[Federal Register Volume 62, Number 137 (Thursday, July 17, 1997)]
[Rules and Regulations]
[Pages 38406-38415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18860]
[[Page 38405]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 403
Streamlined Procedures for Modifying Approved Publicly Owned Treatment
Works Pretreatment Programs; Final Rule
Federal Register / Vol. 62, No. 137 / Thursday, July 17, 1997 / Rules
and Regulations
[[Page 38406]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 403
[FRL-5859-8]
RIN 2040-AC57
Streamlined Procedures for Modifying Approved Publicly Owned
Treatment Works Pretreatment Programs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Today, EPA is revising the procedures for modifying the
requirements of approved Publicly Owned Treatment Works (POTW)
Pretreatment Programs incorporated into National Pollutant Discharge
Elimination System (NPDES) permits issued to POTWs. The new regulations
will reduce the administrative burden and cost associated with
maintaining approved pretreatment programs without affecting
environmental protection.
DATES: This rule is effective on August 18, 1997. In accordance with 40
CFR 23.2, this rule shall be considered final for the purposes of
judicial review at 1:00 P.M. EDT on July 31, 1997.
ADDRESSES: Copies of comments submitted and the docket for this
rulemaking are available for public inspection at EPA's Water Docket,
Room L-102, 401 M Street, S.W. (MC-4101), Washington, D.C. 20460. The
public may inspect the administrative record for this rulemaking
between the hours of 9 a.m. and 3:30 p.m. on business days. For access
to docket materials, please call (202) 260-3027 for an appointment
during those hours. As provided in 40 CFR part 2, a reasonable fee may
be charged for copying.
FOR FURTHER INFORMATION CONTACT: Jeff Smith, EPA, Office of Wastewater
Management (OWM), Permits Division (4203), 401 M Street, S.W.,
Washington, D.C. 20460, (202) 260-5586.
Supplementary Information:
Regulated Entities
Entities regulated by this action are governmental entities
responsible for implementation of the National Pretreatment Program.
Regulated entities include:
------------------------------------------------------------------------
Examples of regulated
Category entities
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Local government.......................... Publicly Owned Treatment
Works with Approved
Pretreatment programs.
State government.......................... States that act as
Pretreatment Program
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 is regulated by this action, you should carefully
examine the applicability criteria in 40 CFR 403.18 and other
applicable criteria in Part 403 of title 40 of the Code of Federal
Regulations. If you have questions regarding the applicability of this
action to a particular entity, consult the person listed in the
preceding ``FOR FURTHER INFORMATION CONTACT'' section.
Information in this preamble is organized as follows:
I. Background
A. Prior Program Approval Process
B. Summary of Today's Rule
C. Summary of Public Comments
1. General
2. Comments on Further Streamlining
II. Section by Section Analysis
A. Characterization of Modifications
1. General
2. Changes That Relax Legal Authority
3. Changes That Mirror Federal Regulations
4. Changes to pH Limits
5. Reallocation of MAIL
6. Enforcement Response Plans
B. Public Notice Procedures for Substantial Modifications
1. Single Public Notice
2. Adequency of Local Notice
3. Other Changes to Notice Requirements
C. Procedures for Non-substantial Modifications
D. Changes Reported in Annual Reports
III. Regulatory Requirements
A. Execute Order 12866
B. Executive Order 12875
C. Regulatory Flexibility Act
D. Paperwork Reduction Act
E. Unfunded Mandates Reform Act
F. Submission to Congress and the General Accounting Office
I. Background
Today, EPA is revising the procedures for modifying the
requirements of approved Publicly Owned Treatment Works (POTW)
Pretreatment Programs incorporated into National Pollutant Discharge
Elimination System (NPDES) permits issued to POTWs under the Clean
Water Act (CWA).
A. Prior Program Approval Process
EPA provided an extensive discussion of the background for today's
rule in the proposed rule published in the July 30, 1996, Federal
Register document (61 FR 39804). For the sake of brevity, EPA refers
the reader to that notice and only repeats the background necessary to
explain the need for today's final rule.
POTWs that meet certain requirements must develop pretreatment
programs to control industrial discharges into their sewage systems.
CWA section 402(b)(8); 40 CFR 403.8(a). EPA or the State (in States
approved by EPA to act as the pretreatment program ``Approval
Authority'') must approve the POTW's pretreatment program request
according to the procedures in 40 CFR 403.11
Regulations at 40 CFR 403.8 and 403.9 describe the substantive
content of and documentation required for a POTW pretreatment program.
Under 40 CFR 403.8(f), the POTW pretreatment program submission must
reflect specified legal authorities, compliance assurance procedures,
adequate funding, a local limit development demonstration, an
enforcement response plan (ERP), and a list of significant industrial
users. After approval by the Approval Authority, the entire approved
pretreatment program is then incorporated as an enforceable condition
of the POTW's NPDES permit. 40 CFR 122.44(j)(2) and 403.8(c).
Regulations at 40 CFR 403.18 specify the procedures used to modify
approved POTW programs. EPA originally promulgated those procedures on
October 17, 1988. 53 FR 40562, 40615. Section 403.18(a) requires the
POTW to follow program modification procedures whenever there is a
``significant change'' in the approved POTW pretreatment program.
Section 403.18(c) and (d) outlines specific procedures for Approval
Authority review and approval of ``substantial program modifications''
and other non-substantial program modifications. Section 403.18(b)
contains a list of changes which are ``substantial program
modifications'' and gives the Approval Authority power to designate
other modifications as substantial modifications.
Section 403.18(c) describes the procedure for Approval Authority
action on ``substantial program modifications.'' Under this section,
the POTW submits specified documents; the Approval Authority uses the
procedures in 40 CFR 403.11 (b)-(f) to act on the proposed
modification; and the approved modification is incorporated into the
POTW's NPDES permit as a minor permit modification under 40 CFR
122.63(g). Under these procedures, the Approval Authority determines
whether the submission is
[[Page 38407]]
complete, issues public notice of the complete request for substantial
program modification, acts on the submission within 90 days, and
publishes notice of approval or disapproval.
