REGULATION NO. 63

63.1 AUTHORITY

These regulations were originally promulgated pursuant to the Colorado Water Quality Control Act, sections 25-8-101 through 25-8-703 C.R.S, (1982 and 1985 Supp.). In particular, they are promulgated and amended under the following sections:

25-8-202; 25-8-205; and 25-8-508 (1989 Repl. Vol. and 1992 Supp.)

63.2 PURPOSE

The purpose of these regulations is to fulfill the following objectives:

1. A. To prevent the introduction of pollutants into POTW's which interfere with the operation of a POTW, including interference with its use or disposal of sludge;
   1. B. To prevent the introduction of pollutants into POTW's which will pass through the treatment works without receiving effective treatment or otherwise be incompatible with such works; and C. To improve opportunities to recycle and reclaim municipal and industrial wastewaters and sludges.

63.3 APPLICABILITY

These regulations apply to:

1. A. Industrial users, either new or existing, which discharge either by direct connection to a POTW or indirectly by truck or rail or otherwise introduce pollutants into a POTW; and B. POTW's which receive or may receive discharges of non-domestic wastes from industrial users either by direct connection or via truck, rail, or otherwise. These regulations do not apply to industrial users which discharge to a sewer which is not connected to a POTW.

63.4 IMPLEMENTATION

These regulations will be implemented directly by the Division. POTW's and Industrial Users will be expected to know of these regulations and comply with them. Requirements for POTW's will be incorporated in their CDPS permits. -Industrial Users must follow the requirements of the POTW they discharge into as well as these regulations. If an Industrial User discharges to a POTW without an approved program, the Control Authority is the Division.

63.5 STANDARDS INCORPORATED BY REFERENCE

Throughout these regulations, pretreatment standards and requirements promulgated by the United States Environmental Protection Agency found in Parts 405 through 471, Chapter I, subchapter N, Title 40, of the Code of Federal Regulations have been adopted and incorporated by reference. These are from the Code of Federal Regulations dated July 1, 2002, as updated by the amendment to Part 412, and the Federal Register dated February 14, 2003. These incorporations do not include later amendments to, or editions of the incorporated material.

Future amendments to this regulation will be necessary to keep the regulation in conformance with Federal regulations. Such amendments will need to be adopted by the Commission. All materials incorporated by reference may be examined at any state publication depository library. Requests for public inspection of materials incorporated by reference in this regulation should be made to Staff Assistant, Colorado Department of Public Health and Environment, Water Quality Control Division, 4300 Cherry Creek Drive South, Denver, Colorado, 80246-1530

63.6 ENFORCEMENT

Violations of these regulations will result in action being taken as provided for in Part 6 of the Water Quality Control Act.

63.7 DEFINITIONS

The following definitions are applicable to these regulations:

1. A. “Act” means the Colorado Water Quality Control Act as from time to time amended, section 25-8-101 C.R.S., 1973, et seq.
   1. B. “Approved POTW Program” or “Program” or “POTW Pretreatment Program” means a program administered by a POTW that meets the criteria as established in section 63.9(E) and which has been approved by the Director in accordance with section 63.9(G), or a program previously approved by EPA as described in the approved program document.
   2. C. “Approved Program Document” means the pretreatment program submission described in sections 63.9 (E) and (F), as amended and approved. The approved program document describes in detail the steps necessary for adequate implementation of the POTW's industrial pretreatment program including, but not limited to the level of effort appropriate for monitoring, permitting and enforcement.
   3. D. “Commission” means the Water Quality Control Commission created by section 25-8-201, C.R.S., 1973, as amended.
   4. E. “Composite sample” means multiple samples collected at equally spaced intervals or proportioned according to flow.
   5. F. “Control Authority” means the Director of the Water Quality Control Division or in the case of a POTW with an approved POTW Pretreatment Program, the POTW.
   6. G. “Daily Maximum” means a limitation not to be exceeded by either a composite sample c the arithmetic average of grab samples taken within a 24 hour period.
   7. H. “Director” means the Director of the Water Quality Control Division or his/her authorized representative.
   8. I. “Discharge” or “Indirect Discharge” means the introduction of pollutants into a POTW from any non-domestic source regulated under section 307(b), (c) or (d) of the Clean Water Act.
   9. J. “Domestic Wastewater” includes:
      1. 1. wastewater from normal residential activities including, but not limited to, wastewater from kitchen, bath and laundry facilities, or 2. wastewater from the personal sanitary conveniences (toilets, showers, bathtubs, fountains, non-commercial sinks, and similar structures) of commercial, industrial or institutional buildings, provided that the wastewater exhibits characteristics which are similar to those of wastewater from normal residential activities. Specifically excluded from this definition is wastewater from commercial, industrial, or institutional laundries or food preparation facilities.
   10. K. “Enforcement Division Director” means one of the directors of the Enforcement Division within the Regional VIII offices of the EPA or this persons delegated representative.
   11. L. “EPA” means the federal Environmental Protection Agency.
   12. M. “Clean Water Act” or “CWA” means the Federal Water Pollution Control Act, as amended (33 U.S.C. Section 1251 et seq.)
   13. N. “Grab Sample” means a single “dip and take” sample collected so as to be representative of the parameter being monitored.
   14. O. “Industrial User” or “User” means a source of indirect discharge which contains non-domestic wastewater.
   15. P. “Industrial User Permit” means a permit issued pursuant to paragraph 63.9 (E)(1)(c) of this regulation.
   16. Q. “Interference” means a discharge which alone or in conjunction with a discharge or discharges from other sources, both:
       1. (1) Inhibits or disrupts the POTW, its treatment process or operations, or its sludge processes, use or disposal; and (2) Therefore is a cause of a violation of any requirement of the POTW's permit (including an increase in the magnitude or duration of a violation) or of the prevention of sewage sludge use or disposal in compliance with the following statutory provisions and regulations or permits issued thereunder (or more stringent state or local regulations): Section 405 of the Federal Clean Water Act, the Solid Waste Disposal Act (SWDA) which includes Title II known as the Resource Conservation and Recovery Act, the Division's Domestic Sewage Sludge Regulations, the Federal Clean Air Act, or the Toxic Substance Control Act.
   17. R. “Monthly Average” means a monthly average determined by the arithmetic mean of all samples collected during a calendar month unless otherwise defined in the regulations except that split samples shall be averaged as a single value. Samples may not be used for more than one reporting period.
   18. S. “National Pretreatment Standard,” “Pretreatment Standard,” or “Standard” means any regulation containing pollutant discharge limits promulgated by the Environmental Protection Agency in accordance with section 307 (b) and (c) of the Clean Water Act, including prohibitive discharge limits established pursuant to 40 CFR 403.5 and which applies to Industrial Users.
   19. T. “New Source” means any building, structure, facility or installation from which there is or may be a discharge of pollutants, the construction of which commenced after the publication of proposed Pretreatment Standards under Section 307(c) of the Clean Water Act which will be applicable to such source if such standards are thereafter promulgated in accordance with that section, provided that:
       1. (1) The building, structure, facility or installation is constructed at a site at which no other wastewater source is located; or (2) The building, structure, facility or installation totally replaces the process or production equipment that causes the discharge of pollutants at an existing source; or (3) The production of wastewater generating processes of the building, structure, facility or installation are substantially independent of an existing wastewater source at the same site. In determining whether these are substantially independent, factors such as the extent to which the new facility is integrated with the existing plant, and the extent to which the new facility is engaged in the same general type of activity as the existing source should be considered. 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 (2) and (3) above but otherwise alters, replaces, or adds to existing process or production equipment. Construction of a new source as defined under this paragraph has commenced if the owner or operator has:
          1. (a) Begun or caused to begin as part of a continuous onsite construction program;
          2. (i) Any placement, assembly, or installation of facilities or equipment; or (ii) Significant site preparation work including clearing, excavation, or removal of existing buildings, structures, or facilities which is necessary for the placement, assembly, or installation of new source facilities or equipment; or (b) Entered into a binding contractual obligation for the purchase of facilities or equipment which are intended to be used in its operation within a reasonable time. Options to purchase or contracts which can be terminated or modified without substantial loss, and contracts for feasibility, engineering, and design studies do not constitute a contractual obligation under this paragraph.
   20. U. “Non-domestic wastewater” means wastewater which does not meet the definition of domestic wastewater above.
   21. V. “Permit” means a CDPS permit issued pursuant to state and federal law.
   22. W. “Pass-through” means an indirect discharge that exits the POTW into waters of the state in quantities or concentrations that, alone or in conjunction with an indirect discharge or indirect discharges from other sources, is a cause of a violation of any requirement of the POTW's permit (including an increase in the magnitude or duration of a violation).
   23. X. “Publicly Owned Treatment Works” or “POTW” means a publicly owned domestic wastewater treatment facility. This includes any publicly owned devices and systems used in the storage, treatment, recycling or reclamation of municipal sewage or treatment of industrial wastes of a liquid nature. It also includes sewers, pipes and other conveyances if they are publicly owned or if they convey wastewater to a POTW treatment plant. The term also means the municipality as defined in Section 502(4) of the Clean Water Act, which has jurisdiction over the indirect discharges to and the discharge from such a treatment works.
   24. Y. “POTW Treatment Plant” means that portion of the POTW which is designed to provide treatment (including recycling and reclamation) of municipal sewage and industrial waste.
   25. Z. “Pretreatment” means the reduction of the amount of pollutants, the elimination of pollutants, or the alteration of the nature of pollutant properties in wastewater prior to or in lieu of discharging or otherwise introducing such pollutants into a POTW.
   26. AA. “Pretreatment Requirements” means any substantive or procedural requirement related to pretreatment other than a National Pretreatment Standard, imposed on an Industrial User.
   27. BB. “Regional Administrator” means the Region VIII Administrator of the EPA.
   28. CC. “Significant Industrial User” means:
       1. (1) All Industrial Users subject to categorical pretreatment standards found in Table at section 63.12, and (2) 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, as defined in 63.7(O), 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.
       2. (3) Upon a finding that an Industrial User meeting the criteria in subsection (2) of this section has no reasonable potential for adversely affecting the POTW's operation or for violating any pretreatment standard 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 determine, in accordance with paragraph 63.9 (E)(4) in those instances where the POTW is the control authority, that such Industrial User is not a significant Industrial User.
   29. DD. “Submission” means:
       1. (1) A request by a POTW for approval of a Pretreatment Program to the Director;
       2. (2) A request by a POTW to the Director for authority to revise the discharge limits in a categorical Pretreatment Standard to reflect POTW pollutant removals.

63.8 LOCAL LAW

Nothing in this regulation is intended to affect any pretreatment requirements, including any standards or prohibitions, established by local law as long as those requirements are not less stringent than any set forth by the state or federal regulations.

63.9 POTW PRETREATMENT PROGRAM REQUIREMENTS

A. POTW's Required to Develop Programs. POTW's required to develop a program must do so within 1 year of written notification from the Director. The following POTW's are required to develop pretreatment programs:

1. (1) Large Facilities. Any POTW, or combination of POTW's operated by the same authority, with a total design flow greater than 5 million gallons per day which receive from Industrial Users pollutants which could pass-through or interfere with the operation of the POTW or have Industrial Users which are subject to pretreatment standards;
   1. (2) Small Facilities. Any POTW with a design flow of 5 million gallons per day or less whose nature or volume of industrial influent results or could result in treatment process upsets, violations of its permit, contamination of its sludge, c other circumstances that cause or could cause interference or pass-through. Determination of the need of a small facility to develop a pretreatment program shall be made by the Division. The POTW will be required to develop such a program through a CDPS permit modification or administrative order.

B. Other POTW's. Any POTW of any size may request program approval if it satisfies the requirements in

1. 63.9 (E).

C. POTW Program Implementation. POTW's which obtain program approval become the Control Authority and are to fully and effectively implement the program as described in the approved program document. The POTW is responsible for requiring compliance of Industrial Users with sections 63.11 through the end of these regulations. Failure of a POTW to adequately implement its pretreatment program is a violation of these regulations and as such is subject to enforcement action as allowed for in Part 6 of the Act. All POTW pretreatment programs approved by EPA prior to implementation of these regulations by the Commission will be considered approved under these regulations.

D. Incorporation of Pretreatment Program Requirements in Permits:

1. (1) Approved Program. Upon approval of a POTW pretreatment program the POTW's permit will be modified to incorporate pretreatment program conditions as enforceable permit conditions. Such conditions will include:
   1. (a) Implementation of the POTW's program as described in the approved program document. This includes:
      1. (i) Carrying out inspection, surveillance, and monitoring procedures as required by section 63.13 which will determine, independent of information supplied by the Industrial User, whether the Industrial User is in compliance with the pretreatment standards;
         1. (ii) Requiring development, as necessary, of compliance schedules by each Industrial User for the installation of control technologies to meet applicable pretreatment standards;
         2. (iii) Maintaining and updating, as necessary, records identifying the nature and character of Industrial User inputs;
         3. (iv) Obtaining appropriate remedies for noncompliance by any Industrial User with any pretreatment standard and/or requirement; and (v) Maintaining an adequate revenue structure for continued implementation of the Pretreatment Program.
      2. (b) In addition to the general and specific prohibitions, applicable National Categorical Pretreatment Standards must be met by all Industrial Users of the POTW. These standards are published in the Federal regulations of 40 CFR 405 et. seq.
      3. (c) Submission of the annual report specified in 63.10(A).
      4. (d) Monitoring of the POTW's influent, effluent and sludge at specified frequencies for specified parameters.
   2. (2) Program Development. Other conditions that warrant modification of a POTW's permit include:
      1. (a) Putting the POTW on a compliance schedule for pretreatment program development, in particular, where the addition of pollutants into a POTW by an Industrial User presents a substantial hazard to the functioning of the treatment works, quality of the receiving waters, human health, or the environment. The period of such compliance schedule shall not exceed one year.
      2. (b) Coordination of a CWA Section 201 construction grant with program development.
   3. (3) Compliance Schedule Requirements. The following conditions and reporting requirements shall apply to the compliance schedule for development of an approvable POTW pretreatment program required this section:
      1. (a) The schedule shall contain increments of progress in the form of dates for the commencement and completion of major events leading to the development and implementation of a POTW pretreatment program (e.g., acquiring required authorities, developing funding mechanisms, acquiring equipment);
      2. (b) No increment referred to in paragraph (a) of this subsection shall exceed nine months;
      3. (c) Not later than 14 days following each date in the schedule and the final date for compliance, the POTW shall submit a progress report to the Director including, at a minimum, whether or not it has complied with the increment of progress to be met on such date and, if not, the date on which it expects to comply with this increment of progress, the reason for delay, and the steps taken by the POTW to return to the schedule established. In no event shall more than nine months elapse between such progress reports to the Director.

E. POTW Pretreatment Program Element Requirements:

1. (1) Legal Authority. The POTW shall operate pursuant to enforceable legal authority, 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 CWA and of this section. The authority may be contained in a statute, ordinance, or series of contracts or joint powers agreement that the POTW is authorized to enact, enter into, or implement and which is authorized by state law. At a minimum, this legal authority shall enable the POTW to:
   1. (a) Deny or condition new or increased contributions of pollutants, or changes in the nature of pollutants to the POTW by Industrial Users when such contributions do not meet applicable pretreatment standards and requirements, when such contributions would cause the POTW to violate its permit or when the Industrial User does not submit adequate information to determine if pass-through or interference will occur;
      1. (b) Require compliance with applicable pretreatment standards and requirements by Industrial Users;
      2. (c) Control, through Industrial User permit, order or similar means as provided by law, 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 pursuant to 63.7(CC), this control shall be achieved through Industrial User 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:
         1. (i) A statement of duration (not to exceed five years);
         2. (ii) A 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. (iii) Effluent limits based on applicable general pretreatment standards contained in this regulation and in 40 CFR 403, in categorical pretreatment standards, in local limits, in state law and in local ordinance or rules and regulations;
         4. (iv) 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 contained in this regulation and in 40 CFR 403, in categorical pretreatment standards, in local limits, in state law and in local ordinance or rules and regulations;
         5. (v) A statement of applicable civil and criminal penalties for violation of pretreatment standards and requirements, and any applicable compliance schedule. Such schedules may not extend any compliance date beyond applicable federal deadlines.
      3. (d) Require the development of a compliance schedule, if necessary by any Industrial User for the installation of technology required to meet applicable pretreatment standards and requirements;
      4. (e) Require the submission of all notices and self-monitoring reports from Industrial Users, as necessary to assess and assure compliance by Industrial Users with pretreatment standards and requirements including, but not limited to, the reports required in 63.13 of this regulation;
      5. (f) Carry out all inspection, surveillance and monitoring procedures necessary to determine, independent of information supplied by Industrial Users, compliance or non-compliance 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 section 63.13(G) of these regulations. The POTW must have the authority to copy such records;
      6. (g) Obtain remedies for non-compliance by any Industrial User with any pretreatment standard or requirement. A POTW shall be able to seek injunctive relief for non- compliance by Industrial Users with pretreatment standards and requirements. A POTW shall be able 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;
      7. (h) Have the ability to include as pretreatment requirements enforced through the remedies set forth in subparagraph (g), the ability to allow or carry out inspections, entry, or monitoring activities; any rules, regulations, or orders issued by the POTW; or any reporting requirements imposed by the POTW or by this regulation; any requirements set forth in individual control mechanisms issued by the POTW;
      8. (i) Have the authority and procedures to halt or prevent any discharge of pollutants to the POTW which reasonably appears to present an imminent danger to the health or welfare of persons and to halt or prevent any discharge to the POTW which presents or may present danger to the environment or which threatens to interfere with the operations of the POTW.
      9. (j) Comply with the confidentiality requirements set forth in 63.13(K);
      10. (k) Develop local limits as required in section 63.11 (D) or demonstrate that they are not necessary.
   2. (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:
      1. (a) 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 subparagraph shall be made available to the Director upon request;
      2. (b) Identify the character and volume of pollutants contributed to the POTW by the Industrial User(s) identified under subparagraph (a). This information shall be made available to the Director upon request.
      3. (c) Notify Industrial Users identified under subparagraph (a) of applicable pretreatment standards and any applicable requirements under Sections 204(b) and 405 of the Clean Water Act and Subtitles C and D of the Resource Conservation and Recovery Act (33 U.S.C, Section 6901, et. seq.). Within 30 days of approval pursuant to paragraph (4) of this section (E), of a list of significant Industrial Users, or a subsequent amendment or modification thereto, notify each significant Industrial User of its status as such and of all requirements applicable to it as a result of such status.
      4. (d) Receive and analyze self-monitoring reports and other notices submitted by Industrial Users in accordance with the self-monitoring requirements of 63.13 of these regulations.
      5. (e) Randomly sample and analyze the effluent from Industrial Users and conduct surveillance and inspection activities in order to identify, independent of information supplied by Industrial Users, occasional and continuing non- compliance 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 paragraph, 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 these activities shall be made available to the Director upon request. If the POTW decides that a slug control plan is needed, the plan shall contain, at a minimum, the following elements:
         1. (i) A description of discharge practices, including non-routine batch discharges;
         2. (ii) A description of stored chemicals;
         3. (iii) Procedures for immediately notifying the POTW of slug discharges, including any discharge that would violate a prohibition under paragraph 63.11(B), with procedures for follow-up written notification within five days;
         4. (iv) 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 runoff, worker training, building of containment structures or equipment, measures for containing toxic organic pollutants (including solvents), and/or measures and equipment for emergency response.
      6. (f) Investigate instances of non-compliance with pretreatment standards and requirements, as indicated in the reports and notices required by section 63.13, or indicated by analysis, inspection and surveillance activities. 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 (g) Comply with all applicable public participation requirements in 40 CFR Part 25 of the CWA in enforcement of national pretreatment standards and specific prohibited discharges as defined in section 63.11. These procedures shall include a provision of at least annually providing public notification, in a newspaper of general circulation within the municipality in which the POTW is located, of Industrial Users which during the previous 12 months were in significant noncompliance with applicable pretreatment standards or other pretreatment requirements. For the purpose of this provision an Industrial User is in significant noncompliance if its violation(s) meet one or more of the following criteria:
         1. (i) Chronic violations of wastewater discharge limits, defined here as those in which sixty-six percent or more of all the measurements for any one parameter taken within a six month period exceed, by any magnitude, the daily maximum limit or the average limit;
         2. (ii) Technical review criteria violations, defined here as those in which thirty-three percent or more of all the measurements for any one parameter taken within a six month period equal or exceed the daily maximum limit or the average limit multiplied by the technical review criteria. The technical review criteria is defined as:

            For BOD , TSS, fats, and oil and grease; 1.4 X the limitation. For all other pollutants EXCEPT pH; 1.2 X the limitation.

