Stormwater Fees Drawing the Ire of Citizens and Businesses State-Wide

By: Paul Bruder, Esq.

As more and more communities begin charging property owners a stormwater fee (many are calling it a “rain tax”), those impacted by the fee are speaking out in opposition. Whether through social media posts such as Facebook groups, through letters to local political representatives, or attending public meetings, citizens are expressing their skepticism and outright anger with respect to the motivation, usefulness and amount of the various stormwater fees that are being assessed throughout the Commonwealth.

The highest visibility of such fees takes place within the Chesapeake Bay watershed, for which state and federal agencies and private groups have spent many years formulating and pursuing a cleanup strategy to reduce the flow of nutrients such as nitrogen, phosphorous and sediment from local waterways. Pennsylvania is largest contributor of fresh water to the Chesapeake Bay, and by far the largest contributor of nutrients, which promote growth of algae blooms in the Bay, robbing the Bay of valuable oxygen and sunlight which inhibits and reduces sensitive habitats for shellfish and other aquatic life once teeming in the Bay.

Local municipalities which contain urbanized areas and separate storm sewer systems are required to meet certain pollution reduction requirements through their stormwater management permits, known as MS4 permits. In order to better manage stormwater in a way that allows municipalities to reduce the amount of nutrients being discharged local waterways, and ultimately the Chesapeake Bay, funding is necessary to make system improvements or develop “best management practices” that accomplish these nutrient reduction goals. Of course, municipal projects such as these cost money, and with budgets already stretched thin, stormwater fees are a way for municipalities to fund these programs.

In the typical circumstance, the fees are assessed to property owners based upon the amount of impermeable or impervious surfaces (driveways, parking lots, rooftops) that exist on an individual property. Some municipalities, or municipal authorities which encompass multiple municipalities (such as the Wyoming Valley Sanitary Authority), impose minimum fees for each category of residential, commercial, and agricultural properties, and then additional fees based upon the amount of impervious surface, if any. Different municipal entities are calculating fees in different ways; however, the end result is the same – an additional financial burden being placed upon local property owners to help fund a mandate from the federal government.

One common argument is that this fee is simply a new tax in disguise, and many people are angered by the idea of new municipal taxes. However, the major difference is that the fee is actually more far-reaching than a tax in that typically tax-exempt properties, such as churches and schools, are not exempt from the stormwater fee. While this may be a good thing for those who are not tax-exempt in that they feel that tax-exempt property owners are sharing the load, the downside is that many of these tax-exempt entities are faced with excessively large stormwater fee obligations due to the size of their impervious surfaces, particularly schools and religious institutions that have large impervious parking areas.

Challenges to these fees are popping up all over the Commonwealth as well, in the form of lawsuits and intervention from politicians. Recently, US Representative Dan Meuser, who represents many of the thirty-two (32) local municipalities that are members of the WVSA, has called for a suspension of the fee until there is a better understanding of them and how they might be reduced. Meuser claims that many of his constituents were “blind-sided” by the fee, despite the amount of publicity stormwater fees have been receiving state-wide over the last several years. Nonetheless, the fact remains that challenges to these fees are becoming as common as the fees themselves. Only time will tell how these matters will be played out in the court system or through the political process.

If you have any questions about stormwater fees in Pennsylvania, please call Paul Bruder at 717-232-5000, or email at pjbruder@mette.com.

Drinking Water

PFAS Takes Center Stage in Pennsylvania

Drinking Water

By: Paul Bruder, Esq.

Chemicals historically used in products such as non-stick cookware, flame retardant fabrics and fire-fighting foam, although no longer used in the United States, nonetheless continue to show up in public and private water systems across the United States, as well as in soil, because these chemicals – individually PFOA (Perfluorooctanoic Acid) and PFOS (Perfluorooctane Sulfonate) – do not break down naturally in the environment. PFAS (perfluoroalkyl substance) has been linked to some forms of cancer and other illnesses, and there is growing evidence of its link to elevated cholesterol, low birth weight and thyroid problems.

