(1) Any POTW or combination of POTW's operated by the same authority with a total design flow greater than 5 million gallons per day (mgd) and receiving from industrial users pollutants which pass through or interfere with the operation of the POTW or are otherwise subject to pretreatment standards, is required to establish a POTW pretreatment program.   The department may require that a POTW with a design flow of 5 mgd or less develop a POTW pretreatment program if it is found that the nature or volume of the industrial influent, treatment process upsets, violations of POTW effluent limitations, contamination of municipal sludge, or other circumstances so warrant in order to prevent interference or pass through.

(2) A POTW which meets the criteria of this rule shall receive approval of a POTW pretreatment program no later than 3 years after the reissuance or modification of its MPDES permit. POTWs identified after July 1, 1983, as being required to develop a POTW pretreatment program under (1) of this rule shall develop and submit such a program for approval as soon as possible, but in no case later than one year after written notification from the department of such identification.   The POTW pretreatment program shall meet the criteria set forth in (6) of this rule and shall be administered by the POTW to ensure compliance by industrial users with applicable pretreatment standards and requirements.

(3) A POTW may develop an appropriate POTW pretreatment program any time before the time limit set forth in (2) of this rule.   The POTW's MPDES permit will be reissued or modified in accordance with ARM 17.30.1362 to incorporate the approved program conditions as enforceable conditions of the permit.

(4) If the POTW does not have an approved pretreatment program at the time the POTW's existing permit is reissued or modified, the reissued or modified permit must contain the shortest reasonable compliance schedule, not to exceed 3 years, for the approval of the legal authority, procedures, and funding required by (6) of this rule.

(5) The department may modify or revoke and reissue a POTW's permit in order to:

(a) put the POTW on a compliance schedule for the development of a POTW pretreatment program where the addition of pollutants into a POTW by an industrial user or combination of industrial users presents a substantial hazard to the functioning of the treatment works, quality of the receiving waters, human health, or the environment;

(b) coordinate the issuance of a CWA section 201 construction grant or loan issued under subchapter 3 of this chapter with the incorporation into a permit of a compliance schedule for POTW pretreatment program;

(c) incorporate an approved POTW pretreatment program in the POTW permit;

(d) incorporate a compliance schedule for the development of a POTW pretreatment program in the POTW permit;

(e) incorporate a modification of the permit approved under 75-5-402 and 75-5-403, MCA; or

(f) incorporate the removal credits established under ARM 17.30.1410.

(6) A POTW pretreatment program must meet the following legal requirements and include the following procedures.   These procedures must at all times be fully and effectively exercised and implemented:

(a) The POTW shall operate pursuant to legal authority enforceable in federal, state, or local courts which authorizes or enables the POTW to apply and to enforce the requirements of this rule, other rules adopted pursuant to 75-5-304, MCA, and 33 USC sections 1317 and 1342(b) (8) .   The authority may be contained in a statute, ordinance, or series of contracts or joint powers agreements which the POTW is authorized to enact, enter into or implement, and which are authorized by state law. At a minimum, this legal authority must enable the POTW to:

(i) deny or condition new or increased contributions of pollutants, or changes in the nature of pollutants, to the POTW by industrial users where such contributions do not meet applicable pretreatment standards and requirements or where such contributions would cause the POTW to violate its MPDES permit;

(ii) require compliance with applicable pretreatment standards and requirements by industrial users;

(iii) control, through permit, order, or similar means, the contribution to the POTW by each industrial user to ensure compliance with applicable pretreatment standards and requirements.   For industrial users identified under (b) below, this control must be achieved through permits or equivalent control mechanisms issued to each industrial user.   The control mechanisms must be enforceable and at minimum contain the following conditions:

(A) a statement of duration (in no case more than 5 years) ;

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

(C) effluent limits based on applicable general pretreatment standards of this subchapter, categorical pretreatment standards, local limits, and state and local law;

(D) 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 stated in this subchapter, categorical pretreatment standards, local limits, and state and local law;

(E) a statement of applicable civil and criminal penalties that may be assessed for violation of pretreatment standards and requirements, and any applicable compliance schedule.   A compliance schedule may not extend the compliance date beyond applicable federal deadlines;

(iv) require the development of a compliance schedule by each industrial user for the installation of technology required to meet applicable pretreatment standards and requirements;

(v) require the submission of all notices and self-monitoring reports from industrial users as are necessary to assess and assure compliance by industrial users with pretreatment standards and requirements, including the reports required in ARM 17.30.1414;

(vi) carry out all inspection, surveillance, and monitoring procedures necessary to determine, independent of information supplied by industrial users, compliance or noncompliance with applicable pretreatment standards and requirements by industrial users.   Representatives of the POTW shall be authorized to enter any premises of any industrial user in which a discharge source or treatment system is located or in which records are required to be kept under ARM 17.30.1414 to assure compliance with pretreatment standards.   Such authority must be at least as extensive as the authority provided under 33 USC section 1318;

(vii) obtain remedies for noncompliance by industrial users with any pretreatment standard and requirement.   A POTW shall be able to seek injunctive relief for noncompliance by industrial users with pretreatment standards and requirements. A POTW shall seek and assess civil and criminal penalties under authority which provides for a penalty of at least $1,000 per violation, and shall consider each day in which an industrial user violates a pretreatment standard or regulation to be a separate violation;

(viii) pretreatment requirements enforced through the remedies set forth in (vii) above include, but are not limited to, the duty to allow or carry out inspection entry or monitoring activities; any rules, regulations or orders issued by the POTW; or any reporting requirements imposed by the POTW or this subchapter.   The POTW shall have authority and procedures to immediately and effectively 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. The POTW 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 POTW which presents or may present danger to environment or which threatens to interfere with the operation of the POTW.   The department may seek judicial relief for noncompliance by industrial users when the POTW has acted to seek such relief but has sought a remedy or penalty which the department finds to be insufficient.   The procedures for notice to dischargers where the POTW is seeking ex parte temporary judicial injunctive relief are governed by applicable state or federal law and not by this provision, and must comply with the confidentiality requirements set forth in ARM 17.30.1419.

