NACWA Regulatory Alert (RA 06-04)

The U.S. Environmental Protection Agency (EPA) recently made available a fact sheet (http://www.epa.gov/npdes/pubs/pretreatment_streamlining_required_changes.pdf) detailing required changes to the National Pretreatment Program regulations (40 CFR Part 403) that resulted from the October 2005 Pretreatment Streamlining Rule. While EPA recommends that these changes be made as soon as possible, NACWA urges members to be particularly aware of one provision relating to an evaluation of significant industrial users (SIUs) to determine the need for a slug control plan or other action because it has an approaching deadline of October 14, 2006.

NACWA worked diligently for more than a decade through its Pretreatment and Pollution Prevention Committee to get many of the provisions EPA incorporated into the new rule, which was detailed in a previous Regulatory Alert (http://www.nacwa.org/private/regalerts/ra05-10.cfm).

Fact Sheet Highlights Required Changes
The new rule mandates 13 changes that must be adopted into either state pretreatment regulations or approved POTW pretreatment programs. Delegated states may also have to revise their regulations to ensure they have the authority to enforce the requirements. NACWA members should carefully review the fact sheet and Pretreatment Streamlining Rule before proceeding with any changes.

Under the new pretreatment regime:

• POTWs must incorporate slug control requirements into their SIU control mechanisms and revise their programs, if necessary, to ensure they have the legal authority and procedures to modify control mechanisms as needed.
• POTWs must evaluate their SIUs by October 14 or within a year from when a facility is deemed an SIU to determine if a plan or other action is needed to control slug discharges. While POTWs must perform the evaluation, a pretreatment program modification may not be necessary.
• POTWs and states may have to revise their approved program to ensure they have the authority to enforce a requirement that SIUs notify the POTW of any changes that may affect the potential for a slug discharge.
• POTWs must incorporate in their legal authority, enforcement plan, and/or program procedures the expanded definition of significant noncompliance (SNC) to include additional types of pretreatment standards and requirements. The changes affect what EPA considers to be chronic violations.
• POTWs must revise their legal authority, enforcement plan, and/or program procedures to require SIUs to report information on complying with pretreatment standards or local limits based on best management practices (BMPs).
• POTWs must ensure that they have legal authority and procedures to implement a requirement that applicable BMPs must be included in control mechanisms, although EPA expects that most POTWs already have this authority.
• POTWs and SIUs must maintain records of BMP compliance in the same way other records are maintained. SIU permits should be revised to require that documentation be maintained by the user.
• POTWs must revise their approved programs to ensure they have the authority and procedures to ensure that where they are responsible for sampling at SIUs, they can repeat sampling and analysis within 30 days of becoming aware of an exceedance. However, it is assumed that POTWs can sample any time they determine it is appropriate, and no program revisions may be necessary.
• POTWs must revise their legal authorities and program procedures to incorporate changes mandating periodic compliance reports to meet sampling requirements, requiring the control authority to specify the number of grab samples in periodic and non-categorical SIU reports, and requiring non-categorical SIUs to report all monitoring results.
• POTWs must revise their approved programs and SIU control mechanisms to ensure they have the authority to enforce a new requirement to non-categorical SIUs to provide representative samples in their periodic monitoring reports.

Other Relevant Changes

The following changes apply largely to the states. POTWs need not take action but should be aware of them.

• Before approving any removal credits relating to combined sewer overflows (CSOs), delegated states must revise their regulations to incorporate the updated references to POTW requirements to adjust removal credits for CSOs. No change to POTW pretreatment programs is needed.
• States must revise their regulations to require discharge notifications that have been changed to go to the state in cases where the POTW is not the control authority. POTWs do not need to make the change since they were already required to be notified.
• States must revise their regulations on when and how a POTW can designate a “duly authorized employee” to sign POTW reports.

Please do not hesitate to contact Chris Hornback, Director of Regulatory Affairs, at 202/833-9106 or chornback@nacwa.org, with any questions on this notice.