1. Permitting Industrial Users
Curt McCormick
EPA Region 8

2. Zero Discharger Permits
Agenda
Process
Permit Applications
Permit Fact Sheets
Permits
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 or equivalent individual control mechanism or general permit the contribution from each SIU.

5. Adequacy of Control Mechanisms
Mechanism Yes No
Contracts
Local regulations
Administrative orders
Permits

6. Non-Significant CIU and Middle-Tier CIU
Requires Control Mechanism?
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
Once per six months
Once per year
Requires rule change!!!

7. Who to Permit/Control Significant Industrial Users (SIUs) - Required
Categorical Industrial Users (CIUs)
Non-categorical SIUs
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.
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.
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
Application
complete?
Request
additional data No
Yes
Site visit/Inspection (critical. Take camera)

11. revise draft permit, if necessary
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.
Consider comments and
revise draft permit, if necessary
POTW Issues permit

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

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

17. Reviewing the Data (continued)
Common deficiencies
Facility layout – not provided or incomplete
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.

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

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.

38. Industrial User Permits

39. Legal Concepts
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:
Use specific language
Develop concise and complete conditions and requirements
Write clearly and simply
Avoid conflicting language

42. Common Errors and Omissions
Improper calculation of standards
Failure to:
Include all/specific requirements
Regulate all discharge points
Account for predictable variations
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).
Failure to include:
Change in Discharge Reporting
Limits 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 Contents
Name and address of the permittee (Facility address that is being permitted).
Citation of POTW legal authority
Reapplication requirements (either reapply by a date or within x days prior to permit expiration)
Effective/Expiration Dates
Signature of Control Authority (not after permit effective date)

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

49. Permit Contents
Reporting 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 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).

51. Permit Contents Signatory Certification Language
TTO Certification Language (for applicable CIUs)
Permit Revocation/Suspension Provisions
Permit Modification Provisions
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.
Prohibition on Dilution
Definitions
General/Specific Prohibitions
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)
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
Collection of Representative Samples

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

55. Permit Contents
Hazardous Waste Notification (403.12(p)). All IUs are required to comply with this provision.
Permit re-opener clause
Accidental Discharge Reporting
Duty to Mitigate Adverse Impacts
Confidentiality (403.14)
Upsets (403.16)
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.
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 Date
Permit Expiration Date
Legal Authority Cite
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).
Reapplication Requirements
Confidentiality
Requirement 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 provisions
Permit Modification reference
Revocation/Termination of permit conditions
Signature Certification Requirements
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
Maintain 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.