[Code of Federal Regulations]

[Title 40, Volume 28]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR403.10]



[Page 34-36]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

 

PART 403_GENERAL PRETREATMENT REGULATIONS FOR EXISTING AND NEW SOURCES OF 

POLLUTION--Table of Contents

 

Sec.  403.10  Development and submission of NPDES State pretreatment 

programs.



    (a) Approval of State Programs. No State NPDES program shall be 

approved under section 402 of the Act after the effective date of these 

regulations unless it is determined to meet the requirements of 

paragraph (f) of this section. Notwithstanding any other provision of 

this regulation, a State will be required to act upon those authorities 

which it currently possesses before the approval of a State Pretreatment 

Program.

    (b) [Reserved]

    (c) Failure to request approval. Failure of an NPDES State with a 

permit program approved under section 402 of the Act prior to December 

27, 1977, to seek approval of a State Pretreatment Program and failure 

of an approved State to administer its State Pretreatment Program in 

accordance with the requirements of this section constitutes grounds for 

withdrawal of NPDES program approval under section 402(c)(3) of the Act.

    (d) [Reserved]

    (e) State Program in lieu of POTW Program. Notwithstanding the 

provision of Sec.  403.8(a), a State with an approved Pretreatment 

Program may assume responsibility for implementing the POTW Pretreatment 

Program requirements set forth in Sec.  403.8(f) in lieu of requiring 

the POTW to develop a Pretreatment Program. However, this does not 

preclude POTW's from independently developing Pretreatment Programs.

    (f) State Pretreatment Program requirements. In order to be 

approved, a request for State Pretreatment Program Approval must 

demonstrate that the State Pretreatment Program has the following 

elements:

    (1) Legal authority. The Attorney General's Statement submitted in 

accordance with paragraph (g)(1)(i) of this section shall certify that 

the Director has authority under State law to operate and enforce the 

State Pretreatment Program to the extent required by this part and by 40 

CFR 123.27. At a minimum, the Director shall have the authority to:

    (i) Incorporate POTW Pretreatment Program conditions into permits 

issued to POTW's; require compliance by POTW's with these incorporated 

permit conditions; and require compliance by Industrial Users with 

Pretreatment Standards;

    (ii) Ensure continuing compliance by POTW's with pretreatment 

conditions incorporated into the POTW Permit through review of 

monitoring reports submitted to the Director by the POTW in accordance 

with Sec.  403.12 and ensure continuing compliance by Industrial Users 

with Pretreatment Standards through the review of self-monitoring 

reports submitted to the POTW or to the Director by the Industrial Users 

in accordance with Sec.  403.12;

    (iii) Carry out inspection, surveillance and monitoring procedures 

which will determine, independent of information supplied by the POTW, 

compliance or noncompliance by the POTW with pretreatment conditions 

incorporated into the POTW Permit; and carry out inspection, 

surveillance and monitoring procedures which will determine, independent 

of information supplied by the Industrial User, whether the Industrial 

User is in compliance with Pretreatment Standards;

    (iv) Seek civil and criminal penalties, and injunctive relief, for 

noncompliance by the POTW with pretreatment conditions incorporated into 

the POTW Permit and for noncompliance with Pretreatment Standards by 

Industrial



[[Page 35]]



Users as set forth in Sec.  403.8(f)(1)(vi). The Director shall have 

authority to seek judicial relief for noncompliance by Industrial Users 

even when the POTW has acted to seek such relief (e.g., if the POTW has 

sought a penalty which the Director finds to be insufficient);

    (v) Approve and deny requests for approval of POTW Pretreatment 

Programs submitted by a POTW to the Director;

    (vi) Deny and recommend approval of (but not approve) requests for 

Fundamentally Different Factors variances submitted by Industrial Users 

in accordance with the criteria and procedures set forth in Sec.  

403.13; and

    (vii) Approve and deny requests for authority to modify categorical 

Pretreatment Standards to reflect removals achieved by the POTW in 

accordance with the criteria and procedures set forth in Sec. Sec.  

403.7, 403.9 and 403.11.

