[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: 40CFR403.8]



[Page 27-32]

 

                   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.  403.8  Pretreatment Program Requirements: Development and 

Implementation by POTW.



    (a) POTWs required to develop a pretreatment program. Any POTW (or 

combination of POTWs operated by the same authority) with a total design 

flow greater than 5 million gallons per day (mgd) and receiving from 

Industrial Users pollutants which Pass Through or Interfere with the 

operation of the POTW or are otherwise subject to Pretreatment Standards 

will be required to establish a POTW Pretreatment Program unless the 

NPDES State exercises its option to assume local responsibilities as 

provided for in Sec.  403.10(e). The Regional Administrator or Director 

may require that a POTW with a design flow of 5 mgd or less develop a 

POTW Pretreatment Program if he or she finds that the nature or volume 

of the industrial influent, treatment process upsets, violations of POTW 

effluent limitations, contamination of municipal sludge, or other 

circumstances warrant in order to prevent Interference with the POTW or 

Pass Through.

    (b) Deadline for Program Approval. A POTW which meets the criteria 

of paragraph (a) of this section must receive approval of a POTW 

Pretreatment Program no later than 3 years after the reissuance or 

modification of its existing NPDES permit but in no case later than July 

1, 1983. POTWs whose NPDES permits are modified under section 301(h) of 

the Act shall have a Pretreatment Program within three (3) years as 

provided for in 40 CFR part 125, subpart G. POTWs identified after July 

1, 1983 as being required to develop a POTW Pretreatment Program under 

paragraph (a) of this section shall develop and submit such a program 

for approval as soon as possible, but in no case later than one year 

after written notification from the Approval Authority of such 

identification. The POTW Pretreatment Program shall meet the criteria 

set forth in paragraph (f) of this section and shall be administered by 

the POTW to ensure compliance by Industrial Users with applicable 

Pretreatment Standards and Requirements.

    (c) Incorporation of approved programs in permits. A POTW may 

develop an appropriate POTW Pretreatment Program any time before the 

time limit set forth in paragraph (b) of this section. The POTW's NPDES 

Permit will be reissued or modified by the NPDES State or EPA to 

incorporate the approved Program as enforceable conditions of the 

Permit. The modification of a POTW's NPDES Permit for the purposes of 

incorporating a POTW Pretreatment Program approved in accordance with 

the procedure in Sec.  403.11 shall be deemed a minor Permit 

modification subject to the procedures in 40 CFR 122.63.

    (d) Incorporation of compliance schedules in permits. [Reserved]

    (e) Cause for reissuance or modification of Permits. Under the 

authority of section 402(b)(1)(C) of the Act, the Approval Authority may 

modify, or alternatively, revoke and reissue a POTW's Permit in order 

to:

    (1) Put the POTW on a compliance schedule for the development of a 

POTW Pretreatment Program where the addition of pollutants into a POTW 

by an Industrial User or combination of Industrial Users presents a 

substantial hazard to the functioning of the treatment works, quality of 

the receiving waters, human health, or the environment;



[[Page 28]]



    (2) Coordinate the issuance of a section 201 construction grant with 

the incorporation into a permit of a compliance schedule for POTW 

Pretreatment Program;

    (3) Incorporate a modification of the permit approved under section 

301(h) or 301(i) of the Act;

    (4) Incorporate an approved POTW Pretreatment Program in the POTW 

permit; or

    (5) Incorporate a compliance schedule for the development of a POTW 

pretreatment program in the POTW permit.

    (6) Incorporate the removal credits (established under Sec.  403.7) 

in the POTW permit.

    (f) POTW pretreatment requirements. A POTW pretreatment program must 

be based on the following legal authority and include the following 

procedures. These authorities and procedures shall at all times be fully 

and effectively exercised and implemented.