         3. (iii) 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 endangerment of the health of POTW personnel or the general public);
         4. (iv) 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 63.9(E)(1) (1) to halt or prevent such a discharge;
         5. (v) 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;
         6. (vi) 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;
         7. (vii) Failure to accurately report noncompliance;
         8. (viii) Any other violation or group of violations which the control authority determines will adversely effect the operation or implementation of the local pretreatment program.
   3. (3) Enforcement Response. 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:
      1. (a) Describe how the POTW will investigate instances of noncompliance;
      2. (b) Describe the types of escalating enforcement responses the POTW will take in response to all anticipated types of Industrial User violations and the time periods within which responses will take place;
      3. (c) Identify (by title) the officials) responsible for each type of response;
      4. (d) Adequately reflect the POTW'S primary responsibility to enforce all applicable pretreatment requirements and standards as detailed in subsections (E) and (F) of this section.
   4. (4) The POTW shall prepare a list of all Industrial Users meeting the criteria set forth at 63.7(CC)
      1. (1) and (2) including any such industry which does not discharge but could do so. The list shall identify the names and addresses of each Industrial User, the criteria at 63.7(CC) applicable to each Industrial User and, for Industrial Users meeting the criteria at 63.7(CC)(2), shall also indicate whether the POTW has made a determination pursuant to 63.7(CC)(3) that such Industrial User should not be considered a significant Industrial User. For each Industrial User considered a significant Industrial User pursuant to 63.7(CC)(1) the list shall identify the categorical standards applicable to the Industrial User. The list shall also identify any local limits that are more stringent than the categorical limits which are applicable to the Industrial User. This list, and any subsequent modifications thereto, shall be submitted to the approval authority as a nonsubstantial program modification pursuant to subsection (H)(2)(b) of this section. Discretionary designations or de-designations by the control authority shall be deemed to be approved by the approval authority 90 days after submission of the list or modifications thereto, unless the approval authority determines that a modification is in fact a substantial modification.
   5. (5) Funding. The POTW shall have sufficient resources and qualified personnel to implement all required authorities and procedures found in subsections (E)(1) and (2) of this section. In some circumstances, funding and personnel requirements may be postponed by the Director, when it can be shown by the POTW that it has adequate legal authority and procedures to carry out the pretreatment program requirements, and a limited aspect of the program does not need to be implemented immediately.
   6. (6) 208 Management Plans. The pretreatment program must be consistent with any approved water quality management plans.
      1. (a) In order to be approved, the POTW pretreatment program shall be consistent with any approved water quality management plan developed in accordance with 40 CFR Parts 130, 131, or the Clean Water Act section 208 if the plan includes management agency designations and addresses pretreatment in a manner consistent with this section. In order to assure such consistency, the Director shall solicit the review and comment of the appropriate 208 planning agency during the public comment period provided for in 63.9(G) prior to approval or disapproval of the program.
      2. (b) When no 208 Plan has been approved or when a plan has been approved but lacks management agency designations and/or does not address pretreatment in a manner consistent with this regulation, the Director will solicit the review and comment of the appropriate 208 planning agency.

F. POTW Pretreatment Program Submission Requirements

1. (1) Program Description. A POTW requesting approval of its pretreatment program shall develop a program description which includes the information set forth in paragraph 2 of this section. Two copies of this description shall be submitted to the Director, who will make a determination on the request according to procedures outlined in this section.
   1. (2) Submission Requirements. For a program submission to be complete it must at a minimum include the following:
      1. (a) A statement from the City Attorney or a city official acting in a comparable capacity (or the attorney for those POTW's which have independent legal counsel) that the POTW has authority adequate to carry out the program described in 63.9(E). This statement shall:
         1. (i) Identify the provision of the legal authority under 63.9(E)(1) which provides the basis for each procedure under 63.9(E)(2);
         2. (ii) Identify the manner in which the POTW will implement the program requirements set forth in 63.9(E), including the means by which pretreatment standards will be applied to individual Industrial Users (e.g., by order, permit, ordinance, etc.);
         3. (iii) Identify how the POTW intends to ensure compliance with pretreatment standards and requirements, and to enforce them in the event of noncompliance by Industrial Users.
         4. (iv) A summary of changes to the POTW's preteatment program that have not been previously reported to the approval authority. Notices required by 63.9(G)(2)(a)(i).
      2. (b) A copy of any statutes, ordinances, regulations, contracts, agreements, or other authorities relied upon by the POTW for its administration of the program. This submission shall include a statement reflecting the endorsement or approval of the local boards or bodies responsible for supervising and/or funding the POTW Pretreatment Program if approved.
      3. (c) A brief description (including organization charts) of the POTW organization which will administer the pretreatment program. If more than one agency is responsible for administration of the program the responsible agencies should be identified, their respective responsibilities delineated, and their procedures for coordination set forth.
      4. (d) A description of the funding levels and full and part-time manpower available to implement the pretreatment program.
      5. (e) An Industrial User survey as described in 63.9(E)(2)(a), which includes identification of all possible Industrial Users which might be subject to the POTW pretreatment program and the character and amount of pollutants contributed to the POTW by these industries.
      6. (f) Limitations for Industrial Users which have been determined to be necessary by the POTW for prohibited pollutants (as defined in section 63.11 (A), (B) and (D)) contributed to the POTW by Industrial Users.
      7. (g) Technical information including POTW specific data used to develop limitations in (f) above.
      8. (h) The design of a monitoring program that will implement the requirements of 63.9(E) (2)(e).
      9. (i) An enforcement response plan as described at 63.9(E)(3).

G. POTW Program Approval Procedures The procedure to be followed in approving or denying requests from POTW's for program approval is as follows.

1. (1) Deadlines for Review. The Director shall have 60 days from the date of public notice of a submission complying with the requirements of 63.9(E) of this regulation and, if a removal allowance is sought, with the requirements of 63.12(K) of this regulation to review the submission. The Director will review the submission to determine compliance with the requirements of 63.9(E) of this subpart, and when a removal allowance is sought, with 63.12(K) of this regulation. The Director may have up to an additional 90 days to complete the evaluation of the submission if the public comment period provided for in subsection G(2)(a) of this section is extended beyond 30 days or if a public hearing is held as provided for in subsection G(2)(b) of this section. In no event, however, will the time for evaluation of the submission exceed a total of 180 days from the date of public notice of a submission.
   1. (2) Procedure. Upon receipt of a submission the Director will commence preliminary review. The Director shall have 60 days from the receipt of the submission to complete preliminary review. If, after preliminary review of the submission, the Director determines that the submission does not comply with the requirements of paragraph (F) of this section, and, if a removal allowance is sought, with the requirements of section 63.12(K) of this regulation, the Director shall provide written notice to the applying POTW and to each person who has requested individual notice. This notification shall identify any defects in the submission and advise the POTW and each person who has requested individual notification of the means by which the POTW can comply with the applicable requirements of paragraph (F) of this section, and, if a removal allowance is sought, with the requirements of section 63.12(K) of this regulation. Within 5 days after making a determination that a submission meets the requirements of 63.9(F), and when a removal allowance is sought, of 63.12(K) of this regulation, the Director shall:
      1. (a) Issue a public notice of request for approval of the submission:
         1. (i) This public notice shall be circulated in a manner designed to inform interested and potentially interested persons of the submission. Procedures for the circulation of public notice shall include mailing notices of the request for approval of the submission to designated Clean Water Act 208 planning agencies, Federal and State fish, shellfish and wildlife resource agencies, unless such agencies asked not to be sent the notice, and to any person or group who has requested individual notice, including those on appropriate mailing lists, and publication of a notice of request for approval of the submission in the newspaper of general circulation within the jurisdiction served by the POTW that provides meaningful public notice.
         2. (ii) The public notice shall provide a period of 30 days following the date of the public notice during which time interested persons may submit their written views on the submission.
         3. (iii) All written comments submitted during the 30-day public notice period shall be retained by the Director and considered in the decision whether or not to approve the submission. The period for comment may be extended at the discretion of the Director.
      2. (b) The Director will also provide an opportunity for the applicant, any affected state, any interested state or federal agency, person or group of persons, to request a public hearing with respect to the submission.
         1. (i) This request for public hearing shall be filed within the thirty (30) day or extended public notice period described in subsection G(2)(a) of this section and will indicate the interest of the person filing such request and the reasons why a hearing is warranted.
         2. (ii) The Director shall hold a hearing if the POTW so requests. In addition, a hearing shall be held if there is a significant public interest in issues relating to whether or not the submission should be approved.
         3. (iii) Public notice of a hearing to consider a submission, sufficient to inform interested parties of the nature of the hearing and the right to participate, shall be published in the same newspaper as the notice of the original request. In addition, notice of the hearing shall be sent to those persons requesting individual notice.
   2. (3) Director's Decision. At the end of the thirty (30) day or extended public notice period and within the ninety (90) day or extended period provided for in subsection G(1) of this section, the Director shall approve or deny the submission based upon the evaluation of the information submitted pursuant to subsection F of this section and taking into consideration comments submitted during the comment period and the record of the public hearing, if held; provided, however, that if EPA objects pursuant to subsection (G)
      1. (4) of this section, the Director shall not approve, but may deny the submission. When the Director makes a determination to deny the request, the Director shall so notify the POTW and each person who has requested individual notice. This notification shall include suggested modifications and the Director may allow the requester additional time to bring the submission into compliance with applicable requirements.
   3. (4) EPA Objection to Director's Decision. No POTW pretreatment program shall be approved by the Director if within thirty (30) days following the 30 day or extended evaluation period provided for in subsection G(2) of this section and any hearing held pursuant to subsection H(2)(b) of this section, EPA sets forth in writing objections to the approval of such submission and the reasons for such objections. A copy of EPA's objections shall be provided to the applicant, and each person who has requested individual notice. Unless retracted, EPA's objection shall constitute a final ruling to deny approval of a POTW pretreatment program or authorization to grant removal allowances 90 days after the date the objections are issued. The exercise of this veto by EPA shall not be deemed to constitute a case decision of the Director.
   4. (5) Notice of Decision. The Director will notify those persons who submitted comments and participated in the public hearing, if held, of the approval, disapproval, or EPA veto of the submission. In addition, the Director will cause to be published a notice of the action in the same newspapers in which the original notice of request was published. The Director will identify any authorization to modify categorical pretreatment standards by the POTW for removal of pollutants subject to the pretreatment standards.
   5. (6) Public Access to Submission. The Director shall ensure that the submission and any comments on the submission are available to the public for inspection and copying.

H. Program Modifications

1. (1) Modification Initiation. Either the Director or a POTW with an approved program may initiate program modification at any time to reflect changing conditions at the POTW. Program modification is necessary whenever there is a significant change in the operation of a POTW pretreatment program that differs from the information in the POTW's submission, as approved under paragraph (G) of this section.
   1. (2) Procedures. POTW pretreatment program modifications shall be accomplished as follows:
      1. (a) For substantial modifications, as defined in paragraph (3) of this section:
         1. (i) The POTW shall submit to the Director a statement of the basis for the desired program modification, a modified program description as described in paragraph (F) of this section, or other such documents the Director determines to be necessary under the circumstances.
         2. (ii) The Director shall approve or disapprove the modification based upon the requirements of this section in accordance with the procedures established in paragraphs (G)(2) and (G)(3) of this section. The modification shall become effective upon approval by the Director.
         3. (iii) The modification shall be incorporated into the POTW's permit after approval. The permit will be modified to incorporate the approved modification in accordance with 5 CCR 1002-61.61.8(3)(j).
      2. (b) Nonsubstantial Modifications. Except as otherwise provided by section 63.9 (E)(4), the POTW shall notify the Director of any other (i.e., non-substantial) modifications to its pretreatment program at least 30 days prior to the date when they are to be implemented by the POTW. Notification shall be made as described in paragraph (2)(a)(l) of this subsection. Such non-substantial program modifications shall be deemed to be approved by the Director, unless the Director determines that a modification submitted is in fact a substantial modification. The Director's determination shall be made within 45 days of the submittal. Should the Director determine that a modification submitted is in fact a substantial modification, the Director shall provide written notification to the POTW. Should the submittal be deemed non-substantial by the Director, such modifications shall be incorporated into the POTW's permit in accordance with 5 CCR 1002-61.8(e) CCR. If the Director determines that a modification submitted by a POTW is in fact a substantial modification, the Director shall notify the POTW and initiate the procedures described in paragraph (2)(a) of the subsection.
   2. (3) Substantial Modifications, (a) The following are substantial modifications for purposes of this section:
      1. (i) Modifications that relax POTW legal authorities(as described in 40 CFR 403.8(f)(1)), except for modifications that directly reflect a revision to 40 CFR 403 chapter I, subchapter N and are reported pursuant to 63.9(H)(2)(a)(l);
      2. (ii) Modifications that relax local limits, except for the modifications to the local limit for pH and reallocations of the Maximum Allowable industrial Loading of a pollutant that do not increase the total industrial loadings for the pollutant, which are reported pursuant to 63.9(H)(2)(a)(l). Maximum Allowable Industrial Loading means the total mass of a pollutant that all Industrial Users of a POTW (or a subgroup of Industrial Users identified by the POTW) may discharge pursuant to limits developed under 63.11 (E);
      3. (iii) Changes to the POTW's control mechanism, as described in paragraph (F)(2)(a)(ii) of this section;
      4. (iv) A decrease in the frequency of self monitoring or reporting required of Industrial Users;
      5. (v) A decrease in the frequency of Industrial User inspections or sampling by the POTW;
      6. (vi) Changes to the POTW's confidentiality procedures;
   3. (b) The Director may designate other specific modifications, in addition to those listed in paragraph (3)(a) of this subsection, as substantial modifications.
   4. (c) A modification that is not included in paragraph (3)(a) of this subsection is nonetheless a substantial modification for purposes of this section if the modification:
      1. (i) Would have a significant impact on the operation of a POTW's pretreatment program;
      2. (ii) Would result in an increase in pollutant loadings at the POTW; or (iii) Would result in less stringent requirements being imposed on Industrial Users of the POTW.

63.10 POTW MONITORING AND REPORTING REQUIREMENTS

A. Annual Reports Each POTW with an approved program shall submit once yearly, on the date stated in its CDPS permit, a pretreatment report describing its pretreatment activities over the reporting period. The report shall be submitted to the Director with a copy to EPA and shall include:

1. (1) An updated list of the POTW's Industrial Users, including their names and addresses or a list of deletions and additions keyed to a previously submitted list. The POTW shall provide a brief explanation of each deletion. This list shall identify which Industrial Users are subject to categorical pretreatment standards and specify which standards are applicable to each Industrial User. The list shall indicate which Industrial Users are subject to local standards that are more stringent than the categorical pretreatment standards. The POTW shall also list the Industrial Users that are subject only to local requirements.
   1. (2) Compliance status summary of all regulated Industrial Users.
   2. (3) A tabular or narrative summary of compliance and enforcement activities (including inspections) conducted by the POTW over the reporting period.
   3. (4) Any other information needed to determine status of the POTW's implementation of its pretreatment program. Such information must be requested by the Director in writing.

B. Signatory Requirements Reports submitted to the Director by the POTW must be signed by a principal executive officer, ranking elected official or other duly authorized employee if such employee is responsible for overall operation of the POTW.

C. Provisions Governing Fraud and False Statement The reports required by this section are subject to:

1. (1) The provisions of section 25-8-610 of the Act governing false statements, representation, or certifications;
   1. (2) The provisions of 18 U.S.C. sections 1001-1031 (as amended in 1990) relating to fraud and false statements;
   2. (3) The provisions of section 309(c)(4) of the Clean Water Act, as amended, governing false statements, representation, or certifications; and (4) The provisions of section 309(c)(6) of the Clean Water Act regarding responsible corporate officers.

D. Record-keeping

1. (1) Any POTW subject to the reporting requirements established in this section shall maintain records of all information resulting from any monitoring activities required elsewhere in this section. Such records shall include for all samples:
   1. (i) The date, exact place, method, and time of sampling and the names of the person or persons taking the samples;
      1. (ii) The dates analyses were performed;
      2. (iii) Who performed the analyses;
      3. (iv) The analytical techniques/methods used; and (v) The results of such analyses.
   2. (2) Any POTW subject to the reporting requirements established in this section 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. This period of retention shall be extended during the course of any unresolved litigation regarding the Industrial User or POTW or when requested in writing by the Director or the Regional Administrator.
   3. (3) Any POTW to which reports are submitted by an Industrial User pursuant to sections 63.13(A),(C), and (D) of the regulation shall retain such reports for a minimum of 3 years and shall make such reports available for inspection and copying by the Director and the Regional Administrator. This period of retention shall be extended during the course of any unresolved litigation regarding the discharge of pollutants by the Industrial User or the operation of the POTW. Pretreatment Program or when requested in writing by the Director or the Regional Administrator.

63.11 NATIONAL PRETREATMENT STANDARDS: PROHIBITED DISCHARGES

A. General Prohibitions A User shall not introduce into a POTW pollutants which cause, or may cause pursuant to paragraph D herein, pass-through or interference with the operation or performance of the treatment works. The prohibitions in paragraphs (A) and (B) of this section apply to all Users introducing pollutants into a POTW whether or not the source is subject to other National Pretreatment Standards or any national, or local pretreatment requirement. Violation by a user of these paragraphs (A) or (B) shall be enforceable by the Director pursuant to section 25-8-508(2) and/or section 25-8-601 through 25-8-612 as a violation of a control regulation and a violation of a pretreatment requirement and standard.

