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AMSA's Comments on EPA's Draft Pretreatment Streamlining Proposals

Modifications of Significant NonCompliance Criteria
AMSA believes that critical modifications are needed for the existing Significant NonCompliance Criteria (SNC) beyond what EPA has prosed in the May 30, 1997 Stakeholder Draft. While AMSA can support the two modifications proposed by EPA (i.e., limiting SNC determinations to Significant Industrial Users (SIUs) and replacing “daily maximum and average limits” with “pretreatment standard”), EPA has not gone far enough to streamline and remedy SNC. AMSA is disappointed that EPA did not propose modifications or seek comments on other SNC provisions. We believe that the WEF/AMSA recommendations pertaining to reporting violations, technical review criteria, rolling quarter determinations, and publication have significant merit and at deserve an opportunity for public review and comment.

EPA is seeking comment on revising 40 CFR 403.8(f)(2)(vii) regarding the annual SNC publication. AMSA agrees with the recommendation to make the publication requirement consistent with the soon to be promulgated program modification provisions in § 403.11(b)(1)(I)(B) that allow publication in any paper of general circulation within the jurisdiction served by the POTW. However, please be advised that many AMSA members have commented that they do not believe that the annual publication is a significant deterrent for industrial users (IUs).

AMSA agrees with EPA's proposal to modify the regulations to apply SNC only to SIUs. EPA has requested comments on whether the regulations should continue to require that any IU whose discharge causes pass through or interference or causes imminent endangerment be considered in SNC. We believe that these types of dischargers should already be defined as SIUs under § 403.3(t)(1)(ii), and thus do not believe these specific circumstances need to be addressed.

AMSA agrees with EPA's proposal to modify the regulations to replace daily maximum and average limits with pretreatment standards in § 403(f)(2)(vii)(A) and (C); this same change needs to be made to § 430(f)(2)(vii)(B). EPA asked for comments on whether to make the Pretreatment SNC consistent with the National Pollution Discharge Elimination System (NPDES) policy on SNC. AMSA does not support this suggestion. The NPDES policy is too complicated to administer and would be essentially meaningless. The distinction will be lost on the public.

AMSA is very disappointed that EPA is not proposing to amend the TRC. We disagree with EPA's statement that the TRC is “...merely a criterion of a well-operated treatment plant to establish some regulatory limits for the Best Available Technology Economically Achievable (BAT)...” It is our understanding that the TRC were chosen for the NPDES program 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. Thus, EPA should re-evaluate the TRC based on pretreatment program requirements, analytical variability and “method detection” methodologies. Perhaps EPA should consider that a Permittee would be in SNC if it violated its daily maximum limit by some significant factor, instead of some percentage factor that is not tied to a minimum number of analyses. AMSA recommends that EPA ask for comments in the proposed rulemaking 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.

AMSA is disappointed that EPA is not proposing a change to late reports. We believe that the suggestions made in the Stakeholder Draft are too complicated and do not address the true issue; namely, the fact that violations for late reports should not be classified in the same vein as numeric violations. The Control Authority should have the flexibility to determine if and what kind of reporting violations should be classified as SNC. EPA has stated that the rationale for the 30-day requirement is the supposition that if a report is late, the monitoring was not performed. This is not the case. We also take exception to EPA's statement that “The pretreatment program is primarily implemented through a self-policing and self-reporting system. If an industrial user fails to report, a POTW cannot adequately determine compliance.” We strongly disagree. The program is primarily based on policing by Control Authority as evidenced by the hundreds of thousands of inspections performed by and samples collected by Control Authorities. Thus, AMSA does not believe that a late report will impede the ability of Control Authorities to determine compliance. As an alternative, EPA should consider basing this requirement on failure to perform the required monitoring or when 33% or more of all required reports in a reporting period are greater than 30 days late. This provision would take into consideration the significant difference in submissions based on daily or weekly requirements versus the minimum of semi-annually.

AMSA is disappointed that EPA is not proposing to change the regulations to address the issue of how SNC is determined. The current “rolling quarters” policy is perceived by Control Authorities to be a program mandate. This policy can force SNC determinations based on one data point and may not adequately reflect compliance and performance by industrial users. We believe that it would be more appropriate to determine SNC on a 6-month calendar basis (e.g., January - June and July - December of each calendar year). We disagree with EPA's statement that once explained the policy is easy to use. The rolling quarter approach is cumbersome. IUs could potentially be in SNC for two calendar years for data provided in the October-December quarter.

