Action Please By: July 4, 1997
To: Members & Subscribers From: National Office Date: June 9, 1997 Re: RA 97-13 Draft EPA Pretreatment Program Streamlining Proposal
AMSA has been invited by the U.S. Environmental Protection Agency to review its draft proposed regulatory and administrative changes to streamline the national industrial pretreatment program. The effort is designed to provide administrative changes to reduce the burden on entities regulated under the pretreatment program. In May 1996, the Agency developed a series of informal issue papers for stakeholder review and comment on certain technical and administrative requirements under consideration for this initiative. Based on that input, and the results of the AMSA-Water Environment Federation Pretreatment Streamlining Workshop held in August 1996 and discussions held during the 1996 AMSA-EPA Pretreatment Coordinators' Workshop, EPA produced the draft for external stakeholder input prior to a formal proposed rulemaking planned for December 1997.
To help focus your comments and due to the very short review period, the National Office has provided the attached summary of the thirteen specific issues under the proposed pretreatment program changes. Included with each of the proposals are the specific comments requested by EPA along with AMSA's position on the issue. In many instances, the EPA has proposed changes that reflect AMSA's positions on pretreatment streamlining. AMSA members, however, should pay special and urgent attention to what EPA is proposing to change to the modification of significant noncompliance (SNC) criteria and AMSA's positions on this issue.
IT IS IMPERATIVE THAT EPA RECEIVES NUMEROUS COMMENTS FROM THE AMSA MEMBERSHIP IN SUPPORT OF ALL OF THE ASSOCIATION'S RECOMMENDATIONS. HOWEVER, THE ISSUES RELATING TO SIGNIFICANT NONCOMPLIANCE (SNC) CRITERIA ARE VITAL AND NEED SERIOUS ATTENTION BY EACH AMSA MEMBER AGENCY. ALL ISSUES SUPPORTED BY AMSA ARE VITAL TO THE STREAMLINING EFFORT. While AMSA plans to incorporate member agency comments into our transmittal to the EPA, the Office of Wastewater Management (OWM) and Office of Enforcement & Compliance Assurance (OECA) must also receive letters from individual agencies in support of the changes recommended by AMSA.
The National Office requests that comments be returned to Sam Hadeed c/o National Office no later than July 4. Comments should follow the outline of issues attached. Comments can be mailed, FAXed to (202) 833-4657, or e-mailed in WordPerfect format to amsa@clark.net. Comments greater than three pages in length should include a floppy disk in WordPerfect format. For additional information, please contact Sam Hadeed at (202) 833-4655.
SUMMARY OF EPA DRAFT PRETREATMENT STREAMLINING PROPOSALS
Modifications of Significant Noncompliance Criteria
[Pages 88-96, § 403.8(f)(2)(vii)] [Issue M in Proposal]
Proposal: SNC criteria would only be required to apply to SIUs. SNC criteria would be changed to address violations of Pretreatment Standards or requirements rather than just violations of daily maximum or longer-term average limits.
EPA Requests Comments On:
1) EPA's policy is that these criteria should be evaluated on a rolling quarter basis (i.e., a POTW should evaluate an industrial user's performance at the end of a quarter using data from the previous six months). The AMSA/WEF workgroup suggested using a static six-month period. They expressed concern that using the rolling quarter method could result in SNC determinations based on one data point. EPA has argued, however, that sampling once every six months is only a minimal requirement and industrial users can sample more often. EPA uses the rolling quarter approach in the NPDES program, but has heard that this approach is too complicated and that it is not used consistently across the country. EPA is proposing no change but is seeking comment on this issue.
AMSA Position:
1) Control Authority should have flexibility to determine if reporting violations should be classified as SNC. Labeling minor paperwork violations as SNC without consideration by the Control Authority of the overall compliance status and history of the IU results in inappropriate determinations of SNC with negative impacts for both the Control Authority and IU. For example, submittal of a 30-day late report if monitoring was conducted should not considered as SNC particularly if effluent was in compliance.
2) EPA should seek public comment and consider revisions to technical review criteria of 1.2 and 1.4 related to pretreatment program implementation, including the impact of analytical variability and "method detection limit" methodologies.. The TRC concept is an NPDES program element that should not be part of the pretreatment program. Local limits developed under the pretreatment program are water quality based, a TRC of 1.2/1.4 is not. EPA should not look at the percentage of analyses that are in exceedance. NPDES analyses are done daily; pretreatment analyses are done on a much less frequency.
