4 Regulatory Requirement 40 CFR § 403.8(f)(1)(iii) Control through permit, order or similar means, the contribution from each IU.Control through permit or equivalent individual control mechanism or general permit the contribution from each SIU.
5 Adequacy of Control Mechanisms Mechanism Yes NoContractsLocal regulationsAdministrative ordersPermits
6 Non-Significant CIU and Middle-Tier CIU Requires Control Mechanism?Min CIU Reporting RequirementsMin POTW Inspection/Sampling RequirementsNSCIUsNo (as long as it meets criteria)Certification. Once per yearNot required (POTW will have to verify the CIU continues to meet applicability criteria).Middle Tier CIUsYesOnce per year.Once per two yearsStandard CIUsOnce per six monthsOnce per yearRequires rule change!!!
7 Who to Permit/Control Significant Industrial Users (SIUs) - Required Categorical Industrial Users (CIUs)Non-categorical SIUs0 Dischargers (discussed later)
8 Who to Permit/ControlNon-significant industrial users – Typically BMPs are applied to these (dental, photo processors, dry cleaners, etc). Approved BMPs may include controls that require issuance of a general permit or control through other enforceable mechanisms.Waste haulers – Unless these are SIUs, the POTW has the option. At a minimum, the POTW should require manifests and have a sampling program in-place.
9 Who to Permit/ControlNon-significant industrial users – Typically BMPs are applied to these (dental, photo processors, dry cleaners, etc). Approved BMPs may include controls that require issuance of a general permit or control through other enforceable mechanisms.Waste haulers – Unless these are SIUs, the POTW has the option. At a minimum, the POTW should require manifests and have a sampling program in-place.
10 Industrial User is Identified POTW requires IU to submit permit applicationApplicationcomplete?Requestadditional dataNoYesSite visit/Inspection (critical. Take camera)
11 revise draft permit, if necessary POTW drafts permitSend draft permit to applicant for review (preferable to meet with IU). Follow POTW requirements for requesting comments from the IU and other interested parties.Consider comments andrevise draft permit, if necessaryPOTW Issues permit
13 Legal Concepts Specific Notice is Required: Permit vs. Legal Authority Statute of Limitations: 3 years Record Retention vs. 5 Year US CodesPermit as a ShieldEnforceability: Preponderance of the Evidence vs.. Beyond a reasonable doubt.
14 Sources of Data Permit applications Critical to assessing nature of dischargeLocal regulations require application submissionServes as formal request to dischargeHold the IU accountable for the information provided
15 Contents of Permit Applications PretreatmentFacility operationsSpill prevention“Non-discharged” wastesCertification and authorized signatureStored Chemicals – Certificate of AnalysisGeneral informationBusiness activityWater usageSewer informationWastewater discharge informationCharacteristics of dischargeAny requests for waivers, non-sign CIU designation and pollutants not present.
16 Reviewing the Data Completeness Blank spaces vs.. "not applicable“ – Require that all spaces are filled in. No blanks.Obtaining a response for minor deficiencies – Always get in writing with another certification.Major deficiencies – Reject application.
17 Reviewing the Data (continued) Common deficienciesFacility layout – not provided or incompleteDischarge data (a table for priority pollutants with columns for “present”, “absent” and “no data”)Proper signatory official or application is not signed and/or dated.
18 Verification of Data: Review of Background Information Current permit and fact sheetPrevious permit applicationBaseline monitoring report (BMR)Wastewater survey questionnairesInspection reportsSampling dataSelf-monitoring reportsNotificationsEnforcement actions
20 Legal Concepts Specific Notice is Required: Permit vs. Legal Authority Statute of Limitations: 3 years Record Retention vs. 5 Year US CodesPermit as a ShieldEnforceability: Preponderance of the Evidence vs.. Beyond a reasonable doubt.
21 Fact Sheets: Documentation of Permit Decisions Permanent recordUseful in the event of permit challengeStreamline future permit re-issuanceKeep Fact Sheet up-to-date if permit modifications occur!!
22 Fact Sheets: Contents Description of the IU (Part and subpart) Type and quantity of the dischargeRationale for permit limitsRationale for IU specific conditionsDerivation of limits
23 Maintaining Permit Records Conversations, correspondence, and documentsPermittee, public, Control Authority, and Approval Authority
24 Typical Information is included plus backup contacts for IU contact. Category and Year facility became an indirect user.
