(a) POTWs required to develop a pretreatment program. Any POTW (or
combination of POTWs operated by the same authority) with a total design
flow greater than 5 million gallons per day (mgd) and receiving from
Industrial Users pollutants which Pass Through or Interfere with the
operation of the POTW or are otherwise subject to Pretreatment Standards
will be required to establish a POTW Pretreatment Program unless the
NPDES State exercises its option to assume local responsibilities as
provided for in Sec. 403.10(e). The Regional Administrator or Director
may require that a POTW with a design flow of 5 mgd or less develop a
POTW Pretreatment Program if he or she finds that the nature or volume
of the industrial influent, treatment process upsets, violations of POTW
effluent limitations, contamination of municipal sludge, or other
circumstances warrant in order to prevent Interference with the POTW or
Pass Through.
(b) Deadline for Program Approval. A POTW which meets the criteria
of paragraph (a) of this section must receive approval of a POTW
Pretreatment Program no later than 3 years after the reissuance or
modification of its existing NPDES permit but in no case later than July
1, 1983. POTWs whose NPDES permits are modified under section 301(h) of
the Act shall have a Pretreatment Program within three (3) years as
provided for in 40 CFR part 125, subpart G. POTWs identified after July
1, 1983 as being required to develop a POTW Pretreatment Program under
paragraph (a) of this section shall develop and submit such a program
for approval as soon as possible, but in no case later than one year
after written notification from the Approval Authority of such
identification. The POTW Pretreatment Program shall meet the criteria
set forth in paragraph (f) of this section and shall be administered by
the POTW to ensure compliance by Industrial Users with applicable
Pretreatment Standards and Requirements.
(c) Incorporation of approved programs in permits. A POTW may
develop an appropriate POTW Pretreatment Program any time before the
time limit set forth in paragraph (b) of this section. The POTW's NPDES
Permit will be reissued or modified by the NPDES State or EPA to
incorporate the approved Program as enforceable conditions of the
Permit. The modification of a POTW's NPDES Permit for the purposes of
incorporating a POTW Pretreatment Program approved in accordance with
the procedure in Sec. 403.11 shall be deemed a minor Permit
modification subject to the procedures in 40 CFR 122.63.
(d) Incorporation of compliance schedules in permits. [Reserved]
(e) Cause for reissuance or modification of Permits. Under the
authority of section 402(b)(1)(C) of the Act, the Approval Authority may
modify, or alternatively, revoke and reissue a POTW's Permit in order
to:
(1) Put the POTW on a compliance schedule for the development of a
POTW Pretreatment Program where the addition of pollutants into a POTW
by an Industrial User or combination of Industrial Users presents a
substantial hazard to the functioning of the treatment works, quality of
the receiving waters, human health, or the environment;
[[Page 28]]
(2) Coordinate the issuance of a section 201 construction grant with
the incorporation into a permit of a compliance schedule for POTW
Pretreatment Program;
(3) Incorporate a modification of the permit approved under section
301(h) or 301(i) of the Act;
(4) Incorporate an approved POTW Pretreatment Program in the POTW
permit; or
(5) Incorporate a compliance schedule for the development of a POTW
pretreatment program in the POTW permit.
(6) Incorporate the removal credits (established under Sec. 403.7)
in the POTW permit.
(f) POTW pretreatment requirements. A POTW pretreatment program must
be based on the following legal authority and include the following
procedures. These authorities and procedures shall at all times be fully
and effectively exercised and implemented.