To provide notice of the request for approval, the Approval
Authority mails notices to specified individuals, publishes notice of
the request in the largest daily newspaper within the jurisdiction
served by the POTW, provides a 30-day public comment period, provides
an opportunity to request a public hearing, and holds a public hearing
at the POTW's request or if there is significant public interest in
doing so. 40 CFR 403.11(b)(1). To provide notice of the approval or
disapproval decision, the Approval Authority provides written notice to
all persons who submitted comments or participated in the public
hearing if held, and publishes notice in the same newspaper as the
original notice of request for approval was published. 40 CFR
403.11(e).
Under the existing Sec. 403.18(b)(2) procedures for approval of
non-substantial program modifications, the POTW must notify the
Approval Authority at least 30 days prior to implementation of a non-
substantial modification. The modification is considered approved
unless the Approval Authority decides within 90 days that the change is
substantial and initiates the procedures for approval of substantial
program modifications. Once again, the approved non-substantial change
is incorporated into the NPDES permit as a minor permit modification
under 40 CFR 122.63(g).
B. Summary of Today's Rule
Today's rule streamlines the procedures for modifying approved POTW
Pretreatment Programs in several ways. First, fewer categories of
modifications are considered ``substantial'' and, therefore,
automatically subject to the detailed public notice procedures.
Modifications that will no longer automatically be considered
``substantial'' include: changes that result in more prescriptive POTW
legal authority; changes to legal authority that reflect changes to the
Federal regulations; changes to local limits for pH; reallocations of
local limits that do not increase the authorized discharge of the
pollutant from the POTW; and other changes discussed below. 40 CFR
403.18(b). Second, the rule no longer requires the Approval Authority
to issue a public notice of its final approval of a modification if it
received no comments on its proposed approval of the modification and
the modification is approved as proposed. 403.18(c)(3). Third, public
notice provided by a POTW will satisfy the Approval Authority's
obligation to provide notice in certain circumstances. 40 CFR
403.18(c)(4). Fourth, the rule allows a POTW to report changes to its
list of industrial users in the POTW's annual reports, rather than
being required to obtain advance approval. 40 CFR 403.8(f)(6) and
403.12(i)(1). Fifth, the period of notice that POTWs must provide for
non-substantial modifications and the time for review by Approval
Authorities will both be 45 days; POTWs may implement a non-substantial
modification if the Approval Authority does not disapprove it within
that time. 40 CFR 403.18(d). Sixth, the rule grants additional
flexibility regarding the type of newspaper that may publish the
notices and the government agencies that receive individual notice of
all modifications. 40 CFR 403.11(b)(1)(1) (A) and (B).
C. Summary of Public Comments
1. General
EPA proposed regulations on July 30, 1996, responding to problems
experienced in administering the existing rule (61 FR 39804). The
preamble to the proposed rule explains the proposed changes in the
regulation. The public comment period was open for a period of 60 days
and closed on September 30, 1996. Although one comment was not received
until October 2, EPA has responded to all comments received.
EPA received 25 comments, including those from five States, 10
municipalities, one attorney and one trade group that represent
municipalities, one contract operator, one industrial facility, five
trade groups that represent industry, and one environmental public
interest group. A brief summary of the comments is set out below. A
more detailed discussion of the comments received is set out later in
this preamble in the section-by-section analysis.
Virtually all of the commenters recognized the need to streamline
the current procedures for modifying POTW pretreatment programs. One
commenter stated that it supported efforts to reduce the number of
modifications that go through the ``grueling approval process'' and
noted that its last major modification took 6 years to complete. A few
Approval Authorities commented that they rarely receive public
comments. One State commented that cities are required by State law to
issue public notice and that no one had ever commented on the State's
notices.
Commenters also generally supported the details of the proposal. No
commenter opposed the proposal to allow modifications to be approved
following a single public notice when there is no comment on the
modification. No commenter strongly opposed the proposal to allow
changes to legal authority that reflect changes to the Federal
regulations, redistribution of the Maximum Available Industrial Load
and changes to pH limits to be processed as ``non-substantial''
modifications. Although most commenters supported the other deletions
from the definition of ``substantial'' modifications, a few commenters
strongly opposed them. Only one commenter opposed allowing changes to
Industrial User inventories to be reported in annual reports. Most
commenters supported reducing to 45 days the time for review of non-
substantial modifications.
One commenter recommended restricting the time for review of
substantial modifications to 60 days. The commenter noted that the
preamble to the October 18, 1988, revisions to the pretreatment
regulations indicates that EPA would adopt a 60 day limit, but the
regulatory language included the 90 day limit. (53 FR 40562, 40581).
Given that some Approval Authorities are having difficulty performing
reviews within the current 90 day time frame, EPA has decided not to
revise this provision.
2. Comments on Further Streamlining
Several commenters, including a trade association for POTWs,
recommended that streamlining would be best accomplished by removing
the Approved Pretreatment Program from the POTW's NPDES permit, thereby
eliminating the need for permit modifications.
They recommended that the Pretreatment program could be implemented
by direct reference to the regulatory requirements or by placing
performance measures into the POTW's permit. Some commenters suggested
that whether a modification is ``substantial'' should be tied to
specific measures such as whether the modification increases the total
load or has a direct effect on the environment.
One commenter argued that it should not be necessary to get a
permit modification for a ``non-substantial'' modification. The
commenter's State charges thousands of dollars for a permit
modification, including one to incorporate non-substantial
modifications. While expressing no opinion on the reasonableness of
such
[[Page 38408]]
fees for a minor permit modification, EPA notes that a program
modification requires a permit modification if the modification relates
to an enforceable element of the POTW's NPDES permit. 40 CFR 403.8(c).
EPA acknowledges that removing the Pretreatment Program from the
NPDES permit would increase POTW flexibility and eliminate any issues
regarding the need to provide public notice of modifications to the
POTW's program. On the other hand, incorporation of the program into
the permit provides all concerned with the greatest certainty as to the
program's scope and content. As mentioned in the preamble to the
proposal, some stakeholders were concerned that Part 403 standing alone
may not be sufficiently specific to create objective, enforceable
requirements that could be directly implemented. Although one commenter
responded to EPA's request for more specific regulatory language with
the recommendation that streamlining could be accomplished with
language similar to NPDES boilerplate, no commenter provided specific
language.
Today's rule does not remove the Pretreatment Program from the
POTW's NPDES permit. EPA will continue its ongoing efforts to identify
ways to orient the Pretreatment Program towards the accomplishment of
performance measures. Implementation of that approach might involve
NPDES permits that incorporate by reference boilerplate regulatory
language rather than detailed Approved Programs.
