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Permitting Industrial Users Curt McCormick EPA Region 8 303-312-6377.

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Presentation on theme: "Permitting Industrial Users Curt McCormick EPA Region 8 303-312-6377."— Presentation transcript:

1 Permitting Industrial Users Curt McCormick EPA Region

2 Agenda 1. Process 2. Permit Applications 3. Permit Fact Sheets 4. Permits 5. Zero Discharger Permits

3 Permitting Process

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, 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. Control through permit or equivalent individual control mechanism or general permit the contribution from each SIU.

5 Adequacy of Control Mechanisms MechanismYesNo MechanismYesNo Contracts 4 Contracts 4 Local regulations 4 Local regulations 4 Administrative orders 4 Administrative orders 4 Permits 4 Permits 4

6 Non-Significant CIU and Middle-Tier CIU Requires Control Mechanis m? Min CIU Reporting Requirements Min POTW Inspection/ Sampling Requirements NSCIUs No (as long as it meets criteria) Certification. Once per year Not required (POTW will have to verify the CIU continues to meet applicability criteria). Middle Tier CIUs Yes Once per year. Once per two years Standard CIUs Yes Once per six months Once per year

7 Who to Permit/Control Significant Industrial Users (SIUs) - Required Significant Industrial Users (SIUs) - Required Categorical Industrial Users (CIUs) Categorical Industrial Users (CIUs) Non-categorical SIUs Non-categorical SIUs 0 Dischargers (discussed later) 0 Dischargers (discussed later)

8 Who to Permit/Control Non-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. Non-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. 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/Control Non-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. Non-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. 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 application Applicationcomplete? Site visit/Inspection (critical. Take camera) Request additional data Yes No

11 POTW drafts permit Send draft permit to applicant for review (preferable to meet with IU). Follow POTW requirements for requesting comments from the IU and other interested parties. POTW Issues permit Consider comments and revise draft permit, if necessary

12 Permit Applications

13 Legal Concepts  Specific Notice is Required: Permit vs. Legal Authority  Statute of Limitations: 3 years Record Retention vs. 5 Year US Codes  Permit as a Shield  Enforceability: Preponderance of the Evidence vs.. Beyond a reasonable doubt.

14 Sources of Data l Permit applications Critical to assessing nature of discharge Critical to assessing nature of discharge Local regulations require application submission Local regulations require application submission Serves as formal request to discharge Serves as formal request to discharge Hold the IU accountable for the information provided Hold the IU accountable for the information provided

15 Contents of Permit Applications l General information l Business activity l Water usage l Sewer information l Wastewater discharge information l Characteristics of discharge l Pretreatment l Facility operations l Spill prevention l “Non-discharged” wastes l Certification and authorized signature l Stored Chemicals – Certificate of Analysis l Any 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. 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. Obtaining a response for minor deficiencies – Always get in writing with another certification. Major deficiencies – Reject application. Major deficiencies – Reject application.

17 Reviewing the Data ( continued) l Common deficiencies Facility layout – not provided or incomplete Facility layout – not provided or incomplete Discharge data (a table for priority pollutants with columns for “present”, “absent” and “no data”) Discharge 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. Proper signatory official or application is not signed and/or dated.

18 Verification of Data: Review of Background Information l Current permit and fact sheet l Previous permit application l Baseline monitoring report (BMR) l Wastewater survey questionnaires l Inspection reports l Sampling data l Self-monitoring reports l Notifications l Enforcement actions

19 Documenting Permit Decisions

20 Legal Concepts  Specific Notice is Required: Permit vs. Legal Authority  Statute of Limitations: 3 years Record Retention vs. 5 Year US Codes  Permit as a Shield  Enforceability: Preponderance of the Evidence vs.. Beyond a reasonable doubt.

21 Fact Sheets: Documentation of Permit Decisions  Permanent record  Useful in the event of permit challenge  Streamline future permit re- issuance  Keep 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 discharge  Rationale for permit limits  Rationale for IU specific conditions  Derivation of limits

23 Maintaining Permit Records  Conversations, correspondence, and documents  Permittee, 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.

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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. 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? 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. 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. 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.

38 Industrial User Permits

39 Legal Concepts Permits should be viewed as an enforceable stand-alone document Permits 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 Codes  Permit as a Shield  Enforceability: Preponderance of the Evidence vs.. Beyond a reasonable doubt.

41 Structure and Wording – Affect on enforceability – Dos: 4 Use specific language 4 Develop concise and complete conditions and requirements 4 Write clearly and simply 4 Avoid conflicting language

42 Common Errors and Omissions Improper calculation of standards Improper calculation of standards Failure to: Failure to: Include all/specific requirements Include all/specific requirements Regulate all discharge points Regulate all discharge points Account for predictable variations Account for predictable variations Apply all pollutant limits (local limit/cat stds) Apply 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). Applying Bypass provisions that are less stringent than Federal provisions (also Upsets and Confidentiality). Failure to include: Failure to include: Change in Discharge Reporting Change in Discharge Reporting Limits Included with NO monitoring requirements. Limits Included with NO monitoring requirements. IU to Report within 24 hours (when data indicating a violation becomes available – lab reports, flow/pH data) IU to Report within 24 hours (when data indicating a violation becomes available – lab reports, flow/pH data)

