Multijurisdictional Agreements Good Morning, I am Sam Jinkins Sam Jinkins Environmental Specialist III Florida DEP

Multijurisdictional Programs Programs with extrajurisdictional industrial users are considered multijurisdictional programs Extrajurisdictional industrial users: Located outside the control authority’s area of regulatory authority or jurisdiction Discharge to the Control Authority’s WWTF A CA must have the legal authority to implement and enforce its approved pretreatment program [Rule 62-625.500(2)(a), F.A.C.]. Multijurisdictional programs are industrial pretreatment programs with extrajurisdictional industrial users. Extrajurisdictional industrial users are not located within the area where the control authority has legal jurisdiction to enforce its pretreatment standards And their discharge is treated by to the control authority’s wastewater treatment facility, In accordance with the Florida Administrative Code, Control authorities with multijurisdictional programs must establish legally binding procedures to ensure that extajurisdictional industrial users are subject to enforceable pretreatment standards.

(Contributing Jurisdiction) Scenario 1 City A (Control Authority) City B (Contributing Jurisdiction) Extrajurisdictional Industrial Users This is typical multijurisdictional program, in this scenario, City A, has a multiljurisdictional program since: It is the control authority and is operating a wastewater treatment facility that accepts discharge from the extrajurisdictional industrial users located in the contributing jurisdiction of City B. In this case, only City B would have legal jurisdiction over the extrajurisdictional industrial users. WWTF Control Authority Jurisdiction Contributing Jurisdiction

Extrajurisdictional Industrial User Scenario 2 City B City A City C In this scenario, A regional sewer authority has been established. The regional sewer authority has been empowered by the state legislation to fully implement and enforce the approved pretreatment program in Cities A, B and C. However, notice that there is an extrajurisdictional industrial user located outside the legal jurisdiction and boundary of the regional sewer authority; therefore, the regional sewer authority would be a multijurisdictional program. In both this and the first scenario, these multijurisdictional programs may need a multijurisdictional agreement or MJA to ensure that the pretreatment standards are applied to the extrajurisdictional industrial users. WWTF Extrajurisdictional Industrial User WWTF Boundary of Regional Sewer Authority

MJA Overview Control Authorities (CAs) have direct authority over extrajurisdictional users Implementing the approved pretreatment program using the legal authority of more than one jurisdiction Common deficiencies in multijurisdictional agreements Alternatives to multijurisdictional agreements today we are going to review: when the CA has direct authority over extrajurisdictional users and multijurisdictional agreements are not needed. Implementing the pretreatment program when a multijurisdictional agreement is necessary and the elements of a multijurisdictional agreement Some common deficiencies in multijurisdictional agreements and obtaining the cooperation of contributing jurisdictions to correct any deficiencies. and finally we will explore a couple of alternatives to multijurisdictional agreements.

MJA When a MJA is Not Needed There are 3 instances where the control authority may have direct authority over extrajurisdictional industrial users.

Statutory Control (Municipalities) Control authority applies local law under state statute Chapters 180.02 and 163.01, F.S. Applies only to cities, towns, or villages Excludes IUs within incorporated areas The first is Statutory Control, this is where the control authority applies its local law to extrajurisdictional industrial users under Florida statutes. However, this only applies to the approved programs in cities, towns or villages and excludes extrajurisdictional industrial users within other incorporated jurisdictions. One example of this is when: A control authority extends its collection system into an unincorporated area of the County, and an extrajurisdictional industrial user directly connects to that collection system. In this case the control authority will have statutory control over the Extrajurisdictional industrial user and a multijurisdictional agreement is not needed. MJA

Districts and Authorities Special sewer districts and authorities Can cover the entire service area Created by state enactment Must be granted power to enact and enforce the SUO The second example of a control authority having direct control is a special district or authority Special sewer districts and authorities are created by state enactment Their jurisdiction can cover the entire service area. A multijurisdictional agreement is not needed provided they have been granted the power to enact and enforce a sewer use ordinance. MJA

Annexation MJA Complete annexation Utility annexation Check with municipal attorneys Annexation of an unincorporated area by a municipal control authority is the last example of direct control. Annexation gives the control authority the ability to directly regulate industrial users outside of the city limits. There are two types of annexation, complete annexation and Utility annexation where any utility, including water and sewer service, may be annexed. You should consult your municipal attorneys to determine areas that are annexed. Annexation gives the control authority direct control over industrial users within the annexed area and a multijurisdictional agreement is not needed. MJA

Need MJA ? When a MJA is Needed When do you need a multijurisdictional Agreement?

