Streamlining the General Pretreatment Regulations for Existing and New Sources of Pollution, 60134-60198 [05-20001]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 70, Number 198 (Friday, October 14, 2005)]
[Rules and Regulations]
[Pages 60134-60198]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-20001]



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Part II





Environmental Protection Agency





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40 CFR Parts 9, 122, and 403



Streamlining the General Pretreatment Regulations for Existing and New 
Sources of Pollution; Final Rule



Availability of and Procedures for Removal Credits; Proposed Rule

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / 
Rules and Regulations

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9, 122 and 403

[OW-2002-0007; FRL-7980-4]
RIN 2040-AC58


Streamlining the General Pretreatment Regulations for Existing 
and New Sources of Pollution

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Today's final rule revises several provisions of the General 
Pretreatment Regulations that address requirements for, and oversight 
of, Industrial Users who introduce pollutants into Publicly Owned 
Treatment Works (POTWs). This final rule includes changes to certain 
program requirements to be consistent with National Pollutant Discharge 
Elimination System (NPDES) requirements for direct dischargers to 
surface waters. Today's action will reduce the regulatory burden on 
both Industrial Users and State and POTW Control Authorities without 
adversely affecting environmental protection and will allow Control 
Authorities to better focus oversight resources on Industrial Users 
with the greatest potential for affecting POTW operations or the 
environment.

DATES: This regulation is effective November 14, 2005. For judicial 
review purposes, this final rule is promulgated as of 1 p.m. (Eastern 
Time) on October 28, 2005, as provided at 40 CFR 23.2.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. OW-2002-0007. All documents in the docket are listed in the EDOCKET 
index at https://www.epa.gov/edocket. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in EDOCKET or in hard 
copy at the EPA Docket Center, EPA/DC, EPA West, Room B102, y1301 
Constitution Ave., NW, Washington, DC. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the Water Docket Office is (202) 
566-2426).

FOR FURTHER INFORMATION CONTACT: Jan Pickrel, Water Permits Division, 
Office of Wastewater Management, Office of Water, (4203), Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; 
telephone number: 202-564-7904, e-mail address: pickrel.jan@epa.gov. 
Greg Schaner, Water Permits Division, Office of Wastewater Management, 
Office of Water, (4203), Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202-
564-0721, e-mail address: schaner.greg@epa.gov.

SUPPLEMENTARY INFORMATION: Information in this preamble is organized as 
follows:

    A. General Information
    1. Does This Final Rule Apply to Me?
    2. How Can I Get Copies of This Document and Other Related 
Information?
    3. What Process Governs Judicial Review of This Rule?
    B. Under What Legal Authority Is This Final Rule Issued?
    C. How Is This Preamble Organized?
    D. What Is The Comment Response Document?
    E. What Other Information Is Available To Support This Final 
Rule?
I. Background Information
II. How Was This Final Rule Developed?
III. Description of Final Rule Actions
    A. Sampling for Pollutants Not Present (40 CFR 403.8(f)(2)(v) 
and 403.12(e))
    B. General Control Mechanisms (40 CFR 403.8(f)(1)(iii))
    C. Best Management Practices (40 CFR 403.5, 403.8(f) and 
403.12(b), (e), and (h))
    D. Slug Control Plans (40 CFR 403.8(f)(1)(iii)(B)(6) and 
403.8(f)(2)(vi))
    E. Equivalent Concentration Limits for Flow-Based Standards (40 
CFR 403.6(c)(6))
    F. Use of Grab and Composite Samples (40 CFR 403.12(b), (d), 
(e), (g), and (h))
    G. Significant Noncompliance Criteria (40 CFR 403.8(f)(2)(viii))
    H. Removal Credits--Compensation for Overflows (40 CFR 403.7(h))
    I. Miscellaneous Changes (40 CFR 403.12(g), (j), (l), and (m))
    J. Equivalent Mass Limits for Concentration Limits (40 CFR 
403.6(c)(5))
    K. Oversight of Categorical Industrial Users (40 CFR 403.3(v), 
403.8(f)(2)(v), and 403.12(e), (g), (i), (q))
IV. Description of Areas Where EPA Is Not Taking Action on the 
Proposed Rule
    A. Specific Prohibition Regarding pH (40 CFR 403.5(b)(2))
V. Changes to part 122
VI. Considerations in Adopting Today's Rule Revisions
VII. Regulatory Requirements
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Congressional Review Act

A. General Information

1. Does this final rule apply to me?

    Entities potentially affected by this action are governmental 
entities responsible for implementation of the National Pretreatment 
Program and industrial facilities subject to Pretreatment Standards and 
Requirements. These entities include:

------------------------------------------------------------------------
           Category                  Examples of regulated entities
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Local government.............  Publicly Owned Treatment Works.
State government.............  States and Tribes acting as Pretreatment
                                Program Control Authorities or as
                                Approval Authorities.
Industry.....................  Industrial Users of POTWs.
Federal Government...........  EPA Regional Offices acting as
                                Pretreatment Program Control Authorities
                                or as Approval Authorities.
------------------------------------------------------------------------

This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your organization or facility is regulated by this action, you should 
carefully examine the applicability criteria in 40 CFR 403.3, 403.5, 
403.6, 403.7, 403.8, 403.12, and 403.15 of Part 403 of Title 40 of the 
Code of Federal Regulations.

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If you have questions about the applicability of this action to a 
particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.

2. How can I get copies of this document and other related information?

    a. Docket. EPA has established an official public docket for this 
action under Docket ID No. W-00-27. The official public docket consists 
of the documents specifically referenced in this action, any public 
comments received, and other information related to this action. 
Although a part of the official docket, the public docket does not 
include Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. The official public docket 
is the collection of materials that is available for public viewing at 
the Water Docket in the EPA Docket Center, (EPA/DC) EPA West, Room 
B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket 
Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Reading Room is (202) 566-1744, and the telephone number for the Water 
Docket is (202) 566-2426.
    b. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at https://www.epa.gov/fedrgstr/ or at the ``Pretreatment'' 
page at https://cfpub.epa.gov/npdes/home.cfm?program_id=3.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at https://www.epa.gov/edocket/ to view public comments, 
access the index listing of the contents of the official public docket, 
and to access those documents in the public docket that are available 
electronically. Although not all docket materials may be available 
electronically, you may still access any of the publicly available 
docket materials through the docket facility identified in section 
A.2.a. Once in the system, select ``search'', then key in the 
appropriate docket identification number (OW-2002-0007).

