30082 Federal Register Vol. No. .142 Tuesday, July 24 ... · Federal Register / Vol. 55, No. .142 /...

Federal Register / Vol. 55, No. .142 / Tuesday, July 24, 1990 / Rules and Regulations

ENVIRONMENTAL PROTECTIONENVIRONMENTAL PROTECTIONAGENCY

40 CFR Parts 122 and 403

[EN-FRL-3691-71

RIN 2040-AA99

EPA Administered Permit Programs;the National Pollutant DischargeElimination System; GeneralPretreatment Regulations for Existingand New Sources; Regulations ToEnhance Control of Toxic Pollutantand Hazardous Waste Discharges toPublicly Owned Treatment Works

AGENCY: Environmental ProtectionAgency (EPA).ACTION: Final rule.

SUMMARY: On November 23, 1988 (53 FR47632), EPA proposed to revise theGeneral Pretreatment and NationalPollutant Discharge Elimination Systemregulations (40 CFR parts 122 and 403)pursuant to section 3018(b) of theResource Conservation and RecoveryAct (RCRA) and sections 307(b) and402b](8) of the Clean Water Act (CWA).The proposed regulations weredeveloped in accordance with EPA'sReport to Congress on the Discharge ofHazardous Wastes to Publicly OwnedTreatment Works (EPA/530-SW-86-004, hereinafter referred to as "theDomestic Sewage Study" or "theStudy"). Today the Agency ispromulgating a final rule to implementmany of the proposed revisions.

EPA submitted the Study to Congressin response to section 3018(a) of RCRA.This provision directed the Agency toprepare a report for Congress on wastesdischarged through sewer systems topublicly owned treatment works(POTWs) that are exempt fromregulation under RCRA as a result of theDomestic Sewage Exclusion. The Studyexamined the nature and sources ofhazardous wastes discharged toPOTWs, measured the effectiveness ofEPA's programs in dealing with suchdischarges, and identified for Agencyconsideration a number of possibleinitiatives that could enhance control ofhazardous wastes entering POTWs.

Today's final rule is promulgatedpursuant to section 3018(b) of RCRA.This section directs the Administrator torevise existing regulations andpromulgate additional regulations as arenecessary to assure that hazardouswastes discharged to POTWs areadequately controlled to protect humanhealth and the environment.DATES: This regulation shall becomeeffective on August 23, 1990. Forpurposes of judicial review, this

regulation is issued at 1 p.m. on August7, 1990.

ADDRESSES: Questions on today's rule ofa technical nature should be addressedto: Marilyn Goode, Permits Division(EN-336), Environmental ProtectionAgency, 401 M Street SW., Washington,DC 20460. The record for thisrulemaking, including all publiccomments received on the proposal, isavailable for inspection and copying atthe EPA Public Information ReferenceUnit, room 2402, 401 M Street SW.,Washington, DC 20460. A reasonable feemay be charged for copying.

FOR FURTHER INFORMATION CONTACT:.Marilyn Goode, Permits Division (EN-336), Environmental Protection Agency,401 M Street SW., Washington, DC 20460(202) 475-9526.SUPPLEMENTARY INFORMATION:

I. Background

II. RevisionsA. Specific Discharge Prohibitions

1. Ignitability and Explosivity2. Reactivity and Fume Toxicity3. RCRA Toxicity4. Corrosivity5. Oil and Grease6. Solvent Wastes

B. Spills and Batch Discharges (slugs)C. Trucked and Hauled WastesD. Notification RequirementsE. Individual Control Mechanisms for

Industrial UsersF. Implementing the General Prohibitions

Against Pass Through and Interference1. Toxicity-Based Permit Limits2. Sludge Control3. Control of Indirect Dischargers:

Commercial Centralized Waste Treaters4. Categorical Standards for Other

IndustriesG. Enforcement of Categorical Standards

1. Revisions to Local Limits2. Inspections and Sampling of Significant

Industrial Users by POTWs3. Definition of Significant Industrial User4. Enforcement Response Plans for POTWs5. Definition of Significant Violation6. Reporting Requirements for Significant

Industrial UsersH. Miscellaneous Amendments

1. Local Limits Development andEnforcement

2. EPA and State Enforcement Action3. National Pretreatment Standards:

Categorical Standards4. POTW Pretreatment Program

Requirements: Implementation5. Development and Submission of NPDES

State Pretreatment Programs6. Administrative Penalties Against

Industrial Users7. Provisions Governing Fraud and False

Statements

m. Executive Order 12291

IV. Regulatory Flexibility Analysis

V. Paperwork Reduction Act

1. Background

The regulatory changes promulgatedtoday are intended to improve control ofhazardous wastes introduced intoPOTWs under the Domestic SewageExclusion. The exclusion, established byCongress in Section 1004(27) of theResource Conservation and RecoveryAct (RCRA), provides that solid ordissolved material in domestic sewageis not solid waste as defined in RCRA. Acorollary is that such material cannot beconsidered a hazardous waste forpurposes of RCRA.

The exclusion applies to domesticsewage as well as mixtures of domesticsewage and other wastes that passthrough a sewer system to a publicly-owned treatment works (POTW) fortreatment (see 40 CFR 261.4(a)(1)). Theexclusion thus covers industrial wastesdischarged to POTW sewers containingdomestic sewage, even if these wasteswould be considered hazardous ifdisposed of by other means.

One effect of the exclusion is thatindustrial facilities which generatehazardous wastes and discharge suchwastes to sewers containing domesticsewage are not subject to RCRAmanifest requirements for the transportof those excluded wastes. However,depending on the circumstances, suchindustrial users may be required tocomply with certain other RCRArequirements that apply to generators ofhazardous wastes. Some of theserequirements are: (1) Determiningwhether a waste is hazardous (40 CFR262.11); (2) obtaining an EPAidentification number for hazardouswastes not discharged to the sewer (40CFR 262.12); (3) accumulation ofhazardous wastes (40 CFR 262.34); (4)recordkeeping (40 CFR 262.40 (c) and(d)); and (5) reporting (40 CFR 262.43).Additional requirements will usuallyapply if the wastes are treated or storedprior to discharge to a POTW (see 40CFR part 264).

Another effect of the DomesticSewage Exclusion is that POTWsreceiving mixtures of hazardous wasteand domestic sewage through the sewersystem are not deemed to have receivedhazardous wastes. Therefore, suchPOTWs are not required to meet theRCRA requirements of 40 CFR part 264for treating, storing, and disposing ofthese wastes. However, hazardouswastes delivered directly to a POTW bytruck, rail, or dedicated pipe are notcovered by the Domestic Sewage

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Exclusion. Industries sending theirwastes to POTWs in this manner are notcovered by the exclusion, and POTWsreceiving these wastes are subject toregulation under the RCRA permit-by-rule (see 40 CFR 270.60(c)).

In 1984, Congress enacted theHazardous and Solid WasteAmendments to RCRA. Section 246 ofthe Amendments created a new section3018(a) of RCRA, requiring EPA toprepare:

* * * a report to the Congress concerningthose substances identified or listed undersection 3001 which are not regulated underthis subtitle by reason of the exclusion formixtures of domestic sewage and otherwastes that pass through a sewer system to apublicly owned treatment works. Such reportshall include the types, size, and number ofgenerators which dispose of substances inthis manner, the types and quantitiesdisposed of in this manner, and theidentification of significant generators,wastes, and waste constituents not regulatedunder existing Federal law or regulated in amanner sufficient to protect human healthand the environment.

EPA submitted its report (the Study)to Congress on February 7,1986. Inperforming the Study, the Agency 'reviewed information on 160,000 wastedischargers from 47 industrial categoriesand the residential sector. Because ofthe nature of the available data sources,the Study provided estimates for thedischarge of the specific constituents ofhazardous wastes (e.g., benzene,acetone, etc.) rather than estimates forhazardous wastes as they are moregenerally defined under RCRA (i.e.,"characteristic" wastes such as ignitableor reactive wastes, or "listed" wastessuch as spent solvents, electroplatingbaths, etc.). The Study also providedmore extensive estimates for thosehazardous constituents which are alsoCWA priority pollutants. The CWApriority pollutant list was originallydeveloped as part of a settlementagreement between the NaturalResources Defense Council (NRDC) andEPA (NRDC v. Train, Nos. 2153-73, 75-172, 75-1698, 75-1267 (D.D.C. June 8,1976)). This agreement required theAgency to promulgate technology-basedstandards for 65 compounds or classesof compounds. Congress thenincorporated this list of toxic pollutantsas part of the 1977 amendments to theCWA. From the list of compounds orclasses of compounds, EPA laterdeveloped a list of 126 individualpriority pollutants (see Appendix A to40 CFR part 423).

EPA was able to give estimates in theStudy on the types, sources, andquantities of many hazardousconstituents discharged to POTWs. The

Study provided information onindustrial categories ranging from largehazardous waste generators (such as theorganic chemicals industry) to thesmaller generators (such as laundriesand motor vehicle services). The Studyalso examined the fate of hazardousconstituents once they are discharged toPOTW collection and treatment systemsand discussed the potential forenvironmental effects resulting from thedischarge of these constituents aftertreatment by POTWs. The Study thendiscussed the effectiveness of existinggovernment controls in dealing withthese discharges, particularly federaland local pretreatment programs andcategorical pretreatment standardsapplicable to industrial users of POTWs.

After considering all the pertinentdata. EPA concluded that the DomesticSewage Exclusion should be retained atthe present time. The Study found thatCWA authorities are generally the bestway to control hazardous wastedischarges to POTWs. However, theStudy also recommended that theseauthorities should be employed morebroadly and effectively to regulatehazardous waste discharges. The Studyidentified for Agency consideration anumber of possible initiatives with apotential for enhancing CWA controlson hazardous wastes entering POTWs.

.The legislative history of section 3018of RCRA displays Congress'understanding that the appropriatenessof the Domestic Sewage Exclusiondepends largely on an effectivepretreatment program under the CWA.The pretreatment program (mandated bysections 307(b) and 402(b)(8) of theCWA) provides that industrial usersmust pretreat pollutants discharged toPOTWs to prevent the discharge ofpollutants that would interfere with orpass through the treatment works, orthat would be otherwise incompatiblewith the POTWs.

As a follow-up to the DomesticSewage Study, section 3018(b) of RCRArequires the Administrator to reviseexisting regulations and to promulgatesuch additional regulations as arenecessary to assure that hazardouswastes discharged to POTWs areadequately controlled to protect humanhealth and the environment. Theseregulations are to be promulgatedpursuant to subtitle C of RCRA or anyother authority of the Administrator,including section 307 of the CWA.

As a first step toward promulgatingthe regulations called for by section3018(b), the Agency published anAdvance Notice of ProposedRulemaking (ANPR) in the FederalRegister on August 22, 1986 (51 FR30166). In the ANPR, EPA made

preliminary suggestions for regulatorychanges, which, if promulgated, wouldimprove the control of hazardous wastesdischarged to POTWs. The Agency alsoheld three public meetings inWashington, DC, Chicago, and SanFrancisco to solicit additional commentson the ANPR.

The comments received on the ANPRwere summarized and discussed in aFederal Register notice published onJune 22,1987 (52 FR 23477). That noticealso described many of the activitieswhich EPA is carrying out to address therecommendations of the Study. Mostcommenters suggested ways to make thepretreatment program more effective incontrolling hazardous wastesdischarged to municipal wastewatertreatment plants. On November 23,1988(53 FR 47632), the Agency proposedregulatory changes in response to therecommendations of the Study and thecomments received on the ANPR.

EPA believes that today's rule willsatisfy the Congressional directive insection 3018(b) of RCRA that EPA reviseexisting regulations and promulgatesuch additional regulations "as arenecessary to assure that [hazardouswastes] which pass through a sewersystem to a publicly owned treatmentworks are adequately controlled toprotect human health and theenvironment". These rules are designedto assure POTW compliance with waterquality standards, including narrativewater quality standards preventing thedischarge of toxic materials in toxicamounts, and to provide necessaryinformation and regulatory tools toPOTWs to address problems that areidentified.

States and EPA have invested a greatdeal of time and resources in developingwater quality standards that provide abenchmark for determining whetherharmful concentrations of pollutantsexist in the nation's waters. Today'sruls include important new informationcollection requirements that will informPOTWs and NPDES permit writers ofthe likelihood that POTW dischargeswill violate water quality standards, andalso provides new information andregulatory tools with respect toindustrial user discharges that may becausing water quality violations throughthe POTW effluent.

Of particular importance tocontrolling hazardous.waste dischargesto POTWs are the following provisionsof today's rule. First, under revisions to40 CFR part 122, POTWs meetingspecified criteria will be required to testtheir effluent for toxicity which may becaused by industrial user discharges ofhazardous wastes or other toxic

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substances. The results of this testingmay indicate that POTWs are violatingwater quality standards, therebyendangering human health and theenvironment. Depending on the resultsof this testing, POTWs may receive newor more stringent permit limits regardingdischarges of toxic pollutants. In orderto comply with the revised permit limits,POTWs may either alter their operationsor impose more stringent local limits onindustrial user discharges of hazardouswastes. Imposition of such new or morestringent local limits will be facilitatedby another requirement of today's rule:the requirement in 40 CFR 403.121p) thatindustrial users notify POTWs, Statesand EPA of the nature and mass ofRCRA hazardous wastes-that theyintroduce into the sewers. In addition,under today's revisions to 40 CFR122.210)(2), POTWs must evaluate inwriting, at the same time as they submitthe data from toxicity testing to theirpermit-issuing authority, the need torevise local limits. This new provisionwill allow the NPDES permit writer toreview the POTW's rationale for notimposing more stringent local limitswhen the results of toxicity testingindicate that such new limits may benecessary to assure attainment of waterquality standards. Today's rule also willban the introduction to POTWs ofwastes that exhibit the RCRAcharacteristic of ignitability. This ban isnecessary to prevent explosions insewer systems that could disrupt POTWoperations and lead to releases ofhazardous wastes and other toxic orhazardous substances in the sewers."Midnight dumping" of hazardouswastes to sewers should besubstantially curtailed through the banin 40 CFR 403.5(b)(8) on the introductionof trucked or hauled wastes to POTWsexcept at discharge points identified forsuch use by the POTW. Finally, throughgeneral improvements in thepretreatment program provided bytoday's rule, such as industrial user slugcontrol plans, permits for significantindustrial users, and POTWenforcement response plans, EPAexpects a significant enhancement overthe control of hazardous wastes andother toxic and hazardous substancesintroduced to POTWs. The Agencynotes that all pretreatment programchanges required by today's rule mustbe incorporated in POTWs' NPDESpermits upon reissuance.

While EPA believes that today's rulesatisfies the requirements of section3018(b), EPA intends to carefully reviewthe effect of today's rule and promulgatein the future any additional regulationsthat experience reveals are necessary to

improve control over hazardous wasteand other Industrial user discharges toPOTWs. In addition, EPA has alwaysrecognized that additional categoricalpretreatment standards will form animportant component of effectivecontrols over pollutants discharged toPOTWs. On January 2, 1990, EPArecently issued a plan under section304(m) of the Clean Water Act underwhich it will develop regulations for fournew technology-based categoricalpretreatment standards and will revisethree existing standards (55 FR 80). Thecategories of dischargers selected for thedevelopment of new and revisedpretreatment standards discharge largeamounts of toxic and nonconventionalpollutants to POTWs. The DomesticSewage Study was an important sourceof data for the section 304(m) plan.While EPA is not obligated to basedevelopment of such technology-basedcategorical standards on findingsrelating to protection of human health orthe environment, EPA believes thatpollutant discharge reductions achievedthrough implementation of newcategorical standards will advance theprotection of human health and theenvironment.

It should be noted that today's ruledoes not directly address potential airemissions from the wastewatercollection system or POTWs. EPA'sOffice of Air and Radiation is evaluatingpotential air emissions from thecollection and treatment of wastewaterdischarged to POTWs and plans toaddress these air emissions under theClean Air Act.

II. Revisions

The Agency received comments inresponse to its proposal fromapproximately one hundred and sixtyindividuals and groups. All significantcomments and the Agency's responsesto these comments are discussed below.The Agency's responses to minorcomments are part of the record to thisrulemaking and are available forinspection at the EPA Public InformationReference Unit, Room 2402, 401 M StreetSW., Washington, DC 20460.

A. Specific Discharge Prohibitions

1. Ignitability and Explosivity

a. Proposed change. The specificprohibitions of the general pretreatmentregulations (40 CFR 403.5(b)) forbid thedischarge of certain types of materialswhich may harm POTW systems bycreating fire or explosion hazards,causing corrosive.structural damage,obstructing flow, or creating heat in aPOTW influent which inhibits biologicalactivity. The August 22, 1986 ANPR

discussed expanding these prohibitionsto forbid the discharge of characteristicwastes under RCRA (i.e., wastes thatare defined as hazardous under 40 CFRpart 261, subpart C if they possess thecharacteristics of ignitability,corrosivity, reactivity, or toxicity). Thiswould provide greater specificity to thelargely narrative structure of theexisting prohibitions in the pretreatmentprogram.

With respect to ignitability, theindirect discharge of ignitable materialshas caused many documented cases ofexplosions and fires in POTW collectionsystems. These fires and explosionsoften happen near the point of indirectdischarge, when the temperatures(normally above ambient) promoteevaporation of ignitable wastes into arelatively fixed volume of air formingvapors which are not dispersed into theatmosphere. These vapors can beignited by various sources, includingelectric sparks, frictional heat, hotsurfaces such as manhole covers heatedby the sun, or chemical heat generatedby reactions.

The specific discharge prohibitions (40CFR 403.5(b)(1)) already prohibit thedischarge to sewers of materialscreating a fire or explosion hazard.However, this narrative provision lacksspecificity. As a result, the prohibitionhas limited effectiveness as a preventiverequirement. The standard is clearlyviolated if there was an actual fire orexplosion in the sewer or if an industrialuser violated a local limit designed toimplement the prohibition.

To provide for better implementationof these provisions, EPA proposed torevise 40 CFR 403.5(b) to prohibit theintroduction into sewer systems ofpollutants which create a fire orexplosion hazard in the POTW,including but not limited to pollutantswith a closed cup flashpoint of less than140 degrees Fahrenheit (sixty degreesCentigrade), as determined by a Pensky-Martens Closed Cup Tester using thetest method specified in ASTM standardD-93-79 or D-93-80, or a SetaflashClosed Cup Tester using the test methodspecified in ASTM Standard D-3278-78.The Agency also proposed to revise 40CFR 403.5(b) to prohibit the discharge ofpollutants which cause an exceedenceof 10% of the lower explosive limit (LEL)at any point within the POTW.

A flashpoint is the minimumtemperature at which vapor combustionwill spread away from its source ofignition. Below the flashpointtemperature, combustion of the vaporimmediately above the liquid will eithernot occur at all, or will occur only at thepoint of ignition. A 140 degree Farenheit

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flashpoint standard has been used forseveral years under RCRA to identifyliquid wastes that pose a fire hazard.EPA proposed a similar standard for usein a new prohibited discharge standardin the pretreatment program.

The lower explosive limit wasproposed to deal with the problems ofmixing and dilution in the sewer. TheLEL of an organic vapor is the minimumconcentration required to form aflammable or explosive vapor to airmixture. The LEL is measured with anexplosimeter, an instrument that iscommonly used by POTW technicians toprotect against combustible vapors insewers.

In the preamble of the proposed rule,the Agency solicited comments on: (1)Whether or not the flashpointprohibition would be reasonable, undulystringent or insufficiently protective ofPOTWs under worst case conditionsand whether it would sufficiently takeinto account the effects of effluentmixing or dilution in a POTW system;(2) whether another technically feasibleand effective alternative exists; (3)whether the regulation should exemptaqueous solutions with less than 24%alcohol by volume from the proposedflashpoint prohibition; (4) whether theLEL prohibition is practical, either aloneor in combination with the fiashpointprohibition; (5) whether it is too difficultto link an LEL exceedence to specificdischarges; (6) whether vapor phasemonitoring (sometimes needed todetermine the cause of any exceedence)is too difficult or too expensive; and (7)whether the flashpoint approach or theLEL approach would be sufficient aloneto prevent fires and explosions atPOTWs.

b. Response to comments. Mostcommenters supported the proposal toadopt limits that would add specificityto the existing narrative prohibition onignitable and explosive discharges.However, other commenters believedthat existing local ordinances and theexisting specific prohibition weresufficient and that the proposedregulatory requirements would imposeexcessive burdens and costs on bothmunicipalities and industrial users.

A majority of the commenterssupported the flashpoint prohibition,either alone or in conjunction with theLEL approach. These commenters statedthat the flashpoint prohibitions wouldprovide Control Authorities with aquantifiable standard against which tomeasure compliance. Other commentersbelieved that because the flashpointlimit is used under RCRA to definewhich wastes exhibit the characteristicof ignitability, It would have greatercredibility end enforceability than other

approaches. Many commenters statedthat the proposed flashpoint test wouldbe inexpensive and easy to implement.

EPA agrees with those commenterswho supported the proposed flashpointprohibition. The Agency believes thatthe established flashpoint method is agood measure of fire and explosionhazard and will thus be effective inpreventing interference with POTWoperations. The flashpoint prohibitionwill also add specificity to the existingnarrative prohibitions, thus facilitatingeffective prevention and enforcement.The closed cup flashpoint test methodsare also relatively simple andinexpensive. For these reasons, EPA istoday revising 40 CFR 403.5(b)(1) toprohibit the introduction to POTWs ofpollutants which create a fire orexplosion hazard in the POTW,including, but not limited to,wastestreams with a closed cupflashpoint of less than 140 degreesFahrenheit (sixty degrees Centigrade).

Many commenters pointed out thatthe language used in the proposedregulation was not consistent with thatused in the preamble. The proposedregulation stated that the flashpointprohibition applies to "pollutants,"which could be Interpreted to apply bothto specific constituents of the waste andto the entire waste mixture generated byindirect discharges. The preamblediscussion, however, clearly indicatedEPA's intent that the flashpointprohibition would apply to "wastewaterdischarge" and not wastewaterconstituents of the entire discharge orcombined wastestream. To clarify theregulatory language, today's final rulehas been modified to read,".**. Pollutants which create a fire orexplosion hazard in the-POTW,including but not limited to,wastestreams with a closed cupflashpoint of less than 140 degreesFahrenheit (sixty degreesCentigrade) * * "

Some commenters expressedconfusion as to the exact point wherethe flashpoint should be measured. Themodification made to the final rule(discussed above) resolves any possibleambiguity regarding the location wherethe flashpoint should be measured.Because the flashpoint prohibitionapplies to the Industrial user'swastestream, the measurement shouldbe taken at the point of indirectdischarge.

Although most commenters approvedof the flashpoint prohibition, someexpressed concerns about itslimitations. One commenter stated thata majority of POTWs do not haveindustrial users that would warrantclosed cup testing. Another commenter

said that flashpoint was not a goodindication of fire and explosion hazardbecause wastewater should not containenough hazardous constituents to beflammable. In response, the Agencybelieves that the flashpoint prohibitionis relevant because most POTWs dohave at least a few industrial users andeven one industrial user may sometimeshave the potential to cause fire orexplosion hazards in a POTW. Also theStudy found that hazardous constituentsare found in many different types ofwastestreams. EPA believes that theflashpoint is an accurate indicator of fireand explosion hazard caused by thepresence of toxic and hazardouspollutants in wastestreams.

Several commenters argued that thediscussion on the use of existingliterature flashpoint values in thepreamble was not applicable to the vastmajority of wastes. These literaturevalues are only available for dischargesof "pure" substances, which are notcommon.

The Agency suggested the use ofavailable literature values for those"pure" substances believed present in awastestream. EPA believes that if theflashpoint of a pure substance, or theflashpoint of each known substance in amixture, Is above 140 degrees F, then theflashpoint of the wastestream containingthe substance or substances (normallydiluted predominantly with water)would usually also be above the limit. Ifthe industrial user is unsure of thiscorrelation, the fiashpoint test should beperformed on its wastestream or theindustrial user should consult theControl Authority.

Several commenters stated thatbecause industrial wastes are usuallyvariable, testing would ideally have tobe continuous. Since there are nocontinuous monitoring methodsavailable, these commenters feared thatthe discharger would be faced withretaining the entire discharge until aflashpoint determination could be made.At this point if the waste did not passthe test, it would then have to bedisposed of under RCRA, although itcould be sufficiently treated through thePOTW. A few commenters had concernsabout sampling methodologies, and onecommenter said that samplingmethodologies should be specified inaddition to test methods. Anothercommenter said that the reliability ofthe closed cup test for wastewater wasnot good.

EPA does not believe that mostwastestreams are sufficiently variableto require continuous monitoring.However. if an industrial user'swastestream is determined to be

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extremely variable, the industrial usermay wish to conduct frequentmonitoring if necessary to avoidviolating today's rule. When industrialusers are uncertain whether theirwastestream can be adequatelycharacterized by intermittentmonitoring, they should consult theControl Authority for monitoringinstructions. If monitoring indicatesperiodic violations of the prohibition,industrial users may wish to takeappropriate measures to pretreat theirwastes so that they could be confidentthat the discharges would not violate theflashpoint prohibition. This wouldprevent industrial users from the need toretain their wastes pending flashpointanalysis. With respect to samplingmethodologies, grab samples taken atthe point prior to discharge are generallythe appropriate methodology. However,the number of grab samples which areneeded to characterize a wastestreamwill vary. For most wastestreams, onegrab sample may be sufficient. Forvariable wastestreams, a series of grabsamples may be appropriate. In orderfor a waste to meet today's standard, nosingle grab sample of the waste may bebelow the 140 degree flashpoint limit.With respect to reliability of the closedcup method, this method has long beenin use under RCRA to measure theignitability of liquid wastes, with fewproblems brought to EPA's attention.The Agency sees no reason why themethod would not be equally useful onwastestreams discharged to POTWs. Insupport of this view, many commenterssupported the test because of itspurported reliability.

Some commenters suggested changingeither the flashpoint or LEL limits, andone commenter stated that theflashpoint approach alone could resultin unnecessary regulation incircumstances where in-sewer dilutionwould effectively eliminate anyhazardous conditions. One commenterurged that the proposed revision bemade less stringent by prohibiting onlythose discharges with a flashpoint ofless than 100 degrees F. This commenternoted that EPA had acknowledged that140 degrees F is considerably aboveexpected wastewater temperatures. Thecommenter concluded that prohibitingdischarges with a flashpoint near thistemperature (140 degrees F) wouldtherefore be overly protective. Anothercommenter urged EPA to allow case-by-case variances from the prohibition •where it can be shown that the wastewill be rendered non-ignitable uponmixture in the sewer system, and stillanother suggested that the Agency-consider regional variations in ..

flashpoints which would take intoaccount differing temperatures indifferent parts of the United States.

The Agency is not convinced thatprohibiting discharges with a flashpointof less than 100 degrees F would besufficiently protective against fires andexplosions. Although the commenterstated that such a flashpoint wouldbetter reflect the temperaturesencountered in most sewer systemsunder actual conditions, the commenterprovided no data in support of thisargument. Although it is true that mostwastewater temperatures are below 140degrees F, imany industrial usersdischarge very hot wastestreams tosewers, with wastewater temperatures.ranging from 120 to 212 degrees F (e.g.,industrial and commercial laundries, oilrefineries, food processors, textilemanufacturers, power generatingfacilities, and any facility dischargingboiler blowdown). Temperatures ofwastewater in the sewer may thereforereach or exceed 140 degrees F for briefperiods of time near the point of a veryhot discharge. In addition, some seweruse ordinances prohibit the discharge ofwastewater hotter than 150 degrees F,which indicates that wastewaters mayreach that temperature. Although suchdischarges are eventually diluted withcooler water in the sewer, combustion

* could be sustained near the point ofdischarge if the sewer wastewaterreached or exceeded 140 degrees F, aW Wastestream with a flashpoint below140 degrees F were discharged, and asource of ignition (such a friction sparkor a lighted cigarette) were present. Forthis reason, EPA does not agree that in-sewer dilution always eliminateshazardous conditions, or that aflashpoint of 140 degrees F isunnecessarily stringent. With respect tocase-by-case variances from theflashpoint prohibition, the Agencybelieves that the largest determinant ofsewer temperature at the point ofindustrial discharge is the temperatureof the industrial wastewatersdischarged, rather than the temperaturesprevailing outside of the sewer. EPA hasdecided not to allow case-by-casevariances based on ability of the wasteto be neutralized after mixture in thesewer because such variances wouldnot protect against explosions that mayoccur prior to such mixing. POTWs mayestablish more stringent limits thanthose promulgated today at theirdiscretion.

With respect to the current exclusion.under RCRA (40 CFR 261.21(a)(1)) fromthe ignitability characteristic foraqueous solutions containing less than24 percent alcohol by volume, some

commenters supported extending theexemption to the proposed flashpointprohibition, indicating that suchsolutions are quite soluble, readilydiluted, effectively treated by POTWs,and pose little threat to POTWs. Onecommenter stated that such solutionscould flash but would not sustaincombustion, but acknowledged that theability to flash is connected toexplosiveness. This commenter believedthat deficiencies in operating practicesand equipment often accounted forexplosions. Other commenters did notsupport such an exemption. Onecommenter stated that even though suchsolutions may not be able to sustaincombustion because of their high watercontent, the more critical issue forsubstances discharged to sewer lines isthe ability of the vapors above theaqueous solution to sustain combustion.

After evaluating this issue, EPA hasconcluded that an exemption from theflashpoint prohibition for aqueoussolutions containing less than 24 percentalcohol by volume is not appropriate.POTW collection systems are an idealenvironment for generation offlammable/ignitable atmospheres;minimal air interchange withincollection systems ensures that ignitablevapors once formed cannot easily bedispersed. Promulgation of theexemption would allow the discharge toPOTWs of wastewaters otherwisefailing the flashpoint test. For example,a flashpoint of 140 degrees Fcorresponds to an aqueous solution.containing only 6 percent ethyl alcoholby volume; an aqueous solutioncontaining 24 percent ethyl- alcohol byvolume would have a flashpoint of 90degrees, well below the flashpointspecified in today's rule. Other alloweddischarges would include potentiallyflammable mixtures containing methylalcohol and isopropyl alcohol. TheAgency believes that allowing anexemption from the flashpointprohibition for aqueous solutionscontaining less than 24 percent alcoholby volume would not sufficiently protectPOTWs, and is not promulgating suchan exemption in today's rule. TheAgency agrees that deficiencies inoperating practices and equipment mayoften be responsible for explosions, andencourages industrial users to employthe best methods available to ensurecompliance with today's prohibition.

One commenter noted that manyPOTWs use a closed-cup Tagliabue testto determine flammability, andsuggested that EPA should consideradding it to its list of closed cup testers.The Agency agrees and notes that 40CFR 261.21(a)(1), which specifies test"

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methods for the liquid ignitabilitycharacteristic, allows the use ofequivalent test methods if approved bythe Administrator under the proceduresset forth in 40 CFR 260.20 and 260.21. Toenable POTWs to use equivalent testmethods according to these procedures,the Agency has modified the proposedprohibition to prohibit the discharge ofwastestreams with a closed cupflashpoint of less than 140 degrees Fusing the test methods specified in 40CFR 261.21.

Many commenters favored keepingboth the flashpoint and LELprohibitions. These commentersincluded State and local authorities whosaid that these limits and methodologieswere both reasonable and necessary.Other commenters, however, thought itunnecessary to include both types ofprohibitions, and favored retention ofthe flashpoint limitation or the LELlimitation only. One commenter statedthat the difficulty of enforcing the LELapproach in no way diminishes the needfor this prohibition, because it is a muchmore sensitive indicator of fire orexplosion hazard. Some of thecommenters who supported bothprohibitions wanted to have the freedomto choose one or the other or both on acase-by-case basis, and one commentersuggested that the flashpoint and LELapproach are better suited to be placedin guidance documents rather than in aregulation.

Few commenters supported use of theLEL approach alone and many pointedout limitations to the LEL methodology.The most common criticisms were: (1)Calibration of instruments is difficultsince wastestreams are a mixture ofsubstances; (2) tracing any sort ofexceedance in the collection systemw6uld be almost impossible, since theLEL reading cannot distinguish whichchemicals are causing the exceedence(although some commenters believedthat LEL exceedances could be tracedby such means as tracking alarms tocertain points in the sewer system: (3)unless continuously monitored, the LELwould be an instantaneousmeasurement and therefore subject totoo much variability to accuratelyrepresent industrial users'wastestreams; (4) the LEL. of asubstance is difficult to measure withportable instruments and depends onmany variables that will affect theaccuracy of the measurement, such asambient temperature, VOC, airexchange rate, oxygen concentration,humidity: (5) industrial users wouldhave difficulty ascertaining whethertheir discharges would cause aviolation, due to the uncertainty of

conditions that may exist "downstream"in the sewer system from their facilities,and (6) the 10 percent LEL is toostringent, since higher percentages of theLEL are routinely reached. Onecommenter, however, favored use of theLEL approach, arguing that it was moreeffective than the flashpoint techniquein measuring explosivity of mixturesunder actual sewer conditions.

EPA is persuaded by certain of thecommenters' arguments againstspecifying a national prohibition basedon the LEL approach. Although theapproach has proved very valuable formany POTWs, EPA recognizes thatthere are certain technical difficultiesassociated with this approach whichmake It more suitable for use on a case-by-case basis at the discretion of theparticular POTW than as a nationallyapplicable standard. The principaldifficulty is associated with calibrationof the instruments. Although onecommenter stated that the indicated LELis accurately represented for thecommon solvents and does not requireknowledge of the substance monitored,other commenters who addressed thisissue stated that unless the LEL meter iscalibrated using the exact gas that is tobe measured, it may not give anaccurate reading of the Vapors present.As an example, one comenter included atable showing that great variation canoccur in LEL readings due to thepresence of different chemicals. Thiswould present a problem because theproposed rule would have establishedan LEL for any point in a POTW'scollection system, and the air space insuch systems generally contains manydifferent kinds of gases derived from thecomplex mixtures of substances in thesewerage. EPA has therefore modifiedproposed 40 CFR 403.5(b)(1) to delete theprohibition on discharges which resultin an exceedance of 10 percent of theLEL at any point within the POTW.

In response to the commenters whosuggested that EPA allow POTWs tochoose either the LEL or the flashpointapproach, the Agency acknowledgesthat the flashpoint prohibition in today'srule will not necessarily account for theignitability of mixtures of industrial userdischarges when combined in sewers.However, owing to the effect of dilutionwithin the sewer system, the Agencybelieves that it is generally reasonableto assume that the concentrations ofcombustible constituents in sewerwastewaters will be well below theconcentrations required for iguitability,provided that all industrial users are incompliance with the flashpointprohibition. Fires and explosions fromthe discharge of ignitable pollutants

often occur in the POTW collectionsystem near the point of discharge, andthe temperature in the collection systemat that point may be'above the ambienttemperature, promoting the evaporationof ignitable wastes and the formation offlammable vapor to air mixtures. Forthese reasons, the Agency believes thattoday's flashpoint prohibition isnecessary to help prevent fires andexplosions at sewers, and is notadopting the suggestions that POTWs beallowed to choose between thatapproach and the LEL or that explosivityproblems should be addressed inguidance only.

However, the Agency recognizes thatmany POTWs have made effective useof the LEL approach in preventing firesand explosions, and encourages POTWsto develop programs which employ thisapproach, if they deem it appropriate.

Many commenters who addressedvapor phase monitoring used to tracethe source of an LEL exceedance statedthat such monitoring is too expensive.Some commenters were opposed to arequirement for vapor phase monitoring,stating that most POITWs do not haveaccess to the necessary methodologies,and that POTWs could already tracksources without this methodology. Onecommenter suggested that vapor phasemonitoring be done at site-specificpoints within the POTW. Somecommenters argued that the regulationshould not require the POTW to identifythe compounds responsible for theexceedences, but one commenter statedthat the details of a collections system,the location of the LEL exceedence, andthe location of the industrial users willmake elimination of facilities notcausing the problem possible withoutthe specific identification of eachindustrial user's wastestream.

EPA did not propose, and is notfinalizing, requirements that vaporphase monitoring be performed, nor thatthe identity of the compounds causingthe exceedences be revealed throughsuch monitoring. However, manyPOTWs which adopt the LEL approachmay choose to adopt such monitoring onan as-needed basis. In many cases thesource of an exceedence can bediscovered by other means.

c. Today's rule. Today's final ruleprohibits the discharge of pollutantswhich create a fire or explosion hazardin the POTW, including, but not limitedto, wastestreams with a closed cupflashpoint of less than 140 degreesFarenheit or 60 degrees Centigrade usingthe test methods specified in 40 CFR261.21.

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2. Reactivity and Fume ToxicityWastes exhibiting the reactivity

characteristic are regulated under RCRAbecause their extreme instability andtendency to react violently or explodemake them a hazard to human healthand the environment during waste

management. A solid waste exhibits theRCRA characteristic of reactivity if it isnormally unstable and readilyundergoes violent change withoutdetonating, reacts violently with water,forms potentially explosive mixtureswith water, generates potentiallyharmful quantities of toxic gases, vaporsor fumes when mixed with water; is acyanide or sulfide bearing waste whichwhen exposed to pH conditions between2 and 12.5 can generate potentiallyharmful quantities of toxic gases, vaporsor fumes; is capable of detonation orexplosive reaction if it is subjected to astrong initiating source or if heatedunder confinement; is capable ofdetonation or explosive decompositionor reaction at standard temperature andpressure; or is a forbidden, Class A, orClass B explosive pursuant to 49 CFRpart 173 (see 40 CFR 261.23(a)).

