N.D. Admin. Code app A
Legal authority. The publicly owned treatment works (POTWs) shall operate pursuant to legal authority enforceable in federal, state, or local courts, which authorizes or enables the publicly owned treatment works to apply and to enforce the requirements of sections 307(b) and (c), and 402(b)(8) of the Federal Water Pollution Control Act and any regulations implementing those sections. Such authority may be contained in a statute, ordinance, joint powers agreements, or similar mechanisms which the publicly owned treatment works is authorized to enact, enter into, or implement, and which are authorized by state law. At a minimum, this legal authority shall enable the publicly owned treatment works to accomplish each of the following actions:
1. Deny or condition new or increased contributions of pollutants, or changes in the nature of pollutants, to the publicly owned treatment works by industrial users if such contributions do not meet applicable pretreatment standards and requirements or if such contributions would cause the publicly owned treatment works to violate its North Dakota pollutant discharge elimination system permit.
2. Require compliance with applicable pretreatment standards and requirements by industrial users.
3. Control through permit, order, or similar means the contribution to the publicly owned treatment works by each industrial user to ensure compliance with applicable pretreatment standards and requirements. In the case of significant industrial users, this control shall be achieved through permits or equivalent individual control mechanisms issued to each such user.
a. At the discretion of the publicly owned treatment works, this control may include use of general control mechanisms if the following conditions are met. All of the facilities to be covered must:
(1) Involve the same or substantially similar types of operations;
(2) Discharge the same types of wastes;
(3) Require the same effluent limitations;
(4) Require the same or similar monitoring; and
(5) In the opinion of the publicly owned treatment works, are more appropriately controlled under a general control mechanism than under individual control mechanisms.
b. To be covered by the general control mechanism, the significant industrial user must file a written request for coverage that identifies its contact information, production processes, the types of wastes generated, the location for monitoring all wastes covered by the general control mechanism, any requests in accordance with 40 CFR 403.12(e)(2) for a monitoring waiver for a pollutant neither present nor expected to be present in the discharge, and any other information the publicly owned treatment works deems appropriate. A monitoring waiver for a pollutant neither present nor expected to be present in the discharge is not effective in the general control mechanism until after the publicly owned treatment works has provided written notice to the significant industrial user that such a waiver request has been granted in accordance with 40 CFR 403.12(e)(2). The publicly owned treatment works must retain a copy of the general control mechanism documentation to support the publicly owned treatment works' determination that a specific significant industrial user meets the criteria in paragraphs 1 through 5 of subdivision a of this subsection, and a copy of the user's written request for coverage for three years after the expiration of the general control mechanism. A publicly owned treatment works may not control a significant industrial user through a general control mechanism where the facility is subject to production-based categorical pretreatment standards or categorical pretreatment standards expressed as mass of pollutant discharged per day or for industrial users whose limits are based on the combined wastestream formula or net/gross calculations 40 CFR 403.6(e) and 40 CFR 403.15. Both individual and general control mechanisms must be enforceable and contain, at a minimum, the following conditions:
(1) Statement of duration (in no case more than five years);
(2) Statement of nontransferability without, at a minimum, prior notification to the publicly owned treatment works and provision of a copy of the existing control mechanism to the new owner or operator;
(3) Effluent limits, include best management practices, based on applicable general pretreatment standards in chapter 33-16-01.1, categorical pretreatment standards, local limits, and state and local law;
(4) Self-monitoring, sampling, reporting, notification, and recordkeeping requirements, including an identification of the pollutants to be monitored, (including the process for seeking a waiver for a pollutant neither present nor expected to be present in the discharge in accordance with 40 CFR 403.12(e)(2), or a specific waived pollutant in the case of an individual control mechanism), sampling location, sampling frequency, and sample type, based on the applicable general pretreatment standards in 33-16-01.1, categorical pretreatment standards, local limits, and state and local law;
(5) Statement of applicable civil and criminal penalties for violation of pretreatment standards and requirements, and any applicable compliance schedule. Such schedules may not extend the compliance date beyond applicable federal deadlines; and
(6) Requirements to control slug discharges, if determined by the publicly owned treatment works to be necessary.
4. Require:
a. The development of a compliance schedule by each industrial user for the installation of technology required to meet applicable pretreatment standards and requirements; and
b. The submissions of all notices and self-monitoring reports from industrial users as are necessary to assess and assure their compliance with pretreatment standards and requirements, including the reports required in section 33-16-01.1-12.
5. Carry out all inspection, surveillance, and monitoring procedures necessary to determine, independent of information supplied by industrial users, compliance or noncompliance with applicable pretreatment standards and requirements by industrial users. Representatives of the publicly owned treatment works 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 subsection 5 of section 33-16-01.1-11 to assure compliance with pretreatment standards and requirements. Such authority shall be at least as extensive as the authority provided under section 308 of the Federal Water Pollution Control Act.