3) SNC determinations should be based on 6 calendar months of data and not on existing use of "rolling quarters." Current policy can force SNC determinations based on one data point and may not adequately reflect compliance and performance by Industrial Users. In addition, IUs could potentially be in SNC for two calendar years (double jeopardy) for the data provided under a rolling quarter spanning the December-January time period.
4) SNC determinations should only be applicable to Significant Industrial Users (SIUs) and not all IUs.
Because of the importance of the SNC issue, AMSA has provided the following background information:
Background Information on Development of SNC Recommendations
In August 1996, the Water Environment Federation (WEF) and the Association of Metropolitan Sewerage Agencies (AMSA) held the Pretreatment Streamlining Workshop at the Xerox Document University in Leesburg, Virginia. The goal of the workshop was to discuss and provide pretreatment streamlining and reinvention recommendations for the National Pretreatment Program that would modify the program from it's traditional procedural approach to one that: provides greater focus on the collection, evaluation and application of environmental data to assess and attain environmental results; provides flexibility and stimulates innovation; and targets scarce resources to address environmental problems and solutions. The workshop was unique in that organizations external to EPA created a consensus-based, collaborative decision-making process that was organized and executed in a three-month time frame. Participation was by invitation only for a small group of pretreatment experts representing a broad range of stakeholder interests, including environmental organizations, industry, large and small POTWs, states, EPA and consultants.
One series of recommendations dealt with streamlining administrative and technical aspects of the pretreatment program. The participants purposely selected for discussion those issues considered to be most in need of change because they neither measured nor contributed to the goals of the National Pretreatment Program. These recommendations emphasized the need to return control and discretion on how to run programs to local Control Authorities by providing greater flexibility for procedures and requirements. The recommendations also were intended to reduce technical and administrative burdens for all stakeholders without jeopardizing the intent of the program.
One of the issues addressed at the workshop was the definition of SNC. The participants agreed that the current definition of SNC was too prescriptive and not a meaningful indicator of an industry's impact on public health, water quality, biosolids quality, or worker health and safety. The participants developed four recommendations summarized below.
1. Revise the regulations to provide Control Authorities with the authority to determine whether reporting violations should be classified as SNC. Based on existing federal requirements, categorical industrial users must submit a one-time baseline monitoring report and a one-time 90-day monitoring report. All SIUs must submit at least two self-monitoring reports per year. Other kinds of reports or documentation that Control Authorities can require include more frequent self-monitoring reports, compliance reports, status reports, permit renewals, responses to enforcement correspondence, etc. The workshop participants noted that labeling minor paperwork violations as SNC without consideration by the Control Authority of the overall compliance status and history of the IU resulted in inappropriate determinations of SNC with negative impacts for both the Control Authority and industrial users. There was not consensus on whether all reporting violations in general should be eliminated from the definition of SNC or whether just certain violations should not be considered significant. A suggestion was made that EPA establish a threshold to retain the more egregious reporting violations as SNC, with local discretion over the SNC determination below that threshold.
Since Control Authorities already have the ability to classify violations determined to adversely impact the operation or implementation of the local pretreatment program as SNC in accordance to 403.8(f)(2)(vii)(H), this criterion could be applied to reporting violations as well. Therefore, a separate SNC reporting criterion is not necessary. Should the criterion be retained, it would be necessary to develop a threshold to distinguish what constitutes a significant violation. Comments are being solicited on what an appropriate threshold might be to retain the more egregious reporting violations as SNC or how this threshold could be developed by consensus among interested stakeholders.
2. Revise the technical review criteria (TRC) of 1.2 and 1.4 related to pretreatment program implementation taking into consideration the impact of analytical variability and "method detection limit" methodologies. Workshop participants noted that questions have consistently been raised regarding the technical and scientific basis for the TRC and whether additional technical review or comment are needed to update the TRC in light of advances in detection and analytical methods, and the trend toward setting permit limits near or below the quantitation level, and whether the criteria relate to potential environmental or Control Authority program impacts.
In establishing the TRC for the QNCR requirements, a variety of valid bases could have been used to set thresholds for mandatory reporting. The TRC were chosen to provide simple criteria that could be applied to effluent data without requiring additional information on production levels, monitoring frequencies, analytical methods, or the basis for the limit. The only purpose of these thresholds was to moderate reporting burdens while still providing enough information to evaluate the vitality of State and Regional enforcement activities. Since these arbitrary numbers have no basis for gauging the magnitude or severity of a violation, they are not appropriate for classifying the worst violators as being in SNC, and thus should not be included in the SNC criteria. Comments are also being solicited on what might constitute appropriate thresholds that would retain the more egregious violations as SNC or how this threshold could be developed by consensus among interested stakeholders.
