How will the POTW's adoption of today's streamlining provisions be reviewed by the Approval Authority? EPA wants to avoid limiting the discretion of individual Approval Authorities to review subsequent program amendments as they deem appropriate under the circumstances in accordance with the requirements of 40 CFR 403.18. First, a POTW may wish to make adjustments to the wording of some of the streamlining provisions so that it fits better with the way the specific pretreatment program is operated. Such adjustments may or may not trigger the need to review individual modifications as substantial, which may otherwise not be substantial if adopted verbatim. It is therefore difficult to project with any certainty how each amendment should be reviewed. Second, different Approval Authorities may vary in how they interpret 40 CFR 403.18( b)( 7), and which modifications they view as causing a significant impact on the program or an increase in pollutant loadings, or resulting in less stringent requirements.

In general, however, in EPA's view, the Approval Authority may treat the adoption of essentially the same language used in today's rule for many of the issues as a non substantial modification. More specifically, a POTW's adoption of provisions that mirror today's streamlining provisions addressing monitoring waivers for pollutants not present ( Section III. A.), slug control plans ( Section III. D.), grab and composite sampling methods ( Section III. F.), SNC ( Section III. G.), equivalent concentration limits ( Section III. E.), and miscellaneous changes ( Section III. I.) would generally be considered non substantial modifications. For example, in the case of today's provisions relating to monitoring waivers for pollutants not present, the Approval Authority could find that such a program change does not trigger the criteria for modifications that relax POTW legal authorities ( 40 CFR 403.18( b)( 1)) or that result in a decrease in the frequency of self monitoring ( 40 CFR 403.18( b)( 4). Second, in this scenario where EPA's language is adopted verbatim, the POTW is adopting the same legal authorities that are being promulgated today. Under 40 CFR 403.18( b)( 1), a modification to a POTW's legal authorities that " directly reflect( s) a revision to part 403" does not require a substantial modification review. Further, the adoption of the pollutants not present language and a POTW's subsequent use of these provisions to grant monitoring waivers to individual industrial users is not the same as " a decrease in the frequency of self monitoring." As EPA has stated, " It is important to remember that ' decrease in the frequency of self monitoring' ... refer( s) to changes in the POTW's general policy and not to decisions affecting individual industrial users. ... Changes affecting individual industrial users are not substantial modifications." See 62 FR 38408. Applying this rationale to Pretreatment Program changes associated with monitoring waivers, having adopted the legal authorities and procedures consistent with today's provisions, the POTW's subsequent use of these authorities to make facility specific decisions regarding monitoring waivers is not the equivalent of changing the POTW's overall monitoring policy. Again, none of EPA's recommendations are intended to restrict the Approval Authority's ability to review case specific submissions as substantial modifications. On the other hand, Approval Authorities may need to review the adoption of the general control mechanism and BMP provisions of today's final rule as substantial program modifications. In the case of general control mechanisms, a POTW's use of such tools will generally involve " changes to the POTW's control mechanism" ( 40 CFR 403.18( b)( 3)). A change that authorizes use of a general control mechanism instead of an " individual control mechanism" to regulate some of a POTW's SIUs is a significant enough shift in the POTW's permitting strategy to trigger a substantial modification review. In its review, Approval Authorities will likely be interested in aspects of the general control mechanism authority such as how industries will be grouped using the selection criteria in 40 CFR 403.8( f)( 1)( iii)( A)( 1 5), what procedures will be put into place to notify SIUs of the availability of a general control mechanism and to process written requests by users for coverage and what conditions will be included in the general control mechanisms. However, just as issuance or modification of specific individual control mechanisms does not trigger program modification requirements, EPA does not envision that Approval Authorities will need to review as a substantial modification future revisions in the " boilerplate" language a POTW uses in its general control mechanisms, or the issuance of specific general control mechanisms. See 62 FR 38408.

Similarly, EPA expects that in most cases Approval Authorities will need to review the POTW's use of BMPs ( instead of numeric limits) as local limits as a substantial modification because it is likely that substitution of a BMP for an existing numeric limit would be a " modification that relax( es) local limits." See 40 CFR 403.18( b)( 2). As EPA has previously stated, " in most instances, the initial adoption of a   BMP will be a substantial modification where it replaces a different form of local limits." See 62 FR 38408. " 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 nonsubstantial modification." See 62 FR 38410. In those cases, in order for the Approval Authority to be able to consider whether the change might be non substantial, the POTW should be required to provide a statement of basis in the request for the modification that documents why it believes the use of a particular BMP is not a relaxation of local limits.

VII. Regulatory Requirements A. Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866, [ 58 Federal Register 51,735 ( October 4, 1993)] the Agency must determine whether the regulatory action is " significant" and therefore subject to OMB review 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.

Pursuant to the terms of Executive Order 12866, it has been determined that this rule is a " significant regulatory action" because it raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this EO. As such, this action was submitted to OMB for review. Changes made in response to OMB suggestions or recommendations will be documented in the public record.

B. Paperwork Reduction Act The Office of Management and Budget ( OMB) has approved the information collection requirements contained in this rule under the provisions of the Paperwork Reduction Act, 44 U. S. C. 3501 et seq. and has assigned OMB control number 20XX XXXX.

The regulatory changes in today's rulemaking are designed to reduce the overall burden from technical and administrative requirements that affect industrial users, local Control Authorities and Approval Authorities. The estimated savings in annual burden hours and costs to the affected respondents ( ie., Industrial users and POTWs) and government entities is [ placeholder] hours and [ placeholder].

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

Although the regulatory changes in today's final rule provide greater flexibility to regulated entities, it is necessary to collect certain types of information to assure that Pretreatment Program requirements continue to be met and that the final benefit meets EPA's stated goal of providing better environmental results at less cost.

Today's final rule includes regulatory changes that cover a variety of technical and administrative changes. Most of the regulatory changes result in either reduced annual cost and burdens on a continuing basis or have no measurable effect on cost or burden. There are a few regulatory changes ( equivalent concentration limits for flow based standards, monitoring waivers for pollutants not present, and general control mechanisms) that will impose additional short term increases in burden on those POTWs or industrial users that elect to exercise this flexibility. However, when considered over a longer time period, these costs are outweighed by the expected benefits of the provisions.

[ Give an estimate of the projected cost and hour burden. For the hour burden, this should include an estimate of the average annual reporting burden disaggregated to show the estimated average burden hours per response, the proposed frequency of response, and the estimated number of likely respondents. For the cost burden to respondents or recordkeepers resulting from the collection of information, this should include a total capital and start up cost component annualized over its expected useful life, and a total operation and maintenance component, and a purchase of services component.]