    (1) Legal authority. The POTW shall operate pursuant to legal 

authority enforceable in Federal, State or local courts, which 

authorizes or enables the POTW to apply and to enforce the requirements 

of sections 307 (b) and (c), and 402(b)(8) of the Act and any 

regulations implementing those sections. Such authority may be contained 

in a statute, ordinance, or series of contracts or joint powers 

agreements which the POTW is authorized to enact, enter into or 

implement, and which are authorized by State law. At a minimum, this 

legal authority shall enable the POTW to:

    (i) Deny or condition new or increased contributions of pollutants, 

or changes in the nature of pollutants, to the POTW by Industrial Users 

where such contributions do not meet applicable Pretreatment Standards 

and Requirements or where such contributions would cause the POTW to 

violate its NPDES permit;

    (ii) Require compliance with applicable Pretreatment Standards and 

Requirements by Industrial Users;

    (iii) Control through Permit, order, or similar means, the 

contribution to the POTW by each Industrial User to ensure compliance 

with applicable Pretreatment Standards and Requirements. In the case of 

Industrial Users identified as significant under Sec.  403.3(v), this 

control shall be achieved through individual permits or equivalent 

individual control mechanisms issued to each such User except as 

follows.

    (A)(1) At the discretion of the POTW, this control may include use 

of general control mechanisms if the following conditions are met. All 

of the facilities to be covered must:

    (i) Involve the same or substantially similar types of operations;

    (ii) Discharge the same types of wastes;

    (iii) Require the same effluent limitations;

    (iv) Require the same or similar monitoring; and

    (v) In the opinion of the POTW, are more appropriately controlled 

under a general control mechanism than under individual control 

mechanisms.

    (2) To be covered by the general control mechanism, the Significant 

Industrial User must file a written request for coverage that identifies 

its contact information, production processes, the types of wastes 

generated, the location for monitoring all wastes covered by the general 

control mechanism, any requests in accordance with Sec.  403.12(e)(2) 

for a monitoring waiver for a pollutant neither present nor expected to 

be present in the Discharge, and any other information the POTW deems 

appropriate. A monitoring waiver for a pollutant neither present nor 

expected to be present in the Discharge is not effective in the general 

control mechanism until after the POTW has provided written notice to 

the Significant Industrial User that such a waiver request has been 

granted in accordance with Sec.  403.12(e)(2). The POTW must retain a 

copy of the general control mechanism, documentation to support the 

POTW's determination that a specific Significant Industrial User meets 

the criteria in paragraphs (f)(1)(iii)(A)(1) through (5) of this 

section, and a copy of the User's written request for coverage for 3 

years after the expiration of the general control mechanism. A POTW may 

not control a Significant Industrial User through a general control 

mechanism where the facility is subject to production-based categorical 

Pretreatment Standards or categorical Pretreatment Standards expressed 

as



[[Page 29]]



mass of pollutant discharged per day or for Industrial Users whose 

limits are based on the Combined Wastestream Formula or Net/Gross 

calculations (Sec. Sec.  403.6(e) and 403.15).

    (B) Both individual and general control mechanisms must be 

enforceable and contain, at a minimum, the following conditions:

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

    (2) Statement of non-transferability without, at a minimum, prior 

notification to the POTW and provision of a copy of the existing control 

mechanism to the new owner or operator;

    (3) Effluent limits, including Best Management Practices, based on 

applicable general Pretreatment Standards in part 403 of this chapter, 

categorical Pretreatment Standards, local limits, and State and local 

law;

    (4) Self-monitoring, sampling, reporting, notification and 

recordkeeping requirements, including an identification of the 

pollutants to be monitored (including the process for seeking a waiver 

for a pollutant neither present nor expected to be present in the 

Discharge in accordance with Sec.  403.12(e)(2), or a specific waived 

pollutant in the case of an individual control mechanism), sampling 

location, sampling frequency, and sample type, based on the applicable 

general Pretreatment Standards in part 403 of this chapter, categorical 

Pretreatment Standards, local limits, and State and local law;

    (5) Statement of applicable civil and criminal penalties for 

violation of Pretreatment Standards and requirements, and any applicable 

compliance schedule. Such schedules may not extend the compliance date 

beyond applicable federal deadlines;

    (6) Requirements to control Slug Discharges, if determined by the 

POTW to be necessary.