While the United States Environmental Protection Agency begins its process of setting maximum contaminant limits for the PFAS chemicals, and various bills make their way through Congress which would make PFAS a hazardous substance under the Federal Superfund Law (“CERCLA”), Pennsylvania is also exploring the idea of setting its own state-wide health standard  for the PFAS compounds.

The Pennsylvania Department of Environmental Protection will evaluate the effects of PFAS on human health in order to develop standards above which consumption or ingestion of PFAS would potentially be harmful to humans. DEP currently monitors a dozen or more sites around the Commonwealth for PFAS contamination, and has tentative plans to begin monitoring of other systems later this year. Although other states have already performed studies and developed their own PFAS limits, most of which are stricter than EPA’s current health advisory level of 7 parts per trillion for combined PFAS, DEP appears intent on performing its own independent studies and determining appropriate maximum contaminant levels rather than piggy-backing off of the work done by others.

Should PFAS be designated a hazardous substance under the Superfund program, that would allow federal agencies to clean up sites contaminated by PFAS. However, such a move would also signal potential liability exposure for manufacturers, distributors or others involved with PFAS. CERCLA is a very broad environmental liability statute which can potentially encompass current owners or operators of the facility, past owners or operators of a facility, generators and other parties that arranged for the disposal or transport of hazardous substances, as well as actual transporters of the substance. Therefore any company or entity that was in any way involved with the generation, transport, or ownership of property that is in any way connected to PFAS should begin to assess its potential liability in the event that PFAS becomes covered by CERCLA

Recently, Governor Wolf announced the approval of funding through Pennsylvania’s Commonwealth Financing Authority for projects that will remove PFAS from 17 wells in the Warminster/Horsham and Warrington areas of Bucks County, and New Jersey’s Department of Environmental Protection ordered five companies to pay for the contamination caused by PFAS in that state. Two days later, New Jersey sued DuPont and Chemours over PFAS-contaminated water and soil.

PFAS is fast becoming one of the hottest topics in environmental law, statewide and nationally.  Expect this trend to continue.

For more information about PFAS liability or exposure, please contact Paul J. Bruder at 717-232-5000, or pjbruder@mette.com.

Water Treatment Plan

DEP Provides Clarification On Reporting Requirements For New And Increased POTW Discharges

Water Treatment PlanBy: Randall Hurst

In 2010 the EQB enacted extensive changes to DEP’s NPDES regulations, now codified at Chapter 92a. Among these changes was a revision to a previous requirement to apply for a new NPDES permit whenever significant changes to influent pollutant loadings—either the addition of a new pollutant or a substantial increase in an existing pollutant—was projected to occur.[1] The new regulation, now at § 92a.24(a), is a bit less stringent and states, in part:

[A]ny change of wastestream, that may result in [a] an increase of pollutants that have the potential to . . . violate effluent limitations specified in the permit, or [b] that may result in a new discharge, or [c] a discharge of [i] new or [ii] increased pollutants for which no effluent limitation has been issued, must be approved in writing by the Department before the permittee may commence the new or increased discharge, or change of wastestream. The Department will determine if a permittee will be required to submit a new permit application and obtain a new or amended permit before commencing the new or increased discharge, or change of wastestream. [Internal enumeration added for clarity.]

The NPDES permit provides these reporting requirements in Section A.III.C.2. However, several provisions of the permit appear to conflict with the regulation. Inquiries of DEP permitting staff in regard to these anomalies during permit reissuance negotiations did not result in any clarification. Additionally, one POTW reported to me that it had submitted a request for approval of new and increased pollutants to the regional DEP office, and was told by that office that DEP does not issue written approvals for changes to wastestream.

As a result of growing concern about compliance with the permit provisions, in 2018 I wrote to Mr. Sean Furjanic, DEP’s Environmental Program Manager, asking a number of specific questions. Mr. Furjanic kindly responded to the questions in writing and also replied to a follow-up letter I sent in October.[2] This article is a summary of my questions and DEP’s official responses; because of space limitations, not all issues raised in the letters are discussed here. Unless shown in quotation marks, the “DEP Responses” below are my syntheses or summaries of Mr. Furjanic’s statements. Because DEP’s responses were provided by a senior official, I believe that they constitute Department policy and can be relied on in interpreting and applying the NPDES permit conditions discussed. Please note that this article only addresses issues relevant to POTWs. Some provisions that apply to industrial direct dischargers were not discussed with DEP and may have different policy issues.

