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SUMMARY OF EPA DRAFT PRETREATMENT STREAMLINING PROPOSALS

Modifications of Significant Noncompliance Criteria
[Pages 39591-39595, § 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.

What modifications to 40 CFR 403.8(f)(2)(vii) is EPA proposing? EPA is proposing three modifications to the SNC provision. First, EPA is proposing to amend 40 CFR 403.8(f)(2)(vii) to allow publication of the SNC list in any paper of general circulation within the jurisdiction served by the POTW that provides meaningful public notice. Second, EPA is proposing to amend the SNC criteria so that they must only be applied to significant industrial users. Third, EPA is proposing to amend 40 CFR 403.8(f)(2)(vii)(A), (B), and (C) to address more than just daily maximum and monthly average limits.

EPA is also seriously considering revising the late reporting criterion for SNC. However, because of the wide variety of suggestions that have been offered, EPA is not proposing a specific change at this time. EPA believes it needs more time to consider all of these options before making a final decision. EPA is thus soliciting comment on all of the options discussed in the proposal, or combination of these options, that stakeholders would recommend. Based on its further considerations and comments received, EPA may include a revision, consistent with the options discussed here, to the late reporting criterion for SNC in the final rule.

EPA is proposing no specific revisions to its “Rolling Quarters” policy for determining SNC.

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 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.

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.

    3. A.  Specific Prohibition Regarding pH
    [Pages 39566-39568, § 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. EPA is requesting comment on a provision to expand the flexibility regarding pH limitations by allowing POTWs that can safely accept continuous discharges with a pH below 5.0 to accept those wastes. This provision, if adopted, would remove the “specifically designed” criterion for such discharges in the existing pH prohibition. Were EPA to adopt such a provision in the final rule, it would be subject to the same documentation and oversight requirements as the proposed authorization of short term pH excursions. EPA specifically requests examples, supported by data if available, of situations in which a POTW could safely accept continuous discharges with a pH below 5.0, but where it cannot make use of the “specifically designed” criterion to authorize such discharge under current regulations.
    2. EPA is interested in comments regarding all aspects of the proposal for alternative pH requirements. Whenever possible, such comments should be supported by data.

    B.  Equivalent Mass Limits for Concentration Limits
    [Pages 39568-39570, §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.

    C.  Equivalent Concentration Limits for Flow Based Standards
    [Pages 39570-39572, § 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 “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%.
    2. Situations where substituting concentration limits for flow-based limits would be desirable even though implementing the flow-based limits is not “impractical” The Agency is also requesting comment on whether it is appropriate to require public and/or Approval Authority review of an industrial user's proposed concentration limit prior to Control Authority approval.

    D. POTW Oversight of Categorical Industrial Users
    [Pages 39572-39574, § 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 SIU under the definition discussed on page 39575. 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.

    E.  Categorical Industrial User Monitoring
    [Pages 39574-39576, § 403.12]

    Proposal: In conjunction with Issue D, EPA would not establish any minimum inspection and sampling requirements for non significant categorical industrial users.

    F.  Slug Control Plans
    [Pages 39576-39578, § 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.

    G.  Sampling for Pollutants Not Present
    [Pages 39578-39580, § 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.

    H.  Use of Grab and Composite Samples
    [Pages 39580-39583, § 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.

    I.  Removal Credits
    [Pages 39583-39587, § 403.7]

    Proposal: Clarify 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 stopped, contained or provided with treatment during overflow events.

    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.

    J.  Electronic Filing and Storage of Reports
    [Pages 39587-39589, § 403.12, 403.16(c), & 403.17(c)]

    Proposal: No amendment to provide for electronic reporting and record keeping have been proposed at this time instead EPA plans to separately propose changes to parts 122, 123, and 403 to establish criteria or requirements.

    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 on page 39587.
    2. To ensure the continuing viability of self-monitoring and self-reporting under the CWA, please comment on how to ensure personal responsibility and accountability in the individual submitting an electronic report.
    3. Please comment on electronic filing of reports and requests information on any forms of electronic commerce that can be utilized for environmental reporting and records storage. Also, comment on the costs associated with the implementation of electronic reporting.

    K.  General Permits
    [Pages 39589-39590]

    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.

    EPA Requests Comments On:

    1. Please comment on the mechanism POTWs should use for industrial users to request coverage under a general permit.

    L.  Best Management Practices
    [Pages 39590-39591; §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(c) local limits should be restricted to such circumstances; or whether POTWs should be allowed to develop BMPs as 403.5(c) 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.