3. What process governs judicial review of this rule?

    Under Section 509(b)(1) of the Clean Water Act (CWA), judicial 
review of today's rule may be obtained by filing a petition for review 
in the United States Circuit Court of Appeals within 120 days from the 
date of promulgation of this rule. For judicial review purposes, this 
final rule is promulgated as of 1 p.m. (Eastern time) on October 28, 
2005 as provided at 40 CFR 23.2. Under section 509(b)(2) of the CWA, 
the requirements of this regulation may not be challenged later in 
civil or criminal proceedings brought by EPA to enforce these 
requirements.

B. Under What Legal Authority Is This Final Rule Issued?

    Today's final rule is issued under the authority of Sections 101, 
208(b)(2) (C)(iii), 301(b)(1)(A)(ii), 301(b)(2)(A)(ii), 301(h)(5) and 
301(i)(2), 304(e) and (g), 307, 308, 309, 402(b), 405, and 501(a) of 
the Federal Water Pollution Control Act as amended.

C. How is This Preamble Organized?

    There is an outline for the preamble to today's final rule in the 
opening of this SUPPLEMENTARY INFORMATION section. For each distinct 
issue of the final rule, the preamble is written in a question-and-
answer format that is designed to help the reader understand the 
information in the rule. Under each issue, there are subsections that 
provide the context for the final rule, including a discussion of the 
rules in place prior to today's rulemaking, the changes that were 
proposed, the changes that are being finalized (including significant 
differences from the proposal), and a summary of major comments and EPA 
response.

List of Acronyms

BAT--best available technology economically achievable
BCT--best conventional pollutant control technology
BOD--biochemical oxygen demand
BPJ--best professional judgment
BMP--Best Management Practice
BPT--best practicable control technology currently available
CIU--Categorical Industrial User
CFR--Code of Federal Regulations
CWA--Clean Water Act
ELG--effluent limitations guideline
EMS--environmental management system
EPA--Environmental Protection Agency
EQIP--Environmental Quality Incentives Program
FR--Federal Register
ICR--Information Collection Request
IU--Industrial User
NODA--Notice of Data Availability
NOI--notice of intent
NPDES--National Pollutant Discharge Elimination System
NSCIU--Non-Significant Categorical Industrial User
NTTAA--National Technology Transfer and Advancement Act
OMB--U.S. Office of Management and Budget
POTW--Publicly Owned Treatment Works
PSES--Pretreatment Standards for Existing Sources
RFA--Regulatory Flexibility Act
SBA--U.S. Small Business Administration
SBAR (panel)--Small Business Advocacy Review Panel
SBREFA--Small Business Regulatory Enforcement Fairness Act
SIU--Significant Industrial User
SNC--Significant Noncompliance
SRF--State Revolving Fund
UMRA--Unfunded Mandates Reform Act
WWTP--wastewater treatment plant

D. What Is the Comment Response Document?

    EPA received more than 220 comments on the proposed rule. EPA 
evaluated all the significant comments submitted and prepared a Comment 
Response Document containing the Agency's responses to those comments. 
The Comment Response Document complements and supplements this preamble 
by providing more detailed explanations of EPA's final actions. The 
Comment Response Document is available at the Water Docket. See Section 
E below for additional information.

E. What Other Information Is Available To Support This Final Rule?

    In addition to this preamble, today's final rule is supported by 
other information that is part of the administrative record, such as 
the Comment Response Document, and the key supporting documents listed 
below. These supporting documents and the administrative record are 
available at the Water Docket and via e-Docket:
     Information Collection Request
     Past EPA guidance manuals and policy documents
     Stakeholder communications
     EPA data collected in support of this rulemaking

I. Background Information

A. What Is the National Pretreatment Program?

    The National Pretreatment Program is part of the Clean Water Act 
(CWA)'s water pollution control program. The program is a joint 
regulatory effort by local, state, and Federal authorities that require 
the control of industrial and commercial sources of pollutants 
discharged to municipal wastewater plants (called ``Publicly Owned 
Treatment Works'' or ``POTWs''). Control of pollutants prior to 
discharge of wastewater to the sewer minimizes

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the possibility of pollutants interfering with the operation of the 
POTW and reduces the levels of toxic pollutants in wastewater 
Discharges from the POTW and in the sludge resulting from municipal 
wastewater treatment.
    The Pretreatment Program is a core part of the CWA's National 
Pollutant Discharge Elimination System (NPDES) program, and it has 
helped communities:
     Maintain and restore watershed quality;
     Encourage pollution prevention;
     Increase beneficial uses of sewage sludge;
     Prevent formation of poisonous gases in the sanitary sewer 
system;
     Meet wastewater Discharge standards; and
     Institute emergency-prevention measures.

B. What Regulation Is EPA Revising?

    EPA is today streamlining and clarifying various provisions of the 
General Pretreatment Regulations for Existing and New Sources of 
Pollution codified at 40 CFR Part 403. The CWA directs EPA to develop 
regulations in order to control pollutants which may pass through or 
interfere with POTW treatment processes or contaminate sewage sludge. 
On June 26, 1978, EPA promulgated the General Pretreatment Regulations, 
which established standards and procedures for controlling the 
introduction of wastes into POTWs (43 FR 27736). There have been a 
number of revisions to the General Pretreatment Regulations. The last 
major revisions were to implement improvements arising from the 
Domestic Sewage Study (Report to Congress on the Discharge of Hazardous 
Wastes to Publicly Owned Treatment Works) (55 FR 30082, July 24, 1990).
    The General Pretreatment Regulations require POTWs that meet 
certain criteria to develop Pretreatment programs to control industrial 
Discharges into their sewage collection systems. These programs must be 
approved by either EPA or states acting as the Pretreatment ``Approval 
Authority.'' More than 1,400 POTWs have developed Approved Pretreatment 
Programs pursuant to the regulations in 40 CFR 403.8. These POTWs act 
as the Pretreatment ``Control Authority'' with respect to the 
Industrial Users that discharge to their systems. In the absence of an 
approved POTW Pretreatment Program, the State or EPA Approval Authority 
serves as the Control Authority.
    Industrial Users of POTWs must comply with Pretreatment Standards 
prior to introducing pollutants into a POTW. POTWs are required to 
impose ``local limits'' to prevent Pass Through and Interference from 
the pollutants discharged into their systems. The General Pretreatment 
Regulations also include general prohibitions that forbid Industrial 
Users from causing Pass Through and Interference, and specific 
prohibitions against the discharge of pollutants that cause problems at 
the POTW such as corrosion, fire or explosion, and danger to worker 
health and safety. EPA has also developed National categorical 
Pretreatment Standards that apply numeric pollutant limits to 
Industrial Users in specific industrial categories. The General 
Pretreatment Regulations include reporting and other requirements 
necessary to implement these categorical Standards (40 CFR 403.12 (b)).
    Today's final rule modifies several provisions of the existing 
Pretreatment Regulations. The rule includes a variety of changes which 
will be described further in Section E.