    (iv) Require (A) the development of a compliance schedule by each 

Industrial User for the installation of technology required to meet 

applicable Pretreatment Standards and Requirements and (B) the 

submission of all notices and self-monitoring reports from Industrial 

Users as are necessary to assess and assure compliance by Industrial 

Users with Pretreatment Standards and Requirements, including but not 

limited to the reports required in Sec.  403.12.

    (v) Carry out all inspection, surveillance and monitoring procedures 

necessary to determine, independent of information supplied by 

Industrial Users, compliance or noncompliance with applicable 

Pretreatment Standards and Requirements by Industrial Users. 

Representatives of the POTW shall be authorized to enter any premises of 

any Industrial User in which a Discharge source or treatment system is 

located or in which records are required to be kept under Sec.  

403.12(o) to assure compliance with Pretreatment Standards. Such 

authority shall be at least as extensive as the authority provided under 

section 308 of the Act;

    (vi)(A) Obtain remedies for noncompliance by any Industrial User 

with any Pretreatment Standard and Requirement. All POTW's shall be able 

to seek injunctive relief for noncompliance by Industrial Users with 

Pretreatment Standards and Requirements. All POTWs shall also have 

authority to seek or assess civil or criminal penalties in at least the 

amount of $1,000 a day for each violation by Industrial Users of 

Pretreatment Standards and Requirements.

    (B) Pretreatment requirements which will be enforced through the 

remedies set forth in paragraph (f)(1)(vi)(A) of this section, will 

include but not be limited to, the duty to allow or carry out 

inspections, entry, or monitoring activities; any rules, regulations, or 

orders issued by the POTW; any requirements set forth in control 

mechanisms issued by the POTW; or any reporting requirements imposed by 

the POTW or these regulations in this part. The POTW shall have 

authority and procedures (after informal notice to the discharger) 

immediately and effectively to halt or prevent any discharge of 

pollutants to the POTW which reasonably appears to present an imminent 

endangerment to the health or welfare of persons. The POTW shall also 

have authority and procedures (which shall include notice to the 

affected industrial users and an opportunity to respond) to halt or 

prevent any discharge to the POTW which presents or may



[[Page 30]]



present an endangerment to the environment or which threatens to 

interfere with the operation of the POTW. The Approval Authority shall 

have authority to seek judicial relief and may also use administrative 

penalty authority when the POTW has sought a monetary penalty which the 

Approval Authority believes to be insufficient.

    (vii) Comply with the confidentiality requirements set forth in 

Sec.  403.14.

    (2) Procedures. The POTW shall develop and implement procedures to 

ensure compliance with the requirements of a Pretreatment Program. At a 

minimum, these procedures shall enable the POTW to:

    (i) Identify and locate all possible Industrial Users which might be 

subject to the POTW Pretreatment Program. Any compilation, index or 

inventory of Industrial Users made under this paragraph shall be made 

available to the Regional Administrator or Director upon request;

    (ii) Identify the character and volume of pollutants contributed to 

the POTW by the Industrial Users identified under paragraph (f)(2)(i) of 

this section. This information shall be made available to the Regional 

Administrator or Director upon request;

    (iii) Notify Industrial Users identified under paragraph (f)(2)(i) 

of this section, of applicable Pretreatment Standards and any applicable 

requirements under sections 204(b) and 405 of the Act and subtitles C 

and D of the Resource Conservation and Recovery Act. Within 30 days of 

approval pursuant to 40 CFR 403.8(f)(6), of a list of significant 

industrial users, notify each significant industrial user of its status 

as such and of all requirements applicable to it as a result of such 

status.

    (iv) Receive and analyze self-monitoring reports and other notices 

submitted by Industrial Users in accordance with the self-monitoring 

requirements in Sec.  403.12;

    (v) Randomly sample and analyze the effluent from Industrial Users 

and conduct surveillance activities in order to identify, independent of 

information supplied by Industrial Users, occasional and continuing 

noncompliance with Pretreatment Standards. Inspect and sample the 

effluent from each Significant Industrial User at least once a year, 

except as otherwise specified below:

    (A) Where the POTW has authorized the Industrial User subject to a 

categorical Pretreatment Standard to forego sampling of a pollutant 

regulated by a categorical Pretreatment Standard in accordance with 

Sec.  403.12(e)(3), the POTW must sample for the waived pollutant(s) at 

least once during the term of the Categorical Industrial User's control 

mechanism. In the event that the POTW subsequently determines that a 

waived pollutant is present or is expected to be present in the 

Industrial User's wastewater based on changes that occur in the User's 

operations, the POTW must immediately begin at least annual effluent 

monitoring of the User's Discharge and inspection.