Use of Legal Authority of More Than One Jurisdiction Unable to extend control into other jurisdictions - Contributing jurisdictions can either: delegate to the control authority administer program for all IUs agree to have the control authority enforce the program if the contributing jurisdiction fails delegate to a third party need MJA Multijurisdictional agreements must be used when a control authority can not extend its legal jurisdiction to all extrajurisdictional industrial users discharging to its wastewater treatment facility. When developing a multijurisdictional agreement with the contributing jurisdiction, the contributing jurisdiction can: agree to delegate its legal authority to the control authority. or agree to be responsible for administering the approved pretreatment program against all industrial users located within their jurisdiction Allow the control authority to enforce the program if the contributing jurisdiction fails to do so. Or delegate to a third party to which the control authority has delegated the responsibility for program administration. The option that the Department sees most often is that the contributing jurisdiction delegates to the control authority

Multijurisdictional Agreements Each party must develop and maintain legal authority to implement and enforce the program For each IU, some entity must have the responsibility to implement and enforce the program Who is responsible? There are Two basic concepts that should be kept in mind when negotiating or reviewing your multijurisdictional agreements. First, all contributing jurisdictions must agree to develop and maintain the legal authority necessary to implement and enforce the approved pretreatment program Second, For each industrial user some entity must have the responsibility to implement and enforce the approved pretreatment program. The sewer use ordinance of the contributing jurisdiction must be enforced by the contributing jurisdiction, the control authority or by both. Any multijurisdictional agreement must be specific as to which party is responsible for implementing and enforcing the approved pretreatment program standards and requirements.

Elements of a MJA Sewer Use Ordinance Local Limits Control Mechanism Transfer of Records Right of Entry/Inspection and Sampling Enforcement Remedies for Breach Residential Areas An effective multijurisdictional agreement should address these eight elements The contributing jurisdictions must agree to adopt a sewer use ordinance that is at least as stringent than the Control authority’s ordinance. The contributing jurisdiction must also adopt the control authority’s local limits or agree to specific maximum total mass loading of pollutants to the wastewater treatment facility. The agreement should indicate who is responsible for issuing the control mechanisms or permits . IF joint control mechanisms are to be issued, the agreement should indicate which party will take the lead in preparing the draft permit. The contributing jurisdiction must agree to provide the Control authority access to all pretreatment program records. The agreement should also provide for notice to the Control authority of key activities, such as enforcement actions and permit issuance. The contributing jurisdiction must grant the control authority the power to enter into the facilities of industrial users to verify compliance with pretreatment standards and requirements. The agreement must establish the procedures and responsibility for conducting inspections and other compliance evaluation activities. The agreement must indicate who is responsible for the enforcement of the pretreatment program within the contributing jurisdiction. If the contributing jurisdiction is responsible for enforcement the ordinance the agreement should specify whether the control authority can enforce if the contributing jurisdiction fails to do so. The control authority should ensure that there are remedies for breach in the agreement. The agreement should indicated that the control authority has the right to take legal action to enforce the terms of the agreement and/or to take action directly against noncompliant industrial users in the event that the contributing municipality is unable or unwilling to do so. IF the contributing jurisdiction has only residential users: the agreement should state that no industrial users are currently located within the contributing jurisdiction and that no industrial users shall be allowed to operate without prior notification to the control authority. The agreement should also state that a new multijurisdictional agreement must be adopted before any extrajurisdictional industrial users are allowed to discharge.

Delegation of Authority to CA Minimizes problems of administration CA acts as agent of jurisdictions Jurisdictions maintain adequate legal authority Multijurisdictional agreements must specify whether the control authority or the contributing jurisdiction is responsible for implementation of the approved pretreatment program. If the control authority it is responsible for implementation it can minimize administration problems because the control authority carries out program implementation and enforcement on behalf of and under the police powers of the contributing jurisdiction. Note that the contributing jurisdiction is still responsible to adopt and maintain a sewer use ordinance that is at least as stringent as the control authorities Sewer use ordinance.