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. In addition, EPA is amending the table in 40 CFR part 9 of currently approved OMB control numbers for various regulations to list the regulatory citations for the information requirements contained in this final rule.

C. Regulatory Flexibility Act The Regulatory Flexibility Act ( RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: ( 1) a small business according to RFA default definitions for small business ( based on SBA size standard; ( 2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and ( 3) a small organization that is any not for profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives " which minimize any significant economic impact of the rule on small entities." 5 USC 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. As previously explained, the modifications to the pretreatment requirements in this final rule will reduce the regulatory costs to POTWs and Industrial users of complying with pretreatment requirements. The regulatory changes will provide certain POTWs and industrial users with less costly alternatives to the current requirements. For example, this rule includes a modification that would allow a POTW, in specified circumstances, to control contributions from industrial users through general permits or control mechanisms rather than more costly individual permits or control mechanisms. This rule also authorizes a POTW to relieve an industrial user of its sampling and analyzing requirements if the user demonstrates and certifies that the pollutant is neither present nor expected to be present in its process waste stream or is present only in background levels in the intake water.

The final rule includes provisions that provide flexibility for POTWs and industrial users. For instance, POTWs will be allowed to use Best Management Practices ( BMPs) as local limits in lieu of numeric effluent limits. This option will give POTWs a feasible alternative when numeric local limits are not the appropriate or practical method to prevent pollutant pass through or interference. EPA does not believe that any POTW or industrial user will choose the voluntary regulatory requirements over current requirements if the cost of the alternative were greater than the cost of complying with current regulations. We have therefore concluded that today's final rule will relieve regulatory burden for all small entities.

D. 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 to State, local, and tribal governments, in the aggregate, or to 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. EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $ 100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. Today's final rule is " deregulatory" in nature and reduces burden on the affected State, local, and tribal governments and the private sector. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA.

EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Additional flexibility is granted to all POTWs, which will provide opportunities for reducing the burden of administering their pretreatment programs.

E. Executive Order 13132: Federalism Executive Order 13132, entitled " Federalism" ( 64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure " meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications." " Policies that have federalism implications" is defined in the Executive Order to include regulations that have " substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government."

This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Today's rule is basically deregulatory in nature and is expected to reduce administrative and resource burdens on affected State, local, and tribal governments and the private sector. Thus, Executive Order 13132 does not apply to this rule.

Although section 6 of Executive Order 13132 does not apply to this rule, EPA did consult with representatives of State and local officials in developing this rule. Annual EPA/ State National Pretreatment Workshops have provided the opportunity for EPA and States to discuss current technical and policy issues as well as the future direction of the National Pretreatment Program. Representatives of EPA, States, and local pretreatment programs have also convened annually at the Association of Metropolitan Sewerage Agencies' ( AMSA's) Pretreatment Workshop. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communication between EPA and State and local governments, EPA solicited comment on the proposed rule from all stakeholders. A summary of EPA's response to concerns raised is provided in Sections III and IV of the preamble ( see specifically subsections entitled " Summary of Major Comments and EPA Response" for each separate streamlining issue) and in the response to comment document in the record.

F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments Executive Order 13175, entitled " Consultation and Coordination with Indian Tribal Governments" ( 65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure " meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications." " Policies that have tribal implications" is defined in the Executive Order to include regulations that have " substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes."

This final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. There are no pretreatment programs administered by Indian tribal governments. This final rule will neither " significantly nor uniquely" affect the communities of Indian tribal governments. Thus, Executive Order 13175 does not apply to this rule Moreover, in the spirit of Executive Order 13175, and consistent with EPA policy to promote communications between EPA and tribal governments, EPA specifically solicited comment on the proposed rule from all stakeholders. EPA did not receive any comments from tribal governments.

G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks Executive Order 13045, " Protection of Children from Environmental Health Risks and Safety Risks" ( 62 FR 19885, April 23, 1997) applies to any rule that: ( 1) is determined to be " economically significant" as defined under Executive Order 12866, and ( 2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This final rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This final rule does not impose any new or amended standards for discharged wastewater or the sludge resulting from treatment of a POTW. ( EPA notes that the final rule does enable POTWs to use alternative, equivalent concentration limits for an industry's current flow based mass standards and equivalent mass limits where conditions warrant. However, EPA considers these new limits to be equivalent to the standards previously used, and therefore does not involve the establishment of new or amended standards.) Treatment and disposal of wastewater occurs in a restricted system ( e. g. buried sewer lines and fenced wastewater treatment facilities) that children are unlikely to come in contact with on a routine basis. This rule has no identifiable direct impact upon the health and/ or safety risks to children and the regulatory changes will not disproportionately affect children.

H. Executive Order 1321: Actions That Significantly Affect Energy Supply, Distribution, or Use"

This rule is not a " significant energy action" as defined in Executive Order 13211, " Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use" ( 66 FR 28355 ( May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The final rule does not contain any compliance requirements that will: 1. Reduce crude oil supply in excess of 10,000 barrels per day; 2. Reduce fuel production in excess of 4,000 barrels per day; 3. Reduce coal production in excess of 5 million tons per year; 4. Reduce electricity production in excess of 1 billion kilowatt hours per year or in excess of 500 megawatts of installed capacity; 5. Increase energy prices in excess of 10 percent; 6. Increase the cost of energy distribution in excess of 10 percent; 7. Significantly increase dependence on foreign supplies of energy; or 8. Other similar adverse outcomes, particularly unintended ones.

Thus, EPA has concluded that this rule is not likely to have any adverse energy effects.

I. National Technology Transfer and Advancement Act As noted in the proposed rule, Section 12( d) of the National Technology Transfer and Advancement Act of 1995 (" NTTAA"), Public Law No. 104 113, 12( d) ( 15 U. S. C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e. g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This rule does not involve technical standards, except to the extent that various sampling procedures in the pretreatment regulations are being updated to reflect current EPA methods. Therefore, EPA did not consider the use of any voluntary consensus standards.

J. Congressional Review Act The Congressional Review Act, 5 U. S. C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U. S. Senate, the U. S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A Major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a " major rule" as defined by 5 U. S. C. 804( 2). This rule will be effective [ placeholder date].

For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows:

PART 122   EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM 1. The authority for Part 122 continues to read as follows:

Authority: The Clean Water Act, 33 U. S. C. 1251 et seq.