B. Specific Prohibitions The following pollutants shall not be introduced into a POTW:

1. (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;
   1. (2) Pollutants which will cause corrosive structural damage to the POTW, but in no case discharges with pH lower than 5.0 s.u., unless the works is specifically designed to accommodate such discharges;
   2. (3) Solid or viscous pollutants in amounts which will cause obstruction to the flow in the POTW resulting in interference;
   3. (4) Any pollutant, including oxygen demanding pollutants (BOD, etc.) released in a discharge at a flow rate and/or pollutant concentration which will cause interference with the POTW.
   4. (5) Heat in amounts which will inhibit biological activity in the POTW resulting in interference, but in no case heat in such quantities that the temperature at the POTW Treatment Plant exceeds 40°C (104°F) unless the Director, upon request of the POTW, approves alternate temperature limits.
   5. (6) Petroleum oil, nonbiodegradable cutting oil, or products of mineral oil origin in amounts that will cause interference or pass through;
   6. (7) Pollutants which result in the presence of toxic gases, vapors, or fumes within the POTW in a quantity that may cause acute worker health and safety problems;
   7. (8) Any trucked or hauled pollutants except at discharge points designated by the POTW;
   8. (9) Any pollutant in such quantity that by itself or in conjunction with other indirect discharges results in a violation of stream standards as set by the Commission.

C. Affirmative Defenses

1. (1) A User shall have an affirmative defense in any action brought against it alleging a violation of the general prohibitions established in 63.11 (A) and the specific prohibitions in section 63.11(B)(3), (4), (5), (6) and (7) where the User can demonstrate that:
   1. (a) It did not know or have reason to know that its discharge, alone or in conjunction with an indirect discharge or indirect discharges from other sources, would cause pass-through or interference. The Industrial User will need to submit data which supports this claim. (Establishment of a local limit or categorical standard for a parameter is considered notification to the Industrial User that pass-through or interference is possible.); and (b) A local limit designed to prevent pass through and/or interference, as the case may be, was developed in accordance with 63.11(D) of this section for each pollutant in the User's discharge that caused pass through or interference, and the User was in compliance with each such local limit directly prior to and during the pass through or interference; or (c) If a local limit designed to prevent pass-through and/or interference, as the case may be, has not been developed in accordance with 63.11(D) for the pollutant(s) that caused the pass-through or interference, the User's discharge directly prior to and during the pass-through or interference did not change substantially in nature or constituents from the User's prior discharge activity when the POTW was regularly in compliance with the POTW's CDPS permit requirements and, in the case of interference, applicable requirements for sewage sludge use or disposal.
   2. (2) If a User successfully demonstrates any affirmative defenses available pursuant to this section, then the same affirmative defenses shall be available to the POTW in any CDPS enforcement action arising out of the same factual basis. The POTW shall submit data which supports this claim.

D. When Specific Limits Must be Developed by POTW

1. (1) POTW's developing pretreatment programs pursuant to 63.9 shall develop and enforce specific limits to implement the prohibitions listed in 63.11 (A) and (B). Each POTW with an approved pretreatment program shall continue to develop these limits as necessary and shall effectively enforce such limits.
   1. (2) All other POTW's shall, in cases where either pollutants contributed by an Industrial User(s) results in interference or pass-through, and such violation is likely to recur, or in instances where it can be reasonably expected that pollutants contributed by Industrial User(s) may cause interference or pass- through, develop and enforce specific effluent limits for Industrial User(s), and all other users, as appropriate, which, together with appropriate changes in the POTW treatment plant's facilities or operation, are necessary to ensure renewed and continued compliance with the POTW's NPDES permit or sludge use or disposal practices. The Director shall notify the POTW of the need to develop such limits through their permit or through a Cease and Desist Order as defined in the Act. A schedule for development of limits will be included.
   2. (3) Specific effluent limits shall not be developed and enforced without individual notice to any affected industries, along with persons or groups who have requested such notice, and an opportunity to respond.
   3. (4) Where appropriate, and requested by the POTW, the Industrial User(s) shall submit data for the development of such specific limits.

E. Local Limits Where specific prohibitions or limits on pollutants or pollutant parameters are developed by a POTW in accordance with paragraph (D) above, such limits shall be deemed pretreatment standards for the purposes of section 307(d) of the Clean Water Act. Also, all Industrial Users must comply with Division approved local specific limits contained in a POTW's permit.

F. Procedure for Implementation of Prohibited Discharge Standards Prohibitive discharge standards, which may include, but are not limited to local limits developed in accordance with paragraph (D) of this section, shall be implemented for those significant Industrial Users, as defined at 63.7(CC)(2) for which the Director is the control authority.

1. (1) Industrial Users which are identified by the Director to meet those criteria at 63.7(CC) and the POTW to which the Industrial User discharges will be notified of the Industrial User's status as a significant Industrial User by a letter of notification of applicable discharge requirements.
   1. (2) Significant Industrial Users and/or the POTW's to which the Industrial User discharges may petition the Director pursuant to 63.7(CC)(3) at any time requesting de-designation. Upon the Director's finding that an Industrial User meeting the criteria of Section 63.7(CC)(2) has no reasonable potential for adversely affecting the POTW'S operation or for violating any pretreatment standard or requirement, the Director may de-designate the Industrial User.
   2. (3) Letters of notification of applicable discharge requirements shall contain, at a minimum;
      1. (a) A statement of prohibitive discharge standards as defined in section 63.11 (A) and (B);
      2. (b) Effluent limits based on applicable general pretreatment standards contained in this regulation and in 40 CFR 403, and in local limits developed pursuant to subsection (D)(2) of this section;
      3. (c) 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 contained in this regulation and in 40 CFR 403, and in local limits developed pursuant to subsection (D)(2) of this section;
      4. (d) A 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;
      5. (e) A statement of applicable civil and criminal penalties for violation of pretreatment standards and requirements, and any applicable compliance schedule;
      6. (f) Other pertinent requirements of the regulations.

G. Division Enforcement Actions If, within 30 days after notice of an interference or pass-through violation has been sent by the Director to the POTW and to persons or groups who have requested such notice, the POTW fails to commence appropriate enforcement action to correct the violation, the Director may take appropriate enforcement action against the POTW, the User or Users who caused the violation, or both. Enforcement action by the POTW which may be deemed appropriate includes the types of actions described in section 63.9 (E)(1)(a) through (l) and (2)(f), and section 63.11 (D). A POTW shall not be liable for failure to seek injunctive relief, assess civil or criminal penalties, or collect contractual damages from a User who demonstrates that the violation occurred under the circumstances set forth in section 63.11 (C).

1. The Director may seek judicial relief and may exercise administrative penalty authority when the POTW has sought a monetary penalty which the Director determines to be insufficient. 63.12NATIONAL CATEGORICAL PRETREATMENT STANDARDS: GENERAL REQUIREMENTS Categorical standards specifying quantities or concentrations of pollutants or pollutant properties which may be discharged to a POTW by existing or new Industrial Users in specific industrial subcategories have been established by EPA and are hereby incorporated by reference in this regulation, in accordance with the provisions of section 63.5. The specific limits for each subcategory must be met by all significant industrial users that fall within the industrial categories set forth in Table l of these regulations. Unless otherwise specified Categorical Pretreatment Standards shall be in addition to all applicable pretreatment standards and requirements set forth in this regulation. Failure to meet the limitations established is a violation of this regulation and will result in the necessary enforcement action. Table 1 - Effluent Guidelines and Standards 40 CFR 405 Dairy Products Processing 40 CFR 406 Grain Mills Point 40 CFR 407 Canned and Preserved Fruits and Vegetables Processing 40 CFR 408 Canned and Preserved Seafood Processing 40 CFR 409 Sugar Processing 40 CFR 410 Textile Mills 40 CFR 411 Cement Manufacturing 40 CFR 412 Concentrated Animal Feeding Operations (CAFO)

   40 CFR 413 Electroplating 40 CFR 414 Organic Chemicals, Plastics, and Synthetic Fibers 40 CFR 415 Inorganic Chemicals Manufacturing 40 CFR 417 Soap and Detergent Manufacturing 40 CFR 418 Fertilizer Manufacturing 40 CFR 419 Petroleum Refining 40 CFR 420 Iron and Steel Manufacturing 40 CFR 421 Nonferrous Metals Manufacturing 40 CFR 422 Phosphate Manufacturing 40 CFR 423 Steam Electric Power Generating 40 CFR 424 Ferroalloy Manufacturing 40 CFR 425 Leather Tanning and Finishing 40 CFR 426 Glass Manufacturing 40 CFR 427 Asbestos Manufacturing 40 CFR 428 Rubber Manufacturing 40 CFR 429 Timber Products Processing 40 CFR 430 The Pulp, Paper, and Paperboard 40 CFR 432 Meat Products 40 CFR 433 Metal Finishing 40 CFR 434 Coal Mining 40 CFR 435 Oil and Gas Extraction 40 CFR 436 Mineral Mining and Processing 40 CFR 437 Centralized Waste Treatment 40 CFR 439 Pharmaceutical Manufacturing 40 CFR 440 Ore Mining and Dressing 40 CFR 442 Transportation Equipment Cleaning 40 CFR 443 Paving and Roofing Materials (Tars and Asphalt)

   40 CFR 444 Waste Combustors 40 CFR 445 Landfills 40 CFR 446 Paint Formulating 40 CFR 447 Ink Formulating 40 CFR 454 Gum and Wood Chemicals Manufacturing 40 CFR 455 Pesticide Chemicals 40 CFR 457 Explosives Manufacturing 40 CFR 458 Carbon Black Manufacturing 40 CFR 459 Photographic 40 CFR 460 Hospital 40 CFR 461 Battery Manufacturing 40 CFR 463 Plastics Molding and Forming 40 CFR 464 Metal Molding and Casting 40 CFR 465 Coil Coating 40 CFR 466 Porcelain Enameling 40 CFR 467 Aluminum Forming 40 CFR 468 Copper Forming 40 CFR 469 Electrical and Electronic Components 40 CFR 471 Nonferrous Metals Forming and Metal Powders

A. Category Determination Request

1. (1) Deadlines. Within sixty (60) days after the effective date of a federal pretreatment standard for a subcategory under which an Industrial User may be included, the existing Industrial User or POTW may request that the Director provide written certification on whether the Industrial User falls within that particular subcategory. If an Industrial User adds or changes a process or operation which may be included in a subcategory, the existing Industrial User must request this certification prior to commencing discharge from the added or changed processes or operations. A new source wishing a category determination must request this certification prior to commencing discharge. When a request for certification is submitted by a POTW, the POTW shall notify the affected Industrial User of such submission. The Industrial User may provide written comments on the POTW submission to the Director within thirty (30) days of notification.
   1. (2) Submission Requirements. Each request shall contain a statement:
      1. (a) Describing which subcategories might be applicable;
      2. (b) Citing evidence and reasons why a particular subcategory is applicable and why others are not applicable; and (c) Any person signing any application for a category determination must sign a statement saying that the facts contained therein are true on the basis of the applicant's personal knowledge or to the best of his/her information and belief. The following oath must be attested to by a notary public: “I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete, l am aware that there are significant penalties for submitting false information, including the possibility of a fine and imprisonment for knowing violations.”
   2. (3) Procedures. The procedures for Category Determination are as follows:
      1. (a) The Director shall review the submission for completeness. If incomplete the submittee will be notified by the Director of the deficiencies and given 30 days to correct them. If not corrected within the 30 days, or an extended time allowed by the Director, the request will be denied.
      2. (b) Upon submittal of a complete request, the Director will evaluate the request, any additional evidence that may have been requested or submitted, and any other available relevant information and make a written determination of the applicable subcategory and state reasons for the determination.
      3. (c) Upon determination as described above the Director shall forward the written determination to EPA. EPA will review the determination and if they do not modify it within sixty (60) days of receipt thereof, or EPA waives receipt of the decision, the determination becomes final.
      4. (d) If a determination is modified by EPA, its decision will be final.
      5. (e) The Director or EPA, as appropriate, shall send a copy of the determination to the affected Industrial User and the POTW. EPA will send the Director a copy of the determination if it chooses to modify it.
   3. (4) Request for a Hearing. Within 30 days following the date of receipt of notice of the final determination, as provided in 3(e) of this section, the requester of the determination, may submit a petition to reconsider or contest the decision to the Regional Administrator who shall act on such petition expeditiously and state the reasons for his or her determination in writing.

B. Fundamentally Different Factor Variances

1. (1) Applicability. Fundamentally Different Factors variances are only to be given when data specific to an Industrial User within an industrial category or subcategory, indicates factors exist which are fundamentally different from those considered by EPA in developing the limit at issue. Any interested person believing that factors relating to an Industrial User are fundamentally different from the factors considered during development of a categorical pretreatment standard applicable to that User, and further, that the existence of those factors justifies a different discharge limit from that specified in the applicable categorical pretreatment standard, may request a fundamentally different factors variance under this section or such a variance request may be initiated by the EPA.
   1. (2) General Criteria. A request for a variance of this type shall be approved only if:
      1. (a) There is an applicable categorical pretreatment standard which specifically controls the pollutant for which alternative limits have been requested;
      2. (b) Factors relating to the discharge controlled by the categorical pretreatment standard are fundamentally different from the factors considered by EPA in establishing the standards; and (c) The request for a variance is made in accordance with the procedural requirements in paragraph (7).
   2. (3) Criteria for less stringent limits. A variance which results in limits less stringent that originally promulgated by EPA shall only be approved if:
      1. (a) The alternative limit requested is no less stringent than justified by the fundamental difference;
      2. (b) The alternative limit will not result in a violation of prohibitive discharge standards prescribed by or established under 63.11.
      3. (c) The alternative limit will not result in a non-water quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the pretreatment standards; and (d) Compliance with the standards (either by using the technologies upon which the standards are based or by using other control alternatives) would result in either:
         1. (i) A removal cost (adjusted for inflation) wholly out of proportion to the removal cost considered during development of the standards; or (ii) A non-water quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the standards.
   3. (4) Criteria for more stringent limits. A variance which results in the establishment of limits more stringent than those established by EPA shall be approved only If:
      1. (a) The alternative limit request is no more stringent than justified by the fundamental difference; and (b) Compliance with the alternative limit would not result in either:
         1. (i) A removal cost (adjusted for inflation) wholly out of proportion to the removal cost considered during development of the standards; or (ii) A non-water quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the standards.
   4. (5) Eligible Factors. Factors considered fundamentally different are:
      1. (a) The nature or quality of pollutants contained in the raw waste load of the User's process wastewater;
      2. (b) The volume of the User's process wastewater and effluent discharged;
      3. (c) Non-water quality environmental impact of control and treatment of the user's raw waste load;
      4. (d) Energy requirements of the application of control and treatment technology;
      5. (e) Age, size, land availability, and configuration as they relate to the User's equipment or facilities, processes employed, process changes, and engineering aspects of the application of control technology; and (f) Cost of compliance with required control technology.
   5. (6) Factors Not Fundamentally Different. The following grounds can not be used for granting a variance:
      1. (a) The feasibility of installing the required waste treatment equipment within the time the CWA allows;
      2. (b) The assertion that the standards cannot be achieved with the appropriate waste treatment facilities installed, if such assertion is not based on factors listed in paragraph (5) of this section;
      3. (c) The User's ability to pay for the required waste treatment; or (d) The impact of a discharge on the quality of the POTW's receiving waters.
   6. (7) Procedures. Procedures for granting a variance:
      1. (a) Requests for a variance must be made in writing and submitted to the Director;
      2. (b) Requests must be made within 180 days after the effective date of the categorical pretreatment standard as stated in the Federal Register unless the user has requested a categorical determination pursuant to section 63.12(A);
      3. (c) Requests must be in writing and include:
         1. (i) The name and address of the person making the request;
         2. (ii) Identification of the interest of the requester that is affected by the categorical pretreatment standard for which a variance is requested;
         3. (iii) Identification of the POTW currently receiving the waste from the Industrial User for which alternative discharge limits are requested;
         4. (iv) Identification of the categorical pretreatment standards which are applicable to the Industrial User;
         5. (v) A list of each pollutant or pollutant parameter for which an alternative is sought;
         6. (vi) The alternative discharge limits proposed by the requester for each pollutant or pollutant parameter identified in item (v) above;
         7. (vii) A description of the Industrial User's existing water pollution control facilities;
         8. (viii) A schematic flow representation of the Industrial User's water system including water supply, process wastewater systems, and points of discharge; and (ix) A statement of facts clearly establishing why the variance request should be approved, including detailed support data, documentation, and evidence necessary to fully evaluate the merits of the request, e.g., technical and economic data collected by the EPA and used in developing each pollutant discharge limit in the pretreatment standard.
      4. (d) The Director will only act on written requests for variances that contain all of the information required. Persons who have made incomplete submissions will be notified by the Director that their requests are deficient and unless the time period is extended, will be given up to 30 days to correct the deficiency. If the deficiency is not corrected within the time period allowed by the Director, the request for a variance will be denied.
      5. (e) Upon receipt of a complete request, the Director will provide public notice of its receipt, and of the opportunity to the public to review the submission and comment.
      6. (f) The public notice shall be circulated in a manner designed to inform interested and potentially interested persons of the request. Procedures for the circulation of the public notice shall include mailing notices to:
         1. (i) The POTW into which the Industrial User requesting the variance discharges;
         2. (ii) Adjoining states whose waters may be affected; and (iii) Designated 208 planning agencies, federal and state fish, shellfish and wildlife agencies and federal and state hazardous waste agencies; and any other person or group who has requested individual notice, including those on appropriate mailing lists.
      7. (g) The public notice shall provide for a period not less than 30 days following the date of the public notice during which time interested persons may review the request and submit their written comments on the request.
      8. (h) Following the public notice period the Director, taking into consideration any comments received, will make a decision to deny the variance request or recommend it for approval to EPA. Notice of this decision, will be in writing, and will be sent to the Industrial User, POTW and any other entity that has submitted comments.
      9. (i) Procedures describing EPA review and appeal procedures are set forth at 40 CFR Part 403.13(l)-(m). These procedures are reproduced below:
         1. (i) Where the Regional Administrator (or his delegate) finds fundamentally different factors do not exist, he shall deny the request for a variance and send a copy of his determination to the Director, to the POTW, and to the requester (and to the Industrial User, where they are not the same.) Where the Regional Administrator (or his delegate) finds that fundamentally different factors do exist, and that a partial or full variance is justified, he will approve the variance. In approving the variance the Regional Administrator (or his delegate) will:
         2. (A) Prepare recommended alternative discharge limits for the Industrial User either more or less stringent than those prescribed by the applicable categorical pretreatment standard to the extent warranted by the demonstrated fundamentally different factors;
         3. (B) Provide the following information in his written determination;
         4. (1) The recommended alternative discharge limits for the Industrial User concerned;
         5. (2) The rationale for the adjustment of the pretreatment standard (including the Regional Administrator's (or his delegate's) reasons for recommending that a fundamentally different factor variance be granted) and an explanation of how the Regional Administrator's (or his delegate's) recommended alternative discharge limits were derived;
         6. (3) The supporting evidence submitted to the Regional Administrator (or his delegate); and (4) Other information considered by the Regional Administrator (or his delegate) in developing the recommended limits;
         7. (C) Notify the Director and the POTW of his or her determination; and (D) Send the information described in paragraphs (I) and (ii) above to the requestor and to the Industrial User where they are not the same.
         8. (E) Within 30 days following the date of receipt of the notice of the decision of the Administrator's delegate on a variance request, the requester or any other interested person may submit a petition to the Regional Administrator for a hearing to reconsider or contest the decision. If such a request is submitted by a person other than the Industrial User the person shall simultaneously serve a copy of the request on the Industrial User. If the Regional Administrator declines to hold a hearing and affirms the findings of the Administrator's delegate, the requester may submit a petition for a hearing to the Administrator within 30 days of the Regional Administrator's decision.
   7. C. Compliance with Categorical Standards
      1. (1) Compliance Deadline. Compliance by existing sources with categorical pretreatment standards shall be within three (3) years of the date the standard is promulgated by EPA unless a shorter compliance time is specified in the 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 source meets the definition of a new source as defined under section 63.7(T). New sources shall install and have operating all pollution control equipment required to meet applicable pretreatment standards upon commencement of discharge from such source to the POTW. Compliance with all applicable pretreatment standards for new sources will be required within the shortest feasible time (in no instance to exceed 90 days).
      2. (2) Effective Date of Standards. A categorical standard will not be enforceable by the Director until the effective date of the incorporation of the standard into these regulations by the Commission. Categorical standards and requirements promulgated by EPA are enforceable by EPA whether or not the Commission has incorporated them into this regulation. The Industrial User will be required to submit reports as required in section 63.13 of these regulations whether or not the standards have been incorporated into these regulations by the due date of such reports.
   8. D. Concentration and Mass Limits
      1. (1) Concentration Limitations. Pollutant discharge limits in categorical pretreatment standards are expressed either as concentration or mass limits. Whenever possible, where concentration limits are specified, equivalent mass limits will be provided. Limits in categorical pretreatment standards shall apply to the effluent of the process regulated by the standard unless otherwise specified by the standard.
      2. (2) Mass Limitations. 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 of pollutant in the effluent for purposes of calculating limitations applicable to individual Industrial Users.
      3. (3) Production Rates. The Control Authority calculating equivalent mass-per-day limitations under paragraph (D)(2) of this section shall calculate such limitations by multiplying the limits in the categorical standard by the Industrial User's average rate of production. This average rate of production shall generally be based not upon the designed capacity but upon an actual measure of the Industrial Users's actual long-term daily production during a representative year. For new sources, actual production shall be estimated using projected production. The limits will be adjusted if necessary once actual data is available. Seasonal adjustments may be considered for Industrial Users with historical large variations in production. This will be based on data supplied by the Industrial Users.
      4. (4) Flow Rates. In calculating equivalent concentration limitations under paragraph (D)(2) of this section the Control Authority shall calculate such limitations by dividing the mass limitations derived under paragraph (D)(3) of this section by the average daily flow rate of the Industrial User's regulated process wastewater. This average daily flow rate shall be based upon an actual measure of the long-term average flow rate, such as the average daily flow rate during a representative year. Seasonal adjustments may be considered for Industrial Users with historical large variations in production. This will be based on data supplied by the Industrial User.
      5. (5) Equivalent Limitations are Pretreatment Standards. Equivalent limitations calculated in accordance with paragraphs (D)(3) and (D)(4) of this section shall be deemed pretreatment standards for the purposes of Section 307(d) of the Clean Water Act and this part. Industrial Users will be required to comply with the equivalent limitations in lieu of the promulgated categorical standards from which the equivalent limitations were derived.
      6. (6) Calculation of Daily and Monthly Averages. 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 types of equivalent limitations.
      7. (7) Notification of Changes. Any Industrial User operating under a control mechanism incorporating equivalent mass or concentration limits calculated from a production based standard shall notify the Control Authority within two (2) business days after the user has a reasonable basis to know that the production level, as described in paragraph (D)(3) of this section, will significantly change within the next calendar month. The Control Authority will then adjust the applicable equivalent limitation(s) to account for such change. Any user not notifying the control authority of such anticipated change will be required to meet the mass or concentration limits in its control mechanism that were based on the original estimate of the average long term production rate.
   9. E. Procedure for Implementation of the Categorical Pretreatment Standards The following implementation procedure is to be followed for those Industrial Users subject to categorical discharge requirements for which the Director is the Control Authority. Industrial Users discharging to POTW's with approved programs are to follow those procedures established by the POTW.
      1. (1) Submission of the Baseline Monitoring Report (BMR) as required in section 63.13 shall be to the Director by the required deadline as specified in 63.13(A);
      2. (2) Upon receipt of the BMR, the Director shall evaluate it for completeness. If the Director determines it to be incomplete, he will notify the Industrial User in writing of the deficiencies and require that they be corrected as soon as possible;
      3. (3) Once a BMR is judged to be complete the Director will commence his review. The review will be done to certify that:
         1. (a) The Industrial User does belong in the suggested category;
         2. (b) The categorical standards determined by the Industrial User are applicable to the process in question;
         3. (c) The calculations for the limitations have been done correctly by using the proper data in the proper equation;
         4. (d) The sampling data that has been submitted by the facility demonstrates that they can (or cannot) meet the categorical standards, and substantiates its claim of compliance (or non-compliance);
         5. (e) Any compliance schedule proposed for facility modifications to meet categorical standards is reasonable and meets the criteria in section 63.13(B);