C. Why Is EPA Revising the Existing General Pretreatment Regulations?

    By finalizing today's rule, EPA is working to improve the National 
Pretreatment Program to protect public health and the environment, 
while maintaining or improving the program's effectiveness. Although 
adoption of the General Pretreatment Regulations has resulted in more 
consistent implementation of the Pretreatment program on a national 
basis, many individual POTWs and Industrial Users have experienced 
problems implementing various requirements.
    EPA's objective in finalizing today's streamlining regulation is to 
achieve better environmental results at a lower cost by allowing 
Control Authorities to better focus oversight resources where they will 
do the most good. The revisions in today's final rule achieve this 
objective by reducing the burden of technical and administrative 
requirements that EPA has determined provide minimal environmental 
benefit but consume significant resources of Industrial Users, and POTW 
and state Control Authorities. In designing these revisions, EPA took 
care to ensure that the changes being finalized do not reduce the 
current environmental protections in place.
    The importance of finalizing today's streamlining rule was 
highlighted in two recent reports. The Office of Management and Budget 
(OMB) included the issuance of the final rule among a list of steps the 
Federal government would take to reduce the cost burden on the 
manufacturing sector. See Regulatory Reform of the U.S. Manufacturing 
Sector (OMB, 2005), which is posted at https://www.whitehouse.gov/omb/
inforeg/reports/manufacturing_initiative.pdf. EPA's Office of 
Inspector General (OIG) also recommended that the Office of Water set 
milestones for finalizing this streamlining rule as part of a broader 
effort to improve the effectiveness of the National Pretreatment 
Program. See Recommendation  4.2 of EPA Needs to Reinforce Its 
National Pretreatment Program (OIG, Report 2004-P-00030, September 
2004), posted at https://www.epa.gov/oig/reports/2004/20040928-2004-P-
00030.pdf.

D. What Are the Roles of Key Entities Involved in the Final Rule?

    EPA recognizes the role of many interested parties in the 
development of, and, ultimately, the successful implementation of this 
final rule. To the greatest extent possible, EPA has attempted to 
strike a reasonable balance among the many interests. A short summary 
of their roles is provided below.
    1. POTWs. Publicly Owned Treatment Works (POTWs) collect wastewater 
from homes, commercial buildings, and industrial facilities and 
transport it via a series of pipes, known as a collection system, to 
the treatment plant. Today, there are an estimated 14,800 POTWs. Most 
POTWs are not designed to treat the toxics in commercial and industrial 
wastes which can cause serious problems. The General Pretreatment 
Regulations require POTWs that meet certain criteria to develop 
Pretreatment programs to control industrial Discharges into their 
sewage collection systems. These POTWs act as the Pretreatment 
``Control Authority'' with respect to the Industrial Users that 
discharge to their systems. POTWs play a key role in the enforcement of 
the Pretreatment program through the development and implementation of 
Enforcement Response Plans.
    2. States. Thirty-four states are authorized to serve as Approval 
Authorities for implementation of the Pretreatment Program. In the 
absence of an Approved POTW Pretreatment Program, the state may serve 
as the Control Authority.
    3. EPA. EPA's statutory responsibility is to establish national 
regulations such as those covering the Pretreatment Program, which 
protect and restore the chemical, physical, and biological integrity of 
the Nation's waters. EPA also develops policy and guidance and provides 
training and oversight for program implementation. EPA's regional 
offices also serve as the Approval Authority for state

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Pretreatment programs, where the state is not authorized to run the 
program, and as the Control Authority for POTWs without an approved 
Pretreatment Program in these states.
    4. Industrial Dischargers. Industrial Users of POTWs must comply 
with Pretreatment Standards prior to introducing pollutants into a 
POTW. The General Pretreatment Regulations include general prohibitions 
that forbid Industrial Users from causing Pass Through and 
Interference, and specific prohibitions against the discharge of 
pollutants that cause problems at the POTW such as corrosion, fire or 
explosion, and danger to worker health and safety.
    EPA has also developed National categorical Pretreatment Standards 
that apply numeric and narrative pollutant limits to Industrial Users 
in specific industrial categories. The General Pretreatment Regulations 
include reporting and other requirements necessary to implement these 
categorical Standards (40 CFR 403.12(b)).
    5. Other stakeholders. Trade associations, professional 
organizations, environmental interest groups, and the public have an 
interest in the Pretreatment of industrial and commercial waste and 
have been involved in this rulemaking through comments and 
participation in stakeholder meetings.

E. What Principles Guided EPA's Decisions in This Rule?

    EPA has considered the implementation of the current General 
Pretreatment Regulations, changes in industry, the comments on the 
proposed rule, and relevant studies, data, and reports in developing 
this final rule. The Agency has tried to ensure this final rule is 
based on sound science, protects existing water quality gains, and is 
consistent with current Pretreatment guidance and policy documents. EPA 
made this final rule as simple and easy to understand as possible, and 
has attempted to provide a clear understanding of who is affected and 
what they are expected to do. The hallmark of this rule is that it 
reduces the burden of compliance with the General Pretreatment 
Regulations, while at the same time protecting the environment.