(1) Legal authority. The POTW shall operate pursuant to legal
authority enforceable in Federal, State or local courts, which
authorizes or enables the POTW to apply and to enforce the requirements
of sections 307 (b) and (c), and 402(b)(8) of the Act and any
regulations implementing those sections. Such authority may be contained
in a statute, ordinance, or series of contracts or joint powers
agreements which the POTW is authorized to enact, enter into or
implement, and which are authorized by State law. At a minimum, this
legal authority shall enable the POTW to:
(i) Deny or condition new or increased contributions of pollutants,
or changes in the nature of pollutants, to the POTW by Industrial Users
where such contributions do not meet applicable Pretreatment Standards
and Requirements or where such contributions would cause the POTW to
violate its NPDES permit;
(ii) Require compliance with applicable Pretreatment Standards and
Requirements by Industrial Users;
(iii) Control through Permit, order, or similar means, the
contribution to the POTW by each Industrial User to ensure compliance
with applicable Pretreatment Standards and Requirements. In the case of
Industrial Users identified as significant under Sec. 403.3(v), this
control shall be achieved through individual permits or equivalent
individual control mechanisms issued to each such User except as
follows.
(A)(1) At the discretion of the POTW, this control may include use
of general control mechanisms if the following conditions are met. All
of the facilities to be covered must:
(i) Involve the same or substantially similar types of operations;
(ii) Discharge the same types of wastes;
(iii) Require the same effluent limitations;
(iv) Require the same or similar monitoring; and
(v) In the opinion of the POTW, are more appropriately controlled
under a general control mechanism than under individual control
mechanisms.
(2) To be covered by the general control mechanism, the Significant
Industrial User must file a written request for coverage that identifies
its contact information, production processes, the types of wastes
generated, the location for monitoring all wastes covered by the general
control mechanism, any requests in accordance with Sec. 403.12(e)(2)
for a monitoring waiver for a pollutant neither present nor expected to
be present in the Discharge, and any other information the POTW deems
appropriate. A monitoring waiver for a pollutant neither present nor
expected to be present in the Discharge is not effective in the general
control mechanism until after the POTW has provided written notice to
the Significant Industrial User that such a waiver request has been
granted in accordance with Sec. 403.12(e)(2). The POTW must retain a
copy of the general control mechanism, documentation to support the
POTW's determination that a specific Significant Industrial User meets
the criteria in paragraphs (f)(1)(iii)(A)(1) through (5) of this
section, and a copy of the User's written request for coverage for 3
years after the expiration of the general control mechanism. A POTW may
not control a Significant Industrial User through a general control
mechanism where the facility is subject to production-based categorical
Pretreatment Standards or categorical Pretreatment Standards expressed
as
[[Page 29]]
mass of pollutant discharged per day or for Industrial Users whose
limits are based on the Combined Wastestream Formula or Net/Gross
calculations (Sec. Sec. 403.6(e) and 403.15).
(B) Both individual and general control mechanisms must be
enforceable and contain, at a minimum, the following conditions:
(1) Statement of duration (in no case more than five years);
(2) Statement of non-transferability without, at a minimum, prior
notification to the POTW and provision of a copy of the existing control
mechanism to the new owner or operator;
(3) Effluent limits, including Best Management Practices, based on
applicable general Pretreatment Standards in part 403 of this chapter,
categorical Pretreatment Standards, local limits, and State and local
law;
(4) Self-monitoring, sampling, reporting, notification and
recordkeeping requirements, including an identification of the
pollutants to be monitored (including the process for seeking a waiver
for a pollutant neither present nor expected to be present in the
Discharge in accordance with Sec. 403.12(e)(2), or a specific waived
pollutant in the case of an individual control mechanism), sampling
location, sampling frequency, and sample type, based on the applicable
general Pretreatment Standards in part 403 of this chapter, categorical
Pretreatment Standards, local limits, and State and local law;
(5) Statement of applicable civil and criminal penalties for
violation of Pretreatment Standards and requirements, and any applicable
compliance schedule. Such schedules may not extend the compliance date
beyond applicable federal deadlines;
(6) Requirements to control Slug Discharges, if determined by the
POTW to be necessary.
(iv) Require (A) the development of a compliance schedule by each
Industrial User for the installation of technology required to meet
applicable Pretreatment Standards and Requirements and (B) the
submission of all notices and self-monitoring reports from Industrial
Users as are necessary to assess and assure compliance by Industrial
Users with Pretreatment Standards and Requirements, including but not
limited to the reports required in Sec. 403.12.