            The Director may request additional information if needed to support the statements above.

      4. (4) Once the Director finds that the BMR is complete, he will notify the Industrial User of such via a letter of notification of applicable discharge requirements. This letter will also inform the Industrial User of its obligations under these regulations. These include, but may not be limited to:
         1. (a) The parameters to be sampled, sampling frequency, and sample types;
         2. (b) The equivalent limitations along with the production and flow rates used to calculate these limits;
         3. (c) The reporting requirements for the Industrial User;
         4. (d) Any compliance schedules required; and (e) Other pertinent requirements of the regulations.

            Failure of the Director to include a requirement of the regulations in the letter does not constitute a waiver of the requirement. The Industrial User will be expected to comply with all applicable portions of the regulations.

   10. F. Dilution Prohibited as a 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 imposition of mass limitations is appropriate.
   11. G. 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. These alternative limits shall be applied to the mixed effluent. When deriving alternative categorical limits, the Control Authority or Industrial User shall calculate both an alternative daily maximum value using the daily maximum value(s) specified in the appropriate categorical pretreatment standard(s) and an alternative consecutive sampling day average value using the monthly average value(s) specified in the appropriate categorical pretreatment standard(s). The Industrial User shall comply with the alternative daily maximum and monthly average limits fixed by the Control Authority until the Control Authority modifies the limits or approves an Industrial User modification request. Modification is authorized whenever there is a material or significant change in the values used in the calculation to fix alternative limits for the regulated pollutant. An Industrial User must immediately report any such material or significant change to the Control Authority. Where appropriate new alternative categorical limits shall be calculated within 30 days.
       1. (1) Alternative Limit Calculation. For purposes of these formulas, the “average daily flow” is as defined in 63.12 (D)(4). For new sources, flows shall be estimated using projected values. The alternative limit for a specified pollutant will be derived by the use of either of the following formulas:
          1. a. Alternative concentration limit. 1002_63_1.jpg Where C = the alternative concentration limit for the combined wastestream. T C = the categorical pretreatment standard concentration limit for a i pollutant in the regulated stream l.

             F = the average daily flow (at least a 30 day average) of stream l to the extent that it is regulated for such pollutant.

             F = the average daily flow (at least a 30 day average) from (a) boiler D blowdown streams, non-contact cooling streams, storm water streams, and demineralizer backwash streams; provided, however, that where such streams contain a significant amount of a pollutant and the combination of such streams, prior to treatment, with an Industrial User regulated process wastestream(s) will result in a substantial reduction of that pollutant, the Control Authority, upon application of the Industrial User, may exercise its discretion to determine whether such stream(s) should be classified as diluted or unregulated. In its application to the Control Authority, the Industrial User must provide engineering, production, sampling and analysis and such other information so that the Control Authority can make its determination, or (b) sanitary wastestreams where such streams are not regulated by a categorical pretreatment standard, or (c) from any process wastestreams which were or could have been entirely exempted from categorical pretreatment standards pursuant to paragraph 8 of the NRDC v Costle Consent Decree (12 ERC 1833) for one or more of the following reasons.

          2. (i) The pollutants of concern are not detectable in the effluent from the Industrial User;
          3. (ii) The pollutants of concern are present only in trace amounts and are neither causing nor likely to cause toxic effects;
          4. (iii) The pollutants of concern are present only in amounts too small to be effectively reduced by technologies known to the Administrator; or (iv) The wastestream contains only pollutants that are compatible with the POTW.

             F = The average daily flow (at least a 30 day average) through the T combined treatment facility (includes F , F and unregulated streams). 1 D N = The total number of regulated streams.

          5. b. Alternative mass limit. 1002_63_2.jpg Where M = the alternative mass limit for a pollutant in the combined T wastestream.

             M = the categorical pretreatment standard mass limit for a pollutant in I the regulated stream l (the categorical pretreatment mass limit multiplied by the appropriate measure of production).

             F = the average flow (at least a 30 day average) of stream l to the extent I that it is regulated for such pollutant.

             F = the average daily flow (at least a 30 day average) from (a) boiler D blowdown streams, non-contact cooling streams, storm water streams, and demineralizer backwash streams; provided, however, that where such streams contain a significant amount of a pollutant and the combination of such streams, prior to treatment, with an Industrial User regulated process wastestream(s) will result in a substantial reduction of that pollutant, the Control Authority, upon application of the Industrial User, may exercise its discretion to determine whether such stream(s) should be classified as diluted or unregulated. In its application to the Control Authority, the Industrial User must provide engineering, production, sampling and analysis and such other information so that the Control Authority can make its determination, or (b) sanitary wastestreams where such streams are not regulated by a categorical pretreatment standard, or (c) from any process wastestreams which were or could have been entirely exempted from categorical pretreatment standards pursuant to paragraph 8 of the NRDC v. Costle Consent Decree (12 ERC 1833) for one or more of the following reasons:

          6. (i) The pollutants of concern are not detectable in the effluent from the Industrial User;
          7. (ii) The pollutants of concern are present only in trace amounts and are neither causing nor likely to cause toxic effects;
          8. (iii) The pollutants of concern are present only in amounts too small to be effectively reduced by technologies known to the Administrator; or (iv) The wastestream contains only pollutants that are compatible with the POTW.

             F = The average flow (at least a 30 day average) through the combined T treatment facility (includes F1, FD and unregulated streams). N = The total number of regulated streams.

          9. (2) Alternate limits below detection limit. An alternative pretreatment limit may not be used if the alternative limit is below the analytical detection limit for any of the regulated pollutants.
          10. (3) Self Monitoring. Self monitoring required to ensure compliance with the alternative categorical limit shall be conducted in accordance with the requirements of section 63.13(0).
          11. (4) Choice of Monitoring Location. Where a treated process wastestream is combined prior to treatment with wastewaters other than those generated by the regulated process, the Industrial User may monitor either the segregated process wastestream or the combined wastestream for the purposes of determining compliance with applicable pretreatment standards. If the Industrial User chooses to monitor the segregated process wastestream, it shall apply the applicable categorical pretreatment standard. If the Industrial User chooses to monitor the combined wastestream, it shall apply an alternative discharge limit calculated using the combined wastestream formula as provided in this section. The Industrial User may change monitoring points only after receiving approval from the control authority. The control authority shall assure that any change in an Industrial User's monitoring point(s) will not allow the user to substitute dilution for adequate treatment to achieve compliance with applicable standards.

H. Net/Gross Calculations Categorical pretreatment standards may be adjusted to reflect the presence of pollutants in the Industrial Users' intake water in accordance with the provisions of paragraphs (1) through (5) of this section:

1. (1) Application Deadline and Contents. Any Industrial User wishing to obtain a credit for intake pollutants must make application therefore 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 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 water.
   1. (2) The user demonstrates that intake water is drawn from the same body of water the POTW discharges into. The control authority may waive this requirement if it finds that no environmental degradation will result.
   2. (3) 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 at either the outfall or elsewhere.
   3. (4) 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. (5) The applicable categorical standards contained in Table i found at section 63.12 specifically provide that they shall be applied on a net basis.

I. Upset Provisions

1. (1) Definition. For the purposes of this section, “Upset” means an exceptional incident in which there is unintentional and temporary noncompliance with categorical pretreatment standards because of factors beyond the reasonable control of the Industrial User. An Upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.
   1. (2) Effect of An Upset. An Upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the requirements of paragraph
      1. (3) are met.
   2. (3) Conditions Necessary for A Demonstration of Upset. An Industrial User who wishes to establish the affirmative defense of Upset shall demonstrate, through properly signed, operating logs of the period in question, or other relevant evidence that:
      1. (a) An Upset occurred and the Industrial User can identify the cause(s) of the Upset;
      2. (b) The facility was at the time being operated in a prudent and workman like manner and in compliance with applicable operation and maintenance procedures;
      3. (c) The Industrial User has submitted the following information to the Control Authority, (and the POTW when they are not the same), within 24 hours of becoming aware of the Upset (if this information is provided orally, a written submission must be provided within five days):
         1. (i) A description of the indirect discharge and cause of noncompliance;
         2. (ii) The period of noncompliance, including exact dates and times or, if not corrected, the anticipated time the noncompliance is expected to continue;
         3. (iii) Steps being taken and/or planned to reduce, eliminate and prevent recurrence of the noncompliance.
   3. (4) Burden of Proof. In any enforcement proceeding the Industrial User seeking to establish the occurrence of an Upset shall have the burden of proof.
   4. (5) Reviewability of Agency Consideration of Claims of Upset. The Director will review any claims that noncompliance was caused by an upset. No determinations made in the course of the review constitute final Agency action subject to judicial review. Industrial Users will have the opportunity for a judicial determination of any claim of Upset only in an enforcement action brought for noncompliance with categorical pretreatment standards.
   5. (6) User Responsibility in Case of Upset. The Industrial User shall control production or all discharges to the extent necessary to maintain compliance with categorical pretreatment standards upon reduction, loss, or failure of its treatment facility until the facility is restored or an alternative method of treatment is provided. This requirement applies in the situation where, among other things, the primary source of power of the treatment facility is reduced, lost or fails.

J. Bypass Provisions.

1. (1) For the purposes of this section:
   1. (a) “Bypass” means the intentional diversion of wastestreams from any portion of an Industrial User's treatment facility.
      1. (b) “Severe property damage” means substantial physical damage to property, damage to the treatment facilities that causes them to become inoperable, or substantial and permanent loss of natural resources which can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production.
   2. (2) An Industrial User may allow any bypass to occur which does not cause pretreatment standards or requirements to be violated, but only if it is also essential for maintenance to assure efficient operation.
   3. (3) Notice.
      1. (a) If an Industrial User knows in advance of the need for a bypass, it shall submit prior notice to the control authority, if possible at least ten days before the date of the bypass.
      2. (b) An Industrial User shall submit oral notice of an unanticipated bypass that exceeds applicable pretreatment standards to the control authority within 24 hours of the time the Industrial User becomes aware of the bypass. A written submission shall also be provided to the control authority within five days of the time the Industrial User becomes aware of the bypass. The written submission shall contain a description of the bypass and its cause, the duration of the bypass, including exact dates and times, and, if the bypass has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent reoccurrence of the bypass. The control authority may waive the written report on a case-by-case basis if the oral report has been received within 24 hours.
   4. (4) Prohibition of Bypass. Bypass is prohibited, and the control authority may take enforcement action against an industrial User for a bypass, unless:
      1. (a) Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;
      2. (b) There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back- up equipment should have been installed in the exercise of reasonable engineering judgement to prevent a bypass which occurred during normal periods of equipment downtime or preventative maintenance; and (c) The Industrial User submitted notice(s) as required under paragraph (2) of this section.
   5. (5) Approval of bypasses. The control authority may approve an anticipated bypass, after consideration of its adverse effects, if the control authority determines that it will meet the three conditions specified in paragraph (4) of this section.