The health and safety of POTWworkers has long been a serious concernof the Agency. There is no question thatthe generation of toxic gases and vaporscan sometimes be dangerous to thehealth and safety of these workers, thusinterfering with operations at the POTWand even endangering human life. Inaddition, the local general populationcould also suffer if sufficient quantitiesof toxic gases and vapors are releasedfrom sewer vents or aeration orcontainment basins. Gases and vaporsmay be caused by chemical reactionsbetween constituents of the industrialdischarge and the receiving sewage, ormicrobial metabolism. Some toxic gasescan be generated as the result of suddendrops in pH. Besides generating toxicgases and vapors when mixed withsewage, Industrial discharges may havesufficiently high concentrations of toxicgases and volatile liquids to cause toxiclevels of gas or vapor to form above thewastewater even if the discharge isdiluted by the sewage. There have beennumerous instances of sewermaintenance workers who have beeninjured or killed from toxic gases formedin sewers. While most accidents havebeen caused by the formation ofhydrogen sulfide gases, more recentincidents have been linked to certainorganic pollutants that either volatilizedor reacted with hydrogen sulfide withinthe POTW collection system.

a. Proposed rule. The prohibitionagainst the discharge of pollutantswhich create a fire or explosion hazard,

as modified by today's rule to include aprohibition on the discharge of materialswith a flashpoint of less than 140degrees F. will help prevent harm toPOTW workers, as will the requirementpromulgated today that POTWsevaluate significant industrial users todetermine the need for plans to controlslug discharges (see part B below). Toaugment these prohibitions and providefurther protection, the Agency proposedon November 23,1988 to revise 40 CFR403.5(b) to add a new subsection (6)providing that no discharge to a POTWshould result in toxic gases, vapors, orfumes within the POTW in a quantitythat may cause acute worker health andsafety problems. EPA also proposed torevise 40 CFR 403.5(c) to require POTWsto implement the proposed narrativeprohibition In 40 CFR 403.5(b)(6) byestablishing numerical discharge limitsor other controls where necessary basedon existing human toxicity criteria orother information. Industrial userswould then be liable for any violationsof these limits or controls.

As possible Implementationmechanisms, EPA suggested approachesused by the American Conference ofGovernment Industrial Hygienists(ACGIH) or the Metropolitan SewerDistrict of Cincinnati. The ACGIHpublishes an annual list of thresholdlimit values (rLVs) for numerous toxicinorganic and organic chemicals. Thethreshold limit values representestimated chemical concentrations in airbelow which harmful health effects inexposed populations are believed to beunlikely to occur. The MetropolitanSewer District of Cincinnati approachfeatures the use of a vapor headspacegas chromatographic analysis ofequilibrated industrial wastewaterdischarge [one volume of wastewater toone volume of air head space) at roomtemperature (24 degrees C). The analysismeasures the total vapor space organicconcentration by calculating the totalpeak area of the chromatogramexpressed as parts per million (ppm) ofequivalent hexane.

The Agency solicited comments onthe addition of this prohibition to thegeneral pretreatment regulations and onthe feasibility of developing local limitsfrom human toxicity criteria or otherinformation such as those discussedabove. The Agency requested commentson the practicality of such a prohibition,or alternative regulatory ways to protectworker health and safety, and onwhether worker health and safety isadequately protected by the presentgeneral and specific dischargeprohibitions.

b. Response to comments. The Agencyreceived many comments on theproposed rule. Comments were receivedfrom States, environmental groups,POTWs and industries. The majority ofthe c-ommenters supported the narrativeprohibition (proposed 40 CFR403.5(b)(6)) but were against requiringimplementation of numerical limits(proposed 40 CFR 403.5(c)). Thesecommenters generally believed thatsuch numerical limits would be toodifficult and expensive for POTWs todevelop. In general, the commentersbelieved that the approaches used byACGIH and the Metropolitan SewerDistrict of Cincinnati would be useful asguidance or as a screening tool, but thatthe actual criteria are so imprecise thatit would be best not to require POTWsto implement them.

Some commenters pointed out that theMetropolitan Sewer District ofCincinnati approach containedpotentially serious flaws in that the 300ppm equivalent hexane limit might notprovide adequate prctection againstmore toxic compounds. Thesecommenters said that the Cincinnatiapproach could thus provide workerswith a false sense of safety. Othercommenters stated that the approachwould only be valid if the wastewater inthe sewer was at equilibrium with theair above the wastewater and thewastewater acts as an ideal liquidmixture.

Some commenters also expressedconcern about the ACGIH list ofchemical threshold limit values, statingthat the list includes skin and dusthazards as well as vapor hazards. Thecommenters stated that the list of TLVcompounds appears to be very large, butmany of the compounds on the list arenot applicable to the Agency's purpose.Only 136 compounds on the TLV list arefor short term exposure (exposures ofless than 8 hours duration within thePOTW). The 136 compounds can then befurther reduced by the removal of simpleasphyxiants (inert gases, vapors andsolids (dusts)). Thus, commentersbelieved that the number of ACGIHlisted chemicals that could realisticallybe limited by POTWs is very small.

These commenters also said thatACGIH specifically disclaims its TLVlist for setting environmental standards.ACGIH's basis for this disclaimer is thatthe averaging process involved indetermining the TLVs is inappropriatefor establishing such standards.

Some commenters stated that eventhough EPA has never explicitlyrequired POTWs to develop local limitsto prevent pass through or interferencedue to reactive chemicals and fume

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toxicity, almost all POTWs haveordinance prohibitions or local limits tohandle common pollutants such assulfide that have been associated withworker health and safety problems.

After evaluating this issue, theAgency has concluded that the actualmethods discussed in the November 23,1988 proposal (as well as other methods)are not sufficiently precise at thepresent time to require POTWs to baseenforceable local limits upon thesemethods. None of the approachescurrently in use are necessarily suitablefor required use at all POTWs, althoughthey may fit the needs of many POTWsafter certain modifications. For thisreason, EPA is not promulgating arequirement to develop numerical limitsto protect worker health and safetybased upon specified procedures. TheAgency believes that a narrativeprohibition coupled with guidance ondeveloping limits would allow POTWsmore flexibility to adopt implementationprocedures to meet their particularneeds while providing adequateprotection of worker health and safety..EPA is therefore promulgating thenarrative prohibition on reactivity andfume toxicity and plans to issueguidance on developing numericallimits.

One commenter suggested that EPAshould require POTWs to use properconfined space entry procedures or tomonitor their systems with portable gaschromatographs (GCs) to protect workerhealth and safety. The commenter alsosuggested that industrial users causingworker health problems should berequired to install activated carbontreatment systems or to performcontinuous monitoring using GCs.Another commenter said that POTWsshould conduct an extensiveinvestigation of the effects organiccompounds have on their system, afterwhich limits could be developed forcontributors of organic pollutants. Othercommenters suggested requiring POTWsto develop an intensive safety trainingprogram for POTW employees, orallowing POTWs to substitute suchmeasures as exposure surveys,engineering controls, or personal safetyequipment for numeric limits.

One commenter suggested that EPAshould require tests to be used byindustrial users to prevent the dischargeof wastewaters with high levels of toxicconstituents, such as the test used bythe Metropolitan Sewer District ofCincinnati. The commenter alsosuggested forbidding the discharge ofany wastewaters containing hazardousconstituents at concentrations whichcould give rise to chronic worker

exposures higher than the relevantOSHA Time-Weighted AverageOccupational Standard (TWA).

According to the commenter, a simplealgorithm could be devised relatingTWAs to the concentration of hazardousconstituents in the discharge. Industrialusers would be prohibited fromdischarging a wastewater which thealgorithm predicted would give rise tovapor concentrations higher than theTWA. As another alternative, thecommenter suggested that EPA adoptparticular tests for certain types ofwastes that can react in low or high pHenvironments and give off toxic gases.EPA should particularly consideradapting to POTWs the simple scenarioit used to quantify the narrativecharacteristic test used in RCRA forcyanide and sulfide bearing wastes.

EPA encourages POTWs to use any orall of the above approaches (ormodifications thereof) which they findnecessary to protect worker health andsafety at their facilities. However,because the numbers and types ofindustrial users vary so widely amongPOTWs, theAgency does not believethat any single test, training program,treatment technology, monitoringapproach, or combination thereof-iscurrently suitable for a nationallyapplicable rule to protect worker healthand safety. Today's rule allows POTWsto impose controls on particularindustrial users based on numeric limits-on specific pollutants or through othermeasures that address their ownparticular site-specific concerns.Pursuant to 40 CFR 403.5(d), theapproach selected by the POTW will befederally enforceable. With respect tothe OSHA TWA approach suggestedabove, the Agency notes that thisapproach is similar to one suggested byEPA in its Guidance Manual on theDevelopment and Implementation ofLocal Discharge Limitations Under thePretreatment Program. This approachinvolves using ACGIH threshold limitvalue-time weighted averages (TLV-TWAs) which serve as a measure offume toxicity from which screeninglevels for all industrial user dischargescan be calculated. However, the Agencynotes that the TWA levels are the vaporphase concentrations of compounds towhich workers may be exposed overlong periods of time without adverseeffect. In general, POTW workers arenot exposed for extended periods of -

time to sewer atmospheres. The Agencyalso notes that the algorithm suggestedby the commenter did not appear to takeinto account the effect of possibledilution or mixture with othersubstances in the sewer. For these

reasons, the Agency recommends theuse of such approaches as a way toscreen industrial users' discharges, butrecommends POTW reliance upon site-specific data in developing actualcontrols for industrial users. In somecases, the use of improved chemicalhandling or management practices mayeliminate any problems. Similarly,regarding the narrative characteristictest under RCRA for cyanide and sulfidebearing wastes, the Agency believesthat this test is best adapted by POTWson a case-by-case basis to address theirparticular circumstances with respect toacidity or corrosivity which could resultin fume toxicity.

One commenter urged that EPAclarify that a specific dischargeconstituent must itself be a significantsource of actual toxic gas, vapor, orfume problems in order to fall within thescope of the prohibition. Thiscommenter said that the proposedregulatory language could prohibit thedischarge of biochemical oxygendemafnd (BOD), which contributes toanaerobic cofiditiois, and otherwiseinnocious sulfate (toxic hydrogensulfide levels can be generated InPOTW sewers through the reduction ofsulfates by anaerobic bacteria,according to this commenter). Anothercommenter urged the Agency to limit theapplicability of the proposed prohibiionto those situations where a POTWinterprets the prohibition throughadoption of specific numerical dischargelimits. In this way, industrial userswould not be subject to the prohibitionin -the.absence of numerical limitsdeveloped by the POTW. Anothersuggested that EPA prohibit only thosesubstances discharged in a quantityknown to cause worker health andsafety problems. This commenterpointed out that the only instance citedin the November 23, 1988 preamble ofactual injury to workers involvedhydrogen sulfide, and stated thatregulation of other substances wasunjustified because the existingprohibitions already protect workerhealth and safety.

In response, the Agency notes that allof the specific discharge prohibitionsapply even in the absence of numericlimits developed by the POTW toimplement such prohibitions. Inaddition, EPA does not agree thatregulation of other substances besides.hydrogen sulfide is unjustified to protectworker health and safety. The DomesticSewage Study found that adverse healtheffects on POTW workers have beencaused by a variety of pollutants(including toluene, benzene, hexane,

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phenol, hexavalent chromium, andchloroform).

However, the Agency agrees thatthere are certain situations in whichindustrial users should not be heldresponsible for a violation of the generalpretreatment regulations (includingtoday's prohibition against fumetoxicity) because they did not possessthe information necessary for them toprevent the causative discharge. Toaddress this concern, EPA is todayamending 40 CFR 403.5(a)(2) to providethat an industrial user, in any actionbrought against it alleging a violation of40 CFR 403.5ob)(7), shall have anaffirmative defense where that user candemonstrate that it did not know orhave reason to know that its discharge,alone or in conjunction with a dischargeor discharges from other sources, causedpass through or interference. Pursuant to40 CFR 403.5(a)(2), the affirmativedefense would also be available, if theindustrial user were in compliance withlocal limits developed to prevent passthrough and interference, or (where nosuch limits for the pollutants in questionhad been developed) if the industrialuser's discharge had not changedsubstantially in nature or constituentsfrom the user's prior discharge activitywhen the POTW was in compliancewith the POTW's NPDES pemit or "applicable requirements for sewagesludge use or disposal.

c. Today's rule. Today's rule adds anew requirement (40 CFR 403.5(b)[7) thatno discharge to the POTW shall result intoxic gases, vapors, or fumes within thePOTW in a quantity that may causeacute worker health and safetyproblems. Today's rule also amends 40CFR 403.5[a)(2) to provide that anindustrial user shall have an affirmativedefense in any action brought against italleging a violation of 40 CFR 403.5[b)(7),if it can make the appropriatedemonstrations pursuant to 40 CFR403.5(a)(2)(i) and Iii).3. RCRA Toxicity

The Study discussed the possibility ofdeveloping a specific prohibition toforbid the discharge of waste exhibitingthe characteristic of toxicity, asmeasured by the Extraction Procedure(EP) or Toxicity Characteristic LeachingProcedure (TCLP). This prohibition wasnot proposed in the November 23, 1988rule, but was discussed in the ANPRpublished in the Federal Register onAugust 22,1986 (51 FR 30166).

The EP toxicity test and the TCLP aredesigned to simulate the propensity ofmetals and organic contaminants toleach from a landfilled or land-appliedwaste into ground water. The EP toxicitytest was used under RCRA to determine

which wastes are hazardous by virtue ofexhibiting the characteristic of toxicity.On March 29, 1990 (55 FR 11798) theAgency published a final rulemakingwhich, when effective, will replace theEP with the TCLP, which EPA believesprovides a better measure of thepropensity of pollutants to leach from aland-disposed waste.

EPA solicited comments in the ANPRon whether the EP toxicity test or theTCLP would be appropriate fordetermining whether particularpollutants are likely to cause passthrough and interference. EPA notedthat materials may be subsequentlydiluted when mixed with large amountsof domestic sewage, and that POTWsare capable of removing many suchmaterials even in small amounts.

Comments in response to the ANPRwere overwhelmingly opposed to addingspecific prohibitions to the pretreatmentregulations based on either the EP or theTCLP tests. Commenters generallyasserted that since the tests model thetendency for metals and organicconstituents to leach from a landfilled orland-applied waste into ground water,the tests were inappropriate forassessing whether an industrialwastewater discharge would cause passthrough or interference at a POTW.

The Agency believes that requiringindustrial wastestreams discharged toPOTWs to pass either of the RCRAtoxicity tests may result in both under-regulation and over-regulation ofvarious pollutants with little technicaljustification, since application of thetests to industrial effluents does not takeinto account POTW removal efficienciesnor the potential for adverse impact onPOTW collection and treatmentsystems. The Agency believes thatcurrent controls on toxic dischargesfrom industrial users (the interferenceand pass through prohibition,categorical standards, and local limits)and from POTWs (permit limits,including controls on toxicity) arecurrently the best way to regulatematerials that would warrant specialconsideration under RCRA due toleachability characteristics. For thesereasons, EPA did not propose to changethe current specific dischargeprohibitions to add a prohibition basedon any RCRA toxicity characteristic, noris the Agency finalizing such aprohibition in today's rule.

One commenter on the ANPR, whileagreeing that the RCRA toxicity testswere not necessarily suitable forindustrial wastewater discharges,suggested that the Agency develop aleaching test applicable to suchdischarges because of the likelihood that

they would leak from sewers and causecontamination of ground water.

EPA believes that such a test wouldbe premature at the present t-imebecause of the lack of availableinformation about the extent of groundwater contamination caused by leakysewers. When more data is available,the Agency may consider developingsuch a test if appropriate.

4. Corrosivity (403.5(b)(2))Section 403.5(b)[2) of the general

pretreatment regulations currentlyprohibits the discharge of "pollutantswhich will cause corrosive structuraldamage to the POTW. (including)discharges with pH lower than 5.0,unless the works is specifically designedto accommodate such discharges." Thisprohibition provides a numeric limit onthe discharge of acidic wastes, but doesnot contain a corresponding pHlimitation for caustic wastes. The Studyreviewed local ordinances and foundthat many provided numeric limits onthe discharge of caustic wastes.

The RCRA corrosivity characteristic isdesigned to address wastes which couldendanger human health or theenvironment due to their ability todestroy human or animal tissue in theevent of inadvertent contact; corrodehandling, storage, transportation, andmanagement equipment or mobilizetoxic metals in a landfill environment.Under 40 CFR 261.22. an aqueous wasteexhibits the hazardous characteristic ofcorrosivity if its pH is less than or equalto 2 or greater than or equal to 12.5, or ifit is liquid and capable of corrodingsteel at a rate greater than 0.250 inchesper year at a test temperature of 130degrees F. EPA solicited comments inthe ANPR (51 FR 30166) on whether thedischarge of such wastes to POTWsshould be prohibited.

Almost no comments were receivedon this issue. One commenter believedthat the current specific dischargeprohibitions were inadequate to controlhazardous wastes which exhibit thecorrosivity characteristic as definedunder RCRA. The commenter suggestedthat the prohibition be amended toinclude a maximum pH. because theStudy had found that some localordinances were setting maximum pHlimitations in the range of 9.0 to 11.0.

Virtually all of the reported pHrelated incidents at POTWs involvecorrosion caused by the discharge ofacidic wastes, which are alreadyprohibited by the current specificdischarge prohibitions. The Agency hasno evidence that high pH wastes are aproblem for most POTW collectionsystems. For this reason, the Agency is

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not amending 40 CFR 403.5(b)(2) to adda prohibition on high pH wastes at thepresent time. However, EPA encouragesPOTWs to address any problems withcaustic wastes through their local limits;

5. Oil and Grease

a. Proposed rule. There are currentlyno specific nation-wide prohibitionsagainst disposing of oil and grease insewers, although the existingprohibitions forbid the discharge ofpollutants which cause pass through orinterference or which obstruct flow atthe POTW.

The Agency is concerned about thepossibility that the volume of used oildischarged to sewers is increasing to thepoint of causing interference or passthrough. The likely increase in volume ofused oil disposed of in this way is due toseveral factors, among them lowerprices for crude oil which make it lessprofitable to recycle used oil. Inaddition, the Agency is developing aregulatory program under RCRA tocontrol the management of used oil,including used oil that is recycled. Suchregulations could lead to increaseddischarges of used oil to sewers if thereare no controls imposed under the CleanWater Act.

To address these concerns and tostrengthen the current prohibitionsagainst pass through and interference,on November 23,1988 the Agencysolicited comment on revising 40 CFR403.5(b) to add a new provisionprohibiting the discharge of used oil toPOTWs. "Used oil" was generallydescribed as any oil that has beenrefined from crude oil, used, and. as aresult of such use, contaminated byphysical or chemical impurities. Theproposal would have coveredautomotive lubricating oils, transmissionand brake fluid, spent industrial oilssuch as compressor, turbine, andbearing oils, hydraulic oils,metalworking, gear, electrical, andrefrigerator oils, railroad drainings, andspent industrial process oils. EPAsolicited comment on the possibleadvantages and disadvantages of such aprohibition, and on which particularkinds of used oil should be covered bythe prohibition.

b. Response to comments. Themajority of commenters who addressedthis issue believed that a completeprohibition of the discharge of used oilwould not be practical, but manycommenters indicated support for anumerical limitation. Most of thesecommenters suggested that anyprohibition should contain a de minimisexemption for small quantities of usedoil, since discharges from manyindustrial users contain small amounts

of oil from washdown or cleaningwaters that may not be completelyremoved by a grease trap or oilseparator. These commenters generallybelieved that used oil in such smallquantities presented little danger of passthrough or interference, and that anyprohibition should apply only to bulkdumping of large quantities. Threecommenters suggested a limitation of100 milligrams per liter of fats, oils, andgrease as being reasonable andconsistent with local limits establishedby many POTWs. Other commenterswere opposed to any kind of prohibition.stating that problems with used oil werealready adequately addressed by thegeneral and specific prohibitions againstpass through and interference and locallimits for oil and grease.

Some commenters pointed out thatcertain used oils (i.e., animal andvegetable oils and certain oils used inmachine cutting and metalworking) arehighly biodegradable. Thesecommenters stated that biologicaldigestion in the POTW treatment systemis the most appropriate treatment forthese substances, and that a completeprohibition would lead to other methodsof disposal which would ultimately beless protective of the environment.However, some of these commentersacknowledged that such oils couldinterfere with POTW operations ifdischarged in very large quantities. Onecommenter suggested that the proposedprohibition should include restaurantgrease because it has been known tocause interference, and is easilyrendered.

Several commenters stated that thedischarge of used oil to POTWs shouldnot be completely prohibited untilsufficient methods were available forother kinds of disposal. Some of thesecommenters recommended that EPAencourage alternative mechanisms forthe safe, legal, and inexpensive recoveryof oil and disposal of the residue, alongwith incentives for collecting andrecycling used oil. One commentersuggested a national educationalcampaign directed towards do-it-yourself oil changers.

Several commenters supported acomplete prohibition on the discharge ofused oil to sewers. One POTW statedthat such a prohibition would ensurethat it would not have to make case-by-case determinations on whetherrequested discharges of used oil wouldviolate its local limits. Anothercommenter stated that a prohibitionshould also include restaurant greasesbecause these can interfere with POTWoperations and because current testmethods do not distinguish betweenthese oils and oils of other origin.

Another commenter who supported acomplete prohibition stated thatallowing the discharge of used oil wouldcontradict EPA's pollution preventionpolicy, which seeks to avoid cross.media transfer of pollutants. Thiscommenter stated that a prohibitionwould provide the incentive forgenerators to reduce the amount of usedoil they generate as well as to recyclewhat they produce. A prohibition wouldalso stimulate development of arecycling market that would reducecosts and promote theinstitutionalization of recycling habitsand ethics.

EPA agrees with those commenterswho said that a complete prohibition onthe discharge of oil is unnecessary.Trace amounts of such oil are verydifficult to eliminate from thewastewaters of industrial users.Complete elimination could necessitatecostly process or treatment changeswhich would be difficult to justify giventhe Agency's assessment that the dangerof pass through or interference fromsmall amounts of used oils is slight.Although used oil is an energy resourcethat might be better collected andrecycled than discharged to POTWs,today's rule would go some distancetowards accomplishing this goal (as wellas the aim of pollution prevention,without incurring the disadvantages of acomplete prohibition.

EPA agrees with those commenterswho stated that oils of animal orvegetable origin (such as restaurantgreases) can be more easily accepted bywastewater treatment systems. Theseoils (as well as certain synthetic oilssuch as machine cutting ormetalworking oils) can be metabolizedby microorganisms in secondary wastetreatment facilities and are readilyreduced in concentration in aerobic andanaerobic biological treatment systems.For this reason, the Agency believes thata prohibition or a national limitation onsuch oils would not be appropriate.

However, the Agency believes thatthe discharge to POTWs of oils ofpetroleum or mineral origin is ofpotential concern, since these oils areless biodegradable in secondarytreatment plants. Release of such oilthus has more potential to interfere withoperations at POTWs, particularly in thecase of smaller plants. In addition, theseoils can contain a variety of toxic orhazardous constituents such as PCBs,benzene, chromium, arsenic, cadmium,and lead. EPA has analyzed thepotential for pass through of thesepollutants to surface waters and tosludge. Results showed that when largevolumes of used oil are discharged.

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there is a potential for pass through andviolations of water quality criteria.Some of the constituents incontaminated used oil, such astrichloroethane, are very water solubleand thus are characterized by a highmobility potential. Metals such ascadmium, chromium, and lead are very

.persistent in the environment whenreleased from the POTW in sludge or inwastewater effluent.

For these reasons, the Agency agreeswith those commenters who urgedlimitations on petroleum and mineral-based oil discharged to POTWs. In lightof comments received, EPA considered acomplete ban on the discharge of suchmaterials, a nation-wide numeric limit,or a new narrative prohibition. Asdescribed above, EPA determined that acomplete ban was not necessarybecause small amounts of such oils arenot expected to cause pass through orinterference. With respect to the optionof promulgating a national numericlimitation on the discharge of such oilsto POTWs, EPA does not currently havesufficient information upon which tobase a limit of general applicability. Forthis reason, EPA is not promulgating anumeric limit of national applicability.

EPA is therefore revising the specificdischarge prohibitions to add a newprovision (40 CFR 403.5(b)(6)) to prohibitthe discharge of petroleum oil,nonbiodegradable cutting oil, orproducts of mineral oil origin in amountsthat will cause interference or passthrough. Under existing 40 CFR 403.5(c)(1) and (2), POTWs with approvedpretreatment programs would then berequired to implement this prohibitionby developing specific limits for suchsubstances, and other POTWs would berequired to develop such limits in caseswhere pass through or interference hadoccurred and was likely to recur.Today's rule thus provides morespecificity than is provided by theexisting general prohibitions againstpass through and Interference byincluding a specific prohibitionaddressing petroleum and mineral-based oils and nonbiodegradable cuttingoils.

In response to the commenters whostated that the Agency should notprohibit the discharge of used oil untilsufficient methods were available forother kinds of disposal, EPA notes thattoday's rule, does not include a completeprohibition on the discharge of any typeof oil to POTWs. For this reason, theAgency is not adopting any specific --regulatory measures to incorporatethese commenters' suggestions at thepresent time, although the Agency

encourages voluntary efforts in thisregard.

As preliminary guidance to POTWs inestablishing local limits, EPA reiteratesthat some commenters mentioned 100milligrams per liter as an oil and greaselimit frequently used by POTWs. Somestandard manuals of sewer use practiceand some studies have recommendedlimitations of 25 to 75 milligrams perliter of petroleum oils, nonbiodegradablecutting oils, or products of mineral oilorigin. One commenter submitted a listof eight municipalities in which thecommenter operated. Of the eight, fivehad limits of 100 milligrams per liter onoil and grease and two had morestringent limits. Only one had limitswhich were less stringent. POTWsshould adopt limits as stringent asnecessary to protect against passthrough or interference at theirparticular facilities.

As discussed earlier in today's notice,some commenters on EPA's proposedfume toxicity prohibition expressedconcern about possible liability forviolation of the prohibition when theydid not possess the informationnecessary for them to prevent thecausative discharge. The Agencybelieves that this is also a valid concernfor potential violators of today'sprohibition against the discharge ofcertain types of oil in amounts thatcause pass through or interference. Toaddress this concern, the Agency istoday amending 40 CFR 403.5(a)(2) toprovide that an industrial user, in anyaction brought against it alleging aviolation of 40 CFR 403.5(b)(6), shallhave an affirmative defense where thatuser can demonstrate that it did notknow or have reason to know that itsdischarge, alone or in conjunction with adischarge or discharges from othersources, caused pass through orinterference. Pursuant to 40 CFR403.(a)(2), the defense would also beavailable if the industrial user were incompliance with local limits developedto prevent pass through andinterference, or (where no such limits forthe pollutants in question had beendeveloped) if the industrial user'sdischarge had not changed substantiallyin nature or constituents from the user'sprior discharge activity when the POTWwas in compliance with the POTW'sNPDES permit or applicablerequirements for sewage sludge use ordisposal.

c. Today's rule. Today's rule adds anew requirement (40 CFR 403.5(b)(6))prohibiting the discharge of petroleumoil, nonbiodegradable cutting oil, orproducts of mineral oil origin in amountsthat will cause interference or pass

through. Today's rule also amends 40CFR 403.5(a)(2) to provide that anindustrial user shall have an affirmativedefense In any action brought against italleging a violation of 40 CFR 403.5(b)(6),if it can make the appropriatedemonstrations pursuant to 40 CFR403.5(a)(2) (i) and (ii).

6. Solvent Wastes

a. Proposed rule. On November 23,1988, EPA solicited comment on revisingthe specific discharge prohibitions toprohibit the discharge of listed solventhazardous wastes from non-specificsources as defined in 40 CFR 261.31(EPA Hazardous Wastes Nos. F001,F002, F003, F004, and F005). Thesesolvent listings (about 30 organiccompounds) encompass spent solvents,spent solvent mixtures and still bottomsfrom the recovery of spent solvents andspent solvent mixtures. The compoundswere listed on the basis of ignitabilityand/or toxicity.

Discharges of solvent wastes toPOTWs have involved actual fires orexplosions, or potential fires whichcaused evacuation of treatment plantbuildings or other measures to protecttreatment or collection systems.Incidents have also been documentedinvolving hazards to worker health andsafety and inhibition or upset ofbiological treatment systems. Inaddition, analysis of pollutant fatewithin POTW systems has shown thatsignificant quantities of solvents passthrough to receiving waters wherebiological treatment systems are notwell acclimated to the pollutant inquestion. For these reasons, the Agencysolicited comment on revising thespecific discharge prohibitions toprohibit the discharge of certain solventwastes listed under 40 CFR 261.31.Specifically, EPA solicited comment onwhether existing local limits, theproposed revisions to the specificdischarge prohibitions concerningignitability and fume toxicity, and theproposed solvent managementcomponent of industrial user spill andbatch control plans would address mostof the concerns discussed above,possibly making a ban on solventsredundant. The Agency stated that apossible advantage of these proposedrevisions is that they would address thedischarge of organic ccmpounds notused as solvents. The Agency solicitedcomment on whether the possibleimpacts of solvents on receiving waterswould justify prohibiting these wastesfrom being discharged to POTWs, andwhether such a prohibition would beappropriate.for those highly water-soluble solvent wastes which are more

Federal Register / Vol. 55, No. 142 / Tuesday, July 24, 1990 / Rules -and Regulations

appropriately treated by biologicaldegradation processes such as thoseused at POTWs.

b. Response to comments. In general,commenters did not support a ban onthe discharge of listed solvents. Manycommenters pointed out that a completeban would not be practical becausemost industries cannot completelyeliminate detectable levels of solventsfrom their discharges. Solvent recoverysystems reduce the total amount ofhazardous waste present in awastestream but there is still a need todispose of the "F" listed still bottoms.Commenters pointed out that somesolvent wastes (e.g., acetone, ethylacetate, and methanol) can beeffectively treated at POTWs usingsecondary treatment. Some commentersstated that the presence of certainorganic solvent wastes can be beneficialto a biological treatment system.

Many commenters believed thatexisting or proposed regulationsconcerning ignitability, fume toxicity,solvent management plans, categoricalstandards and sludge control weresufficient (along with local limits) toprevent the discharge of listed solventwastes from causing interference orpass through at POTWs. Thesecommenters stated that a proposed banon the discharge of listed solvent wasteswould therefore be redundant.

However, several commenters didsupport a ban on listed solvents. Onecommenter urged the Agency to makethe prohibition constituent-specific sothat constituents of concern from theRCRA "K" and "U" lists could also beincluded. This commenter also urged theprohibition of alcohol and ketonewastes, stating that these wastes posesignificant health problems. Othercommenters stated that numerical limitsshould be established, or that anaggregate limit similar to the Total ToxicOrganics standard for the electroplatingand metal finishing industries bepromulgated. One commenter suggestedthat each significant industrial user berequired to institute a Toxics OrganicsManagement Plan.

After reviewing the comments andevaluating this issue, the Agency hasdecided not to prohibit the discharge ofRCRA listed solvents F001-FOO5 at thistime. EPA believes that such aprohibition would not be justified inlight of all the existing controls(including those promulgated today)designed to address the problemscaused by solvents. For example, theprohibition on the discharge ofwastestreams with a flashpoint below140 degrees Farenheit (the RCRAstandard for ignitable liquid waste)should effectively prevent the discharge

of substances (including solvents) thatcould cause fires at POTWs. Similarly,the prohibition of discharges resulting intoxic gases, vapors, or fumes in aquantity that may cause acute workerhealth and safety problems should govery far towards eliminating anyproblems occasioned by thevolatilization of solvent discharges InPOTW collection and treatmentsystems. As discussed earlier, EPA ispreparing guidance for POTWs on howto implement this prohibition throughnumeric limits. . I

Today's final rule also contains arequirement that all POTWs withapproved pretreatment programsevaluate their significant industrialusers to determine if these users needplans for the control and prevention ofslug discharges. Such plans must containany necessary measures for controllingtoxic organics (including solvents). EPAbelieves that this provision will be aneffective vehicle for extending solventmanagement plans to noncategoricalsignificant industrial users. Manycategorical users are already covered byTotal Toxic Organic and solventmanagement plan requirements. In lightof these requirements, the Agency doesnot believe that it is necessary topromulgate a total toxics organicmanagement plan requirement as part ofthe general pretreatment standards.

With respect to establishingnumerical, constituent-specific, oraggregate limits for specific solvents or.waste constituents of concern, the .Agency believes that such limits would.not be appropriate at the national level.Such limits could not, of necessity,address the concerns of particularmunicipalities with their uniquecombinations of industrial users andsite-specific problems. For this reason,the Agency prefers at this time to leavethe development of such limits toPOTWs.

c. Today's Rule. For the reasonsdiscussed above, today's rule does notcontain a prohibition against thedischarge of listed solvent hazardouswastes to POTWs.

B. Spills and Batch Discharges (Slugs)(40 CFR 403.8(f)(2)(v))

a. Proposed ChangeThe principal pretreatment regulation

addressed specifically to slugs is theexisting requirement in 40 CFR 403.12(f)that all industrial users notify POTWs ofdischarges that could cause problems attheir POTW, including any slug loadingsthat would violate any of the specificprohibitions of 40 CFR 403.5(b).

Spills and batch discharges presentspecial challenges to POTWs. As'

documented by data on incidents atPOTWa, these discharges can cause

many problems at the treatment plant,including worker Illness, actual orthreatened explosion, biological upset orinhibition. toxic fumes, corrosion, andcontamination of sludge and receivingwaters. A survey'undertaken by theAssociation of Metropolitan SewerageAgencies (AMSA) indicated that spillsto sewer systems were the mostcommon source of hazardouswastes atthe respondents' treatment plants.

The current general pretreatmentregulations do not address theseproblems comprehensively. To addressthis concern- and to strengthen theexisting prohibitions against passthrough and interference, EPA proposedon November 23, 1988, to revise 40 CFR403.8(f0(2)(v) to provide that POTWsmust'evaluate each of their significantindustrial users to determine whethersuch users need a plan to prevent andcontrol slug loadings. This evaluationwas proposed to be required at the sametime that the POTW conducts inspectionor sampling of a significant industrialuser. POTWs would use the opportunityof an inspection or sampling to examinethe operational practices and physicalpremises of a significant industrial userto decide whether these warranted thedevelopment of a plan to handle andprevent accidental spills or non-routinebatch discharges.

The proposal would also have revised40 CFR 403.8(f)(2)(v) to provide that ifthe POTW decides that such a plan iswarranted for a particular significantindustrial user, the plan must contain, ata minimum, the following elements:

(1) Description of discharge practices,including nonroutine batch discharges;(2) Description of stored chemicals;.(3) Procedures for promptly notifying

the POTW of slug discharges as defiredunder 40 CFR 403.5(b), with proceduresfor follow-up written notification withinfive days;

(4) Any necessary procedures toprevent accidental spills, includingmaintenance of storage areas, handlingand transfer of materials, loading andunloading operations, and control ofplant site run-off;

(5) Any necessary measures forbuilding any containment structures orequipment;

(6) Any necessary measures forcontrolling toxic organics (includingsolvents);

(7) Any necessary procedures andequipment for emergency response; and

(8) Any necessary follow-up practicesto limit the damage suffered by thetreatment plant or the environment.

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EPA solicited comments on all aspectsof the proposed revisions. Specifically.the Agency requested comments on thefollowing issues: Whether EPA shouldimpose specific spill or batch controlrequirements directly on industrialusers; whether the control plansproposed to be required should belimited to significant industrial users orexpanded to cover all industrial users,or limited to other categories such asindustrial users who submit notificationof the discharge of hazardous wastesunder proposed 49 CFR 403.12(p);whether the requirements of 40 CFR403.12(f), section 103(a) of theComprehensive EnvironmentalResponse, Compensatior4 and LiabilityAct of 1980 (CERCLA), and section304(b) of the Superfund Amendmentsand Reauthorization Act of 1986 (SARA)are duplicative and unduly burdensomeand if so, on how such duplication couldbe avoided; whether it would beappropriate to establish certainadministrative exemptions from thesection 103 CERCLA notificationrequirements for indirect dischargers;and whether industrial users should beexempted from having to notify thePOTW of those slug discharges forwhich they have submitted CERCLAnotification.

b. Response to Comments

The Agency received many commentson this aspect of the proposed rule fromPOTWs, States, private industry, tradeassociations and environmental groups.In general, commenters supported theproposal because it would increasecontrol of slugs while still retainingPOTW flexibility. These commentersindicated that many POTWs havealready successfully reduced slugs usingsimilar control plans. A number ofcommenters stressed such benefits ofslug control plans as facilitation of earlyresponse and better control and clean-up of accidental discharges. Somesupporters offered suggestedclarifications or modifications, asdescribed below.

Only a few commenters opposed theproposed rule. Some commentersbelieved that some POTWs alreadyhave procedures and rules even morerestrictive than those proposed by theAgency, and that slugs are alreadyadequately regulated under existingpretreatment, CERCLA, SARA, andRCRA requirements. Because of themany different types of industrial userswithin the regulated community, somecommenters indicated concern thatgeneral slug control regulations wouldeither be too general or too specific, andthus would be unworkable for mostindustrial users. Other commenters also

expressed concerns about paperworkburdens, available POTW resources,and the technical ability of POTWs toconduct the initial evaluations andsubsequent inspections. One commentersaid that some POTW systems are solarge that they would not be affected byslug discharges, and suggested that slugplan requirements should be optional.

Because of the importance of slugcontrol and prevention in controllinginterference and pass through of toxicand hazardous pollutants, EPA is todayrequiring POTWs to evaluate significantindustrial users to determine the needfor such plans. EPA believes that theproposed evaluation and minimum planrequirements will provide significantenvironmental benefits. The Agencyalso believes that slug loads have thepotential to adversely affect even thelargest POTWs. Specific comments, andEPA's responses, are set forth below.

Several commenters expressedconfusion regarding the definition ofslug loading and submitted suggestionsfor clarifying the definitions anddistinctions between slugs and batches.The primary concern expressed bycommenters was that batch dischargesare not necessarily harmful, that effluentlimitations apply to such discharges, andthat batch discharges do not alwaysneed to be prevented. To clarify theAgency's intent in specifying the type ofdischarges which should be covered in'slug control plans, EPA is modifying thelanguage of proposed 40 CFR403.8(f)(2)(v) to provide that, forpurposes of that subsection, a slugdischarge is a discharge of a non-routine, episodic nature, including butnot limited to an accidental spill or anon-customary batch discharge. EPAnotes that, when evaluating SIUs todetermine whether they need to besubject to slug control plans, POTWsmay wish to examine the SIUs' batchdischarge practices, because batches arenot always subject to effluentlimitations: Batches may includedischarges from industries not coveredby categorical standards or local limits,and certain non-routine batchdischarges may cause problems for thePOTW.