II. Section by Section Analysis
A. Characterization of Modifications
1. General
Today's rule reduces the number of categories of Pretreatment
Program modifications that are automatically deemed ``substantial''. 40
CFR 403.18(b). The number of categories that would no longer be deemed
substantial is not, however, as large as EPA proposed. Under the July
30 proposal, only modifications to the POTW's Approved Pretreatment
Program legal authority and local limits that relax the requirements
applicable to industrial users would have continued to be processed as
``substantial'' modifications. Only for these modifications would
Approval Authorities be required to follow the detailed public notice
procedures of 40 CFR 403.11. The proposal would have defined all other
modifications as non-substantial modifications.
While the majority of commenters supported this approach, a few
commenters were very forceful in their opposition to it. One
environmental public interest group objected to the reduction in public
notice. One POTW argued that the problems with the proposal were due to
recategorizing certain significant modifications as ``non-substantial''
and that streamlining could be accomplished without creating these
problems. One industrial trade association asserted that allowing NPDES
permit requirements to be amended without public notice violated
various regulations, statutory requirements and the U.S. Constitution.
These commenters argued that at a minimum, more categories of
modifications should be considered ``substantial'', although they
disagreed on which categories.
Today's rule addresses the concerns of these latter commenters by
retaining as substantial modifications some of the categories that were
proposed to be considered ``non-substantial''. 40 CFR 403.18(b). Under
today's rule, three new categories of program modifications are now
considered ``non-substantial'', specifically: Changes to the POTW's
method of incorporating categorical pretreatment standards; certain
reductions in POTW resources; and changes to sewage sludge management
and disposal practices. In addition, as is discussed below, today's
rule also increases the number of non-substantial modifications by
creating exceptions to two categories of substantial modifications,
namely, changes to legal authorities and changes that result in less
stringent local limits.
Four of the seven categories that EPA proposed to delete from the
definition of ``substantial'' modifications will be retained as
substantial modifications. 40 CFR 403.18(b). The following changes will
continue to constitute ``substantial'' modifications: changes to the
POTW's control mechanism as described in Sec. 403.8(f)(1)(iii);
decreases in the frequency of self-monitoring and reporting required of
industrial users; changes in the POTW's confidentiality procedures; and
decreases in inspections or sampling by the POTW.
It is important to remember that ``decrease in the frequency of
self-monitoring'' and ``decrease in the frequency of industrial user
inspections'' refer to changes in the POTW's general policy and not to
decisions affecting individual industrial users. Similarly, ``changes
to the POTWs control mechanism'' refers to a change in the type of
mechanism used (e.g., permit versus orders) and not to change in one
facility's permit or to changes in the boilerplate or other details of
the permit. Changes affecting individual industrial users are not
substantial modifications.
EPA believes that the remaining three categories may be deleted
from the definition of substantial modifications. Changes to the POTW's
method of incorporation of categorical Pretreatment Standards are not
considered substantial unless the change results in relaxed legal
authority, in which case the change is still required to be reported as
a substantial modification. Significant reductions in POTW resources
are not substantial unless the reductions result in the POTW being
unable to fulfill its other Approved Program requirements, in which
case the POTW still may be held accountable under it NPDES permit.
Changes to the POTW's sewage sludge disposal and management practices
are not themselves part of the Pretreatment Program and, thus, would
not constitute substantial modifications. Like a change to the POTW's
water quality-based NPDES permit limits, sewage sludge practice changes
may affect the program but are not part of the program. These three
categories of modifications are not ``substantial'', although Approval
Authorities would still have the discretion to designate the first two
as substantial.
The proposed regulatory language did not describe criteria for
identifying other substantial modifications or explicitly allow
Approval Authorities to designate other modifications as substantial.
As one commenter noted, the preamble and rulemaking record did not
address this change. Another commenter recommended that Approval
Authorities be able to designate a modification as substantial if it
meets the specified criteria. In response, EPA notes that under the old
rule, if an Approval Authority wanted to disapprove a non-substantial
modification, the Approval Authority would first designate the change
as a substantial modification. That extra designation step is
unnecessary under today's rule, which allows Approval Authorities to
disapprove non-substantial modifications directly. 40 CFR 403.18(d)(2).
Today's rule does, however, give Approval Authorities the option of
designating additional modifications as ``substantial'' if they meet
the specified criteria. 40 CFR 403.18(b)(7).
One commenter recommended that the relaxation of other non-
federally mandated limits such as particle size, malodorous liquids,
numeric limits for non-petroleum oil and grease, and color limits be
considered non-substantial. EPA did not adopt this suggestion. While
many POTWs may not have local
[[Page 38409]]
limits for these pollutants, in some instances local limits on these
pollutants will be appropriate to prevent pass through or interference.
If such local limits are part of an Approved Pretreatment Program, the
presumption would be that the relaxation of these local limits would be
a substantial modification.
2. Changes That Relax Legal Authority
EPA is adopting the proposed revision so that only changes that
result in less stringent POTW legal authority are subject to
substantial modification procedures. 40 CFR 403.18(b)(1). One commenter
argued that nothing in the rulemaking record supports this change. In
response, EPA notes that a POTW is free under the CWA to impose
additional requirements on IUS under State and local law; such
additional requirements may go beyond the minimum requirements of the
POTW's NPDES permits. Such modifications that do not relax legal
authorities would not cause the POTW to be in violation of its existing
NPDES permit and could be implemented by the POTW without modifying the
permit. EPA does not want to discourage such ``beyond the minimum''
actions by requiring review of the changes.
The commenter further suggested that allowing more prescriptive
legal authorities to be adopted by the POTW without being approved as a
substantial modification is an unconstitutional delegation of authority
to the POTW. EPA disagrees. A POTW requirement on an IU that goes
beyond the scope of the existing Approved Program only becomes part of
the Approved Program after it is processed by the Pretreatment Approval
Authority as a program modification. The general public interest in
program modifications is served by the opportunity for public comment
on substantial modifications that result in less prescriptive programs.
The general public interest may also be served in expeditious
implementation of more prescriptive programs when necessary. EPA
assumes that POTW's will faithfully abide by notice requirements of the
federal and State constitutions prior to imposing a more prescriptive
program requirement on an individual affected by a program
modification.