25 Establish what core and regulated processes are present Establish hours of operation AND hours when treatment system operates (or specify both are the same – from application).
26 Strongly suggest looking at Google Earth or similar and including aerial photo if up-to-date.
29 Important to accurately reflect how they discharge wastewater. This section describes the operator procedures that the permit is being written around
30 Document volumes of tanks and where they are located.
31 Document what is in each tank Document what is in each tank. It would also be good to note the size of the tank, whether or not there is a drain in the tank, and how often waste is discharged or changed out.
32 Pictures will help you remember and will document what is there.
33 A Fact Sheet necessity. Is it accurate. Any new piping A Fact Sheet necessity. Is it accurate? Any new piping? Any outfall or bypass valves not shown?
34 More info on treatment Typical application of categorical standards and local limits. Discuss how each limit was derived.
35 It is good to evaluate all potential TTOs It is good to evaluate all potential TTOs. However, use of a MSDS may not identify TTOs. Only chemicals that are 1%-5% or greater are required to be listed on a MSDS. Ask for a certificate of analysis if you suspect TTOs in a raw reagent.
36 Pictures document outfall locations and monitoring equipment Pictures document outfall locations and monitoring equipment. Region 8 DOES NOT endorse the use of a monitoring point located within a facility. When identified during an audit we will visit the IU and see if we are allowed immediate access. Some IUs also have an external monitoring point that can be used by the POTW and is clearly stated in the permit.
37 Typical listing of monitoring frequency and sample type, Establishing rationale for monitoring frequencies and sample type.
39 Legal ConceptsPermits should be viewed as an enforceable stand-alone document
40 Legal Concepts Specific Notice is Required: Permit vs. Legal Authority Statute of Limitations: 3 years Record Retention vs. 5 Year US CodesPermit as a ShieldEnforceability: Preponderance of the Evidence vs.. Beyond a reasonable doubt.
41 Structure and Wording Affect on enforceability Dos: Use specific languageDevelop concise and complete conditions and requirementsWrite clearly and simplyAvoid conflicting language
42 Common Errors and Omissions Improper calculation of standardsFailure to:Include all/specific requirementsRegulate all discharge pointsAccount for predictable variationsApply all pollutant limits (local limit/cat stds)
43 Common Errors and Omissions Applying Bypass provisions that are less stringent than Federal provisions (also Upsets and Confidentiality).Failure to include:Change in Discharge ReportingLimits Included with NO monitoring requirements.IU to Report within 24 hours (when data indicating a violation becomes available – lab reports, flow/pH data)
44 Permit ContentsName and address of the permittee (Facility address that is being permitted).Citation of POTW legal authorityReapplication requirements (either reapply by a date or within x days prior to permit expiration)Effective/Expiration DatesSignature of Control Authority (not after permit effective date)
45 Permit Contents Statement of Non-Transferability Outfalls/Monitoring PointsEffluent limits (Local Limits, Categorical Standards and Specific Prohibitions)Specific Best Management Practices (BMPs)
46 Permit ContentsApproved Best Management Practices (BMPs) must be included where necessary. These are equivalent to local limits and are Pretreatment Standards.BMPs means schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to implement the prohibitions listed in § 403.5(a)(1) and (b). BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw materials storage.
47 Permit ContentsSelf-Monitoring Requirements (frequency/sample type/chain-of-custody required).Use terminology such as Once per month, Once per 6Months, Twice per Week, etc. DO NOT use “biweekly”,“bimonthly”, “Twice per Year”, etc.Biweekly can be interpreted both as “Once per TwoWeeks” and “Twice per Week”
48 Reporting vs. Monitoring Frequency Keep the reporting frequency in line with the monitoring frequency. If they monitor monthly, it is not advisable to have the IU reporting once per 6 months. This can make the POTW appear to be failing to enforce in a timely manner, especially where the IU fails to identify and report violations within 24 hours.
