NACWA Regulatory Alert (RA 05-10)

To: Members & Affiliates, Pretreatment & Hazardous Waste Committee
From: National Office
Date: October 7, 2005
Subject: EPA’S FINAL PRETREATMENT STREAMLINING RULE
Reference: RA 05-10

The final pretreatment streamlining rule was signed Sept. 27 by U.S. Environmental Protection Agency (EPA) Administrator Stephen Johnson and contains many of the provisions NACWA has long sought. A prepublication copy of the rule appears on the NACWA website (http://www.nacwa.org/getfile.cfm?fn=2005-09-28pretrule.pdf). More than a decade of relentless effort and hard work by NACWA and its members and hard work with the Small Business Administration (SBA) and the White House Office of Management and Budget (OMB) have resulted in a rule that will benefit the nation’s publicly owned treatment works (POTWs) and save millions of dollars per year in time and resources that can be targeted to more beneficial initiatives. Special gratitude is owed to the tireless work of NACWA’s Pretreatment and Hazardous Waste Committee leadership and, in particular, to Committee Chair Guy Aydlett, Director of Water Quality, Hampton Roads Sanitation District, Virginia Beach, Va.

Key provisions for which NACWA worked especially hard were included in the regulation and will benefit POTWs by allowing them to:

• Set mass-based limits instead of concentration-based limits if the industrial user (IU) requests them and it can be documented that the change is appropriate to accommodate water conservation measures. Because of restrictions in the existing rule, some industrial dischargers have avoided water conservation measures out of concern the reduced flow would cause them to violate their concentration-based permit limits.

• Provide 45 days, instead of the current 30 days, to submit key reports before an IU would be considered late and in significant noncompliance (SNC). About 70 percent of SNC determinations result from late reports rather than actual discharge violations that can harm the environment.

• Significantly reduce their oversight of “non-significant categorical industrial users” (NSCIUs), a new category established in the rule. These are facilities that discharge no more than 100 gallons per day (gpd) of process wastewater. Reduced reporting requirements are also allowed for a “middle tier” of categorical industrial users (CIUs) that are still considered significant industrial users (SIUs). The requirements are more stringent than for NSCIUs, but less than those for SIUs. The middle tier comprises facilities whose categorical wastewater is 0.01 percent of design capacity of the POTW with a maximum threshold of 5,000 gpd, a significant improvement NACWA fought for from the originally proposed ceiling of 100 gpd.

• Waive IU sampling requirements for pollutants not present or expected to be present at levels greater than that of the intake water.

The following is a summary of the major provisions in the final Pretreatment Streamlining Rule, including details on how certain provisions were changed since the 1999 proposal. While NACWA achieved a significant number of changes to the final rule, not everything the Association sought was included. NACWA will continue to advocate on behalf of further improvements to the pretreatment program.

Equivalent Mass Limits for Concentration Limits (p. 169) *
Control Authorities will be allowed, in limited circumstances, to express a concentration-based categorical standard as an equivalent mass limit in a control mechanism issued to an IU. This provision was hotly debated over the past six years as to whether it would increase the amount of toxic pollutants entering the environment. NACWA argued that POTWs are not in the business of allowing additional discharges of toxic pollutants and that POTWs would be more than capable of making the necessary calculations to ensure the amount of pollutants discharged remained the same. NACWA commented in 1999 that the provision was most relevant in situations where IUs attempted to install water conservation equipment, but that the flexibility should not be limited to those situations. The final provision, however, establishes some eligibility conditions for IUs that limit its applicability based on implementation of water conservation. The following are requirements for CIUs interested in taking advantage of this provision:

1. Implement water conservation measures that substantially reduce water use;
    
2. Use control and treatment technologies adequate to achieve compliance with categorical Pretreatment Standards, and demonstrate that dilution is not used as a substitute for treatment;
    
3. Provide monitoring data to establish actual average daily flow rate and its baseline long-term average production rate;
    
4. Demonstrate that it does not have daily flow rates, production rates, or pollutant levels that fluctuate so significantly that establishing equivalent mass limits would not be appropriate (requires continuous effluent flow monitoring); and
    
5. Have consistently complied with the applicable categorical Pretreatment Standards.

The decision regarding whether to convert a CIU’s concentration-based categorical pretreatment standard to an equivalent mass limit rests with the Control Authority. The rule specifies how Control Authorities should calculate the equivalent mass limit.