2. Section 122.21 is amended by revising paragraph ( j)( 6)( ii) as follows:

§ 122.21 Application for a permit ( applicable to State programs, see § 123.25).

* * * * *

( j) * * * ( 6) * * * ( ii) POTWs with one or more SIUs shall provide the following information for each SIU, as defined at 40 CFR 403.3( v), that discharges to the POTW:

* * * * *

3. Section 122.44 is amended by revising the first sentence of paragraph ( j)( 1) as follows:

§ 122.44 Establishing limitations, standards, and other permit conditions ( applicable to State NPDES programs, see § 123.25).

* * * * *

( j) * * * ( 1) Identify, in terms of character and volume of pollutants, any significant industrial users into the POTW subject to pretreatment standards under section 307( b) of CWA and 40 CFR part 403. 4. Section 122.62 is amended by revising paragraph ( a)( 7) as follows:

§ 122.62 Modification or revocation and reissuance of permits ( applicable to State programs, see § 123.25).

* * * * *

( a) * * * ( 7) Reopener. When required by the `` reopener'' conditions in a permit, which are established in the permit under § 122.44( b) ( for CWA toxic effluent limitations and standards for sewage sludge use or disposal, see also § 122.44( c)) or 40 CFR § 403.18( e) ( pretreatment program).

PART 403   GENERAL PRETREATMENT REGULATIONS FOR EXISTING AND NEW SOURCES OF POLLUTION 1. The authority for Part 403 continues to read as follows:

Authority: 33 U. S. C. 1251 et seq.

2. Section 403.3 is amended by redesignating paragraphs ( e) through ( u) as paragraphs ( g) through ( w); by revising newly designated paragraphs ( m)( 2) and ( v); and by adding new paragraphs ( e) and ( f) to read as follows:

§ 403.3. Definitions.

* * * * *

( e) The term Best Management Practices or BMPs means schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to implement the prohibitions listed in § 403.5( a)( 1) and ( b). BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw materials storage.

( f) The term Control Authority refers to: ( 1) The POTW if the POTW's Pretreatment Program Submission has been approved in accordance with the requirements of § 403.11; or ( 2) the Approval Authority if the Submission has not been approved.

* * * * *

( m) * * * ( 2) Construction on a site at which an existing source is located results in a modification rather than a new source if the construction does not create a new building, structure, facility or installation meeting the criteria of paragraphs ( m)( 1)( ii) or ( m)( 1)( iii) of this section, but otherwise alters, replaces, or adds to existing process or production equipment.

* * * * *

( v) Significant Industrial User. ( 1) Except as provided in paragraphs ( v)( 2) and ( v)( 3) of this section, the term Significant Industrial User means:

( i) All industrial users subject to Categorical Pretreatment Standards under 40 CFR 403.6 and 40 CFR chapter I, subchapter N; and ( ii) Any other industrial user that: discharges an average of 25,000 gallons per day or more of process wastewater to the POTW ( excluding sanitary, noncontact cooling and boiler blowdown wastewater); contributes a process wastestream which makes up 5 percent or more of the average dry weather hydraulic or organic capacity of the POTW treatment plant; or is designated as such by the Control Authority on the basis that the industrial user has a reasonable potential for adversely affecting the POTW's operation or for violating any pretreatment standard or requirement ( in accordance with 40 CFR 403.8( f)( 6)).

( 2) The Control Authority may determine that an Industrial User subject to categorical Pretreatment Standards under § 403.6 and 40 CFR chapter I, subchapter N is not a Significant Industrial User on a finding that the Industrial User never discharges more than [ 100 gallons per day ( gpd)] of total process wastewater ( excluding sanitary, non contact cooling and boiler blowdown wastewater) and the following conditions are met:

( i) the Industrial User, prior to the Control Authority's finding, has consistently complied with all applicable categorical Pretreatment Standards and Requirements;

( ii) the Industrial User certifies that its discharge is in compliance with all applicable categorical Pretreatment Standards and Requirements; and annually submits the § 403.12( q) certification statement together with any additional information to support the certification statement; and ( iii) the Industrial User never discharges any untreated concentrated wastewater.

Such Industrial Users will be referred to as Non Significant Categorical Industrial Users.

( 3) Upon a finding that an industrial user meeting the criteria in paragraph ( v)( 1)( ii) of this section has no reasonable potential for adversely affecting the POTW's operation or for violating any pretreatment standards or requirement, the Control Authority may at any time, on its own initiative or in response to a petition received from an industrial user or POTW, and in accordance with 40 CFR 403.8( f)( 6), determine that such industrial user is not a Significant Industrial User. * * * * *

3. Section 403.5 is amended by revising paragraph ( b)( 1) and adding a new paragraph ( c)( 4) to read as follows:

§ 403.5 National Pretreatment Standards: Prohibited Discharges.

* * * * *

( b) * * * ( 1) Pollutants which create a fire or explosion hazard in the POTW, including, but not limited to, wastestreams with a closed cup flashpoint of less than 140 degrees Fahrenheit or 60 degrees Centigrade using the test methods specified in 40 CFR 261.21;

* * * * *

( c) * * * ( 4) POTWs may develop best management practices ( BMPs) that accomplish the goals required by paragraphs ( c)( 1) and ( c)( 2) of this section. Such BMPs shall be considered local limits and Pretreatment Standards for the purposes of this Part and section 307( d) of the Act.

* * * * *

4. Section 403.6 is amended by redesignating paragraphs ( c)( 5) through ( c)( 7) as paragraphs ( c)( 7) through ( c)( 9); by revising paragraph ( b), paragraph ( c)( 2), newly designated paragraph ( c)( 7), newly designated paragraph ( c)( 8), paragraph ( d), and the first sentence of paragraph ( e) introductory text; and by adding paragraphs ( c)( 5) and ( c)( 6). The revised and added text reads as follows:

§ 403.6 National pretreatment standards: Categorical standards.

* * * * * ( b) Deadline for Compliance with Categorical Standards. Compliance by existing sources with categorical Pretreatment Standards shall be within 3 years of the date the Standard is effective unless a shorter compliance time is specified in the appropriate subpart of 40 CFR chapter I, subchapter N. Direct dischargers with NPDES permits modified or reissued to provide a variance pursuant to section 301( i)( 2) of the Act shall be required to meet compliance dates set in any applicable categorical Pretreatment Standard. Existing sources which become Industrial Users subsequent to promulgation of an applicable categorical Pretreatment Standard shall be considered existing Industrial Users except where such sources meet the definition of a New Source as defined in § 403.3( m). New Sources shall install and have in operating condition, and shall " start up" all pollution control equipment required to meet applicable Pretreatment standards before beginning to Discharge. Within the shortest feasible time ( not to exceed 90 days), New Sources must meet all applicable Pretreatment Standards.