Another commenter noted that designating certain modifications to
legal authority as ``non-substantial'' will provide little relief
because Approval Authorities will still need to determine if the
modification does or does not result in less stringent legal authority.
Although that may be the case in some instances, EPA believes that,
overall, Approval Authorities will benefit from the flexibility to
consider these modifications substantial or non-substantial.
3. Changes that Mirror Federal Regulations
Today's regulation excludes from the definition of ``substantial''
modification those changes to POTW legal authority that result in less
prescriptive programs, but which directly reflect a revision to the
Federal pretreatment regulations (for example, if the federal
regulations are streamlined). 40 CFR 403.18(b)(1). Such modifications
would have already undergone public notice and comment when promulgated
by EPA. As long as the POTW's local ordinance is revised to directly
reflect the new federal requirements, further public notice would be
unnecessary. No commenter opposed this change.
One commenter asked whether the rule would apply to program
modifications that are already required by the federal regulations,
such as modifications to implement the revisions published on October
17, 1988 (53 FR 40562) and July 24, 1990 (55 FR 30082). In response, a
modification could be processed under the revised procedures so long as
the modification mirrors changes to the federal regulation made since
the program's legal authority was approved or last modified. 40 CFR
403.18(b)(1).
One commenter recommended that a program should always be able to
modify its program down to the federal minimum if, e.g., the POTW
committed to additional sampling in the initial program. EPA is not
adopting this approach. While minimum oversight requirements (e.g.,
annual sampling of Significant Industrial Users) are appropriate for
some facilities, additional oversight is required for other facilities.
It would not be appropriate to reduce oversight to the minimum for all
facilities. As long as a specific element of the program is an
enforceable permit requirement, permit modifications will be necessary
if the POTW wants to do less than its permit requires.
4. Changes to pH Limits
Like the proposed rule, today's rule excludes all changes to local
limits for pH from the definition of substantial modifications. 40 CFR
403.18(b)(2). No commenter opposed the proposal. The proposal noted
that it would not affect the prohibition of discharges with a pH of
less than 5.0 in 40 CFR 403.5(b)(2). One commenter understood this
language to mean that only modifications to minimum pH limits would no
longer be considered substantial. The commenter recommended that the
revisions also include modifications to upper pH limits. EPA intended
that the proposal include modifications to upper pH limits, and only
discussed Sec. 403.5(b)(2) in order to clarify that it remained in
force. This revision is adopted as proposed. All changes to pH limits
in Approved POTW Pretreatment Programs may be processed as non-
substantial modifications. The prohibition in 40 CFR 403.5(b)(2) is
unchanged.
5. Reallocation of MAIL
Today's rule adopts the proposal to exclude from the definition of
substantial modifications revisions to local limits resulting from
reallocations of the Maximum Allowable Industrial Loading (MAIL) for a
given pollutant, provided that the reallocation does not increase the
total MAIL for that pollutant. 40 CFR 403.18(b)(2). Some POTWs' local
limits are expressed in terms of a MAIL for a pollutant, which is then
allocated to individual industrial users as limits on the total mass of
the pollutant that each user may discharge. Those mass limits are
placed in the industrial users' permits or other individual control
mechanisms and are enforceable under 40 CFR 403.5(d). Under today's
rule, reallocations of the MAIL to individual industrial users could be
processed as non-substantial modifications as long as the MAIL is not
increased.
One commenter stated that all changes to local limits should be
deemed substantial because of their impact on the industrial user. EPA
is not changing the rule. Approval Authorities may continue to process
modifications that impose more stringent local limits as non-
substantial modifications. Such limits may only be imposed, however,
following the notice required by 40 CFR 403.5(c)(3) and such additional
notice as is required by local law. Today's rule only addresses the
reallocation of MAILs.
When a POTW allocates the MAIL to individual industrial users, the
POTW generally retains a portion of the MAIL as a safety factor so that
new industrial users can be given a mass allocation out of the existing
MAIL. Such an allocation to a new industrial user would not constitute
a substantial modification. Today's rule specifies that a reallocation
of an existing MAIL is not a substantial modification. Only where the
POTW increases the total mass of a pollutant that all industrial users
collectively could be authorized to discharge would the modification be
considered substantial.
[[Page 38410]]
One commenter stated that the reallocation of a MAIL should not be
considered a program modification at all. EPA agrees that if the POTW's
approved program specifies the MAIL but does not specify how it is
allocated, a reallocation of the MAIL that does not increase the MAIL
would not constitute a program modification. Only if the reallocation
would violate the POTW's permit would a modification be necessary. If
the allocation is specified in the POTW's permit, a reallocation of a
MAIL that does not increase the total pollutants may be submitted as a
non-substantial modification. A reallocation that does increase the
MAIL must be submitted as a substantial modification.
One commenter noted that a MAIL should be able to provide for
residential growth by, for example, providing an index of allowable
MAILs based on growth factors. Another stated that an increase in MAIL
should be considered non-substantial if it is tied to an increase in
the POTW's capacity. Today's rule would not prevent a POTW from
submitting sufficient technical information as part of its local limits
analysis to support a variable MAIL depending on the total flow to the
POTW. The tiered MAIL would have to be an enforceable element of the
POTW's permit. An increase to the higher tiered MAIL (provided for in
the approved local limits) would not require a program modification.
Another POTW stated that the definition of MAIL was problematic
because many POTWs do not know the contribution of commercial users.
While the comment raises an important issue in local limit development,
it is beyond the scope of today's rule. POTWs must determine the
background level of a pollutant before they can determine the maximum
level that their industrial users may discharge.
One commenter stated that a switch from local limits expressed as
concentration to local limits expressed as mass should be considered
non-substantial if the change does not increase the total mass.
Similarly, one commenter stated that a switch from concentration-based
or mass-based local limits to controls based on Best Management
Practices (BMPs) should be considered non-substantial. Another
commenter took the opposite view and argued that only reallocations of
existing MAILs should be non-substantial. EPA agrees that, in most
instances, the initial adoption of a MAIL or BMP will be a substantial
modification where it replaces a different form of local limits. Unless
the mass-based limit or BMP is specifically tied to an existing
concentration limit, the switch to mass-based limits or to BMPs will
likely result in less stringent local limits for at least some group of
industrial users. The POTW's Approved Pretreatment Program will need to
be modified to reflect such change. There may be limited circumstances,
such as where the POTW documents that a BMP achieves an existing
concentration limit, where the Approval Authority might consider such a
change to be a non-substantial modification.