Specific Prohibition Regarding pH
AMSA supports the flexibility in the EPA proposal to allow for the introduction of wastewater with a pH below 5.0 provided the POTW and its wastewater collection infrastructure can accommodate it. AMSA believes that allowance of a lower pH standard also carries the associated liability with it. Any alternative pH limit or excursions should be clearly defined in an Industrial User's Permit. In reviewing Hampton Roads Sanitation District (HRSD) data, for example, for the past two years, there were 53 pH only violations of which 34 were ±4.0 and of a duration less than 15 minutes. These 53 violations accounted for 30.9 hours of HRSD administrative staff time and represent 8.5% of all technical violations for the past two years. Two of our Permittees had to pay Administrative Penalties as a result of a pH violation. HRSD experienced no impact to our transmission or treatment systems as a result of any of these pH violations. AMSA proposes to EPA to allow pHs between 4.0 and 5.0 that do not exceed a 15 minute time frame.

The proposal also requires the Control Authority to report on its oversight actions and findings regarding alternative pH requirements in the annual report. Yet on page 13 of the proposal, paragraph 2, EPA indicates that an adjustment to the way a POTW regulates pH must be submitted to the Approval Authority as a non-substantial program modification. We suggest that the submittal in the annual report is sufficient since any action would simply be in compliance with the regulations. This needs to be clarified in the rule proposal.

Equivalent Mass Limits for Concentration Limits
AMSA supports the proposal to allow for the conversion from concentration to mass-based limits; however, the proposed implementation process is not practical.

Equivalent Concentration Limits for Flow Based Standards
AMSA supports the proposal allowing for conversion from concentration-based to mass-based limits; however, the proposed implementation process is not practical and does not address the issue of whether flow meters will be required to determine compliance. AMSA believes that compliance should not be contingent upon requiring the use of effluent flow meters due to the complexities, problems and burdens imposed by installing, maintaining and evaluating flow metering systems. EPA should identify the appropriate flow ranges from the various development documents or be prepared to provide guidance. Placing this responsibility on each Control Authority would be too burdensome. EPA also needs to provide a discussion in the Preamble of the proposed rulemaking as to how compliance with these converted mass-based limits will be determined.

The opportunity for conversion to mass-based limits should not just be limited to situations where water conservation applies. Alternative language is suggested as follows:

“(5) When a categorical Pretreatment Standard is expressed in terms of pollutant concentrations that are directly applicable as limits on the Industrial User, a Control Authority may convert the limits to mass limits if compliance with a concentration limit is impractical including but not limited to circumstances where an Industrial User is employing water conservation methods and technologies that reduce water usage more than the model technology assumed by EP in the development of a national categorical standard.”

Equivalent Concentration Limits for Flow Based Standards
AMSA supports the proposal that will allow Control Authorities to 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.

POTW Oversight of Significant Industrial Users
AMSA agrees that a kind of change is needed with regard to the minimum requirements for oversight of SIUs. However, we do not believe that EPA proposal provides enough streamlining opportunities. AMSA members provided a variety of suggestions, including:

AMSA believe that under any of these approaches there will still be sufficient oversight of “non-SIU” categorical facilities because they will still be required to perform self-monitoring and submit BMRs and 90-day compliance reports pursuant to § 403.12(b), (d) and (e). The Control Authority is also required to independently determine compliance regardless of SIU status pursuant to § 403.8(f)(2)(v).

Slug Control Plans
AMSA supports the proposal that 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.

Sampling for Pollutants Not Present
AMSA supports the EPA proposal 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.

AMSA also supports the proposal that Control Authorities should be able to waive sampling of organics since these may vary over time from organic chemical manufacturers. AMSA believes that POTWs should be given some discretion in determining which compounds to assess based on historical sampling data.

One complication with EPA's proposal is the determination of background levels. In many cases potable water can be a compilation of various sources. AMSA suggests that the IUs be allowed to use the annual water quality report generated by their water supplier for determination of background level, and that the POTW should not be responsible for checking if the background level changes from time to time, except possibly at the time of permit renewal, nor should they be responsible for influent monitoring.

De Minimis Categorical Industrial Users
Several of AMSA's members commented that this proposal really does not offer much in the way of streamlining. The only effect it has is to allow de minimis CIUs to take one annual self-monitoring sample if the POTW also takes one. AMSA supports the suggestion to eliminate the requirement that de minimis CIUs monitor and report at least twice per year with minimum monitoring determined by the Control Authority. This should not be tied to a provision that the Control Authority performs at least one unannounced sampling per year.