* * * * *

( c) * * *

* * * * * ( 2) When the limits in a categorical Pretreatment Standard are expressed only in terms of mass of pollutant per unit of production, the Control Authority may convert the limits to equivalent limitations expressed either as mass of pollutant discharged per day or effluent concentration for purposes of calculating effluent limitations applicable to individual Industrial Users.

* * * * *

( 5) When a categorical Pretreatment Standard is expressed in terms of pollutant concentrations that are directly applicable as limits on the Industrial User, the Industrial User may request that the Control Authority convert the limits to equivalent mass limits. If the Industrial User requests equivalent mass limits and all of the requirements in paragraph ( 5)( i)( A) thru ( E) below are met, the determination as to whether equivalent mass limits are appropriate is within the discretion of the Control Authority.

( i) To be eligible for equivalent mass limits, the Industrial User must demonstrate that it:

( A) will employ water conservation methods and technologies that substantially reduce water use during the term of its control mechanism;

( B) currently uses control measures at least as effective as the control and treatment technologies that serve as the basis for that particular Standard, and has not used dilution as a substitute for treatment;

( C) has provided sufficient information to establish, based on data from a continuous effluent flow monitoring device, the facility's average daily flow rate for all wastestreams, and the facility's long term average production rate that are representative of current operating conditions;

( D) does not have daily flow rates, production levels, or pollutant levels that fluctuate to such a degree that an equivalent mass limit cannot be appropriately established to control the discharge; and ( E) has been in consistent compliance with all applicable categorical Pretreatment Standards prior to the Industrial User's request to be subject to equivalent mass limits.

( ii) After equivalent mass limits are developed, the Industrial User must:

( A) maintain and effectively operate the same or more effective control and treatment technologies as those that were in place at the time the equivalent mass limit is established;

( B) continue to record the facility's flow rates through the use of a continuous effluent flow monitoring device;

( C) continue to record the facility's production rates and notify the Control Authority whenever production rates are expected to vary by more than 20 percent from its baseline production rate determined in paragraph ( 5)( i)( C) of this section; upon notification of a revised production rate, the Control Authority must reassess the equivalent mass limit and must recalculate the limit as necessary to reflect changed conditions at the facility; and ( D) continue to employ the water conservation methods and technologies implemented pursuant to paragraph ( 5)( i)( A) of this section.

( iii) The Control Authority must:

( A) calculate the initial equivalent mass limit by multiplying the average daily flow rate of the regulated process( es) of the Industrial User by the applicable concentration based categorical daily maximum and monthly average standard and the appropriate conversion factor;

[( B) recalculate the daily maximum and monthly average equivalent mass limit prior to the reissuance of the Industrial User's control mechanism; and]

( C) upon notification of a revised production rate, reassess the equivalent mass limit and recalculate the limit as necessary to reflect changed conditions at the facility.

( 6) The Control Authority may convert the mass limits of the categorical Pretreatment Standards at Parts 414, 419, and 455 to concentration limits for purposes of calculating limitations applicable to individual Industrial Users under the following conditions. When converting such limits to concentration limits, the Control Authority must use the concentrations listed in the applicable subparts of Parts 414, 419, and 455 and document that dilution is not being substituted for treatment as prohibited by § 403.6 ( d).

( 7) Equivalent limitations calculated in accordance with paragraphs ( c)( 3), ( c)( 4), ( c)( 5) and ( c)( 6) of this section are deemed Pretreatment Standards for the purposes of section 307( d) of the Act and this part. The Control Authority must document how the equivalent limits were derived and make this information publicly available. Once incorporated into its control mechanism, the Industrial User must comply with the equivalent limitations in lieu of the promulgated categorical standards from which the equivalent limitations were derived.

( 8) Many categorical pretreatment standards specify one limit for calculating maximum daily discharge limitations and a second limit for calculating maximum monthly average, or 4 day average, limitations. Where such Standards are being applied, the same production or flow figure shall be used in calculating both the average and the maximum equivalent limitation.

* * * * *

( d) Dilution Prohibited as Substitute for Treatment. Except where expressly authorized to do so by an applicable Pretreatment Standard or Requirement, no Industrial User shall ever increase the use of process water, or in any other way attempt to dilute a discharge as a partial or complete substitute for adequate treatment to achieve compliance with a Pretreatment Standard or Requirement. The Control Authority may impose mass limitations on Industrial Users which are using dilution to meet applicable Pretreatment Standards or Requirements, or in other cases where the imposition of mass limitations is appropriate.

( e) Combined wastestream formula. Where process effluent is mixed prior to treatment with wastewaters other than those generated by the regulated process, fixed alternative discharge limits may be derived by the Control Authority or by the Industrial User with the written concurrence of the Control Authority. * * *

* * * * *

5. Section 403.7 is amended by revising paragraphs ( h) introductory language and ( h)( 2) to read as follows:

§ 403.7 Removal Credits.

* * * * *

( h) Compensation for overflow. " Overflow" means the intentional or unintentional diversion of flow from the POTW before the POTW Treatment Plant. POTWs which at least once annually Overflow untreated wastewater to receiving waters may claim Consistent Removal of a pollutant only by complying with either paragraphs ( h)( 1) or ( h)( 2) of this section. However, paragraph ( h) shall not apply where Industrial User( s) can demonstrate that Overflow does not occur between the Industrial User( s) and the POTW Treatment Plant;

( 1)* * * ( 2) * * * ( ii) The POTW is in compliance with the NPDES permit requirements affecting those Overflows, or enforcement order or decree affecting those Overflows, issued pursuant to section 402( q)( 1) of the Act.

6. Section 403.8 is amended by redesignating paragraphs ( f)( 2)( vi) and ( f)( 2)( vii) as paragraphs ( f)( 2)( vii) and ( f)( 2)( viii); by revising paragraph ( f)( 1)( iii), paragraph ( f)( 1)( v), the first sentence of paragraph ( f)( 1)( vi)( B), paragraph ( f)( 2)( v), newly designated paragraphs ( f)( 2)( viii) introductory text, ( f)( 2)( viii)( A), ( f)( 2)( viii)( B), ( f)( 2)( viii)( C), ( f)( 2)( viii)( F), and ( f)( 2)( viii)( H), and paragraph ( f)( 6); and by adding paragraph ( f)( 2)( vi). The added and revised text reads as follows:

§ 403.8 POTW pretreatment programs: Development and implementation by the POTW.