49 Permit ContentsReporting Requirements (Including BMP Compliance Reporting). Example language “The permittee shall submit the required monitoring report no later than the 28th of the month following the month in which the monitoring was required.”Sampling PeriodReporting Due DateJanuary 1 to March 31April 15April 1 to June 30July 15July 1 to September 30October 15October 1 to December 31January 15
50 Reporting and Chain-of-Custody Things the Permittee should be reporting: Concentration/measurement for all parameters, date(s) of sample collection, person taking sample, flow information, pH records, certification of pH and flow calibration, copies of all manifests for off-site disposal of liquid wastes, signatory and other certifications, analytical methods used, method detection limits, date of analysis, and laboratory certification (name of lab).
51 Permit Contents Signatory Certification Language TTO Certification Language (for applicable CIUs)Permit Revocation/Suspension ProvisionsPermit Modification Provisions24-hour notification of becoming aware of a violation. This notification must be documented by POTW.
52 Permit ContentsAutomatic 30-day retest for pollutant(s) that show violations.Prohibition on DilutionDefinitionsGeneral/Specific ProhibitionsRight of Entry (Suggest references to “during reasonable times” be removed from legal authority and permits.
53 Permit Contents Records Retention (3 vs. 5 years) Administrative, Civil and/or Criminal Penalty Provisions. Region 8 suggests POTWs adopt administrative penalty authority wherever possible.Requirement to use 40 CFR Part 136 approved analytical methods and holding times/conditionsCollection of Representative Samples
54 Permit Contents Immediate Notification of Slug Discharges Slug Discharge Plans (where required)Additional Monitoring to be reportedCompliance SchedulesPretreatment Facilities/Outfall Maintenance RequirementsNotification of Changed DischargeBypass Provisions (if allowed)
55 Permit ContentsHazardous Waste Notification (403.12(p)). All IUs are required to comply with this provision.Permit re-opener clauseAccidental Discharge ReportingDuty to Mitigate Adverse ImpactsConfidentiality (403.14)Upsets (403.16)Other Conditions as Required by POTW
57 What is the Problem????Many IUs, especially metal finishers want to be permitted as zero dischargers to get out from under rigorous permitting and monitoring requirements.Some can achieve zero discharge. Those hard chrome platers that use their rinse waters for make-up water may be able to achieve zero discharge.
58 What is the Problem????When a violation occurs, it is often an illegal discharge to the POTW.These illegal discharges do not generally fall into the realm of “civil” violations. The discharge has usually required the CIU to actively take actions to make a discharge happen.
59 What is the Problem????Prosecuting a criminal case requires that the permit is clear and does not introduce confusing requirements and language suggesting that the IU can discharge.Remember: Civil: Preponderance of the evidence. Criminal: Beyond a reasonable doubt. A poorly written permit may introduce a reasonable doubt.
60 Zero Discharge Permits Fact Sheet (clear description of permit, operations, and zero discharge status). Critical that the POTW reflect what the permittee disclosed in the application. Provide fact sheet to permittee with the permit.Permit Effective DatePermit Expiration DateLegal Authority CiteStatement of non-transferability
61 Zero Discharge Permits Specific prohibition on discharge of any non-domestic wastewater. Absolutely no section on monitoring requirements, sample analytical methods, re-sampling, etc).Reapplication RequirementsConfidentialityRequirement to maintain facility to achieve zero discharge.
62 Zero Discharge Permits Notification of any changes, spills, etc.Appropriate IU reporting requirements (No discharge certification, etc)Right of Entry (Do not have language “at reasonable times”. If illegal dumping is occurring, then accessing the property at midnight for sample collection may be reasonable).Records retention
63 Zero Discharge Permits Civil and/or Criminal Penalty provisionsPermit Modification referenceRevocation/Termination of permit conditionsSignature Certification RequirementsNotification of changes in practices and/or operations (NOT a notification of changed discharge)
64 Zero Discharge Permits Other Conditions to Consider:Specific Storm Sewer Discharge ProhibitionMaintain and Report all off-site waste disposal (manifests, trip tickets).Report all water consumption.
65 A poorly written or confusing permit will make enforcement more difficult. If a judge or jury cannot understand the permit, it is less likely that the POTW will be successful in prosecuting the violator.
66 Included is an example Region 8 Zero Discharge Permit Included is an example Region 8 Zero Discharge Permit. This was constructed from permits provided by POTWs in Region 8 and questions that have come up in various court cases.