Most commenters stressed the need toretain complete POTW flexibility indetermining which industrial usersshould have plans, and in approving theadequacy of these plans. A number ofcommenters supported slug dischargecontrols only as long as POTWs had thediscretion to make the needs assessmentand significant industrial userdetermination, and remain the solearbiter of what is necessary andadequate. Commenters also generally

supported the proposed plan elements.They believed that the elements arecomprehensive enough to ensure that allthe essentials of slug prevention arecovered. However, a few commenterswere opposed to the listed planelements. One commenter said thatimposing specific requirements for acontrol plan would be excessive andshould not be necessary. Anothercommenter said that the detail involvedin the list of elements would restrictPOTW flexibility in implementing slugcontrols and would discourage POTWsfrom identifying appropriate industries.

EPA recognizes the need for POTWflexibility in determining whichindustrial users need to have plans forthe control and prevention of slugdischarges, and in determining theappropriate elements of slug control andprevention plans. Today's rule leavesmuch discretion to the POTW. The areasin which POT1IVs have considerablediscretion include POTW designationand designation of significant industrialusers and POTW evaluation of eachsignificant Industrial user to determinethe need for a slug control plan.However, the Agency does not agreethat requiring minimal elements for suchplans is unnecessary or undesirable. Inparticular, the first three elements of theplan (the description of dischargepractices, the description of storedchemicals, and notification procedures)are essential for the POTW to be awareof actual or potential slug loads from aparticular significant industrial user. Theremaining plan elements refer to"necessary" measures, procedures, orpractices, thus allowing considerablePOTW flexibility in deciding whichmeasures are appropriate for aparticular industrial user with respect toprevention, containment, emergencyresponse, and follow-up.

On the other hand, some commenterswho supported the proposed ruleindicated that it did not go far enough instating which industrial users should beevaluated, and which criteria should beused in the evaluation. A fewcommenters objected to the lack ofregulatory criteria for determiningwhether a significant industrial userneeds a control plan. one commenterfearing that this lack would increase thepotential for arbitrary decisionmaking,another fearing that POTWs would notmake determinations that such plans areneeded in all appropriate cases.Regulatory criteria suggested by onecommenter included certain quantitiesof stored chemicals, potential for slugloadings, and history of slug discharges.These criteria would increase uniformityand reasonableness of decisionmaking,


according to the commenter. Stillanother commenter suggested thatindustrial users with diked storage areasor an absence of floor drains beexempted. One commenter stated thatthe proposed language would notexempt non-significant industrial usersfrom slug control and prevention-requirements. Another commenterexpressed concern about industrialusers who needed slug control plansbecause of storage of hazardouschemicals, but who had little industrialdischarge to sewers.

EPA's "Guidance Manual for Controlof Slug Loadings to POTWs" (September1988], provides guidance on evaluatingindustrial users for slug potential,criteria for determining whether anindustrial user needs a control plan, andguidance in developing slug controlrequirements. The manual is dividedinto three parts: (1) Evaluating the needfor a POTW slug control program, (2)developing an industrial user controlprogram, and (3) developing a POTWslug response program. Information isprovided on identifying potentialindustrial user slug sources and theirrisk categories, evaluating or improvingthe legal authority to regulate slugs,requiring selected industrial users todevelop slug control plans or measures,inspecting and monitoring industrialusers, and developing emergencyresponse procedures and resources. EPAbelieves that this guidance will be usefulto POTWs in determining whichindustrial users need slug control plans,and in developing such plans, therebyreducing the potential for arbitrarydecisionmaking. However, EPA does notbelieve that it should develop rigidcriteria in its regulation establishingwhen slug control plans should berequired. POTWs are in the bestposition to make such determinationsand, since such requirements will helpensure continued compliance with ItsNPDES permit, it is in the interest of thePOTW to do so. With respect toexempting certain industrial users fromslug control requirements, the Agencynotes that today's rule requires that,POTWs evaluate significant industrialusers to determine whether such usersneed slug control plans. EPA believesthat exemptions are best granted byPOTWs during the course of suchevaluations to allow them to take intoaccount the particular circumstancespresent at the'significant industrialuser's facility. Today's rule does notspecifically exempt non-significantindustrial users from slug controlrequirements because POTWs may wishto require such users to develop planson a case-by-case basis to address the

potential for adverse impact caused byslug discharges from those facilities.With respect to facilities with little or noindustrial discharge, the Agency notesthat non-domestic users which typicallyintroduce only sanitary, as opposed toindustrial, waste to POTWs arenevertheless subject to the generalpretreatment regulations and may bedesignated as significant industrial usersby POTWs for such reasons as thepotential of stored chemicals to enterthe sewer in an.accident. They may alsobe required to have slug control planspursuant to POTWs' local authorities.

One commenter suggested includingamong the elements a timetable forimplementation. Still another said plansshould contain language requiring theindustrial user to immediately takemeasures to cease the discharge andremedy the damage. Several wanted tosee a requirement for plan certificationby professional engineers, and onecommenter suggested an equalizationsystem requirement for industrial userswith a history of slug discharges.Although these elements may sometimesbe needed on an individual basis, EPAdoes not believe that they are necessaryelements for all slug control plans issuedto significant industrial users and istherefore not promulgating suchrequirements as part of today's rule; Forexample, today's rule already specifiesthat control plans must contain anyfollow-up measures necessary to limitthe damage suffered by the treatmentplan or the environment. POTWs maywish to require many industrial users toimmediately take measures to cease thedischarge as a follow-up measure, butsuch a requirement may be superfluousfor some industrial users because of thenature of their effluent or their dischargepractices. Similarly, although POTWsmay wish to require certain facilities tohave their plans certified byprofessional engineers, certification maynot be needed for smaller, less complexfacilities. With respect to equalizationsystems for facilities with a history ofslug discharges, EPA believes that inmany cases other measures may beequally as or more appropriate toaddress the problem. Concerningtimetables for implementation, EPAbelieves that it is preferable for POTWsto decide on a case-by-case basiswhether such a timetable is needed inorder to address the potential foradverse impact presented by aparticular significant industrial user.Today's rule allows POTWs theflexibility to require such timetables,orders to cease discharge, or engineerplan certification as POTWs deemappropriate or necessary. However, the

Agency has modified today's ruleslightly from the proposal to require thatslug control plans must contain anynecessary measures for inspection aswell as maintenance of storage areasand for any necessary worker training.Inspection and maintenance of storageareas is essential to see that storedmaterials are not leaking or improperlyplaced, and worker training is necessaryto instruct employees in the mostpracticable methods to prevent, detect,and respond to spills at the particularfacility.

Another commenter suggested that therule be modified to require that anysignificant industrial user whichdischarges a slug loading should notonly notify the POTW but alsospecifically report (within thirty days)what happened and what action wouldbe taken to minimize the possibility ofrecurrence. However, EPA believes thatthe commenter's concern will beadequately addressed by therequirement in today's rule that slugcontrol plans contain procedures forprompt notification to the POTW of slugdischarges and follow-up writtennotification within five days. Today'srule also requires follow-up practices tolimit damage to the treatment plant orthe environment.

Severalcommenters asked forclarification on how often the need forslug plans should be evaluated by thePOTW; I.e., whether the evaluation ofsignificant industrial users is to be aone-time requirement or whether it mustbe updated at the time of each samplingor inspection. Also, some commentersstated that POTWs need the flexibilityto perform frequent inspections withouthaving to evaluate the need for slugplans every time. Another commentersuggested that POTWs be required to'evaluate the need for slug plans onlywhen individual significant Industrialuser permits are reviewed. Onecommenter suggested implementation ofplans over a three-year period byapproved pretreatment POTWs.Another commenter suggested thatPOTWs should be allowed up to twoyears to complete all of the initialevaluations, even if sampling orinspection is more often than once everytwo years. The commenter believed thata two-year interval provides adequatetime for the POTW to require, review,and evaluate each slug loading controlplan.

EPA believes that evaluation ofsignificant industrial users to determinethe need for slug prevention and controlplans should be more than a one-timerequirement. Today's rule thereforerequires POTWs to conduct such

30095


evaluations of significant industrialusers for purposes of determining theneed for a slug prevention and controlplan at least once every two years.However, the Agency notes that at leastone commenter apparently misconstruedthe language of the proposal to requirethat POTWs review slug control plansevery two years. EPA reiterates thatunder today's rule, POTWs wouldevaluate significant industrial users todetermine the need for a slug controland prevention plan. Actual evaluationsof already submitted plans would takeplace according to a schedule ofPOTWs' own choosing.

The November 23, 1988 proposalwould have required POTWs toevaluate significant industrial users todetermine the need for slug control andprevention plans every two years, andwould have also required that theevaluation be conducted at the sametime that the POTW conductedinspections and sampling of significantindustrial users. Under today's rule,POTWs must inspect and samplesignificant industrial users at least oncea year, instead of once every two yearsas was proposed on November 23, 1988(see Part G.2 of today's notice). TheAgency believes that determining theneed for slug control plans need not takeplace that often, and therefore ismaintaining in the final rule theproposed requirement that POTWamake the determination a minimum ofonce every two years. Under today'srule, the determination need notnecessarily be made at the same time asinspections and sampling of theparticular significant industrial user,since EPA believes that POTWs shouldhave the flexibility to conduct thisevaluation separately if they deem itappropriate. Nevertheless, EPA believesthat inspections and sampling ofindustrial users will generally providethe POTW with the best opportunity fordetermination of the necessity for slugprevention and control plans, andencourages POTWs to conduct suchevaluations at the same time asinspections and sampling are carriedout. Although EPA believes that whereslug control plans are developed,compliance with the plans should bemade a requirement in the significantindustrial users' individual controlmechanisms, no schedule forimplementation of plans is required intoday's rule. This will allow POTWs theflexibility to set priorities with respectto their own significant industrial users.

EPA also solicited comments onwhether spill or batch controlrequirements should be imposed directlyon industrial users by EPA. In response,

some commenters indicated that itwould be appropriate for the industrialusers to bear the burden of preventingharm to the POTW and its workers.However, the majority of commentersdid not support imposing the slugcontrol requirements directly on allindustrial users, on the basis that slugcontrol plans must be specific to eachindustrial user in order to be effective(although one commenter believed thatslug control requirements should beuniform for all industrial users whohandle hazardous waste). Commentersgenerally indicated that due to thefacility-specific nature of most controlplans, the POTW is in the best positionto determine whether a control plancontains appropriate measures. Onecommenter said that the requirementsshould be imposed directly on onlysignificant industrial users or thoseindustrial users with slug potential forboth hazardous and nonhazardousdischarges.

EPA agrees that slug control plansshould not be imposed directly by EPAbecause there are almost norequirements that would be uniformlyappropriate for all industrial users or allsignificant industrial users. POTWs willbe in the best position to develop slugprevention and control requirements forindustrial users because, by fulfillinginspection and sampling requirements,they will be familiar with the operationsof their individual industrial users, andthey will also know best what types ofdischarges must be prevented to avoidcausing passthrough and interference.Accordingly, today's rule provides thatthe POTW will develop individual slugcontrol plan requirements as necessary.

With respect to expanding theevaluation requirement to othercategories or all industrial users,commenters generally preferredrequiring POTWs to evaluate onlysignificant industrial users as a way toconserve POTW resources, especiallysince POTWs may classify any user assignificant A number of commentersmade their approval of the limitation tosignificant industrial users contingentupon adoption of an appropriatesignificant industrial user definition.One commenter stated that if POTWeappropriately designate as significantthose facilities that have a "reasonablepotential to adversely affect thePOTW's operation." the significantindustrial user limitation would beappropriate. However, one commenterstated that by implication the proposedrule would make any facility that aPOTW believes should have a controlplan a significant industrial user, andthat this should not necessarily be the

case. Other commenters opposed toexpanding the requirement beyondsignificant industrial users generallyindicated that evaluating all industrialusers for slug control plans could resultin development of unnecessary plans.Several commenters expressed concernthat EPA had not considered the costs ofexpanding the proposed rule to includeall industrial users, especially smallfacilities.

However, a number of commentersstated that all industrial users should beevaluated for slug control plans. Onecommenter stated that all dischargersshould be covered by slug controlrequirements to limit incentives forindustries to relocate to areas withoutan approved pretreatment program.Another commenter suggested that therequirement for slug plan evaluations beexpanded to include industrial userswho submit notification of the dischargeof hazardous wastes (as proposed in 40CFR 403.12(p)) and any incidental userof the POTW who submits notificationof the discharge of hazardous wastepursuant to CERCLA. RCRA or SARArequirements.

Under today's rule, POTWs must, at aminimum, evaluate significant industrialusers to determine the need for slugcontrol plans. However, POTWs are freeto inspect and require slug control plansof other industrial users. Today's ruleaffords considerable POTW flexibilityin designating significant industrialusers, and in selecting other appropriateindustrial users for slug plandevelopment. However, today's rulealso does not require or imply that everyindustrial user determined by the POTWto need a slug control plan is asignificant industrial user, because suchusers may not fit the criteria forsignificance found in the definition ofsignificant industrial user pron'ulgatedtolay (for example, they may have thepotential for adversely affecting POTWoperations only in the event of a spill, inwhich case the POTW may not wish todesignate them as significant for otherpurposes). Industries that are notsignificant industrial users, includingsome that store or discharge hazardouswastes, may sometimes need a slugcontrol plan. but EPA believes it ispreferable for POTWs to ascertainwhether this is necessary on a case-by-case basis.

With respect to duplication ofCERCLA. SARA and/or RCRArequirements, all commenters expressedan interest in administrative efficiency.A number of commenters asked that therule recognize the potential existence ofindustrial user plans already preparedfor other permit or regulatory


requirements, and partially exempt suchindustrial users or incorporate theirRCRA or other permit elements byreference. Several commenters asked forclarification about whether an industrialuser can submit a copy of a documentprepared for another agency orregulation to the POTW in lieu ofpreparing a separate slug control plan.Several commenters stated that the SpillPrevention Control and Countermeasure(SPCC) Plan requirements should sufficefor slug control. One commenterrequested clarification about whether afacility would be required to have aRCRA management plan which couldserve as a slug control plan if the facilitygenerated a sufficient quantity of wasteto be subject to the formal reportingrequirements (the Agency assumes thatthe commenter was referring to today'shazardous waste notificationrequirements).

EPA recognizes that a number ofexisting requirements under otherstatutes and regulations could serve ascomponents of slug control plans. If asignificant industrial user is covered bysuch a plan, the POTW may accept suchplans in partial or complete fulfillmentof the requirements in today's rule, aslong as each element set forth in today'srule is addressed in an acceptablemanner in some document or collectionof documents. POTWs may also imposemore rigorous requirements ascircumstances warrant. With respect totoday's hazardous waste notificationrequirements for dischargers ofhazardous wastes to POTWs, EPA notesthat some, but not all, of suchdischargers are also subject to RCRAmanagement requirements because theytreat, store, or dispose of hazardouswaste pursuant to 4 CFR part 264.

With respect to exemptions from slugnotification requirements f6r industrialusers who submit CERCLA and SARAnotifications, almost no commentersapproved of this proposal. AlthoughSARA and CERCLA have notificationrequirements that may overlap with slugnotification, most commenters believedprompt and direct notification of thePOTW by the industrial user wasessential. These commenters pointed outthat prompt POTW response to slugswould be delayed by a second-handnotification from SARA or CERCLApersonnel. Another commenter pointedout that the SARA list of ExtremelyHazardous Substances does not addressmany potential POTW hazards.Gasoline. toluene, and other commonflammable and explosive chemicals arenot included, while certain unusualchemicals and medicines that may notbe of concern to POTWs are on the list.

One commenter expressed concern thatsuch an exemption would lead industrialusers to believe that spills below aCERCLA reportable quantity (RQ) are ofno consequence to the POTW, when thisis often not the case.

EPA believes that slug loadingnotification requirements serve differentpurposes from SARA/CERCLArequirements and are not duplicative.Direct notification to the POTW affectedby the slug is critically importantbecause time is essential in formulatingan appropriate response. Similarly, thereportable quantities established underCERCLA are not necessarily related tothe potential for pass through orinterference at the POTW, nor are thehazardous substances required to bereported under SARA necessarily thesubstances of most concern to POTWs.

In the proposal, EPA requestedcomment on whether an administrativeexemption from CERCLA section 103(a)notification requirements would beappropriate for releases into sewerswhich pose little or no hazard to thePOTW. The Agency received no dataindicating that such an exemption wouldbe appropriate. For this reason, EPA isnot addressing the issue ofadministrative exemptions underCERCLA in today's rulemaking.

c. Today's RuleToday's rule revises 40 CFR 403.8(f) to

provide that POTWs with approvedpretreatment programs must evaluate, atleast once every two years, whethereach significant industrial user needs aplan to control slug discharges asdefined under 40 CFR 403.5(b). If thePOTW decides that such a plan isneeded, the plan shall contain at leastthe following elements:

* Description of discharge practices,including nonroutine batch discharges;

* Description of stored chemicals;" Procedures for promptly notifying

the POTW of slug discharges, includingany discharge that would violate aspecific prohibition under 40 CFR403.5(b), with procedures for follow-upwritten notification within five days;

* If necessary, procedures to preventadverse impact from accidental spills,including inspection and maintenance ofstorage areas, handling and transfer ofmaterials, loading and unloadingoperations, control of plant site run-off,worker training, building of containmentstructures or equipment, measures forcontaining toxic organic pollutants(including solvents), and/or measuresand equipment for emergency response;and

* If necessary, follow-up practices tolimit the damage suffered by thetreatment plant or the environment.

C. Trucked and Hauled Waste (40 CFR403.5(b)(8))

a. Proposed Change

Many POTWs have expressedconcern about discharges from liquidwaste haulers. The Study identified thestrengthening of controls on thesedischargers as potentially deserving ofthe Agency's attention. In June 1987 theAgency issued guidance to help POTWscontrol the discharge of hazardouswastes from liquid waste haulers totheir systems (Guidance Manualfor theIdentification of Hazardous WastesDelivered to Publicly Owned TrdatmentWorks by Truck, Rail, or DedicatedPipe). As a further response to the Studyand to further the prevention of passthrough and interference, the Agencyproposed on November 23,1988 to add aprovision to 40 CFR 403.5(b) prohibitingthe introduction to POTWs of anytrucked or hauled pollutants except atdischarge points designated by thePOTW. The Agency requestedcomments on the proposal and on the'following issues: whether to revise 40CFR 403.8 to require POTWs to specifyparticular discharge sites; whether theproposed specific discharge prohibitionis too extensive and should be limited tonon-septic wastes only; and whether torequire POTWs to develop and obtainapproval of additional procedures todeal with trucked wastes, such asrequiring POTWs to monitor and samplesuch wastes. I


The Agency received many commentson the proposed rule from POTWs,States, private industry, tradeassociations, and environmental groups.Commenters generally favored the rulealthough many suggested modifications.

The majority of commenters indicatedthat specific discharge sites wouldprovide better control of trucked andhauled waste, as well as improvedaccountability for this type ofdischarger. Commenters generallyindicatedthat the rule would increasePOTWs' control without addingburdensome requirements. Additionally,one commenter indicated that therequirement for designation of dischargepoints gives notice to all waste haulersthat the POTW's control authority isbacked by federal controls andguidelines. One commenter stated thatas the land disposal of untreatedhazardous wastes is increasinglyprohibited under RCRA, surreptitiousdisposal of unwanted hazardous wastesmight become more commonplace, andtherefore better controls on trucked orhauled discharges will be necessary.

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However, some commenters statedthat there is no need for additionalfederal requirements for liquid wastehaulers. Some commenters said thatcurrent requirements established byPOTWs with approved pretreatmentprograms for sampling, testing, andmanifesting are adequate to control thedischarge of non-septic trucked wastes.Some commenters opposed to the rulestated that RCRA is the appropriateprimary vehicle for control of trucked orhauled hazardous waste in order toavoid confusion, duplicativerequirements, and uncertainty. Thesecommenters stated that it would not beproductive to require duplicativerequirements under the pretreatmentprogram, since liquid waste haulers arenot covered by the domestic sewageexclusion and are therefore subject toRCRA transporter requirements.

The Agency does not agree with theassertions that the proposedrequirement Is redundant with existingRCRA or pretreatment requirements orthat trucked or hauled wastes shouldnot be subject to specific regulation.Because hazardous waste haulers mustcomply with RCRA manifestrequirements (including transport of the,waste to a designated RCRA facility),the principal new legal effect of today'srequirement will be to prohibit thedischarge of trucked non-hazardouswastes to POTWs except at designateddischarge points. Practically, however,this requirement will give POTWs bettercontrol of all wastes entering theirsystems (including hazardous wastes]by encouraging POTWs to designatecertain discharge points that they canmonitor to prevent the introduction ofundesirable wastes into the sewersystem.

EPA believes that designation ofdischarge points is an essential tool toimprove POTW control of trucked orhauled wastes. Therefore, EPA isrevising 40 CFR 403.5(b) to addparagraph (8) which prohibits theintroduction to POTWs of any truckedor hauled pollutants except at dischargepoints designated by the POTW. Therule allows POTW flexibility inimplementing this prohibition.

Commenters were generally opposedto requiring POTWs to specify particulardischarge sites. One commenter notedthat only POTWs accepting such wasteshould designate discharge points. Thecommenter concluded that requiringPOTWs to designate discharge pointswould cause confusion because manyPOTWs do not accept hauled waste.EPA agrees that requiring all POTWs todesignate discharge points would not beappropriate; not all POTWs are

equipped to handle additional loadsand/or types of pollutants which may beintroduced to their facilities by liquidwaste haulers. It is not EPA's intent torequire the designation of dischargepoints by POTWs. Rather, EPA intendsthat today's rule be interpreted asprohibiting the discharge of hauledwaste to a POTW except to the extentthat the POTW allows such dischargesand they occur at locations designatedfor such purposes by the POTW.

A number of commenters suggestedspecific modifications to the rule. Onecommenter stated that POTWs shouldhave explicit authority to refuse toaccept such wastes in order to protectthe plant, including a rejection becauseproper analyses and certification werenot met. This commenter indicated thatPOTWs should also be able to specifylocation of disposal, time and otherconditions deemed necessary, includinglocal limits. The commenter favoredadding statements defining conditionsPOTWs can Impose prior to acceptingsuch wastes, including the use of locallimits. Two commenters suggestedPOTW performance standards forestablishing discharge points, statingthat POTWs with a wide distribution ofindustrial users should provide multiplelocations to minimize transportationexpenses and the risks inherent in alltransportation for industrial users whohaul their wastes to the POTW. Onecommenter suggested requiring thatdesignated discharge points besupervised by POTW personnel at alltimes when discharging is permitted.

EPA believes that the conditions andrestrictions suggested by thesecommenters are sometimes necessaryon an individual basis, but wouldnecessarily vary according to differentPOTWs and their circumstances andtherefore are not appropriate forinclusion in a uniform national rule. TheAgency notes that today's rule providesPOTWs with the flexibility to adoptspecific conditions or restrictions suchas those suggested by the abovecommenters. For example, POTWs maydesignate multiple discharge points fornon-hazardous waste at any sites theydeem appropriate for particular types ofindustrial users and they may providesupervision at some or all of these sitesas appropriate. Similarly, POTWs mayrefuse to accept any trucked or hauledwaste if proper procedures have notbeen followed, or they may set specificlimits for such wastes. EPA's "GuidanceManual for the Identification ofHazardous Wastes Delivered to PubliclyOwned Treatment Works by Truck,Rail, or Dedicated Pipe" (Office ofWater:Enforcement and Permits, June

1987), suggests numerous specific meansto ensure that hazardous wastes are notbeing discharged to POTWs, includingpermits, waste tracking systems,Inspection and sampling analysis,surveillance and investigativetechniques, and restricted dischargepermits. Because the need for suchmeasures will vary, today's rule leavesit up to the POTW to adopt them whennecessary.

A few commenters requestedguidance on what specific tests toperform on trucked waste, or suggestedthe use of simple tests to determine thehazardousness of wastes. EPA's above-cited "Guidance Manual for theIdentification of Hazardous WastesDelivered to Publicly Owned TreatmentWorks by Truck, Rail, or DedicatedPipe" contains detailed guidance onsuch testing, including how to determineif a waste is hazardous and how toestablish a waste monitoring programtailored to the POTW's needs.

One commenter suggested that theregulations should prohibit acceptanceof trucked or hauled materials whichmay result in interference or passthrough of pollutants. Anothercommenter stated that categorical limitsshould not apply to trucked wastes,since this would unduly complicate theprocess. Still another commenter statedthat establishment of dump sites awayfrom the treatment facility could createa control problem for the POTW, andthat the most effective control methodwould allow discharge only at thePOTW headworks.

In response, EPA notes that truckedand hauled wastes are already subjectto both EPA's general pretreatmentregulations (including the generalprohibition against pass through andinterference) and to any categoricalpretreatment standards applicable to thewastes. EPA agrees that in manyinstances the most effective controlmethod may be to allow discharges oftrucked or hauled wastes only at POTWheadworks, and encourages POTWs toadopt this method if they deem itappropriate. In designating dischargepoints, and establishing procedures toensure that wastes introduced to thePOTW comply with all applicablefederal requirements, EPA suggests thatPOTWs keep two critical issues in mind.First, facilities generating wastescovered by categorical pretreatmentstandards may not avoid pretreatmentrequirements simply by arranging forwaste removal by liquid waste haulers.Accordingly, wastes generated by suchfacilities may not be introduced to aPOTW by a liquid waste hauler unlessthey have been pretreated in accordance

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with the categorical pretreatmentstandard(s) applicable to the waste.Second, POTWs may not designatedischarge points outside of the POTWfacility boundary for the introduction ofhazardous wastes to the sewer system.Under the RCRA regulations, hazardouswastes may only be transported todesignated facilities permitted to handlethe waste described in the manifest (see40 CFR 262.20, 263.21). For POTWsoperating under a RCRA permit-by-rule,the area outside the POTW propertyboundary, including most of the sewercollection system, is not part of thepermitted facility, so cannot be used asa location for accepting hazardouswaste. See EPA's 1987 "Guidance forImplementing RCRA Permit-by-RuleRequirements at POTWs," p. 11. ForPOTWs operating under or consideringapplying for a RCRA permit, EPA hasstated that "manifested wastes mayonly be delivered to an approved(hazardous waste management facility),and sewer systems will not be approvedfor that purpose". 45 FR 33320 (May 19,1980).

Many commenters supported limitingthe prohibited discharge standard tonon-septic wastes, stating thatdesignating discharge points for alltrucked or hauled wastes couldpotentially put an undue burden onsmall POTWs because of supervisingdischarges at:these points, and thatlimiting the prohibition to non-septicwastes would not prevent a POTW fromspecifying specific discharge points forseptic waste if deemed appropriate bythe POTW.

However, other commenters believedthat both septic and non-septic wastesshould be included in the prohibition.These commenters indicated that theprohibition would be difficult to enforceif septic wastes are excluded, since it issometimes difficult to ascertain withoutsampling whether a truck is carryingseptic or non-septic wastes.

EPA agrees with those commenterswho expressed concerns about thepotential presence of toxic andhazardous pollutants from non-domesticsources in septic wastes. For thisreason, the Agency is today prohibitingthe discharge of all trucked and hauledwastes except at designated dischargepoints. This will give POTWs bettercontrol of all such wastes potentiallycontaining toxic and hazardouspollutants.

One commenter stated that theprohibition does not distinguish betweena liquid waste hauler's off-site dischargeto a POTW and an on-site dischargefrom a truck which is used to transportwaste from one industrial plant buildingto another, then rinsed out and the

residue discharged to the sewer at theindustrial user's site. In response, EPAnotes that the intent of today's rule wasto regulate the discharge of wastestrucked or hauled off-site to the POTWfrom an industrial facility. Wastesdischarged from a truck to the collectionsystem at an industrial user's facility arenot covered by today's prohibition, sincesuch waste would not normally differfrom that discharged by the facilityduring its usual operations. The purposeof today's prohibition, on the otherhand, is to give POTWs better control ofpotentially harmful wastes which maybe difficult to identify or which mayhave no easily ascertainable origin.

Most commenters did not supportrequiring other procedures for truckedand hauled wastes, although a fewcommenters recommended requiringadditional sampling and monitoringprocedures. However, most commentersgenerally indicated that whilemonitoring and sampling of truck loadsare important, specific proceduresshould be developed by each POTW ona case-by-case basis to address its ownparticular situation. A number ofPOTWs discussed their own proceduresfor controlling trucked and hauledwastes, such as a certification ormanifest requirement to track wastesentering the treatment plant, continuoussupervision of designated dischargepoints, inspection of wastes (visual orthrough chemical and/or physicalanalysis) prior to acceptance by thePOTW, requiring that trucked wastes besubjected to a minimum annualcharacterization and compatibilitytesting, and individual truck loadsampling, Commenters believed that theextent of discharge management controlexercised by the POTW should betailored to facility-specific conditions,such as volume of specific materialwhich the treatment process canaccommodate over a period of timewithout loss of treatment effectiveness.

EPA believes that requiring uniformPOTW procedures for handling truckedand hauled waste is not appropriate atthe present time, since such proceduresare very dependent on site-specificsituations which POTWs are generallybest equipped to address on their own.For this reason, EPA is not requiringPOTWs to develop any particularmeasures to deal with trucked or hauledwastes, other than the prohibition ondischarges except at locationsdesignated by the POTW.

c. Today's RuleToday's rule adds a new provision (40

CFR 403.5(b)(8)) prohibiting thedischarge of trucked or hauled

pollutants except at discharge pointsdesignated by the POTW.

D. Notification Requirements (40 CFR403.12(p))

a. Proposed Change

Section 3010 of RCRA requires thatany person who generates or transportshazardous waste, or who owns oroperates a facility for the treatment.storage, or disposal of hazardous wastemust file a notification with EPA or witha State with an authorized hazardouswaste management program. Pursuant tothe" Domestic Sewage Exclusion in 40CFR 261.4(a)(1), any material mixed withdomestic sewage that passes through asewer system to a publicly-ownedtreatment works for treatment is not asolid waste, and therefore cannot be ahazardous waste. However, section3018(d) otRCRA (enacted as part of theHazardous and Solid WasteAmendments in 1984) provides that thenotification requirements of RCRAsection 3010 "shall apply to solid ordissolved materials in domestic sewageto the same extent and in the samemanner as such provisions apply tohazardous waste." There is currently noregulatory requirement that industrialusers report the discharge of allhazardous wastes to sewers. The Studytherefore identified the implementationof section 3018(d) as a potentially usefulcomponent of an improved pretreatmentprogram. The Agency believes that theinformation provided by suchnotification is needed for the ultimatedevelopment by POTWs of controls toprevent pass through and interference.

On November 23, 1988, EPA proposedto revise 40 CFR 403.12 to add a newparagraph (p) that would require allindustrial users to notify EPA RegionalWaste Management Division Directors,State Hazardous Waste authorities, andtheir POTW of any discharge into aPOTW of a substance which is a listedor characteristic hazardous waste undersection 3001 of RCRA. Such notificationwould include a description of any suchwastes discharged, specifying thevolume and concentrations of thewastes, the type of discharge(continuous, batch, or other) andidentifying the hazardous constituentscontained in the listed wastes. Thenotification would also include anestimate of the volume of hazardouswastes expected to be 'discharged duringthe following twelve months. Thenotification would take place within sixmonths of the effective date of the finalrules.

To firther ensure control of hazardouswastes discharged to sewers, the

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proposed rule would require allindustrial users who submit notificationof the discharge of hazardous wastes tocertify that they have a program in placeto reduce the volume and toxicity ofwastes generated to the degree theyhave determined to be economicallypracticable, and that they have selectedthe practicable methods of treatment,storage, and/or disposal currentlyavailable to them which minimize thepresent and future threat to humanhealth and the environment. A similarcertification requirement already appliesto all generators of hazardous wastes(other than those that discharge theirwastes to sewers) under section 3002(b)of RCRA.

In the October 17, 1988 revisions tothe general pretreatment regulations (53FR 40562, 40614) EPA added arequirement at 40 CFR 403.12(j)) that allindustrial users promptly notify thePOTW in advance of any substantialchange in the volume or character ofpollutants in their discharge. To clarifythat 40 CFR 403.12(j) also applies to thedischarge of hazardous wastes, theAgency also proposed to require that allindustrial users promptly notify thePOTW in advance of any substantialchange in the volume or character ofpollutants in their discharge, includingchanges in the volume or character ofany listed or characteristic hazardouswastes for which the industrial user hassubmitted initial notification under 40CFR 403.12(p).

Under proposed 40 CFR 4 03.12(p)generators would have been exemptfrom notification requirements duringany calendar month in which theygenerated not more than 100 kilogramsof hazardous waste, except for thosewastes identified under 40 CFR 261.5 (e),(f), (g) and (j). Generators of more than100 kilograms of hazardous wastes inany given month would be required tofile the one-time notification.

In the proposed rule, the Agencysolicited comments on the smallquantity generator exemption and onwhether any of the existing RCRA formsmight be suitable for submission of theproposed notification requirements. EPAalso requested comment on whetherthose industrial users required to submitForm R (a Toxic Release Inventory formrequired under section 313 of SARA tobe submitted annually by industrialusers with over ten employees who.discharge certain listed toxic chemicals)should send a copy of Form R to thePOTW, in lieu of the proposedhazardous waste notificationrequirements, if the toxic chemicalsreported by the industrial user on FormR include those RCRA hazardous

wastes for which notification would berequired. The Agency also requestedcomments on whether additional (ormore specific) managementrequirements should be imposed tocontrol wastes for which notificationwould be submitted under the proposal.


The majority of the commentersexpressed strong support for notifying atleast the POTW of hazardous wastedischarged into its system. Supportingcomments were that such notificationwould augment existing controls onspills and accidental discharges andgive the POTW more knowledge of andcontrol over previously unreporteddischarges.

Other commenters opposed anyadditional notification requirements,stating they would be duplicative andburdensome for all parties concerned.Several commenters stated that therequirement was not necessary becausethe discharge of hazardous waste wasalready prohibited in their sewerordinances and therefore did not occurunless it was an uncontrolled spill. Stillother commenters believed that theinformation needed by the POTWshould be available through the Stateand Federal RCRA or SARA databasesfor them to obtain as necessary.

Because the proposal would imposeonly a one-time notification requirementwhich can frequently be fulfilled withavailable information, EPA does notbelieve it to be burdensome forindustrial users. The information willalso be useful to POTWs in developingprograms to better control theintroduction of hazardous wastes intotreatment and collection systems. Sewerordinances do not generally contain aprohibition against the discharge ofhazardous waste, and these wastes arefrequently present in part because of theDomestic Sei.rage Exemption providedunder RCRA. Although some of theinformation in the proposednotifications is accessible through Stateand Federal databases, much of it is not.For example, hazardous substances forwhich notification is required under.SARA are not necessarily the same asthe listed and characteristic hazardouswastes for which notification would beprovided under today's rule.

Most of the POTWs and States whocommented believed that POTWs, Stateauthorities, and EPA should receive thenotification. But many commenters(mostly industries) supportednotification of the POTV only. Theystated that notifying the State hazardouswaste management authorities, as wellas EPA, would be redundant.

Section 3018(d) of RCRA makes therequirements of section 3010 applicableto solid or dissolved materials indomestic sewage "to the same extentand in the same manner as suchprovisions apply to hazardous waste."Section 3010(a) states that "any persongenerating or transporting [hazardouswaste] or owning or operating a facilityfor treatment storage, or disposal ofsuch substance shall file with theAdministrator (or with States havingauthorized hazardous waste permitprograms under section 3006) anotification stating the location andgeneral description of such activity andthe identified or listed hazardous wasteshandled by such person" (emphasisadded). The statute thus mandates that,at the least, State or EPA hazardouswaste personnel be notified. However,EPA does not interpret section 3018(d)as limiting the recipients of notificationprovided for under that section to therecipients specified under 3010(a). EPA'sauthority to tailor notificationrequirements to meet the needs of thepretreatment program is based insection 307(b) of the Act, authorizingEPA to promulgate such standards asare necessary to prevent pass throughand interference. Also, RCRA section3018(b) directs EPA to revise existingregulations "to assure that substancesidentified or listed under (RCRA section3001) which pass through a sewersystem to a publicly owned treatmentworks are adequately controlled toprotect human health and theenvironment." As described below, EPAbelieves that proper control of materialsidentified or listed under RCRA will befacilitated by a requirement thatnotifications required by today's rule besubmitted to POTWs, State authoritiesand EPA.

EPA agrees with the commenters whosupport notification of the POTWbecause it is directly affected by thedischarge of such wastes. POTWs needto fully understand the nature of influentwastes to their plants to ensure propertreatment at the plant, establishappropriate local limits, and meet permitrequirements. EPA believes that it isimportant for States to receive thenotification so that they may use it inissuing NPDES permits, implementingState pretreatment programs, andprotecting public health and welfare. Inaddition, submission of the notificationrequirements to EPA may assist theAgency in issuing NPDES permits toPOTWs where it is the permittingauthority and in establishingpretreatment requirements where it isthe Control Authority. Notification ofEPA will make possible the


development of a national data base ortracking system that would organize theinformation into a useful format for allinterested parties.

Several commenters suggested thatthe information received could besummarized by States and EPA and bemade available to POTWs. Onecommenter suggested that only thePOTWs be notified and that the Stateand EPA could get the information fromthe POTW. However, other commenterssuggested that other parties be notified,such as EPA Headquarters, Statepretreatment program personnel, Statewater quality (NPDES) personnel andRegional as well as State WaterDivision Directors.