One commenter stated that for the reallocation of the MAIL to be
considered non-substantial, the reallocation should be enforceable and
should not be due to pollutant trading. Under a trading program, POTWs
might allocate mass limit to individual industrial users and allow the
industrial users to sell or otherwise transfer their allocations to
another industrial user. EPA does not agree that all reallocations due
to trading need to be processed as substantial modifications. Whether
or not a local limit is the result of trading, any reallocation must be
enforceable in order for it to satisfy the substantive requirements of
40 CFR 403.5(c).
6. Enforcement Response Plans
The preamble to the proposal solicited comment on whether changes
to Enforcement Response Plans (ERPs) should be processed as non-
substantial modifications. Most commenters supported the proposed list
of substantial modifications, which did not include ERPs. Only two
commenters, both of which were State Approval Authorities, supported
treating revisions to ERPs as substantial modifications. One thought
that all such changes should be treated as substantial modifications.
The other thought that such changes should be substantial unless the
State had a model ERP. Today's rule does not require all modifications
of ERPs to be processed as substantial modifications.
ERPs are standard operating procedures or policies that implement
existing legal authorities. An ERP should not be used to create
additional authorities for a POTW, nor should an ERP relax existing
authorities. Where an ERP does conflict with the POTW's legal
authority, the ERP would have to be changed to be consistent with the
POTW's legal authority, the POTW's legal authority may be revised
through the modification process.
As with all non-substantial modifications, Approval Authorities
retain the flexibility to designate them as substantial where
appropriate. Some Approval Authorities may elect to treat all
modifications to ERPs as substantial.
B. Public Notice Procedures for Substantial Modifications
1. Single Public Notice
Today's rule allows approval of proposed modifications after one
public notice in certain circumstances. No commenters opposed this
change. Prior to today's rule, section 403.18(b)(1) required the
issuance of one public notice of a proposed modification and a second
public notice once the modification is approved. Both notices needed to
comply with the procedures in Sec. 403.11(b)-(f). Today's rule revises
Sec. 403.18(c)(3) so that the Approval Authority would not need to
publish a second notice of decision if the following conditions were
met: (1) The first notice states that the modification will be approved
without further notice if no comments are received; (2) the Approval
Authority receives no substantive comments on that notice; and (3) the
modification request is approved without change.
2. Adequacy of Local Notice
Under today's rule, Approval Authorities may consider local notice
by the POTW to constitute a program modification request and notice of
decision under Sec. 403.11(b)-(f). EPA did not propose any regulatory
changes covering local notice because, as noted in the preamble to the
proposal, the Agency believed this option is available under the
existing regulations. Several comments confirmed EPA's position on the
adequacy of local notice to achieve the purposes of Sec. 403.11(b)-(f).
EPA has decided, as one commenter specifically recommended, to formally
codify this position by including specific language in Part 403. 40 CFR
403.18(c)(4).
Under today's rule, Approval Authorities remain ultimately
responsible for assuring the publication of the notice. POTWs are not
required to provide the notice described in Sec. 403.11. Today's rule
leaves POTWs and Approval Authorities free to negotiate arrangements
for the publication of the required notice. In the absence of voluntary
and adequate notice by the POTW, the Approval Authority would still be
required to provide the notice. In order for a local POTW public notice
to substitute for an Approval Authority notice, the local notice must
meet the requirements of Sec. 403.11(b)(1). Today's rule merely
acknowledges that Approval Authorities may find the notice provided by
POTWs to be legally adequate. 40 CFR 403.18(c)(4).
One industry trade association argued that local procedures were
not adequate. The commenter noted that there was no
[[Page 38411]]
record that most significant changes are worked out in advance at the
local level. The commenter asserted that a more objective forum is
needed than the local forums, where decisions are diverse and not
always based on environmental considerations. Because local
participation varies, the commenter asserted that Sec. 403.18 is needed
to level the playing field.
EPA agrees that Approval Authority review of modifications helps
assure their consistency with state and federal regulations. State and
EPA Approval Authorities retain the right to review modifications under
today's rule regardless of who issues the notices. The lack of comments
on State and EPA issued notices suggests that many issues are resolved
at the local level. Approval Authorities must assure that notice
provided at the local level is adequate and includes an opportunity to
request a hearing from the Approval Authority.
3. Other Changes to Notice Requirements
Today's rule includes two additional changes to streamline the
detailed notice procedures in Sec. 403.11(b)(1). The first change
involves the method of notice. The second involves who receives the
notice.
Today's rule revises Sec. 403.11(b)(1)(i)(B) to allow public
notices to be published in any paper of general circulation within the
jurisdiction served by the POTW. Today's rule revises the current
requirement that the paper be in the largest daily paper of general
circulation. One commenter noted that a weekly paper might be more
appropriate for providing notice to a small community. Today's rule
conforms the Pretreatment program notice requirement with the existing
notice requirement for issuance of NPDES permits at 40 CFR
124.10(c)(2).
Today's rule also deletes the requirement from
Sec. 403.11(b)(1)(i)(A) that Approval Authorities always mail notices
to designated 208 planning Agencies, and Federal and State fish,
shellfish and wildlife resource agencies. One State commented that, in
its experience, no comments are submitted by these agencies. While EPA
does not believe that it is appropriate to discontinue all notices to
these agencies, today's rule provides that the notices may be
discontinued if requested by an agency listed in
Sec. 403.11(b)(1)(i)(A).
EPA also solicited comment on how the public might be educated as
to the importance of Pretreatment Program requirements, so that public
input will occur in response to notice of program modifications. One
industry commenter stated that the content of public notices is not
adequate for business to know what is being proposed. The commenter
recommended that POTWs be required to directly notify businesses and to
hold seminars to educate the businesses. One POTW supported allowing
POTWs to provide notice but specifically opposed requiring POTWs to
educate the public on the importance of the program. EPA believes that
the public notice requirements of Sec. 403.18 are adequate to provide
reasonable notice to the public, and that the requirements to make data
publicly available at Secs. 2.302 and 403.14(c) are adequate for the
public to educate itself about the program. Notices should contain
sufficient information to alert the public about what is being
proposed. While many POTWs do have public education programs, EPA does
not believe that it is necessary to impose an affirmative obligation on
POTWs to educate the public about the pretreatment program. The
Pretreatment Program is a mature regulatory program that has operated
for over 20 years.