    (B) Where the POTW has determined that an Industrial User meets the 

criteria for classification as a Non-Significant Categorical Industrial 

User, the POTW must evaluate, at least once per year, whether an 

Industrial User continues to meet the criteria in Sec.  403.3(v)(2).

    (C) In the case of Industrial Users subject to reduced reporting 

requirements under Sec.  403.12(e)(3), the POTW must randomly sample and 

analyze the effluent from Industrial Users and conduct inspections at 

least once every two years. If the Industrial User no longer meets the 

conditions for reduced reporting in Sec.  403.12(e)(3), the POTW must 

immediately begin sampling and inspecting the Industrial User at least 

once a year.

    (vi) Evaluate whether each such Significant Industrial User needs a 

plan or other action to control Slug Discharges. For Industrial Users 

identified as significant prior to November 14, 2005, this evaluation 

must have been conducted at least once by October 14, 2006; additional 

Significant Industrial Users must be evaluated within 1 year of being 

designated a Significant Industrial User. For purposes of this 

subsection, a Slug Discharge is any Discharge of a non-routine, episodic 

nature, including but not limited to an accidental spill or a non-

customary batch Discharge, which has a reasonable potential to cause 

Interference or



[[Page 31]]



Pass Through, or in any other way violate the POTW's regulations, local 

limits or Permit conditions. The results of such activities shall be 

available to the Approval Authority upon request. Significant Industrial 

Users are required to notify the POTW immediately of any changes at its 

facility affecting potential for a Slug Discharge. If the POTW decides 

that a slug control plan is needed, the plan shall contain, at a 

minimum, the following elements:

    (A) Description of discharge practices, including non-routine batch 

Discharges;

    (B) Description of stored chemicals;

    (C) Procedures for immediately notifying the POTW of Slug 

Discharges, including any Discharge that would violate a prohibition 

under Sec.  403.5(b) with procedures for follow-up written notification 

within five days;

    (D) If necessary, procedures to prevent adverse impact from 

accidental spills, including inspection and maintenance of storage 

areas, handling and transfer of materials, loading and unloading 

operations, control of plant site run-off, worker training, building of 

containment structures or equipment, measures for containing toxic 

organic pollutants (including solvents), and/or measures and equipment 

for emergency response;

    (vii) Investigate instances of noncompliance with Pretreatment 

Standards and Requirements, as indicated in the reports and notices 

required under Sec.  403.12, or indicated by analysis, inspection, and 

surveillance activities described in paragraph (f)(2)(v) of this 

section. Sample taking and analysis and the collection of other 

information shall be performed with sufficient care to produce evidence 

admissible in enforcement proceedings or in judicial actions; and

    (viii) Comply with the public participation requirements of 40 CFR 

part 25 in the enforcement of National Pretreatment Standards. These 

procedures shall include provision for at least annual public 

notification in a newspaper(s) of general circulation that provides 

meaningful public notice within the jurisdiction(s) served by the POTW 

of Industrial Users which, at any time during the previous 12 months, 

were in significant noncompliance with applicable Pretreatment 

requirements. For the purposes of this provision, a Significant 

Industrial User (or any Industrial User which violates paragraphs 

(f)(2)(viii)(C), (D), or (H) of this section) is in significant 

noncompliance if its violation meets one or more of the following 

criteria:

    (A) Chronic violations of wastewater Discharge limits, defined here 

as those in which 66 percent or more of all of the measurements taken 

for the same pollutant parameter during a 6-month period exceed (by any 

magnitude) a numeric Pretreatment Standard or Requirement, including 

instantaneous limits, as defined by 40 CFR 403.3(l);