63.13 INDUSTRIAL USER MONITORING AND REPORTING REQUIREMENTS

A. Baseline Monitoring Reports (BMRs)

1. (1) Deadline. Within 180 days after the effective date of a categorical pretreatment standard as promulgated by EPA or 180 days after final determination made on a category determination submission under 63.12(6), whichever is later, existing Industrial Users subject to such categorical pretreatment standards and currently discharging to or scheduled to discharge to a POTW, shall be required to submit to the Control Authority a report which contains the information listed in paragraphs 2(a) through 2(g) below unless such information has been submitted in compliance with 40 CFR 128.140(b). New sources, and sources that become Industrial Users subsequent to the promulgation of an applicable categorical standard, shall be required to submit to the Control Authority a report which contains the information listed in paragraphs 2(a) through 2(e) below, at least 90 days prior to commencement of a discharge. New sources shall also be required to include in this report information on the method of pretreatment the source intends to use to meet applicable pretreatment standards. New sources shall give estimates of the information requested in paragraphs (2)(d) and (e) of this section.
   1. (2) Submission Requirements. The information required is:
      1. (a) The Industrial User shall submit the name and address of the facility including the name and address, if different than the facility, of the operator and owner(s) of the facility;
      2. (b) The User shall submit a list of any environmental control permits held by or for the facility;
      3. (c) The User shall submit a brief description of the nature, average rate of production as required in section 63.12(D)(3), and Standard Industrial Classification of the operation(s) carried out by such Industrial User. This description should include a schematic process diagram that indicates points of discharge to the POTW from regulated processes. This schematic should also show any non-regulated or dilution process discharges and where they mix with the regulated process wastewater. Possible monitoring points should be shown on the schematic.
      4. (d) The User shall submit information showing the measured average “daily and maximum daily flow as required in section 63.12(D)(4), in gallons per day to the POTW for each of the following (new sources may estimate):
         1. (i) Regulated process streams; and (ii) Other streams as necessary to allow use of the combined wastestream formula of section 63.12(G). The Control Authority may allow for verifiable estimates of these flows where justified by cost or feasibility considerations. Permission to submit an estimate should be received prior to submission of the report.
      5. (e) Measurement of pollutants will be as follows:
         1. (i) The User shall identify the pretreatment standard(s) applicable to each regulated process.
         2. (ii) In addition, the User shall submit the results of sampling and analysis identifying the nature and concentration (or mass, whichever is applicable) of regulated pollutants in the discharge from each regulated process. Both daily maximum and average concentration or mass (whichever is applicable) shall be reported. The samples shall be representative of daily operations. New sources may estimate the pollutant levels expected.
         3. (iii) Where feasible, samples must be flow proportional composites unless otherwise specified in the applicable categorical pretreatment standard. The user shall take a minimum of one representative sample to compile that data necessary to comply with the requirements of this subsection (e). Where composite sampling is not feasible, a grab sample is acceptable. Permission must be obtained from the Control Authority prior to taking a grab sample. Such permission will depend on the ability of the Industrial User to show that a composite sample is unfeasible due to waste or discharge characteristics, or physical or overriding economical constraints. In such cases, samples may be obtained through time proportional sampling techniques or through a minimum of four (4) grab samples where the user demonstrates that this will provide a representative sample of the effluent being discharged.
         4. (iv) Notwithstanding the requirements of paragraph (iii) of this subsection, a minimum of four (4) grab samples must be used for pH, cyanide, total phenols, oil and grease, sulfide, and volatile organics.
         5. (v) Samples should be taken immediately downstream from pretreatment facilities if such exist or immediately downstream from the regulated process if no pretreatment exists. If other wastewaters are mixed with the regulated wastewater prior to pretreatment the industrial User should measure the flows and concentrations necessary to allow use of the combined wastestream formula in order to evaluate compliance with the pretreatment standards. This includes, but is not limited to the average daily flow for the regulated stream, any unregulated streams and dilution streams. Where an alternate concentration or mass limit has been calculated by the industry in accordance with the requirements of section 63.12(G), it must submit the adjusted limit, data used in calculating such a limit and a justification for doing so to the Control Authority.
         6. (vi) Sampling and analysis shall be performed in accordance with the techniques prescribed in 40 CFR Part 136 and amendments thereto. Where 40 CFR Part 136 does not contain sampling or analytical techniques for the pollutant in question, or where the EPA Administrator determines that the Part 136 sampling and analytical techniques are inappropriate for the pollutant in question, sampling and analysis shall be performed by using validated analytical methods or any other applicable sampling and analytical procedures suggested by the POTW or other parties, and approved by the EPA Administrator.
         7. (vii) The Control Authority may allow the submission of a BMR that utilizes only historical data so long as the data provides information sufficient to determine the need for industrial pretreatment measures. Approval to do so must be obtained prior to submission of the report. Such approval will depend on the Industrial User's ability to show that the data is relevant to current conditions.
         8. (viii) The BMR shall indicate the time, date and place of sampling, and methods of analysis, and shall certify that such sampling and analysis is representative of normal work cycles and expected pollutant discharges to the POTW;
      6. (f) A statement, reviewed by an authorized representative of the Industrial User (as defined in section 63.13(E)) and certified by a qualified professional, indicating whether pretreatment standards are being met on a consistent basis, and if not, whether additional operation and maintenance (0 and M) and/or additional pretreatment is required for the Industrial User to meet the pretreatment standards and requirements, must be included in the BMR;
      7. (g) If additional pretreatment and/or O and M will be required to meet the pretreatment standards, the shortest schedule by which the Industrial User will provide such additional pretreatment and/or O and M must be included in the BMR. The completion date in this schedule shall not be later than the compliance date established for the applicable pretreatment standard.
         1. (i) Where the Industrial User's categorical pretreatment standard has been modified by a removal allowance, the combined wastestream formula, and/or a Fundamentally Different Factor variance at the time the User submits the report required by paragraph (A) of this section, the information required by paragraphs (2)(a through e) of this section shall pertain to the modified limits.
         2. (ii) If the categorical pretreatment standard is modified by a removal allowance, the combined wastestream formula, and/or a Fundamentally Different Factor variance after the User submits the report required by paragraph (A) of this section, any necessary amendments to the information requested by paragraphs (2)(a through e) of this section shall be submitted by the User to the Control Authority within 60 days after the modified limit is approved.

B. Compliance Schedule for Meeting Categorical Pretreatment Standards The following conditions shall apply to the schedule required by paragraph (A)(2)(g) of this section:

1. (1) The schedule shall contain increments of progress in the form of dates for the commencement and completion of major events leading to the construction and operation of additional pretreatment required for the Industrial User to meet the applicable categorical pretreatment standards (e.g. hiring an engineer, completing preliminary or final plans, executing contract for major components, commencing construction, etc.).
   1. (2) No increment referred to in subsection (B)(1) of this section shall exceed 9 months; and (3) Not later than 14 days following each date in the schedule and the final date for compliance, the industrial User shall submit a progress report to the Control Authority including, at a minimum, whether or not it complied with the increment of progress to be met on such date and, if not, the date on which it expects to comply with this increment of progress, the reasons for delay, and the steps being taken by the Industrial User to return the construction to the schedule established. In no event shall more than 9 months elapse between such progress reports to the Control Authority.

C. Ninety Day Compliance Report Within 90 days following the date for final compliance with applicable categorical pretreatment standards, or in the case of a new source, following commencement of the introduction of wastewater into the POTW, any Industrial User subject to pretreatment standards and requirements shall submit to the Control Authority a report containing the information described in paragraphs (A)(2)(d)-(f) of this section. For Industrial Users subject to equivalent mass or concentration limits established by the control authority in accordance with the procedures in section 63.12(D), this report shall contain a reasonable measure on the user's long term production rate. For all other Industrial Users subject to categorical pretreatment standards expressed in terms of allowable pollutant discharge per unit of production (or other measure of operation), this report shall include the user's actual production during the appropriate sampling period.

D. Monitoring and Reporting for Industrial Users.

1. (1) Submission of Self-Monitoring Reports. All Industrial Users subject to categorical pretreatment standards shall submit to the Control Authority a report indicating the quality of the Users effluent. The submission of these reports is to commence after submission of a BMR unless a compliance schedule is needed. In this instance it shall be required upon completion of construction but in no case later than 3 years after promulgation of the category by EPA. Reporting requirements include:
   1. (a) Concentrations or the mass of those pollutants in its discharge or regulated process stream required to be monitored by the Control Authority. If monthly limitations apply this must be calculated;
      1. (b) Estimated or measured average and maximum daily flows for the reporting period for the discharge(s) reported.
      2. (c) For Industrial Users subject to equivalent mass or concentration limits established by the control authority in accordance with the procedures in section 63.12(0), the self-monitoring report shall contain a reasonable measure of the user's long term production rate. For all other Industrial Users subject to categorical pretreatment standards expressed only in terms of allowable pollutant discharge per unit of production (or other measure of operation), this report shall include the user's actual production during the reporting period.
      3. (d) Dates for Submission. The frequency for submission for these reports are due the last day of the month following the end of the reporting period. FLOW OF REGULATED REPORTING PERIOD REPORT DUE DATE * PROCESS (GPD)

   0-10,000 January-June July 31 July-December January 31 10,001-50,000 January-March April 30 April-June July 31 July-September October 31 October-December January 31 over 50,000 January February 28 February March 31 March April 30 April May 31 May June 30 June July 31 July August 31 August September 30 September October 31 October November 30 November December 31 December January 31 *Where there are multiple regulated flows, sampling frequency is determined by the sum of all regulated flows.

   1. (e) Sampling Frequencies. The following chart lists the required sampling frequencies: FLOW OF REGULATED CONVENTIONAL ORGANICS (TT0s)
      1. * ** PROCESS (GPD) POLLUTANTS , INORGANICS (METALS INCLUDED), CYANIDE, AND PHENOL 0-10,000 1/quarter 2/year over 10,000 12/year 2/year *Where there are multiple regulated flows, sampling frequency is determined by the sum of all regulated flows. **This includes pollutants such as BOD , TSS, Oil and Grease, and Metals.
      2. (f) TTO. Monitoring for TTO need only be done when an Industrial User does not certify as allowed in the individual categorical standard, or such certification is not allowed under the industrial category.
      3. (g) Batch Discharges. Industrial Users that batch discharge are to sample when they discharge but need not sample more frequently than specified in paragraph (e).
   2. (2) Non-Categorical Industries. The control authority shall require appropriate monitoring and reporting, as described in the approved program document, from those Industrial Users with discharges that are not subject to categorical pretreatment standards, but as determined by the control authority are Significant Industrial Users as defined at 63.9(CC) (2). Significant Industrial Users shall submit self-monitoring reports to the control authority at least once every six months (on dates specified by the control authority).
   3. (3) POTW Requirements. POTW's with approved pretreatment programs may make monitoring and reporting requirements more stringent than otherwise required by this regulation. The POTW may also alter the months and dates categorical Industrial User reports are due providing they are no less frequent than those required by subsection D(1)(d).
   4. (4) Control Authority Monitoring for Industrial Users. At its discretion the Control Authority may perform an Industrial User's self-monitoring. Categorical Industrial User monitoring shall be at least as frequent as specified in paragraph (e) above.
   5. (5) Sample Type. Samples must be representative of the daily discharge (6) Slug Loading. The Industrial User shall notify the POTW and the Director of any slug loading including any discharge that would violate a prohibition under section 63.11(B) immediately.
   6. (7) Monitoring and Analysis to Demonstrate Continued Compliance. The reports required in subsections A, C and D 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.
      1. (a) Sampling and analysis for the purpose of demonstrating continued compliance 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 categorical Industrial User, the user will not be required to submit compliance certification required under paragraphs (A)(2)(f) and (C) 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. (b) 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, except the Industrial User is not required to resample if:
         1. (i) The control authority performs sampling at the Industrial User at least once a month, or (ii) The control authority performs sampling at the user between the time when the user performs its initial sampling and the time when the user receives the results of this sampling.
      3. (c) The reports required in subsection (D) of this section shall be based upon data obtained through appropriate sampling and analysis performed during the period covered by the report, which data is representative of conditions occurring during the reporting period. The control authority shall require that the frequency of monitoring be adequate to assess and assure compliance by Industrial Users with applicable pretreatment standards and requirements.
      4. (d) The Control Authority may waive any parameter if it is shown that it is not used in the process or treatment of the wastewater. Parameters limited in categorical pretreatment standards may be waived only if a waiver is specified by the appropriate categorical pretreatment standard. Monitoring for parameters limited in categorical pretreatment standards may be required at a frequency less than otherwise required in section 63.13.D(1)(e), however in no case shall any such waiver be less stringent than otherwise allowed by federal regulation. All Industrial Users must comply with the general and specific prohibited discharge standards identified in section 63.11 (A) and (B).
      5. (e) All analyses shall be performed in accordance with procedures established by the Regional Administrator (or his delegate) pursuant to Section 304(h) of the Clean Water Act and contained in 40 CFR Part 136 (1992) or with any other test procedures approved by the Regional Administrator (or his delegate). Sampling shall be performed in accordance with the techniques approved by the Regional Administrator (or his delegate). Where 40 CFR Part 136 does not include sampling or analytical techniques for the pollutants in question, or where the Regional Administrator (or his delegate) determines that the Part 136 sampling and analytical techniques are inappropriate for the pollutant in question, sampling and analyses shall be performed using validated analytical methods or any other sampling and analytical procedures, including procedures suggested by the POTW or other parties, approved by the Regional Administrator (or his delegate). (f)If an Industrial User subject to the reporting requirements of paragraph 63.13.D monitors any pollutant more frequently than required by the Control Authority using the procedures described in 63.13.D(7)(e), the results of this monitoring shall be included in the report.
   7. (8) Notification of Changed Discharge. All Industrial Users shall promptly notify the POTW to which discharge is made and the control authority (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 pursuant to subsection (9) of this section.
   8. (9) Discharge of Hazardous Wastes.
      1. (a) The Industrial User shall notify the POTW, the EPA Regional Waste Management Division Director, and the Colorado Department of Public Health and Environment, Hazardous Materials and Waste Management Division Director in writing of any discharge into the POTW of a substance which, if otherwise disposed of, would be a hazardous waste under 40 CFR Part 261. Such notification must include the name of the hazardous waste as set forth in 40 CFR Part 261, the EPA hazardous waste number, and the type of discharge (continuous, batch, or other). If the Industrial User discharges more than 100 kilograms of such waste per calendar month to the POTW, the notification shall also identify the hazardous constituents contained in the wastes, estimate the mass and concentration of such constituents in the wastestream expected to be discharged during that calendar month, and estimate the mass of constituents in the wastestream expected to be discharged during the following twelve months. All notifications must take place by February 19, 1991. Industrial Users who commence discharging after February 19, 1991 shall provide the notification no later than 180 days after the discharge of the listed or characteristic hazardous waste. Any notification under this paragraph need be submitted only once for each hazardous waste discharged. However, notifications of changed discharges must be submitted pursuant to subsection (c) of this section. The notification requirements of this section do not apply to pollutants already reported under the self-monitoring requirements of this section.
      2. (b) Dischargers are exempt from the requirements of paragraph (a) of this subsection during a calendar month in which they discharge no more than fifteen kilograms of hazardous wastes, unless the wastes are acute hazardous wastes as specified in 40 CFR 261.30(d) and 261.33(e). Discharge of more than fifteen kilograms of non-acute hazardous wastes in a calendar month, or of any quantity of acute hazardous wastes as specified in 40 CFR 261.30(d) and 261.33(e) requires one-time notification.

         Subsequent months in which the Industrial User discharges more than such quantities of any hazardous waste do not require additional notification.

      3. (c) In the case of any new regulations under Section 3001 of RCRA identifying additional characteristics of hazardous waste or listing any additional substance as a hazardous waste, the Industrial User must notify the POTW, the EPA Regional Waste Management Division Director, and the Colorado Department of Public Health and Environment, Hazardous Material and Waste Management Division Director of the discharge of such substance within 90 days of the effective date of such regulations.
      4. (d) In the case of any notification made pursuant to this section 63.13.0(9), the Industrial User shall certify that it has a program in place to reduce the volume and toxicity of hazardous wastes generated to the degree it has determined to be economically practical.

E. Signatory Requirements for Categorical Industries The reports required by sections 63.13(A), (C) and (D)(1) these regulations shall include the certification statement as set forth in section 63.12(A)(2) (c), and shall be signed as follows:

1. (1) By a responsible corporate officer if the Industrial User submitting the reports required by these regulations is a corporation. For the purpose of this paragraph, a responsible corporate officer means:
   1. (a) A president, vice-president, secretary or treasurer of the corporation in charge of a principle business function, or any other person who performs similar policy- or decision-making functions for the corporation; or (b) The manager of one or more manufacturing, production, or operating facilities employing more than 250 persons or having gross annual sales or expenditures exceeding $25 million (in second-quarter 1980 dollars), if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures.
   2. (2) By a general partner or proprietor if the Industrial User submitting the reports required by these regulations is a partnership or sole proprietorship respectively.
   3. (3) By a duly authorized representative of the individual designated in (1) and (2) of this section if;
      1. (a) The authorization is made in writing by the individual described in paragraph (1) or
         1. (2) of this subsection;
      2. (b) The authorization specifies either an individual or a position having responsibility for the overall operation of the facility from which the industrial discharge originates, such as the position of plant manager, operator of a well, or well field superintendant, or a position of equivalent responsibility, or having overall responsibility for environmental matters for the company; and (c) The written authorization is submitted to the control authority.
   4. (4) If an authorization under paragraph (3) of this subsection is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, or overall responsibility for environmental matters for the company, a new authorization satisfying the requirements of paragraph (3) of this subsection must be submitted to the control authority prior to or together with any reports to be signed by an authorized representative.

F. Provisions Governing Fraud and False Statements The reports required by this section are subject to:

1. (1) The provisions of section 25-8-610 of the Act governing false statements, representation, or certifications;
   1. (2) The provisions of 18 U.S.C. Sections 1001-1031 (as amended in 1990) relating to fraud and false statements;
   2. (3) The provisions of Section 309(c)(4) of the Clean Water Act, as amended, governing false statements, representation or certification; and (4) The provisions of Section 309(c)(6) of the Clean Water Act regarding responsible corporate officers.

G. Record-Keeping Requirements

1. (1) Any Industrial User subject to the reporting requirements established in this section shall maintain records of all information resulting from any monitoring activities required by this section. Such records include for all samples:
   1. (a) The date, exact place, method, and time of sampling and the names of the person or persons taking the samples;
      1. (b) The dates analyses were performed;
      2. (c) Who performed the analyses;
      3. (d) The analytical techniques/methods used; and (e) The results of such analyses.
   2. (2) Any Industrial User subject to the reporting requirements established in this section shall be required to retain for a minimum of three 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, the Regional Administrator and POTW. This period of retention shall be extended during the course of any unresolved litigation regarding the Industrial User or when requested by the Director or the Regional Administrator.

H. Monitoring Locations Discharge points from regulated processes or alternative points (when the combined waste stream formula is used) shall be so designed or modified so that a sample of the effluent can be obtained at a point after final treatment and prior to being discharged to the POTW. The Industrial User shall provide access to the Director or his designee to sample at these points.

I. Confidentiality Any information submitted to the Director or to a POTW pursuant to these regulations shall be open to the public except as provided in 25-8-405(2) of the Act, the Colorado Open Records Act, (Colo. Rev. Stat., sections 24-72-101-402)(1988 Repl. Vol. and 1992 Supp., as amended), and 40 CFR 2.302. The person submitting the information must request confidentiality at the time the information is submitted. The words “CONFIDENTIAL BUSINESS INFORMATION” must be stamped on each page containing such information. If no claim is made at the time of the submission, the Director will make the information available to the public without further notice. All other information shall be available to the public as provided by the Colorado Open Records Act and 40 CFR 2.302.

1. Effluent data will at all times be considered public information.

63.14 PRETREATMENT FEES

A. Pretreatment fees are to be assessed to both POTW's and to Significant Industrial Users as defined at 63.7(CC). Pretreatment fees shall be paid in accordance with the schedule set forth in 25-8- 502(1)(b.5), C.R.S.

B. POTW's with approved local pretreatment programs may, upon notification to the Director, be afforded the opportunity to pay pretreatment fees that would otherwise be assessed to Industrial Users subject to such local pretreatment programs.

C. The annual pretreatment fee must be paid within thirty days of receipt of the Director's billing statement. All fees assessed shall be made payable to the Colorado Department of Public Health and Environment, Water Quality Control Division. All fees collected by the Director shall be credited to the Industrial Pretreatment Program account of the Water Quality Control fund as provided in 25-8-502(1)(b.5), C.R.S. The annual pretreatment fee shall be used to support the expenses of the Industrial Pretreatment Program.

D. Failure of the Industrial User or the POTW to pay the annual pretreatment fee as required by 25-8- 502(b.5) is a violation of these regulations and is subject to enforcement pursuant to Section 63.6 of these regulations and Part 6 of the Act.

E. The pretreatment fee assessed the Industrial Users shall be prorated in the following instances:

1. (1) Commencement of discharge by the Industrial User to a POTW within the fiscal year;
   1. (2) Termination of discharge by the Industrial User to a POTW, unless termination is the result of enforcement action by either the POTW or the state.

      The prorated fee shall be based on the period of time discharge is occurring for the fiscal year during which discharge is commenced or terminated.

63.15 SEVERABILITY

The provisions of these regulations are severable, and if any provisions or the application of the provisions to any circumstances is held invalid, the application of such provisions to other circumstances and the remainder of these regulations shall not be affected thereby. 63.16-63.69 RESERVED

63.70 STATEMENT OF BASIS AND PURPOSE (July 1, 1989)

This is a statement of Basis and Purpose for adopting the regulations entitled: “Pretreatment Regulations”.