An environmental group commented that public participation would be
improved if POTWs were required to maintain a mailing list, with annual
solicitation to be on the list, of parties wanting notice of non-
substantial modifications. A similar procedure is already in place for
substantial modifications. 40 CFR 403.11(b)(1)(i)(A). EPA does not
believe that this procedure is necessary for non-substantial
modifications, especially in light of today's decision to retain most
categories of substantial modifications.
C. Procedures for Non-substantial Modifications
Under the pre-existing regulation, non-substantial modifications
were deemed approved unless, within 90 days from their submission, the
Approval Authority decided to review them as substantial modifications.
Under today's rule, Approval Authorities have 45 days to act on a
request for non-substantial modification by either approving or
disapproving it, deciding to process it as a substantial modification,
or determining that the request is incomplete and requesting that the
POTW provide more supporting information. 40 CFR 403.18(d). If the
Approval Authority takes no action within the 45 days, the modification
is deemed approved and may be implemented by the POTW. 40 CFR
403.19(d)(3).
Under the July 30 proposal, non-substantial modifications would not
be deemed approved, but would require affirmative approval by the
Authority within 45 days. One reason that EPA proposed to eliminate the
provision that non-substantial modifications could be deemed approved
was that the proposal would also have expanded the list of non-
substantial modifications to include most modifications currently
classified as substantial. In addition, reducing the period of review
to 45 days might have resulted in a greater number of potentially
substantial modifications being deemed approved because of the
inability of the Approval Authority to review them in that time period.
One commenter summarized the flaws with the proposed procedures for
non-substantial modifications, which other commenters also noted.
First, the proposal would have eliminated all notice of changes that
might be significant. Second, the proposal would not have allowed the
Approval Authority to decide that a modification is substantial. Third,
the proposal would not have specified the outcome of the failure of the
Approval Authority to act within 45 days. Fourth, because the public
might not have received notice of a modification, a change which was
deemed approved might be challenged up to several years later at NPDES
permit renewal, frustrating continuity in administration of
pretreatment programs.
The commenter noted that most of the problems with the proposed
regulation resulted from EPA's proposal to redesignate certain
modifications from substantial to non-substantial. If EPA retained the
current definitions of substantial modification, the commenter noted,
there would be no need to allow a lengthy review or require affirmative
approval (as opposed to ``deemed'' approvals) of non-substantial
modifications. Finally, the commenter noted that almost all of the
proposed streamlining could be accomplished with fewer problems if the
regulations allowed for one notice at the local level.
Today's rule incorporates most of these suggestions. As discussed
above, fewer modifications will be considered non-substantial than
would have been under the proposal. 40 CFR 403.18(b)(1). Approval
Authorities will be given 45 days to review non-substantial
modifications. 40 CFR 403.18(d)(2). If the Approval Authority does not
disapprove the proposed modification or determine that it is
substantial, the modification is deemed approved and the POTW may
implement it. 40 CFR 403.18(d)(3).
Today's rule directs the Approval Authority to notify the POTW
within 45 days of receipt of a non-substantial modification of its
decision to approve
[[Page 38412]]
or disapprove the modification, rather than the 90 days currently
allowed under existing Sec. 403.18(b)(2). 40 CFR 403.18(b)(2)(ii). Only
one commenter opposed reducing the period for review of non-substantial
modifications. This commenter argued that 45 days might be inadequate
if a modification included a revised procedure manual and Enforcement
Response Plan. While this concern is legitimate, EPA believes the 45
day period balances the desires of POTWs to modify their programs
expeditiously and the needs of Approval Authorities for sufficient time
to review proposed modifications.
Several commenters objected to the proposed elimination of the
procedure by which modifications could be deemed approved. One
commenter went further and recommended that POTWs should not have to
submit non-substantial modifications in advance. Instead, the commenter
suggested that a POTW should be able to immediately implement a
modification and the Approval Authority should be allowed 45 days for
an after-the-fact objection. Two State commenters, however, opposed
having modifications deemed approved at all.
EPA believes that the regulations should continue to allow non-
substantial modifications to be deemed approved. Today's rule specifies
that POTWs may implement the proposed modification if the Approval
Authority does not disapprove it within 45 days. 40 CFR 403.18(d)(3).
Unlike the existing rule, however, today's rule allows the Approval
Authority to disapprove a non-substantial modification without going
through the substantial modification procedures. 40 CFR 403.18(d)(2).
If the Approval Authority needs additional information to review a
proposed modification, it should notify the POTW that the request is
disapproved until the information is received and reviewed. This
process should allow the Approval Authority and POTW to resolve matters
more efficiently than the current process, which requires the Approval
Authority to process as a substantial modification any modification
that it proposes to disapprove.
EPA solicited comment on whether only certain categories of non-
substantial modifications could be deemed approved if not disapproved
by the Approval Authority within 45 days. Commenters did not support
this approach. EPA is not adopting this approach and believes it is
unnecessary in light of its decision to exclude from the list of non-
substantial modifications those modifications that are more likely to
be of concern if deemed approved.
D. Changes Reported in Annual Reports
Today's rule adopts the proposal to allow POTWs to submit changes
to their industrial user inventory at the time they submit their Annual
Report. 40 CFR 403.8(f)(6). The preexisting regulations had required
such changes to be submitted as non-substantial modifications and also
required that the industrial user inventory be updated in the POTW's
Annual Report to the Approval Authority.
Commenters overwhelmingly supported this approach. The only
commenter that recommended that it not be adopted expressed concern
that State inspectors would ``write 'em up'' if notification has not
been submitted. EPA believes this revision should not hinder State and
EPA inspectors. Many requirements related to POTW oversight of IUs are
annual requirements, and changes to the list of IUs will still be
reported annually. 40 CFR 403.12(i)(1). POTWs are still required to
maintain a current list of their SIUs that Approval Authorities can use
during inspections. 40 CFR 403.8(f)(6).