Summarization of the Informationreceived by the States and EPA andsubsequent distribution to theappropriate POTW would, in mostcases, be a cumbersome notificationmethod. The Agency believes that therequired information should be madeavailable to the POTW as soon aspossible. Although the suggestion ofnotifying EPA Headquarters,pretreatment personnel, water qualitypersonnel and Water Division Directorsis reasonable, EPA believes that today'srule, in providing for receipt of thenotification by the most importantrepresentatives of local, State andFederal governments, will allow otherpersonnel from these respectivebranches of government to easily obtaincopies of the information. As mentionedabove, the Agency is considering thedevelopment of a data base or trackingsystem that would organize theinformation into a useable format.

Several commenters pointed out thatmuch of the required information wasalready submitted to regulatory agenciesin indirect discharger permitapplications, notices of process changes,through local ordinances, or is alreadyreported under 40 CFR 403.12 and SARAsection 313.

Although some information may besubmitted pursuant to these authorities,EPA emphasizes that none of theseprovisions specifically requiressubmittal of information to POTWs,States, and EPA about all RCRAhazardous wastes discharged to sewers.

Several commenters, while agreeingwith the need for a notificationrequirement, believed that the POTW.should have the flexibility to determinethe appropriate reporting. This wouldeliminate some of the redundancy, sincePOTWs have different programs andordinances and could then choose thatinformation which would best suit theirneeds.

Today's rule requires a minimumamount of information that is to be

reported by all Industrial usersdischarging hazardous wastes to sewers,except for dischargers of less thanfifteen kilograms per month of non-acutehazardous wastes. EPA believes thatthese minimum requirements will bevery useful to POTWs, States and EPA.POTWs have the flexibility to requestadditional information to suit the needsof their specific programs.

Several commenters expressedconcern about the requirement toestimate the volumes of hazardouswaste that would be discharged over a12 month period. Commenters believedthat the estimates would be unreliableand would result in possible liabilities(possibly from failure to reportaccurately). They questioned how toaccount for dramatic variation indischarges over the twelve-monthestimation period and also questionedthe purpose of the requirement. Onecommenter stated that although thiskind of information might be useful,POTWs could not enforce a failure toreport accurately. Another commentersuggested that an estimation over 30days might be more useful.

The. Agency believes that theinformation received through thisrequirement will be useful for POTWplanning purposes. The informationrequested from industrial users is onlyan estimate of what they know or havereason to believe will be dischargedover the next 12 month period, takingany variability into account. Theestimation is not intended to constitutean enforceable limit. Industrial users arereminded that under 40 CFR 403.12(j) oftoday's rule, POTWs must be notified inadvance of any substantial change inthe volume or character of pollutants intheir discharge. POTWs may choose todevelop enforceable local limits basedon the information submitted.

One commenter mentioned that thelast line of 40 CFR 403.12(p](1) allows anexemption from the notificationrequirement for pollutants already listedunder the self-monitoring requirements.The commenter stated that self-monitoring information alone would notbe sufficient to prevent pass through orinterference.

The purpose of this proposedexemption is to avoid duplicativerequirements, since in some instancesinformation required under thehazardous waste notification provisionswill have already been submitted under40 CFR 403.12. The Agency notes thatneither the self-monitoring requirementsnor the hazardous waste notificationrequirements are intended primarily toprevent immediate pass through orinterference. The purpose of the 40 CFR403.12 requirements is to monitor

compliance with categorical standards.The primary purpose of the hazardouswaste notification requirements is togather as much information as is neededto assess the potential effects ofhazardous and toxic waste dischargedto POTWs. It should be noted that theexemption for pollutants reportedunderthe 40 CFR 403.12 self-monitoringrequirements applies even though suchreporting may not necessarily include allelements submitted under today'snotification requirements, such as anestimate of the wastes expected to bedischarged over the next twelve months.Since the 40 CFR 403.12 provisionsrequire the submission of actualsampling results and periodic reportingevery six months, the Agency believesthat such reports are an adequatesubstitute for the section 3018(d)requirements. Although self-monitoringreports under 40 CFR 403.12 aresubmitted only to the Control Authorityand not to.EPA and the States as aretoday's section 3018(d) notifications,EPA believes that the existence of analready established, easily accessibledata base for 40 CFR 403.12 self-monitoring requirements obviates theneed to notify additional parties, as isrequired for one-time notifications ofhazardous waste discharges undersection 3018(d).

One commenter stated thatnotification should extend to allpollutants of concern in addition tohazardous wastes. This commentersupported notification of the dischargeof hazardous constituents listed in 40CFR part 261, appendix VIII. Thecommenter stated that this would keepthe focus of the notification on thechemistry of the discharge rather thanthe legal status of the wastestream, andwould also assure more equitabletreatment of different types ofdischargers. Some commenters alsoindicated that the notificationrequirements should be oriented towardvolumes and types of waste based ontheir chemistry after treatment, ratherthan using the RCRA codes to describethe waste. The rationale was that theRCRA "derived from" and "mixture"rules fail to provide information aboutthe waste after treatment, other than todefine the status'of the waste ashazardous up until the point ofdischarge into a domestic sewagesystem.

The Agency believes that notificationof the discharge of all appendix VIIIconstituents is not routinely necessary.EPA believes it is preferable for thePOTW to require such information on acase-by-case basis when appropriate toprotect against potential pass through or

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interference. The Agency also notes thattoday's rule requires the industrial userto report hazardous constituentsdischarged, if known. If an industrialuser is not aware of the hazardousconstituents contained in its hazardouswaste discharge, EPA believes thatPOTWs, after receipt of notificationsreceived under today's rule, will be inthe best position to instituterequirements for follow-up informationon an as-needed basis based on the dataalready acquired about the industrialuser's hazardous waste. Such additionalinformation may provide more detail onthe chemistry of the discharge, and thusfill in any data gaps that may result fromuse of RCRA waste codes and RCRAdefinitional constructs such as themixture and derived from rules.

Some commenters objected to therequirement that industrial users notifythe POTW of "any discharge into thePOTW" and questioned whether thepresence of a section 3001 RCRA wastein levels below the detection limitswould require notification. Onecommenter opposed requiring thatconstituents be identified in thenotification, stating that it would beburdensome to identify all constituentsand calculate their volumes. Anothercommenter believed that such arequirement would be redundantbecause the constituents are alreadyreported under section 313 of SARA.Some commenters also stated that thepresence of a hazardous waste does notmean that certain constituents arealways present, nor does the presence ofconstituents indicate that a waste ishazardous.

EPA notes that under 40 CFR 261.11,any person generating a solid waste isresponsible for determining whetherthat waste is a listed or characteristichazardous waste. Thus, industrial userswho are generators of hazardous wastesare already required to have knowledgeof such wastes. Today's rule requires allparties discharging hazardous wastes toPOTWs to file a one-time notification.The notification must include adescription of any such wastesdischarged. To clarify this requirementand make description easier, today'srule requires that industrial usersinclude the name of the hazardouswaste and the EPA hazardous wastenumber for each hazardous wastedischarged (these numbers are found in40 CFR part 201, subpart D). Today'srule also requires an identification of theconstituents discharged, along with theirmass and concentration in thewastestream, but only to the extent thatthese constituents and their mass andconcentrations are known and readily

available to the user. The Agency isrequiring notification of mass ratherthan volume (as was proposed) becausemass is a more useful measure of thequantity of chemicals discharged.Where a discharger has knowledge thatsuch constituents are present in itsdischarge, the discharger should identifysuch constituents in its required section3018(d) notification, notwithstandinginability to detect the exact levels ofsuch constituents in its discharge (e.g.,because constituent levels are belowanalytical detection limits).

In response to concerns expressed bycommenters, the Agency has clarified inthe language of today's rule thatidentification of the constituents ofhazardous waste and their mass andconcentration need only be made ifthese are known by the industrial user(unlike the notification of the dischargeof the hazardous waste and itsdescription by name and EPA hazardouswaste number). Monitoring for thepresence of these constituents is notspecifically required. It is not correctthat all of these constituents arereported under SARA section 313, sincethe list of toxic chemicals required to bereported under that provision does notinclude all hazardous constituents underRCRA. The Agency believes that manyindustrial users will already haveinformation about the constituents oftheir waste and that this information isoften useful to POTWs. If theinformation is not available, the POTWmay request additional monitoring on anas-needed basis.

Under the proposed rule, generatorswould have been exempt from thenotification requirements during anycalendar month in which they generateno more than 100 kilograms ofhazardous wastes, except for certainacute hazardous wastes.

Many commenters supported thisexemption. The commenters suggestedthat by retaining the exclusion, EPAwould provide regulatory relief for smallindustries while not jeopardizing theprotection of human health and theenvironment.

A few commenters who supported thesmall quantity generator exemptionsuggested that the exemption bewidened to include generators ofvolumes between 100 to 1000 kilogramsper month. These commenters statedthat section 3001(d) of RCRAspecifically discusses the regulation ofthese generators, and that.duringevaluation of an appropriate regulatoryscheme for such generators. EPA paidspecial attention to minimizingpaperwork burdens. Commenters statedthat by proposing to impose notification

requirements on these generators, EPAwas ignoring its previous position onminimizing the burdens associated withrecordkeeping and reporting.

In response, EPA notes that noPOTWs suggested widening the 100kilogram per month exemption to 1000kilograms per month. In fact, severalPOTWs were concerned that the 100kilogram per month exemption wasunjustified and believed that such anexemption could jeopardize humanhealth and the environment, since adischarge of 100 kilograms of certainsubstances would be very likely tocause pass through or interference.

The majority of the commenters whoopposed the small quantity generatorexemption were POTWs and Stategovernments. They believed thatdischarges of less than 100 kilogramsper month could at times have a seriousimpact on collection systems, POTWsand worker health or safety, and thatPOTWs would be interested inascertaining all quantities of hazardouswastes discharged to sewers.

Some commenters who opposed thesmall quantity generator exemptionstated that the Agency's proposal toexempt such generators fromnotification was not supported by theevidence cited in the preamble. Thesecommenters also pointed out that EPAacknowledged that a 100 kilogramdischarge of some RCRA hazardouswastes could be problematic for aPOTW (particularly small and/orunacclimated ones). Another commenterpointed out that any exemption shouldbe tied to the discharge, rather than thegeneration, of a hazardous waste.

After evaluation of these comments,EPA believes that a complete exemptionfrom the notification requirements formany dischargers of less than 100kilograms per month would not beqnvironmentally justified. The Agencyalso agrees that any exemptions shouldbe tied to the discharge rather than thegeneration of hazardous wastes, sinceonly wastes actually discharged willusually be of concern to the POTW.

The Agency believes that a dischargeof less than 100 kilograms of certaintypes of hazardous wastes may causeproblems for POTWs (particularly smalland unacclimated ones) if discharged atonce or over a short period of time (e.g..spent electroplating baths, certain spentsolvents such as benzene, or discardedunused formulations containing tri-,tetra-. or pentaclorophenol). Althoughone or two dischargers of approxilmatel)one hundred kilograms per month mayhave little potential for adverse impacton a POTW (depending on the wastesdischarged) many POTWs have a

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significant number of such generatorsdischarging hazardous waste to thesewer system, which cumulatively posea potential for causing pass through orinterference. EPA believes that somedegree of notification from thesedischargers is the only way for POTWsto be aware of which hazardous wastesare entering their collection andtreatment systems. On the other hand,the Agency believes that mostdischargers of considerably smalleramounts of hazardous wastes will not.as a general rule, present the potentialfor adverse impact at the POTW.

As a general rule, the Agency believesthat dischargers of less than fifteenkilograms per month (the equivalent ofabout one pound per day) of hazardouswaste to POTWs present little danger ofadverse impact to such POTWs. For thisreason, today's rule provides anexemption for such dischargers, unlessthe hazardous wastes are acutehazardous wastes as specified in 40 CFR261.30(d) and 261.33(e). Today's rule alsoprovides that all non-exemptdischargers of hazardous wastes mustsubmit the name of the hazardous wastedischarged, the EPA hazardous wastenumber, and the type of discharge(whether batch or continuous). TheAgency believes that this is the essentialinformation which Is needed to enablePOTWs to be aware of which hazardouswastes are entering their systems and toenable them to decide whether torequest further data from a particulardischarger. Today's rule also requiresthose industrial users discharging morethan 100 kilograms per month of ahazardous waste to a POTW to submitadditional information, to the extentsuch information is known and readilyavailable to the user. The additionalinformation consists of an identificationof the hazardous constituents containedin the listed wastes, an estimation of themass and concentration of suchconstituents in the wastestreamdischarged during that month, and anestimation of the mass of suchconstituents in the wastestreamexpected to be discharged during thefollowing twelve months. POTWs maydecide to require more detailedinformation from any discharger on acase-by-case basis in the exercise ofauthorities granted under local law.POTWs may also decide, in the exerciseof local authorities, not tiprovide any ofthe above exemptions or reducedreporting requirements if they do notdeem them appropriate for theirparticular systems.

Two commenters stated that becauseof the application of the "mixture rule"in 40 CFR 261.3(a)(2)(iii), facilities

discharging wastewater containing anyamount of hazardous waste would besubject to the proposed notificationrequirements, regardless of the proposedexemption for small quantity generators.

The regulation cited by thecommenters provides that wastemixtures that include a hazardous wastethat is classified as hazardous solely byvirtue of exhibiting a hazardouscharacteristic identified in 40 CFR261.20-261.24 are hazardous only if themixtures themselves exhibit ahazardous characteristic, A companionrule, 40 CFR 261.3(a)(2)(lv), provides thatmixtures that include a hazardous wastelisted in 40 CFR 261.30-281.33 (otherthan one which is hazardous solelybecause it exhibits a characteristicidentified in 40 CFR 261.20-261.24) arehazardous unless the resultant mixtureis "delisted" pursuant to 40 CFR 260.20,260.22. or one of the exceptions in 40CFR 261.3(a)(2)(iv)(A)--(E) applies. Theresult of these rules is that mixtures ofsmall quantities of certain hazardouswastes with large quantities of processor other solid wastes render the entiremixture a hazardous waste. These rulesapply to industrial users covered bytoday's rule; accordingly, for purposes ofascertaining whether an industrial userdischarges between 0 and 15 kilogramsper month, 15 to 100 kilograms permonth or over 100 kilograms per monthof hazardous waste, the industrial usermust apply the RCA mixture rules tocalculate the volume of hazardous wastebeing introduced to the sewer.

Two commenters stated that theAgency should limit the notificationrequirement to significant industrialusers as defined in proposed 40 CFR403.3(u) who have never before notifiedEPA of their hazardous waste activities.This commenter stated that less thanone percent of all hazardous wastesgenerated is associated with non-significant industrial users.

The Agency believes that limiting thenotification requirement to significantindustrial users would not be adequateto fulfill the statutory requirement ofsection 3018(d), since the definition ofsignificant industrial user does notnecessarily include the dischargers ofhazardous wastes covered under RCRAsection 3010. In addition, EPA believesthat notification by all hazardous wastedischargers will assist POTWs inascertaining whether the cumulativeeffect of many small discharges ofhazardous waste may cause passthrough or interference. Priornotification to EPA of hazardous wasteactivities under RCRA does notconstitute compliance with today's rule,since the notification would not

necessarily include all the items ofinformation specified in this rule.

Some commenters suggested that EPAprovide an exemption for the dischargesdescribed in 40 CFR 261.3(a)(2)(A)-(E)and an exemption from notificationrequirements for acute hazardouswastes. They recommended that theexclusion should specify a level for eachcharacteristic waste as well as for totallisted wastes.

The Agency notes that 40 CFR261.3(a)(2)(iv) (A)-E) describes certainwastes that are not classified ashazardous waste. Discharge of suchmaterials to a POTW would not.therefore, trigger today's notificationrequirements. In addition, the Agencybelieves that such discharges presentlittle potential danger of pass-through orinterference at POTWs. However,POTWs may require notification ofthese discharges on a case-by-case basispursuant to local authorities.

Today's rule does not grant anexemption for acute hazardous wastes.Such wastes have been~identified underthe RCRA program as meriting controlsmore stringent than for other types ofhazardous waste (e.g., there is a lessextensive small quantity generatorexemption), and EPA believes thatinformation on the discharge of anyquantities of such wastes to a POTW isimportant for POTW planning to preventpass through or interference.

Some commenters questioned therequirement that industrial usersprovide notification to the POTW of anysubstantial change in the volume orcharacter of hazardous wastesdischarged. Notification of substantialchanges in pollutants discharged isalready required pursuant to 40 CFR403.12(j), and will be modified bytoday's rule to specifically provide fornotification with regard to substantialchanges in hazardous waste discharges.These commenters requestedclarification about the definition of"substantial change in the volume orcharacter of pollutants" as well as themeans of notification. Anothercommenter felt that the language shouldbe deleted because it implied continuousmonitoring.

The possibility of providing aregulatory definition for "substantialchange" in the volume or character ofpollutants in an industrial userdischarge was specifically addressed inthe preamble to the final PIRT rule (53FR 40562), which was promulgated onOctober 17,1988. The preamblediscussion of 40 CFR 403.12(j) statedthat EPA has determined that aregulatory definition of "substantialchange" in the volume or character of

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pollutants discharged is inadvisablebecause what is substantial in a givensituation will depend on severalvariables (53 FR 40599). The Agencystated that substantial change should bedetermined by the comparable noticerequirements for direct dischargersunder the NPDES regulations andsupplemental, or more stringent, noticerequirements adopted by the POTW orrequired by the permitting authority inthe POTW's NPDES permit. Withrespect to substantial changes in thevolume or character of pollutantsdischarged, the Agency stated that these

.should include a substantial change inany characteristic of the industrialuser's wastewater discharge, Includingvolume, flow, the amount orconcentration of pollutants, and thedischarge of new pollutants notpreviously reported to the POTW. Onlychanges which the industrial userexpects to occur on a regular basis overan extended period of time (threemonths or more) need to be reported.Sporadic or episodic changes in thevolume or character of a discharge arenot ordinarily covered by the changeddischarge notification. However,depending on the circumstances, theindustrial user may have to report thesedischarges in accordance with otherpretreatment requirements, e.g., the -"slug load" notification requirements (40CFR 403.12(f)), the upset provision (40CFR 403.16), or bypass provision (40CFR 403.17)). In most cases, asubstantial change in the volume orcharacter of a user's discharge willresult from a deliberate or plannedchange to the user's facility oroperations. "Substantial" should bebased on the magnitude of change to theindustrial user's existing discharge andnot on the anticipated effect of thechanged discharge on the POTW.Therelore, a regulation specifyingabsolute numbers, such as an increaseor decrease of X gallons of flowdischarged, would not be appropriate.Although the approach taken today mayresult in notifications about changeddischarges which will not have ademonstrable effect on the POTW'sinfluent, effluent or sludge quality, EPAhas determined that any incidental"over notification" is justified by theneed of the POTW (and NPDESpermitting authority) to haveinformation on a timely basis todetermine whether, considering otherchanges to the POTW's system orpollutant control requirements, newlimits on pollutant discharges arenecessary, or should be furtherevaluated to prevent pass through orinterference (see 53 FR 40000).

One commenter inquired about themechanism that would be used toensure that all industrial users were.made aware of the one-time notificationrequirement. Another commentersuggested that the regulations shouldrequire POTWs to develop proceduresfor notification of changes in a user'sdischarge.

The principal mechanism used toensure that industrial users are madeaware of the notification requirement isthrough the publication of this notice inthe Federal Register. In addition,POTWs may wish to send notices totheir industrial users on the proceduresthat they wish them to follow. Withrespect to requiring POTWs to developprocedures for notification of dischargechanges, EPA prefers to leave thisquestion to the discretion of the specificPOTW.

Some commenters stated that thecertification requirements seemedinappropriate for wastewater effluents.EPA disagrees with these commenters.The Agency believes that a certificationrequirement is appropriate for industrialusers because waste minimization willimprove the quality of the effluent whichenters the POTW and, eventually, thedischarge that enters navigable watersthrough the POTW. The certificationrequirement will also further EPA'sstated goal of pollution prevention byhelping to reduce loadings of hazardouswastes to sewers.. However, the Agency has modified

the language of the certificationrequirement somewhat from theNovember 23, 1988 proposal In order tomake the requirement more appropriateto discharges of hazardous wastes toPOTWs. Today's language clarifies thatthe requirements apply only tohazardous wastes for which notificationwas submitted under 40 CFR 403.12 (p).In addition, the language now requiresthe industrial user to certify that it has aprogram in place to reduce the volumeand toxicity of wastes generated to thedegree it has determined to beeconomically practical. The Agency hassubstituted the phrase "economicallypractical" for "economicallypracticable" because it believes theformer phrase more accurately conveysthat generators should choose thosemeans of reducing the volume andtoxicity of their wastes that are feasibleand cost-effective.

EPA has also deleted the proposedlanguage requiring notifiers to certifythat they have selected the treatment,storage, and/or disposal methodscurrently available to the user whichminimize the present and future threatto human health and the environment.

By recommending retention of theDomestic Sewage Exclusion, the Agencyhas made a determination that disposalof hazardous wastes to sewers incompliance with pretreatmentrequirements is an environmentallyacceptable disposal method. In addition,many industrial users discharginghazardous waste to sewers also treat,store, or dispose of hazardous waste byother means and are already subject tothe waste minimization certificationrequirements of 40 CFR 264.73. Thisdeletion will therefore eliminateduplicative paperwork requirements forthose facilities while still protectingPOTWs and fulfilling-Congressionalintent to encourage the selection ofoptimal waste management techniquesto reduce or eliminate the generation ofhazardous waste.

One commenter suggested that thewaste minimization certificationrequirement should allow POTWs orindustries to focus on alternative controlmechanisms such as source control andbest management practices.

In response, the Agency notes that therequirement that industrial users certifythat a program is in place to reduce thevolume and toxicity of wastes to thedegree that the user has determined tobe economically practical allowscomplete flexibility to the industrialuser, including the use of source controlsand best management practices tominimize the generation of hazardouswastes.

One commenter suggested that theregulations include a requirement thatall industrial users be placed on a 5-yearschedule to eliminate hazardous wastesdischarged under the Domestic SewageExclusion. However, the Study.demonstrated that in general, POTWsare capable of accepting a certainamount of hazardous waste withoutthreatening the POTW, human health orthe environment. The Agency thereforebelieves that with proper controls, suchas those in today's rule, elimination ofall hazardous waste discharges fromindustrial users is unnecessary at thepresent time.

With respect to the use ofsupplemented EPA Form R or RCRAForms to fulfill the proposed notificationrequirement, the majority of thecommenters who addressed this issuesupported the use of such forms. Thecommenters believed that the use ofthese forms would lessen duplicativeand burdensome paperworkrequirements. Other commentersopposed the use of these forms, statingthat the use of such forms would lead toextraneous or misleading informationthat would create an administrative


burden for POTWs. They stated thatForm R might simplify the reportingrequirement for some industrial users,but would not simplify POTWs' task ofevaluating the form and sorting outunnecessary information.

In response to these comments, theAgency is clarifying today that EPAForm R and existing RCRA forms maybe used to fulfill the notificationrequirement as long as the industrialuser submits all information required intoday's rule. However, POTWs mayrequire industrial users to use otherforms if they wish. Industrial users mayalso submit the required information byother means, such as a letter.

Two commenters stated that theinformation on Form R would be basedon pure estimates on the part of thedischarger. In response, EPA points outthat today's notification requirementalso requires estimates for the mass andconcentration of hazardous wasteconstituents, as well as the mass ofconstituents discharged over thefollowing twelve months. Theseestimates should be based on the bestavailable data.

Commenters stated that Form R wouldnot cover a sufficient range of pollutantsand that the list of SARA compoundswas very different from the list ofhazardous wastes under section 3001 ofRCRA. In the case of substances whichare listed or characteristic wastes undersection 3001 of RCRA which do notappear on Form R, the industrial usermust submit the required information onthose wastes to EPA, the States, and thePOTW. In addition, although section 313of SARA only requires notification forindustrial users with more than tenemployees, today's rule does not includeany exemptions based on the number ofemployees at the facility.

A commenter suggested that thereporting requirements under 40 CFR403.12 be used to fulfill the notificationrequirement In response, the Agencynotes that pollutants reported under 40CFR 403.12 (b), (d), or (e) need not bereported under today's notificationrequirement. However, the reportingrequirements under the above-mentioned provisions of 40 CFR 403.12apply to pollutants regulated underapplicable categorical pretreatmentstandards. Thus the reportingrequirements under 40 CFR 403.12 maynot necessarily address hazardouswastes and would fulfill today'srequirements only if such wastes hadbeen reported under 40 CFR 403.12 (b),(d), or (e).

To clarify that today's rule applies tonew industrial users or to existingindustrial users which will dischargehazardous waste only in the future, EPA

has added a provision requiringindustrial users who commencedischarging after the effective date oftoday's rule to provide the notificationno later than 180 days after thedischarge of the hazardous waste.

c. Today's Rule

Today's rule provides that theindustrial user shall notify the POTW,the EPA Regional Waste ManagementDivision Director, and State hazardouswaste authorities in writing of anydischarge into the POTW of asubstance, which, if otherwise disposedof, would be a hazardous waste under40 CFR part 261. Such notification mustinclude the name of the hazardouswaste as set forth in 40 CFR part 261, theEPA hazardous waste number, and thetype of discharge (continuous, batch, orother). If the industrial user dischargesmore than 100 kilograms of such wasteper calendar month to the POTW, thenotification shall also contain thefollowing information to the extent suchinformation is known and readilyavailable to the industrial user anidentification of the hazardousconstituents contained in the wastes, anestimation of the mass andconcentration of such constituents in thewastestream discharged during thatcalendar month, and an estimation ofthe mass of constituents in thewastestream expected to be dischargedduring the following twelve months. Allnotifications must take place within 180days of the effective date of this rule.Industrial users who commencedischarging after the effective date ofthis rule shall provide the notification nolater than 180 days after the discharge ofthe-hazardous waste. Any notificationunder this paragraph need be submittedonly once for each hazardous wastedischarged. However, notifications ofchanged discharges must be submittedunder 40 CFR 403.120). The notificationrequirement in this section does notapply to pollutants already reportedunder the self-monitoring requirementsof 40 CFR 403.12 (b), (d), and (e).

Industrial users are exempt from theabove requirements during a calendarmonth in which they discharge no morethan fifteen kilograms of hazardouswastes, unless the wastes are acutehazardous wastes as specified in 40 CFR261.30[d) and 261.33(e). Discharge ofmore than fifteen kilograms of non-acutehazardous wastes in a calendar month.or of any quantity of acute hazardouswastes as specified in 40 CFR 261.30(d)and 261.331e), requires a one-timenotification. Subsequent months duringwhich the industrial user dischargesadditional quantities of such hazardous

waste do not require additionalnotification.

In the case of new regulations undersection 3001 of RCRA identifyingadditional characteristics of hazardouswaste or listing any additionalsubstance as a hazardous waste, theindustrial user must notify the POTW,the EPA Regional Waste ManagementDivision Director, and State hazardouswaste authorities of the discharge ofsuch substance within 90 days of theeffective date of such regulations.

In the case of any notification madeunder today's rule, the industrial usershall certify that it has a program inplace to reduce the volume or toxicity ofhazardous wastes generated to thedegree it has determined to beeconomically practical.

E. Individual Control Mechanisms forIndustrial Users (40 CFR 403.8(fl[1)(Iii))

a. Proposed Change

The existing pretreatment regulationsrequire POTWs with approvedpretreatment programs to have the legalauthority to controL through permit.order, or similar means, the contributionto the POTW by each industrial user toensure compliance with pretreatmentstandards and requirements. EPA'sexperience in developing and overseeingthe pretreatment program has led it tobelieve that individual controlmechanisms are the best way to ensurecompliance with applicablepretreatment standards andrequirements. Such a system gives theindustrial user individual notice of a ofthe pretreatment requirements to whichit is subject. thus making it easier forsuch users to understand theirobligations before a violation occursand ensuring more effective preventionof pass through and interference.

For these reasons, the Agencyproposed on November 23, 1988 torevise 40 CFR 403.8ff) to require thatPOTWs with approved pretreatmentprograms issue discharge permits orequivalent individual controlmechanisms to industrial usersidentified as significant under proposed40 CFR 403.3(u). Under the proposal,such control mechanisms would contain,at a minimum, the following elements:

(1) Statement of duration (in no casemore than five years);

(2) Statement of non-transferabilitywithout prior POTW approval;

(3) Applicable effluent limits based oncategorical pretreatment standards andlocal limits;

(4) Applicable monitoring, sampling,and reporting requirements;

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30106 Federal Register / Vol. 55, No. 142 / Tuesday, July 24, 1990./ Rules and Regulations

(5) Notification requirements for slugdischarges as defined in 40 CFR 403.5(b);and

(6) Statement of applicable civil andcriminal penalties for violation ofpretreatment standards andrequirements.

The Agency solicited comment on themerits of the proposed revision.Specifically, the Agency requestedcomment on: (1) The appropriateness oflimiting the requirement to industrialusers defined as significant underproposed 40 CFR 403.3(u), or theappropriateness of additional oralternative targets, such as categoricalusers or notifiers of hazardous wastedischarges under proposed 40 CFR403.12(p); (2) whether the requirementshould apply only to POTWs with morethan a specified number of industrialusers (and, if so, what number would beappropriate as a cut-off point); and (3)whether the list of conditions proposedshould be reduced, expanded, ormodified.


The Agency received many commentson this issue. Commenters IncludedStates, POTWs, trade associations,industries and environmental groups. Ofthese, most supported the proposal Insome form and many supported it asproposed.

Several commenters suggested thatsome instruments other than permits,such as contracts or administrativeorders, might serve as equivalent controlmechanisms. Most of those opposing therequirement stated that the POTWshould have the flexibility to choosewhether or not to implement a system ofindividual control mechanisms. Onecommenter stated that the requirement.was redundant, because every POTWwith an approved program is alreadyrequired to notify users of pretreatmentrequirements and to have the authorityto prohibit harmful pollutants fromentering the POTW.

POTWs are required under theexisting pretreatment regulations tohave and exercise the authority tocontrol through permit, order, or similarmeans, the contribution of individualindustrial users to the POTW (40 CFR403.8(f)(iii)). It is also true that. under theexisting regulations, POTWs arerequired to notify users of applicablepretreatment standards andrequirements and to ensure compliancewith such standards and requirements.The Agency does not believe, however,that POTWs have consistently exercisedtheir discretion under the existingregulations to develop adequateindustrial user control mechanisms.Audits conducted of local pretreatment

programs have led the Agency toconclude that many existing controlmechanisms are inadequate to ensurecompliance with pretreatmentrequirements and that industrial usersshould often be provided with betternotice of pretreatment requirements.The Agency continues to believe thatindividual control mechanisms are thebest way to accomplish these objectives.For this reason, EPA proposed to requirePOTWs to issue permits or otherindividual control mechanisms tosignificant Industrial users.

Today's rule will provide substantialbenefits to the POTW, to the Industrialuser, and to the pretreatment program asa whole. For instance, a user subject toboth categorical standards and locallimits would receive individual notice ofwhich limits are applicable (i.e., themost stringent of the two) for eachregulated pollutant in its discharge.Similarly, a user with equivalent mass-or concentration-based limits oralternative limits derived by thecombined wastestream formula wouldbe informed of such limits in its permitor other individual control mechanism.Users would also be individuallynotified of sampling and reportingrequirements, including anyrequirements more stringent than theapplicable Federal minimumrequirements. An individual controlmechanism also benefits the user byproviding notice of applicablerequirements before a violation occurs,rather than afterwards. In addition,individual control mechanisms provide amechanism for the POTW to imposeindividualized pretreatmentrequirements (e.g., for sampling andreporting) on an industrial user. Finally,as some commenters pointed out, thisrequirement would bring greaterconsistency to administration andimplementation of the nationalpretreatment program across thecountry. Some commenters also felt thatuniform Federal requirements werenecessary to ensure fairness in theadministration of the program.

Several commenters stated thatmandatory individual controlmechanisms would be costly forPOTWs. One commenter said that therule would require POTWs to "scrap"existing and approved pretreatmentprograms. Some POTWs stated that theywere unnecessary because they alreadyhad effective ordinances.

Although the Agency is sensitive toconcerns regarding costs, EPA notes thatmany POTWs already issue permits orother individual control mechanisms tosome or all of their users and willprobably need little or no modificationto their existing program to meet these

requirements. POTWs which heretoforehave relied entirely on ordinances toensure compliance will require greatermodification of their programs to complywith today's rule. However, EPAbelieves that the long-term benefits ofthis approach will justify the costs, evenfor POTWs that now rely on ordinancesas their only control mechanism.

POTWs will be able to reduce theircosts by utilizing existing data and byIncorporating some existingrequirements into the new system.Substantive requirements of thePOTW's program (such as prohibiteddischarges, monitoring and reportingrequirements, and penalty provisions)should be self-implementing under thePOTW's ordinance. Many of theserequirements could simply be writteninto the individual control mechanism,while others could be adjusted withslight modifications to reflect theparticular circumstances of the user.Where the POTW already possesses allnecessary data from its users to enableit to identify the character and volumeof pollutants contributed by each user tothe POTW, there would be no need tocollect that information again. Insupport of its view, EPA points out thatone POTW commented that it wasinitially reluctant when required toimplement a permit system by its StateApproval Authority. However, it foundthat implementation was fairly simplewhen standardized forms weredeveloped, and Its users preferred tohave all of their requirements listed inone document.

One POTW commented that its Statelaw prohibits municipalities with apopulation of greater than 500,000 fromusing permits to control individualdischarges to the POTW. Thecommenter did not indicate whether allindividual control mechanisms weresimilarly prohibited. If not, under therule as promulgated, the commenter mayuse some other equivalent individualcontrol mechanism. Alternatively, thecommenter would have to seek arevision in its State law. In anothercontext, a commenter requested that theAgency clarify the meaning of"equivalent control mechanisms" whichcould be used in place of permits.Another commenter stated that, ifapproaches other than permits havebeen approved and found effective, theyshould be allowed to continue and thatEPA should not limit the definition ofindividual control mechanisms topermits only.

In this regard, the Agency would liketo clarify both what it considers to be anacceptable "permit" under today's rule,and what may constitute "equivalent


control mechanisms". Where possible,analogies or distinctions are drawn-between pretreatment permits andNPDES permits because most POTWsare very familiar (as NPDES permittees)with the NPDES prograin. First, unlikefederal requirements applicable to directdischargers, industrial users are notrequired under today's rule to obtain apermit prior to discharging to a POTW.(However, POTWs may establish such arequirement pursuant to their own legalauthorities). Second, industrial usersmust comply with all applicablepretreatment requirements under federallaw, whether or not they are containedin the permit or equivalent individualcontrol mechanism. As a corollary,compliance by the industrial user withthe terms of the permit does not shield itfrom liability for failure to comply withfederal pretreatment requirements notset forth in the permit. However, EPAexpects that the POTW will doeverything possible to ensure that thelimits and other requirements in thepermit are as accurate and complete aspossible, and will notify the user of anychanges in applicable pretreatmentrequirements which become effectivesubsequent to the issuance of the permit.

As stated in the preamble to theproposed rule, the Agency will requireissuance of "individual dischargepermits or equivalent controlmechanisms." An adequate equivalentcontrol mechanism is one which ensuresthe same degree of specificity andcontrolas a permit. To clarify that theconditions of the individual controlmechanism must be enforceable againstthe significant industrial user throughtheusual remedies for noncompliance(set forth in 40 CFR 403.8(f)(1)(vi)(A)),EPA has amended the language of 40CFR 403,8(f)(1)(vi)(B) to provide thatpretreatment requirements enforcedthrough the remedies of 40 CFR403.8(f)(1)(vi)(A) shall include therequirements set forth in individualcontrol mechanisms. In addition, theAgency has added to proposed 40 CFR403.8(f)(1)(iii) a statement that individualcontrol mechanisms must beenforceable.

EPA notes that the most effectivecontrol mechanisms should also be"strictly enforceable" under local law.Generally, for an individual controlmechanism to be strictly enforceable,the local ordinance must specify that theterms and conditions of the controlmechanism can be challenged(administratively and/or in court) onlywithin a very limited time period afterthe control mechanism becomeseffective. If the control mechanism is notchallenged within the alloted time

period, it cannot later be challenged inan enforcement proceeding (forguidance on this and other issuesconcerning individual controlmechanisms, see EPA's Industrial UserPermitting Guidance Manual,(September 1989)).

Commenters suggested severalalternatives to the use of permits asindividual control mechanisms. Theseincluded ordinances, administrativeorders, and contracts. Although onlytwo commenters discussed the use of anordinance as a control mechanism, somePOTWs rely on ordinances as theirprincipal control mechanism. Anordinance may offer fairness andconsistency in its application, but itdoes not provide specificity andindividual notice to significant industrialusers. One POTW stated that itsordinance, together with notice by mailto individual users, was sufficient. Inresponse, the Agency emphasizes that,although a letter provides notice to theindividual user of applicable limits andother requirements, an ordinance systemcontains the same limits for allindustrial users and does not provide forPOTW evaluation of significantindustrial users to determine whetherindividual requirements are necessaryfor that user. Accordingly, an ordinancewill not be considered an equivalentcontrol mechanism under today's rule.

Two commenters discussed the use ofadministrative orders as an alternativecontrol mechanism. One commenterstated that administrative orders are aneffective method of imposingpretreatment and reporting requirementson industrial users and are lesspaperwork-intensive than permits. OnePOTW commented that it modified itsadministrative orders to attempt tocomply with EPA's oversight requests,but did not succeed in meeting allrequirements. This commenter alsostated that it is necessary for theAgency to clearly specify therequirements for individual controlmechanisms.

The Agency agrees that detailedadministrative orders may be anequivalent individual controlmechanism. In order to completelysatisfy today's requirement with anadministrative order system, the POTWmust issue administrative orders to itssignificant industrial users whether ornot they are complying with allapplicable pretreatment standards andrequirements. In addition, such ordersmust contain all of the minimumelements of an individual controlmechanism specified in today's rule. Theuse of administrative orders thereforemay not be necessarily-less paperwork-

Intensive than other individual controlmechanisms. Finally, administrativeorders that are typically issued only inthe context of an enforcement actionmay not meet one or more of the criteriafor an adequate control mechanismdescribed above and thus would notsatisfy today's requirements. POTWsmay, of course, use a mix of appropriateadministrative orders, permits, andother equivalent individual controlmechanisms to satisfy today's rule.