F. What Are the Major Elements of This Final Rule? Where Do I Find 
Specific Requirements?

    This section provides a summary of the major elements of this final 
rule and a brief index on where each of the requirements is located in 
the final regulations. The rule makes the following changes:
     Provides POTWs with the authority to grant monitoring 
waivers to industrial facilities where they document that pollutants 
are not present at the facility or anywhere in the wastestream. EPA 
notes that this authority is already available in the National 
Pollutant Discharge Elimination System (NPDES) regulations for point 
sources discharging directly to surface waters.
     Authorizes POTWs to use general control mechanisms (e.g., 
permits) to regulate multiple industrial dischargers that share common 
characteristics.
     Clarifies that POTWs can use Best Management Practices 
(BMPs) as an alternative to numeric limits that are developed to 
protect the POTW, water quality, and sewage sludge.
     Clarifies certain requirements regarding the frequency of 
on-site industrial facility inspections to evaluate the adequacy of 
controls for ``Slug Discharges''.
     Provides greater flexibility in the use of certain 
sampling techniques, and establishes greater consistency with the 
sampling protocols in other parts of EPA's regulations.
     Provides the Control Authority with the discretion to 
authorize the use of equivalent concentration limits in lieu of mass 
limits for certain industrial categories, and allows the conditional 
use of equivalent mass limits in lieu of concentration-based limits 
where appropriate to facilitate adoption of new, water-conserving 
technologies.
     Authorizes POTWs to establish alternative sampling, 
reporting, and inspection requirements for certain classes of 
categorical Industrial Users (CIUs).
     Clarifies the definition of significant noncompliance 
(SNC) as it applies to violations of instantaneous and narrative 
requirements, and late reports, and provides additional options for 
publishing lists of industrial facilities in SNC annually in the 
newspaper. The rule also retains existing rules and policies regarding 
the application of Technical Review Criteria (TRC) and the use of the 
``rolling quarter'' approach in determining SNC status.
     Provides updated references relating to requirements that 
POTWs must meet to adjust removal credits for combined sewer overflows 
(CSOs).
     Makes other miscellaneous changes designed to maintain 
consistency with the NPDES regulations or to correct typographical 
errors.
    The following table indicates where these changes can be found in 
the General Pretreatment Regulations at 40 CFR part 403.

------------------------------------------------------------------------
                 Issue                     Section of 40 CFR 403 rules
------------------------------------------------------------------------
Sampling for pollutants not present....  403.8(f)(2)(v), 403.12(e)
General control mechanisms.............  403.8(f)(1)(iii)
Best Management Practices..............  403.5, 403.8(f), 403.12(b),
                                          (e), (h)
Slug control plans.....................  403.8(f)(1)(iii)(B)(6),
                                          403.8(f)(2)(vi))
Equivalent concentration limits for      403.6(c)(6)
 flow-based Standards.
Equivalent mass limits for               403.6(c)(5)
 concentration-based Standards.
Use of grab and composite samples......  403.12(b), (d), (e), (g), (h)
Significant noncompliance criteria.....  403.8(f)(2)(viii)
Removal credits........................  403.7(h)
Non-Significant CIU....................  403.3(v)(2), 403.8(f)(2)(v),
                                          (6), 403.12(e)(1), (g), (i),
                                          (q)
Middle Tier CIU........................  403.8(f)(2)(v)(C),
                                          403.12(e)(3), (i)
Miscellaneous changes..................  403.12(g), (j), (l), (m)
------------------------------------------------------------------------

II. How Was This Final Rule Developed?

    EPA initiated this effort in response to a Presidential Report on 
``Reinventing Environmental Regulations'' (March 1995). The Report 
pledged to provide ``more common sense and fairness in our 
regulations'' with an ultimate goal of providing greater flexibility, 
reducing burden, and achieving greater environmental results at less 
cost. In 1995, EPA's Office of Wastewater Management started an 
evaluation of all of the General Pretreatment Regulations in order to 
identify streamlining opportunities. Based on input from various 
stakeholders, EPA developed issue papers that summarized 11 areas

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in which the Pretreatment Regulations might be streamlined.
    In May 1996, the issue papers were distributed to stakeholders 
(States, cities, trade associations, professional organizations, and 
environmental interest groups) for comment. The Agency also considered 
recommendations developed through a joint Association of Metropolitan 
Sewerage Agency (``AMSA'', now the ``National Association of Clean 
Water Agencies'') and Water Environment Federation workshop held in 
1996, which included Pretreatment experts from many stakeholder 
perspectives. In response to comments received on the issue papers and 
the joint workshop's recommendations, EPA prepared a draft proposal and 
preamble and distributed it for comment in May 1997. The proposed rule 
was published in the Federal Register on July 22, 1999 (64 FR 39564).
    EPA received 221 sets of comments on the proposed rule. Comments 
were received from individual POTWs and Industrial Users, trade groups 
representing those interests, states, and one environmental 
organization (the Natural Resources Defense Council). In finalizing 
this rule, EPA carefully reviewed the issues raised in the public 
comments. Due to the intervening time between the proposed and final 
rules, EPA also revisited the major assumptions underlying each rule 
change to verify that these assumptions were still valid. In a few 
areas, this process required research or additional data to support 
certain provisions, and discussions with stakeholders expressing 
continued interest in the rule regarding their comments on the proposed 
rule.

III. Description of Final Rule Actions

    Today's final rule addresses 12 specific issues and a few 
miscellaneous changes pertaining to the General Pretreatment 
Regulations. This section describes the context of these changes, 
records how the proposal and final rule differ, and summarizes EPA's 
rationale for specific actions and how the Agency responded to 
significant comments.
    EPA notes that capitalized terms in this and other sections (e.g., 
categorical Pretreatment Standards, Interference, Pass Through, etc.) 
should signal to the reader that these are terms defined in 40 CFR 
403.3.