6. a. Obtain remedies for noncompliance by any industrial user with any pretreatment standards and requirements. All publicly owned treatment works shall be able to seek injunctive relief for noncompliance by industrial users with pretreatment standards and requirements. All publicly owned treatment works shall also have authority to seek or assess civil or criminal penalties in at least the amount of one thousand dollars a day for each violation by industrial users of pretreatment standards and requirements.
b. Pretreatment standards and requirements which will be enforced through these remedies will include the duty to allow or carry out inspections, entry, or monitoring activities; any rules, regulations, or orders issued by the publicly owned treatment works; any requirements set forth in individual control mechanisms issued by the publicly owned treatment works; or any reporting requirements imposed by the publicly owned treatment works or state or federal regulations. The publicly owned treatment works shall have authority and procedures after informal notice to the discharger immediately and effectively to halt or prevent any discharge of pollutants to the publicly owned treatment works which reasonably appears to present an imminent endangerment to the health or welfare of persons. The publicly owned treatment works shall also have authority and procedures which shall include notice to the affected industrial users and an opportunity to respond to halt or prevent any discharge to the publicly owned treatment works which presents or may present an endangerment to the environment or which threatens to interfere with the operation of the publicly owned treatment works.
7. Comply with the confidentiality requirements set forth in subsection 4 of section 33-16-01.1-11.
Procedures. The publicly owned treatment works shall develop and implement procedures to ensure compliance with the requirements of a pretreatment program. At a minimum, these procedures shall enable the publicly owned treatment works to accomplish each of the following actions:
1. Identify and locate all possible industrial users which might be subject to the publicly owned treatment works pretreatment program. Any compilation, index, or inventory of industrial users made under this subsection shall be made available to the department or regional administrator upon request.
2. Identify the character and volume of pollutants contributed to the publicly owned treatment works by the industrial users which are subject to the publicly owned treatment works pretreatment program. This information shall be made available to the department or regional administrator upon request.
3. Notify industrial users which are subject to the publicly owned treatment works pretreatment program of applicable pretreatment standards and any applicable requirements under sections 204(b) and 405 of the Federal Water Pollution Control Act and subtitles C and D of the Resource Conservation and Recovery Act. Within thirty days of departmental approval of a significant industrial user's list (see "Significant industrial users"), notify each significant industrial user of its status as such and of all requirements applicable to it as a result of such status.
4. Receive and analyze self-monitoring reports and other notices submitted by industrial users in accordance with the self-monitoring requirements in section 33-16-01.1-12.
5. Randomly sample and analyze the effluent from industrial users and conduct surveillance activities in order to identify, independent of information supplied by industrial users, occasional and continuing noncompliance with pretreatment standards. Inspect and sample the effluent from each significant industrial user at least once a year, except as otherwise below:
a. Where the publicly owned treatment works has authorized the industrial user subject to a categorical pretreatment standard to forego sampling of a pollutant regulated by a categorical pretreatment standard in accordance with 40 CFR 403.12(e)(3), the publicly owned treatment works must sample for the waived pollutant at least once during the term of the categorical industrial user's control mechanism. In the event that the publicly owned treatment works subsequently determines that a waived pollutant is present or is expected to be present in the industrial user's wastewater based on changes that occur in the user's operations, the publicly owned treatment works must immediately begin at least annual effluent monitoring of the user's discharge and inspection.
b. Where the publicly owned treatment works has determined that an industrial user meets the criteria for classification as a nonsignificant categorical industrial user, the publicly owned treatment works must evaluate, at least once per year, whether an industrial user continues to meet the criteria in 40 CFR 403.3(v)(2).
c. In the case of industrial users subject to reduced reporting requirements under 40 CFR 403.12(e)(3), the publicly owned treatment works must randomly sample and analyze the effluent from industrial users and conduct inspections at least once every two years. If the industrial user no longer meets the conditions for reduced reporting in 40 CFR 403.12(e)(3), the publicly owned treatment works must immediately begin sampling and inspecting the industrial user at least once per year.
6. Evaluate, at least once every two years, whether each such significant industrial user needs a plan to control slug discharges. For purposes of this subsection, a slug discharge is any discharge of a nonroutine, episodic nature, including an accidental spill or a noncustomary batch discharge. The results of such activities shall be available to the department upon request. If the publicly owned treatment works decides that a slug control plan is needed, the plan shall contain, at a minimum, the following elements:
a. Description of discharge practices, including nonroutine batch discharges;
b. Description of stored chemicals;
c. Procedures for immediately notifying the publicly owned treatment works of slug discharges, including any discharge that would violate a prohibition under subsection 2 of section 33-16-01.1-02, with procedures for followup written notification within five days; and
d. If necessary, procedures to prevent adverse impact from accidental spills, including inspection and maintenance of storage areas, handling and transfer of materials, loading and unloading operations, control of plant site runoff, worker training, building of containment structures or equipment, measures for containing toxic organic pollutants (including solvents), and measures and equipment for emergency response.
