[Code of Federal Regulations]
[Title 40, Volume 25]
[Revised as of July 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR403.8]

[Page 26-30]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 403--GENERAL PRETREAT- MENT 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;
    (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

[[Page 27]]

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 40 CFR 403.3(t), this 
control shall be achieved through permits or equivalent individual 
control mechanisms issued to each such user. Such control mechanisms 
must be enforceable and contain, at a minimum, the following conditions:
    (A) Statement of duration (in no case more than five years);
    (B) 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;
    (C) Effluent limits based on applicable general pretreatment 
standards in part 403 of this chapter, categorical pretreatment 
standards, local limits, and State and local law;
    (D) Self-monitoring, sampling, reporting, notification and 
recordkeeping requirements, including an identification of the 
pollutants to be monitored, 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;
    (E) 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.
    (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(m) 
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

[[Page 28]]

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 individual control mechanisms issued 
by the POTW; or any reporting requirements imposed by the POTW or these 
regulations. 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 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. 
Evaluate, at least once every two years, whether each such Significant 
Industrial User needs a plan to control slug discharges. 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. The results of such activities shall be 
available to the Approval Authority upon request. 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 40 CFR 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;

[[Page 29]]

    (vi) 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
    (vii) 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 the largest daily newspaper published in the 
municipality in which the POTW is located, of industrial users which, at 
any time during the previous twelve months, were in significant 
noncompliance with applicable pretreatment requirements. For the 
purposes of this provision, an industrial user 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 sixty-six percent or more of all of the measurements 
taken during a six-month period exceed (by any magnitude) the daily 
maximum limit or the average limit for the same pollutant parameter;
    (B) Technical Review Criteria (TRC) violations, defined here as 
those in which thirty-three percent or more of all of the measurements 
for each pollutant parameter taken during a six-month period equal or 
exceed the product of the daily maximum limit or the average limit 
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 effluent limit (daily 
maximum or longer-term average) that the Control Authority 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 30 days after the due date, required 
reports such as baseline monitoring reports, 90-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 the Control 
Authority 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

[[Page 30]]

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(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).

[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]