One commenter recommended that POTWs be required to submit a
demonstration that a change in the IU inventory does not necessitate a
change to its local limits. EPA believes that it is not necessary to
add this requirement to the regulations. POTWs should anticipate the
need for a new local limit analysis where appropriate, and Approval
Authorities should consider this issue in their reviews.
EPA also solicited comment on whether other modifications should be
reported retroactively by the POTW to the Approval Authority in the
POTW's annual report rather than in advance. Two commenters recommended
that changes that do not result in the POTW doing less than its permit
requires be reported in the annual report. One commenter recommended
that all non-substantial changes be reported in the annual report. One
State, however, opposed reporting modifications in the annual report
because of the risk that the State would subsequently overrule the
modification. Today's rule allows a modification to be reported for the
first time in the POTW's annual report only if the modification does
not result in the POTW doing less than is currently described in its
Approved Program as incorporated in the POTW's NPDES permits. 40 CFR
403.12(i)(4). If the activity is not compelled by the POTW's permit and
does not result in the POTW doing less than the permit requires, the
POTW should be free to report it in its annual report.
III. Regulatory Requirements
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. Executive Order 12875
Under Executive Order 12875 (58 FR 58093 (October 28, 1993)),
entitled ``Enhancing the Intergovernmental Partnership,'' the Agency is
required to develop an effective process to permit elected officials
and other representatives of State, local, and tribal governments to
provide meaningful and timely input in the development of regulatory
proposals.
EPA sought the involvement of those persons who are intended to
benefit from or expected to be burdened by this rule before issuing the
notice of proposed rulemaking. Following informal consultation in May
1994, EPA circulated a draft proposal to interested persons, including
States, POTWs and trade and environmental organizations. EPA received
approximately 20 comments, which were addressed in the proposal and
today's rule. The Agency made several presentations outlining possible
revisions to the pretreatment regulations to a number of stakeholder
groups, including Regional, State and POTW personnel. EPA encouraged
these groups to provide formal input to the proposed regulatory
streamlining process. In addition, the Agency
[[Page 38413]]
provided notice of the availability of the draft proposal for review
and comment in the September 1994 issue of the ``Water Environment &
Technology,'' the principal publication of the Water Environment
Federation.
EPA published the proposed rule in the July 30, 1996, Federal
Register document (61 FR 39804). EPA mailed notice of the proposal and
summaries of the preamble to the stakeholders identified in the
Communication Strategy for the proposed rule. EPA received 25 comments
on the proposal and responds to those comments in today's preamble.
Copies of all comments received relating to this rulemaking are
included in the docket for this rule.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
provides that, when an agency promulgates a final rule under section
553 of the Administrative Procedure Act after being required by that
section to publish a general notice of proposed rulemaking for a
proposed rule, the agency must prepare a final regulatory flexibility
analysis (FRFA). The agency must prepare a FRFA for a final rule unless
the head of the agency certifies that it will not have a significant
economic impact on a substantial number of small entities.
When EPA proposed this rule, the Administrator certified, pursuant
to section 605(b) of the RFA, that it would not have a significant
economic impact on a substantial number of small entities. In today's
final rule, the Administrator is certifying that the final rule will
not have a significant economic impact on a substantial number of small
entities.
The RFA defines ``small entity'' to mean a small business, small
organization or small governmental jurisdiction. RFA section 601(5)
defines the term ``small governmental jurisdiction'' as the government
of cities, counties, towns, townships, villages, school districts or
special districts with a population of less than 50,000 unless an
agency proposes to use and publishes an alternative definition that is
appropriate to the agency's activities. Today's rule revises
requirements applicable only to publicly owned treatment works (POTW).
The only RFA ``small entity'' that may be affected by EPA adoption of
these changes to the pretreatment regulations is a small governmental
jurisdiction with a population of less than 50,000 that owns and
operates a POTW required to develop a pretreatment program.
As previously explained, today's rule amends the current
requirements applicable to all POTWs that must have an approved
pretreatment program. The modifications promulgated here only change
the procedures that a State or EPA must follow in approving changes to
a POTW's Approved Pretreatment Program. The effect of these changes is,
therefore, deregulatory. It will reduce the burden on affected POTWs of
obtaining approval for program modifications. Consequently, EPA's
action today will either reduce or not change the cost to affected
small governmental entities of complying with the pretreatment
regulations as compared with the currently effective procedural
requirements. In no event, however, will today's changes increase the
economic costs of compliance.
For this reason, I am certifying that today's rule will not have a
significant economic effect on a substantial number of small entities.
D. Paperwork Reduction Act
Today's rule is designed specifically to streamline the regulatory
process and does not impose any additional information collection
requirements on either the Approval Authorities or the POTWs.
Therefore, EPA did not prepare an Information Collection Request (ICR)
document for approval by the Office of Management and Budget.
The information collection requirements being streamlined were
approved by the Office of Management and Budget under control number
2040-0009, which was last approved on October 18, 1996. The reductions
in burden achieved by today's rule will be reflected when the ICR
approval is revised during its regular triennial review.
E. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures by State, local, and tribal governments, in
the aggregate, or by the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector. The rulemaking is basically
``deregulatory'' in nature and does not impose any additional burdens
on the affected State, local or tribal governments. As the preceding
preamble language demonstrates, EPA considered alternatives to the
proposed changes in the regulations governing modification of a POTW's
pretreatment program.
This rule will provide flexibility to the regulated community. It
does not impose any new requirements, so costs to the regulated
community should remain unchanged or be minimal. Therefore, EPA has
determined that an unfunded mandates statement is unnecessary.
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. As previously stated, EPA believes that the rule will
reduce the regulatory burden on all governmental agencies operating
POTWs. This overall reduction will be applied across the board to all
POTWs, with attendant benefits being provided to both large and small
governments. Although EPA cannot document the effects for each and
every POTW, smaller governments may benefit the most from the proposed
modifications. The avoided compliance costs attendant to modifying
their programs may be a larger percentage of their total operating
budgets than those costs borne by the larger POTWs.
[[Page 38414]]
In compliance with E.O. 12875 and section 203 of the UMRA, EPA
conducted a wide outreach effort and actively sought the input of
representatives of state, local and tribal governments in the process
of developing the proposed regulation. Agency personnel have
communicated with State and local representatives in a number of
different forums.
F. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this final rule revising procedures for modification of
approved pretreatment programs (and other required information) to the
U.S. Senate, the U.S. House of Representatives and the Comptroller
General of the General Accounting Office prior to publication of the
rule in today's Federal Register. This rule is not a ``major rule'' as
defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 403
Environmental protection, Confidential business information,
Reporting and recordkeeping requirements, Waste treatment and disposal,
Water pollution control.
Dated: July 10, 1997.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, chapter I of title 40 of
the Code of Federal Regulations is amended as follows:
PART 403--GENERAL PRETREATMENT REGULATIONS FOR EXISTING AND NEW
SOURCES OF POLLUTION
1. The authority citation for part 403 is revised to read as
follows:
Authority: 33 U.S.C. 1251 et seq.
2. Section 403.8 is amended by revising paragraphs (c) and (f)(6)
to read as follows:
Sec. 403.8 Pretreatment Program Requirements: Development and
Implementation by POTW.
* * * * *
(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.
* * * * *
(f) * * *
(6) The POTW shall prepare and maintain a list of its industrial
users meeting the criteria in Sec. 403.3(u)(1). The list shall identify
the criteria in Sec. 403.3(u)(1) applicable to each industrial user
and, for industrial users meeting the criteria in Sec. 403.3(u)(ii),
shall also indicate whether the POTW has made a determination pursuant
to Sec. 403.3(u)(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 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).
3. Section 403.11 is amended by revising paragraphs (b)(1)(i) (A)
and (B) to read as follows:
Sec. 403.11 Approval procedures for POTW pretreatment program and POTW
granting of removal credits.
* * * * *
(b) * * *
(1) * * *
(i) * * *
(A) Mailing notices of the request for approval of the Submission
to designated 208 planning agencies, Federal and State fish, shellfish
and wildfish resource agencies (unless such agencies have asked not to
be sent the notices); and to any other person or group who has
requested individual notice, including those on appropriate mailing
lists; and
(B) Publication of a notice of request for approval of the
Submission in a newspaper(s) of general circulation within the
jurisdiction(s) served by the POTW that meaningful public notice.
* * * * *
4. Section 403.12 is amended by redesignating paragraph (i)(4) as
paragraph (i)(5), revising paragraph (i)(3), and adding a new paragraph
(i)(4) to read as follows:
Sec. 403.12 Reporting requirements for POTWs and industrial users.
* * * * *
(i) * * *
(3) A summary of compliance and enforcement activities (including
inspections) conducted by the POTW during the reporting period;
(4) A summary of changes to the POTW's pretreatment program that
have not been previously reported to the Approval Authority; and
* * * * *
5. Section 403.18 is revised to read as follows:
Sec. 403.18 Modification of POTW pretreatment programs.
(a) General. Either the Approval Authority or a POTW with an
approved POTW Pretreatment Program may initiate program modification at
any time to reflect changing conditions at the POTW. Program
modification is necessary whenever there is a significant change in the
operation of a POTW Pretreatment Program that differs from the
information in the POTW's submission, as approved under Sec. 403.11.
(b) Substantial modifications defined. Substantial modifications
include:
(1) Modifications that relax POTW legal authorities (as described
in Sec. 403.8(f)(1)), except for modifications that directly reflect a
revision to this Part 403 or to 40 CFR chapter I, subchapter N, and are
reported pursuant to paragraph (d) of this section;
(2) Modifications that relax local limits, except for the
modifications to local limits for pH and reallocations of the Maximum
Allowable Industrial Loading of a pollutant that do not increase the
total industrial loadings for the pollutant, which are reported
pursuant to paragraph (d) of this section. Maximum Allowable Industrial
Loading means the total mass of a pollutant that all Industrial Users
of a POTW (or a subgroup of Industrial Users identified by the POTW)
may discharge pursuant to limits developed under Sec. 403.5(c);
(3) Changes to the POTW's control mechanism, as described in
Sec. 403.8(f)(1)(iii);
(4) A decrease in the frequency of self-monitoring or reporting
required of industrial users;
(5) A decrease in the frequency of industrial user inspections or
sampling by the POTW;
(6) Changes to the POTW's confidentiality procedures; and
(7) Other modifications designated as substantial modifications by
the Approval Authority on the basis that the modification could have a
significant impact on the operation of the POTW's Pretreatment Program;
could result in an increase in pollutant loadings at the POTW; or could
result in less stringent requirements being imposed on Industrial Users
of the POTW.
(c) Approval procedures for substantial modifications.
(1) The POTW shall submit to the Approval Authority a statement of
the basis for the desired program
[[Page 38415]]
modification, a modified program description (see Sec. 403.9(b)), or
such other documents the Approval Authority determines to be necessary
under the circumstances.
(2) The Approval Authority shall approve or disapprove the
modification based on the requirements of Sec. 403.8(f) and using the
procedures in Sec. 403.11(b) through (f), except as provided in
paragraphs (c)(3) and (4) of this section. The modification shall
become effective upon approval by the Approval Authority.
(3) The Approval Authority need not publish a notice of decision
under Sec. 403.11(e) provided: The notice of request for approval under
Sec. 403.11(b)(1) states that the request will be approved if no
comments are received by a date specified in the notice; no substantive
comments are received; and the request is approved without change.
(4) Notices required by Sec. 403.11 may be performed by the POTW
provided that the Approval Authority finds that the POTW notice
otherwise satisfies the requirements of Sec. 403.11.
(d) Approval procedures for non-substantial modifications.
(1) The POTW shall notify the Approval Authority of any non-
substantial modification at least 45 days prior to implementation by
the POTW, in a statement similar to that provided for in paragraph
(c)(1) of this section.
(2) Within 45 days after the submission of the POTW's statement,
the Approval Authority shall notify the POTW of its decision to approve
or disapprove the non-substantial modification.
(3) If the Approval Authority does not notify the POTW within 45
days of its decision to approve or deny the modification, or to treat
the modification as substantial under paragraph (b)(7) of this section,
the POTW may implement the modification.
(e) Incorporation in permit. All modifications shall be
incorporated into the POTW's NPDES permit upon approval. The permit
will be modified to incorporate the approved modification in accordance
with 40 CFR 122.63(g).
[FR Doc. 97-18860 Filed 7-16-97; 8:45 am]
BILLING CODE 6560-50-M