(v) Carry out all inspection, surveillance and monitoring procedures
necessary to determine, independent of information supplied by
Industrial Users, compliance or noncompliance with applicable
Pretreatment Standards and Requirements by Industrial Users.
Representatives of the POTW shall be authorized to enter any premises of
any Industrial User in which a Discharge source or treatment system is
located or in which records are required to be kept under Sec.
403.12(o) to assure compliance with Pretreatment Standards. Such
authority shall be at least as extensive as the authority provided under
section 308 of the Act;
(vi)(A) Obtain remedies for noncompliance by any Industrial User
with any Pretreatment Standard and Requirement. All POTW's shall be able
to seek injunctive relief for noncompliance by Industrial Users with
Pretreatment Standards and Requirements. All POTWs shall also have
authority to seek or assess civil or criminal penalties in at least the
amount of $1,000 a day for each violation by Industrial Users of
Pretreatment Standards and Requirements.
(B) Pretreatment requirements which will be enforced through the
remedies set forth in paragraph (f)(1)(vi)(A) of this section, will
include but not be limited to, the duty to allow or carry out
inspections, entry, or monitoring activities; any rules, regulations, or
orders issued by the POTW; any requirements set forth in control
mechanisms issued by the POTW; or any reporting requirements imposed by
the POTW or these regulations in this part. The POTW shall have
authority and procedures (after informal notice to the discharger)
immediately and effectively to halt or prevent any discharge of
pollutants to the POTW which reasonably appears to present an imminent
endangerment to the health or welfare of persons. The POTW shall also
have authority and procedures (which shall include notice to the
affected industrial users and an opportunity to respond) to halt or
prevent any discharge to the POTW which presents or may
[[Page 30]]
present an endangerment to the environment or which threatens to
interfere with the operation of the POTW. The Approval Authority shall
have authority to seek judicial relief and may also use administrative
penalty authority when the POTW has sought a monetary penalty which the
Approval Authority believes to be insufficient.
(vii) Comply with the confidentiality requirements set forth in
Sec. 403.14.
(2) Procedures. The POTW shall develop and implement procedures to
ensure compliance with the requirements of a Pretreatment Program. At a
minimum, these procedures shall enable the POTW to:
(i) Identify and locate all possible Industrial Users which might be
subject to the POTW Pretreatment Program. Any compilation, index or
inventory of Industrial Users made under this paragraph shall be made
available to the Regional Administrator or Director upon request;
(ii) Identify the character and volume of pollutants contributed to
the POTW by the Industrial Users identified under paragraph (f)(2)(i) of
this section. This information shall be made available to the Regional
Administrator or Director upon request;
(iii) Notify Industrial Users identified under paragraph (f)(2)(i)
of this section, of applicable Pretreatment Standards and any applicable
requirements under sections 204(b) and 405 of the Act and subtitles C
and D of the Resource Conservation and Recovery Act. Within 30 days of
approval pursuant to 40 CFR 403.8(f)(6), of a list of significant
industrial users, notify each significant industrial user of its status
as such and of all requirements applicable to it as a result of such
status.
(iv) Receive and analyze self-monitoring reports and other notices
submitted by Industrial Users in accordance with the self-monitoring
requirements in Sec. 403.12;
(v) Randomly sample and analyze the effluent from Industrial Users
and conduct surveillance activities in order to identify, independent of
information supplied by Industrial Users, occasional and continuing
noncompliance with Pretreatment Standards. Inspect and sample the
effluent from each Significant Industrial User at least once a year,
except as otherwise specified below:
(A) Where the POTW has authorized the Industrial User subject to a
categorical Pretreatment Standard to forego sampling of a pollutant
regulated by a categorical Pretreatment Standard in accordance with
Sec. 403.12(e)(3), the POTW must sample for the waived pollutant(s) at
least once during the term of the Categorical Industrial User's control
mechanism. In the event that the POTW subsequently determines that a
waived pollutant is present or is expected to be present in the
Industrial User's wastewater based on changes that occur in the User's
operations, the POTW must immediately begin at least annual effluent
monitoring of the User's Discharge and inspection.