Several commenters mentioned theuse of contracts as a control mechanism.One stated that the successful use ofcontracts precluded the need forpermits, and two others equated the useof contracts with the use of permits..Two commenters stated that the permitshould be signed by the permittee and"act [as a] legal contract between thePOTW and the permittee."

The use of contracts as a controlmechanism was addressed in a previousrulemaking (53 FR 40562, October 17,1988). In that rulemaking, EPA statedthat contracts do not provide a POTWwith the requisite penalty authority foran approved program and are not anadequate control mechanism for POTWswith an approved pretreatment program.As a result, all references to the use of-contracts as a control mechanism weredeleted from the general pretreatmentregulations (for'a discussion of thisissue, see the above-mentioned FederalRegister notice at 53 FR 40574 et seq.). A"permit" signed by the permittee (i.e.,the industrial user) may be deemed acontract and thus lose its effectivenessas a control mechanism. POTWs thatcurrently use contracts as controlmechanisms may incorporate most ofthe terms of such contracts into theirnewly issued non-contractual individualcontrol mechanisms if such terms arecurrent, reflect applicable pretreatmentstandards and requirements, andotherwise meet the requirements oftoday's rule.

Several commenters appeared to beconfused about the meaning of thestatement in the preamble to theproposed rulemaking that the Agencywas proposing to require POTWs withapproved programs to have "the legalauthority to'issue individual dischargepermits or equivalent controlmechanisms." Several POTWscommented that they supported theproposal, as some of them already hadthe authority to issue permits. One Statecommented that the proposal was notadequate unless the POTW is alsorequired to actually issue the controlmechanism. One POTW supported arequirement that POTWs have permitauthority, but not a requirement to issue

30107


permits. Finally, one trade associationcommented that the Agency shouldremove the word "permits" from therequirement if permit issuance was notintended to be a mandatoryrequirement.

EPA intended that the proposed rulebe interpreted consistently with theAgency's interpretation of otherrequirements of 40 CFR 403.8(f)(1), i.e.,the requirement that the POTW have theauthority to undertake various activitiesmeans that the POTW must, in fact,engage in those activities. EPA isrevising the language of 40 CFR 403.8(fnto clarify that POTW pretreatmentprograms must be Implemented toexercise the authorities in 40 CFR403.8((1).

In the proposed rulemaking, theAgency also requested comments on (1)the appropriateness of limiting therequirement to Industrial users definedas significant under proposed 40 CFR403.3(u), or the appropriateness ofadditional or alternative targets, such ascategorical users or notifiers ofhazardous waste discharges underproposed 40 CFR 403.12(p); (2) whetherthe requirement should apply only toPOTWs with more than a specifiednumber of industrial users (and, if so,what number would be appropriate as acut-off point); and (3) whether the list ofproposed conditions should becontracted, expanded, or modified. TheAgency received a number of commentsin response to these questions.

Roughly half of the commenters on theproposal responded to the question ofwhich industrial users should berequired to have individual controlmechanisms. Several commenters statedthat the POTW should have theflexibility to decide which users shouldbe covered. However, most commenterswho supported the proposal agreed thatEPA should specify certain classes ofindustrial users for which POTWswould be required to issue individualcontrol mechanisms. Most of thesesupported the proposal to require theuse of individual control mechanisms forsignificant industrial users. With respectto dischargers other than significantusers, including dischargers ofhazardous wastes, most commentersstated that the use of controlmechanisms for such users should be atthe discretion of the Control Authority.However, other commenters suggestedthat the Agency-extend the requirementto include dischargers of hazardouswastes or to include all industrial users.Finally, a few commenters wanted therequirement limited to categorical users.

None of these comments provided acompelling reason for the Agency tochange the proposed requirement that

permits or equivalent individual controlmechanisms be issued to all significantindustrial users. The Agency agrees withthose commenters who supportedlimiting the requirement to significantusers, including categorical users. TheAgency also agrees with thosecommenters who believed that thedefinition of significant industrial user issufficiently Inclusive and flexible toensure that the necessary users areregulated by individual controlmechanisms. The definition ofsignificant industrial user, aspromulgated in today's rulemaking,includes all categorical dischargers andall noncategorical dischargers meetingcertain criteria, except to the extent thatthe Control Authority, with the approvalof the Approval Authority, modifies thelist of significant Industrial users Inaccordance with criteria specified in 40CFR 403.3(t)(1)(ii).

EPA believes that issuing individualcontrol mechanisms to non-significantusers should be at the discretion of thePOTW because this class of users doesnot typically have sufficient potential tocause pass through or interference towarrant a requirement for individualcontrol mechanisms. For this reason,today's rule does not require thatPOTWs issue individual controlmechanisms to all industrial users. APOTIWV may, however, require non-significant users to have permits orother individual control mechanisms.One POTW commented that thereshould be two classes of industrial userpermits. In response, EPA points out thatPOTWs are free to implement thisapproach if they wish, although theAgency does not believe that a two-class approach would be appropriate forall POTWs in a national rule.

EPA disagrees with those commenterswho stated that the requirement forindividual control mechanisms shouldbe limited to categorical users. Such arequirement would fail to include manyusers whose discharges significantlyaffect POTWs. One commenter statedthat the Agency should not requirepermits for small dischargers, butsupported requiring permits forcategoricals. However, the Agencybelieves that even small dischargersshould be required to obtain individualcontrol mechanisms if they qualify assignificant industrial users because theymay have a significant effect on aPOTW. On the other hand, if a non-categorical user is not classified as asignificant industrial user, it would notbe required to obtain an individualcontrol mechanism under today's rule.

A few commenters addressed thequestion of whether the requirementshould apply only to POTWs with more

than a specified number of industrialusers. Several commenters stated thatthe requirement should apply to allPOTWa with approved programs.

One stated that even a small POTWmay need to issue individual controlmechanisms to significant dischargers.Another commenter stated that smallPOTWe (less than 5 million gallons perday) with a small number of significantusers (less than ten) should not berequired to issue such controlmechanisms to their significant users.However, one large POTW commentedthat this requirement should only applyto smaller POTWs (under 20 mgd).

In response to the commenter whowanted to limit the applicability of therequirement to smaller POTWa, theAgency believes that the larger thePOTW (and the greater the number ofindustrial users), the greater the benefitto be derived from individual controlmechanisms. On the other hand, theAgency does not believe that POTWswith a small number of significant usersshould be categorically exempted fromthis requirement. Even a small numberof significant users may have asubstantial impact on a POTW,particularly where their dischargesrepresent a large percentage of the flow.In addition, industrial users will benefitfrom individualized notification of thelimits and monitoring requirements thatapply to them, regardless of the size ofthe POTW.

Several commenters addressed theminimum elements to be included in anindividual control mechanism. A POTWopposed to the proposal commented thatthere should be no minimum elements ifpermits were to be required because thePOTW is in the best position todetermine the necessary contents of apermit, and none of the elements wouldbe appropriate under all circumstances.Another commenter recommended thatthe Agency allow incorporation byreference as an alternative to listingconditions in the permit or alternativeindividual control mechanism. Mostcommenters, however, appeared to besatisfied with the list of conditions inthe proposal. One POTW commentedthat the requirements concerning non-transferability, slug load notification,and penalties be dropped from the list,because these are already set forth in itslocal requirements.

The Agency believes that there shouldbe minimum requirements for individualcontrol mechanisms. Otherwise, therequirement that POTWs issue suchmechanisms would be ineffective. TheAgency believes that incorporation byreference is generally not appropriatebecause of the importance of effective

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notice to the significant industrial userof all pretreatment requirementscontained In the individual controlmechanism.

Several commenters stated that thelist of minimum requirements forindividual control mechanisms shouldbe expanded. Two commenters said thatthe list should include (any required)compliance schedules. One commentersuggested that the list should include astatement of severability. One POTWdescribed its own additionalrequirements, which included: Aregularly updated spill preventionprogram; a water and wasteloadbalance calculation: a wastewatercharacterization data base; a schematicflow diagram; a building layout diagram.including all drains to the collectionsystem; and a description of thepretreatment systen

The requirements listed in theproposed rule were intended to beminimum requirements. This leaves thePOTW much flexibility in adding otherelements. Elements such as water andwasteload calculations, flow diagrams,building layouts, etc., are more suitablefor inclusion on a case-by-case basisrather than through a national rule.POTWs may also include a statement ofseverability, but the Agency is notrequiring such a statement because evenif a control mechanism is found to beinvalid under local law because of asingle provision, the user is nonethelessrequired to comply with all applicablepretreatment standards andrequirements.

The Agency has issued detailedguidance on the development ofindustrial user permits (see the EPAIndustrial User Permitting GuidanceManual, September 1989). Theinformation in this manual should be ofuse to all POTWs in utilizing individualcontrol mechanisms to implementpretreatment requirements.

The Agency agrees that where acompliance schedule is required itshould be included in the individualcontrol mechanism. For this reason,today's rule includes such arequirement. The Agency points out thatsuch compliance schedules cannotrelieve an industrial user of its federalobligation to comply with categoricalpretreatment standards or any otherfederal pretreatment requirements in atimely manner, and language to thiseffect has also been added to today'srule. Compliance schedules placed inindividual control mechanisms are thosenecessary for the attainment of new orrevised categorical pretreatmentstandards or more stringent local limits,rather than those which are the result of

enforcement actions against thesignificant industrial user.

Several commenters opposed theproposal that individual controlmechanisms have a duration of no morethan five years. One POTW commentedthat locking a user into a set ofstandards based on the combinedwastestream formula would result inannual changes to the controlmechanism as flow conditions change.Two other POTWs commented that afive-year limit would be undulyburdensome for POTWs. One statedthat permits should only need to berenewed or amended when there arechanges in the quality or quantity of theuser's discharge. The other stated thatthere is no need to modify the user'scontrol mechanism as long as the user isin compliance.

In the first instance, the Agency doesnot believe that a user is "locked" into aparticular set of standards with anyindividual control mechanism. Themunicipality may structure its permitprogram to allow the use of reopenerclauses which would allow theindividual control mechanisms to bemodified if and when the POTW revisesits local limits. In addition, whereproduction rates or flow rates are highlyvariable, effluent limits can be writtento reflect such variability. The Agencyhas provided some guidance on how thismay be accomplished (see the above-mentioned Industrial User PermittingGuidance Manual). The Agency believesthat a five-year maximum period isreasonable, due to the inevitability ofchanges to the POTW's program andchanges in the characteristics ofwastewater discharged to the POTW.This is consistent with the requirementpromulgated in today's rulemaking thatall POTWs must evaluate the need torevise their local limits every five yearswhen they apply for renewal of theirNPDES permits. There are many reasonsfor changing the control mechanismrequirements, whether or not the userhas changed the quality or quantity ofits discharge, and the Agency believesthat each control mechanism *should bereevaluated at least once every fiveyears to ensure that it is up to date.

The Agency also proposed to requirea statement prohibiting transferability toa new owner or operator without priorPOTW approval. Only one commenterspecifically addressed this issue. Thiscommenter stated that so long ascompliance has been maintained underthe conditions of a permit, the POTWshould have ample authority to enforcethe permit, although notification to thenew owner or operator would beappropriate. The Agency agrees with

this commenter. POTWs may haveauthority to enforce permits that havebeen transferred. However, theindividual control mechanism is basedupon information provided to the POTWby a particular owner or operator. ThePOTW must, at a minimum, know of thechange in ownership or operation to beable to learn of any forthcoming majorchanges to the industrial user'soperations. Similarly, the new owner oroperator should have a copy of theexisting control mechanism in order tohave adequate notice of applicablepretreatment requirements. To ensurethat this occurs, the Agency believesthat prior notification of the POTW andof the new owner or operator is neededand is therefore promulgating 40 CFR403.8(f)(1)(iii)(B) to provide that eachindividual control mechanism mustinclude a statement ofnontransferability without, at aminimum, prior notification to thePOTW of the change in ownership oroperation and without, at a minimum.provision of a copy of the existingindividual control mechanism to thenew owner or operator. Today's ruledoes not, however, require priorapproval by the POTW. POTWs maydecide to require such prior approval inthe permits they issue.

The Agency also received severalcomments on the proposed requirementthat individual control mechanismsshould include applicable effluent limitsbased upon categorical standards andlocal limits. Two POTWs sought to limitthis requirement. One of thesecommenters stated that, due to theinherent variability of certain effluentlimits, incorporation of such limits byreference is preferred. The othercommented that permit limits shouldonly include end-of-process limits andincorporate by reference local limits andthe combined wastestream formula. It isunclear to the Agency why thiscommenter believed that only end-of-process limits should be included inindividual control mechanisms, but the'Agency assumes that this commenterwas also concerned about variability ofcertain effluent limits. As discussedabove, EPA does not believe thatvariability of flow and productionshould prevent the inclusion ofappropriate limits in individual controlmechanisms. EPA's policy is thatPOTWs should develop, and place inindividual control mechanisms, case-by-case individual end-of-pipe limits forsignificant industrial users pursuanteither to 40 CFR 403.5(c) and/or limitsreflecting the application of categoricalstandards to the permittee's specificoperations.

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A State suggested that "applicableState standards" be added to thecategory. The Agency agrees that wherethese standards apply, they should beincluded as elements in permits orequivalent control mechanisms. Earlycalculation of all end-of-pipe limits,Including those based on state law, willresult in better compliance withapplicable standards. Today's ruletherefore'includes a requirement in 40CFR 403.8(f)(1)(iii) to include in theindividual control mechanism effluentlimits based on any applicable State orlocal law. The Agency has also added arequirement that the individual controlmechanism include effluent limits basedon applicable pretreatment standards Inpart 403.,

Finally, the Agency received twocomments on the requirement that-applicable monitoring, sampling, andreporting requirements be included inindividual control mechanisms. A Statecommented that control mechanismsshould also include sampling location(s)to ensure that compliance is assessed atthe point where the limits are applied. APOTW suggested that the requirementbe modified in order to clarify that therequirement refers to self-monitoringinstead of the POTW's own compliancemonitoring activities.

The Agency agrees with both of the'secommenters. Sampling requirementsshould normally specify samplinglocation(s), and the location(s) should bepoint(s) at which the limitations setforth in the individual controlmechanism apply. Moreover, the Agencyintended in the proposal to require thatindividual control mechanisms containself-monitoring requirements. The finalrule requires that individual controlmechanisms specify an identification ofthe pollutants to be monitored, samplinglocation and self-monitoringrequirements, as well as samplingfrequency and sample type. The Agencyis also adding a requirement that thecontrol mechanism containrecordkeeping requirements whereapplicable, since recordkeeping may bevery useful in tracking compliance andin otherwise enabling the POTW to.obtain needed information aboutsignificant industrial users. In addition,EPA has deleted from the proposed rulea separate requirement for notificationof slug discharges, since such arequirement might imply that other typesof notification should not be included inindividual control mechanisms. Instead,the Agency is requiring that suchmechanisms contain "applicable"notification requirements, which shouldinclude, as well as slug discharges, othernotification requirements contained in

part 403 such as non-compliancereporting and notification of changeddischarge.

c. Today's Rule

Today's rule requires POTWs withapproved pretreatment programs to'issue permits or equivalent individualcontrol mechanisms to each significantindustrial user. The mechanisms shall beenforceable and shall contain, at aminimum, the following elements:

e Statement of duration (in no casemore than five years);

* Statement of non-transferability ofthe individual control mechanismwithout, at a minimum, prior notificationto the POTW and provision of a copy ofthe existing control mechanism to thenew owner or operator;,

e Effluent limits based on applicablegeneral pretreatment standards in part403 of this title, categorical pretreatmentstandards, local limits, and State andlocal law;,1 Self-monitoring, sampling, reporting,

notification, and recordkeepingrequirements, including an identificationof the pollutants to be monitored,sampling location, sampling frequency,and sample type, based on applicablegeneral pretreatment standards in part403 of this title, categorical pretreatmentstandards, local limits, and State andlocal law; and

* Statement of applicable civil andcriminal penalties for violation ofpretreatment standards andrequirements and, where required, anyapplicable compliance schedules. Suchschedules may not extend thecompliance date beyond applicablefederal deadlines.

F. Implementing the GeneralProhibitions Against Pass Through andInterference

1. Toxicity-Based Permit Limits (40 CFR122.21(j)(1)(2) and (3))

a. Proposed rule. To supplementnumerical NPDES permit limits forspecific chemicals, EPA has stronglyencouraged NPDES permittingauthorities to establish toxicity testingrequirements in municipal permits andto develop whole effluent toxicity-basedpermit limitations to control toxicity toaquatic life. Expanded use of toxicitytesting and water quality-basedpermitting for POTWs was also one ofthe principal recommendations of theDomestic Sewage Study. EPA hasencouraged this approach to controllingtoxic effluents because it allows POTWsand permit writers to better control passthrough by identifying certain toxiceffects (such as lethality and effects ongrowth and reproduction) of a complex

mixture with one measurement.Toxicity-based permit limits can also beuseful where national categoricalpretreatment standards do notadequately address pollutants thatcause local toxicity or where there areno current numerical water qualitycriteria for individual chemicals, as isthe case for many toxic and hazardousconstituents. In such cases, toxicity-based permit limits provide a numericmeasure of the narrative water quality"no toxics in toxic amounts" standard.When such a toxicity-based limit isviolated, a toxicity reduction evaluation(TRE) can be'used to investigate thecauses, sources, and methods to controlthe toxicity. A TRE is a procedure usedto find control methods to reduce oreliminate toxicity. A TRE providessystematic methods for locating sourcesof POTW whole effluent toxicity and/orassessing the treatability of the toxicity,whether through pretreatment (sourcecontrol) or through improved treatmentat the POTW. A toxicity identificationevaluation (TIE) is part of a TRE whichuses toxicity tests to characterize,identify, and confirm the specificcausative agents of effluent toxicity.EPA recently enacted regulationsrequiring that whole effluent toxicitylimits be placed in NPDES permits inappropriate circumstances. See 40 CFR122.44(d)).

On November 23, 1988, EPA proposedto revise 40 CFR 122.21(j) to require thatall existing POTWs conduct wholeeffluent toxicity testing and submit theresults of such testing in their NPDESpermit applications. The informationwould be used by permit writers tojustify permit limitations and toxicityreductionevaluations (TREs) when thetesting reveals a potential for violationsof water quality standards. The toxicitytesting information could also.form thebasis for monitoring requirements andother permit conditions when needed toensure ongoing compliance with waterquality standards. .

In encouraging the use of toxicitytesting, EPA has recommended thattesting requirements be based on thetechnical recommendations andprinciples found in the TechnicalSupport Document for Water Quality-based Toxics Control (TSD) (EPA/440/4-85-032, September 1985, revisededition to be published in 1990), andEPA's toxicity testing protocols, orequivalent procedures designated by theDirector (i.e., the EPA RegionalAdministrator or the NPDES permittingauthorityin a State that is federallyapproved to administer the NPDES,program). The TSD describes therationale for whole effluent toxicity

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controls and the assessment of receivingwater effects., b. Response to comments. EPA

received approximately 90 comments onthe topic of toxicity testing. Most of thecomments focused on the need fortoxicity testing at all POTWs and thetest procedures outlined in the proposal.The majority of the commentersasserted that toxicity testing at allexisting POTWs was unnecessary andin some cases redundant. In addition, amajority of commenters objected to thetesting procedures and the frequency oftesting required on the basis of cost andthe possibility that they may conflictwith state toxic control strategiesalready in place. The various commentsare discussed in more detail below.

Several commenters stated that EPAor the permitting authority shoulddemonstrate that toxicity is a problembefore requiring whole effluent toxicitytesting.

Section 101(a) of the Clean Water Actestablishes a national policy of restoringand maintaining the chemical, physical,and biological integrity of the Nation'swaters. In addition, section 101(a)(3)clearly states the national policy thatthe discharge of toxic pollutants in toxicamounts is prohibited..Dischargers withNPDES permits must meet all of thetechnology-based requirements of theCWA as well as any more stringentrequirements necessary to achievewater quality standards establishedunder section 303. Section 301(b)1)(C)and section 402(a)(1) of the CWArequire that NPDES permittees achievethe effluent limitations necessary toattain and maintain the numeric andnarrative water quality standards set bythe states or, in appropriate instances,by EPA. EPA also has authority undersections 308 and 402(a) (1)-(2) to requiresuch monitoring as is necessary todevelop effluent limitations consistentwith the Act.

Many POTWs have been found todischarge toxic substances in toxicamounts. Effluent toxicity testing allowspermitting authorities to assess whethera discharger is complying with statewater quality standards and provides ajustification for establishment, wherenecessary, of permit limitations toachieve those standards. EPA's surfacewater toxics control program uses bothchemical and biological methods toassess and protect water quality. Wholeeffluent toxicity testing is especiallyappropriate where, as for POTWs,complex chemical interactions mayoccur and where a chemical specificevaluation alone cannot fully assess thetoxic effects of the effluent orattainment or nonattainment of the

narrative water quality standard fortoxicity.

One commenter stated that theseregulations should require that waterquality modeling and comprehensivewater quality studies be completedbefore toxicity testing is required.

The toxicity testing required bytoday's rule Is designed to reveal if aPOTW is causing or contributing toinstream toxicity. Toxicity tests arenecessary in assessing the toxicity of aneffluent. The results of such tests inconjunction with any applicable waterquality modeling information can lead todecisions concerning appropriate waterquality-based limits on whole effluenttoxicity. However, EPA does not believethat water quality modeling should be aprecondition for toxicity testing.

Many commenters stated that itwould be more appropriate to usetoxicity testing as an optionalmonitoring tool rather than as the basisfor an enforceable limit.

EPA emphasizes that today's ruledoes not explicitly require theestablishment of permit limits based onthe results of toxicity tests. Instead, itrequires certain POTWs to submit theresults of toxicity tests with their permitapplications. EPA's regulations at 40CFR 122.44(d)(1)(iv), however, alreadyrequire whole effluent toxicity limitswhere a discharge causes, has thereasonable potential to cause, orcontributes to an in-stream excursionabove a numeric criterion for wholeeffluent toxicity. A similar requirementexists regarding excursions abovenarrative criteria, except that limits onwhole effluent toxicity may not benecessary if the permitting authoritydemonstrates that chemical-specificlimits -for the effluent are sufficient toattain and maintain the applicable statestandard. EPA will continue to use theresults of effluent toxicity testing andother data to establish permittingpriorities, to assess whether adischarger is in compliance with statewater quality standards, and to developpermit limitations to achieve thosestandards.

Several commenters said that toxicitytests cannot distinguish betweentoxicity caused by "common materials,"such as ammonia and chlorine, andtoxicity caused by section 307(a) prioritypollutants and therefore such tests areof limited use in controlling prioritypollutants.

In response, the Agency points outthat state narrative standardsprohibiting the discharge of toxics intoxic amounts are not limited to section307(a) priority pollutants. Toxicity testswill account for toxicity caused by any

pollutant, whether priority, conventionalor nonconventional. Any effluent thatcauses unacceptable toxicity in thereceiving waters would violate generalprohibitions on the discharge of toxicpollutants in toxic amounts and controlsmust be established accordingly.

In addition, a few commenters statedthat state disinfection requirementswould often cause failure of a toxicitytest due to the presence of chlorine, andtherefore toxicity testing should beconducted before disinfection.

Residual chlorine and otherbyproducts of chlorination (i.e. mono-and dichloroamines) can be highly toxicto aquatic life. Therefore, EPArecommends that any use of chlorine fordisinfection be carefully evaluated. Ifunacceptable effluent toxicity is foundto be caused by excessive chlorine,either a reduction in the amount ofchlorine used for disinfection,dechlorination after disinfection, or useof alternative disinfection technologiesmay be necessary. Whole effluenttoxicity tests are an appropriate meansto identify whether excessive toxicchlorine discharges are occurring.

Several commenters suggested the useof only acute tests to verify the need forfurther testing and toxicity reduction. Inresponse, the Agency notes that today'srule does not specifically require eitheracute or chronic tests for any particularPOTW. However, after reviewing apermit application containing the resultsof any testing conducted, the Directormay choose to require additional testing(acute, chronic, or both) as he deemsnecessary to assess the toxicity of thedischarge pursuant to his authorityunder sections 402(a) (1)-(2) of the CleanWater Act. The characteristics ofinstream dilution, effluent variability.and species sensitivity differ from onePOTW to the next, as do the types ofpollutants discharged. Sometimeschronic tests are more appropriate,sometimes acute tests are sufficient, andat other times a combination of bothacute and chronic tests are necessary toaccurately assess the toxicity of aneffluent to aquatic life.

One commenter stated that theindustrial pretreatment program hasadequately screened and identifiedtoxicity problems so that in smallersystems (where the pretreatmentprogram does not indicate a potentialfor toxic discharges) it is unnecessaryfor POTWs to conduct toxicity testing.

EPA has found that POTWs withpretreatment programs receive themajority of indirect industrial dischargesand therefore have a significant -potential for effluent toxicity. Even insmaller POTWs with pretreatment

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programs, all the toxics in a complexeffluent cannot, as a practical matter, bemeasured or limited singly and, asstated previously, chemical-specifictesting methods may not address theinteractive effects of the mixture.Toxicity testing provides a way tocharacterize and ultimately to limit, ifnecessary, whole effluent toxicity wherenecessary to meet water qualitystandards. It may also help identify thepresence of particular pollutants ofconcern so that chemical-specific locallimits or other controls can bedeveloped.

One commenter suggested using apriority pollutant scan in lieu of toxicitytesting to screen a POTW's influent forthe presence of toxic wastes inconcentrations which would causedamage to the POTW.

EPA agrees that POTWs shouldgenerally test their influent for thepresence of individual toxic pollutants.However, a POTW's effluent may betoxic due to non-priority pollutants,complex mixtures of pollutants, orchemicals added or created during thetreatment process at the POTW. Therevisions to 40 CFR 122.21(j) requirePOTWs to conduct whole effluenttoxicity testing to determine the impactof the effluent on water quality.

Several commenters suggested thattoxicity testing should not be requiredfor wastewater discharged to dry creekbeds, ephemeral drainages, sloughs,ditches, etc. because these places haveno aquatic life to protect and do notaffect waterways. One commenterrecommended the use of only chemical-specific controls in such circumstances.

In response, EPA notes that narrativewater quality criteria apply to alldesignated uses at all flows unlessotherwise specified in state waterquality standards. It is EPA's policy thatno acutely toxic conditions may exist inany state waters, regardless ofdesignated use. Likewise, criteria forprotection against chronic effects mustbe met at the edge of the mixing zone,where the state water quality standardallows a mixing zone. Dry creek beds,ephemeral drainage areas, intermittentstreams, sloughs, or ditches may act asreservoirs for pollutants which can beflushed into larger permanent waters,causing toxic impact.

Many commenters stated that therequirements for toxicity testing in theproposed rule conflict with existing statetoxic control strategies. Somecommenters wanted EPA to be morespecific in setting toxicity testingprocedures, while others wanted statesto have more flexibility.

EPA intended in the proposed rule toprovide flexibility for the states by

allowing the use of testing proceduresequivalent to EPA's'protocols if they areaccepted by the Director. This provisionwas apparently misunderstood by manyof the commenters. The proposal, at 50FR 47653 (proposed 40 CFR 122.210)(1))provided that the Director may requirealternative test procedures and mayrequire the submission of definitivetesting data generated according toprocedures specified by the Director toreplace or supplement the test dataspecified in the proposal. Today's rulealso provides much flexibility to theDirector in specifying test methods. Forexample, paragraph 122.21(j)[3) allowsthe use of EPA's methods or otherestablished protocols which arescientifically defensible and sufficientlysensitive to detect aquatic toxicity. Toclarify this requirement, the Agency hasdeleted the provisions in the proposedrule which referred to the use of specificprotocols and dilution criteria.

A number of commenters stated thatbiomonitoring has already been.completed or will be completed for theirfacilities as part of the toxics controlprograms required under section 304(1)of the CWA. In response, EPA points outthat if a POTW has submitted theresults of toxicity tests with its permitapplication to meet water quality-basedpermitting requirements established bythe CWA section 304(11 regulations (40CFR 122.44(d)), then the POTW has metthe toxicity testing requirements intoday's rule. Whenever that POTW'spermit is up for renewal, the POTW willagain be required to submit the resultsof toxicity tests with its permitapplication pursuant to today's rule. Thetests must be conducted since the lastNPDES permit reissuance or permitmodification under 40 CFR 122.62(a),whichever occurred latest. For moredetail on the relationship between theregulations at 40 CFR 122.44(d)(1)(ii) andthe testing required by today's rule, seethe discussion on the requirements of 40CFR 122.44(d) below.

Some commenters suggested that anyproposal affecting applicationrequirements for municipalities shouldbe included in the new municipalNPDES application form currently beingdeveloped by EPA.

EPA plans to propose new applicationrequirements for POTWs in the nearfuture, along with a form to be used insubmitting the application. The finalapplication forms, when promulgated,will reflect the requirements of today'srule.

Two commenters suggested that EPAshould formally promulgate wholeeffluent toxicity testing procedurespursuant to section 304(h) of the CWA.

Although toxicity test procedureshave not yet been promulgated undersection 304(h) of the CWA, EPA hasproposed new biological measurementsand test procedures for the analysis ofpollutants under section 304(h) (54 FR50216, December 4, 1989). The proposalwould amend 40 CFR part 13a by addingmethods to measure the toxicity ofpollutants in effluents and receivingwaters, by adding methods to measuremutagenicity and to monitor viruses,and by updating citations tomicrobiological methods. In addition,EPA and States have routinely usedcertain other test methods. EPA's,published guidance documents on acuteand chronic toxicity test methods haveundergone extensive public commentand peer review prior to theirpublication, following the standardOffice of Research and Developmentpublic comment and peer reviewprocess. In 1984, the Agency concludedthat "* * * toxicity testing is sufficientlyrefined to be used in setting effluentlimitations * * " (49 FR 38009 (1984)].EPA's studies since 1984 reinforce thisconclusion. The absence of promulgatedguidelines under section 304(h) does notaffect EPA's authority to require toxicitytesting, nor does it affect the reliabilityof the Agency's toxicity testingprotocols.

A number of c6mmenters objected toa perceived objective of the proposal to"codify elements of the TSD" becausethat document is intended only astechnical guidance and is currently

,being revised. These commentersapparently misunderstood EPA's intent.EPA recommends the use of thetechnical methods and principlespresented in the TSD because this'document is in wide use and has provento be a useful tool for conductingtoxicity protocols. However, in theproposed and final rules, EPA hasprovided a considerable degree offlexibility to states desiring to use othertesting procedures.

Some commenters stated that toxicitytest procedures are still in thedevelopmental stage and are notreliable or precise enough for purposesof enforcement.

EPA studies indicate that toxicity testmethods are comparable in accuracyand precision to chemical analyticalmeasurements in common use. The TSDdiscusses the precision of toxicity testmethods and cites various studies thathave led EPA to conclude that toxicitytest methods, where properly followed,exhibit an acceptable range ofvariability. EPA recently conducted twointerlaboratory studies of chronictoxicity testing using Ceriodaphnia.

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These studies showed that a highpercentage of the 21 participatinglaboratories met the survival andreproduction criteria for acceptability oftest results. Furthermore, EPA hasdemonstrated a direct correlationbetween effluent toxicity (whereexposure is adequately assessed) andactual instream impact. The Agencybegan a series of eight studies in 1981 todetermine whether effluent toxicitycorrelates to an impact on receivingwaters. At eight water quality impactedsites around the country, EPA conductedextensive biosurveys, calculated actualinstream waste concentrations, andcompared the results to measuredeffluent toxicities. Final reports for thesestudies are presently available fromEPA. These reports reveal that if aneffluent is found to be toxic at a certainconcentration using standard toxicitytests, a toxic effect can be expected inthe receiving water if that concentrationis met or exceeded instream.

Several commenters stated thatPOTWs are not equipped to handlecertain chemicals that may causetoxicity. One commenter also stated thatthe proposed rule does not address howto develop local limits for toxics controlwhen specific chemicals cannot bereadily identified as the causativetoxicants during a TRE. One commenterstated that POTWs would not be able toidentify sources of toxicity and wouldtherefore impose arbitrary local limitson industrial users.

EPA recognizes that many POTWs arenot designed to treat certain toxics andthat therefore these pollutants tend topass through or interfere with thetreatment system at the POTW. Thenational pretreatment program andtoday's regulations are intended toidentify and control these effects.POTWs with approved localpretreatment programs often requireindustrial users who are identified asthe source of pass through orinterference to conduct toxicitymonitoring or take other measures tohelp identify the specific chemicalscausing toxicity. Industrial users areoften able to easily identify potentialtoxics used in or created by theirprocesses. The POTW can then derivelocal limits, if necessary, from thoseresults. The Agency anticipates that inmost cases POTWs will be able todetermine the source of any toxicity andwill be able to develop appropriate locallimits if needed to address the problem.EPA has also developed TRE and TIEprotocols to help address problematicdischarges where causative agents arenot readily identified (see, e.g., Methodsfor Aquatic Toxicity Identification

Evaluations: Phase I ToxicityCharacterization Procedures, U.S. EPA,September 1988, EPA 600/3-88/034;Methods for Aquatic ToxicityIdentification Evaluations: Phase IToxicity Identification Procedures, U.S.EPA, February 1989, EPA 600/3-88/035;Methods forAquatic ToxicityIdentification Evaluations: Phase IIIToxicity Confirmation Procedures, U.S.EPA, February 1989, EPA 600/3-88/036;Generalized Methodology forConducting Industrial ToxicityReduction Evaluations (TREs), U.S.EPA, March 1989, EPA 600/2-48/070;and Toxicity Reduction EvaluationProtocol for Municipal WastewaterTreatment Plants, U.S. EPA, April 1989,EPA 600/2-88/062).

Several commenters were concernedabout the reliability of TREs becausethey are allegedly in the developmentalstage and because TREs do not identifyspecific causes of toxicity or chemicalconstituents causing acute or chronictoxicity.

EPA has found the TRE and TIEmethods currently available to be usefulin helping dischargers to achieve theirNPDES permit limits and comply withState water quality standards. TRE'soften do identify specific chemicalcauses of toxicity. EPA will continue todevelop and refine TRE methods andprovide technical assistance topermittees. EPA anticipates that theremay be a few cases where a POTW willbe unable to attain or maintaincompliance with toxicity-based limitsdespite implementing an exhaustiveTRE, applying appropriate influent andeffluent controls, vigorously enforcingexisting pretreatment requirementsagainst industrial users, and maintainingcontinued compliance with all otherpermit limits and requirements. In suchcases, EPA will work with the permitteeto resolve the problem and will exerciseits enforcement discretion whenconsidering unusual problems faced bycertain POTWs in complying withtoxicity-based limits.

A majority of the commenters stronglyopposed the requirement that allexisting POTWs conduct toxicityteating. Most of these wanted to seetesting procedures applied on a case-by-case basis, after considering a numberof different factors.

EPA was persuaded by thesecomments to reconsider the requirementthat all existing POTWs be required toconduct toxicity testing as part of theirNPDES permit applications. The Agencyagrees that not all POTWs can beanticipated to exhibit toxicity and thattoxicity testing for such POTWs couldcreate an unnecessary burden.

However, EPA expects that with fewexceptions, all POTWs with designinfluent flows greater than one milliongallons per day and POTWs withpretreatment programs will need to beevaluated to determine whether theyhave a reasonable potential to cause in-stream excursions that violate a Statewater quality standard. As stated above,POTWs with pretreatment programsreceive the majority of indirectindustrial discharges and therefore havea significant potential for effluenttoxicity. In addition, one million gallonsper day is the point at which the flow ofthe wastewater usually begins to reachcritical instream waste concentrationsthat are more likely to result in impactscaused by effluent toxicity. The Agencybelieves that design influent flow is amore appropriate criterion than actualeffluent flow because of the possibilitythat POTVs with a design influent flowof one million gallons per day will reachthat capacity during a five-year permitterm due to the addition of newindustrial users. For these reasons, inlieu of the requirement that all POTWssubmit the results of toxicity tests withtheir permit applications, EPA is todayrequiring valid toxicity testing results tobe submitted as part of the permitapplication requirements for: (1) AnyPOTW with a design influent flowexceeding one million gallons per day,or, (2) any POTW with an approvedpretreatment program or that is requiredto develop a pretreatment program.Today's regulations also provide thatthe Director has the discretion to requireadditional POTWs to submit the resultsof toxicity tests with their permitapplications based on consideration ofone or more of the following factorsfound at 40 CFR 122.44(j)(2): Existingcontrols on point and nonpoint sourcepollution (including total maximum dailyload calculations for the waterbodysegment and relative contribution of thePOTW), the variability of pollutants orpollutant parameters in the effluent(including existing chemical-specificinformation and type of treatmentfacility), the dilution of the effluent inthe receiving water (ratio of effluentflow to receiving stream flow), receivingstream characteristics, and otherconsiderations. Any tests submittedunder today's rule must have beenconducted since the last NPDES permitreissuance or permit modification under§ 122.62(a), whichever occurred later.

If toxicity tests follow establishedprotocols and quality assurancerequirements are followed, the validityof the test will be assured. An invalidtest will not meet the requirements oftoday's rule. Testing protocols that

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adhere to the principles presented in theTSD and EPA's test methods will meetthe requirements of today's rule;however, other valid procedures mayalso be used. While today's rule requireslarger POTWs to conduct toxicitytesting, It also provides the Director theflexibility to require small POTWslocated on small stream segments whereavailable dilution Is minimal to conducttoxicity tests, or to require POTWsdischarging to near coastal waters toconduct such tests.