* * * * *

( f) * * * ( 1) * * * ( 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 § 403.3( v), this control shall be achieved through individual permits or equivalent individual control mechanisms issued to each such user except as follows.

( A) At the discretion of the POTW, this control may include use of general control mechanisms if all of the facilities to be covered:

( 1) involve the same or substantially similar types of operations; ( 2) discharge the same types of wastes; ( 3) require the same effluent limitations; ( 4) require the same or similar monitoring; and ( 5) in the opinion of the POTW, are more appropriately controlled under a general control mechanism than under individual control mechanisms.

To be covered by the general control mechanism, the Significant Industrial User must file a written request for coverage that identifies its production processes, the types of wastes generated, the location for monitoring all wastes covered by the general control mechanism, any monitoring waiver request for a pollutant neither present nor expected to be present in the discharge in accordance with § 403.12( e)( 2), and any other information the POTW deems appropriate. A monitoring waiver for a pollutant neither present nor expected to be present in the discharge is effective in the general control mechanism only after the POTW has provided written notice to the Significant Industrial User that such a waiver request has been granted in accordance with § 403.12( e)( 2). A copy of the general control mechanism, documentation to support the POTW's determination that a specific Significant Industrial User meets the criteria in ( f)( 1)( iii)( A)( 1)( 5), and a copy of the User's written request for coverage must be maintained for 3 years after the expiration of the general control mechanism. General control mechanisms may not be used for facilities subject to production based categorical Pretreatment Standards or categorical Pretreatment Standards expressed as mass of pollutant discharged per day or for industrial users whose limits are based on the Combined Wastestream Formula or Net/ Gross calculations ( § 403.6( e) and § 403.15).

( B) Both individual and general control mechanisms must be enforceable and contain, at a minimum, the following conditions:

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

( 2) Statement of non transferability without, at a minimum, prior notification to the POTW and provision of a copy of the existing control mechanism to the new owner or operator;

( 3) Effluent limits, including best management practices, based on applicable general Pretreatment Standards in part 403 of this chapter, categorical Pretreatment Standards, local limits, and State and local law;

( 4) Self monitoring, sampling, reporting, notification and recordkeeping requirements, including an identification of the pollutants to be monitored ( including the process for seeking a waiver for a pollutant neither present nor expected to be present in the discharge in accordance with 403.12( e)( 2), or a specific waived pollutant in the case of an individual control mechanism), sampling location, sampling frequency, and sample type, based on the applicable general pretreatment standards in part 403 of this chapter, categorical pretreatment standards, local limits, and State and local law;

( 5) Statement of applicable civil and criminal penalties for violation of pretreatment standards and requirements, and any applicable compliance schedule. Such schedules may not extend the compliance date beyond applicable federal deadlines;

( 6) Requirements to control slug discharges, if determined by the POTW to be necessary.

* * * * *

( 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 § 403.12( o) to assure compliance with Pretreatment Standards. Such authority shall be at least as extensive as the authority provided under section 308 of the Act;

( vi) * * *

* * * * * ( B) Pretreatment requirements which will be enforced through the remedies set forth in paragraph ( f)( 1)( vi)( A) of this section, will include but not be limited to, the duty to allow or carry out inspections, entry, or monitoring activities; any rules, regulations, or orders issued by the POTW; any requirements set forth in control mechanisms issued by the POTW; or any reporting requirements imposed by the POTW or these regulations. * * *

* * * * *

( 2) * * * ( v) Randomly sample and analyze the effluent from industrial users and conduct surveillance activities in order to identify, independent of information supplied by industrial users, occasional and continuing noncompliance with pretreatment standards. Inspect and sample the effluent from each Significant Industrial User at least once a year except under the following circumstances. Where the POTW has authorized the Industrial User subject to a categorical Pretreatment Standard to forego sampling of a pollutant regulated by a categorical Pretreatment Standard in accordance with § 403.12( e)( 2), the POTW may reduce its sampling frequency for the waived pollutant( s) to once during the term of the Categorical Industrial User's control mechanism. In the event that a waived pollutant is subsequently found to be present or is expected to be present based on changes that occur in the user's operations, the POTW must immediately begin at least annual monitoring of the user's discharge. Evaluate, at least once per year, whether the Industrial User continues to meet the criteria for classification as a Non Significant Categorical Industrial User in accordance with § 403.3( v)( 2);

( vi) Evaluate whether each such Significant Industrial User needs a plan or other action to control slug discharges. For Industrial Users identified as significant prior to [ insert date 30 days after publication in the Federal Register], this evaluation must have been conducted at least once by [ insert date 1 year after publication in the Federal Register]; additional Significant Industrial Users must be evaluated within 1 year of being designated a Significant Industrial User. For purposes of this subsection, a slug discharge is any discharge of a non routine, episodic nature, including but not limited to an accidental spill or a non customary batch discharge, which has a reasonable potential to cause interference or pass through, or in any other way violate the POTW's regulations, local limits or permit conditions. The results of such activities shall be available to the Approval Authority upon request. Significant Industrial Users are required to notify the POTW immediately of any changes at its facility affecting potential for a slug discharge. If the POTW decides that a slug control plan is needed, the plan shall contain, at a minimum, the following elements:

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

( B) Description of stored chemicals;

( C) Procedures for immediately notifying the POTW of slug discharges, including any discharge that would violate a prohibition under § 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;

* * * * *

( viii) Comply with the public participation requirements of 40 CFR part 25 in the enforcement of national Pretreatment Standards. These procedures shall include provision for at least annual public notification in a newspaper( s) of general circulation that provides meaningful public notice within the jurisdiction( s) served by the POTW of Industrial Users which, at any time during the previous 12 months, were in significant noncompliance with applicable Pretreatment Requirements. For the purposes of this provision, a Significant Industrial User ( or any Industrial User which violates paragraphs ( f)( 2)( viii)( C), ( D), or ( H) below) is in significant noncompliance if its violation meets one or more of the following criteria:

( A) Chronic violations of wastewater discharge limits, defined here as those in which 66 percent or more of all of the measurements taken during a 6 month period exceed ( by any magnitude) a numeric Pretreatment Standard or Requirement, including instantaneous limits, as defined by 40 CFR 403.3( l) for the same pollutant parameter;

( B) Technical Review Criteria ( TRC) violations, defined here as those in which 33 percent or more of all of the measurements for each pollutant parameter taken during a 6 month period equal or exceed the product of the numeric Pretreatment Standard or Requirement including instantaneous limits, as defined by 40 CFR 403.3( l) multiplied by the applicable TRC ( TRC= 1.4 for BOD, TSS, fats, oil, and grease, and 1.2 for all other pollutants except pH);

( C) Any other violation of a Pretreatment Standard or Requirement as defined by 40 CFR 403.3( l) ( daily maximum, long term average, instantaneous limit, or narrative standard) that the POTW determines has caused, alone or in combination with other discharges, interference or pass through ( including endangering the health of POTW personnel or the general public);

* * * * *

( F) Failure to provide, within 45 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;

* * * * *

( H) Any other violation or group of violations, which may include a violation of best management practices, which the POTW determines will adversely affect the operation or implementation of the local pretreatment program.