A. PURPOSE These regulations apply to non-domestic sources of pollutants, including those in the industrial categories promulgated by EPA, which discharge such pollutants to a publicly owned treatment works (POTW), transport them to the plant by truck or rail, or otherwise introduce them into the POTW. Non-domestic pollutants are those pollutants in wastewater from any process or activity of industry, manufacturing, trade or business, from the development of any natural resource, from animal operations, from contaminated stormwater, or leachate from solid waste facilities. The regulations also apply to POTW's which receive wastewater from these non-domestic sources. These regulations do not apply to non-domestic sources of pollutants which discharge to a sewer system not connected to a POTW. The goal of the pretreatment program is to protect municipal treatment plants and the environment from adverse impacts that may occur when hazardous or toxic wastes are discharged to a sewage system. This goal is achieved through regulating the substances discharged to POTW's. These regulations are designed to prevent the pass-through of pollutants, interference of pollutants with treatment plant operations, contamination of sludge, and the exposure of POTW workers to chemical hazards.

B. NEED FOR PRETREATMENT A pretreatment program is needed to eliminate or prevent several serious problems that can occur when industrial wastewater is discharged into a treatment plant designed to treat domestic sewage. Problems include:

1. (1) Pass-Through A problem of major concern is the pass-through of toxic pollutants through a treatment plant and into the receiving stream. Since domestic wastewater treatment plants are not normally designed for treatment of toxics, they only partially treat them and the toxics may then be discharged by the POTW to the receiving stream at levels that could cause a violation of stream standards. This could result in degradation of the stream, injury to classified uses, and even render the stream unsuitable as a drinking water source in some cases. EPA estimates that 37 percent of the toxic industrial compounds entering the surface waters of the country do so via a domestic sewage system. Implementation of a pretreatment program, which regulates industry, could drastically reduce pass-through.
   1. (2) Interference Another concern is the possibility of toxic pollutants from industrial discharges interfering with unit processes at a treatment facility and causing violations of the POTW's permit. Toxic or hazardous wastes, in relatively small concentrations, can “kill” the biomass used to stabilize and biodegrade the sewage resulting in the plant being unable to treat the sewage. Violations of limits for conventional and/or toxic type parameters could occur leading to a degradation in stream quality. Toxic pollutants which are removed via deposition in the sludge can also cause upsets in digesters resulting in an inadequately digested sludge which may not be acceptable for disposal using cost-effective methods.
   2. (3) Sludge Contamination Most pollutants removed in a domestic facility can be found in the sludge. Pretreatment is needed to assure that toxic or hazardous pollutants do not make their way back to the environment via disposal of sludge. This is of special concern since the toxic pollutants will accumulate in higher concentrations in the sludge. A study by Feilder (1979) showed significant concentrations of priority pollutants in the sludge of a POTW even though these pollutant concentrations were below detectable limits in the plant's influent. If these sludges were disposed of in a sanitary landfill these pollutants may leach out and contaminate adjacent surface and groundwaters. These “toxic” sludges can not be applied under the beneficial use regulations since the crops or pasture grasses produced may not be safe for human or animal consumption, and would need to be disposed of in a hazardous waste disposal site. Through pretreatment these pollutants can be limited prior to entrance into the plant to levels which will not contaminate the sludge, This would save POTW's the cost of landfilling and allow the beneficial reuse of the POTW's sludge. The quality of the sludge disposed of will become more important to communities as they face additional restraints on sludge quality when EPA proposes sludge regulations this fall. EPA will address, among other disposal processes, beneficial use, landfilling and incineration. Regulation of industrial discharges to POTW's via the pretreatment program is a vital tool needed to assist in preventing contamination of sludge.
   3. (4) Corrosion Another problem of concern which the pretreatment program can address is corrosion. Highly acidic industrial wastes can corrode piping and equipment in lift stations and sewer lines, as well as in the plant itself. The replacement of these items can be costly. This problem can be greatly reduced by controlling the pH of the wastewater. The Department of Health does not know of any instances of corrosion which can be tied directly to an Industrial User. This does not mean that it is not occurring. The Washington Suburban Sanitary Commission of Maryland has had to replace several thousand feet of sewer line due to corrosion problems from acidic industrial discharges. Implementation of a pretreatment program has enabled the Commission to identify and control these sources (EPA, 1986). The pretreatment regulations, through the specific prohibitions, would limit the likelihood of corrosion and thus save communities money.
   4. (5) Explosions Some toxic pollutants contained in industrial wastes may volatilize in the plant or sewer line. It is possible that the resulting gases can explode causing damage and injuries. The most famous example of this is an incident in Louisville, Kentucky in February of 1981. An accidental discharge of hexane into the sewer system resulted in an explosion which destroyed more than three miles of sewer line and resulted in more than $20 million in damages (EPA, 1986). Pretreatment regulations could limit the likelihood of this occurring in Colorado.
   5. (6) POTW Worker Safety Pretreatment can also be a means of preventing serious injury or death to workers at the POTW. When industrial wastes are mixed with domestic sewage poisonous gases can be released. Electroplating waste containing cyanide, if discharged to acidic sewage in the system, can result in cyanide gas being released. Sulfides from feather tanning, if combined with acidic sewage can generate poisonous hydrogen sulfide gas. This occurred in Chicago, Illinois in the early 1970's. The gas caused nausea and dizziness among the POTW workers. Subsequently the Metropolitan Sanitary District of Greater Chicago implemented sulfide and pH controls and thus put an end to the illnesses (EPA, 1986).

C. NEED FOR A STATE PROGRAM

1. (1) Assistance The main goal of a state-run system is to provide assistance to POTW's and industries. It is the Division's intent to act as a resource for any questions concerning toxic pollutants and hazardous wastes and their impacts on POTW's and receiving streams even without implementation of these regulations. All but the largest POTW's will not need to undergo the expense of maintaining pretreatment expertise on their staff since they will be able to contact the Division for technical assistance. Under a state program the POTW's without programs will not be required to monitor an industry yet they can be assured that the industry's effluent meets some basic standards. EPA, as they are currently structured, does not have the personnel to provide this assistance. The Clean Water Act's intent was to have the states assume delegation of pretreatment program responsibilities and have EPA act in an oversight role. Because of the lack of sufficient personnel, EPA must deal with problem industries or POTW's as quickly as possible. This usually means taking an enforcement action rather than working with the facility to solve its problem. The Division has a better working relationship with communities, as is evident in the state-delegated NPDES program. This relationship is enhanced by the fact that the state has delegation of the NPDES program and EPA must allow the Division to address a problem before it can step in. The Division can, and often does, bring the permittee into compliance without enforcement action. EPA rarely interferes with the state-community relationship by issuing an enforcement order to a permittee for NPDES violations. It is expected that this working relationship will carry over to the pretreatment program as well.
   1. (2) Regulation of Industries Industries will be regulated regardless of whether the State of Colorado assumes delegation of pretreatment responsibilities or not. If the state does not assume delegation, the industries of Colorado will continue to be regulated by EPA. The decisions regarding pretreatment requirements for industries located in Colorado will be based on policies dictated from Washington, D.C. With a state pretreatment program, these decisions will be made by people who are directly accountable to the state.
   2. (3) Toxics Control In addition to environmental concerns, the pretreatment program can be used as an administrative tool to complement the NPDES program. With the present emphasis toward control of toxics which enter streams, the pretreatment program can be a valuable tool in dealing with domestic treatment plant effluents which are found to have toxic pollutants. As previously stated, industries are a major source of such pollutants which enter and pass-through the POTW. These regulations would give the Division the ability to assist the POTW in developing local limits to control these toxic pollutants. If violations of pretreatment standards were occurring the Division would have the ability to work with the industry to abate the problem. Without these regulations the Division would have to request EPA to take the needed action and thus it would have to fit in with EPA's other priorities. Assistance would not then be as timely or as helpful since EPA does not have the resources to completely administer the pretreatment programs in all the Region VIII States.
   3. (4) Coordination With RCRA The pretreatment program is also needed to fill the gap between the RCRA and NPDES programs. RCRA has a domestic sewage exemption which excludes any waste discharged to a sanitary sewer as long as the receiving POTW has a NPDES permit. This exemption includes waste trucked directly to a POTW. In a Waste Management Division memo it was estimated that conservatively the quantity of hazardous wastes discharged into Colorado sewer systems is equal to that regulated under RCRA. The coordination between these two programs is needed to ensure that hazardous wastes are not finding ways into state waters via domestic sewage treatment plant discharges. The U.S. Congress has cited the pretreatment program as the appropriate means for filling in this gap between programs. These regulations will assist the Division in controlling harmful discharges of these hazardous wastes into state waters. Without a state pretreatment program coordination would be awkward since EPA would be responsible for coordination of two state run programs.
   4. (5) Delegation These regulations are required in order for the state to assume delegation of the pretreatment program from EPA. The Clean Water Act in section 402(b)(9) requires, as part of the NPDES program that the state have the authority To insure that any Industrial User of any publicly owned treatment works will comply with sections 204(b), 307 and 308. Part 402(c)(3) states that EPA can withdraw the NPDES program if the state does not comply with 402(b)(9).

D. DISCUSSION OF REGULATIONS These regulations are consistent with 40 CFR Part 403 and 40 CFR Subchapter N as promulgated by EPA which were in effect on July 1, 1987. They contain a few additional requirements and details which will enhance implementation of the program in Colorado. These regulations can be viewed as having three parts. These are POTW Requirements, Industrial User requirements, and categorical standards. The first part deals with pretreatment requirements for POTW's. Section 4.3.9 discusses the requirements for Division approval of a pretreatment program, including which POTW's are required to develop and maintain programs. Any POTW wishing to regulate its own industries may develop a program and obtain approval provided the program satisfies the requirements in that section. The POTW would then be the Control Authority. The Division would act in an oversight role. These requirements are basically unchanged from the federal regulations; however, additional detail was added to clarify the federal requirements. When a POTW is required to develop a program, they will have one year from formal notification to develop it. Other requirements include an annual report which summarizes the actions taken by a POTW with an approved program. This part of the regulations does not add any requirements beyond those already required by EPA. The second part of these regulations deals with requirements for Industrial Users. Sections 4.3.11 and 4.3.12 will impose requirements on categorical industries, of which there are several types. Section 4.3.12 describes the procedures and required information for calculating pretreatment standards. Acceptable flow and production rate data requirements are included as well as other items. Additional detail to the federal requirements has been added to this section so that the industry will be aware of the exact requirements. Included in this part of the regulations are procedures the Division will use in regulating industries which discharge to POTW's without approved pretreatment programs. Additionally section 4.3.11 (C) allows for an industry to have an affirmative defense if they meet the criteria outlined in this section. The Commission has included in this section a phrase which allows the POTW to claim an affirmative defense for the same incident in question when an Industrial User successfully uses such a defense. It is the Commission's belief that the POTW should not be held responsible for a violation of its discharge permit if the Industrial User itself did not know or have reason to know that its discharge could cause a violation of the POTW's discharge permit. It is the Commission's intent that if a POTW knows or has reason to known that local limits it has developed are inadequate then the POTW should not be allowed to avail itself of the affirmative defense.

Industrial Users' monitoring and reporting requirements are covered in Section 4.3.13. The self-monitoring report section has no counterpart in the federal regulations. The Division has added reporting periods and submittal dates for self-monitoring reports and sampling frequencies for industries. They were thus not changed. It is necessary to include these requirements in the regulations so that industries will be aware of what is required of them. The sampling frequencies were developed with assistance from an EPA manual entitled “Pretreatment Compliance Monitoring and Enforcement Guidance”. The required frequencies will also provide uniformity. The submittal dates for self-monitoring reports were changed from those in the federal regulations. The Division felt that, for the larger industrial facilities, more frequent reports were needed to assure compliance. POTW's with approved-programs are given the option of developing more stringent requirements.

In addition a requirement has been added for all Industrial Users to perform a priority pollutant scan at a frequency determined by the Control Authority but no less frequent than every five years. This requirement is included to complement the Division's overall toxic control strategy. Its purpose is to insure that the POTW is not receiving toxics which may pass-through its treatment plant to the receiving stream. All categorical industries as listed in sections 4.3.14 through 4.3.50 are required to perform the scan. However those in categories in which a total toxic organic standard is not included may be exempt if they can comply with the certification requirements. Other Industrial Users may be required to perform a scan if the Control Authority determines that the User's discharge contains priority pollutants which may impact the POTW or the receiving waters. The Control Authority has been given flexiblity for implementing this requirement by the optional submittal of a plan of implementation of this requirement in lieu of following the time schedules listed in the regulations. It is thought that this will assist the larger communities in the implementation of this regulation.

The final part of the regulations are comprised of standards for categorical industries. These standards regulate the maximum level of pollutants which can be discharged to the sewer system from different types of industries. These standards place restrictions on the 126 toxic pollutants, along with non- conventional and conventional pollutants which present a threat to the environment or human health. These standards have been adopted unchanged from the federal regulations. The regulations also provide for variances from categorical pretreatment standards if it can be shown that there exist factors which are fundamentally different than those considered by EPA in development of the standards. These factors include, among others, items such as cost of compliance with required control technology, non-water quality environmental impact of control and treatment technology, and the nature or quantity of pollutants contained in the raw wasteload of the user's process wastewater. These regulations do not allow for the state to permit such a variance, since this must be done by EPA, however the state can deny such a variance. Procedures for a Fundamentally Different Factor variance are included in Section 4.3.12(B) of the regulations and are taken from the federal regulations. The federal pretreatment regulations do allow for adjustment of categorical standards on a case by case basis if a POTW shows continual removal of a pollutant. This is commonly known as Removal Credits. The U.S. Circuit Court ruled these invalid in 1986 (National Resources Defense Council vs. EPA, 790 F. 2d 289 (3d Cir. 1986), cert. denied. 107 S. Ct. 1285 (1987)) and EPA will need to revise them before they can be used. Therefore the Commission will reserve the adoption of a method for calculating removal credits until EPA promulgates such revised requirements.

E. IMPLEMENTATION This regulation will be applied to POTW's and Industrial Users directly. Pretreatment requirements will be included in NPDES permits for the POTW. This will take the form of compliance schedules for development and implementation of pretreatment programs and permit requirements for program implementation. The Division has no present plans to expand the number of POTW's with approved programs beyond those currently required by EPA. Decisions to require additional POTW programs in the future will be based on the design capacity of the plant, the percentage of industrial flow it treats, its operating history, and the ability of the POTW to control its industrial contributors. Programs approved under the federal regulations will be considered approved programs under the state regulations. Since this is a control regulation there will be no other mechanism used to tie the regulations to the POTW or Industrial User. To inform industries subject to these regulations of the requirements and their need to comply with them the Division will publicize their promulgation and seek possibly uninformed industries out. Currently a survey is being done to locate some of these industries. It is the Division's intent to educate those industries about the regulations. Additionally it will notify those organizations whose membership consists of industries possibly subject to pretreatment of the regulations so they may educate their membership. As the Division locates these industries they will need to submit baseline monitoring reports if they have not already done so. The report will supply the information upon which limitations are based. Those Industrial Users for which the Division is the Control Authority will be informed of the requirements and limits the discharge must meet via a letter from the Division Director after submittal of a complete baseline monitoring report. Once the Industrial User and Division agree on the limits the Industrial User will need to monitor and report to the Division per the regulations. If the Industrial User can not comply with the limits a compliance schedule will be instituted. However, in instances when the federal compliance deadline has passed for the category, the schedule will need to be part of an enforcement action since the Division can not modify a federal regulation. It is the Divisions intent to bring an industry or POTW into compliance by working with them. When this fails enforcement action will be considered. The Water Quality Control Act allows the Division to take enforcement action such as issuing a Notice of Violation and Cease and Desist Order as well as collection of a civil penalty. An enforcement strategy will have to be developed to account for violations of these control regulations.

F. References

1. (1) Feilder, Howard D.; Vernick, Arnold S.; Starch, Paul J; “Fate of Priority Pollutants in POTW's” as published in the Proceedings of Eighth National Conference on Municipal Sludge Management. March 19-21, 1979.
   1. (2) Patterson. James W.: Industrial Wastewater Treatment Technology. Second Edition; 1985 Buttersworth, Boston, Mass (3) U.S. EPA, Technology Transfer; Environmental Regulations and Technology. “The National Pretreatment Program.” July 1986, EPA/625/10-86/005.
   2. (4) Interoffice Memorandum, entitled, “Briefing Paper on Pretreatment/Hazardous Waste Discharge,” from Randy Jones to Dr. Amott, dated July 16, 1984. Fiscal Impact Statement for the Pretreatment Regulations These regulations establish a state program for the control of discharges of toxic pollutants to publicly owned treatment works (POTW's) which originate from industrial facilities. They are based on the federal pretreatment regulations. The federal regulations were promulgated in 1979 and modified in 1981. The requirements for the POTW's and industries in these regulations are, for the most part, the same as those in the federal regulations and the fiscal impact on the POTW's and industries for items such as program development, sampling, and putting in treatment systems was accounted for when the general pretreatment regulations and categorical standards were promulgated by EPA. This evaluation can be found in the preambles to these regulations. Thus these proposed regulation's main fiscal impact will consist of development and maintenance of a state program. Cost Implementation of this program by the Water Quality Control Division will include overseeing POTW pretreatment programs, assisting POTW's in developing programs, and monitoring industries for compliance with the categorical standards. The Division will ensure adequate implementation of the pretreatment programs developed by POTW's by conducting inspections of the POTW's, and periodic audits of the approved programs, by sampling the POTW's effluent, and by evaluating annual pretreatment reports submitted by POTW's with approved programs. Compliance of Industrial Users will be determined through inspections and sampling of the facilities and by evaluating self-monitoring reports. In cases of non-compliance by either a POTW or an industry the Division will take suitable enforcement action. Miscellaneous items such as assisting POTW's in dealing with RCRA/NPDES requirements and coordination will also be handled as a part of the pretreatment program. The Division estimates that the minimum personnel requirement for a state pretreatment program is 2.5 FTE. In addition to personnel, money must be available for operating expenses, travel and sampling of industries. The Division estimates a first year cost for all of these items of $134,000 per year. A significant increase in the number of industries to be directly regulated by the state would require an increase in this budgeted amount. The Division hopes to obtain this funding through a portion of funds realized from a proposed increase in the CDPS annual permit fees and from federal 106 funds.

Since partial funding will be obtained from annual fees all permit holders will experience an impact. The exact increase in the fees has yet to be determined, therefore the exact impact on the permittees can not be calculated.

A portion of the fiscal impact from these regulations on industries, beyond that determined by EPA, could be from POTW's passing on the permit fee increase to these industries. Industries may also incur additional monitoring costs from the requirements for self-monitoring analyses and the priority pollutant scans. The exact impact of these requirements is unknown, although for most industries it will result in little or no additional costs on an annual basis over those experienced under the federal regulations. Benefits The benefits to be received from a state pretreatment program are many. For POTW's they include such things as lower plant maintenance costs and lower sludge disposal costs because of better sludge quality. Pretreatment requirements may encourage industries to recycle their process waters rather than to discharge them, which in the long run would save the industries money. These benefits, along with others, have been evaluated by EPA previously. The benefits of a state-run program are addressed in this statement.