In addition to issues regarding reporting planned changes, I also asked about DEP’s policies regarding reporting changes in influent pollutants that are not planned but are discovered after the fact—a situation that is not covered by either the regulation or the permit. DEP’s responses on this issue are also discussed below.

Issue 1—Reporting “new” pollutants: This issue has two subparts.

A.) Definition. “New” pollutants are those that have not previously been detected in the influent, as reported in the most recent permit application. I asked if pollutants that were not tested for in the permit application process are also considered “new” pollutants for reporting and approval purposes?

DEP Response. Yes.

B.) Written Approval.  Both the regulation and the Permit state that a POTW cannot accept the introduction of new pollutants unless it (i) reports the intent to accept the new pollutant,[3] and (ii) receives written approval from DEP. I reported a case where the regional office staff refused to issue a written approval although they did communicate approval by telephone. I asked what a municipality is to do if DEP staff refuses to issue a written approval for the addition of new pollutants.

DEP Response.  DEP did not respond to the question of what to do if the regional office staff does not respond in writing. DEP stated that it does not have a standard operating procedure for how to respond to a notice, but offered that when a request to accept a new pollutant is received, the regional office staff is supposed to: (1) approve the request in writing; (2) request additional information; (3) deny the request; or (4) request submission of an application to amend the NPDES permit to provide for the new pollutant (as provided in the regulation).

Discussion.  If regional office staff does not respond in writing to a request to accept a new pollutant, the POTW is in a difficult position, since it may have to notify a local industry that it cannot accept the waste, or risk a permit violation by allowing the industry to proceed and accepting the new pollutant without DEP’s permission. I suggest that if this situation arises, the municipality consult with counsel as to its options.

Issue 2—Reporting Planned Increases In Existing (“Approved”) Pollutants. The permit introduces the term “approved” pollutants and defines it to mean any pollutant that has been detected and reported to DEP (usually in the permit application), regardless of whether or not there is a permit limit. To determine if a pollutant is “approved,” the POTW should consult the influent and effluent testing data provided in the most recent permit renewal application. As noted below, it may be beneficial to summarize these influent loading data on a separate record for future reference.

There are several inconsistencies between the permit and the regulation regarding “approved” pollutants. DEP provided clarification of these issues, which I have divided into two main topics: when to report, and how permission is obtained.

A.) Determining when to report increases. The regulation requires reporting planned increases of approved pollutants under only two conditions: (i) if an effluent limit violation could result,[4] or (ii) if there is no effluent limit in the permit. The permit includes the first of these criteria and adds three additional ones, which appear to be intended to address the second one (which is not actually stated in the permit). The added permit criteria are: (iii) if the proposed increase in mass loading is more than 20% of the maximum loading reported in the last permit application; (iv) if the increase could cause “pass through or interference”; and (v) if the increase would result in a violation of “water quality standards.” I questioned the addition of reporting criteria not in the regulations[5] and, perhaps of more concern, how POTWs are to determine if any of these criteria apply. The five reporting criteria are discussed separately below.

(i)  Effluent Violation. I asked how a POTW could decide if a proposed increase in pollutants from an industry or hauler might result in an effluent limit violation.

DEP Response.  DEP stated that POTWs may use the “20% rule,” discussed below, as a heuristic method of evaluating the potential to cause an effluent limit violation. (See quoted response under (iii) below.) However, DEP cautions that POTWs are still required to report any planned increase that they think may result in an effluent violation, regardless of whether the 20% rule applies (if, for instance, the current effluent concentrations of the pollutant are very close to the limit). Therefore POTWs would be well advised to estimate the effects on their own and if there is any question, report the planned increase to DEP for further evaluation.

(ii)  Increased Pollutants With No Effluent Limit. As noted above, this regulatory criterion is not stated in the permit. However, DEP indicated that the “20% rule” (discussed next) is intended to provide guidance for meeting the regulatory requirement to report all planned increases of pollutants with no effluent limits. However, since this is implied, not stated, POTWs might consider reporting all planned increases in pollutants with no effluent limits, no matter how small, so that they are in full compliance with the regulation.