Oversight of Categorical Industrial Users (p. 208)
The final rule establishes a non-significant categorical industrial user (NSCIU) category based on a 100 gallons per day (gpd) threshold. If a POTW chooses to treat a qualifying CIU as an NSCIU, the oversight requirements for the NSCIU (and POTW with respect to the NSCIU) will be significantly reduced. Consistent with NACWA’s 1999 comments, EPA is also establishing a ‘middle tier’ category of CIUs that will be subject to less stringent monitoring, reporting and inspection requirements. NACWA’s 1999 comments and subsequent advocacy efforts over the past six years highlighted the limited applicability of the 100 gpd threshold and how it would only provide relief for a few POTWs nationwide. NACWA demonstrated the significant cost savings that would be realized under an expanded, tiered approach. Under EPA’s final rule, the savings to POTWs, though still significant, will be limited by the fact that the middle tier CIUs will still be considered SIUs, but will be eligible for reductions in reporting and Control Authority monitoring and inspections. Despite NACWA's consistent efforts to have the NSCIU category apply to the middle tier of facilities (defined below), the decision was made to term them “Middle Tier” Significant Categorical Industrial Users (SCIU). Although indications prior to publication of the rule were that NACWA's desired approach was to be incorporated in the final rule, this did not occur. As a result, while cost savings will result from less stringent monitoring, reporting and inspection requirements, the more significant cost-savings NACWA sought were not realized. While the Association was disappointed by this ultimate decision, NACWA will continue to work to ensure additional burden reductions for POTW pretreatment programs.

An IU may be considered a ‘middle tier’ CIU if its discharge of categorical wastewater does not exceed any of the following:

--0.01 percent of the design dry weather hydraulic capacity of the POTW, or 5,000 gpd, whichever is smaller, as measured by a continuous effluent flow monitoring device unless the Industrial User discharges in batches;

--0.01 percent of the design dry weather organic treatment capacity of the POTW; and

--0.01 percent of the maximum allowable headworks loading for any pollutant for which approved local limits were developed by a POTW.

The final rule provides the following table to define the tiered approach:

* If the Control Authority determines that an existing NSCIU no longer meets a required criterion for being categorized as non-significant, such as the requirement to be in consistent compliance with Pretreatment Standards and Requirements, the User becomes an SIU and must be issued a control mechanism.

Significant Noncompliance Criteria (p. 126)
Consistent with NACWA’s recommendations in its 1999 comments, EPA is making the following changes:

• The pretreatment regulations will now allow publication of the SNC list in any paper of general circulation that provides meaningful public notice within the jurisdiction served by the POTW.
• The SNC criteria will only apply to SIUs and to those IUs that have caused pass through or interference, resulting in a POTW using its emergency authority to halt a discharge, or caused harm to the environment or POTW’s operation.
• SNC will only apply to reports (such as baseline monitoring reports, 90-day compliance reports, periodic self-monitoring reports) that are provided more than 45 days after the due date, instead of 30 days.

NACWA also advocated for changes to the use of rolling quarters for SNC determination and to the existing technical review criteria (TRC).

• NACWA argued that basing the SNC definition of chronic and TRC violations on a rolling basis only provided a minimal incentive to achieve compliance sooner and that SNC determinations on a static six month period would provide a significant burden reduction for POTWs. NACWA also noted that the rolling quarters approach may lead to double publication of SNC for a single violation. Citing a 1991 memorandum indicating that double publication is not the intent of rolling quarters, EPA did not make a change in the final rule.
• NACWA noted that the TRC used to determine SNC for the pretreatment program were taken straight out of the National Pollutant Discharge Elimination System (NPDES) permitting program and that no attempt was made to relate the application of the criteria to the prevention of pass-through or interference.

Use of Grab and Composite Samples (p. 107)
NACWA appreciated EPA’s proposed changes to clarify the sampling requirement in 40 CFR 403.12, but expressed interest in having EPA specifically define “representative sample.” The final rule incorporates all of EPA’s proposed changes, but does not attempt to define “representative sample.” The changes clarify that the sampling requirements do apply to periodic compliance reports; remove the required minimum of four grab samples for certain analyses, allowing Control Authorities the flexibility to determine an appropriate minimum; clarify when and what type of grab samples can be manually composited and when time-proportional or grab samples can be used in lieu of flow-proportional composite samples.