3. Withdraw the current EPA policy regarding SNC determinations based on "rolling quarters." SNC determinations should be based on 6 months of data starting on the date of first violation. The current "rolling quarters" policy is perceived by Control Authorities to be a program mandate. This policy can force SNC determination based on one data point and may not adequately reflect compliance and performance by industrial users. The recommendation would create opportunities for cooperative compliance improvement efforts between Control Authorities and industrial users.
However, upon further reflection, it appears that this recommendation may create more administrative difficulties than the current rolling quarter approach since it will require individually tracking each industrial user's SNC status with respect to each parameter. As a compromise, it would be appropriate to determine SNC on a 6-month calendar basis (e.g., January - June and July - December of each calendar year).
4. SNC determinations should only be applicable to Significant Industrial Users (SIUs). The workshop participants noted that the potential for program, facility or environmental impact from industrial users not designated SIUs by the Control Authority is limited. The recommendation will provide Control Authorities with discretion and reduce administrative burdens.
By definition, a non-SIU has no reasonable potential to adversely affect the POTW. Therefore, any violation by a non-SIU would theoretically not be considered significant, although it would be considered as a instance of noncompliance subject to an enforcement action. This change would also be consistent with the QNCR requirements which are applicable to only "major" permittees.
AMSA's recommendations seek to incorporate these comments into a streamlined yet directed SNC definition. The changes proposed are intended to simplify SNC determinations for Control Authorities while still maintaining a definition that identifies those industrial deserving of being published in local newspapers due to pretreatment violations. The changes allow for:
1. Reporting violations to be eliminated as a criterion for determining SNC.
2. SNC determinations to be calculated on a fixed calendar basis from January through June and July through December rather than using rolling quarters.
3. SNC determinations to be restricted to SIUs.
4. The proposal eliminates the criterion using the existing technical review criteria for determining SNC.
In addition, several other changes have been made to provide further flexibility as listed below.
1. The proposal allows for publication in a daily newspaper published in the municipality in which the POTW is located rather than the largest paper. For large municipalities, utilization of regional daily newspapers offers a more productive and cost effective means of public notification.
2. The terms daily maximum and average limits have been replaced by the term "pretreatment standards" as defined in 40 CFR 430.3(j). Compliance with all effluent limitations, whether categorical standards, or local limits, are equally important in terms of achieving the goals of the pretreatment program. The proposal also adds the term "pretreatment requirements" as defined in 40 CFR 403.3(r). Violations of pretreatment requirements that cause pass-through or interference are deemed to be significant.
A. Specific Prohibition Regarding pH [Pages 7-14, § 403.5(b)(2)]
Proposal: POTWs could accept discharges with a pH below 5.0 to the extent they can document that the discharges will not damage their systems. POTWs with sewer systems constructed with acid resistant materials would be authorized to allow a broader variance from the pH limit.
EPA Requests Comments On:
1) Please comment on whether today's proposal would adequately protect the significant public investment in wastewater collection infrastructure.
2) Please comment on whether additional safeguards are needed, such as, only allowing POTWs with Approved Pretreatment Programs to adjust the pH limit, or whether to require that any alternative pH limit be specified in a permit issued by the Control Authority to the industrial user.
AMSA Position: Supports proposal
B. Equivalent Mass Limits for Concentration Limits [Pages 14-19, § 403.6(c)]
Proposal: Control Authorities could set mass limits as an alternative to concentration limits where an industrial user has difficulty meeting concentration limits due to reduced water use.
EPA Requests Comments On:
1) Please comment on the need for and appropriateness of this proposed addition to the existing regulations.
2) EPA is interested in data related to methodologies and technologies that result in reduced discharges to the point where compliance with concentration limits is problematic. Situation specific examples of methodologies and technologies with data are requested.
AMSA Position: Supports proposal
C. Equivalent Concentration Limits for Flow Based Standards [Pages 19-25, § 403.6(c)]
Proposal: Control Authorities could set limits on industrial users by applying the concentration numbers in a flow based standard directly as equivalent concentration limits if the flow from a facility is so variable that the development of mass limits is impractical.
EPA Requests Comments On:
1) EPA recognizes that defining "highly variable" will need to allow for site specific discretion by the Control Authority. Please comment on defining highly variable flow, and specifically, on using a change in flow rate of ± 20%.