* * * * *

( 6) The POTW shall prepare and maintain a list of its industrial users meeting the criteria in § 403.3( v)( 1). The list shall identify the criteria in § 403.3( v)( 1) applicable to each industrial user and, where applicable, shall also indicate whether the POTW has made a determination pursuant to § 403.3( v)( 2) that such industrial user should not be considered a Significant Industrial User. The initial list shall be submitted to the Approval Authority pursuant to § 403.9 or as a nonsubstantial modification pursuant to § 403.18( d). Modifications to the list shall be submitted to the Approval Authority pursuant to § 403.12( i)( 1).

* * * * *

7. Section 403.12 is amended by removing and reserving paragraph ( a); by removing paragraph ( b)( 5)( iii); by redesignating paragraphs ( b)( 5)( iv) through ( b)( 5)( viii) as paragraphs ( b)( 5)( iii) through ( b)( 5)( vii); by redesignating paragraphs ( e)( 2) and ( e)( 3) as paragraphs ( e)( 3) and ( e)( 4); by redesignating paragraphs ( g)( 4) and ( g)( 5) as paragraphs ( g)( 5) and ( g)( 6); by revising paragraphs ( b)( 4)( ii), ( b)( 5)( ii), ( b)( 6), ( e)( 1), ( g)( 1), ( g)( 2), ( g)( 3), ( h), ( j), ( k)( 2), ( l) introductory text, ( 1)( 1) introductory text, ( l)( 1)( ii), ( l)( 2), ( m), ( o)( 1) introductory text, newly designated paragraph ( g)( 6), and the first sentence of paragraph ( o)( 2); and by adding paragraphs ( e)( 2), ( g)( 4), ( i)( 6), and ( q). The added and revised text reads as follows:

§ 403.12 Reporting requirements for POTWs and industrial users.

( a) [ Reserved] ( b) * * * ( 4) * * * ( ii) Other streams as necessary to allow use of the combined wastestream formula of § 403.6( e). ( See paragraph ( b)( 5)( iv) of this section.) * * * * * ( 5) * * * ( ii) In addition, the User shall submit the results of sampling and analysis identifying the nature and concentration ( or mass, where required by the Standard or Control Authority) of regulated pollutants in the Discharge from each regulated process. Both daily maximum and average concentration ( or mass, where required) shall be reported. The sample shall be representative of daily operations. In cases where the standard requires compliance with a best management practice or pollution prevention alternative, the User shall submit documentation as required by the Control Authority or the applicable standards to determine compliance with the standard;

* * * * * ( 6) Certification. A statement, reviewed by an authorized representative of the Industrial User ( as defined in paragraph ( l) of this section) and certified to by a qualified professional, indicating whether Pretreatment Standards are being met on a consistent basis, and, if not, whether additional operation and maintenance ( O and M) and/ or additional pretreatment is required for the Industrial User to meet the Pretreatment Standards and Requirements; and ( e) * * * ( 1) Any Industrial User subject to a categorical Pretreatment Standard, after the compliance date of such Pretreatment Standard, or, in the case of a New Source, after commencement of the discharge into the POTW, shall submit to the Control Authority during the months of June and December, unless required more frequently in the Pretreatment Standard or by the Control Authority or the Approval Authority, a report indicating the nature and concentration of pollutants in the effluent which are limited by such categorical Pretreatment Standards. In addition, this report shall include a record of measured or estimated average and maximum daily flows for the reporting period for the Discharge reported in paragraph ( b)( 4) of this section except that the Control Authority may require more detailed reporting of flows. In cases where the standard requires compliance with a best management practice or pollution prevention alternative, the User shall submit documentation required by the Control Authority or the standard to determine the compliance status of the User. At the discretion of the Control Authority and in consideration of such factors as local high or low flow rates, holidays, budget cycles, etc., the Control Authority may agree to alter the months during which the above reports are to be submitted. Where the Control Authority determines that a facility subject to categorical Pretreatment Standards is not a Significant Industrial User pursuant to 403.3( v)( 2), the Control Authority may allow the Industrial User to reduce the reporting and monitoring frequency required under this Section; however, the Industrial User must at least annually complete a certification statement in accordance with 403.12( q).

( 2) The Control Authority may authorize the Industrial User subject to a categorical Pretreatment Standard to forego sampling of a pollutant regulated by a categorical Pretreatment Standard if the Industrial User has demonstrated through sampling and other technical factors that the pollutant is neither present nor expected to be present in the discharge, or is present only at background levels from intake water and without any increase in the pollutant due to activities of the Industrial User. This authorization is subject to the following conditions:

( i) The monitoring waiver is valid only for the duration of the effective period of the control mechanism, but in no case longer than 5 years. The user must submit a new request for the waiver before the waiver can be granted for each subsequent control mechanism ( ii) In making a demonstration that a pollutant is not present, the Industrial User must provide data from at least one sampling of the facility's process wastewater prior to any treatment present at the facility that is representative of all wastewater from all processes. The request for a monitoring waiver must be signed in accordance with § 403.12( l), and include the certification statement in § 403.6( a)( 2)( ii). Non detectable sample results may only be used as a demonstration that a pollutant is not present if the EPA approved method from 40 CFR part 136 with the lowest minimum detection level for that pollutant was used in the analysis.

( iii) Any grant of the monitoring waiver by the Control Authority must be included as a condition in the user's control mechanism. The reasons supporting the waiver and any information submitted by the user in its request for the waiver must be maintained by the Control Authority for 3 years after expiration of the waiver.