44 Permit Contents Name and address of the permittee (Facility address that is being permitted). Name and address of the permittee (Facility address that is being permitted). Citation of POTW legal authority Citation of POTW legal authority Reapplication requirements (either reapply by a date or within x days prior to permit expiration) Reapplication requirements (either reapply by a date or within x days prior to permit expiration) Effective/Expiration Dates Effective/Expiration Dates Signature of Control Authority (not after permit effective date) Signature of Control Authority (not after permit effective date)

45 Permit Contents Statement of Non-Transferability Statement of Non-Transferability Outfalls/Monitoring Points Outfalls/Monitoring Points Effluent limits (Local Limits, Categorical Standards and Specific Prohibitions) Effluent limits (Local Limits, Categorical Standards and Specific Prohibitions) Specific Best Management Practices (BMPs) Specific Best Management Practices (BMPs)

46 Permit Contents Approved Best Management Practices (BMPs) must be included where necessary. These are equivalent to local limits and are Pretreatment Standards. Approved 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. 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 Contents Self-Monitoring Requirements (frequency/sample type/chain-of-custody required). Self-Monitoring Requirements (frequency/sample type/chain-of-custody required). Use terminology such as Once per month, Once per 6 Months, Twice per Week, etc. DO NOT use “biweekly”, “bimonthly”, “Twice per Year”, etc. Biweekly can be interpreted both as “Once per Two Weeks” 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. 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 Contents Reporting Requirements (Including BMP Compliance Reporting). Example language “The permittee shall submit the required monitoring report no later than the 28 th of the month following the month in which the monitoring was required.” Reporting Requirements (Including BMP Compliance Reporting). Example language “The permittee shall submit the required monitoring report no later than the 28 th of the month following the month in which the monitoring was required.” Sampling Period Reporting Due Date January 1 to March 31 April 15 April 1 to June 30 July 15 July 1 to September 30 October 15 October 1 to December 31 January 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). 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 Signatory Certification Language TTO Certification Language (for applicable CIUs) TTO Certification Language (for applicable CIUs) Permit Revocation/Suspension Provisions Permit Revocation/Suspension Provisions Permit Modification Provisions Permit Modification Provisions 24-hour notification of becoming aware of a violation. This notification must be documented by POTW. 24-hour notification of becoming aware of a violation. This notification must be documented by POTW.

52 Permit Contents Automatic 30-day retest for pollutant(s) that show violations. Automatic 30-day retest for pollutant(s) that show violations. Prohibition on Dilution Prohibition on Dilution Definitions Definitions General/Specific Prohibitions General/Specific Prohibitions Right of Entry (Suggest references to “during reasonable times” be removed from legal authority and permits. Right of Entry (Suggest references to “during reasonable times” be removed from legal authority and permits.

53 Permit Contents Records Retention (3 vs. 5 years) Records Retention (3 vs. 5 years) Administrative, Civil and/or Criminal Penalty Provisions. Region 8 suggests POTWs adopt administrative penalty authority wherever possible. 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/conditions Requirement to use 40 CFR Part 136 approved analytical methods and holding times/conditions Collection of Representative Samples Collection of Representative Samples

54 Permit Contents Immediate Notification of Slug Discharges Immediate Notification of Slug Discharges Slug Discharge Plans (where required) Slug Discharge Plans (where required) Additional Monitoring to be reported Additional Monitoring to be reported Compliance Schedules Compliance Schedules Pretreatment Facilities/Outfall Maintenance Requirements Pretreatment Facilities/Outfall Maintenance Requirements Notification of Changed Discharge Notification of Changed Discharge Bypass Provisions (if allowed) Bypass Provisions (if allowed)

55 Permit Contents Hazardous Waste Notification (403.12(p)). All IUs are required to comply with this provision. Hazardous Waste Notification (403.12(p)). All IUs are required to comply with this provision. Permit re-opener clause Permit re-opener clause Accidental Discharge Reporting Accidental Discharge Reporting Duty to Mitigate Adverse Impacts Duty to Mitigate Adverse Impacts Confidentiality (403.14) Confidentiality (403.14) Upsets (403.16) Upsets (403.16) Other Conditions as Required by POTW Other Conditions as Required by POTW

56 Zero Discharge Permit

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. 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. 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. 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. 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. 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. 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. 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 Date Permit Effective Date Permit Expiration Date Permit Expiration Date Legal Authority Cite Legal Authority Cite Statement of non-transferability Statement 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). Specific prohibition on discharge of any non-domestic wastewater. Absolutely no section on monitoring requirements, sample analytical methods, re- sampling, etc). Reapplication Requirements Reapplication Requirements Confidentiality Confidentiality Requirement to maintain facility to achieve zero discharge. Requirement to maintain facility to achieve zero discharge.

62 Zero Discharge Permits Notification of any changes, spills, etc. Notification of any changes, spills, etc. Appropriate IU reporting requirements (No discharge certification, 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). 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 Records retention

63 Zero Discharge Permits Civil and/or Criminal Penalty provisions Civil and/or Criminal Penalty provisions Permit Modification reference Permit Modification reference Revocation/Termination of permit conditions Revocation/Termination of permit conditions Signature Certification Requirements Signature Certification Requirements Notification of changes in practices and/or operations (NOT a notification of changed discharge) Notification 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 Prohibition Specific Storm Sewer Discharge Prohibition Maintain and Report all off-site waste disposal (manifests, trip tickets). Maintain and Report all off-site waste disposal (manifests, trip tickets). Report all water consumption. 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. This was constructed from permits provided by POTWs in Region 8 and questions that have come up in various court cases.


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