(B) Where the POTW has determined that an Industrial User meets the
criteria for classification as a Non-Significant Categorical Industrial
User, the POTW must evaluate, at least once per year, whether an
Industrial User continues to meet the criteria in Sec. 403.3(v)(2).
(C) In the case of Industrial Users subject to reduced reporting
requirements under Sec. 403.12(e)(3), the POTW must randomly sample and
analyze the effluent from Industrial Users and conduct inspections at
least once every two years. If the Industrial User no longer meets the
conditions for reduced reporting in Sec. 403.12(e)(3), the POTW must
immediately begin sampling and inspecting the Industrial User at least
once a year.
(vi) Evaluate whether each such Significant Industrial User needs a
plan or other action to control Slug Discharges. For Industrial Users
identified as significant prior to November 14, 2005, this evaluation
must have been conducted at least once by October 14, 2006; additional
Significant Industrial Users must be evaluated within 1 year of being
designated a Significant Industrial User. For purposes of this
subsection, a Slug Discharge is any Discharge of a non-routine, episodic
nature, including but not limited to an accidental spill or a non-
customary batch Discharge, which has a reasonable potential to cause
Interference or
[[Page 31]]
Pass Through, or in any other way violate the POTW's regulations, local
limits or Permit conditions. The results of such activities shall be
available to the Approval Authority upon request. Significant Industrial
Users are required to notify the POTW immediately of any changes at its
facility affecting potential for a Slug Discharge. If the POTW decides
that a slug control plan is needed, the plan shall contain, at a
minimum, the following elements:
(A) Description of discharge practices, including non-routine batch
Discharges;
(B) Description of stored chemicals;
(C) Procedures for immediately notifying the POTW of Slug
Discharges, including any Discharge that would violate a prohibition
under Sec. 403.5(b) with procedures for follow-up written notification
within five days;
(D) If necessary, procedures to prevent adverse impact from
accidental spills, including inspection and maintenance of storage
areas, handling and transfer of materials, loading and unloading
operations, control of plant site run-off, worker training, building of
containment structures or equipment, measures for containing toxic
organic pollutants (including solvents), and/or measures and equipment
for emergency response;
(vii) Investigate instances of noncompliance with Pretreatment
Standards and Requirements, as indicated in the reports and notices
required under Sec. 403.12, or indicated by analysis, inspection, and
surveillance activities described in paragraph (f)(2)(v) of this
section. Sample taking and analysis and the collection of other
information shall be performed with sufficient care to produce evidence
admissible in enforcement proceedings or in judicial actions; and
(viii) Comply with the public participation requirements of 40 CFR
part 25 in the enforcement of National Pretreatment Standards. These
procedures shall include provision for at least annual public
notification in a newspaper(s) of general circulation that provides
meaningful public notice within the jurisdiction(s) served by the POTW
of Industrial Users which, at any time during the previous 12 months,
were in significant noncompliance with applicable Pretreatment
requirements. For the purposes of this provision, a Significant
Industrial User (or any Industrial User which violates paragraphs
(f)(2)(viii)(C), (D), or (H) of this section) is in significant
noncompliance if its violation meets one or more of the following
criteria:
(A) Chronic violations of wastewater Discharge limits, defined here
as those in which 66 percent or more of all of the measurements taken
for the same pollutant parameter during a 6-month period exceed (by any
magnitude) a numeric Pretreatment Standard or Requirement, including
instantaneous limits, as defined by 40 CFR 403.3(l);
(B) Technical Review Criteria (TRC) violations, defined here as
those in which 33 percent or more of all of the measurements taken for