(b) The POTW shall develop and implement procedures to ensure compliance with the requirements of a pretreatment program.   At a minimum, these procedures must enable the POTW to:

(i) 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 rule must be made available to the department upon request;

(ii) identify the character and volume of pollutants contributed to the POTW by the industrial user or users identified under (i) above.   This information must be made available to the department upon request;

(iii) notify industrial users identified under (1) of this rule of applicable pretreatment standards and any other applicable requirements under sections 204(b) and 405 of the CWA and subtitles C and D of the Resource Conservation and Recovery Act (RCRA) ;

(iv) within 30 days of approval of a list of significant industrial users pursuant to (i) above, notify each industrial user of its status as an industrial user and of all requirements applicable to it as a result of its industrial user status;

(v) receive and analyze self-monitoring reports in accordance with the requirements of ARM 17.30.1414;

(vi) 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; and   evaluate, at least once every 2 years, whether each significant industrial user needs a plan to control slug discharges.   For purposes of this subsection, a slug discharge is a discharge of a non-routine, episodic nature, including an accidental spill or a non-customary batch discharge.   The results of these activities must be made available to the department upon request.   If the POTW decides that a slug control plan is needed, the plan must contain, at a minimum, the following elements:

(A) description of discharge practices, included non-routine batch discharges;

(B) description of stored chemicals;

(C) procedures for immediately notifying the POTW of slug discharges, including any discharge that would violate a prohibition under ARM 17.30.1406(2) , with procedures for followup written notification within 5 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 run-off, worker training, building of containment structures or equipment, measures for containing toxic organic pollutants (including solvents) , or measures and equipment for emergency response;

(vii) investigate instances of noncompliance with pretreatment standards and requirements, as indicated in the reports and notices required by ARM 17.30.1414, or indicated by analysis, inspection, and surveillance activities.   Sample-taking and analysis and the collection of other information must be performed with sufficient care to produce evidence admissible in enforcement proceedings or in judicial actions;

(viii) comply with all applicable public participation requirements of 40 CFR 25 in the enforcement of state pretreatment standards.   These procedures must insure that at least annually the public is notified in the largest daily newspaper published in the municipality in which the POTW is located of industrial users which, during the previous 12 months, were significantly violating applicable pretreatment standards or other pretreatment requirements.   For the purposes of this provision, an industrial user is in significant noncompliance if it:

(A) has chronic violations of wastewater discharge limits, defined here as those in which 66% or more of all of the measurements taken during a 6-month period exceed (by any magnitude) the daily maximum limit or the average limit for the same pollutant parameter;

(B) experiences technical review criteria (TRC) violations, defined here as those in which 33% or more of all of the measurements for each pollutant parameter taken during a 6-month period equal or exceed the product of the daily maximum limit or the average limit multiplied by the applicable TRC (TRC=1.4 for BOD, TSS, fats, oil, and grease, and 1.2 for all other pollutants except pH) ;

(C) otherwise violates 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 endangering the health of POTW personnel or the general public) ;

(D) discharges 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 (vii) above to halt or prevent such a discharge;

(E) fails 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;

(F) fails 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;

(G) fails to accurately report noncompliance; or

(H) otherwise causes violations, or a group of violations that the control authority determines will adversely affect the operation or implementation of the local pretreatment program.

(c) The POTW shall have sufficient resources and qualified personnel to carry out all required authorities and procedures. In some limited circumstances, funding and personnel may be delayed by the department when the POTW 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.

(d) POTWs shall develop local limits as required in ARM 17.30.1406(3) (a) , or demonstrate that they are not necessary.

(e) The POTW shall develop and implement an enforcement response plan.   This plan must contain detailed procedures indicating how a POTW will investigate and respond to instances of industrial user noncompliance.   The plan must, at a minimum:

(i) describe how the POTW will investigate instances of noncompliance;

(ii) 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;

(iii) identify by title the official or officials responsible for each type of response;

(iv) adequately reflect the POTW's primary responsibility to enforce all applicable pretreatment requirements and standards, as detailed in (a) and (b) above.

(7) The POTW shall prepare a list of its industrial users meeting the criteria in ARM 17.30.1402(11) (b) .   The list shall identify the criteria in ARM 17.30.1402(11) (b) applicable to each industrial user and, for industrial users meeting the criteria in ARM 17.30.1402(11) (b) (i) , shall also indicate whether the POTW has made a determination pursuant to ARM 17.30.1402(11) (b) (i) .   Discretionary designations or redesignations by the department are deemed to be approved by the department 90 days after submission of the list or modifications to the list, unless the department determines that a modification is in fact a substantial modification.

(8) The board hereby adopts and incorporates by reference 33 USC section 1317 (toxic and pretreatment effluent standards) ; 33 USC section 1318 (inspections, monitoring and entry) ; 33 USC 1342(b) (8) (notice of variation of pollutants into POTWs) ; and 40 CFR part 25 (public participation in programs) (July 1, 1991) .   Copies of these materials are available from the Department of Environmental Quality, PO Box 200901, Helena, MT 59620-0901.