In making the determination that thecategories of POTWs listed in 40 CFR122.210)(1) shall conduct toxicity testsas part of the permit applicationprocess, EPA was influenced by thefindings of the Domestic Sewage Studyand the conclusion in that Study thatEPA should consider expanding the useof biomonitoring techniques and waterquality-based permitting to improvecontrols over hazardous wastedischarged to POTWs. To strengthen itswater quality-based permitting program,EPA recently revised its permittingregulations at 40 CFR 122.44(d) (54 FR23868, June 2, 1989). These regulationsnow require, with limited exceptions,permit limits on whole effluent toxicitywhere the Director determines, usingtoxicity testing or other information, thata discharge causes or has the potentialto cause excursions above State waterquality standards for toxicity. But 40CFR 122.44(d) does not explicitly requirethe discharger to generate toxicitytesting data, nor does it requiredischargers to submit such data withtheir permit applications. EPA believesthat it is necessary to require toxicitytesting data from certain POTWs withtheir permit application so that at thetime of application the Director willhave sufficient information to determinewhether limits on whole effluent toxicityare required in the POTW's permit. EPArecognizes that toxicity testing data willnot be necessary for certain categoriesof POTWs. While EPA maintains theauthority to require toxicity testing datafrom all POTWe, it would not beappropriate to require POTWs that havelittle or no chance of causing excursionsabove State water quality standards fortoxicity to conduct toxicity tests andsubmit the results with their permitapplications.

Based on the results of the Study, andin conjunction with EPA's ongoingintegrated approach to water quality-based toxics control, the Agency hasdetermined that toxicity testing data isnecessary and is required to besubmitted by POTWs described in 40CFR 122.210)(1) and by POTWsdesignated by the Director under

paragraph (j)(2). Furthermore, under 40CFR 122.44(d) (iv) and (v), the Directormust use this data in determiningwhether limits on whole effluent toxicityare required in the POTW's permit.

Paragraph (1}(2) provides the Directorwith the flexibility to require additionalPOTWs to submit toxicity data withtheir applications. In exercising thisoption, the Director is to consider thefactors listed in paragraphs (j)(2)(i)-(v).These factors are general principleswhich EPA has consistentlyrecommended that permittingauthorities consider when assessing adischarger's potential to cause orcontribute to instream toxicity. Theseprinciples are compatible with EPA's"Policy on Development of WaterQuality-Based Permit Limitations forToxic Pollutants" (49 FR 9016, March1984), The Technical Support Documentfor Water Quality-Based ToxicsControls, and EPA's revisions to 40 CFR122.44(d) to implement CWA section304(Q).

Once the Director has determined thata POTW meets any of the criteria inparagraph (j)(1) or has designated aPOTW under paragraph j)(2), and thatPOTW must therefore submit the resultsof toxicity testing as part of the permitapplication process, paragraph (j)(3)provides that POTWs shall use atoxicity testing protocol that isscientifically defensible and sufficientlysensitive to detect aquatic toxicity.

Approved State NPDES programs thatdo not presently allow permittingauthorities to require POTWs in thecategories described in paragraphs (I)(1) and (2) to submit toxicity test resultswith their permit applications will needto revise their applicable law to conformto today's requirements. Under 40 CFR123.62(e), regulatory revisions mustoccur within one year of the effectivedate of today's rule, unless statutorychanges are necessary, in which casesuch revisions must take place withintwo years.

One commenter suggested that therequirement that all POTWs conducttoxicity testing is inequitable when theproposal does not require such testingfor private dischargers. As stated above,40 CFR 122.21(j) no longer requires allPOTWs to conduct toxicity testing.Instead, POTWs that meet any of thecriteria listed in 40 CFR 122.21(j)(1) orare designated by the Director underparagraph j)(2) are required to conductsuch testing. Moreover, the newamendments to 40 CFR 122.44(d) requirethe Director to determine whether anydischarge causes, has the reasonablepotential to cause, or contributes to anexcursion above a narrative or numeric

criteria within a State water qualitystandard. Such procedures will includetoxicity tests by direct industrialdischargers in many cases.

One commenter stated that toxicity-based limits in NPDES permits are notan effective way of preventing toxicitybecause nonpoint sources may also besignificant contributors to toxicity. EPAreiterates that today's regulations do notexplicitly require the establishment oftoxicity limits.

However, the Agency disagrees withthe argument that POTWs should notmonitor or limit toxicity becausenonpoint sources may also contribute tosuch toxicity. If a POTW's effluent isfound to cause instream toxicity (afterconsideration of any applicable mixingzone allowances) then discharge of sucheffluent is in violation of State waterquality standards that prohibitdischarges of toxic pollutants in toxicamounts. In such instances, appropriatelimits aimed at achieving compliancewith State standards must beestablished.

One commenter stated that permitlimits on toxicity should be required inthe permit when the results of testingindicate that there is or may be aproblem with toxicity in the discharge.As a general rule, EPA agrees with thisstatement. For further details onappropriate measures to be taken, seeEPA's section 304(1) regulations (54 FR23868, June 2, 1989) at 40 CFR 122.44(d).The regulations at 40 CFR 122.44(d)describe the procedures that permittingauthorities must use when determiningwhether a discharge causes, has the,reasonable potential to cause, orcontributes to an instream excursionabove a narrative or numeric toxicitycriterion within a State water qualitystandard.

Many commenters expressed concernover the cost of toxicity testing and thelack of qualified laboratory facilitiesavailable to perform the tests. EPA hasfound that costs for toxicity testingrange from a few hundred dollars for asimple one time screening analysis toone or two thousand dollars per monthfor a monthly chronic toxicity analysis.Typical monthly or quarterly testingcosts are comparable to many othertypes of chemical monitoring costs.

EPA has also found that there aremany competent labs around thecountry capable of performing thesetests. The Agency recently contractedwith several labs to perform toxicitytests in support of each EPA Region'stoxics control program. It is theresponsibility of the permittee to find anappropriate facility and have itssamples shipped, if necessary, and


analyzed. EPA's EnvironmentalMonitoring and Support Lab inCincinnati is currently developingguidance for lab certification whichStates can use to certify competent labsand to provide permittees with lists oflabs capable of conducting toxicity tests.

One commenter stated that theregulations should allow time for thesolicitation and subsequent awarding ofcontracts to conduct toxicity tests andthat the proposed deadline forsubmission of test results would beunreasonably burdensome.

In response, the Agency points outthat the regulations do not requirePOTWs to solicit contracts for theperformance of toxicity tests. Sincetoxicity testing is only required everyfive years as part of certain POTWs'NPDES permit applications, thesePOTWs should have ample time to findsuitable laboratories.

One commenter noted that the addedworkload to permitting authorities forreviewing the screening data has notbeen addressed. EPA has estimatedthese and other costs associated withimplementing the proposedrequirements and they are available aspart of the public record of thisrulemaking. The Agency believes thatimproved control of toxic and hazardouspollutants occasioned by today'stoxicity testing requirements justifies theadded workload to permittingauthorities.

c. Today's Rule

Today's rule provides that any POTWwith a design influent flow equal to orgreater than one million gallons per dayand any POTW with an approvedpretreatment program or which isrequired to have such a program mustprovide the results of whole effluentbiological toxicity testing to the Directoras part of their NPDES permit;applications. Tests submitted undertoday's rule must have been conductedsince the last NPDES permit reissuanceor permit modification under § 122.62(a),whichever occurred later. The Directormay also require other POTWs tosubmit the results of toxicity tests withtheir applications, based onconsideration of the variability ofpollutants in the effluent, the dilution ofthe effluent in the receiving water,existing controls on point and nonpointsources, receiving streamcharacteristics, and otherconsiderations. In conducting thetesting, POTWs must use EPA's methodsor other protocols which arescientifically defensible and sufficientlysensitive to detect aquatic toxicity.

2. Sludge Control

The provisions of the amended CWAdealing with the regulation of sewagesludge have far-reaching implicationsfor the pretreatment program. Theamendments mandate the promulgationof specific numeric limits for toxicpollutants in sewage sludge and/or thespecification of acceptable sludgemanagement practices, and require thatthese standards be implemented throughpermits. To carry out theserequirements, EPA has proposedtechnical standards for an initial groupof toxic pollutants for the five majorsludge use and disposal methods:agricultural and non-agricultural landapplication, distribution and marketing,incineration, sludge-only landfills, andsurface disposal sites. These standardswere proposed on February 6, 1989 (54FR 5746). EPA earlier proposedregulations governing sludge disposal inmunicipal solid waste landfills(MSWLFs) on August 30, 1988 (53 FR33314).

In addition to calling for thepromulgation of technical criteria for theuse and disposal of sewage sludge, the1987 amendments to section 405 alsocontain a significant departure fromprevious statutory provisions regardingimplementation. The amendmentprohibits the use or disposal of sludgeexcept in compliance with EPA'sregulations and requires theimplementation of the standards througha permitting system. This means that, forthe first time, federal technicalstandards will be implemented throughpermits issued to treatment workstreating domestic sewage. When thesludge standards are promulgated,NPDES permits issued to POTWs orother treatment works treating domesticsewage must include these requirementsunless they are included in anotherpermit under listed federal permitprograms or an approved state sludgemanagement program. On May 2, 1989,EPA promulgated final regulations forimplementing sludge standards intoNPDES permits and fordevelopingapprovable State sludge permittingprograms.

Section 405(d)(4) as amended alsorequires that, before promulgation of thecriteria, the Administrator shall includesludge conditions in permits issued toPOTWs under section 402 or take suchother measures as the Administratordeems appropriate to protect publichealth and the environment fromadverse effects which may occur fromtoxic pollutants in sewage sludge. Toincorporate sludge conditions intopermits before promulgation of thestandards, such conditions will have to

be developed on a case-by-case basis.To implement this requirement, theAgency has developed a "SewageSludge Interim Permitting Strategy"which explains EPA's strategy inimplementing this CWA provision. EPAhas also completed guidance (signed inDecember 1989) which will bedistributed in early 1990 to EPA Regions,States, and interested parties. This"Guidance for Writing Case-by-CasePermit Requirements for MunicipalSewage Sludge" is designed to assistpermit writers in developing "bestprofessional judgment" permitconditions prior to promulgation of thetechnical standards. In September 1989,EPA also issued the 'POTW SludgeSampling and Analysis Document" foruse in sewage sludge monitoring. Inaddition, the Agency conductsworkshops several times a year onwriting sludge permit conditions.

This improved regulation of sewagesludge quality will drive thedevelopment of local limits to keeppollutants that could contaminate thesludge and interfere with its proper useand disposal from entering the treatmentplant. Thus, this effort will further thedevelopment of effective pretreatmentprograms and will help to identify andcontrol the discharge of hazardouswastes and hazardous constituents toPOTWs.

3. Control of Indirect Dischargers:Commercial Centralized Waste Treaters(40 CFR 403.3 (e) and (o), 403.5(c),403.6(e), 403.8))

a. Proposed change. Commercialcentralized waste treaters (referred toherein as CWTs) are facilities that treatwastes received from off-site generatorsof those wastes. The Agency firstproposed to specifically address CWTsthat discharge to POTWs as part of theproposal, published on June 12,1986 (51FR 21456), to implement therecommendations of the PretreatmentImplementation Review Taskforce("PIRT"). The preamble to that proposalclarified that under the currentrequirements, categorical pretreatmentstandards apply to the wastewatersgenerated by certain industrialprocesses and discharged to a POTW,regardless of whether they are finallydischarged by an industrial generator orsome intermediate entity such as aCWT. For those CWTs that mix processcategorical wastewater with otherwastes prior to pretreatment, thepreamble indicated that the combinedwastestream formula (CWF) in 40 CFR403.6(e) should be used to calculatealternate discharge limits. The proposedrule would have codified this

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requirement and would have requiredgenerators of wastes to supply theinformation necessary for calculatingthe limits. Three other alternatives werediscussed in the June 12, 1986 proposal:(1) Promulgating national categoricalstandards for CWTs, (2) relying solelyon POTW-developed local limits, and (3)limiting each pollutant discharged fromthe CWT by applying the most stringentparameter for that pollutant taken fromall the categorical standards applicableto the wastes received by the CWT. EPAdid not amend its regulations, or currentrequirements applicable to CWTs,'in thefinal PIRT rule. Instead the issue wasdeferred and again addressed in theproposal to today's rule (November 23,1988, 53 FR 47632). That proposalsolicited comment on the samealternatives, but proposed an additionalone: POTWs would be required toobtain and implement authority toregulate CWTs by developing locallimits based on the best availabletechnology economically achievable(BAT). which would be determined byeach POTW for its CWTs using bestprofessional judgment (BPJ). If thePOTW determined that the combinedremoval by the CWT and the POITWwas less than the removal that-would beachieved by BAT, the POTW would seta limit equal to the BAT limits, butadjusted for removal by the POTW.

b. Response to comments. The Agencyreceived numerous comments in supportof and opposing each alternative andrecommending additional alternatives.These comments raised technical, legaland economic concerns. The Agency hasdecided to collect additional data beforedeciding whether to finalize any of thealternatives. Data that would assist inthe decision include more information'on the types, variability, environmentaleffects, and treatability of wastesreceived and discharged by CWTs. Suchdata would also assist the Agency inproviding guidance on how to implementits decision. Once the data are obtained,the Agency may determine that it isnecessary to consider options not withinthe current proposals, and to makeadditional proposals. Otherwise it willbase its decision on the proposalscurrently outstanding and the commentsreceived thereon.

The Agency reiterates its previouslystated position (see 51 FR 21456) thatany national categorical standard thatwould apply to a waste if discharged byits generator continues to apply if thewaste is shipped off-site to a CWT thatis an industrial user of a POTW. Wheresuch wastes are mixed with otherprocess wastestreams prior to discharge,the combined wastestream formula may

be used to determine the applicablelimit. The Agency recognizes thepractical difficulties in applying theCWF faced by CWTs that receivecategorical wastes in substantial orhighly variable quantities. CWTsexperiencing difficulties in applying theCWF may wish to either: (1) Segregatecategorical wastes and provide batchtreatment to the levels required byapplicable categorical standards, or (2)treat a mixture of categorical and otherwastes such that each pollutantdischarged is in compliance (aftercorrection for dilution flows) with themost stringent numerical limitprescribed for that pollutant in any ofthe categorical standards applicable tothe wastes being treated. EPA believesthat either of these options has thepotential for substantially reducing thepaperwork of CWTs that wouldotherwise be required to use the CWF,while still assuring treatment ofcategorical wastes in accordance withcategorical standards.

As discussed in section H.1 below,.today's rule requires POTWs todetermine the necessity of developinglocal limits to prevent pass through andInterference. The Agency encouragesPOTWs to pay particular attention tothe effluent from CWTs In developingthose limits.

c. Today's rule. The Agency ispostponing promulgation of anyadditional regulations pursuant to theproposals regarding CWTs.

4. Categorical Standards for OtherIndustries

Section 304(m) of the Clean WaterAct, added by the Water Quality Act of1987, requires the Agency to establish aschedule for the annual review andrevision of promulgated effluentguidelines, and to establish a schedulefor promulgation of new BAT guidelinesand new source performance standardsfor industries discharging toxic ornonconventional pollutants. On August25, 1988 (53 FR 32584). the Agencypublished a notice of its proposed planto implement section 304(m). That noticecontained a discussion of the Agency'sproposed decision-making process to setpriorities for the development of new orrevised effluent guidelines. Although notrequired by section 304(m), that noticesaid that EPA would develop categoricalpretreatment standards wheneverappropriate when developing guidelinesfor categories of dischargers. Some ofthe categories which the Agency said itwould consider as candidates for new orrevised guidelines were identified in theStudy as significant contributors ofhazardous constituents to POTWs.

One commenter on the November 23,1988 proposal criticized EPA for notmoving swiftly enough to promulgatenew or revised categorical pretreatmentstandards in accordance with therecommendations of the Study and themandate of section 304(m). Thiscommenter stated that existingcategorical standards cover aninsufficient number of toxic andhazardous pollutants, and that manyindustries discharging large amounts ofsuch pollutants are not covered bycategorical standards at all.

On January 2, 1990, the Agencypublished a final notice announcing theAgency's Initial plan for reviewingexisting guidelines and promulgation ofnew effluent guidelines to implementsection 304(m). This notice established aschedule for reviewing existingregulations and for selecting categoriesof dischargers of toxic ornonconventional pollutants for whichguidelines have not previously beenpublished. Many of the industries forwhich the Agency has establishedSchedules were recommended by theStudy as potential candidates for new orrevised categorical pretreatmentstandards.

G. Enforcement Issues

1. Revision to Local Limits (40 CFR122.21(j)(2))

a. Proposed change. The existingpretreatment regulations provide thatthe development of local limits (or ademonstration that they are notnecessary) is a prerequisite to approvalof a POTW pretreatment program andthe continuing legal acceptability of anapproved program. Although theexisting regulatory language does notexplicitly require POTWs to updatelocal limits, EPA has previously statedthat local limits must be updated asnecessary to reflect changing conditionsat the POTW (51 FR 21459, June 12,1986). Because of the importance of up-to-date local limits in controlling passthrough and interference from toxic andhazardous pollutants, EPA proposed onNovember 23, 1988 to revise 40 CFR122.21(j)(2) to require POTWs toevaluate in writing the need to updatetheir local limits as part of their NPDESpermit application (i.e., once every fiveyears at a minimum). If the Directordetermines that a particular POTWshould evaluate the need for revisionmore often, it may so specify in theNPDES permit or approved pretreatmentprogram (as incorporated by referencein the permit).

This provision would not requirePOTWs to update their local limits

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when such revision is not needed.Instead. EPA is establishing a minimum "frequency for formal evaluation of theneed for revised limits, Examples ofevents that might indicate the need forsuch a revision include changes in thePOTW's NPDES permit, changes insludge disposal standards or POTWsludge disposal methods, modificationsto the treatment plant, addition ordeletion of significant industrial users,and changes in industrial users'processes or pretreatment operations.These events could all affect thelikelihood of interference with POTWoperations or possible lack ofcompliance with the POTW's NPDESpermit. The minimum frequency forformal evaluations will give the POTWsmore precise notice of their legalresponsibilities and should facilitateEPA enforcement actions in somesituatics where POTWs are notfulfilling their obligations to develop andupdate local limits. Regular evaluationof the need for revised limits should alsolead to more effective limits on thedischarge of toxic and hazardouswastes, thereby preventing pass throughand interference.

The Agency solicited comments onwhether POTWs should be required toconduct the evaluation more often. Forexample, POTWs might be required toconduct the evaluation whenevermultiple instances of pass through orinterference had occurred (such as twoor more violations in a quarter), in orderto determine if existing local limits wereadequate to prevent these occurrences.POTWs could also be required to submitsuch evaluations annually as part of theannual reports required under 40 CFR403.8(i).

b. Response to comments. The Agencyreceived many comments on theproposed rule from States, POTWs,environmental groups, and industry. Thevast majority of the commenters favoredthe rule as proposed. A small minority ofcommenters expressed concern over theproposed provision.

One area of concern involved thelevel of POTW discretion in the timingand performance of local limitsevaluations. One commenter stated thatthe frequency for evaluation of locallimits should be left entirely to thePOTW since the POTW is in the bestposition to know the nature and effect ofthe discharges into its system. Anothercommenter observed that developmentof local limits should already have takeninto account changes in a POTW'ssystem (e.g., projected increase in thenumber of industrial users, etc.).Therefore, it was believed that the

POTW should determine when changesto local limits should be made.

EPA is not persuaded by the argumentthat no mimimum frequency forevaluating the need for revision isnecessary. The Agency believes that theevaluation of local limits at least-everyfive years is necessary to address anychanges in the POTW's NPDES permit,any problems in compliance with thepermit, changes in sludge disposalmethods, or changes to the treatmentplant. However, actual changes to locallimits would be made only when theevaluation indicates the need forupdating the local limit, or whenotherwise required by applicableprovisions in POTW's approvedprograms or NPDES permits.

One commenter inquired as to whatwas meant by a "formal evaluation" oflocal limits. The Agency intends theformal evaluation to be a writtentechnical evaluation by the ControlAuthority determining whether or notthere is a need to revise the existinglocal limits at the time of permitapplication, and the reasons for thisdetermination. To clarify thisrequirement, today's rule requires awritten technical evaluation of the needto revise local limits, rather than a"formal" evaluation.

There was almost universalopposition to the suggestion that locallimits should be evaluated annually. TheAgency agrees that annual evaluation oflocal limits is not routinely necessaryand therefore is not promulgating thatrequirement as part of today's final rule.

c. Today's rule. Today's rule providesthat all POTWs must provide a writtentechnical evaluation of the need torevise local limits as part of their NPDESpermit applications.

2. Inspections and Sampling (40 CFR403.8(f)(2}(v))

a. Proposed change. The existingregulations (40 CFR 403.8(f)(2}(v))require that POTWs with approvedpretreatment programs must be able torandomly sample and analyze theeffluent from their industrial users andconduct surveillance and inspections toidentify noncompliance withpretreatment requirements. However,these regulations do not specify howoften such POTWs must perform thesampling analysis and surveillance.

In the 1986 "Pretreatment ComplianceMonitoring and Enforcement Guidance,"the Agency recommended that POTWsconduct at least one inspection and/orsampling visit annually to all"significant industrial users." EPAemphasized in the Guidance that morefrequent monitoring should probably beconducted in certain cases: e.g., where

an industrial facility has exhibited amarked inability to achieve andmaintain compliance with pretreatmentstandards.

In order to facilitate implementationof existing requirements by specifying astandard for how often POTWs mustinspect and sample the effluent of theirsignificant Industrial users, EPAproposed on November 23, 1988 tomodify 40 CFR 403.8(f0(2(v) to requirePOTWs with approved pretreatmentprograms to inspect and sample all"significant industrial users" at leastonce every two years. EPA believes thatinspection and sampling of theseusersat least this often should-help POTWsavert pass through and interference bykeeping better track of the moresignificant industrial dischargers intotheir treatment and collection systems(especially dischargers of toxic andhazardous pollutants). The'proposedrevisions should also provide-a uniformprogram requirement that EPA canreadily enforce if necessary.

The Agency solicited comments onwhether the biennial inspections andsampling requirement was sufficient orif annual inspections and samplingshould be required. EPA also requestedcomment on whether the proposedregulation represented a redundantrequirement in the face of existingreporting and monitoring requirementsand whether to require POTWs to targetcertain compounds (such as RCRAappendix VII hazardous constituents)in their sampling of significant industrialuser discharges.

b. Response to comments. The Agencyreceived many comments on theproposed rule. Comments weresubmitted by States, POTWs,environmental groups, and privateindustry. The commenters were evenlysplit with regard to favoring or opposingthe proposed rule. Many commentersstated that the rule should specifyannual inspections and sampling whileothers stated that a minimum of biennialinspections and sampling was adequate.A few of the commenters believed thatthe frequency of inspections andsampling should be left entirely to thePOTW's discretion. Some of thecommenters stated that the proposedrule was redundant in light of existingrequirements for self-monitoring andreporting by categorical industrial usersand proposed requirements forsignificant non-categorical industrialusers.

The Agency does not agree with theassertion that these requirements areredundant. One of the principalpurposes and benefits of an annualcompliance monitoring program is the

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independent verification of thecompliance status of the industrial userby the Control Authority. This annualpresence provides a means to determinewhether the information the POTWreceives is adequate in terms ofsampling techniques and lab procedures.It also provides a way to evaluate therecordkeeping procedures of theindustrial user as well as the operationand maintenance of the pretreatmentfacility. This annual presence alsoprovides a deterrent value byencouraging the industrial user tomaintain appropriate operation andmaintenance procedures as well ashelping to ensure proper recordkeepingand lab procedures. These benefits arenot possible through the review of self-monitoring reports alone. Therefore, theAgency disagrees with the claim thatthis is a redundant requirement, becausethe goal of this provision is not simply toreceive data but also to provideeffective oversight of industrial useroperations.

One commenter stated that anyspecification of inspection andmonitoring frequency would limit theability of the POTW to make rationaldeterminations based on localconsiderations. It was felt.that any morestringent frequency would excessivelylimit the needed flexibility of the POTWin planning for inspections and samplingof its industrial users. Anothercommenter was of the opinion that morefrequent than biennial inspections andsampling might become so demandingas to prevent a POTW from focusing itsattention on actual cases of effluentviolations.

However, other commenters did notbelieve that a minimum frequency ofbiennial inspections and sampling wassufficient to oversee industrial usercompliance. One POTW stated that itsupported a minimum frequency, but itbelieved that It would be difficult tomaintain, in the face of competingprograms, its current level of two toeight visits per year in the face ofregulations which allow for asignificantly reduced effort. Manycommenters pointed out that theproposed rule was inconsistent withexisting EPA guidance regardinginspections and sampling of significantindustrial users. These commentersstated that previous instructions fromEPA during audits and inspections aswell as in workshops directed ControlAuthorities to establish annualmonitoring frequencies for theirsignificant industrial users. Anothercommenter expressed concern overallowing biennial monitoring and statedits belief that annual oversight provided

* greater credibility to the reported self-monitoring information. A finalcommenter said that this proposal rancounter to the recommendations foundin the Domestic Sewage Study and thatthe intent of these recommendationswas to provide a stronger effort inpollution control.

EPA is persuaded by these argumentsin favor of a requirement for annualinspections and sampling of significantindustrial users. The purpose of the ruleis to ensure consistent tracking ofindustrial users with the potential toadversely affect the operation of thetreatment works. Requiring annualinspections and sampling will providefor more effective oversight of industrialuser compliance, consistent with EPAGuidance. For these reasons, EPA istoday requiring that POTWs withapproved pretreatment programs sampleand inspect all significant industrialusers at least once a year.

The Agency does not agree with thosecommenters who said that specifying aminimum inspections and samplingfrequency would excessively limit thePOTW in planning for inspections andsampling of industrial users. TheAgency, in its 1986 "PretreatmentCompliance Monitoring andEnforcement Guidance" recommendedthat Control Authorities conduct at leastone inspection and/or sampling visitannually for all significant industrialusers. This recommendation has alsobeen made during pretreatmentinspections and program audits. Byspecifying a minimum compliancemonitoring frequency, the Agency isestablishing uniform programrequirements to assist in programoversight and which can be readilyenforced if necessary. In addition, theAgency points out that this requirementapplies only to significant industrialusers. EPA has allowed considerableflexibility and discretion for non-significant industrial users with regardto effluent sampling and otherregulatory requirements. EPA does notbelieve that implementation of today'srule will prevent POTWs from dealingwith actual cases of effluent violationsor from adequately implementing otherrequirements of their approvedprograms. Many POTWs are alreadyimplementing an inspections andsampling scheme with frequencies fargreater than required by today's rule,and there have been no observeddifficulties in addressing violations ormaintaining compliance with otherrequirements of approved programs.

Finally, the Agency solicitedcomments on whether to require thatPOTWs target certain compounds In

their sampling, such as RCRA appendixVIII hazardous constituents. There wasuniversal opposition to this proposaland many commenters indicated that itwould be excessively burdensomewithout producing environmentalbenefits. Upon evaluation of thecomments submitted, EPA hasdetermined that routine monitoring forRCRA appendix VIII hazardousconstituents is not nationally necessaryfor preventing interference or passthrough or for preventing sludgecontamination. The POTW has theflexibility to require monitoring of thesesubstances if they pose potentialproblems for the operation of thePOTW. The POTW should, however,sample for all regulated pollutantsdischarged to the treatment works.

c. Today's rule. Today's rule requiresPOTWs with approved pretreatmentprograms to conduct at least oneinspection and sampling visit annuallyfor each significant industrial user.

3. Definition of Significant IndustrialUser (40 CFR 403.3(t))

a. Proposed change. All industrialusers which discharge wastes to POTWsare required to comply with the generalpretreatment regulations found in 40CFR part 403. While the generalpretreatment regulations include veryspecific requirements for categoricalindustries, the regulations are less clearabout certain obligations fornoncategorical industries. In the 1986"Pretreatment Compliance Monitoringand Enforcement Guidance", the Agencyestablished a definition for what wouldconstitute a significant industrial user.This definition was in part designed toidentify those non-categorical industrialusers which are likely to have the mostsignificant impact on the POTW, and forwhich additional pretreatmentrequirements might be justified.

In order to provide nationalconsistency in the application ofpretreatment requirements and toenhance program enforceability, theAgency proposed on November 23, 1988to amend 40 CFR 403.3 to add a newdefinition of "Significant IndustrialUser" which was generally consistentwith the 1986 Guidance. Under theproposal, a "significant industrial user"was defined as: (1) All dischargerssubject to categorical pretreatmentstandards; (2) all noncategorical ,dischargers that, in the opinion of theControl Authority, have a reasonablepotential to adversely affect thePOTW's operation; (3) allnoncategorical dischargers thatcontribute a process wastestream whichmakes up 5 percent or more of the

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average dry weather capacity of thePOTW treatment plant, or thatdischarge an average of 25,000 gallonsper day or more of process wastewaterto the POTW. Under the proposal, theControl Authority need not designate assignificant any noncategorical industrialuser in category (3) above that, in theopinion of the Control Authority andwith the agreement of the ApprovalAuthority, had no potential foradversely affecting the POTW'soperation or for violating anypretreatment standard or requirement.The agreement of the ApprovalAuthority would not be necessary incases where the noncategoricaldischarger would have been designatedas significant only because of anaverage discharge of 25,000 gallons perday or more of process wastewater. Theproposal also would have allowed anynoncategorical industrial userdesignated as significant to petition theControl Authority to be deleted from thelist of significant industrial users on thegrounds that it had no potential foradversely affecting the POTW'soperation or violating any pretreatmentstandard or requirement.

The Agency Intended to provide withthis definition a means for POTWs to setpriorities for monitoring andenforcement activities, including self-monitoring by the industrial user. Inaddition, the definition would provide abasis for establishing reportingrequirements for non-categoricalindustrial users and for ControlAuthority reporting to the ApprovalAuthority regarding industrial usercompliance. The definition would alsoprovide national consistency in theimplementation and reporting ofpretreatment requirements and wouldassist Control Authorities in identifyingthe effective use of permitting,monitoring and enforcement resources.In addition to these benefits, theproposed regulatory definition wouldprovide better notice to POTWs of whatconstitutes a well-structuredpretreatment program. One basic goalwas to require that similar industrialfacilities be treated consistently withregard to reporting and monitoringrequirements.

EPA solicited comments on theNoveber 23, 1988 proposal, and alsoinvited comments and suggestions onthe following issues: whether to allowPOTWs to delete categorical users fromthe significant industrial user list; theappropriateness of the 25,000 gallons perday criteria; the role of the ApprovalAuthority in designating significantindustrial users; expanding thedefinition of significant industrial user

to include notifiers of hazardous wastedischargers; and requiring POTWs toestimate in annual reports whether theamount of hazardous waste receivedduring the last calendar year hasincreased significantly and whether anychange has affected operations at thePOTW.

b. Response to comments. The Agencyreceived many comments on theproposed rule which were submitted byStates, local POTWs, environmentalgroups and private industry. Themajority of the commenters generallyfavored the rule, although manysuggested modifications. Somecommenters were of the opinion thatthere should not be any regulatorydefinition for significant industrial user.As explained above and in the preambleto the proposed rule, the purpose behindthe proposed definition is to providenational consistency and programenforceability, as well as to providenotice of what constitutes a well-structured pretreatment program and toensure equity in programimplementation. It is EPA's belief thatthis definition is necessary since severalparts of today's rule imposerequirements applicable only tosignificant industrial users.

i. Role of the approval authority inidentifying significant industrial users.The largest number of comments .received on the proposed definitionaddressed the procedures for listing ordelisting industrial users and the rolewhich the Approval Authority wouldplay in this process. All commentersseemed to agree that the POTW shouldbe allowed to add or delete certainindustrial users from the significantindustrial user list, but there wasdisagreement on whether and underwhat circumstances to require theagreement of the Approval Authority inthis process. Two comments fromPOTWs stated that there should not bea requirement to seek prior consent fromthe Approval Authority to delete or addan industrial user from the list ofsignificant industrial users because theApproval Authority can review thesechanges in the POTW's annualpretreatment report and during otheroversight functions. Another commenterstated that the Approval Authority isnot in a position to evaluate adischarger's potential to adversely affecta POTW's operation. It was stated thatthe Approval Authority must rely on therecommendation and data supplied bythe Control Authority in designatingsignificant industrial users and thatrequiring the agreement of the ApprovalAuthority would create an unnecessarybureaucratic step which would lead to

delays. It was recommended that theControl Authority be allowed to simplynotify the Approval Authority of itsintent not to include, or remove, anindustrial user from the list and to havethat decision stand unless the ControlAuthority was in violation of its NPDESpermit requirements.

Some of the commenters, on the otherhand, favored a strong role for theApproval Authority in designating theuniverse of significant industrial users.One commenter believed that thepolitical influence often exercised bysignificant industrial users wassufficient to require a strong oversightpresence by the Approval Authority. Itwas stated that the independentevaluation of the Approval Authoritywas necessary as an important check onthe POTW's exercise of its discretion,especially in cases where there might bepressure exerted by the industry to beremoved from the list of significantindustrial users (and the subsequentregulatory requirements for suchindustrial users). In addition, it wasstated that if the Control Authority failsto place a significant industrial user onthe list, the Approval Authority shouldhave the power to require the listing ofthat industrial user.

The Agency does not agree thatadequate oversight can be achievedthrough a simple review of the POTW'sannual pretreatment report or throughother routine compliance monitoringactivities on the part of the ApprovalAuthority The Agency believes thatnotification should be required to makethe Approval Authority aware of anychanges to the approved program.Prompt notification is necessary forproper oversight of approved programsand to ensure proper enforcement ofprogram requirements. The ApprovalAuthority has the obligation to evaluatecompliance, and therefore needs to bemade aware of any changes to the scopeof the program as soon as possible,rather than in an annual report. Forexample, the Approval Authority needsto know if the numbers of industrialusers subject to permitting, monitoring,and reporting are undergoing asignificant change. If the ApprovalAuthority is not made aware of thesechanges, tracking programimplementation would becomeextremely difficult. In addition, if theApproval Authority does not have theopportunity to object to unjustifieddesignations or de-designations ofsignificant industrial users, then theControl Authority might be subsequentlyliable to enforcement action from theApproval Authority.

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There was also some stated confusionregarding at what point ApprovalAuthority consent would be necessary,including whether the POTW should usethe procedures for non-substantialprogram modifications promulgated in40 CFR 403.18(b)(2). One commenterbelieved that the rule should explicitlystate that listing and delisting of SIUsconstitutes a minor programmodification.

To address these concerns and avoidpossible confusion, the Agency hasmodified the language of the proposalconcerning consent of the ApprovalAuthority. Today's rule adds a newprovision, 40 CFR 403.8(f)(6), whichrequires the POTW to prepare a list ofits significant industrial users. The listshall identify the criteria for significanceapplicable to each industrial user. Fornon-categorical users meeting thecriteria for significance, the list shallindicate whether the POTW has made adetermination that such industrial userhas no reasonable potential foradversely affecting the POTW'soperation or for violating anypretreatment standard or requirement.This list, and any subsequentmodifications thereto, shall besubmitted to the Approval Authority asa minor program modification pursuantto 40 CFR 403.18(b)(2). EPA believes thatthis language gives clearer notice toPOTWs of their responsibilities and ofthe role of the Approval Authority inapproving significant industrial user listsand subsequent modifications. 40 CFR403.8(f)(6) replaces the proposedrevisions to 40 CFR 403.12(i)(1) thatwould have required updating lists ofsignificant industrial users in POTWannual reports and an explanation ofwhy certain noncategorical users werenot designated as significant. Today'srule requires that any modifications tothe list of significant industrial users besubmitted to the Approval Authority asa minor program modification. Sincemodifications to the list will normallytake place at a minimum of once a yearin most pretreatment cities, the Agencybelieves that requiring an update ofsignificant industrial users in the annualreport is not necessary. EPA notes that40 CFR 12(i)((4) provides that the annualreports shall contain "any other relevantinformation requested by the ApprovalAuthority". Approval Authorities maytherefore request additional informationor more frequent updating of a particularPOTW's significant industrial user list ifthey believe it appropriate.

Today's rule also makes a conformingchange to proposed 40 CFR403.8(f)[2)(iii) to provide that within 30days of approval pursuant to 40 CFR

403.8(f)(6) of a list of significantindustrial users, the POTW must notifyeach significant industrial user of itsstatus as such and of all pretreatmentrequirements applicable to it as a resultof such status.

ii. Use of flow in determiningsignificance. The use of the 25,000 gallonper day flow criterion receivedconsiderable comment from States,POTWs, environmental groups, andprivate industry. In general, thecommenters were of the opinion that the25,000 gallon per day criterion waseither too low or that no flow criterionshould be included in the definition atall. One commenter believed that theflow criterion served no purposebecause the proposed definition allowsthe Control Authority to fail to designateor to delete these industrial userswithout the consent of the ApprovalAuthority. Another commenter statedthat relative, not absolute size isimportant in determining significanceand that size is adequately covered inthe 5 percent criterion in the existingdefinition. One POTW suggested that atwo-tiered approach be used withPOTWs with less than 5 million gallonsper day design flow using 25,000 gallonsper day and POTWs with a design flowgreater than 5 million gallons per dayusing 50,000 gallons per day.

The major purpose of definingsignificant industrial user is to provide ameans by which EPA can set prioritiesin its general pretreatment standardsand Control Authorities can setpriorities for permitting, monitoring andenforcement. The Agency believes thatthe flow criterion can be used as ascreen by the POTW to set priorities forpermit applications in their initialevaluation of industrial users, and forupdating the significant industrial userlist annually. The 25,000 gallon per daymeasure will provide a general cutoffpoint for consideration in determiningwhether a facility should be targeted forcompliance monitoring and enforcementactivities. Under 40 CFR 403.8(a), theRegional Administrator or Director may,at his discretion, require that a POTWwith a design flow of 5 million gallonsper day or less develop a pretreatmentprogram in order to prevent passthrough or interference. The smallestPOTWs generally required by theRegional Administrator or Director tohave a pretreatment program under thediscretionary authority of 40 CFR403.8(a) have a design flow of 500,000gallons per day. EPA chose 25,000gallons per day as a flow criterion forsignificant industrial users in partbecause that figure represents fivepercent of the flow of the smallest

POTWs required to have a pretreatmentprogram. The Agency believes that a50,000 gallons per day criterion wouldnot capture many non-categoricalsignificant industrial users with apotential to adversely dffect smallerPOTWe. POTWs may, in theirdiscretion, and subject only to review bythe Approval Authority as a minormodification, delete any or all of thefacilities which were placed on thesignificant industrial user list basedsolely on flow. EPA does not wish tooverrule POTWs on a routine basiswhen it comes to the designation ofindustrial users as significant. Thepurpose of the notification requirementis to provide the Approval Authoritywith information necessary to preventthe deletion of significant industrialusers by POTWs without justification. Itis EPA's position that this notification isnecessary for proper and appropriateoversight of program implementation.