Slug Control Plans (p. 80)
NACWA said in its 1999 comments that POTWs should be allowed to review the need for slug control plans as part of its ongoing oversight of IUs instead of every two years. Consistent with NACWA’s comments, the final pretreatment streamlining rule removes the required minimum frequency for conducting such reviews.

Best Management Practices (p. 66)
EPA finalized its proposed changes to clarify that best management practices (BMPs) developed by the POTW may serve as local limits and that the BMPs would be enforceable under 40 CFR 403.5(d) (as Pretreatment Standards).

General Control Mechanisms (p. 49)
NACWA’s comments generally supported the use of general control mechanisms to regulate SIUs in certain circumstances and recommended that EPA not limit the discretion granted to the Control Authority to issue permits or control mechanisms. The final pretreatment streamlining rule allows the use of general control mechanisms for SIUs. EPA indicates that SIUs must file a “written request for coverage” with the POTW, but states that existing permit or control mechanism application processes may be used to provide coverage. Additional details on how POTWs can adopt general control mechanisms are also provided.

Sampling for Pollutants Not Present (p. 23)
NACWA strongly supported the proposal to provide Control Authorities with discretion to allow an IU subject to categorical pretreatment standards to forgo sampling for a pollutant that is not expected to be present in its waste stream in a quantity greater than the background level present in its water supply, with no increase in the pollutant due to the regulated process. NACWA also recommended that EPA not limit the appropriate discretion granted to the Control Authority by excluding the Organic Chemicals, Plastics, and Synthetic Fibers point source category (or any other sources regulated by a categorical standard) facilities from this proposed change.

In the final pretreatment streamlining rule EPA adopted its proposed changes authorizing a Control Authority to waive certain monitoring requirements for pollutants neither present nor expected to be present, at levels greater than that of the intake water, without any increase in the pollutant due to the activities of the Industrial User.

Consistent with NACWA’s comments, EPA has determined that it is appropriate for the monitoring waiver to be available to IUs subject to the OCPSF guidelines.

Equivalent Concentration Limits for Flow-Based Standards (p. 94)
NACWA agreed with EPA’s proposal to allow Control Authorities to set limits by applying the concentration numbers in a flow-based standard directly as equivalent concentration limits in cases where a facility’s flow is too variable for development of practical mass limits. However, NACWA noted that the Control Authority should have the flexibility to apply this option to IUs that do not strictly meet this definition if the reasoning behind the decision is fully documented, and that neither the public nor the Approval Authority should need to review the proposed limit prior to Control Authority approval.

Consistent with NACWA’s comments, the final pretreatment streamlining rule allows Control Authorities to use concentration-based limits instead of flow-based mass limits for new and existing indirect dischargers in the OCPSF category, new indirect dischargers in the Petroleum Refining category, and new and existing indirect dischargers in the Pesticide Chemicals category. Furthermore, EPA is not limiting the Control Authority’s authority to develop concentration limits to circumstances in which the Control Authority determines that the facility’s flow is so variable as to make mass limits impracticable.

Removal Credits (p. 153)
Proposed provisions advocated by NACWA that would have allowed IUs located upstream from a sanitary sewer overflow (SSO) or combined sewer overflow (CSO) outfall to be eligible for removal credits if they can show that their discharges would be consistently treated were not adopted in the final rule. Rather, EPA said it is only deleting references to obsolete guidance from the construction grants program and replacing it with a requirement that POTWs comply with all NPDES permit requirements and other mandates issued under the 1994 CSO Control Policy.

In a separate notice that also has not been published yet, EPA is seeking comment on whether to amend the list of pollutants for which removal credits are available to industrial dischargers. The pollutants being considered have already passed EPA’s exposure and hazard screening process. The notice also requests comment on options to amend the "consistent removal" provision in the removal credits regulations to make it easier for municipalities to implement.

Miscellaneous Changes (p. 158)
EPA updates and revises several miscellaneous aspects of the pretreatment program in the final rule including the signatory requirements for IU and POTW reports. The proposal was intended to provide more flexibility as to who could sign the reports by removing the limitation that “duly authorized employee” be a manager of a facility with more than 250 employees or $25 million in expenditures. This would make the signatory requirements consistent with those for direct dischargers under 40 CFR 122.22(a)(1)(ii). The proposal defined a “duly authorized employee” as someone “having responsibility for the overall operation of the facility or activity such as the position of POTW Director, Plant Manager, or Pretreatment Program Manager.”