( iv) Upon approval of the monitoring waiver and revision of the user's control mechanism by the Control Authority, the Industrial User must certify on each report with the statement below, that there has been no increase in the pollutant in its wastestream due to activities of the Industrial User:

Based on my inquiry of the person or persons directly responsible for managing compliance with the Pretreatment Standard for 40 CFR [ specify applicable National Pretreatment Standard part( s)], I certify that, to the best of my knowledge and belief, there has been no increase in the level of [ list pollutant( s)] in the wastewaters due to the activities at the facility since filing of the last periodic report under 40 CFR 403.12( e)( 1).

( v) In the event that a waived pollutant is found to be present or is expected to be present based on changes that occur in the user's operations, the user must immediately: ( 1) comply with the monitoring requirements of § 403.12( e)( 1) or other more frequent monitoring requirements imposed by the Control Authority, and ( 2) notify the Control Authority.

( vi) This provision does not supercede certification processes and requirements established in categorical Pretreatment Standards, except as otherwise specified in the categorical Pretreatment Standard.

* * * * *

( g) * * * ( 1) The reports required in paragraphs ( b), ( d), ( e), and ( h) of this section shall contain the results of sampling and analysis of the Discharge, including the flow and the nature and concentration, or production and mass where requested by the Control Authority, of pollutants contained therein which are limited by the applicable Pretreatment Standards. This sampling and analysis may be performed by the Control Authority in lieu of the Industrial User. Where the POTW performs the required sampling and analysis in lieu of the Industrial User, the User will not be required to submit the compliance certification required under paragraphs ( b)( 6) and ( d) of this section. In addition, where the POTW itself collects all the information required for the report, including flow data, the Industrial User will not be required to submit the report.

( 2) If sampling performed by an Industrial User indicates a violation, the user shall notify the Control Authority within 24 hours of becoming aware of the violation. The User shall also repeat the sampling and analysis and submit the results of the repeat analysis to the Control Authority within 30 days after becoming aware of the violation. Where the Control Authority has performed the sampling and analysis in lieu of the Industrial User, the Control Authority must perform the repeat sampling and analysis unless it notifies the User of the violation and requires the User to perform the repeat analysis. Resampling is not required if:

( i) The Control Authority performs sampling at the Industrial User at a frequency of at least once per month, or ( ii) The Control Authority performs sampling at the User between the time when the initial sampling was conducted and the time when the User or the Control Authority receives the results of this sampling.

( 3) The reports required in paragraphs ( b), ( d), ( e) and ( h) of this section must be based upon data obtained through appropriate sampling and analysis performed during the period covered by the report, which data are representative of conditions occurring during the reporting period. The Control Authority shall require that frequency of monitoring necessary to assess and assure compliance by Industrial Users with applicable Pretreatment Standards and Requirements. Grab samples must be used for pH, cyanide, total phenols, oil and grease, sulfide, and volatile organic compounds. For all other pollutants, 24 hour composite samples must be obtained through flowproportional composite sampling techniques, unless time proportional composite sampling or grab sampling is authorized by the Control Authority. Where time proportional composite sampling or grab sampling is authorized by the Control Authority, the samples must be representative of the discharge and the decision to allow the alternative sampling must be documented in the industrial user file for that facility or facilities. Using protocols ( including appropriate preservation) specified in 40 CFR Part 136 and appropriate EPA guidance, multiple grab samples collected during a 24 hour period may be composited prior to the analysis as follows: for cyanide, total phenols, and sulfides the samples may be composited in the laboratory or in the field; for volatile organics and oil & grease the samples may be composited in the laboratory. Composite samples for other parameters unaffected by the compositing procedures as documented in approved EPA methodologies may be authorized by the Control Authority, as appropriate.

( 4) For sampling required in support of baseline monitoring and 90 day compliance reports required in paragraphs ( b) and ( d) of this section, a minimum of four ( 4) grab samples must be used for pH, cyanide, total phenols, oil and grease, sulfide and volatile organic compounds for facilities for which historical sampling data do not exist; for facilities for which historical sampling data are available, the Control Authority may authorize a lower minimum. For the reports required by ( e) and ( h), the Control Authority shall require the number of grab samples necessary to assess and assure compliance by Industrial Users with Applicable Pretreatment Standards and Requirements.

* * * * *

( 6) If an Industrial User subject to the reporting requirement in paragraph ( e) or ( h) of this section monitors any regulated pollutant at the appropriate sampling location more frequently than required by the Control Authority, using the procedures prescribed in paragraph ( g)( 5) of this section, the results of this monitoring shall be included in the report.

( h) Reporting requirements for Industrial Users not subject to categorical Pretreatment Standards. The Control Authority must require appropriate reporting from those Industrial Users with discharges that are not subject to categorical Pretreatment Standards. Significant Noncategorical Industrial Users must submit to the Control Authority at least once every six months ( on dates specified by the Control Authority) a description of the nature, concentration, and flow of the pollutants required to be reported by the Control Authority. In cases where the local standard requires compliance with a best management practice or pollution prevention alternative, the User must submit documentation required by the Control Authority to determine the compliance status of the User. These reports must be based on sampling and analysis performed in the period covered by the report, and in accordance with the techniques described in part 136 and amendments thereto. This sampling and analysis may be performed by the Control Authority in lieu of the significant non categorical industrial user.

* * * * *

( i)* * * ( 6) An updated list of Non Significant Categorical Industrial Users.

( j) Notification of changed discharge. All Industrial Users shall promptly notify the Control Authority ( and the POTW if the POTW is not the Control Authority) in advance of any substantial change in the volume or character of pollutants in their discharge, including the listed or characteristic hazardous wastes for which the Industrial User has submitted initial notification under paragraph ( p) of this section.

( k) * * * ( 2) No increment referred to in paragraph ( k)( 1) of this section shall exceed nine months;

* * * * * ( l) Signatory requirements for industrial user reports. The reports required by paragraphs ( b), ( d), and ( e) of this section shall include the certification statement as set forth in § 403.6( a)( 2)( ii), and shall be signed as follows:

( 1) By a responsible corporate officer, if the Industrial User submitting the reports required by paragraphs ( b), ( d), and ( e) of this section is a corporation. For the purpose of this paragraph, a responsible corporate officer means:

* * * * * ( ii) the manager of one or more manufacturing, production, or operating facilities, provided, the manager is authorized to make management decisions which govern the operation of the regulated facility including having the explicit or implicit duty of making major capital investment recommendations, and initiate and direct other comprehensive measures to assure long term environmental compliance with environmental laws and regulations; can ensure that the necessary systems are established or actions taken to gather complete and accurate information for control mechanism requirements; and where authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures.