The main benefit of a state-run program will be in the amount of assistance the state will be able to provide to POTW's and industries. It is the Division's intent to act as a resource for these individuals on questions concerning toxic and hazardous waste pollutants and their impacts on POTW's and state waters, therefore, small POTW's will not need to undergo the expense of maintaining pretreatment expertise on their staff. In addition the POTW's without programs will benefit when the state regulates the industries which discharge into their systems in that the POTW will not have to bear the cost of regulating the industries (monitoring, legal, etc.), yet the POTW can be assured that the industries' effluent will meet some basic standards.

63.71 STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY, AND PURPOSE (July 30, 1990 amendments)

The provisions of 25-8-202(1)(c) and (2); and 25-8-205(1)(b) to (d) C.R.S. provide the specific statutory authority for this amendment to the Colorado Pretreatment Regulations adopted by the Commission. The Commission has also adopted, in compliance with 24-4-103(4) C.R.S., the following Statement of Basis and Purpose.

BASIS AND PURPOSE:

The Colorado Pretreatment Regulations were adopted by the Commission on April 5, 1988. These regulations represent a major component in the State's effort to secure delegation of the federal pretreatment program from EPA. These regulations, in conjunction with a description of the State program's structure policies and procedures, and the Attorney General's evaluation of the State's statutory authority comprise the State's pretreatment delegation application. A draft program submittal was forwarded to EPA in September of 1988. Comments from that agency followed in August of 1989. These revisions are intended to remedy a number of deficiencies which were identified in the course of the EPA review process.

Subsequent to the submittal of the draft delegation package, the EPA promulgated amendments to the federal pretreatment regulations. These amendments appeared in the October 17, 1988 Federal Register. The revisions to the Colorado Pretreatment Regulations are also intended to bring the state regulations into conformance with the requirements of the 1988 amendments. Legislation was introduced during the 1989 legislative session which was intended to establish a funding mechanism for the state pretreatment program. That legislation failed to gain passage and has been re- introduced in 1990. Due to the absence of funding, as well as issues discussed earlier, the Commission convened an emergency rulemaking on May 1, 1989 to delay implementation of the regulations. The effective date of the pretreatment regulations was pushed back one year, from July 1, 1989 to July 1, 1990. Additional rulemaking is required within a year of an emergency rulemaking to ratify modifications made in emergency rulemaking. A second emergency hearing was required to maintain the July 1, 1990 effective date. This hearing was held on May 8, 1990 and the July 1, 1990 effective date remains in place. As a result of this hearing, the regulations as revised will become effective as a permanent rule on July 30, 1990.

Finally, there are a number of minor corrections or clarifications which are clarified by these revisions. Those revisions which are most substantive are discussed in greater detail below. Federal pretreatment regulations require the development of local pretreatment programs by POTW's which meet certain criteria. A compliance schedule placed in the POTW's discharge permit is the mechanism through which this requirement is implemented. Section 4.3.9 (D) provides for the incorporation of compliance schedules in permits. Previously, specific timeframes and interim reporting requirements had been lacking. The amended requirements appearing at 4.3.9(D)(3) detail compliance schedule elements, durations and reporting requirements, thereby achieving conformance with the federal requirements.

The federal and state regulations identify those elements which are necessary components of local pretreatment programs. There has been a mechanism in place by which the adequacy of local program submittals is evaluated prior to approval. Problems have arisen, however, due to the lack of a review and approval process which addresses local program modifications subsequent to initial approval. The October 17, 1988 amendments to the federal pretreatment requirements broadly define those circumstances when local program modification requires prior approval and clarify procedures by which approval is pursued. Conforming amendments to the state regulations now appear at 4.3.9(H). The language contained in both the federal pretreatment regulations and that which appears at 4.3.9(H) of the state's proposed amendments has generated public comment to the effect that the categories of program modifications which require approval authority approval are not entirely clear. EPA has recognized this problem and has chosen to deal with it through via policy. EPA Region VIII has issued an interim policy which narrows the scope of program modifications requiring approval authority review and approval. The state proposes to proceed in a similar manner. In general, the review and approval process is intended to focus on those program changes which affect a POTW's ability to carry out the program in a manner consistent with the program as approved.

Section 4.3.12(H) contains procedures for adjustments to a categorical industry's discharge limits in instances where the presence of a regulated constituent in intake water compromises the industry's ability to comply with its effluent limitations. Previously the ability to award these “net/gross” credits was EPA's alone. However, this restriction was relaxed by the October 17, 1988 amendments such that net/gross adjustments may now be approved by the “control authority”. The control authority is the POTW if it has an approved program or the state once it has assumed delegation. The October 17, 1988 amendments to the federal pretreatment regulations also contain provisions for notification of the control authority in the event of a bypass and specify requisite circumstances under which a bypass may be allowed. Parallel bypass provisions have been incorporated into the state pretreatment regulations at 4.3.12(J). This section also describes conditions under which bypass is prohibited and specifies that such prohibited discharges may serve as a basis for enforcement action. Sections 4.3.51, categorical discharge standards applicable to fertilizer manufacturers and 4.3.52, standards applicable to manufacturers of organic chemicals, plastics, and synthetic fibers are added. The former were omitted from the state regulation through oversight. The latter were promulgated by EPA on November 5, 1987.

The Environmental Protection Agency, in addition to the October 17, 1988 revisions to the federal pretreatment regulations, published proposed amendments to the pretreatment regulations on November 23, 1988. Both parties to this hearing have suggested that elements of the November 23, 1988 proposed amendments be incorporated Into the Colorado Pretreatment Regulations as part of this rulemaking. Specifically, the parties request that a definition of the term “significant industrial user” be inserted and that monitoring and reporting requirements which are applicable to significant industrial users be identified as such. A definition of the significant industrial user has been added. This definition is the same as that contained in the November 23, 1988 proposal. EPA policy has utilized this same definition since the mid- 1980s. The Division does not anticipate any change in the definition with final promulgation of the November 23 proposal.

Significant industrial users include all users subject to categorical discharge requirements, industrial users discharging more than 25,000 gallons per day of process wastewater, industrial users which contribute more than five percent of a POTW's average dry weather hydraulic or organic load, or any other industrial user with the potential to adversely affect POTW operation. Thus, an industry which might be significant if discharging to a relatively small facility may not be so designated if discharging to a larger POTW. Any industry which is not categorical, but which meets one or more of the flow or waste strength criteria, may be designated to be non-significant by the control authority if it is found that the user does not have the potential to adversely affect the POTW.

The significant industrial user is the focus of the POTW's pretreatment activities. Program requirements include limitations imposed upon wastewater discharges from significant industrial users via a control mechanism (permit), imposition of self-monitoring and reporting schedules on significant industries, monitoring and inspection by the POTW of these industries, and follow-up enforcement as required. Although this emphasis has existed since the inception of the federal program, the federal regulations have discussed these requirements in terms of “industrial users” and not “significant industrial users”. The resultant ambiguity has been a long standing source of concern for POTW's charged with program implementation.

Discussions with the parties have also led to the inclusion of a definition of the “approved program document”. The approved program document includes a detailed description of the POTW's program. Development of the program document is required in order to obtain local program delegation. Enforcement actions which EPA has initiated against POTW's for failure to adequately enforce pretreatment requirements have historically been based upon a POTW's failure to execute the program as described in the program document. The approved program document serves as the benchmark by which local program adequacy is to be evaluated. The inclusion of the “approved program document” definition clarifies this relationship. Again, the approach chosen by the State is consistent with that of the EPA, the difference being that EPA's has been embodied in policy rather that regulation. References to the significant industrial users and to the approved program document have been inserted into the regulation where necessary to clarify specific requirements.

63.72 STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY, AND PURPOSE (July 30, 1990 amendments)

The provisions of 25-8-202(1)(c) and (2); and 25-8-205(1 )(b) to (d) C.R.S. provide the specific statutory authority for this amendment to the Colorado Pretreatment Regulations adopted by the Commission. The Commission has also adopted, in compliance with 24-4-103(4) C.R.S., the following Statement of Basis and Purpose.

BASIS AND PURPOSE:

The Colorado Pretreatment Regulations were adopted by the Commission on April 5, 1988. These regulations represent a major component in the State's effort to secure delegation of the federal pretreatment program from EPA. These regulations, in conjunction with a description of the State program's structure, policies and procedures, and the Attorney General's evaluation of the State's statutory authority, comprise the State's pretreatment delegation application. A draft program submittal was forwarded to EPA in September of 1988. EPA's review of the draft program submittal raised a number of issues which were addressed when the Commission, on June 4, 1990, adopted amendments to these regulations. The June 4 amendments also incorporated changes mandated by October 17, 1988 amendments (the PIRT amendments) to the federal pretreatment regulations at 40 CFR Part 403. Shortly after publication of the PIRT amendments, the EPA proposed additional modifications to the federal pretreatment regulations. These modifications were proposed on November 23, 1988 and are. referred to as the Domestic Sewage Exclusion Study (DSES) amendments. The DSES amendments were finalized with their publication in the July 24, 1990 Federal Register. The Commission anticipated some of the DSES modifications and included them in the June 4 amendments to the Colorado regulations. However, the DSES amendment contains several additional modifications not incorporated into the June 4, 1990 amendments. This proposal addresses those additional items. The previous amendments to the federal pretreatment regulations (October 17, 1988) required that the POTW regulate significant industrial users through a permit or a permit equivalent control mechanism. The Colorado regulations were modified in June, 1990 to incorporate this mandate. The OSES amendments expand this requirement, stipulating specific items which must be addressed or included in the control mechanism. Incorporation of these items into POTW issued control mechanisms is addressed in sections 4.3.9(E)(1)(c)(i) through (v) of the Colorado regulations. The November 23, 1988 proposal of the DSES amendments extended the permit requirements to include permit issuance by the control authority (the EPA or delegated state if there is no approved local program in place). Although this requirement was eliminated from the July 24, 1990 amendments, it is the Commission's intent that significant industrial users which are not regulated under a local POTW program be issued a control mechanism by the state. Division issuance of control mechanisms to significant industrial users subject to categorical discharge requirements has been a requirement of the regulations since their inception (4.3.12(E)). Expansion of that requirement to include state issuance of control mechanisms to non-categorical significant industrial users is required by this amendment (4.3.11(F)). One party questioned the applicability of section 4.3.11(F) to POTW's. It is the Commission's intent that 4.3.11(F) address only the Division's regulation of non-categorical significant industrial users. Section 4.3.11(F) does not require POTW issuance of control mechanisms to non-categorical significant industrial users (although this is required of POTW's with approved local programs (4.3.9(E)(10)(c)) nor does it limit a POTW's ability to regulate industries discharging into the POTW's system. A definition of “industrial user permit” has been added at 4.3.7(P) to create a distinction between such permits and Division issued CDPS/NPDES permits.

Several parties raised concerns relative to the application of the significant industrial user definition by the Division. These concerns have been addressed by the expansion of the definition of significant industrial user to specify that a reasonable potential must exist for that industry's discharge to impact the POTW's operation or for the industry to violate pretreatment standards or requirements. This language appears in the July 24 amendments to the federal pretreatment regulations. The Division will also establish an advisory group to assist the Division in the development of pretreatment policy such as criteria for the identification of significant industrial users.

The DSES amendments also address additional specific discharge prohibitions (incorporated at 4.3.11 (B)), the compilation of significant industrial user lists by POTW's (4.3.9(E)(4)), the development of enforcement response plans by POTW's (4.3.9(E)(3)), the POTW's1 authority to require the development of slug control plans by the industrial user (4.3.9(E)(2)(e)), and criteria for the determination of instances of significant industrial noncompliance (4.3.9(E)(2)(g)). The definition of “Publicly Owned Treatment Works” (4.3.7(W)) is modified to clarify the applicability of the regulations in instances where a municipally owned and maintained collection system conveys wastewater to a privately owned domestic wastewater treatment works. This modification is added to specifically address situations such as that which exists in Golden, where the City's collection system is connected to the Coors owned General Wastewater Treatment Plant. The Colorado Water Quality Control Act was amended during the 1990 legislative session to clarify the state's authority relative to pretreatment and to provide a mechanism to fund program implementation. House Bill 1094 directs that fees be assessed to POTW's and to industrial users regulated by the program. A fee schedule is set forth in the legislation. Section 4.3.53 contains the regulatory provisions for the billing procedure.

Additionally, there are less significant modifications which are made so as to correct several inconsistencies between the Colorado regulations and the federal requirements. These changes appear at 4.3.9(E)(1)(g) and 4.3.12(C)(1).

63.73 STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY, AND PURPOSE (March 2, 1991 amendments)

The provisions of 25-8-202(1) (c) and (2); and 25-8-205(1) (b) to (d) C.R.S. provide the specific statutory authority for this amendment to the Colorado Pretreatment Regulations adopted by the Commission. The Commission has also adopted, in compliance with 24-4-103(4) C.R.S., the following Statement of Basis and Purpose.

BASIS AND PURPOSE:

The Colorado Pretreatment Regulations were adopted by the Commission on April 5, 1988. These regulations represent a major component in the State's effort to secure delegation of the federal pretreatment program from EPA. These regulations, in conjunction with a description of the State program's structure, policies and procedures, and the Attorney General's evaluation of the State's statutory authority, comprise the State's pretreatment delegation application. A draft program submittal was forwarded to EPA in September of 1988. EPA's review of the draft program submittal raised a number of issues which were addressed when the Commission, on June 4, 1990, adopted amendments to these regulations. The June 4 amendments also incorporated changes mandated by October 17, 1988 amendments (the PIRT amendments) to the federal pretreatment regulations at 40 CFR Part 403. Shortly after publication of the PIRT amendments, the EPA proposed additional modifications to the federal pretreatment regulations. These modifications were proposed on November 23, 1988 and are referred to as the Domestic Sewage Exclusion Study (DSES) amendments. The DSES amendments were finalized with their publication in the July 24, 1990 Federal Register. The Commission anticipated some of the DSES modifications and included them in the June 4 amendments to the Colorado regulations. However, the DSES amendment contains several additional modifications not incorporated into the June 4, 1990 amendments. This proposal addressed those additional items. The previous amendments to the federal pretreatment regulations (October 17, 1988) required that the POTW regulate significant industrial users through a permit or a permit equivalent control mechanism. The Colorado regulations were modified in June, 1990 to incorporate this mandate. The DSES amendments expand this requirement, stipulating specific items which must be addressed or included in the control mechanism. Incorporation of these items into POTW issued control mechanisms is addressed in sections 4.3.9(E)(1)(c)(l) through (v) of the Colorado regulations. The November 23, 1988 proposal of the DSES amendments extended the permit requirements to include permit issuance by the control authority (the EPA or delegated state if there is no approved local program in place). Although this requirement was eliminated from the July 24, 1990 amendments, it is the Commission's intent that significant industrial users which are not regulated under a local POTW program be issued a control mechanism by the state. Division issuance of control mechanisms to significant industrial users subject to categorical discharge requirements has been a requirement of the regulations since their inception (4.3.12(E)). Expansion of that requirement to include state issuance of control mechanisms to non-categorical significant industrial users is required by this amendment (4.3.11(F)). One party questioned the applicability of section 4.3.11 (F) to POTW's. It is the Commission's intent that 4.3.11 (F) address only the Division's regulation of non-categorical significant industrial users. Section 4.3.11(F) does not require POTW issuance of control mechanisms to non-categorical significant industrial users (although this is required of POTW's with approved local programs discharging into the POTW's system. A definition of “industrial user permit” has been added at 4.3.7(P) to create a distinction between such permits and Division issued CDPS/NPDES permits.

Several parties raised concerns relative to the application of the significant industrial user definition by the Division. These concerns have been addressed by the expansion of the definition of significant user to specify that a reasonable potential must exist for that industry's discharge to impact the POTW's operation or for the industry to violate pretreatment standards or requirements. This language appears in the July 24 amendments to the federal pretreatment regulations. The Division will also establish an advisory group to assist the Division in the development of pretreatment policy such as criteria for the identification of significant industrial users.

The DSES amendments also address additional specific discharge prohibitions (incorporated at 4.3.11 (B)), the compilation of significant industrial user lists by POTW's (4.3.9(E)(4)), the development of enforcement response plans by POTW's (4.3.9(E)(3)), the POTW's authority to require the development of slug control plans by the industrial user (4.3.9(E)(2)(e)), and criteria for the determination of instances of significant industrial noncompliance (4.3.9(E)(2)(g)). The definition of “Publicly Owned Treatment Works” (4.3.7(W)) is modified to clarify the applicability of the regulations in instances where a municipally owned and maintained collection system conveys wastewater to a privately owned domestic wastewater treatment works. This modification is added to specifically address situations such as that which exists in Golden, where the City's collection system is connected to the Coors owned General Wastewater Treatment Plant. The Colorado Water Quality Control Act was amended during the 1990 legislative session to clarify the state's authority relative to pretreatment and to provide a mechanism to fund program implementation. House Bill 1094 directs that fees be assessed to POTW's and to industrial users regulated by the program. A fee schedule is set forth in the legislation. Section 4.3.53 contains the regulatory provisions for the billing procedure.

Additionally, there are less significant modifications which are made so as to correct several inconsistencies between the Colorado regulations and the federal requirements. These changes appear at 4.3.9(E)(1)(g) and 4.3.12(C)(1).

63.74 STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY, AND PURPOSE (August 31,

1. 1993 amendments)

SPECIFIC STATUTORY AUTHORITY The provisions of Colorado Revised Statute sections 25-8-202(1 )(c) and (2); 25-8-205(1 )(b) to (d); and 25- 8-508 (1989 Repl. Vol. and 1992 Supp.) provide the specific statutory authority for this amendment to the Colorado Pretreatment Regulations adopted by the Commission. The Commission has also adopted, in compliance with Colorado Revised Statute section 24-4-103(4) (1988 Repl. Vol. and 1992 Supp.), the following Statement of Basis and Purpose.

BASIS AND PURPOSE The Colorado Pretreatment Regulations were adopted by the Commission on April 5, 1988. These regulations represent a major component in the State's effort to secure delegation of the federal pretreatment program from EPA. Amendments to the regulations have been adopted on June 4, 1990 and on January 8, 1991. In both instances the amendments were intended to incorporate revisions which had been made to the federal pretreatment regulations into the Colorado Pretreatment Regulations. These previous amendments have also addressed issues raised by EPA as that agency has reviewed the State's draft delegation package.

The Water Quality Control Division provided EPA with a supplemental draft submittal in May, 1992. These current amendments to the regulations are intended to address those remaining issues identified in EPA's response to the 1992 submittal.