A. Sampling for Pollutants Not Present (40 CFR 403.8(f)(2)(v) and 
403.12(e))

    Today's rule allows the Control Authority to authorize an 
Industrial User subject to categorical Pretreatment Standards to forgo 
sampling of a pollutant if the Industrial User demonstrates through 
sampling and a technical evaluation of its facility operations, that a 
given pollutant is neither present nor expected to be present in the 
Discharge, or is only present at background levels from intake water 
without any increase in the pollutant due to the activities of the 
Industrial User. There is similar language in EPA's NPDES permitting 
regulations for direct dischargers. See 40 CFR 122.44(a)(2). The POTW 
Control Authority to which the Industrial User discharges may also 
reduce its monitoring for the pollutant to once during the term of the 
Categorical Industrial User's control mechanism. Note that in the 
discussion of this issue, when EPA uses the phrase ``pollutants not 
present'' it is using this phrase as short-hand for ``pollutants 
neither present nor expected to be present above background levels''. 
In addition, because the requirements of 40 CFR 403.8(f)(2) apply to 
POTWs with approved Pretreatment programs rather than Control 
Authorities in general, the discussion here distinguishes between the 
authority granted to Control Authorities in 40 CFR 403.12(e) to waive 
monitoring for pollutants not present, and the reduction in monitoring 
requirements for POTWs for these pollutants in 40 CFR 403.8(f)(2)(v).
1. What Were the Rules in Place Prior to Today's Rulemaking?
    Section 403.12(e)(1) required Industrial Users subject to 
categorical Pretreatment Standards to submit reports to the Control 
Authority at least twice each year indicating the nature and 
concentration of all pollutants in their effluent that are limited by 
an applicable Standard. Prior to today's rulemaking, the Control 
Authority was not authorized to reduce monitoring of pollutants 
regulated by the applicable categorical Pretreatment Standard to less 
than twice per year. 40 CFR 403.8(f)(2)(v) also required POTWs to 
sample these Industrial Users at least annually to independently verify 
compliance with the Standard. Semiannual sampling by the Industrial 
User and annual sampling by the POTW was required for all pollutants 
limited by the categorical Pretreatment Standard even if certain 
pollutants regulated by the Standard were not reasonably expected to be 
present.
2. What changes did EPA propose?
    The proposal would amend the current regulation to authorize the 
Control Authority to waive the sampling requirements for an Industrial 
User subject to a categorical Pretreatment Standard for a pollutant if 
the pollutant was not expected to be present in the wastestream in a 
quantity greater than the background level present in its water supply, 
with no increase in the pollutant in the wastewater attributable to the 
industrial process. In lieu of monitoring for the pollutants determined 
not present, the Industrial User would submit a certification as part 
of its semiannual monitoring reports that there had been no increase in 
the pollutant in its wastewater due to its activities. This change 
would also reduce a POTW's sampling requirement once it had determined 
that a pollutant was not expected to be present. However, as proposed, 
the reduced sampling would not have been available to facilities 
subject to the Organic Chemicals, Plastics, and Synthetic Fibers 
(OCPSF) guidelines, 40 CFR part 414.
3. What changes is EPA finalizing in today's rule?
    Today, EPA is adopting the proposed changes which authorize a 
Control Authority to waive the monitoring requirements in semiannual 
reports required under 40 CFR 403.12(e) for individual pollutants, 
including indicator or surrogate pollutants, for an Industrial User 
subject to a categorical Pretreatment Standard. A Control Authority may 
waive this requirement if it determines that the pollutant is neither 
present nor expected to be present, at levels greater than that of the 
intake water, without any increase in the pollutant due to the 
activities of the Industrial User. The waiver will not be available for 
monitoring required for the baseline monitoring report required under 
40 CFR 403.12(b) or the 90-day compliance report required under 40 CFR 
403.12(d). The Industrial User must continue to conduct at least twice-
per-year monitoring until the waiver is both granted by the Control 
Authority and incorporated into the Industrial User's control 
mechanism. The POTW's annual monitoring requirements for the pollutant 
for which a monitoring waiver is granted may be reduced to a minimum of 
once during the effective period of the Industrial User's control 
mechanism.
    In finalizing the rule, EPA is making the following changes to the 
proposed rule:
    Coverage for OCPSF Facilities: EPA has determined that it is 
appropriate for the monitoring waiver to be available to Industrial 
Users subject to the OCPSF guidelines and is not limiting the 
availability in any way different from other Categorical Industrial 
Users.

[[Page 60139]]

    Industrial User Sampling Data: The final rule requires that to 
demonstrate that the pollutant is not present, the Industrial User must 
provide the results of one or more samples prior to treatment which are 
representative of all process wastewater.
    Notice to Control Authority if Pollutant Found to be Present: The 
final rule includes a provision which requires that in the event that a 
pollutant is subsequently found to be present or is expected to be 
present, the Industrial User must immediately resume monitoring and 
notify the Control Authority.
    Control Mechanism Issues: EPA clarifies that the Control Authority 
must include any waiver granted to an Industrial User in the User's 
control mechanism. The Control Authority must also document the reasons 
for authorizing the waiver and maintain any information submitted by 
the User in support of the waiver for at least three years after 
expiration of the waiver. The waiver is valid only for the duration of 
the control mechanism. In order to continue the waiver for the period 
of the next control mechanism, the Industrial User will need to reapply 
for the waiver, including the submission of appropriate monitoring 
data. The control mechanism must include the requirement for the 
Industrial User to immediately notify the Control Authority in the 
event that the pollutant is found or suspected to be present, and to 
resume monitoring at least semiannually. The control mechanism still 
must include all applicable categorical Standards, even those Standards 
for which monitoring has been waived.
    Waiver Does Not Supercede Other Certifications: EPA has included a 
provision which states that the waiver of monitoring requirements 
cannot replace any certification requirements that have been 
established in specific categorical Pretreatment Standards.
4. Summary of Major Comments and EPA Response
    How does EPA define ``not present?'' In the preamble to the 
proposed amendments, EPA specifically requested comment on how to 
define what is meant by ``not present.'' Several commenters suggested 
that a precise definition was not necessary based on the regulatory 
context. Other commenters suggested that it be defined in terms of a 
percentage of the applicable limit, while others suggested that the 
term be defined as at or below the levels found in the water supply. 
The final regulatory language clearly indicates that monitoring for a 
pollutant can be waived as long as the levels in the untreated 
wastewater do not exceed the levels in the intake water based on 
``sampling and other technical factors.'' EPA did not promulgate a 
definition of not present when the similar NPDES revision was 
finalized, and EPA continues to view the final regulatory language as 
sufficiently clear to avoid confusion.
    In response to commenters that suggested that ``not present'' be 
defined as a percentage of the applicable categorical Standard, EPA 
notes that today's waiver is not for pollutants that are not reasonably 
expected to violate the Standard, but rather for pollutants that are 
neither present nor expected to be present in the Discharge above 
background levels. Therefore, the level of pollutant in the Discharge 
in relation to the Standard is not the relevant benchmark for the 
Control Authority's determination whether the waiver request should be 
granted. Instead, what matters in the determination is whether the 
Industrial User's practices or industrial processes add the pollutant. 
The Control Authority already has the ability to reduce monitoring to 
as infrequently as twice per year for any pollutants that are in the 
Discharge but are not reasonably expected to violate the Standard. 
However, if the background level from the Industrial User's intake 
water already exceeds the applicable categorical Standard, a waiver of 
the monitoring requirements would not be available unless the Control 
Authority has adjusted the categorical Standard using the net/gross 
provision of 40 CFR 403.15, and the pollutant is not added to the 
wastewater by the discharger's practices or processes.
    Several commenters also suggested that if a pollutant is added in 
``negligible'' amounts or in amounts equal to ``typical'' domestic 
levels, the Control Authority should still be authorized to grant the 
monitoring waiver. EPA addressed this issue in the preamble to the 
final NPDES regulation dealing with a waiver of monitoring requirements 
for direct dischargers. There, EPA stated:

    ``EPA declines to allow monitoring waivers for pollutants that 
are added by dischargers in minute amounts (e.g., use of common 
cleaners or from research operations) because human activity might 
lead to substantial increases in those pollutant Discharges which 
may threaten the aquatic environment. Consequently, there is a 
continuing need to monitor those pollutants. EPA also notes that at 
least one national effluent guideline addresses the introduction of 
incidental amounts of pollutants from cleaning, maintenance, or 
research operations and EPA does not believe it is appropriate to 
apply the waiver to a pollutant that is added to the wastestream and 
subject to an effluent guideline. See 40 CFR 414.11(b) (applying the 
Organic Chemicals, Plastics, and Synthetic Fibers Effluent 
Guidelines to wastewater Discharges from research and development 
operations). Metals or other pollutants that can leach from pipes 
may also pose a threat to the environment and EPA believes 
monitoring should be retained for such Discharges. With respect to 
pollutants which occur in amounts below ``levels of concern'', the 
discharge of such pollutants can also increase from human activity 
and EPA believes that monitoring is necessary to ensure that an 
appropriate level of treatment continues to be provided.'' (65 FR 
30892, May 15, 2000).

Nothing submitted by commenters has changed the Agency's mind in the 
case of indirect dischargers with respect to its earlier conclusion.
    Some commenters also suggested that EPA clarify that the term 
``quantities'' as used in the proposal may mean mass loading in 
addition to concentration. EPA agrees that there may be instances where 
the use of mass may be more appropriate than concentration, and 
therefore will allow Control Authorities to use pollutant mass to 
compare the levels of pollutants in the wastewater to the levels of 
pollutants in the intake water. If the Industrial User can demonstrate 
through its technical evaluation that a specific pollutant is not 
added, and can demonstrate through a mass balance that any increases in 
the wastestream concentration are due only to evaporative losses or 
other similar reductions in the volume of wastewater discharged, then a 
monitoring waiver may be approved by the Control Authority. Note that 
accurate flow measurements will be necessary to perform the appropriate 
mass-balance calculations and demonstrate that small amounts of the 
pollutant are not added in the course of the facility activity. One 
example submitted by a commenter notes that cooling tower maintenance 
chemicals may add the pollutant of concern to the wastestream. If the 
pollutant of concern is added by the User in any way to the 
wastestream, then the Industrial User would not be eligible for the 
waiver. To the extent that the concentration is increased significantly 
such that it may impact the POTW, EPA would expect that a monitoring 
waiver would not be granted. In response to this comment, EPA is 
revising the language in the final regulation to refer to the 
``levels'' of pollutants in the intake water rather than the 
``concentration'' of pollutants in the intake water. This wording 
change is consistent with the similar NPDES permitting requirement for

[[Page 60140]]

direct dischargers (see 40 CFR 122.44(a)(2)(i)).
    One commenter noted that EPA's use of the phrase ``with no increase 
in the pollutant due to the regulated process'' could create confusion 
in how to handle pollutants that are added in other facility 
wastestreams that are not regulated by the applicable categorical 
Pretreatment Standard. EPA agrees that the phrase ``with no increase in 
the pollutant due to the regulated process'' is not appropriate. 
Although the phrase was used in the preamble to the proposal and not 
the proposed regulation, EPA is revising the final regulatory language 
to include the phrase ``without any increase in the pollutant due to 
the activities of the Industrial User''. This phrase better reflects 
EPA's intent that the waiver would not be available for a pollutant 
where the Industrial User may add the pollutant through means other 
than the regulated industrial process (except for sanitary wastewater--
see below).
    Should Industrial Users have the authority to waive sampling 
requirements rather than the Control Authority? Several commenters 
suggested that it would be appropriate for the Industrial User to have 
the authority to make the determination on whether a pollutant is 
present and monitoring requirements should be waived rather than the 
Control Authority. EPA disagrees that Industrial Users rather than the 
Control Authority should have the authority to waive monitoring for 
pollutants not present. The Control Authority is the regulatory agency 
responsible for ensuring compliance with applicable Standards, and is 
therefore the most appropriate agency for determining the monitoring 
requirements necessary for it to fulfill that responsibility. In 
addition, placing the authority with the Industrial User eliminates 
oversight that, in EPA's view, is necessary to ensure that this 
provision is implemented correctly.
    What information is necessary to determine if a pollutant is not 
present at a facility? EPA received many comments suggesting what type 
of data is needed in order to make an informed decision on whether a 
pollutant is neither present nor expected to be present. Commenters 
noted that information contained in control mechanism applications and 
baseline monitoring reports, as well as data obtained through a 
thorough facility inspection could all be used to support a 
determination that a pollutant is not present. The commenters noted 
that these are all mechanisms for obtaining data on the raw materials, 
products, and by-products used and generated at an Industrial User. EPA 
agrees that these are valid sources of information that can contribute 
to an Industrial User's demonstration that a pollutant is neither 
present nor expected to be present. EPA notes that the Industrial User 
monitoring waiver in today's rule applies to the semiannual monitoring 
required under 40 CFR 403.12(e), and does not apply to monitoring 
required for the baseline monitoring report or the 90-day compliance 
report. EPA has also concluded that if the Control Authority uses a 
control mechanism application form, such a form is an appropriate place 
for the Industrial User to request the monitoring waiver, although the 
mechanism for how the request is made is largely up to the discretion 
of the Control Authority.
    Commenters also suggested that material safety data sheets would be 
a valuable tool in determining whether specific pollutants are present 
in the raw materials or other chemicals used at the facility. EPA notes 
that material safety data sheets do not identify all of the pollutants 
present in a given material, and therefore cannot be relied upon to 
determine whether a pollutant is present in the raw materials or other 
chemicals at the Industrial User's facility. In order for the Control 
Authority to accurately determine the presence of a pollutant in a 
given raw material or other chemical, the Industrial User will need to 
analyze the material in question, or obtain a certificate of analysis 
from the manufacturer of the material demonstrating the absence of the 
pollutant. In addition, the evaluation needs to include materials not 
necessarily used for the product, such as chemicals used in equipment 
cleaning and wastewater treatment. Although wastewater treatment 
chemicals are used to reduce the levels of pollutants in the Discharge, 
analysis of the chemicals can show significant levels of contaminants 
that can be added to the wastewater stream. Additional information, 
such as intermediate products, final products, and byproducts generated 
in the process will need to be considered as well, and therefore a 
detailed knowledge and evaluation of the process chemistry involved in 
the manufacturing operations will be necessary.
    Some commenters suggested that the determination of whether a 
pollutant is present should be based exclusively on a review of 
available information. While available information should certainly be 
used in the determination, and EPA would expect that most Industrial 
Users requesting the waiver would have a fairly extensive knowledge of 
the pollutants present in their wastewater, because the pollutants are 
either directly added or generated as byproducts, an Industrial User 
cannot assume that a pollutant is not present in its Discharge simply 
because it has not generated any information to suggest otherwise. EPA 
notes that the Industrial User has the burden to demonstrate that the 
pollutant is not present, and if this demonstration cannot be made to 
the satisfaction of the Control Authority, the waiver may not be 
granted.
    EPA does agree that the determination of whether a pollutant is 
present should be based on whether or not that pollutant would have the 
potential to enter the wastestream to the POTW. Such an evaluation must 
include the potential for the pollutants to enter the wastestream 
through spills and other potentially infrequent events, in addition to 
whether the pollutant would be routinely expected to enter the 
wastestream. Therefore, in order for monitoring for the pollutant to be 
waived, there must be a high degree of certainty that the pollutant 
will not show up in the Discharge to the POTW.
    EPA also notes that for facilities that use the combined 
wastestream formula, ``unregulated'' wastestreams may be covered by the 
categorical Standard through the adjusted Standard. Therefore, EPA has 
concluded that it is not appropriate to allow a monitoring waiver where 
wastestreams other than those regulated by the categorical Standard 
contribute the pollutant of concern. However, since pollutants, 
especially metals, may be present in sanitary wastestreams at higher 
than background concentrations, and because sanitary wastestreams are 
not typically regulated through categorical Standards specifically or 
the Pretreatment program in general, the revised regulation provides 
that waivers may be granted where the only source of the increase in 
the pollutant from human activity is sanitary wastewater, provided that 
the sanitary wastewater is not regulated by an applicable categorical 
Standard and does not include the pollutant at levels that are 
significantly higher than typical domestic levels for the POTW's 
service area. See 40 CFR 403.12 (e)(2)(i).
    One commenter noted several industries that claimed that a 
pollutant was not present in their Discharge, only to have it show up 
in monitoring results. EPA is aware of similar instances and knows of 
circumstances where the pollutants are later detected in the sampling 
data at fairly high levels. This is one of the reasons why EPA is 
requiring that the technical evaluation of the facility to determine 
the presence of the pollutant be