(iii)  20% Increase.  I asked how this criterion relates to the two regulatory reporting criteria for increases in “approved” pollutants.

DEP Response.  “DEP has established a notification standard in permits of a 20% cumulative increase for approved pollutants to assist permittees in implementing the provisions in [the regulation] relating to ‘. . . increased pollutants for which no effluent limitation has been issued.’ This 20% standard also applies to pollutants with an effluent limitation . . . .”

Discussion. The “20% rule” provides a numerical criterion that should make deciding what to report easier. POTWs should keep the influent data from their most recent permit application available so that the maximum influent loading[6] of existing pollutants reported in that document can be compared to any proposed increases. The reporting form for planned increases—DEP Form 3800-FM-BCW0482 [7]—requires reporting both the average and maximum influent loading of that pollutant as reported in the last permit application. The Instructions for the form only reference the 20% increase standard; there is no mention of the other permit criteria for existing pollutants. This appears to confirm DEP’s statement that the 20 % rule can be used—with discretion—to evaluate all of the other criteria for reporting increases of existing pollutants.

Also, note the reference to “cumulative” loading. If prior increases less than 20% have already occurred during the five year permit cycle, a subsequent small increase might exceed the 20% cumulative reporting requirement. Thus, a POTW with an active industrial user base may wish to create a spreadsheet of all pollutants being accepted and documenting when increases occur and the magnitude of each one.

(iv)  Pass through and interference

(a)  Definition.  Not all POTWs are familiar with the terms “pass through” and “interference.” I suggested that the definitions of the terms, as they appear in the EPA pretreatment regulations (40 CFR § 403.3(k) and (p)), be included in the Permit.

DEP Response. DEP agrees and plans to do so.

(b) Application.  The EPA definitions require that a permit violation—not necessarily an effluent limit violation—must result from an event in order for it to be considered pass through or interference. Thus, this criterion is similar to, but somewhat broader than, the effluent limit violation criterion in the regulation and the 20% rule can be used with appropriate discretion.

DEP Response. DEP agrees.

(v)  Exceedance of water quality standards. The fourth reporting criterion in the permit for increases in pollutants appears nowhere in the regulation. I asked how POTWs are supposed to evaluate it, since only DEP has the tools to evaluate effluent impacts on receiving water quality. I suggested that since POTWs do not have the ability (or obligation) to compute appropriate effluent limits to maintain water quality standards, that all proposed pollutant increases of any magnitude be reported so that DEP can make that determination.

DEP Response. “The use of the 20% notification standard as discussed above is intended to eliminate the need for a permittee to determine whether the increased loading of pollutants may cause an exceedance of water quality standards. DEP does not expect permittees to perform fate and transport analyses [or] water quality modeling to determine the possible impact on the receiving waters. However, if the facility decides to do so anyway and determines that increased pollutant loading is likely to cause a violation of water quality standards . . . DEP would expect notification regardless of the amount of the increase. DEP will consider how this may be made clearer in the permit language. . . . Your proposal that DEP evaluate all increases of approved pollutants regardless of magnitude is legally appropriate but not practical given DEP’s resources.”

B.) Obtaining written permission. The regulation requires written permission from DEP before accepting any increase in pollutants that meets the regulation’s criteria. The permit, however, states that if DEP does not respond to a notice within 30 days, “the permittee may proceed with the increase in loading.” I asked how DEP reconciles these two apparently contradictory provisions.

DEP Response. “Where DEP does not reply to notification of a planned increase to pollutant loading within 30 days, DEP’s latest issued permit constitutes the written approval.”

Summary Discussion.  Reviewing all of DEP’s responses to my questions about reporting increases in pollutants, and looking at the instructions for the reporting form, it appears that, except in unusual cases, POTWs can rely on the “20% rule” to determine if proposed increases in existing pollutants should be reported.