One commenter believed that the newregulatory definition would impose anincreased paperwork and administrativeburden on the POTW. The proposeddefinition of significant industrial user isclosely related to the recommendeddefinition provided in the 1986"Pretreatment Compliance Monitoringand Enforcement Guidance," and assuch, has been available to POTWs forover three years. Many ControlAuthorities have already adopted thedefinition found in the Guidance. EPAbelieves that most Control Authoritiesare familiar with the definition and havealready incorporated it in theirimplementation activities.

iii. Other. The Agency also solicitedcomment on whether to allow deletionof categorical users from the list ofsignificant industrial users. A majorityof the commenters favored a procedurefor deleting categorical industrial usersfrom the lists, but one ApprovalAuthority stated its strong objection toany procedure for deregulatingcategorical industrial users. There was asuggestion that a de minimis limit of1000 gallons per day could be used fordelisting categorical industrial usersfrom the list of SILUs. Anothercommenter suggested that only theApproval Authority should be allowedto delete a categorical industrial userfrom the list of SlIUs.

After reviewing these comments, EPAis not persuaded that a POTW should beable to delete categorical industrialusers which, in the opinion of thePOTW, have no reasonable potential toadversely affect the operation of thePOTW. In the development ofcategorical standards, EPA made adetermination that these standards were

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Federal Register / Vol. 55, No. 142 / Tuesday, July 24. 1990 / Rules and Regulations

necessary in the case of certainindustries to prevent pass through andinterference. Based on thisdetermination, the Agency promulgatedstandards which restrict the dischargeof pollutants by these industries. It istherefore important that the complianceof these industries with categoricalstandards be assured. Therefore, today'srule does not allow categoricalindustrial users to be deleted from thelist of significant industrial users.

Some commenters expressed concernover the burden required to prove thatan industrial user had "no potential" toadversely affect the operation of thePOTW. It was suggested that EPAprovide guidance regarding this issue ifthe current language is maintained inthe final rule. In the 1986 "PretreatmentCompliance Monitoring andEnforcement Guidance," the Agencystated that the Control Authority mayremove any noncategorical industrialuser from the SIU list if it has "noreasonable potential" to violate anypretreatment standards. Under today'srule, the Control Authority may removean industrial user (subject to the consentof the Approval Authority) based onwhether it has a reasonable potential toadversely affect the operation of thePOTW or to violate any pretreatmentstandard or requirement Thedetermination of reasonable potentialshould be based on the best professionaljudgment of the POTW and should takeinto account the compliance history ofthe facility, the nature and character ofthe effluent, and the flow of the facility.

One commenter from a StateApproval Authority stated that theproposed definition lacks sufficientobjective criteria for determiningsignificance. It was suggested thatobjective criteria are needed regardingpotential impact of an industrial user interms of the design capacity of thetreatment works. In relation to this,another commenter noted that the 1986Guidance provides that a facility"contributfing] a process wastewaterwhich makes up 5 percent or more of theaverage dry weather hydraulic ororganic capacity of the treatment plant"would be considered significant. Thiscommenter suggested that the final ruleshould conform to the Guidancedefinition. EPA agrees that facilitiescontributing 5 per cent or more of theaverage organic capacity of thetreatment plant may have significantpotential to adversely affect the POTW,since large concentrations ofBiochemical Oxygen Demand (BOD) orTotal Suspended Solids (TSS) couldimpair the biological capacity of theplant to treat all incoming wastes. The

final rule will therefore incorporateorganic capacity as part of theregulatory definition.

One industry commenter objected tothe proposed definition of significantindustrial user on the grounds that itcreated additional reporting andmonitoring requirements for categoricalindustrial users. However, today's ruleplaces no additional reporting ormonitoring requirements on categoricalsignificant industrial users.

A final issue raised by the proposedrule was whether to expand thedefinition of significant industrial userto include notifiers of hazardous wastedischarges under proposed 40 CFR403.12(p). There was almost unanimousopposition to this proposal from thecommenters. In light of this oppositionand upon reviewing this issue, it isEPA's position that notifiers ofhazardous waste discharges should notbe automatically considered significant.industrial users for purposes ofpretreatment, since the discharge ofsmall amounts of hazardous waste donot necessarily have the potential toadversely affect the POTW. The POTW,of course, may designate such facilitiesas significant if a particular facility hasthe potential to cause interference, pass-through, or sludge contamination at thePOTW, or pursuant to state or local law.

c. Today's rule. Under today's rule, asignificant industrial user is: (1) Anydischarger subject to categoricalpretreatment standards: (2) any otherindustrial user that discharges anaverage of 25,000 gallons per day ormore of process wastewater (excludingsanitary, noncontact cooling and boilerblowdown wastewaters) to the POTWor that contributes a processwastestream which makes up 5 percentor more of the average dry weatherhydraulic or organic capacity of thePOTW treatment plant; or (3) that isdesignated as such by the ControlAuthority on the basis that the industrialuser has a reasonable for adverselyaffecting the POTW's operation or forviolating any pretreatment standard orrequirement. Upon a finding that anoncategorical user has no reasonablepotential for adversely affecting thePOTW's operation or for violating anypretreatment standard or requirement,the Control Authority may at any time,upon its own initiative or in response toa petition received from anoncategorical industrial user or POTWand with the consent of the ApprovalAuthority, determine that such industrialuser is not a significant industrial user.Today's rule also requires POTWs toprepare a list of their significantindustrial users, identify the criteria

applicable to such users, and indicatewhether the POTW has made adetermination that any noncategoricaluser meeting the criteria in 40 CFR403.3(t)(1)[ii) should not be a significantindustrial user. This list, and anysubsequent modifications thereto, shallbe submitted to the Approval Authorityas a minor program modificationpursuant to 40 CFR 403.18(b)(2). Within30 days of approval of the list, thePOTW shall notify each significantindustrial user of its status as such andof all pretreatment requirementsapplicable to it as a result of such status.

4. Enforcement Response Plans forPOTWs (40 CFR 403.8[f)(5))

a. Proposed change. The existinggeneral pretreatment regulations do notspecify detailed enforcementrequirements applicable to POTWs withapproved pretreatment programs.Specific enforcement sanctionsidentified in the general pretreatmentregulations are the requirement toannually publish the names ofsignificant violators in the largest dailynewspaper, and the requirement thatPOTWs have authority to seek or assessminimum civil or criminal penalties of$1000 per day. The existing regulationsrequire POTW program submissions toidentify how the POTW intends toensure compliance, and also requirePOTWs to enforce all pretreatmentstandards and'requirements and obtainremedies for noncompliance (40 CFR403.8(f)(1). However, POTWs are notfurther informed what their legalresponsibilities are in carrying outenforcement actions.

In the 1986 "Pretreatment ComplianceMonitoring and Enforcement Guidance",the Agency encouraged each POTW todevelop an Enforcement ResponseGuide, which is a set of proceduresdescribing how the POTW willinvestigate industrial user violationsand which corrective or enforcementactions the POTW will take to respondto such violations (the Guidancesuggested certain procedures). In orderto ensure that POTWs develop andimplement specific enforcementprocedures, EPA proposed on November23, 1988 to add 40 CFR 403.8(f)(5) torequire all POTWs with approvedpretreatment programs to develop andimplement an enforcement responseplan describing how the POTW willinvestigate and respond to instances ofindustrial user noncompliance, includingtime frames within which the responseswill take place.

The Agency believes that the processof developing these plans will be veryvaluable in helping POTWs decide what

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resources are needed to enforce theirpretreatment standards and how theywill actually deal with industrial userviolations. Such plans will also make iteasier for EPA to determine whether aPOTW is complying with itspretreatment implementationrequirements for enforcement. The rulewill not interfere with the ability of thePOTW to carry out their programs in amanner suited to their needs, nor shouldsuch a plan be difficult to develop. ThePOTW should use the 1986 Guidance,EPA's recently issued Guidance forDeveloping ControlAuthority ResponsePlans (September 1989) and its ownexpertise to develop a reasonable planto address and remedy noncompliance.The Agency solicited comments onwhether to include more specificelements in the regulation.

b. Response to comments. EPAreceived many comments on theproposed rule. Comments weresubmitted by States, POTWs, privateindustry and environmental groups. Thecommenters were generally evenlydivided with regard to favoring oropposing the proposed rule. Severalcommenters were of the opinion thatthere should not be any regulatoryrequirement to develop enforcementresponse plans and that any suchprovision should be developed asguidance only.

EPA believes that enforcementresponse plans will help POTWs decidewhat resources are needed to enforcetheir pretreatment standards and assistin dealing with industrial userviolations. In addition, a clearly definedenforcement response plan will providenotice to industrial users of what toexpect if they violate any pretreatmentrequirement. By alerting industrial usersto the possible response they may facein the event of noncompliance, theControl Authority will demonstrate thatit is serious about its complianceexpectations and is ready to respond toviolations with firm measures. This,heightened awareness by industrialusers should improve their compliancestatus. Therefore, the Agency is of theopinion that it is appropriate to definethese enforcement response plans in theregulation. For this reason, the Agencyis today requiring all POTWs withpretreatment programs to develop andimplement enforcement response plans.

The majority of the comments againstthe rule claimed that the proceduresoutlined in the proposed rule wouldprevent the POTW from exercising itsenforcement discretion by locking thePOTW into a cookbook approach toaddressing violations. One commenterfrom private industry believed that the

rule would force the POTW to addressall instances of noncompliance withequal vigor, regardless of the magnitudeof the violation. A POTW commentedthat rigid enforcement response planrequirements could result in lessvigorous POTW pretreatment programimplementation. Another POTW statedthat establishing standardized nationalelements for the enforcement responseplans would remove necessaryflexibility in program implementation. Athird commenter believed that thecurrent rule would inhibit innovativemeans of enforcement. In general, thesecommenters believed that the rulewould hinder rather than help thePOTW in its efforts to promoteindustrial user compliance.

An effective enforcement responseplan should provide that similarviolations will be dealt with in a similarmanner, and that more seriousviolations will be addressed with morestringent enforcement responses.Therefore, it is incorrect to think that theenforcement response plans willaddress all instances of noncompliancewith equal vigor. With regard to theissue of flexibility, the Agencyunderstands that enforcement strategieswill be different from jurisdiction tojurisdiction and that the responsesselected by each Control Authority willdepend on their legal authority and localcircumstances. EPA is defining theprinciples for enforcement in theregulation, but it is up to the localControl Authority to decide how toincorporate these principles into afunctional enforcement strategy, takinginto account local circumstances. TheAgency does not believe that the use ofsuch plans precludes innovativeenforcement strategies.-Even those commenters who favored

the rule were concerned that EPAprovide enough flexibility to the POTWto decide the details of responseprocedures appropriate for a particularsituation. One commenter believed thatthe rule as written provided enoughflexibility to accommodate thedifferences in the enforcement processfor each community. Most commenters,however, felt that requiring thespecification of time frames within therule itself would place an unreasonablerestraint on the POTW's enforcementdiscretion. Another commenter statedthat time frames necessarily vary fromcase to case.

Enforcement is the necessary drivingforce that makes environmental lawswork. One of the foundations ofeffective enforcement is the timelyresponse upon discovery of a violation.The Agency is not persuaded by the

argument that requiring the developmentof time frames in the regulation willplace an unreasonable restraint on thePOTW's enforcement discretion. Theactual time frames to be incorporatedinto the enforcement response plan arebeing left to the discretion of the POTW(with the agreement of the ApprovalAuthority). EPA understands andappreciates the need for local flexibilityin determining appropriate responses,but the Agency believes that requiringthe establishment of time frames is anappropriate condition for effectiveenforcement. The Agency emphasizesthat both the proposal and today's rulewould not require the same time framesfor different types of industrial usernoncompliance.

Many of the POTWs that commentedstated concern that this rule wouldmake them easier targets for EPAenforcement action. One POTWasserted that the rule was an attempt byEPA to fit local programs into thefederal mold and to Improve EPA'senforcement capabilities againstPOTWs. It was thought that a moreappropriate requirement would be tomake these enforcement response plansa permit requirement for POTWs withinterference or pass through problemsdue to inadequate enforcement.

One of the legitimate purposes of thisrequirement is to provide EPA with ameans to evaluate programimplementation by the ControlAuthority. The present generalpretreatment regulations already requirePOTWs to ensure compliance byindustrial users with all pretreatmentstandards and requirements. Today'srevision to the regulations serves tomake this requirement more explicit.One of the difficulties in implementingand enforcing pretreatment programs forPOTWs has stemmed from a lack ofclearly defined policies and procedures.The process of developing enforcementresponse plans will compel the POTWto lay out its enforcement rationale andwill therefore serve to minimize oreliminate the uncertainties concerningenforcement. The Agency is requiringthat POTWs lay out a clearly definedstrategy to be used in addressingviolations. One of the benefits of suchan approach is that when the ControlAuthority discovers that its localenforcement authority has beeninsufficient to return a recalcitrantindustrial user to compliance, theControl Authority may wish to reportthat situation to the Approval Authorityas a possible candidate for jointenforcement action. This partnershipbetween the local Control Authority andthe Approval Authority is an anticipated

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consequence of this requirement. Toprovide the Approval Authority withknowledge of who is responsible for thevarious levels of response, the Agency istoday adding a new provision (40 CFR403.8(f)(5)(iii). requiring the POTW toidentify in enforcement response plansthe official(s) responsible forimplementing each type of enforcementresponse.

One commenter was uncertainwhether the requirement for thedevelopment of enforcement responseplans would apply to POTWs thatalready have approved programs. It isthe Agency's intent that all ControlAuthorities, including those withexisting approved programs, developand implement the requirement of thisrule. Therefore, all POTWs withapproved programs and those POTWsrequired to develop a program under 40CFR 403.8(a) will be required to developan enforcement response plan. Thiscommenter also suggested that a,compliance date be established for thedevelopment of these plans. Althoughthe Agency does not agree that auniform compliance date need bespecified in the regulation, EPA pointsout that all enforcement response plans(as well as other program changesrequired by today's rule) must beincluded in the POTW's NPDES permitupon reissuance.

c. Today's rule. Today's rule providesthat POTWs with approved programsmust develop and implement anenforcement response plan. This planshall contain detailed proceduresindicating how a POTW will investigateand respond to instances of industrialuser noncompliance and shall, at aminimum:

(1) Describe how the POTW willinvestigate instances of noncompliance;

(2) Describe the types of escalatingenforcement responses the POTW willtake in response to all anticipated typesof industrial user violations and the timeperiods within which responses willtake place;

(3) Identify by title the official(s)responsible for implementing each typeof enforcement response; and

(4) Adequately reflect the POTW'sprimary responsibility to enforce allapplicable pretreatment requirementsand standards, as provided in 40 CFR403.8(f) (1) and (2).

5. Definition of SignificantNoncompliance (40 CFR 403.8{f)(2)(vii))

a. Proposed change. The existingregulations (40 CFR 403.8(f)(2)(vii))require Control Authorities to publish, inthe daily newspaper with the largestcirculation in the service community, alist of industrial users which had

significant violations of applicablepretreatment standards andrequirements during the previous twelvemonths. This list must be published atleast once per year. "Significantviolation" is defined as a violationwhich remains uncorrected 45 days afternotification of noncompliance; which ispart of a pattern of noncompliance overa twelve month period; which involves afailure to accurately reportnoncompliance; or which resulted in thePOTW exercising its emergencyauthority under 40 CFR 403.8(f)(1)(vi)(B).

This definition includes criteriasimilar to those previously used byQuarterly Noncompliance Reports(QNCRs) for direct dischargers. TheAgency uses QNCRs to track theprogress and measure the effectivenessof NPDES compliance and authorizedstate enforcement against directdischargers. However, in 1985 EPArevised the criteria for the types ofviolations to be reported in QNCRs (see40 CFR Part 123.45]. The revisionsestablished more precise criteria, knownas technical review criteria (TRC), to beused for reporting certain permitviolations. The TRC are based on themagnitude and/or duration of theviolations and provide a means toquantify severity of violations forreporting of direct dischargernoncompliance.

In the 1986 Pretreatment ComplianceMonitoring and Enforcement Guidance,the Agency included a detailedrecommended definition of significantnoncompliance by industrial userswhich incorporated the essence of thenew criteria used in determining theviolations required to be reported in theQNCR. In the Guidance, EPArecommended the national use of thisdefinition to identify the most seriousviolations by industrial users and to setpriorities for enforcement actions.

Experience with the-current regulatorydefinition of significant violation hasshown that POTWs vary considerablyin their application of this definitionwhen selecting which names of violatorsto publish in the local newspaper. Thisis particularly true in deciding whatconstitutes a "pattern ofnoncompliance" under 40 CFR403.8(f)(2)(vii). To eliminate theseinconsistencies and to establish moreparity in tracking violations committedby direct and indirect dischargers, theAgency proposed on November 23,1988to revise 40 CFR 403.8[f)2)(vii) toreplace the definition of significantviolation with a new definition whichessentially incorporates the criteria usedin determining direct dischargeviolations to be reported on the QNCR.Under the proposal, an industrial user

would be in significant violation if Itsviolations met one or more of thefollowing criteria:

* Chronic violations of wastewaterdischarge limits, defined as those inwhich sixty-six percent or more of all ofthe measurements taken during a six-month period exceed (by anymagnitude) the daily maximum" limit orthe average limit for the same pollutantparameter,

* Technical review criteria (TRC)violations, defined as those in whichthirty-three percent or more of all of themeasurements taken during a six-monthperiod equal or exceed the product ofthe daily average maximum limit or theaverage limit times the applicable TRC(TRC = 1.4 for BOD, TSS, fats, oil. andgrease, and 1.2 for all other pollutantsexcept pH);

* Any other violation of apretreatment effluent limit (dailymaximum or longer-term average) thatthe Control Authority believes hascaused, alone or in combination withother discharges, interference or passthrough (including endangering thehealth of POTW personnel or thegeneral public);

- Any discharge of a pollutant thathas caused imminent endangerment tohuman health, welfare or to theenvironment and has resulted in thePOTW's exercise of its emergencyauthority under paragraph {f)(1)(vi}{B) ofthis section to halt or prevent such adischarge;

* Violation, by ninety days or more,after the schedule date, of a complianceschedule milestone contained in a localcontrol mechanism or enforcementorder, for starting construction,completing construction, or attainingfinal compliance;

* Failure to provide required reportssuch as baseline monitoring reports, 90-day compliance reports, periodic self-monitoring reports, and reports oncompliance with compliance scheduleswithin thirty days of the due date;

* Failure to accurately reportnoncompliance; or

e Any other violation or group ofviolations which the Control Authorityconsiders to be significant.

The Agency believes that this newdefinition will provide POTWs withmore precise instructions regardingwhich industrial users in violation ofpretreatment standards should havetheir names published in localnewspapers.

EPA solicited comments on theappropriateness of the definitioncriteria, but emphasized that industrialusers would continue to be liable for

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any violation of applicable pretreatmentrequirements.

. b. Response to comments. EPAreceived many comments on theproposed rule from States, POTWs,environmental groups, and privateindustry. The commenters weregenerally evenly divided with regard tofavoring or opposing the proposed rule.

By far the greatest number ofcomments addressed the fact that underthe proposed definition of significantviolation, an industrial user could beconsidered a significant violator basedon a single sampling event. This meansthat if the industrial user performs theminimally acceptable level ofmonitoring (generally twice per year)and detects a violation, then thatindustrial user, by definition, would beconsidered a significant violator. Therewas a recommendation from severalcommenters to lengthen the evaluationperiod for the criteria for chronicviolations of wastewater dischargelimits and technical review criteriaviolations from six months to twelvemonths to allow for the accumulation ofmore data. Alternatively, onecommenter suggested that EPA shouldspecify a minimum number of samplesfor the determination of what is asignificant violation.

In response, EPA points out that thegeneral pretreatment regulations specifyonly the minimum monitoring andreporting requirements for implementingthe pretreatment program. Although it Istrue that an industrial user can beclassified as a significant violator basedon data from a single sampling event, anindustrial user may increase itssampling frequency to lessen the chancethat, for chronic or TRC violations,significant noncompliance will be basedon only one sampling event. In addition,it should be noted that 40 CFR403.12(g){2) provides that if samplingperformed by a categorical industrialuser indicates a violation, the user shallrepeat the sampling and analysis andsubmit the results of the repeat analysisto the Control Authority within 30 daysafter becoming aware of the violation.

Three commenters were of the opinionthat the technical review criteria (TRC)were too low and that a more realisticand appropriate level for the TRC wouldbe 2.0 for conventional pollutants and1.5 for all other pollutants. Onecommenter suggested eliminating thiscomponent of the definition altogether.Another commenter suggested that theTRC be separately calculated for eachpollutant by incorporating the removalefficiencies at the treatment works. APOTW commented that the TRC criteriashould have language which specifies

that the TRC applies for "each pollutantparameter."

One of the reasons for thedevelopment of the significant violatorcriteria was to promote parity betweenthe tracking of violations for direct andindirect dischargers. 40 CFR 123.45(a](2]establishes criteria for determiningsignificant violations for directdischargers. In the 1986 Guidance, theAgency recommended adopting thesesame criteria for evaluating significantnoncompliance for indirect dischargers.The reportability criteria for theQuarterly Noncompliance Report(QNCR) uses TRC values of 1.2 and 1.4.Therefore, EPA proposed to adopt these.same criteria in the regulatory definitionof significant violation in thepretreatment program. The Agency doesnot believe that basing TRC values onthe removal efficiencies at the POTW Isa viable means to define significantviolations, since it would involvecalculations by each POTW on itsremoval efficiencies for manypollutants. EPA does agree, however,that the language in the TRC would beclearer if it specified for "each pollutantparameter," and has accordinglyincluded such language in today's finalrule.

Three commenters believed thatcriterion "C" of the proposed definitionwould promote arbitrary andinconsistent implementation of thedefinition and should be eliminated. Aseparate commenter stated that thiscriterion was inappropriate because thedetermination of a significant violationshould be based-on actual fact and not a"belier' that a discharge has causedinterference or pass-through. Thiscommenter recommended that wechange the wording of this criterion to"has reason to believe." There was arelated concern from private industrythat the definition, as proposed, wouldallow for arbitrary or indiscriminateenforcement without providing foradequate or meaningful legal recourseon the part of the industrial user deemedto be in significant violation ofpretreatment requirements. It was statedthat certain of the criteria weresufficiently vague as to penalizedischargers without adequate warningand without any opportunity for appeal.

EPA recognizes the need to baseallegations of violation on informationand not on simple belief. Today's finaldefinition therefore incorporates thephrase "which the Control Authoritydetermines has caused, alone or incombination with other discharges,interference or pass through * *"instead of the language in the proposeddefinition. For the same reason, the

Agency has also incorporated thephrase "which the Control Authoritydetermines will adversely affect theoperation or implementation of the localpretreatmentprogram" in the lastcriterion for significant violation,instead of "which the Control Authorityconsiders to be significant", as wasproposed. The Control Authority'sdetermination may include a technicalanalysis documenting interference or

-pass through or other appropriateevidence which it deems sufficient. EPAbelieves that the above changesdecrease the chance of arbitraryjudgments by Control Authorities.

One commenter stated that anaffirmative defense should be explicitlyincluded in the definition of significantnoncompliance. However, EPA does notbelieve that POTWs should be burdenedwith ascertaining which industrial usersmay be eligible for an affirmativedefense under 40 CFR 403.5(a)(2) beforesatisfying the publication requirement in40 CFR 403.8{f(2)(vii). Incorporating thecommenter's suggestion into the rulecould lead to protracted andcounterproductive efforts by POTWs ifthey had to investigate the eligibility ofan industrial user for an affirmativedefense prior to publication. In addition,where the eligibility for an affirmativedefense is unclear, this requirementwould leave POTWs uncertain abouttheir obligations under 40 CFR403.8(f(2)(vii). Since the listing of anindustrial user in the newspaper doesnot involve an administrative penalty orjudicial action, eligibility for anaffirmative defense is unaffected bysuch a listing, and such eligibility will bedetermined during administrativepenalty or judicial enforcementproceedings. Accordingly, today's ruledoes notprovide for the consideration ofeligibility for an affirmative defense indetermining whether an industrial useris in significant noncompliance.

In response to the comment that theindustrial user is not provided withadequate or meaningful legal recourse,EPA believes that Control Authoritieswill not arbitrarily list industrial usersas being in significant violation ofpretreatment requirements. The ControlAuthority is most likely to base thisdecision on a reasoned professionaljudgment in cases where there isdiscretion provided to the POTW.

Three commenters stated that thePOTW should develop its own criteriafor what is considered significantbecause it was believed that the POTWis in the best position to determine whatviolations cause the greatest damage tothe treatment works. These commenterssuggested that EPA provide support by

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Federal Register / Vol. -55, No. 142 / Tuesday, July 24, 1990 / Rules and Regulations

maintaining its current criteria inguidance. One commenter wasconcerned that the Agency be verycareful not to foster activities whichmight inhibit relations. between thePOTW and its industrial users. If thePOTW then fails to follow its criteria, itwould be liable to enforce action by theApproval Authority. In response, EPApoints out that both the proposal and.today's rule allow POTWs discretion tolist any violations they considersignificant. Today's rule establishes onlyminimum requirements, and should notaffect relations between POTWs andtheir industrial users.

One commenter requestedclarification regarding whether proposedcriterion G, "failure to accurately reportnoncompliance", included only willfulfailures or any failures to report.

The general pretreatment regulationsspecify the signatory requirements forreports submitted by industrial users tothe Control Authority. This requirementis designed to provide accountability onthe part of the industrial user for thecontents of any report, includingrequired reports of noncompliance. Insigning the report, the person so signinghas confirmed that the report iscomplete and accurate in all respects.Any failure to report accurately issufficient justification to list theIndustrial user as a significant violator.

As noted above, the Agency's 1986guidance on this subject referred to"significant noncompliance" rather than"significant violation" (the term used inthe November 23,1988 proposal). Sincethat time EPA has directed ControlAuthorities and Approval Authorities touse the "significant noncompliance"criteria n determining appropriateresponses to industrial userpretreatment violations. This term hasbeen employed in EPA workshops andseminars and is also used as a basis fortracking industrial user noncompliancein the Pretreatment Permits EnforcementTracking Systems (PPETs), a computersystem which assists the Agency inoverseeing pretreatment programimplementation. For the sake of programconsistency, today's regulation thereforerefers to "significant noncompliance".

c. Today's rule. Today's rule providesthat an industrial user is in significantnoncompliance if its violations meet oneor more of the following criteria:

9 Chronic violations of wastewaterdischarge limits, defined as those inwhich sixty-six percent or more of all ofthe measurements taken during a six-month period exceed (by anymagnitude) the daily maximum limit orthe average limit for the same pollutantparameter,

* Technical review criteria (TRC)violations, defined as those in whichthirty-three percent or more of all of themeasurements for each pollutantparameter taken during a six-monthperiod equal or exceed the product ofthe dailyaverage maximum limit or theaverage limit times the applicable TRC(TRC = 1.4 for BOD, TSS, fats, oil, andgrease, and 1.2 for all other pollutantsexcept pH);

* Any other violation of apretreatment effluent limit (dailymaximum or longer-term average) thatthe Control Authority determines hascaused, alone or in combination withother discharges, interference or passthrough (including endangering thehealth of POTW personnel or thegeneral public);

* Any discharge of a pollutant thathas caused imminent endangerment tohuman health, welfare or to theenvironment or has resulted in thePOTW's exercise of its emergencyauthority under paragraph (f)(1)(vi)(B) ofthis section to halt or prevent such adischarge;

. Failure to meet, within 90 days afterthe scheduled date, a complianceschedule milestone contained in a localcontrol mechanism or enforcementorder, for starting construction,completing construction, or attainingfinal compliance;

* Failure to provide, within 30 daysafter the due date, required reports suchas baseline monitoring reports, 90-daycompliance reports, periodic self-monitoring reports, and reports oncompliance with compliance schedules;

* Failure to accurately reportnoncompliance; or

o Any other violation or group ofviolations which the Control Authoritydetermines will adversely affect theoperation or implementation of the localpretreatment program.

6. Reporting Requirements forSignificant Industrial Users (40 CFR403.12(h))

a. Proposed rule. 40 CFR 403.12describes the reports that industrialusers must submit to their ControlAuthorities. To demonstrate continuedcompliance with pretreatmentstandards, industrial users subject tocategorical standards must submit semi-annual reports that include effluentmonitoring data taken during thereporting period, as provided in 40 CFR403.12(e). The existing regulationsprovide that Control Authorities mustrequire appropriate reporting from thoseindustrial users with discharges notsubject to categorical standards.However, the regulations do not specifya minimum frequency for reporting by

noncategorical industrial users to theControl Authority regarding theircompliance with applicablepretreatment requirements.

To provide for more effectiveimplementation of the existingrequirements and to ensure that thisreporting is carried out regularly, EPAproposed on November 23, 1988 torevise 40 CFR 403.12(h) to require thatall significant industrial users (asdefined under proposed 40 CFR 403.3(u))submit to their Control Authorities, atleast twice ayear, a description of thenature, concentration, and flow ofpollutants selected for such reporting bythe Control Authority. In addition, theproposal would require all significantindustrial users to base their reports ondata obtained through appropriatesampling and analysis performed duringthe period covered by the report.Control Authorities may require morefrequent monitoring as appropriate.

The Agency solicited comments onthe proposed twice-yearly reportingfrequency, on limiting the reportingrequirements to significant industrialusers, and on whether to requiresignificant industrial users to sample forcertain compounds, such as the RCRAappendix VIII hazardous constituents.

b. Response to comments. The Agencyreceived many comments on theproposed rule from States, POTWs,environmental groups, and industry. Amajority of the commenters favored theproposal to require significant industrialusers to report with the same frequencyas categorical industrial users.

A few of the commenters expressedconcern that the rule would requireduplicative reporting for categoricalindustrial users. The assumption wasthat this provision would requirecategorical industrial users to reportmore often than is currently required.This was not EPA's intent in theproposal, as indicated by the title ofproposed 40 CFR 403.12(h)-"ReportingRequirements for Industrial Users NotSubject to Categorical Standards".Today's rule clarifies this intent byreferring in 40 CFR 403.12(h) to"significant noncategorical industrialusers."

A few other commenters stated thatthe current reporting requirements under40 CFR 403.12(h) were sufficient andallowed for necessary flexibility inestablishing reporting requirements fornon-categorical industrial users. Therewas a concern that the current proposalwould restrict that flexibility. Thesecommenters believed that the currentregulation is more suitable in dealingwith the highly variable group ofnoncategorical discharges.

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The Agency believes that thereporting requirements for all significantindustrial users, including categoricaland non-categorical users, shouldgenerally be the same. Sincenoncategorical significant industrialusers are also likely contributors oftoxic and hazardous pollutants toPOTWs, EPA sees no reason for lessfrequent reporting for this group ofdischargers. With respect to POTWflexibility, the Agency emphasizes thattoday's rule establishes only what itbelieves to be the minimum acceptablefrequency for sampling and reporting.POTWs are free to require additionalsampling and reporting as frequently asis necessary for a particular discharger.EPA believes that these requirementswill give POTWs much more accurateknowledge of non-categorical wastesentering their treatment and collectionsystems. This knowledge is particularlyimportant because many toxic andhazardous pollutants are not covered bycategorical standards. EPA also believesthat establishing minimum monitoringfrequencies is the only way to ensurethat the samples submitted to the POTWare representative and up to date. Inorder to help ensure that sampling isconducted once every six monthsinstead of twice in one month (as theproposed rule would technically haveallowed), the Agency is today requiringsampling reports to be submitted "atleast once every six months on datesspecified by the Control Authority",instead of "at least twice a year" as wasproposed.

Two commenters stated a belief thatPOTW monitoring should be specifiedas an acceptable alternative in lieu ofindustrial user monitoring, as iscurrently stated in 40 CFR 403.12tg).Since the intent of the regulation is toprovide parity between categorical andsignificant non-categorical dischargers,EPA has amended 40 CFR 403.12(h) tospecify that POTW monitoring isacceptable in lieu of industrial user self-monitoring.

With respect to requiring significantindustrial users to sample for certaincompounds or classes of compounds(such as RCRA appendix VIII hazardousconstituents), there was almostuniversal opposition to this suggestionfrom the commenters. EPA does notbelieve that monitoring for theseconstituents is necessary on a routinebasis to prevent pass through orinterference. POTWs may require anindustrial user to monitor for any or allof these constituents if appropriate onan individual basis. Therefore, thisrequirement is not part of today's rule.However, EPA has added a requirement

to 40 CFR 403.8(f)(1)(iii) that anypollutants required to be monitoredmust be identified in the individualcontrol mechanism issued to thesignificant industrial user.

c. Today's rule. Today's rule requiresnoncategorical significant industrialusers to submit to the Control Authorityat least once every six months (on datesspecified by the Control Authority) adescription of the nature, concentration,and flow of the pollutants required to bereported by the Control Authority. Thereports shall be based on sampling andanalysis performed in the periodcovered by the report, and, wherepossible, performed in accordance withthe techniques described in 40 CFR part136. The sampling and analysis may beperformed by the Control Authority inlieu of the significant noncategoricalindustrial user.

I. Miscellaneous Amendments

In addition to the substantiveregulatory changes proposed onNovember 23,1988, EPA also proposedto clarify certain of the generalpretreatment regulations. Theseproposed non-substantive revisions arediscussed below.

1. Local Limits Development andEnforcement

a. Proposed change. 40 CFR 403.5(c)provides that POTWs "developing"pretreatment programs must developand enforce specific limits to implementthe general and specific dischargeprohibitions. In order to clarify thatPOTWs with already approvedpretreatment programs must alsodevelop and enforce local limits, EPAproposed to revise 40 CFR 403.5(c) toprovide that POTWs shall continue todevelop and enforce appropriate locallimits after developing an approvedpretreatment program.

b. Response to comments. Nosignificant comments were received onthis proposed revision.

c. Today's rule. Today's rule revises40 CFR 403.5(c)(1) to provide thatPOTWs with approved pretreatmentprograms shall continue afterpretreatment program submission andapproval to develop local limits asnecessary and effectively enforce suchlimits.

2. EPA Enforcement Action

a. Proposed change. 40 CFR 403.5(e)summarizes procedures that EPAfollows to bring certain enforcementactions against an industrial user thathas caused interference or pass throughat a POITW, i.e., give the POTW 30 daysnotice to initiate its own enforcementaction. However, 40 CFR 403.5(e) may be

misleading in not stating that this noticerequirement only applies to federalenforcement under section 309(f) of theAct and not to State or other federalenforcement actions. In order to avoidmisunderstanding, the Agency proposedto revise the title of 40 CFR 403.5(e) toindicate that these notice proceduresonly apply to actions brought undersection 309M1 of the Act.

b. Response to comments. Nosignificant comments were received onthis proposed revision. EPA notes that inaddition to the above-mentioned title,the text of 40 CFR 403.5(e) is alsomisleading in that it refers to NPDESStates in the context of enforcementactions. Since this provision is intendedto apply only to actions brought undersection 309(f) of the Act EPA hasdeleted all references to NPDES Statesfrom 40 CFR 403.5(e).

c. Today's rule. The title of 40 CFR403.5(e) has been changed to read "EPAenforcement actions under section 309(f)of the Clean Water Act", and the text of40 CFR 403.5(e) has been revised todelete all references to NPDES States.

3. National Pretreatment Standards:Categorical Standards

a. Proposed change. 40 CFR 403.6provides that categorical pretreatmentstandards, unless specifically notedotherwise, shall be in addition to thegeneral prohibitions established in 40CFR 403.5. There was an unintentionalomission from this provision of areference to the specific dischargeprohibitions. In order to rectify thisomission, the Agency proposed to revise40 CFR 403.6 to add that nationalpretreatment standards, unlessspecifically noted otherwise, shall be inaddition to all prohibitions and limitsestablished under 40 CFR 403.5(c).

b. Response to comments. Nosignificant comments were received onthis proposed revision. The Agency hasnoted, however, that the proposedmodification could be interpreted asbeing in conflict with requirements inpart 403, other than the general andspecific prohibitions, that apply tocategorical dischargers. Since this wasnot the Agency's intent, EPA is todayclarifying in 40 CFR 403.6 thatcategorical industrial users must complywith all applicable pretreatmentstandards and requirements set forth inpart 403, as well as national categoricalpretreatment standards.

c. Today's rule. Today's rule revises40 CFR 403.6 to provide that categoricalIndustrial users must comply with allapplicable general pretreatmentstandards and requirements set forth in40 CFR part 403.

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4. POTW Pretreatment ProgramRequirements: Implementation

a. Proposed change. 40 CFR 403.8(f0establishes the requirements that aPOTW pretreatment program mustsatisfy. Section 403.8(f)(1) provides thata POTW must have the legal authoritywhich enables it to deny, condition andcontrol pollutant contributions, requirecompliance by industrial users, conductinspections of industrial users, andperform other essential attributes of apretreatment program. The rule does notspecifically state that POTWs mustimplement these procedures, althoughthis has been EPA's consistentinterpretation of the rule. To avoid anypossible misunderstanding, the Agencyproposed to revise the introductorysentence of 40 CFR 403.8(f) to state that"a POTW Pretreatment Program shall bedeveloped and implemented to meet thefollowing requirements". EPA alsoproposed to amend the title of 40 CFR403.6 to read "POTW PretreatmentPrograms: Development andImplementation by POTW" (emphasisadded).

b. Response to comments. Severalcommenters specifically endorsed theproposed changes to 40 CFR 403.8(f)regarding implementation of approvedpretreatment programs, stating that theproposed language clarified animportant requirement. To further clarifythis requirement, the introductorylanguage to 40 CFR 403.8(f) has beenchanged from the proposal to read: "aPOTW pretreatment program must bebased on the following legal authorityand include the following procedures.These authorities and procedures shallat all times be fully and effectivelyexercised and implemented".

c. Today's rule. Today's rule amendsthe title of 40 CFR 403.8 to read: "POTWPretreatment Program Requirements:Development and Implementation byPOTW". The introductory paragraph to40 CFR 403.8(f) now provides thatPOTW pretreatment programs must bebased on legal authorities andprocedures which shall at all times befully and effectively exercised andimplemented.

