can show significant levels of contaminants
that can be added to the wastewater stream.
Additional information, such as intermediate products,
final products, and by-products generated in the
process must be considered as well; therefore, the CIU
must have a detailed knowledge of chemicals used or
generated in its facility and perform a detailed
evaluation of its operations.
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What sampling data
is required?
The CIU may submit material safety data sheets
(MSDSs) as evidence that a particular pollutant is not
present in the raw materials or other chemicals it uses
at its facility. However, while MSDSs are a valuable
tool in this demonstration, they do not identify all the
pollutants present in a given material. Therefore, the
MSDS cannot be relied on exclusively to determine
whether a pollutant is present or not.
Note that determining whether a pollutant is present
should be on the basis of not only whether the
pollutant is in the process wastestream, but also
whether a pollutant has the potential to enter the
wastestream. Therefore, the CIU must evaluate the
potential for the pollutant to enter the wastestream
through spills and other potentially infrequent events
in addition to whether the pollutant would be routinely
expected to enter the wastestream or could be a by-
product of pollutants in the wastestream.
Sampling Data: Although a properly conducted
technical evaluation showing that a pollutant is not
present suggests that the CIU has met its burden for
the sampling waiver, the Pretreatment Regulations
require the IU to also conduct monitoring to further
demonstrate eligibility for the waiver. EPA does not
define the amount of data that is sufficient to make a
decision to grant a waiver request. The amount of data
needed in individual cases is necessarily a site-specific
determination, because of the tremendous variations
among facilities.
At a minimum, the CIU must provide the results of one
or more samples prior to any treatment. The samples
taken must be representative of all wastewater from
all processes, including any seasonal or other
variability in the discharge [40 CFR 403.12(e)(2)(iii)].
To verify that the pollutant is not present based solely
on wastewater treatment, the data must show one of
the following:
1. There are no detectable levels of the pollutant
- or -
2. Any detectable levels of the pollutant are solely
attributable to the intake water, as
demonstrated by data on the pollutant's levels in
the lU's influent water and not to any activities
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at the lU's facility [40 CFR 403.12(e)(2)]
However, if a pollutant is present in the discharger's
wastewater, either prior to treatment or after
treatment, data on the pollutant levels in the influent
water are necessary to demonstrate that the
pollutant's presence is due solely to levels that exist in
the intake water and not due to any of the CIU's
activities. With the exception of copper and lead, data
from the water supplier may be used in place of data
supplied by the CIU, provided that such data is
representative of the Ill's intake water. Note that
where the data prior to treatment shows that the
pollutant is present at levels above concentrations in
the background intake water, the CIU's sampling
waiver request will be denied.
Can historical
sampling data be
used?
What happens after
the CIU requests the
waiver?"
How is the sampling
waiver made
effective?
Office of Water
EPA-833-F-08-003
April 2008
In addition to the sample prior to the CIU's treatment,
the IU may also provide historical effluent data as
further proof that the pollutant is not present. This
information will be useful as partial evidence of the
pollutant's non-presence. However, effluent data
should be viewed as secondary to the sample(s) taken
prior to treatment.
Assuming that the CIU has followed the requirements
for requesting the sampling waiver, the CA must
determine whether to grant the sampling waiver. The
regulations do not in any way require the CA to grant
the sampling waiver at any time. If the CA does not
believe that the CIU has demonstrated to its
satisfaction that a pollutant is not present, the CA
cannot grant the waiver. Even where the CIU has
demonstrated that a specific pollutant is not present,
the CA has the discretion to require monitoring.
The CA should base its decision on the materials
submitted by the IU as well as its own historical
familiarity with the facility's participation in the
pretreatment program. The CA might want to review
information contained in the CIU's control mechanism
applications, baseline and periodic monitoring reports,
and data obtained through facility inspections.
Upon submission by the CIU, the CA must review the
application to ensure that the IU has satisfactorily
demonstrated that the pollutant is not present. Once
the CA has made this determination, its decision to
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How long is the
waiver valid?
How must the CA's
decision to grant the
waiver request be
documented?
Does the CA
continue to conduct
its own required
monitoring of the
CIU's effluent after
the waiver is
granted?
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April 2008
grant the sampling waiver is effective only after it has
been incorporated into the CIU's control mechanism.
The control mechanism must be specific as to the
sampling requirements being waived, the applicable
categorical Pretreatment Standard(s), and the
pollutants for which the monitoring waiver has been
granted. The control mechanism must also include the
following specific requirements to make the sampling
waiver effective:
1. The requirement for the CIU to submit a
certification, on each report where the CIU
would have ordinarily submitted sampling data
for the pollutant(s) not present if not for the
waiver, that there has been no increase in the
pollutant(s) in its wastestream due to the
activities of the User; and
2. The requirement to immediately resume
monitoring, at least semiannually, and notify the
CA if the pollutant waived from sampling is
subsequently found to be present or is expected
to be present.
In addition, the control mechanism still must include
all applicable categorical Pretreatment Standards, even
those Standards for which monitoring has been
waived.
The sampling waiver is valid only for the duration of
the control mechanism. To continue the waiver for the
period of the next control mechanism, the CIU must
reapply for the waiver, including the submission of
appropriate monitoring data.
The CA must document the reasons for authorizing the
waiver and maintain any information submitted by the
CIU in support of the waiver. This information must be
maintained for at least 3 years after the expiration of
the control mechanism in which the waiver is granted
[40 CFR403.12(e)(2)(iv)].[
The CA is required to conduct at least one effluent
sample during the term of the CIU's control
mechanism to confirm that no changes have occurred
and that the sampling waiver is still appropriate. EPA
recommends that the CA conduct this sampling during
the renewal of the control mechanism, after
submission of the CIU's reapplication for the waiver.
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Should the waiver
be available for a
new User?
What local program
changes are
required to
implement the
sampling waiver
provisions?
Where can I get
more
information?
It is at the CA's discretion whether to make the waiver
available to new CIUs. However, the CA might need
time to collect enough data to appropriately assess
whether pollutants at a new CIU are consistently not
present, and, therefore, should be cautious in
approving a waiver for a new IU. Note that new CIUs
must monitor for all required pollutants for the
baseline monitoring report and the 90-day compliance
report.
These provisions are entirely discretionary on the CA's
part. The CA is not required to adopt or implement the
sampling waiver provisions for any CIU or for any
pollutant. If the CA chooses not to implement these
new provisions, it does not need to do anything.
However, if the CA wants to implement these
provisions, it must submit a program modification to
the Approval Authority before it can implement the
sampling waiver provisions. Note that before sampling
waivers for pollutants not present may be granted,
state regulations might also need to be revised to
authorize implementation.
The regulations covering the sampling waiver are
found in 40 CFR 403.8(f)(2)(v) and 403.12(6),
which was published in the Federal Register on
October 15, 2005 (70 FR 60134). A more detailed
discussion of the sampling waiver provisions is in
that Federal Register notice on pages 60138-
60143. You can get a copy of the rule at EPA's
Pretreatment Web site
httD://cfDub.eDa.QOv/nDdes/home.cfm?Droqram id=3.
Information is also available from your state
environmental agency or from EPA. For lists of these
contacts, see EPA's Web site at
http://cfpub.epa.QOv/npdes/contacts.cfm7proqram id=3&ty
pe=ALL.
Office of Water
EPA-833-F-08-003
April 2008
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