Section 4.3.10(A) is amended to require submittal of a POTW's Industrial Users list, or any additions or deletions to the list, as a portion of the POTW's annual pretreatment report. A specific statement of state and federal provisions governing fraud and false statements as related to reporting requirements has been added to section 4.3.10(c) in lieu of a general reference to the state act. The federal act had not been previously cited relative to this section. Section 4.3.13(F)(2), formally (G)(2), contains an expanding reference to the federal provisions applicable to fraud and false statements. Sections 4.3.11(D)(2) allows the Division to require a POTW which has no approved local program to develop local limits. Previously the regulation allowed the Division to require local limit development only after instances of pass-through or interference had occurred. This amendment extends that authority so as to allow local limit development to be required in instances where reasonable potential for pass- through or interference exists.

EPA had raised a concern relative to the Division's ability to enforce local limits developed as a result of the mechanism described above. Section 4.3.11 (A) is amended to stipulate that industrial users must comply with Division approved local limits and is intended to ensure that the Division can enforce directly against industrial users for violations of local limits. Section 4.3.11 (A) is also amended to clarify that under 25-8-508, 25-8-103(16.5), and section 4.3.9.D(1)(b), the Division can enforce against Industrial Users for violations of pretreatment requirements and standards described in 4.3.11.A and B. Section 4.3.12(B)(7) identifies the procedures for review and approval of a Fundamentally Different Factor variance. This process involves review by both the Division and the Regional EPA office. Subsection (I) reproduces the portion of the federal regulation which sets forth the procedures governing EPA's portion of the review process. This section has been amended to identify the Regional Administrator or his delegate as the position within EPA responsible for the review and approval of Fundamentally Different Factor variances. A change relative to the position responsible for this function within EPA will no longer necessitate a concomitant amendment to the state regulation. Similar revisions have been incorporated at section 4.3.13(D)(7)(d). This section addresses approval procedures for alternative sampling and analytical methods.

The provisions concerning Net/Gross adjustments to categorical discharge standards which appear at section 4.3.12(H) have been amended to include a stipulation that Net/Gross adjustments to categorical discharge limitations are available only when the categorical standard specifically provide for such adjustments.

Section 4.3.13 addresses monitoring and reporting requirements for industrial users. Subsection A identifies requirements for contents of Baseline Monitoring Reports including sampling protocols. These requirements correspond with the requirements which appear at section 403.12(b)(5)(iii) of the federal regulation. However, the federal regulation is silent with respect to sampling techniques associated with monitoring undertaken to demonstrate continuing compliance. The state regulation incorporates requirements for ongoing monitoring in section 4.3.13(D)(5). The state requirements are consistent with federal policy concerning such sampling in that composite sampling is required when feasible. Grab samples are required for parameters where holding times or analytical requirements rule out composite sampling. This also is consistent with federal requirements (as described relative to monitoring associated with BMRs. The state regulation also allows grab samples in instances where the duration of the discharge is such that composite sampling is infeasible. Use of grab samples in these instances must now be approved by the Control Authority. This allowance is not inconsistent with the federal regulation which requires the use of composite samples “where feasible”. Requirements for the reporting of slug discharges contained in section 4.3.13(D)(6) have been revised. The previous cross reference required notification only when a slug discharge resulted in pass-through or interference at the receiving POTW. Immediate notification would therefore not be possible because pass- through or interference could not be evaluated until the slug actually reached the POTW and impacted its operation. The revised language reflects the true intent of the notification requirement; the POTW must be immediately notified of any non-routine discharge which might potentially impact its operation. Section 4.3.13(D)(7)(d) has been amended to clarify the circumstances under which a POTW or the Division may waive monitoring for a parameter.

A new section 4.3.13(D)(7)(f) has been added to require that an Industrial User submit any monitoring data accumulated for a regulated parameter, regardless of whether the data results from sampling undertaken more frequently than specified by the POTW or the Division. Section 4.3.13(F) has been deleted. This section contained requirements for priority pollutant monitoring by selected Industrial Users and was intended to implement, in part, the Division's Interim Policy on Human Health Toxicity (December 10, 1987). That policy was intended to serve as the initial framework for implementation of the “Free from toxics” section of the Colorado Basic Standards and Methodologies (Section 3.1.11). The policy has been rescinded effective March 20, 1991 as a result of several actions by the Commission relative to biomonitoring rulemakings. The Commission has therefore determined that continued imposition of priority pollutant monitoring through the Pretreatment Regulations is inappropriate. It should be noted, however, that POTW's and the Division retain the authority to impose additional monitoring (over and above the minimum specified in the Categorical Pretreatment Standards) as specified at sections 4.3.11(E) and (F), and 4.3.13(D)(3) of the regulations. Section 4.3.40, National Categorical Standards for Organic Chemicals Manufacturing has been deleted. These standards are superseded by the Categorical Standards for Organic Chemicals, Plastics and Synthetic Fibers, Section 4.3.51. The standards which had appeared at 4.3.40 should have been deleted when the Commission adopted the Organic Chemical, Plastics and Synthetic Fibers standards but were inadvertently retained.

These amendments are also intended to correct several incorrect cross-references within the regulation and to correct a number of minor inconsistencies between the federal regulation and the Colorado Pretreatment Regulation.

These minor revisions are as follows:

Section 4.3.1 was amended so as to incorporate additional statutory authorities developed under section 25-8-508 of the Colorado Water Quality Control Act.

Section 4.3.5, has been amended so as to conform with the requirements of the Colorado Administrative Procedures Act.

Sections 4.3.9(D)(1)(b), 4.3.12(B)(5)(c), 4.3.12(B)(7)(I)(I), 4.3.12(H), 4.3.12(J)(2), 4.3.13(D)(1)(c) have been amended to correct inconsistencies between the state and federal regulations. Sections 4.3.9(E)(4), 4.3.9(F)(2)(f), 4.3.9(G)(1), 4.3.9(G)(2), 4.3.9(H)(1), 4.3.11(A), 4.3.11(F), 4.3.12(B)(7) (I), 4.3.13(D)(7), 4.3.13(D)(7)(e), 4.3.13(D)(8) and 4.3.52 (formally 4.3.53) have been amended to provide correct cross-refer ences within the regulation.

A comment was received during the Public Notice period concerning the intent of new language inserted at section 4.3.12.B(5)(c). Section 4.3.12.B addresses requirements for administration of Fundamentally Different Factor variances. Factors which are eligible for consideration as part of a Fundamentally Different Factor variance request are identified at section 4.3.12.B. Previous to this amendment that section read “Non-water quality environmental impact of control treatment and technology.” This amendment replaces the term “technology” with the phrase “of the user's raw waste load”. The amended language is consistent with that which appears in the federal pretreatment regulations at 40 CFR 403. The intent of the section is to allow consideration of the impact of control and treatment of the categorical wastestream upon air emissions from the process, the quality of any residual sludges resulting from the process, or any other environmental impact beyond what could be considered to be water quality related.

63.75 STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY AND PURPOSE: (April 4, 1994) SPECIFIC STATUTORY AUTHORITY The provisions of Colorado Revised Statutes Section 25-8-202(1 )(c) and (2), 25-8-205(1 )(b) to (d); and (2), and 25-8-508 C.R.S., (1989 Repl. Vol. And 1993 Supp.) provide the specific statutory authority for this amendment to the Colorado Pretreatment Regulations adopted by the Commission. The Commission has also adopted, in compliance with Colorado Revised Statute section 24-4-103(4) (1988 Repl. Vol. And 1992 Supp.), the following Statement of Basis and Purpose. BASIS AND PURPOSE The Colorado Department of Health, Water Quality Control Division has proposed amendments to the Regulations for the State Discharge Permit System, 6.1.0 to be heard at the Commission's March 7, 1994 meeting.

Section 4.3.13.D(7)(d) of the Pretreatment Regulations requires industries subject to categorical discharge standards to perform self-monitoring for conventional pollutants, inorganics (including metals) cyanide, and phenol on a monthly or quarterly basis dependant upon discharge volume (at a minimum; the POTW may specify more frequent monitoring if it so chooses. The federal Pretreatment Regulations at 40 CFR Part 403 require only that industrial user self-monitoring be performed no less frequently than semi- annually. The proposed revisions to section 4.3.13.D(7)(d) would allow local municipalities and districts with approved pretreatment programs to relax industrial user self-monitoring for individual parameters, when documentation is provided indicating the absence of that pollutant. Monitoring may not be performed less frequently than semi-annually as per federal; pretreatment requirements.

63.76 STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY AND PURPOSE: (JULY, 1997

1. RULEMAKING)

The provisions of sections 25-8-202 and 25-8-401, C.R.S., provide the specific statutory authority for adoption of the attached regulatory amendments. The Commission also adopted, in compliance with section 24-4-103(4) C.R.S., the following statement of basis and purpose. BASIS AND PURPOSE The Commission has adopted a revised numbering system for this regulation, as a part of an overall renumbering of all Water Quality Control Commission rules and regulations. The goals of the renumbering are: (1) to achieve a more logical organization and numbering of the regulations, with a system that provides flexibility for future modifications, and (2) to make the Commission's internal numbering system and that of the Colorado Code of Regulations (CCR) consistent. The CCR references for the regulations will also be revised as a result of this hearing.

63.77 FINDINGS REGARDING BASIS FOR EMERGENCY RULE AMENDMENTS ADOPTED ON

1. OCTOBER 6, 1997 The Commission has previously included incorporation by reference provisions in both the Pretreatment Rules, Regulation #63 (5 CCR 1002-63 CCR) and the Confined Animal Feeding Operations Control Regulation, Regulation #81 (5 CCR 1002-81). As a part of its statutorily required review of regulations adopted by state agencies, staff in the Office of Legislative Legal Services brought to the Commission's attention an inconsistency between the incorporation by reference language in these two regulations and the requirements of the State Administrative Procedure Act, 24-4-103(12.5) C.R.S. To eliminate this inconsistency, the Commission is adding a statement to each rule that all material incorporated by reference may be examined at any state publications depository library. Both of these regulations are an important part of Colorado s overall water quality management system. Therefore, in order to avoid any interruption in the applicability of these regulations and to avoid the time and expense that would be required for the Committee on Legal Services to conduct a formal hearing to consider this matter, the Commission finds that adoption of these amendments is imperatively necessary to preserve public health, safety and welfare.

63.78 STATEMENT OF BASIS AND PURPOSE. SPECIFIC STATUTORY AUTHORITY AND

1. PURPOSE: (FEBRUARY, 1998 RULEMAKING)

The provisions of sections 25-8-202 and 25-8-401, C.R.S., provide the specific statutory authority for adoption of the attached regulatory amendments. The Commission also adopted, in compliance with section 24-4-103(4) C.R.S., the following statement of basis and purpose. BASIS AND PURPOSE After the triennial review of the Colorado Pretreatment Regulations in January 1997, areas were discovered where corrections of typographical errors, clarifications, and updates needed to be made. Changes involving more than clarifications or corrections of typographical errors were made to the following areas:

Section 63.7.J: The section gives a definition of “domestic wastewater”. The definition was shortened to include “....kitchen, bath and laundry wastes from residences' instead of from residences, industrial establishments or other places”. This change was made so that there will be no question that establishments such as industrial laundries, which are. a potential sources of toxic or otherwise harmful pollutants, will not be mistakenly considered domestic wastewater and excluded from the pretreatment regulations.

Section 63.9(A)(2): Since pretreatment is a preventative program, designation of an industrial user as significant should be done, if possible, before an industrial user causes environmental harm. This section was changed to make it clear that an industrial user can be considered significant based on its potential to have harmful impacts on the environment.

Section 63.10: This section was changed so that unneeded information was not unnecessarily requested in pretreatment annual reports. This section is now consistent with the minimum federal requirements. Section 63.13.D(5): This section, as previously written, was not technically sound. As written previously, grab samples could be taken in situations where grab samples were not actually representative of the discharge. The section was changed to simply state that samples have to be representative of the discharge. The section now also references sampling guidelines which were already present in Section 63.12.A(2)(e)(iii)-(vi).

Section 63.13.1: The following sentence was added for clarity and to make the section more consistent with federal regulation: “If no claim is made at the time of the submission, the Director will make the information available to the public without further notice.” Section 63.53: This section incorporates by reference pretreatment standards for new sources and pretreatment standards for existing sources which were promulgated in September 1993. Addition of these standards is required in order for the state pretreatment regulations to be at least as stringent as the federal regulation.

Changes Made After Public Notice:

General: Throughout the document, a @ symbol was inadvertently placed where a “(c)” symbol should have appeared. This typographical error was corrected.

Sections 63.3 and 63.7:

Comments were received from Metro Wastewater Reclamation District (“Metro”) in a letter dated December 8, 1997 regarding the definition of “domestic wastewater”. Metro expressed concern that: “Eliminating reference to all establishments except residences from the definition of domestic wastewater may subject commercial users to pretreatment program requirements even though they may discharge only domestic wastewater.” The Division agrees that this point merits clarification of the definition of “domestic wastewater”.

As a result of these comments, the definition of “domestic wastewater” was expanded so that domestic wastewater from non-residential buildings would be included. Consequently, the definition of “non- domestic wastewater” was also changed so that it would be compatible with the new definition of “domestic wastewater”.

In addition, Section 63.3, “Applicability” was also revised to make it compatible with the new definition of domestic wastewater. Previously, the Applicability section stated that the pretreatment regulations pertain to “industries”. However, there are many non-industrial entities which can discharge non-domestic wastewater which may be problematic to a POTW. For example, restaurants can cause obstructions of collection lines due to grease accumulation. Cooling tower blowdown from commercial, non-industrial buildings can and have interfered with POTW's sludge disposal options. Therefore, the “Applicability” section no longer refers to “industries” and instead refers to “industrial users” which is already defined in terms of domestic/non-domestic discharge.

Section 63.9(A) (2):

Comments from Metro noted a typographical error in this section. This has been corrected. Section 63.10.A:

Metro suggested changes to this language that clarifies it and makes it more consistent with the federal language. Previous deviations from the federal language made no difference in the meaning of the regulation and thus the changes were made in the interest of clarification. Section 63.13.D(5):

Metro commented that requiring a minimum of 4 grab samples for periodic compliance sampling for certain parameters (pH, cyanide, total phenols, oil & grease, sulfide and volatile organic compounds) is excessive. Metro suggested that the Division's Pretreatment Regulations should, instead, be consistent with the language proposed for 40 CFR Section 403.12(g)(3) & (4) by EPA in their May 30, 1997 letter to stakeholders. This letter states that, for these limited parameters, periodic compliance sampling shall be conducted at the frequency “necessary to assess and assure compliance....” The Division's proposed requirement that all sampling must follow the guidelines of Section 63.13.A(2)(e) (iii) -(vi) does effectively require 4 grabs for periodic compliance monitoring for these parameters. This was an unintentional result of requiring adherence to those guidelines. The Division was primarily attempting to address issues of sample type (i.e., flow proportional vs. time proportional vs. grab samples) for metals and conventional pollutants. Although adoption of EPA's language may seem like a reasonable solution, the language is not yet finalized and is more extensive than is appropriate to include at this point in this rulemaking. Therefore the requirement for sampling to be consistent with Section 63.13.A(2)(e)(iii) - (vi) was struck and new language will be considered once the federal language is finalized.

63.79 FINDINGS REGARDING BASIS FOR EMERGENCY RULE AMENDMENTS ADOPTED ON

1. OCTOBER 14, 1998 The Commission previously included incorporation by reference provisions in the Pretreatment Rules, Regulation #63 (5 CCR 1002-63). As a part of its statutorily required review of regulations adopted by state agencies, staff in the Office of Legislative Legal Services brought to the Commission's attention an inconsistency between the incorporation by reference language in this regulation and the requirements of the State Administrative Procedure Act, 24-4-103(12.5) C.R.S. To eliminate this inconsistency, the Commission added in an emergency rulemaking on October 6, 1997 a statement to the rule that all materials incorporated by reference may be examined at any state publication depository library. The Commission made this language permanent in a rulemaking in February 1998. However, the statement did not appear in the rule as published in the Code of Colorado Regulation. The Office of Legislative Legal Services staff raised this concern to Commission staff on October 14, 1998. In order to correct this problem, the Commission again adopted this statement by emergency rule on October 14, 1998. The Pretreatment Regulation is an important part of Colorado's overall water quality management system. Therefore, in order to avoid any interruption in the applicability of this regulation and to avoid the time and expense that would be required for the Committee on Legal Services to conduct a formal hearing to consider this matter, the Commission finds that adoption of this amendment is imperatively necessary to preserve public health, safety and welfare.

63.80 STATEMENT OF BASIS. SPECIFIC STATUTORY AUTHORITY AND PURPOSE: JANUARY.

1. 1999 RULEMAKING The provisions of sections 25-8-202 and 25-8-401, C.R.S., provide the specific statutory authority for adoption of the attached regulatory amendments. The Commission also adopted, in compliance with section 24-4-103(4) C.R.S., the following statement of basis and purpose. BASIS AND PURPOSE The Commission held this rulemaking hearing to make permanent changes adopted in an Emergency Rulemaking Hearing that was held on October 14, 1998.

These changes add incorporation by reference language to assure compliance with the requirements of the State Administrative Procedure Act, 24-4-103(12.5) C.R.S.

63.81 STATEMENT OF BASIS. SPECIFIC STATUTORY AUTHORITY. AND PURPOSE: JULY, 200

1. RULEMAKING The provisions of sections 25-8-202(1); 25-8-205(1 )(B); AND 25-8-401, C.R.S, provide the specific statutory authority for adoption of the attached regulatory amendments. The Commission also adopted, in compliance with section 24-4-103(4) C.R.S., the following statement of basis and purpose. BASIS AND PURPOSE The Commission adopted the changes proposed by the Water Quality Control Division. These changes include:

(1) Corrections to spelling and numerical references at several points in the regulation;

(2) Revisions to sections 63.29 and 63.9 to reflect the most current language in the federal pretreatment regulations; and (3) An update to the incorporation by reference provisions to reflect the most recent published version of the Code of Federal Regulations.

These changes are appropriate to make sure that the Colorado pretreatment program continues to be consistent with federal requirements.

63.82 STATEMENT OF BASIS. SPECIFIC STATUTORY AUTHORITY. AND PURPOSE: (September. 2003 Hearing)

The provisions of sections 25-8-202(1); 25-8-205(1 )(B); AND 25-8-401, C.R.S., provide the specific statutory authority for adoption of the attached regulatory amendments. The commission also adopted, in compliance with section 24-4-103(4) C.R.S, the following statement of basis and purpose. BASIS AND PURPOSE The Commission adopted the changes proposed by the Water Quality Control Division. These changes include:

(1) Corrections of various typographical errors.

(2) Remove and replace sections 63.14 through 63.52 and incorporate by reference the federally promulgated categorical standards found at 40 CFR 405 through 40 CFR 471. The Commission would like to reserve sections 63.16 through 63.52 for future use.

(3) An update to the incorporation by reference provisions to reflect the most recent published version of the Code of Federal Regulations. This includes the addition of 2 new categorical standards that are found at 40 CFR 437, Centralized Waste Treatment, and 40 CFR 442, Transportation Equipment Cleaning.

These changes are appropriate to make sure the Colorado Industrial Pretreatment Program continues to be consistent with federal requirements.