Use of Grab and Composite Samples
AMSA supports some of the proposed changes to the use of grab and composite samples, and disagrees with others. Under EPA's proposal, sampling requirements for industrial users will remain unchanged for BMRs, 90-day compliance reports and periodic compliance reports (self-monitoring reports), except that for pH, cyanide, total phenols, oil and grease, sulfide and volatile organics, the number of grab samples required for BMRs and 90-day compliance reports will remain a minimum of four, while the number for periodic reports will be determined by the Control Authority. We believe that specifying the number of grabs for BMRs and 90-day compliance reports only makes sense if no data have been collected for a CIU, such as a facility that is new and has not started production. Typically, the Control Authority will have existing data available, and should be able to make the determination as to the appropriate number of grab samples needed for BMRs and 90-day reports.

Under EPA's proposal, the feasibility of flow-proportioned sampling is determined by the Control Authority by evaluating “...whether the flow is so small or variable that standard measurement techniques are unreliable or that the cost and/or physical configuration of the discharge location precludes modifying the facility or monitoring equipment.” But in order to make this determination, the Control Authority must require demonstration by the IU that the different proportioning methods “...provide a representative sample of the effluent being discharged.” AMSA believes that the magnitude of a flow has no effect on the representativeness of flow or time-proportioning; however, variability will. If flow is constant, then flow-proportioning and time-proportioning will yield equivalent results, and thus a flow meter is not required. If flow-proportioning is waived for variable flow, because it is difficult to measure, then a flow meter is not required. So only the IUs with large but a little bit variable flow would need to use flow-proportioning techniques. If the Control Authority determines flow measurement is not feasible, then the proposed change that requires for comparisons of flow and time proportionate methodology to evaluate representativeness makes no sense (e.g., how can an evaluation be done if you can't determine flow?). This kind of determination would apply in situations where it is feasible to measure flow, the industry doesn't want to install one or doesn't believe there is a need to install one.

The proposed § 403.12(g)(3) includes existing language regarding waivers: “The Control Authority may waive flow-proportional composite sampling for any Industrial User that demonstrates that flow-proportional sampling is infeasible.” AMSA is concerned that the wording “demonstrates” might jeopardize a Control Authority's enforcement program. For example, if the IU does not demonstrate that flow-proportional sampling is infeasible, yet there are no readily available methods to conduct such a sampling, a Control Authority may not be able to successfully enforce a time-proportional sample result that violates an applicable pretreatment standard. It is suggested that the statement be modified as follows:

“The Control Authority may allow time-proportioned samples to be used in lieu of flow-proportioned samples if flow-proportioned sampling is infeasible.”

This phrasing also prevents the implication that a sampling requirement could be waived altogether.

AMSA would like to point out that much of the sampling used to develop the categorical pretreatment standards was based on time-proportioned sampling. Since the standards were not based on flow-proportional sampling, why is EPA so insistent upon flow-proportional sampling for implementation? What about a company that sometimes has a working flow meter and sometimes doesn't? What is the company supposed to do if the flow meter is inoperable when it is supposed to collect a compliance sample? Are these samples valid? Can the IU sign the certification statement? Based on the original data collection alone, time-proportional samples should be considered equally valid, and flow-proportional samples should only be collected when flow metering equipment has been installed (usually for other local concerns) and is functioning properly.

AMSA also recommends that EPA reconsider the AMSA/WEF Workshop recommendation to define a “representative sample.

AMSA supports EPA's proposal that the time over which a composite sample is collected will be specifically limited to the discharge period such as an 8-hour composite sample over an 8-hour work day. AMSA also supports EPA's proposal regarding manual compositing of multiple grab samples for cyanide and volatile organic compounds prior to analysis. AMSA also supports EPA's proposal, under § 403.12(h), to remove redundant language.

Removal Credits
AMSA does not consider this a priority topic for streamlining. However, Control Authority should have the latitude of its use.

Electronic Filing and Storage of Reports
AMSA supports EPA's proposal to allow for electronic submittal and storage of data, and recommends that this not be a mandatory requirement. AMSA recommends that the Regulatory Information Inventory & Team Evaluation (RIITE) project, as part of EPA's Common Sense Initiative, be used as the template for electronic reporting. AMSA supports the use of Personal Identification Numbers as the most practical way of satisfying signatory requirements, with PINs assigned to individuals who have completed an authorization document.

General Permits
AMSA supports EPA's proposal to allow the use of general permits.

Best Management Practices
AMSA supports EPA's proposal to clarify that Best Management Practices (BMP) may serve as local limits. AMSA does not believe that the use of BMPs should be limited to only those instances cited in the proposal; namely, releases when the types of pollutants vary greatly over time, when chemical analyses are inappropriate or impossible, and when other discharge control options are inappropriate. BMPs should be used whenever the Control Authority determines that they are the most efficient means of meeting environmental goals.