Jurisdictions Implement and Enforce Agreement details distribution of responsibility CA remains liable CA has “overfiling” ability CA could co-issue IU permits When the contributing jurisdictions will implement and enforce the approved pretreatment program within its jurisdiction, the multijurisdictional agreement must specify, in detail, the distribution of responsibility. Regardless of the terms in the agreement, the control authority remains liable for program implementation and enforcement. In this case, the multijurisdictional agreement and contributing jurisdiction’s sewer use ordinance should give the control authority the ability to “overfile” or enforce violations should the contributing jurisdiction fail to do so. If it is not possible for the contributing jurisdiction to delegate their enforcement authority, the control authority could co-issued the industrial user permits

Common Deficiencies in Multijurisdictional Agreements Multijurisdictional agreements (MJAs) predate regulations Some MJAs are limited to: capacity issues fees ownership & maintenance of lines fiscal responsibility of future expansions pollutant limits on total discharge duration of MJA Some control authorities with multijurisdictional programs have already entered into multijurisdictional agreements with municipal entities that have extrajurisdictional industrial users. The Department has observed several existing agreements that pre-date pretreatment program implementation, and they are often limited to very specific conditions like: capacity, fees, ownership and maintenance of lines, future expansions , total discharge of pollutants from the contributing jurisdiction and duration of the agreement. If your existing multijurisdictional agreement is limited to these types of conditions and does not specifically address pretreatment program implementation, it should be revised.

Obtaining Cooperation of Municipalities Revision of existing agreements renegotiate “changed conditions” provision seek judicial reformation or invalidation Check with municipal attorneys if your existing agreement with a contributing jurisdiction is inadequate and needs to be revised. The first option is to simply renegotiate the existing agreement, if both parties agree. If the contributing jurisdiction is unwilling to renegotiate the existing agreement, you should check to see if the existing agreement has provisions for changed conditions that would allow the contract to be modified. If there are no provision for changed conditions and the contributing jurisdiction is still not willing to renegotiate, the control authority may seek judicial reformation or invalidation. As always, check with your program attorney when you need to revise your mutlijurisdictional agreement

Alternatives Limited Function Authority Industrial User Contracts Separately incorporated authority; similar to sewage district or authority Industrial User Contracts Extrajurisdictional industrial user agrees to abide by all of the CA’s pretreatment regulations. Sewer Use Ordinance, industrial pretreatment permit conditions, right of entry, etc. Not usually adequate - good for interim There are a few alternatives to implementing a multijurisdictional agreement: The control authority and contributing jurisdictions could develop a separate, limited function authority specifically for pretreatment. This would require state enactment similar to a sewage district or authority. The control authority could use industrial user contracts, where the extrajurisdictional industrial user agrees to abide by pretreatment program requirements, Including the sewer use ordinance, the industrial user discharge permit, right of entry, and record keeping requirements. Industrial user contracts are usually not adequate for long-term control of extrajurisdictional industrial users due to problems with enforcement. However, an IU contract can be a good stop-gap measure until a multijurisdictional agreement can be put in place with the contributing jurisdiction.

Summary State law directly affects the need for MJAs Better to have an MJA if there is doubt Have the control authority implement the program Cooperate, cooperate, cooperate!! Remember, state laws govern the need for multijurisdictional agreements and it is always better to have a multijurisdictional agreement if there is any doubt. You as the control Authority must have the ability to protect your wastewater treatment plant, and if possible it is advantageous for you to implement the program to extrajurisdictional industrial users with the cooperation of the industries and the contributing jurisdictions.

Resources Multijurisdictional Pretreatment Programs Guidance Manual [EPA 832-B-94-05, June 1994] State of Florida Guidance Manual for Pretreatment Programs (July 2001)-Appendix 3-C Additional information on multijurisdictional agreements can be found in the EPA’s, 1994, Multijurisdictional pretreatment programs guidance manual, and a copy of this guidance manual is also in chapter 3 of the Florida Guidance Manual.

Multijurisdictional Agreements Questions? Are there any questions?