AMSA Position: Supports proposal
D. POTW Oversight of Significant Industrial Users [Pages 25-34, § 403.8(f) & § 403.1(f)]
Proposal: Control Authorities could exempt de minimis Categorical Industrial Users from the definition of SIU. De minimis CIUs would be defined as 1)facilities that never discharge concentrated wastes such as solvents, spent plating baths, filter backwash, and sludges, or more than 100 gallons per day of other process wastewater, and 2) facilities subject only to certification requirements after having met Baseline Monitoring Report requirements (e.g., pharmaceutical manufacturers).
EPA Requests Comments On:
1) Please comment on a flow cut off for de minimis facilities different than the 100 GPD contained in EPA's stakeholder letter. EPA requests than any commenters recommending a different flow cut off provide rationales for their flow cut offs.
2) Please comment on whether to grant Control Authorities additional flexibility with regard to minimum sampling (not inspection) requirements for SIUs that have been in consistent compliance. One option would be to not require annual sampling by Control Authorities of facilities that have been in consistent compliance. This would apply regardless of whether facility was de minimis under the definition discussed on page 31. Consistent compliance might be defined as two years sampling with no violations for the pollutant plus ongoing self-monitoring that demonstrates compliance. Another option would be to give Control Authorities increased flexibility regarding whether to sample the categorical SIUs described in the WEF/AMSA proposal in the preceding section, i.e., those that do not adversely impact the POTW. EPA is also interested in comment on whether the approach that Control Authorities may reduce sampling to once every two years for up to 50% of their SIUs, based on consistent compliance for two years and lack of a threat to the system.
AMSA Position: Supports the proposal but believes that the 100 gpd process water de minimis definition for CIUs is too low and unrealistic for most POTW systems. One option would be to raise the de minimis value to 1000 gpd process water.
E. Slug Control Plans [Pages 34-39, § 403.8(f)(2)(v)]
Proposal: POTWs would not be required to evaluate the need for a slug control plan for each SIU every two years, but could review the need for SCPs or other actions as part of its ongoing oversight of industrial users and would plan appropriate requirements in the industrial user's permit.
AMSA Position: Supports proposal
F. Sampling for Pollutants Not Present [Pages 39-46, § 403.12(e)]
Proposal: EPA is proposing that, after a determination has been made that a pollutant is not expected to be present, the Control Authority may waive IU sampling of than pollutant. The Control Authority would still be required to perform the annual sampling and analysis as required by 40 CFR 403.8 (f)(2)(v) for all regulated pollutants.
EPA Requests Comments On:
1) The proposal would require the decision to waive sampling to be based upon both sampling and other technical data. EPA is not proposing that a specific amount of sampling data be required but is interested in comment.
2) Please comment on whether to require a specific amount of sampling.
3) Please comment on whether sampling of influent should be required.
4) Please comment on whether Control Authorities should be able to waive sampling of organic chemicals that are not expected to be present.
5) Please also comment on whether Control Authorities should be able to waive sampling for organic chemicals if a facility establishes that a pollutant is not present and certifies to that effect. Please also comment on whether any restriction on relief from sampling for organic chemicals not expected to be present should apply to sources of organic chemicals other than OCPSF facilities.
AMSA Position: Supports proposal
G. De Minimis Categorical Industrial Users [Pages 47-50, § 403.12]
Proposal: In conjunction with Issue D, if the Control Authority decides to sample a de minimis facility annually, it could also allow the facility to self-monitor only once per year.
EPA Requests Comments On:
1) EPA is seeking comment on an alternative way of increasing flexibility. The alternative would be to eliminate the requirement that de minimis categorical facilities monitor and report at least twice per year. The facility's minimum monitoring requirements would be determined by the Control Authority. Under this approach, the facilities would still be required to file Baseline Monitoring Reports, 90-day compliance reports, and comply with the categorical standard. Variations on this approach would be to eliminate the minimum self-monitoring by de minimis categorical industrial users provided that the Control Authority performs at least on unannounced sampling event per year, or as a separate option, during the term of the facility's permit.
AMSA Position: Support proposal aimed at Control Authority flexibility. Create a new definition for "de minimis CIU" through consideration of existing and future effluent guidelines and amendments where appropriate.
H. Use of Grab and Composite Samples [Pages 50-60, § 403.12(b), (d), (e), (g) & (h)]
Proposal: This would allow compositing of grab samples for cyanide, volatile organic compounds, and other parameters unaffected by the compositing process. It would clarify that the same sampling and analysis requirements apply to all pretreatment reports (BMRs, 90-day compliance, and periodic compliance) except that four grab samples would not be required for periodic compliance reports.
EPA Requests Comments On:
1) The WEF/AMSA Workshop Report recommended that all references to sample "types" (e.g., grab versus composite, flow-proportional versus time-proportional) be dropped and that the regulatory language require only that the sample be a "representative sample." EPA would then define the term "representative sample" to provide the POTW with the flexibility to specify the appropriate sampling protocols. EPA is seeking comment and supporting data on how this issue could be resolved.