( 2) By a general partner or proprietor if the Industrial User submitting the reports required by paragraphs ( b), ( d), and ( e) of this section is a partnership or sole proprietorship respectively.

* * * * *

( m) Signatory requirements for POTW reports. Reports submitted to the Approval Authority by the POTW in accordance with paragraph ( i) of this section must be signed by a principal executive officer, ranking elected official or other duly authorized employee. The duly authorized employee must be an individual or position having responsibility for the overall operation of the facility or the Pretreatment Program. This authorization must be made in writing by the principal executive officer or ranking elected official, and submitted to the Approval Authority prior to or together with the report being submitted.

* * * * *

( o) * * * ( 1) Any Industrial User and POTW subject to the reporting requirements established in this section shall maintain records of all information resulting from any monitoring activities required by this section, including documentation associated with best management practices. Such records shall include for all samples:

* * * * *

( 2) Any Industrial User or POTW subject to the reporting requirements established in this section ( including documentation associated with best management practices) shall be required to retain for a minimum of 3 years any records of monitoring activities and results ( whether or not such monitoring activities are required by this section) and shall make such records available for inspection and copying by the Director and the Regional Administrator ( and POTW in the case of an Industrial User). * * *

* * * * *

( q) Sampling of non Significant Categorical Industrial Users. For a facility determined to be a Non Significant Categorical Industrial User pursuant to § 403.3( v)( 2), the Control Authority may establish alternative reporting requirements to the reporting requirements in § 403.12( e). In lieu of monitoring pursuant to § 403.12( e), the Control Authority may allow Non Significant Categorical Industrial Users to submit a certification statement. The following certification statement, to be signed in accordance with the signatory requirements in § 403.12( l), must be submitted at least once per year, and must accompany any alternative report required by the Control Authority:

Based on my inquiry of the person or persons directly responsible for managing compliance with the categorical pretreatment standards under 40 CFR ____, I certify that, to the best of my knowledge and belief that during the period from ____________, ________ to ____________, ________ [ month, days, year]: ( a) The facility described as ____________________ [ facility name] met the definition of a non significant categorical industrial user as described in § 403.3( v)( 2); ( b) the facility complied with all applicable pretreatment standards and requirements for at least the last three years; and ( c) the facility never discharged more than 100 gallons of process water on any given day during this period. This compliance certification is based upon the following information:

8. Section 403.13 is amended by revising the first sentence of paragraph ( g)( 3) as follows:

§ 403.13 Variances from categorical pretreatment standards for fundamentally different factors.

* * * * *

( g) * * * ( 3) Where the User has requested a categorical determination pursuant to § 403.6( a), the User may elect to await the results of the category determination before submitting a variance request under this section. * * *

* * * * *

9. Section 403.15 is revised to read as follows:

§ 403.15 Net/ Gross calculation.

( a) Application. Categorical Pretreatment Standards may be adjusted to reflect the presence of pollutants in the Industrial User's intake water in accordance with this section. Any Industrial User wishing to obtain credit for intake pollutants must make application to the Control Authority. Upon request of the Industrial User, the applicable Standard will be calculated on a " net" basis ( i. e., adjusted to reflect credit for pollutants in the intake water) if the requirements of paragraphs ( b) of this section are met.

( b) Criteria. ( 1) Either ( i) The applicable categorical Pretreatment Standards contained in 40 CFR subchapter N specifically provide that they shall be applied on a net basis; or ( ii) The Industrial User demonstrates that the control system it proposes or uses to meet applicable categorical Pretreatment Standards would, if properly installed and operated, meet the Standards in the absence of pollutants in the intake waters.

( 2) Credit for generic pollutants such as biochemical oxygen demand ( BOD), total suspended solids ( TSS), and oil and grease should not be granted unless the Industrial User demonstrates that the constituents of the generic measure in the User's effluent are substantially similar to the constituents of the generic measure in the intake water or unless appropriate additional limits are placed on process water pollutants either at the outfall or elsewhere.

( 3) Credit shall be granted only to the extent necessary to meet the applicable categorical Pretreatment Standard( s), up to a maximum value equal to the influent value. Additional monitoring may be necessary to determine eligibility for credits and compliance with Standard( s) adjusted under this section.

( 4) Credit shall be granted only if the User demonstrates that the intake water is drawn from the same body of water as that into which the POTW discharges. The Control Authority may waive this requirement if it finds that no environmental degradation will result.

10. Appendix A is removed and reserved. Appendixes B and C continue to be reserved.

APPENDIXES A C TO PART 403 [ RESERVED]

11. Appendix G is amended as by revising Table I, Footnote 1 as follows: APPENDIX G TO PART 403 POLLUTANTS ELIGIBLE FOR A REMOVAL CREDIT I. Regulated Pollutants in Part 503 Eligible for a Removal Credit * * * * * \ 1\ The following organic pollutants are eligible for a removal credit if the requirements for total hydrocarbons ( or carbon monoxide) in subpart E in 40 CFR Part 503 are met when sewage sludge is fired in a sewage sludge incinerator: Acrylonitrile, ldrin/ Dieldrin( total), Benzene, Benzidine, Benzo( a) pyrene, Bis( 2 chloroethyl) ether, Bis( 2 ethylhexyl) phthalate, Bromodichloromethane, Bromoethane, Bromoform, Carbon tetrachloride, Chlordane, Chloroform, Chloromethane, DDD, DDE, DDT, Dibromochloromethane, Dibutyl phthalate, 1,2 dichloroethane, 1,1 dichloroethylene, 2,4 dichlorophenol, 1,3 dichloropropene, Diethyl phthalate, 2,4 dinitrophenol, 1,2 diphenylhydrazine, Din butyl phthalate, Endosulfan, Endrin, Ethylbenzene, Heptachlor, Heptachlor epoxide, Hexachlorobutadiene, Alphahexachlorocyclohexane, Betahexachlorocyclohexane Hexachlorocyclopentadiene, Hexachloroethane, Hydrogen cyanide, Isophorone, Lindane, Methylene chloride, Nitrobenzene, N Nitrosodimethylamine, N Nitrosodin propylamine, Pentachlorophenol, Phenol, Polychlorinated biphenyls, 2,3,7,8 tetrachlorodibenzo p dioxin, 1,1,2,2,   tetrachloroethane, Tetrachloroethylene, Toluene, Toxaphene, Trichloroethylene, 1,2,4   Trichlorobenzene, 1,1,1   Trichloroethane, 1,1,2   Trichloroethane, and 2,4,6   Trichlorophenol.

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