[Code of Federal Regulations]
[Title 40, Volume 26]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR403.10]

[Page 31-33]
 
                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. 403.10  Development and submission of NPDES State pretreatment programs.

    (a) Approval of State Programs. No State NPDES program shall be 
approved under section 402 of the Act after the effective date of these 
regulations unless it is determined to meet the requirements of 
paragraph (f) of this section. Notwithstanding any other provision of 
this regulation, a State will be required to act upon those authorities 
which it currently possesses before the approval of a State Pretreatment 
Program.
    (b) [Reserved]
    (c) Failure to request approval. Failure of an NPDES State with a 
permit program approved under section 402 of the Act prior to December 
27, 1977, to seek approval of a State Pretreatment Program and failure 
of an approved State to administer its State Pretreatment

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Program in accordance with the requirements of this section constitutes 
grounds for withdrawal of NPDES program approval under section 402(c)(3) 
of the Act.
    (d) [Reserved]
    (e) State Program in lieu of POTW Program. Notwithstanding the 
provision of Sec. 403.8(a), a State with an approved 
Pretreatment Program may assume responsibility for implementing the POTW 
Pretreatment Program requirements set forth in Sec. 403.8(f) 
in lieu of requiring the POTW to develop a Pretreatment Program. 
However, this does not preclude POTW's from independently developing 
Pretreatment Programs.
    (f) State Pretreatment Program requirements. In order to be 
approved, a request for State Pretreatment Program Approval must 
demonstrate that the State Pretreatment Program has the following 
elements:
    (1) Legal authority. The Attorney General's Statement submitted in 
accordance with paragraph (g)(1)(i) of this section shall certify that 
the Director has authority under State law to operate and enforce the 
State Pretreatment Program to the extent required by this part and by 40 
CFR 123.27. At a minimum, the Director shall have the authority to:
    (i) Incorporate POTW Pretreatment Program conditions into permits 
issued to POTW's; require compliance by POTW's with these incorporated 
permit conditions; and require compliance by Industrial Users with 
Pretreatment Standards;
    (ii) Ensure continuing compliance by POTW's with pretreatment 
conditions incorporated into the POTW Permit through review of 
monitoring reports submitted to the Director by the POTW in accordance 
with Sec. 403.12 and ensure continuing compliance by 
Industrial Users with Pretreatment Standards through the review of self-
monitoring reports submitted to the POTW or to the Director by the 
Industrial Users in accordance with Sec. 403.12;
    (iii) Carry out inspection, surveillance and monitoring procedures 
which will determine, independent of information supplied by the POTW, 
compliance or noncompliance by the POTW with pretreatment conditions 
incorporated into the POTW Permit; and carry out inspection, 
surveillance and monitoring procedures which will determine, independent 
of information supplied by the Industrial User, whether the Industrial 
User is in compliance with Pretreatment Standards;
    (iv) Seek civil and criminal penalties, and injunctive relief, for 
noncompliance by the POTW with pretreatment conditions incorporated into 
the POTW Permit and for noncompliance with Pretreatment Standards by 
Industrial Users as set forth in Sec. 403.8(f)(1)(vi). The 
Director shall have authority to seek judicial relief for noncompliance 
by Industrial Users even when the POTW has acted to seek such relief 
(e.g., if the POTW has sought a penalty which the Director finds to be 
insufficient);
    (v) Approve and deny requests for approval of POTW Pretreatment 
Programs submitted by a POTW to the Director;
    (vi) Deny and recommend approval of (but not approve) requests for 
Fundamentally Different Factors variances submitted by Industrial Users 
in accordance with the criteria and procedures set forth in 
Sec. 403.13; and
    (vii) Approve and deny requests for authority to modify categorical 
Pretreatment Standards to reflect removals achieved by the POTW in 
accordance with the criteria and procedures set forth in 
Sec.Sec. 403.7, 403.9 and 403.11.
    (2) Procedures. The Director shall have developed procedures to 
carry out the requirements of sections 307 (b) and (c), and 402(b)(1), 
402(b)(2), 402(b)(8), and 402(b)(9) of the Act. At a minimum, these 
procedures shall enable the Director to:
    (i) Identify POTW's required to develop Pretreatment Programs in 
accordance with Sec. 403.8(a) and notify these POTW's of the 
need to develop a POTW Pretreatment Program. In the absence of a POTW 
Pretreatment Program, the State shall have procedures to carry out the 
activities set forth in Sec. 403.8(f)(2);
    (ii) Provide technical and legal assistance to POTW's in developing 
Pretreatment Programs;
    (iii) Develop compliance schedules for inclusion in POTW Permits 
which set forth the shortest reasonable time