    (2) Procedures. The Director shall have developed procedures to 

carry out the requirements of sections 307 (b) and (c), and 402(b)(1), 

402(b)(2), 402(b)(8), and 402(b)(9) of the Act. At a minimum, these 

procedures shall enable the Director to:

    (i) Identify POTW's required to develop Pretreatment Programs in 

accordance with Sec.  403.8(a) and notify these POTW's of the need to 

develop a POTW Pretreatment Program. In the absence of a POTW 

Pretreatment Program, the State shall have procedures to carry out the 

activities set forth in Sec.  403.8(f)(2);

    (ii) Provide technical and legal assistance to POTW's in developing 

Pretreatment Programs;

    (iii) Develop compliance schedules for inclusion in POTW Permits 

which set forth the shortest reasonable time schedule for the completion 

of tasks needed to implement a POTW Pretreatment Program. The final 

compliance date in these schedules shall be no later than July 1, 1983;

    (iv) Sample and analyze:

    (A) Influent and effluent of the POTW to identify, independent of 

information supplied by the POTW, compliance or noncompliance with 

pollutant removal levels set forth in the POTW permit (see Sec.  403.7); 

and

    (B) The contents of sludge from the POTW and methods of sludge 

disposal and use to identify, independent of information supplied by the 

POTW, compliance or noncompliance with requirements applicable to the 

selected method of sludge management;

    (v) Investigate evidence of violations of pretreatment conditions 

set forth in the POTW Permit by taking samples and acquiring other 

information as needed. This data acquisition shall be performed with 

sufficient care as to produce evidence admissible in an enforcement 

proceeding or in court;

    (vi) Review and approve requests for approval of POTW Pretreatment 

Programs and authority to modify categorical Pretreatment Standards 

submitted by a POTW to the Director; and

    (vii) Consider requests for Fundamentally Different Factors 

variances submitted by Industrial Users in accordance with the criteria 

and procedures set forth in Sec.  403.13.

    (3) Funding. The Director shall assure that funding and qualified 

personnel are available to carry out the authorities and procedures 

described in paragraphs (f)(1) and (2) of this section.

    (g) Content of State Pretreatment Program submission. The request 

for State Pretreatment Program approval will consist of:

    (1)(i) A statement from the State Attorney General (or the Attorney 

for those State agencies which have independent legal counsel) that the 

laws of the State provide adequate authority to implement the 

requirements of this part. The authorities cited by the Attorney General 

in this statement shall be in the form of lawfully adopted State 

statutes or regulations which shall be effective by the time of approval 

of the State Pretreatment Program; and

    (ii) Copies of all State statutes and regulations cited in the above 

statement;

    (iii) States with approved Pretreatment Programs shall establish 

Pretreatment regulations by November 16, 1989, unless the State would be 

required to enact or amend statutory provision, in which case, such 

regulations must be established by November 16, 1990.



[[Page 36]]



    (2) A description of the funding levels and full- and part-time 

personnel available to implement the program; and

    (3) Any modifications or additions to the Memorandum of Agreement 

(required by 40 CFR 123.24) which may be necessary for EPA and the State 

to implement the requirements of this part.

    (h) EPA Action. Any approved NPDES State requesting State 

Pretreatment Program approval shall submit to the Regional Administrator 

three copies of the Submission described in paragraph (g) of this 

section. Upon a preliminary determination that the Submission meets the 

requirements of paragraph (g) the Regional Administrator shall:

    (1) Notify the Director that the Submission has been received and is 

under review; and

    (2) Commence the program revision process set out in 40 CFR 123.62. 

For purposes of that section all requests for approval of State 

Pretreatment Programs shall be deemed substantial program modifications. 

A comment period of at least 30 days and the opportunity for a hearing 

shall be afforded the public on all such proposed program revisions.

    (i) Notification where submission is defective. If, after review of 

the Submission as provided for in paragraph (h) of this section, EPA 

determines that the Submission does not comply with the requirements of 

paragraph (f) or (g) of this section EPA shall so notify the applying 

NPDES State in writing. This notification shall identify any defects in 

the Submission and advise the NPDES State of the means by which it can 

comply with the requirements of this part.



[46 FR 9439, Jan. 28, 1981, as amended at 51 FR 20429, June 4, 1986; 53 

FR 40612, Oct. 17, 1988; 55 FR 30131, July 24, 1990; 58 FR 18017, Apr. 

7, 1993; 60 FR 33932, June 29, 1995]