NACWA expressed concern that the proposed revisions would require authorization to be made in writing by the principal executive officer or ranking elected official and submitted to the Approval Authority prior to the report being submitted by a “duly authorized employee.” The Association recommended that a grandfather provision be added to allow employees responsible for the overall operation of the plant who have been delegated responsibility to sign reports to continue to do so without being required to obtain written authorization to be submitted to the Approval Authority.

EPA did not adopt this change, saying that the new language provides greater flexibility than is available under the existing regulations and clarifies uncertainty regarding a “duly authorized employee.” In order to continue signing relevant reports, the “duly authorized employee” must obtain authorization in writing and submit it to the Approval Authority. The final rule modifies the proposed language by clarifying that the POTW can request this approval either “prior to or together with” the report being submitted.

Provisions EPA Did Not Finalize in Final Rule

Specific Prohibition Regarding pH
NACWA’s 1999 comments expressed concern with EPA’s proposed clarification that the discharge of wastewater with pH below 5.0 is not limited to municipal facilities that, when originally constructed, were specifically designed to accept low pH discharges. NACWA was concerned as to the extent of justification and detail required for any POTW to be able to accept a discharge below 5.0 under the proposal. Instead, NACWA proposed an alternative approach that would allow short-term discharges between a pH of 4.0 and 5.0 without requiring each individual POTW to make temporary site-specific demonstration.

EPA and NACWA decided several years ago that the issues surrounding this provision were too contentious to address in the final pretreatment streamlining rule at this time. The limited amount of research available to demonstrate the minimal impact such short durations would have proved to be an insurmountable challenge. In addition, the environmental activist community had filed a Petition for Rulemaking to actually lower the current prohibition level from a pH of 5.0 to 4.0. This filing was an extremely effective tactical move on the part of the activist community in an attempt to prevent what their former representative realized would have happened anyway, as referenced in the NPDES regulations.

Definition of Significant Industrial User
NACWA’s 1999 comments recommended that EPA change the definition of significant industrial user to better reflect potential impact to the receiving POTW. NACWA recommended deleting the 25,000 gpd flow designation for non-categorical SIUs and instead supported having a 5% of flow standard in all instances. The final pretreatment streamlining rule does not make any changes to the definition of SIU.

Types of Changes POTWs Need to Make (p. 254)
Many of the provisions contained in the final Pretreatment Streamlining Rule are intended to provide flexibility to the POTW community and may be adopted at the POTW’s discretion. However, some aspects of the rule amount to minimum requirements that may require modifications to the POTW’s approved program.

Examples of these provisions include:

• Clarification that slug control requirements must be referenced in SIU control mechanisms. The POTW is required to adopt this change because it specifies new minimum requirements for all SIU control mechanisms.

• Revisions to the definition of SNC to include additional types of pretreatment standards and requirements, such as narrative standards that were not covered in previous definitions. It should be noted that NACWA brought this loophole to the attention of EPA and requested the changes.

• Modifications to the sampling requirements and clarifying that all monitoring results must be reported. SIUs are now required to follow sampling requirements in 40 CFR 403.12 for periodic compliance reports, whereas previously they were only explicitly applicable to baseline monitoring reports and 90-day compliance reports. Also, the final rule now requires that non-categorical SIUs report all monitoring results, whereas the previous regulations only made this requirement explicit for categorical SIUs. The POTW is required to adopt these revisions because they set new minimum requirements for sampling and notification.

Substantial Modification vs. Non-Substantial Modification
All of the changes laid out in the final rule can be treated as non-substantial modifications if the revisions to POTW’s local ordinance to incorporate those changes reflect federal requirements. As such, the Approval Authority has 45 days to either approve or disapprove the modification or to treat it as substantial. If the POTW is not notified of the decision within that time period, the modification can be implemented as if it were approved.

Regions and delegated states are being directed by EPA Headquarters to expedite POTWs’ requests for minor program modifications so that the streamlining process can be implemented as soon as possible.

Please contact Chris Hornback, NACWA Director of Regulatory Affairs, at (202) 833-9106 or chornback@nacwa.org, or Susie Bruninga, NACWA Manager of Regulatory Affairs, at (202) 833-3280 or sbruninga@nacwa.org for more information on this rule.

* Because the final streamlining rule had not been published in the Federal Register at the time this Regulatory Alert was issued, the page numbers referencing specific sections in the final rule correspond to the page numbers in the prepublication copy of the rule posted on NACWA’s website (http://www.nacwa.org/getfile.cfm?fn=2005-09-28pretrule.pdf).