[[Page 60141]]

supported by sampling data, including data prior to treatment. Even 
though EPA is generally not requiring a minimum amount of data (with 
the exception of the one sample required prior to treatment), Control 
Authorities are expected to have sufficient sampling data to support 
the technical evaluation. Where monitoring data shows that the 
pollutant is present at levels above the background intake water level, 
the Control Authority must deny the request for the monitoring waiver.
    How much sampling data is necessary to make a determination that a 
pollutant is not present? Comments on this issue varied from suggesting 
that no sampling is necessary to providing suggestions on specific 
sampling frequencies for the intake water as well as the effluent 
Discharge. One commenter suggested that no influent monitoring data was 
necessary if the effluent data shows no detectable levels of the 
pollutant. Although EPA has concluded that some sampling data is 
necessary to document the absence of a pollutant in the Discharge, the 
amount of sampling necessary for the determination is most 
appropriately determined on a site-specific basis, and will depend, in 
part, on how convincing are the arguments regarding the ``other 
technical factors''. Therefore, EPA is not establishing a minimum 
monitoring frequency. This is also consistent with the NPDES 
regulations, which do not establish a minimum sampling frequency. EPA 
is, however, establishing a minimum requirement that one sample be 
collected prior to treatment. Data prior to treatment is necessary to 
demonstrate that the measured levels reflect any pollutants that are 
added to the wastewater rather than the levels after they have been 
reduced by treatment, since effective treatment could become less 
effective over time. Other data that may be used in the evaluation 
include final effluent data and in many cases the facility intake 
water.
    It is important to note that the pollutant monitoring waiver is 
based on a facility-wide evaluation and, therefore, sampling data must 
be representative of all wastestreams, as well as any seasonal or other 
variability in the Discharge. In addition, note that the monitoring 
waiver is for pollutants that are neither present nor expected to be 
present, and not for pollutants which are added but for which no 
violation of the applicable Standard is expected. In some cases, the 
existing monitoring data will be sufficient to evaluate the presence of 
the pollutant in the Discharge. The data prior to treatment is less 
likely to have been collected in the past, although historic data, if 
still representative, can be used.
    EPA has concluded that a sequential approach to sampling is the 
most appropriate way to evaluate the request for a monitoring waiver 
based on sampling data. If monitoring of the Industrial User's 
wastewater prior to treatment (and after treatment where appropriate) 
shows no detectable levels of the pollutant based on the most sensitive 
EPA approved method, then no sampling of the intake water is necessary 
because the levels of the pollutant in the Discharge will already have 
been shown to be at or below the levels in the intake water. However, 
if a pollutant is present in the Industrial User's wastewater, data on 
the levels in the influent water are necessary to determine whether the 
presence of the pollutant is solely the result of levels in the 
influent water, or the result of the Industrial User adding the 
pollutant to some extent. Background levels of pollutants in an 
Industrial User's influent water will vary from POTW to POTW, and 
possibly from Industrial User to Industrial User based on many factors. 
If historical data is available, based on prior sampling by either the 
Industrial User or the POTW, or based on drinking water system data 
that is representative of the Industrial User's intake water, 
additional sampling may not be necessary.
    EPA notes that data for intake water must be representative of the 
water typically used at the facility, but prior to any water treatment 
or conditioning provided by the Industrial User. This generally means 
that the data, especially for lead and copper, should reflect pollutant 
levels of intake water that have been running continuously for at least 
several minutes, rather than pollutant levels of intake water that have 
been sitting in the pipes for several hours. Water system data for lead 
and copper will typically reflect the levels of pollutants in the water 
after it has been sitting in the pipes for at least six hours. Because 
this data is not generally representative of the levels of lead and 
copper in the typical facility intake water, drinking water data for 
lead and copper may not be representative of the Industrial User's 
actual intake water and should not be used unless the Industrial User 
can demonstrate to the satisfaction of the Control Authority that the 
lead and copper levels are actually representative.
    How should Control Authorities and Industrial Users address 
analytical variability when determining if a pollutant is present above 
background levels? One commenter requested clarification on how to 
handle a situation where the Industrial User and the Control Authority 
had determined that a pollutant was not present, but subsequently found 
slightly higher levels based on monitoring data. EPA acknowledges that 
there is some variability in sample results. Therefore, it is possible 
that slightly higher levels of pollutants may be measured in the 
Industrial User's wastewater than in the intake water. If the higher 
levels are within the method variability and the technical evaluation 
shows that the pollutant is neither present nor expected to be present, 
then the results should be considered equal. If the higher levels are 
above the method variability, then the pollutant should be considered 
to be present unless the Industrial User can demonstrate that the 
sample result was in error, or that the intake levels of the pollutant 
have risen to the same extent. EPA notes that the burden is on the 
Industrial User to demonstrate that an analytical error has occurred 
through re-analysis of the sample or other similar means. An unexpected 
result is not sufficient justification to consider a sample result to 
be in error since, as noted above, sampling data at times finds 
pollutants which were not expected to be present. Likewise, the 
Industrial User would need to provide sampling data demonstrating that 
the levels of the pollutant in question have risen in the intake water 
if it believes that this is the reason for the higher levels of the 
pollutant in its wastewater.
    Should any ongoing POTW monitoring be required to demonstrate that 
the waived pollutant continues to be absent from the Discharge? Not all 
commenters agreed with the EPA proposal requiring POTW's to monitor for 
any waived pollutants at least once during the effective period of the 
Industrial User's control mechanism. These commenters believed that the 
combination of the certification and the requirement to report changes 
in the Discharge were sufficient to ensure that the Control Authority 
would become aware of changes that would require a resumption of 
monitoring. Other commenters believed that the once per control 
mechanism term was appropriate and would not burden POTWs, while other 
commenters believed that monitoring once per year for the waived 
pollutants was appropriate. EPA disagrees that annual monitoring will 
be necessary to determine whether or not the pollutant is present. As 
stated in the preamble of the proposal, EPA asserts that if the Control 
Authority has determined, based on both sampling data and a

