5 Colo. Code Regs. § 1002-63.70
This is a statement of Basis and Purpose for adopting the regulations entitled: "Pretreatment Regulations".
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.
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:
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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).
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 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 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.
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.
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.
5 CCR 1002-63.70