the same pollutant parameter during a 6-month period equal or exceed the
product of the numeric Pretreatment Standard or Requirement including
instantaneous limits, as defined by 40 CFR 403.3(l) multiplied by the
applicable TRC (TRC=1.4 for BOD, TSS, fats, oil, and grease, and 1.2 for
all other pollutants except pH);
(C) Any other violation of a Pretreatment Standard or Requirement as
defined by 40 CFR 403.3(l) (daily maximum, long-term average,
instantaneous limit, or narrative Standard) that the POTW determines has
caused, alone or in combination with other Discharges, Interference or
Pass Through (including endangering the health of POTW personnel or the
general public);
(D) Any discharge of a pollutant that has caused imminent
endangerment to human health, welfare or to the environment or has
resulted in the POTW's exercise of its emergency authority under
paragraph (f)(1)(vi)(B) of this section to halt or prevent such a
discharge;
(E) Failure to meet, within 90 days after the schedule date, a
compliance schedule milestone contained in a local control mechanism or
enforcement order for starting construction, completing construction, or
attaining final compliance;
(F) Failure to provide, within 45 days after the due date, required
reports such as baseline monitoring reports, 90-
[[Page 32]]
day compliance reports, periodic self-monitoring reports, and reports on
compliance with compliance schedules;
(G) Failure to accurately report noncompliance;
(H) Any other violation or group of violations, which may include a
violation of Best Management Practices, which the POTW determines will
adversely affect the operation or implementation of the local
Pretreatment program.
(3) Funding. The POTW shall have sufficient resources and qualified
personnel to carry out the authorities and procedures described in
paragraphs (f) (1) and (2) of this section. In some limited
circumstances, funding and personnel may be delayed where (i) the POTW
has adequate legal authority and procedures to carry out the
Pretreatment Program requirements described in this section, and (ii) a
limited aspect of the Program does not need to be implemented
immediately (see Sec. 403.9(b)).
(4) Local limits. The POTW shall develop local limits as required in
Sec. 403.5(c)(1), or demonstrate that they are not necessary.
(5) The POTW shall develop and implement an enforcement response
plan. This plan shall contain detailed procedures indicating how a POTW
will investigate and respond to instances of industrial user
noncompliance. The plan shall, at a minimum:
(i) Describe how the POTW will investigate instances of
noncompliance;
(ii) Describe the types of escalating enforcement responses the POTW
will take in response to all anticipated types of industrial user
violations and the time periods within which responses will take place;
(iii) Identify (by title) the official(s) responsible for each type
of response;
(iv) Adequately reflect the POTW's primary responsibility to enforce
all applicable pretreatment requirements and standards, as detailed in
40 CFR 403.8 (f)(1) and (f)(2).
(6) The POTW shall prepare and maintain a list of its Industrial
Users meeting the criteria in Sec. 403.3(v)(1). The list shall identify
the criteria in Sec. 403.3(v)(1) applicable to each Industrial User
and, where applicable, shall also indicate whether the POTW has made a
determination pursuant to Sec. 403.3(v)(2) that such Industrial User
should not be considered a Significant Industrial User. The initial list
shall be submitted to the Approval Authority pursuant to Sec. 403.9 or
as a non-substantial modification pursuant to Sec. 403.18(d).
Modifications to the list shall be submitted to the Approval Authority
pursuant to Sec. 403.12(i)(1).
(g) A POTW that chooses to receive electronic documents must satisfy
the requirements of 40 CFR Part 3--(Electronic reporting).
[46 FR 9439, Jan. 28, 1981, as amended at 49 FR 31224, Aug. 3, 1984; 51
FR 20429, 20430, June 4, 1986; 51 FR 23759, July 1, 1986; 53 FR 40612,
Oct. 17, 1988; 55 FR 30129, July 24, 1990; 58 FR 18017, Apr. 7, 1993; 60
FR 33932, June 29, 1995; 62 FR 38414, July 17, 1997; 70 FR 59889, Oct.
13, 2005; 70 FR 60193, Oct. 14, 2005]