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schedule for the completion of tasks needed to implement a POTW 
Pretreatment Program. The final compliance date in these schedules shall 
be no later than July 1, 1983;
    (iv) Sample and analyze:
    (A) Influent and effluent of the POTW to identify, independent of 
information supplied by the POTW, compliance or noncompliance with 
pollutant removal levels set forth in the POTW permit (see 
Sec. 403.7); and
    (B) The contents of sludge from the POTW and methods of sludge 
disposal and use to identify, independent of information supplied by the 
POTW, compliance or noncompliance with requirements applicable to the 
selected method of sludge management;
    (v) Investigate evidence of violations of pretreatment conditions 
set forth in the POTW Permit by taking samples and acquiring other 
information as needed. This data acquisition shall be performed with 
sufficient care as to produce evidence admissible in an enforcement 
proceeding or in court;
    (vi) Review and approve requests for approval of POTW Pretreatment 
Programs and authority to modify categorical Pretreatment Standards 
submitted by a POTW to the Director; and
    (vii) Consider requests for Fundamentally Different Factors 
variances submitted by Industrial Users in accordance with the criteria 
and procedures set forth in Sec. 403.13.
    (3) Funding. The Director shall assure that funding and qualified 
personnel are available to carry out the authorities and procedures 
described in paragraphs (f)(1) and (2) of this section.
    (g) Content of State Pretreatment Program submission. The request 
for State Pretreatment Program approval will consist of:
    (1)(i) A statement from the State Attorney General (or the Attorney 
for those State agencies which have independent legal counsel) that the 
laws of the State provide adequate authority to implement the 
requirements of this part. The authorities cited by the Attorney General 
in this statement shall be in the form of lawfully adopted State 
statutes or regulations which shall be effective by the time of approval 
of the State Pretreatment Program; and
    (ii) Copies of all State statutes and regulations cited in the above 
statement;
    (iii) States with approved Pretreatment Programs shall establish 
Pretreatment regulations by November 16, 1989, unless the State would be 
required to enact or amend statutory provision, in which case, such 
regulations must be established by November 16, 1990.
    (2) A description of the funding levels and full- and part-time 
personnel available to implement the program; and
    (3) Any modifications or additions to the Memorandum of Agreement 
(required by 40 CFR 123.24) which may be necessary for EPA and the State 
to implement the requirements of this part.
    (h) EPA Action. Any approved NPDES State requesting State 
Pretreatment Program approval shall submit to the Regional Administrator 
three copies of the Submission described in paragraph (g) of this 
section. Upon a preliminary determination that the Submission meets the 
requirements of paragraph (g) the Regional Administrator shall:
    (1) Notify the Director that the Submission has been received and is 
under review; and
    (2) Commence the program revision process set out in 40 CFR 123.62. 
For purposes of that section all requests for approval of State 
Pretreatment Programs shall be deemed substantial program modifications. 
A comment period of at least 30 days and the opportunity for a hearing 
shall be afforded the public on all such proposed program revisions.
    (i) Notification where submission is defective. If, after review of 
the Submission as provided for in paragraph (h) of this section, EPA 
determines that the Submission does not comply with the requirements of 
paragraph (f) or (g) of this section EPA shall so notify the applying 
NPDES State in writing. This notification shall identify any defects in 
the Submission and advise the NPDES State of the means by which it can 
comply with the requirements of this part.

[46 FR 9439, Jan. 28, 1981, as amended at 51 FR 20429, June 4, 1986; 53 
FR 40612, Oct. 17, 1988; 55 FR 30131, July 24, 1990; 58 FR 18017, Apr. 
7, 1993; 60 FR 33932, June 29, 1995]

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