[[Page 60142]]

technical evaluation, that a pollutant is not present at levels above 
background, and if the Industrial User continues to certify that there 
is no increase in the pollutant in its wastewater due to the activities 
of the Industrial User, then it is appropriate to allow the Control 
Authority to determine whether to sample the facility more frequently 
than once during the term of the control mechanism. EPA received no 
data to suggest that more frequent monitoring is necessary. EPA notes 
that the Control Authority has the discretion to determine that the 
Industrial User must monitor for a pollutant despite the User having 
demonstrated that it is not present. Where the Control Authority elects 
to require monitoring in such circumstances, it may determine the 
appropriate frequency of monitoring, including frequencies that are 
less than twice per year. In addition, the Industrial User may also 
monitor on its own, even though the requirement to do so has been 
waived, but in this case the Industrial User must report the results of 
that monitoring to the Control Authority in accordance with 40 CFR 
403.12(g)(6).
    Although EPA is not requiring annual monitoring by the POTW, EPA 
has concluded that at least one effluent sample during the term of the 
Industrial User's control mechanism is necessary to confirm that no 
changes have occurred, and that the monitoring waiver is still 
appropriate. EPA is requiring that this monitoring be done by the POTW 
to ensure an independent assessment of the Industrial User. EPA has 
concluded that the most appropriate time for the monitoring to occur is 
during the renewal of the control mechanism. However, EPA also asserts 
that the timing is best left to the discretion of the POTW and, 
therefore, is not requiring that the monitoring occur at any specific 
time during the duration of the control mechanism.
    Should the waiver be available for pollutants that in the past have 
caused Pass Through or Interference, or otherwise caused problems at 
the POTW? One commenter suggested that the monitoring waiver for 
pollutants not present should not be available for pollutants which 
have been problematic for the POTW in the past. EPA agrees that POTWs 
must be more careful when waiving the monitoring requirements for 
pollutants for which the POTW has previously experienced problems. In 
these instances, more monitoring data and a more careful review of the 
technical evaluation is warranted. However, if the pollutant is truly 
not present at the facility or in the Discharge and there is no 
potential for spills or slug loads of the pollutant, EPA does not view 
it as necessary to require monitoring at that Industrial User's 
facility merely because the pollutant was associated with past POTW 
problems and, therefore, will not prohibit granting a waiver in these 
circumstances. Granting the waiver is at the discretion of the Control 
Authority, and where there has been a history of problems with a 
pollutant at the POTW, the Control Authority may deny a waiver, if it 
deems this necessary to prevent future problems.
    Is the waiver available for facilities subject to the Organic 
Chemicals, Plastics, and Synthetic Fibers category? Most comments 
supported allowing waiver of the monitoring requirements for pollutants 
not present for facilities subject to the OCPSF Standards. EPA agrees 
that Control Authorities should be able to grant the monitoring waiver 
to OCPSF dischargers if appropriate. Several commenters indicated that 
they know of OCPSF facilities that manufacture a limited number of 
products and have fairly consistent Discharges. A monitoring waiver for 
some regulated pollutants may be appropriate for such facilities and, 
therefore, a blanket exclusion for all OCPSF facilities from the waiver 
would not be appropriate. However, EPA notes that production and 
Discharges from OCPSF facilities can be highly variable. Control 
Authorities must ensure that sufficient information, including sampling 
data, is available to assess whether a particular pollutant is present 
at any time, taking into consideration all of the variability in 
production. When a particular pollutant may be present at some time 
based on the products that are manufactured at the facility, even if 
the pollutant is not currently present, a monitoring waiver for that 
pollutant would not be appropriate. If any facility's operations, 
regardless of whether they are subject to OCPSF Standards or not, are 
sufficiently variable that a reasonable determination cannot be made as 
to whether a pollutant will consistently be absent from the Discharge, 
the Control Authority may not grant a waiver.
    How does the waiver for pollutants neither present nor expected to 
be present affect other waivers specifically included in a categorical 
Pretreatment Standard, such as the option under the metal finishing 
Standards allowing for implementation of a toxic organics management 
plan in lieu of monitoring for total toxic organics? Several commenters 
compared the waiver of monitoring for pollutants not present being 
promulgated today to other monitoring waivers such as the management 
plan and certification option under the metal finishing Standards in 
lieu of total toxic organics monitoring. In order to avoid any 
potential confusion, EPA is adding specific language to today's 
regulations which states that the monitoring waiver and certification 
for a pollutant that is not present cannot be used in place of any 
certification process established in categor