    (B) Technical Review Criteria (TRC) violations, defined here as 

those in which 33 percent or more of all of the measurements taken for 

the same pollutant parameter during a 6-month period equal or exceed the 

product of the numeric Pretreatment Standard or Requirement including 

instantaneous limits, as defined by 40 CFR 403.3(l) multiplied by the 

applicable TRC (TRC=1.4 for BOD, TSS, fats, oil, and grease, and 1.2 for 

all other pollutants except pH);

    (C) Any other violation of a Pretreatment Standard or Requirement as 

defined by 40 CFR 403.3(l) (daily maximum, long-term average, 

instantaneous limit, or narrative Standard) that the POTW determines has 

caused, alone or in combination with other Discharges, Interference or 

Pass Through (including endangering the health of POTW personnel or the 

general public);

    (D) Any discharge of a pollutant that has caused imminent 

endangerment to human health, welfare or to the environment or has 

resulted in the POTW's exercise of its emergency authority under 

paragraph (f)(1)(vi)(B) of this section to halt or prevent such a 

discharge;

    (E) Failure to meet, within 90 days after the schedule date, a 

compliance schedule milestone contained in a local control mechanism or 

enforcement order for starting construction, completing construction, or 

attaining final compliance;

    (F) Failure to provide, within 45 days after the due date, required 

reports such as baseline monitoring reports, 90-



[[Page 32]]



day compliance reports, periodic self-monitoring reports, and reports on 

compliance with compliance schedules;

    (G) Failure to accurately report noncompliance;

    (H) Any other violation or group of violations, which may include a 

violation of Best Management Practices, which the POTW determines will 

adversely affect the operation or implementation of the local 

Pretreatment program.

    (3) Funding. The POTW shall have sufficient resources and qualified 

personnel to carry out the authorities and procedures described in 

paragraphs (f) (1) and (2) of this section. In some limited 

circumstances, funding and personnel may be delayed where (i) the POTW 

has adequate legal authority and procedures to carry out the 

Pretreatment Program requirements described in this section, and (ii) a 

limited aspect of the Program does not need to be implemented 

immediately (see Sec.  403.9(b)).

    (4) Local limits. The POTW shall develop local limits as required in 

Sec.  403.5(c)(1), or demonstrate that they are not necessary.

    (5) The POTW shall develop and implement an enforcement response 

plan. This plan shall contain detailed procedures indicating how a POTW 

will investigate and respond to instances of industrial user 

noncompliance. The plan shall, at a minimum:

    (i) Describe how the POTW will investigate instances of 

noncompliance;

    (ii) Describe the types of escalating enforcement responses the POTW 

will take in response to all anticipated types of industrial user 

violations and the time periods within which responses will take place;

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

of response;

    (iv) Adequately reflect the POTW's primary responsibility to enforce 

all applicable pretreatment requirements and standards, as detailed in 

40 CFR 403.8 (f)(1) and (f)(2).

    (6) The POTW shall prepare and maintain a list of its Industrial 

Users meeting the criteria in Sec.  403.3(v)(1). The list shall identify 

the criteria in Sec.  403.3(v)(1) applicable to each Industrial User 

and, where applicable, shall also indicate whether the POTW has made a 

determination pursuant to Sec.  403.3(v)(2) that such Industrial User 

should not be considered a Significant Industrial User. The initial list 

shall be submitted to the Approval Authority pursuant to Sec.  403.9 or 

as a non-substantial modification pursuant to Sec.  403.18(d). 

Modifications to the list shall be submitted to the Approval Authority 

pursuant to Sec.  403.12(i)(1).

    (g) A POTW that chooses to receive electronic documents must satisfy 

the requirements of 40 CFR Part 3--(Electronic reporting).



[46 FR 9439, Jan. 28, 1981, as amended at 49 FR 31224, Aug. 3, 1984; 51 

FR 20429, 20430, June 4, 1986; 51 FR 23759, July 1, 1986; 53 FR 40612, 

Oct. 17, 1988; 55 FR 30129, July 24, 1990; 58 FR 18017, Apr. 7, 1993; 60 

FR 33932, June 29, 1995; 62 FR 38414, July 17, 1997; 70 FR 59889, Oct. 

13, 2005; 70 FR 60193, Oct. 14, 2005]