7. Investigate instances of noncompliance with pretreatment standards and requirements, as indicated in the reports and notices required under section 33-16-01.1-12, or indicated by analysis, inspection, and surveillance activities. Sample collecting 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.
8. Comply with the public participation requirements of 40 CFR 25 in the enforcement of national pretreatment standards. These procedures shall include provision for at least annual public notification, in the largest daily newspaper published in the municipality in which the publicly owned treatment works is located, of industrial users which, at any time during the previous twelve months, were in significant noncompliance with applicable pretreatment requirements. For the purposes of this provision, an industrial user is in significant noncompliance if its violation meets one or more of the following criteria:
a. Chronic violations of wastewater discharge limits, defined here as those in which sixty-six percent or more of all of the measurements taken during a six-month period exceed by any magnitude a numeric pretreatment standard or requirement, including instantaneous limits, as defined by 40 CFR 403.3(I);
b. Technical review criteria violations, defined here as those in which thirty-three percent or more of all of the measurements for each pollutant parameter taken during a six-month period equal or exceed the product of a numeric pretreatment standard or requirement, including instantaneous limits, as defined by 40 CFR 403.3(I) limit multiplied by the applicable technical review criteria (equal to 1.4 for five-day biochemical oxygen demand, total suspended solids, fats, oil, and grease, and 1.2 for all other pollutants except pH);
c. Any other violation of a pretreatment standard or requirement as defined by 40 CFR 403.3(I) (daily maximum, long-term average, instantaneous limit, or narrative standard) that the control authority determines has caused, alone or in combination with other discharges, interference, or passthrough (including endangering the health of the publicly owned treatment works' personnel or the general public);
d. Any discharge of a pollutant that has caused imminent endangerment to human health, welfare, or to the environment or has resulted in the publicly owned treatment works' exercise of its emergency authority to halt or prevent such a discharge;
e. Failure to meet, within ninety days after the schedule date, a compliance schedule milestone contained in a local control mechanism or enforcement order for starting construction, completing construction, or attaining final compliance;
f. Failure to provide, within thirty days after the due date, required reports such as baseline monitoring reports, ninety-day compliance reports, periodic self-monitoring reports, and compliance schedule progress reports;
g. Failure to accurately report noncompliance; or
h. Any other violation or group of violations, which may include a violation of best management practices, which the control authority determines will adversely affect the operation or implementation of the local pretreatment program.
Funding. The publicly owned treatment works shall have sufficient resources and qualified personnel to carry out the authorities and procedures described in "Legal authority" and "Procedures." In some limited circumstances, funding and personnel may be delayed when the publicly owned treatment works has adequate legal authority and procedures to carry out these pretreatment program requirements, and a limited aspect of the pretreatment program does not need to be implemented immediately (see subsection 2 of section 33-16-01.1-06).
Local limits. The publicly owned treatment works shall develop local limits as required in section 33-16-01.1-03 or demonstrate that they are not necessary.
Enforcement response plan. The publicly owned treatment works shall develop and implement an enforcement response plan. This plan shall contain detailed procedures indicating how a publicly owned treatment works will investigate and respond to instances of an industrial user noncompliance. The plan shall, at a minimum:
1. Describe how the publicly owned treatment works will investigate the instances of noncompliance;
2. Describe the types of escalating enforcement responses the publicly owned treatment works will take in response to all anticipated types of industrial user violations and the time periods within which responses will take place;
3. Identify (by title) the official(s) responsible for each type of response; and
4. Adequately reflect the publicly owned treatment works primary responsibility to enforce all applicable pretreatment requirements and standards, as detailed in "Legal Authority" and "Procedures."
Significant industrial users. The publicly owned treatment works shall prepare a list of its significant industrial users. The list shall identify the criteria in subsection 17 of section 33-16-01.1-01 applicable to each industrial user and, for industrial users meeting the criteria in subdivision b of subsection 17 of section 33-16-01.1-01, shall also indicate whether the publicly owned treatment works has made a determination pursuant to subdivision c of subsection 17 of section 33-16-01.1-01 that such industrial user should not be considered a significant industrial user. The initial list shall be submitted to the department as a nonsubstantial modification pursuant to section 33-16-01.1-19. Modifications to the list shall be submitted to the department pursuant to subdivision a of subsection 1 of section 33-16-01.1-13.
A publicly owned treatment works that chooses to receive electronic documents must satisfy the requirements of 40 CFR part 3 (electronic reporting).
N.D. Admin Code app A