5. Development and Submission ofNPDES State Pretreatment Programs

a. Proposed change. 40 CFR 403.10(c)states that "the EPA shall * * * applyand enforce Pretreatment Standards andRequirements until the necessaryimplementing action is taken by theState." This sentence might give thewrong impression that the Agency willcease to enforce pretreatmentrequirements when a State has receivedprogram approval. Since this is not the

case, EPA proposed to-delete thissentence from 40 CFR 403.10.

b. Response to comments. Nosignificant comments were received onthis proposed revision.

c. Today's rule. Today's rule deletesthe first sentence of 40 CPR 403.10(c).

6. Administrative Penalties AgainstIndustrial Users

a. Proposed rule. The second to lastsentence in 40 CFR 403.8(f)(1)(vi)(B)states that "the Approval Authorityshall have authority to seek judicialrelief for noncompliance by IndustrialUsers when the POTW has acted toseek such relief but has sought a penaltywhich the Approval Authority finds tobe insufficient [emphasis added]". Thisprovision could arguably be read topreclude the Agency from seekingadministrative penalties in suchinstances. In order to clarify that EPA ora State Approval Authority may use anyof their enforcement authorities ininstances where a POTW has soughtrelief for industrial user noncompliancethat the Approval Authority finds to beinsufficient, the Agency proposed torevise 40 CFR 403.8(f)(1)(vi)(B) toprovide that the Approval Authorityshall have the authority to seek judicialrelief and may also seek administrativerelief when the POIW has acted to seeksuch relief but has sought a monetarypenalty which the Approval Authorityfinds to be insufficient.

b. Response to comments. Somecommenters did not support thisproposed revision. These commentersbelieved that the Control Authority wasthe only proper entity to establishmonetary penalties for discharges underits jurisdiction. One commenter pointedout that state and local ordinances limitmost POTWs in the fines that they canlevy. This commenter also stated thatthe proposed change would encourageindustrial users toattempt to dealdirectly with the Approval Authority incases of violation, bypassing the POTW.

The commenters appear to have beenconfused about the extent of theApproval Authority's existing authorityto levy fines against industrial userswhen the POTW has sought aninsufficient monetary penalty. Under theauthority of sections 309(b) and 309(d) ofthe Clean Water Act, EPA has alwaysbeen able to seek a judicial penaltyagainst noncomplying industrial userswhen the POTW has sought aninsufficient monetary penalty, includinginstances where the insufficiency wasdue to State or local limitations on finesthat could be levied. The proposedamendments merely clarified that EPAmay now seek administrative penaltiesas well, under the authority of section

309(g) of the Water Quality Act of 1987.It is clear that Congress intended to givethe Administrator the authority to seekjudicial or administrative penaltiesdirectly against noncomplying industrialusers.

c. Today's rule. Today's rule revises40 CFR 403.8(f)(1)(vi)(B) to provide thatthe Approval Authority shall have theauthority to seek judicial relief but alsomay use administrative penaltyauthority when the POTW has sought amonetary penalty which the ApprovalAuthority finds to be insufficient.

7. Provisions Governing Fraud and FalseStatements

a. Proposed change. 40 CFR 403.12(n)regarding fraud and false statementsincorrectly states that certain reportingrequirements are subject to theprovisions of section 309(c)(2) of theClean Water Act. The reference shouldhave been to sections 309(c) (4) and (6)of the Act, as amended. EPA thereforeproposed to revise 40 CFR 403.12(n)accordingly.

b. Response to comments. Nosignificant comments were received onthis proposed revision. To further clarifythe existing requirements, the languageof 40 CFR 403.12(n) has been changedfrom the proposal to read:

* * * the reports and other documentsrequired to be submitted or maintained underthis section shall be subject to: 1) theprovisions of 18 U.S.C. section 1001 relatingto fraud and false statements; 2) theprovisions of section 309(c)(4) of the Act, asamended, governing false statements,representation or certification; and 3) theprovisions of section 309(c)(6) regardingresponsible corporate officers.

c. Today's rule. Today's rule revises40 CFR 403(n) to clarify that reports andother documents submitted under 40CFR 403.12 are subject to sections309(c)(4) and 309(c)(6) of the CleanWater Act.

Il. Executive Order 12291

Under Executive Order 12291, EPAmust judge whether a regulation is"Major" and therefore subject to therequirement of Regulatory ImpactAnalysis. Major rules are those whichimpose a cost on the economy of $100million or more annually or have certainother economic impacts. The Agencycompleted a general estimate of theannual costs to industrial users andPOTWs of the revisions proposed onNovember 23,1988, which is included inthe administrative record for thisrulemaking, and which showedcompliance costs at well below $100million. Today's rule contains certainchanges from the proposal which

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increase costs to POTWs and industrialusers. For example, the cost for thenotification requirements has risen fromapproximately $250,000 in the proposedrule to approximately $800,000 in thefinal rule. Similarly, the cost for POTWinspections and sampling of significantindustrial users has increased fromapproximately $1,160,000 in theproposed rule to $10,000,000 in the finalrule. However, other changes from theproposal decrease such costs to POTWsand industrial users. For example, thecost of toxicity testing by POTWs hasdecreased from approximately$7,500,000 in the proposed rule toapproximately $1,200,000 in the finalrule, and the cost of technology-basedlimits for CWTs has decreased fromapproximately $21,000,000 in theproposed rule to no cost in the final rule.These changes are detailed in theInformation Collection Request (ICR) forthis rule submitted to the Office ofManagement and Budget (0MB)pursuant to the Paperwork ReductionAct. Since the net effect of thesechanges does not cause the annualeconomic impact of today's rule toapproach $100 million, this rule does notmeet the criteria of a major rule as setforth in section 1(b) of the ExecutiveOrder. This regulation has beenapproved by OMB pursuant to ExecutiveOrder 12291.IV. Regulatory Flexibility Analysis

The Regulatory Flexibility Act, 5U.S.C. 601 et seq., requires EPA andother agencies to prepare an initialregulatory flexibility analysis for allproposed regulations that have asignificant impact on a substantialnumber of small entities. No regulatoryflexibility analysis is required, however,where the head of the Agency certifiesthat the rule will not have a significanteconomic impact on a substantialnumber of small entities. Most of theamendments promulgated today willaffect larger POTWs (those withapproved pretreatment programs anddesign influent flow of more than onemillion gallons per day) and significantindustrial users, who are less likely thanthe average industrial user to be a smallbusiness. Those requirements whichaffect small industrial users do notimpose significant costs. I herebycertify, pursuant to 5 U.S.C. 605(b) thatthis regulation will not have asignificant impact on a substantialnumber of small entities.V. Paperwork Reduction Act

The information collectionrequirements contained in this rule wereapproved by the Office of Managementand Budget [OMB) under the provisions

of the Paperwork Reduction Act, 44U.S.C. 3501 et seq.

Public reporting burden for thiscollection of information is estimated toaverage 49 hours per response forPOTWs and 6 liours per response forindustrial users, Including time forreviewing instructions, searchingexisting data sources, gathering andmaintaining the data needed, andcompleting and reviewing the collectionof information.

Send comments regarding the burdenestimate or any other aspect of thiscollection of information, includingsuggestions for reducing this burden, toChief, Information Policy Branch, PM-223, U.S. Environmental ProtectionAgency, 401 M St., SW., Washington, DC20460; and to the Office of Informationand Regulatory Affairs, Office ofManagement and Budget, Washington,DC 20503, marked "Attention: DeskOfficer for EPA".

List of Subjects

40 CFR Part 122

Administrative practice andprocedure, Reporting and recordkeepingrequirements, Water pollution control,Confidential business information.

40 CFR Part 403

Confidential business information,Reporting and recordkeepingrequirements, Waste treatment and'disposal, Water pollution Control.

Dated: July 3,1990.William K. Reilly.Administrator.

40 CFR chapter I is amended asfollows:

PART 122-EPA ADMINISTEREDPERMIT PAOGRAMS: THE NATIONALPOLLUTANT DISCHARGEELIMINATION SYSTEM

1. The authority citation for part 122continues to read as follows:

Authority: Clean Water Act, 33 U.S.C. 1251et seq.

2. Section 122.21 is amended byadding paragraphs (j)(1), (j)(2), U)(3), and(j)(4) to read as follows:

5 122.21 Application for a permit,(application to State programs, see§ 123.25).

(j) * * *

(1) The following POTWs shallprovide the results of valid wholeeffluent biological toxicity testing to theDirector:

(i).All POTWs with design influentflows equal to or greater than onemillion gallons per day;

.(ii) All POTWs with approvedpretreatment programs or POTWsrequired to develop a pretreatmentprogram;

(2) In addition to the POTWs listed inparagraph (j)({) of this section, theDirector may require other POTWs tosubmit the results of toxicity tests withtheir permit applications, based onconsideration of the following factors:

(i) The variability of the pollutants orpollutant parameters in the POTWeffluent (based on chemical-specificinformation, the type of treatmentfacility, and types of industrialcontributors);

(ii) The dilution of the effluent in thereceiving water (ratio of effluent flow toreceiving stream flow);

(iii) Existing controls on point ornonpoint sources, including totalmaximum daily load calculations for thewaterbody segment and the relativecontribution of the POTW;

(iv) Receiving stream characteristics,including possible or known waterquality impairment, and whether thePOTW discharges to a coastal water,one of the Great Lakes, or a waterdesignated as an outstanding naturalresource; or

(v) Other considerations (includingbut not limited to the history of toxicimpact and compliance problems at thePOTW), which the Director determinescould cause or contribute to adversewater quality impacts.

(3) For POTWs required underparagraph (j)(1) or (j)(2) of this section toconduct toxicity testing, POTWs shalluse EPA's methods or other establishedprotocols which are scientificallydefensible and sufficiently sensitive todetect aquatic toxicity. Such testingmust have been conducted since the lastNPDES permit reissuance or permitmodification under 40 CFR 122.62(a),whichever occurred later.

(4) All POTWs with approvedpretreatment programs shall provide thefollowing information to the Director: awritten technical evaluation of the needto revise local limits under 40 CFR403.5(c)(1).

PART 403-GENERALPRETREATMENT REGULATIONS FOREXISTING AND NEW SOURCES

1. The authority citation for part 403continues to read as follows:

Authority: Sec. 54(c)(2) of the Clean WaterAct of 1977 (Pub. L 95-217), secs. 204(b)(1)(C),208(b)(2)(C)(iii), 301(b)(1)(A){ii),301(b)(2)(A)(ii), 301(b)(2)(C}, 301(h)(5),301(i)(2), 304 (e) and (g), 307, 308, 309, 402(b),405 and 501(a) of the Federal Water PollutionControl Act (Pub. L 92-500), as amended bythe Clean Water Act of 1977 and the Water

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Quality Act of 1987; secs. 2002 and 3018(d) ofthe Solid Waste Disposal Act as amended.

2. Section 403.3 is amended byredesignating existing paragraph (t) asparagraph (u) and adding newparagraph (t) to read as follows:

§ 403.3 Definitions.* * * * *

(t) Significant Industrial User. (1)Except as provided in paragraph (t)(2) ofthis section, the term SignificantIndustrial User means:

(i) All industrial users subject toCategorical Pretreatment Standardsunder 40 CFR 403.6 and 40 CFR ChapterI, Subchapter N; and

(ii) Any other industrial user that:discharges an average of 25,000 gallonsper day or more of process wastewaterto the POTW (excluding sanitary,noncontact cooling and boilerblowdown wastewater); contributes aprocess wastestream which makes up 5percent or more of the average dryweather hydraulic or organic capacity ofthe POTW treatment plant; or isdesignated as such by the ControlAuthority as defined in 40 CFR 403.12(a)on the basis that the industrial user hasa reasonable potential for adverselyaffecting the POTW's operation or forviolating any pretreatment standard orrequirement (in accordance with 40 CFR403.8(f)(6)).

(2) Upon a finding that an industrialuser meeting the criteria in paragraph(t)(1)(ii) of this section has noreasonable potential for adverselyaffecting the POTW's operation or forviolating any pretreatment standard orrequirement, the Control Authority (asdefined in 40 CFR 403.12(a)) may at anytime, on its own initiative or in responseto a petitjon received from an industrialuser or POTW, and in accordance with40 CFR 403.8(f)(6), determine that suchindustrial user is not a significantindustrial user.* * * * *

3. Section 403.5 is amended byrevising paragraphs (a)(2) introductorytext, (b)(1), and (e), adding text to theend of (c)(1), and adding newparagraphs (b)(6), (b)(7), and (b)(8) toread as follows:§ 403.5 National Pretreatment Standards:Prohibited Discharges.

(a) * * .*

(2) Affirmative Defenses. A User shallhave an affirmative defense in anyaction brought against it alleging aviolation of the general prohibitionsestablished in paragraph (a)(1) of thissection and the specific prohibitions inparagraphs [b)(3), (b)(4), (b)(5), (b)(6),

and (b)(7) of this section where the Usercan demonstrate that:* * * * *

(b) * * *(1) Pollutants which create a fire or

explosion hazard in the POTW,including, but not limited to,wastestreams with a closed cupflashpoint of less than 140 degreesFarenheit or 60 degrees Centigrade usingthe test methods specified in 40 CFR261.21.* * * * *

(6) Petroleum oil, nonbiodegradablecutting oil, or products of mineral oilorigin in amounts that will causeinterference or pass through;

(7) Pollutants which result in thepresence of toxic gases, vapors, orfumes within the POTW in a quantitythat may cause acute worker health andsafety problems;

(8) Any trucked or hauled pollutants,except at discharge points designated bythe POTW.

(c * * *(1) * * * Each POTW with an

approved pretreatment program shallcontinue to develop these limits asnecessary and effectively enforce suchlimits.* * . * * *

(e) EPA enforcement actions undersection 309(f) of the Clean Water Act.

If, within 30 days after notice of anInterference or Pass Through violationhas been sent by EPA to the POTW, andto persons or groups who haverequested such notice, the POTW failsto commence appropriate enforcementaction to correct the violation, EPA maytake appropriate enforcement actionunder the authority provided in section309(f) of the Clean Water Act.

4. Section 403.6 is amended byrevising the introductory text to read asfollows:

§ 403.6 National Pretreatment Standards:Categorical Standards.

N4ational pretreatment standardsspecifying quantities or concentrationsof pollutants or pollutant propertieswhich may be discharged to a POTW byexisting or new industrial users inspecific industrial subcategories will beestablished as separate regulationsunder the appropriate subpart of 40 CFRchapter I, subchapter N. Thesestandards, unless specifically notedotherwise, shall be in addition to allapplicable pretreatment standards andrequirements set forth in this part.

5. Section 403.8 is amended byrevising the section heading, theintroductory text to paragraph (f),paragraphs (f(1)(iii), (fl(1)(vi)(B),

(f)(2)(v), and (f)(2)(vii, adding text to theend of (f)(2)(iii), and adding newparagraphs (f)(5) and (f)(6) to read asfollows:§ 403.8 Pretreatment ProgramRequirement: Development andImplementation by POTW.* * * * *

(f) POTW pretreatment requirements.A POTW pretreatment program must bebased on the following legal authorityand include the following procedures.These authorities and procedures shallat all times be fully and effectivelyexercised and implemented.

(1 * * *(iii) Control through permit, order, or

similar means, the contribution to thePOTW by each Industrial User to ensurecompliance with applicablePretreatment Standards andRequirements. In the case of IndustrialUsers identified as significant under 40CFR 403.3(t), this control shall beachieved through permits or equivalentindividual control mechanisms issued toeach such user. Such controlmechanisms must be enforceable andcontain, at a minimum, the followingconditions:

(A) Statement of duration (in no casemore than five years);

(B) Statement of non-transferabilitywithout, at a minimum, prior notificationto the POTW and provision of a copy ofthe existing control mechanism to thenew owner or operator;

(C) Effluent limits based on applicablegeneral pretreatment standards in part403 of this chapter, categoricalpretreatment standards, local limits, andState and local law;

(D) Self-monitoring, sampling,reporting, notification and recordkeepingrequirements, including an identificationof the pollutants to be monitored,sampling location, sampling frequency,and sample type, based on theapplicable general pretreatmentstandards in part 403 of this chapter,categorical pretreatment standards,local limits, and State and local law;

(E) Statement of applicable civil andcriminal penalties for violation ofpretreatment standards andrequirements, and any applicablecompliance schedule. Such schedulesmay not extend the compliance datebeyond applicable federal deadlines.* * * * *

(vi) * * *(B) Pretreatment requirements which

will be enforced through the remediesset forth in paragraph (f)(1)(vi)(A) of thissection, will include but not be limitedto, the duty to allow or carry outinspections, entry, or monitoringactivities; any rules, regulations, or

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orders issued by the POTW; anyrequirements set forth in individualcontrol mechanisms issued-by thePOTW; or any reporting requirementsimposed by the POTW or theseregulations. The POTW shall haveauthority and procedures (after informalnotice to the discharger immediatelyand effectively to halt or prevent anydischarge of pollutants to the POTWwhich reasonably appears to present animminent endangerment to the health orwelfare of persons. The POTW shallalso have authority and procedures(which shall include notice to theaffected industrial users and anopportunity to respond) to halt orprevent any discharge to the POTWwhich presents or may present anendangerment to the environment orwhich threatens to interfere with theoperation of the POTW. The ApprovalAuthority shall have authority to seekjudicial relief and may also useadministrative penalty authority whenthe POTW has sought a monetarypenalty which the Approval Authoritybelieves to be insufficient.* * * * *

(2)(iii) * * * Within 30 days of approval

pursuant to 40 CFR 403.8(f)6), of a list ofsignificant industrial users, notify eachsignificant industrial user of its status assuch and of all requirements applicableto it as a result of such status.ft * ft ft f

(v) Randomly sample and analyze theeffluent from industrial users andconduct surveillance activities in orderto identify, independent of informationsupplied by industrial users, occasionaland continuing noncompliance withpretreatment standards. Inspect andsample the effluent from eachSignificant Industrial User at least oncea year. Evaluate, at least once every twoyears, whether each such Significant.Industrial User needs a plan to controlslug discharges. For purposes of thissubsection, a slug discharge is anydischarge of a non-routine, epi sodicnature, including but not limited to anaccidental spill or a non-customarybatch discharge. The results of suchactivities shall be available to theApproval Authority upon request. If thePOTW decides that a slug control planis needed, the plan shall contain, at aminimum, 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 wouldviolate a prohibition under 40 CFR

403.5(b), with procedures for follow-upwritten notification within five days;

(D) If necessary, procedures toprevent adverse impact from accidentalspills, including inspection andmaintenance of storage areas, handlingand transfer of materials, loading andunloading operations, control of plant-site run-off, worker training, building ofcontainment structures or equipment,measures for containing toxic organicpollutants (including solvents), and/ormeasures and equipment for emergencyresponse;*t ft ft f *

(vii) Comply with the publicparticipation requirements of 40 CFRpart 25 in the enforcement of nationalpretreatment standards. Theseprocedures shall include provision for atleast annual public notification, in thelargest daily newspaper published in themunicipality in which the POTW islocated, of industrial users which, at anytime during the previous twelve months,were in significant noncompliance withapplicable pretreatment requirements.For the purposes of this provision, anindustrial user is in significantnoncompliance if its violation meets oneor more of the following criteria:

(A) Chronic violations of wastewaterdischarge limits, defined here as those inwhich sixty-six percent or more of all ofthe measurements taken during a six-month period exceed (by anymagnitude) the daily maximum limit orthe average limit for the same pollutantparameter;

(B] Technical Review Criteria (TRC)violations, defined here as those inwhich thirty-three percent or more of allof the measurements for each pollutantparameter taken during a six-monthperiod equal or exceed the product ofthe daily maximum limit or the averagelimit multiplied by the applicable TRC(TRC=1.4 for BOD, TSS, fats, oil, andgrease, and 1.2 for all other pollutantsexcept pH.

(C) Any other violation of apretreatment effluent limit (dailymaximum or longer-term average) thatthe Control Authority determines hascaused, alone or in combination withother discharges, interference or passthrough (including endangering thehealth of POTW personnel or thegeneral public);

(D) Any discharge of a pollutant thathas caused imminent endangerment tohuman health, welfare or to theenvironment or has resulted in thePOTW's exercise of its emergency-authority under paragraph (f)1](vi)(B) ofthis section to halt or prevent such a -discharge;

(E) Failure to meet, within 90 daysafter the schedule date, a complianceschedule milestone contained in a localcontrol mechanism or enforcement orderfor starting construction, ccmpletingconstruction, or attaining finalcompliance;

(F) Failure to provide, within 30 daysafter the due date, required reports suchas baseline monitoring reports, 90-daycompliance reports, periodic self-monitoring reports, and reports oncompliance with compliance schedules:

(G) Failure to accurately reportnoncompliance;

(H) Any other violation or group ofviolations which the Control Authoritydetermines will adversely affect theoperation or implementation of the localpretreatment program.ft ft ft ft t

(5) The POTW shall develop andimplement an enforcement responseplan. This plan shall contain detailedprocedures indicating how a POTW willinvestigate and respond to instances ofindustrial user noncompliance. The planshall, at a minimum:

(i) Describe how the POTW willinvestigate instances of noncompliance;

(ii) Describe the types of escalatingenforcement responses the POTW willtake in response to all anticipated typesof industrial user violations and the timeperiods within which responses willtake place;

(iii) Identify (by title) the official(s)responsible for each type of response;

(iv) Adequately reflect the POTW'sprimary responsibility to enforce allapplicable pretreatment requirementsand standards, as detailed in 40 CFR403.8 (f)(1) and (f)(2).

(6) The POTW shall prepare a list ofits industrial users meeting the criteriain 40 CFR 403.3(t)(1). The list shallidentify the criteria in 40 CFR 403.3(t)(1)applicable to each industrial user and,for industrial users meeting the criteriain 40 CFR 403.3(t)(1)(ii), shall alsoindicate whether the POTW has made adetermination pursuant to 40 CFR403.3(t)(2) that such industrial usershould not be considered a significantindustrial user. This list, and anysubsequent modifications thereto, shallbe submitted to the Approval Authorityas a nonsubstantial programmodification pursuant to 40 CFR403.18(b)(2). Discretionary designationsor de-designations by the ControlAuthority shall be deemed to beapproved by the Approval Authority 90days after submission of the list ormodifications thereto, unless theApproval Authority determines that-amodification is in fact a substantialmodification.

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§ 40&10 [Amended]6. Section 403.10 is amended by

removing the first sentence in paragraph(c).

7. Section 403.12 Is amended byadding text to the end of paragraph (h),by revising paragraphs (j) and (n), andadding new paragraph (p) to read asfollows:

§ 403.12 Reporting requirements forPOTW's and Industrial Users.

(h) * Significant NoncategoricalIndustrial Users shall submit to theControl Authority at least once every sixmonths (on dates specified by theControl Authority) a description of thenature, concentration, and flow of thepollutants required to be reported by theControl Authority. These reports shallbe based'on samplingand analysisperformed in the period covered by thereport, and performed in accordancewith the techniques described In 40 CFRpart 136 and amendments thereto.Where 40 CFR part 136 does not containsampling or analytical techniques for thepollutant in question, or where theAdministrator determines that the part136 sampling and analytical techniquesare inappropriate for the pollutant inquestion, sampling and analysis shall beperformed by using validated analyticalmethods or any other applicablesampling and analytical procedures,including procedures suggested by thePOTW or other persons, approved bythe Administrator. This sampling andanalysis may be performed by theControl Authority in lieu of thesignificant noncategorical industrialuser. Where the POTW itself collects allthe information required for the report.the noncategorical significant industrialuser will not be required to submit thereport.

(j) Notification of changed discharge.All Industrial Users shall promptlynotify the POTW in advance of anysubstantial change in the volume orcharacter of pollutants in theirdischarge, including the listed orcharacteristic hazardous wastes forwhich the Industrial User has submittedinitial notification under 40 CFR403 .12(p).

(n) Provisions Governing Fraud andFalse Statements: The reports and otherdocuments required to be submitted ormaintained under this section shall besubject to:

(1) The provisions of 18 U.S.C. section1001 relating to fraud and falsestatements;

(2) The provisions of sections 309(c)(4)of the Act, as amended, governing falsestatements, representation orcertification; and

(3) The provisions of section 309(c)(6)regarding responsible corporate officers.

(p)(1) The Industrial User shall notifythe POTW, the EPA Regional WasteManagement Division Director, andState hazardous waste authorities inwriting of any discharge into the POTWof a substance, which, if otherwisedisposed of, would be a hazardouswaste under 40 CFR part 261. Suchnotification must include the name ofthe hazardous waste as set forth in 40CFR part 261, the EPA hazardous wastenumber, and the-type of discharge(continuous, batch, or other). If theIndustrial User discharges more than 100kilograms of such waste per calendarmonth to the POTW, the notificationshall also contain the followinginformation to the extent suchirformation is known and readilyavailable to the Industrial User Anidentification of the hazardousconstituents contained in the wastes, anestimation of the mass andconcentration of such constituents in thewastestream discharged during thatcalendar month, and an estimation ofthe mass of constituents in thewastestream expected to be dischargedduring the following twelve months. Allnotifications must take place within 180days of the effective date of this rule.Industrial users who commencedischarging after the effective date ofthis rule shall provide the notification nolater than 180 days after the discharge ofthe listed or characteristic hazardouswaste. Any notification under thisparagraph need be submitted only oncefor each hazardous waste discharged.However, notifications of changeddischarges must be submitted under 40CFR 403.12 (j). The notificationrequirement in this section does notapply to'pollutants already reportedunder the self-monitoring requirements.of 40 CFR 403.12 (b), (d), and (e).

(2) Dischargers are exempt from therequirements of paragraph (p)(1) of thissection during a calendar month inwhich they discharge no more thanfifteen kilograms of hazardous wastes,unless the wastes are acute hazardouswastes as specified in 40 CFR 261.30(d)and 261.33(e). Discharge of more thanfifteen kilograms of non-acutehazardous wastes in a calendar month,or of any quantity of acute hazardouswastes as specified in 40 CFR 261.30(d)and 261.33(e), requires a one-timenotification.

Subsequent months during which theIndustrial User discharges more than

such quantities of any hazardous wastedo not require additional notification.

(3) In the case of any new regulationsunder section 3001 of RCRA identifyingadditional characteristics of hazardouswaste or listing any additionalsubstance as a hazardous waste, theIndustrial User must notify the POTW.the EPA Regional Waste ManagementWaste Division Director, and Statehazardous waste authorities of thedischarge of such substance within 90days of the effective date of suchregulations.

(4) In the case of any notificationmade under paragraph (p) of thissection, the Industrial User shall certifythat it has a program in place to reducethe volume and toxicity of hazardouswastes generated to the degree it hasdetermined to be economically practical.

Editorial Note: This appendix will not -appear in the Code of Federal Regulations.Appendix-Hazardous Waste Authorities:Notifications under 40 CFR 403.12(p)

Environmental Protection AgencyRegion IDirector, Waste Management Division,

Environmental Protection Agency, John F.Kennedy Building, Boston, Massachusetts02203

Region !Director, Air & Waste Management Division,

Environmental Protection Agency, 26Federal Plaza, New York, New-York 10278

Region IIIDirector, Hazardous Waste Management

Division, Environmental Protection Agency,841 Chestnut Street, Philadelphia,Pennsylvania 19107

Region IVDirector, Waste Management Division,

Environmental Protection Agency, 345Courtland St. N.E., Atlanta, Georgia 30365

Region VDirector, Waste Management Division,

Environmental Protection Agency, 230South Dearborn Street, Chicago, Illinois60604

Region VIDirector, Hazardous Waste Management

Division, Environmental Protection Agency,1445 Ross Avenue, Suite 1200, Dallas,Texas 75202

Region VIIDirector, Waste Management Division,

Environmental Protection Agency, 726Minnesota Avenue, Kansas City, Kansas66101

Region VIIIDirector, Hazardous-Waste Management

Division, Environmental Protection Agency,One Denver Place, 999 18th St., Suite 500,Denver, Colorado 80202-2405

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Federal Register / VoL 55, No. 142 / Tuesday, July 24, 1990 / Rules and Regulations

Region IXDirector, Hazardous Waste Management

Division. Environmental Protection Agency,1235 Mission Street. San Francisco,California 94103

Region X

Director, Hazardous Waste Division,Environmental Protection Agency, 1200 6thAvenue, Seattle, Washington 98101

States

Alabama

Chief, Land Division, Alabama Department ofEnvironmental Management 1751 FederalDrive, Montgomery, Alabama 38130

Alaska

Chief, Solid and Hazardous WasteManagement Program, Division ofEnvironmental Quality, Department ofEnvironmental Conservation, 3200 HospitalDrive, P.O. Box 0. Juneau, Alaska 99811-1800

Arizona

Assistant Director, Office of Waste andWater Quality Management. ArizonaDepartment of Environmental Quality, 2005N. Central Avenue, Room 304, Phoenix,Arizona 85004

Arkansas

Chief. Hazardous Waste Division, ArkansasDepartment of Pollution Control andTechnology, 8001 National Drive, P.O. Box9583, Little Rock, Arkansas 72209

California

Chief, Deputy Executive Officer. CaliforniaWaste Management Board, 1020 9th Street/Suite 300, Sacramento, California 95814

Colorado

Director, Waste Management Division,Colorado Department of Health, 4210 E.11th Avenue, Denver, Colorado 80220

Connecticut

Chief, Bureau of Waste Management.Connecticut Department of EnvironmentalProtection, Hazardous MaterialsManagement Unit, 165 Capital Avenue,Hartford, Connecticut 06108

Delaware

Director, Division of Air & WasteManagement, Department of NaturalResources and Environmental Control, P.O.Box 1401, 89 King's Highway, Dover.Delaware 19903

- District of Columbia

Chief, Pesticides and Hazardous MaterialsDivision/Superfund, Department ofConsumer and Regulatory Affairs, 014 HStreet NW., Room 505, Washington, DC20001

Florida

Director, Division of Waste Management.Underground Storage Tanks, Department ofEnvironmental Re4gulations, Twin TowersOffice Building, 2800 Blair Stone Road.Tallahassee, Florida 32301

GeorgiaChief, Land Protection Branch, Industrial and

Hazardous Waste Management Program,Floyd Towers East/Room 1154. 205 ButlerStreet. SE., Atlanta. Georgia 30334

HawaiiManager, Solid and Hazardous Waste

Branch, Hawaii Department of Health,Hazardous Waste Program, P.O. Box 3378,Honolulu. Hawaii 96801

lduho, Chief, Hazardous Materials Bureau,Department of Health and Welfare, IdahoState House, 450 W. State Street. Boise, Idaho83720

IllinoisManager, Illinois Environmental Protection

Agency, 2200 Churchill Road, P.O. Box19276, Springfield, Illinois 62794-9270

IndianaAssistant Director, Indiana Department of

Environmental Management 105 S.Meridian Street, P.O. Box 6015.Indianapolis, Indiana 46225

IowaChief, Air Quality and Solid Waste

Protection. Department of Water, Air, andWaste Management. 900 East GrandAvenue, Henry A. Wallace Building, DesMoines, Iowa 50319-0034

KansasDirector, Bureau of Waste Management

Department of Health and Environment.Forbes Field, Building 321, Topeka, Kansas620

KentuckyDirector, Division of Waste Management.

Department of Environmental Protection,Cabinet for Natural Resources andEnvironmental Protection. 18 Reilly Road,Frankfort. Kentucky 40601

LouisianaAssistant Secretary, Hazardous Waste

Division. Office of Solid Waste andHazardous Waste, Louisiana Departmentof Environmental Quality, P.O. Box 44307,N. Fourth Street, Baton Rouge, Louisiana70804

MaineDirector, Bureau of Solid Waste Management.

Department of Environmental Protection,State House #17, Augusta, Maine 04333

MarylandDirector, Hazardous and Solid Waste

Management Administration, MarylandDepartment of the Environment, 201 W.Preston Street, room 212, Baltimore,Maryland 21201

MassachusettsDirector, Division of Solid and Hazardous

Waste, Massachusetts Department ofEnvironmental Quality Engineering, OneWinter Street, 5th Floor, Boston,Massachusetts 02108

MichiganChief, Technical Services Section, Waste_

Management Division, Department of

Natural Resources, Box 30038, Lansing,Michigan 48909

Minnesota

Director, Solid and Hazardous WasteDivision, Minnesota Pollution ControlAgency, 520 Lafayette Road, North, St.Paul, Minnesota 55155

Mississippi

Director, Division of Solid WasteManagement, Bureau of Pollution Control,Department of Natural Resources, P.O. Box10385, Jackson, Mississippi 39209

Missouri

Director, Waste Management Program,Department of Natural Resources, JeffersonBuilding, 205 Jefferson Street (13th-14thfloors), P.O. Box 176, Jefferson City,Missouri 65102

Montana

Chief, Solid and Hazardous Waste Bureau,Department of Health and EnvironmentalSciences, Cogswell Building. Room B-201.Helena, Montana 59620

Nebraska

Chief, Hazardous Waste ManagementSection, Department of EnvironmentalControl, State House Station, P.O. Box98477, Lincoln, Nebraska 63509

Nevada

Director, Waste Management Program,Division of Environmental Protection,Department of Conservation and NaturalResources, Capitol Complex, 201 South FallStreet, Carson City, Nevada 89710

New Hampshire

Chief, Division of Public Health Services,Office of Waste Management, Departmentof Health and Welfare, Health and WelfareBuilding, 6 Hazen Drive, Concord, NewHampshire 03301

Newlersey

Assistant Commissioner, Division of HQWaste Management Department ofEnvironmental Protection, 401 East StateStreet, Trenton, New Jersey 08625

New Mexico

Chief, Groundwater and Hazardous WasteBureau, Environmental ImprovementDivision. New Mexico Health andEnvironment Department. P.O. Box 968,Santa Fe, New Mexico 87504-0968

New York

Director. Division of Hazardous SubstanceRegulation. Department of EnvironmentalConservation, 50 Wolfe Road, Room 209,Albany, New York 12233

North Carolina

Head, Solid and Hazardous WasteManagement Branch, Division of HealthServices, Department of Human Resources.P.O. Box 2091, Raleigh. North Carolina27602

North Dakota

Director, Division of Hazardous WasteManagement, Department of Health, 1200

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Missouri Avenue, Room 302, Bismarck,North Dakota 58502-5520

OhioChief, Division of Solid and Hazardous

Waste Management, Ohio EnvironmentalProtection Agency, 1800 Watermark Drive,P.O. Box 1049, Columbus, Ohio 43266-0149

Oklahoma

Chief, Waste Management Service,Oklahoma State Department of Health,P.O. Box 53551, 1000 Northeast 10th Street,Oklahoma, Oklahoma 73152

Oregon

Director, Hazardous and Solid WasteDivision, Department of EnvironmentalQuality, 811 Southwest 6th Avenue,Portland, Oregon 97204

Pennsylvania

Director, Bureau of Waste Management,Pennsylvania Department ofEnvironmental Resources, P.O. Box 2063 /Fulton Building, Harrisburg, Pennsylvania17120

Rhode Island

Director, Solid Waste Management Program,Department of EnvironmentalManagement, 204 Canon Building, 75 DavisStreet, Providence, Rhode Island 02908

South Carolina

Chief, Bureau of Solid Waste Management,Hazardous Waste Management,Department of Health and EnvironmentalControl, 2600 Bull Street, Columbia, SouthCarolina 29201

South DakotaDirector, Office of Air Quality and Solid

Waste, Department of Water and NaturalResources, 523 E. Capitol, Foss Building,Room 416, Pierre, South Dakota 57501

TennesseeDirector, Division of Solid Waste

Management, Tennessee Department ofPublic Health, 701 Broadway, CustomsHouse, 4th Floor, Nashville, Tennessee

Texa'sDirector, Hazardous and Solid Waste

Division, Texas Water Commission, P.O.Box 13087, Capitol Station, Austin, Texas78711-3087

VermontChief, Waste Management Division, Agency

of Environmental Conservation, 103 SouthMain Street, Waterbury, Vermont 05676

VirginiaExecutive Director, Division of Technical

Services, Virginia Department of WasteManagement, Monroe Building, 11th Floor,101 North 14th Street, Richmond, Virginia23219

WashingtonManager, Solid and Hazardous Waste

Management Division Department ofEcology, Mail Stop PV-11 Olympia,Washington 98504

West VirginiaChief, Waste Management Division,

Department of Natural Resources, 1260Greenbrier Street, Charleston, WestVirginia 25311

WisconsinDirector, Bureau of Solid Waste, Department

of Natural Resources, P.O. Box 7921,Madison, Wisconsin 53707

Wyoming

Supervisor, Solid Waste ManagementProgram, Department of EnvironmentalQuality, 122 West 25th Street, HerschlerBuilding, Cheyenne, Wyoming 82002

American Samoa

Director, Solid Waste Division,Environmental Quality Commission,Government of American Samoa, PagoPago, American Samoa 96799

Guam

Director, Hazardous Waste ManagementProgram, Guam Environmental ProtectionAgency, P.O. Box 2999, Agana, Guam 96910

Commonwealth of Northern Mariana Islands

Chief, Division of Environmental Quality,Department of Public Health andEnvironmental Services, Commonwealth ofthe Northern Mariana Islands, Office of theGovernor, Saipan, Mariana Islands 96950

Puerto Rico

President, Environmental Quality Board,Santurce, Puerto Rico 00910-1488

Virgin Islands

Director, Department of Conservation andCultural Affairs, P.O. Box 4399, Charlotte,St. Thomas, Virgin Islands 00801

[FR Doc. 90-16525 Filed 7-23-90 8:45 am]BILUNG CODE 6560-50-M

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