2) EPA is also proposing to clarify the language currently in §403.12(b)(5)(iii) in two ways. First, EPA is proposing to specifically allow for compositing of certain types of grab samples prior to their analysis. EPA is specifically requesting comment on this provision to allow the Control Authority to determine whether composited grab samples should be allowed for any parameters not specifically identified in the regulatory language in 403.12(g)(3) and (4). Second, EPA is clarifying what is meant by "infeasible" in the provision that Control Authorities may allow time proportioned sampling instead of flow proportioned sampling where the latter is infeasible.
3) The proposal would clarify that a Control Authority may find flow-proportioned sampling to be infeasible by evaluating whether the flow is such that standard measurement techniques are unreliable or than the cost and/or physical configuration of the discharge location precludes modifying the facility or monitoring equipment. Since the whole issue of "infeasibility" is so site specific that any attempt to define all possible scenarios is impractical, EPA is soliciting comment and examples of other approaches to defining and quantifying this concept.
AMSA Position: See item H (1) above
I. Removal Credits [Pages 61-72, § 403.7]
Proposal: Removal credits would be available for those pollutants that are not controlled by a standard for the use of disposal or sewage sludge (biosolids ) and that EPA is not considering for future standards, provided that the POTW's removal credit application includes an analysis of the impact of the removal credit on the use or disposal of sewage sludge. Restrictions on removal credit authority for POTWs with overflows would be clarified to refer to both Combined Sewer Overflows and Sanitary Sewer Overflows. Industrial users that are upstream of CSO or SSO overflow points would be ineligible for removal credits unless it can be established that their discharges will be consistently treated.
EPA Requests Comments On:
1) Please comment on other approaches to removal credits for industrial users (IUs) that discharge to POTWs upstream from SSO and CSO overflow points. One approach would be to allow removal credits for these IUs provided the overflow point does not overflow more than one percent of the time, calculated based on the number of hours that the overflow occurs in a year.
AMSA Position: Topic was not considered to be a priority for streamlining
J. Electronic Filing and Storage of Reports [Pages 73-79, § 403.12, 403.16(c), & 403.17(c)]
Proposal: In preparation for the optional use of electronic reporting, definitions of "signed," "in writing," and "written submission" would include electronic submissions to ensure appropriate levels of data integrity, information security and individual accountability for individual submitting the report.
EPA Requests Comments On:
1) Please comment on the appropriateness of electronic reporting and record storage to satisfy the various requirements identified in Table A (page 73). To ensure the continuing viability of self-monitoring and self-reporting under the CWA, EPA is particularly interested in and seeks comment on how to ensure personal responsibility and accountability int he individual submitting an electronic report.
2) Please comment on electronic filing of reports and requests for information on any forms of electronic commerce that can be utilized for environmental reporting and records storage.
3) Please also comment on the costs associated with the implementation of electronic reporting.
AMSA Position: Supports proposal
K. General Permits [Pages 79-82]
Proposal: General permits could be used to regulate Significant Industrial Users if they are covered by concentration-based standards or best management practices. All of the facilities to be covered by a general permit would employ the same or substantially similar types of industrial process; discharge the same type of wastes; require the same effluent limitations; and require the same or similar monitoring.
AMSA Position: Supports proposal
L. Best Management Practices [Pages 82-87, § 403.5; §403.8(f); §403.12(b), (e), & (h)]
Proposal: Best Management Practice developed by POTWs could serve as local limits. The BMPs would be enforceable and be included as local permit requirements. Reporting requirements would be clarified for BMPs used to comply with national categorical standards or that serve as local limits.
EPA Requests Comments On:
1) Please comment on whether the use of BMPs that qualify as section 403.5© local limits should be restricted to such circumstances; or whether POTWs should be allowed to develop BMPs as 403.5© limits whenever it finds them to be the most convenient or efficient means of meeting the goals of section 403.5(c).
2) Please comment on the appropriateness of the use of BMPs in cases where numeric effluent limitations are infeasible.
3) Please comment on the need to define BMP in the pretreatment context and, if so, whether the NPDES definition is appropriate.
4) EPA is requesting examples of instances where BMPs may be more appropriate or may provide better environmental protection than numeric effluent limitations.
AMSA Position: Supports proposal
ATTACHMENT: Draft EPA Pretreatment Program Streamlining Proposal (Please call AMSA's National Office at 202/833-AMSA for a copy of this document)