However, DEP agrees that there is no prohibition on reporting any and all proposed increases, even very small ones. Doing so places the burden of deciding whether an increase would cause an effluent limit violation or result in exceedance of a water quality standard on the agency with the tools (and responsibility) to make the determination—DEP. Hence, reporting every planned increase of any magnitude may be the most protective approach, especially in light of the “permit as shield” rule[8] and DEP’s position that once a planned increase is reported, unless DEP actually denies the request the permit itself constitutes the “written permission” required by the regulation. (But remember that the 20% rule and the deemed approval do not apply to new pollutants.)

Issue 3.  Reporting Unanticipated Changes Neither the DEP regulation nor the permit address the question of new or increased pollutants discovered after the fact, as may happen when an industrial discharger changes its processes without notifying the POTW. However, an EPA regulation (40 CFR §122.42(b)) does require reporting such changes. I asked how DEP wants POTWs to comply, especially since no mention of this regulatory requirement appears in the permit to advise POTWs of the requirements.

DEP Response. DEP agrees that the EPA regulations at 40 CFR §122.42(b) require notification of changes in the wastestream discovered after the fact. The obligation to report changes in waste streams would be triggered upon the permittee’s awareness of the change: “When discovered after the fact, DEP expects that the permittee will notify DEP within 45 days upon discovery, assuming notification criteria are met.” The report of discovered changes is to be made using the same form used for planned changes: form 3800-FM-BCW0482.

Discussion. The “notification criteria” mentioned in the response are assumed to be those in the EPA regulation: “a new introduction of pollutants . . . from an indirect [industrial] discharger . . . [or] any substantial change in the volume or character of pollutants being introduced into the POTW by a source introducing pollutants into the POTW at the time of issuance of the permit.” EPA does not define the term “substantial change,” but given DEP’s reliance on the “20% rule” for everything else, one might assume that DEP would define a “substantial change” using that criterion. Obviously, discovery of a new pollutant would be reported regardless of its magnitude.

Issue 4. Applicability Of § 92a.24 To “Discovered” New Or Increased Pollutants. I asked if the POTW reports “discovered” after-the-fact new or increased pollutants, is that a violation of the Permit (or the regulations) because the change was not reported by the POTW 45 days in advance and written permission obtained?

DEP Response  No, but the POTW should have “mechanisms in place” to take enforcement action against an industrial user that fails to notify the POTW in advance of the change in its discharge.

Discussion  POTWs with EPA-approved Industrial Pretreatment Programs should already be regulating their industrial users so that there are no surprises; other POTWs that accept industrial wastes might consider some sort of industrial monitoring program to try to avoid unexpected changes in pollutants being received. This will both protect the treatment plant and make it less likely that a permit violation can occur.

Final Note. This article does not explore every issue discussed in the correspondence. For instance, there are unanswered questions about the legality of including substantive requirements in NPDES permits that are not contained in the regulations. This article is intended to help POTWs understand the reporting requirements as they appear in their permits, as DEP has explained them. The entire correspondence (omitting, however, some of the attachments) is provided on Mette Evans & Woodside’s website (www.mette.com) under my link and can be reviewed in detail by anyone interested in these issues. You may also contact the author (rghurst@mette.com, 717.231-5215) to discuss any concerns or questions you may have. And, of course, you may wish to discuss these policies with your regional office staff so that everyone is in agreement as to what is required.

[1]  The previous regulation at § 92.7 read, in part, “[Changes] which . . . do not violate effluent limitations . . . shall be reported . . . to the Department . . . . A new permit application shall be submitted and a new permit obtained before commencing new or increased discharge, or change in the wastestream, which would . . . include any new or increased pollutant not identified in a previous permit application.” [Emphasis added.] The latter provision appears to have rarely, if ever, been implemented.

[2]  All of the letters are available on the Mette, Evans & Woodside website (www.mette.com) under my link.

[3]  The Permit adds a requirement that the written notice be at least 45 days in advance and via certified mail.

[4]  The regulation, permit, and reporting form also refer to exceeding “ELGs.” Effluent Limits Guidelines are direct discharge limits which only apply to certain categories of industrial discharger, never to POTWs, so they are not discussed in this article.

[5]  Imposing enforceable permit requirements not provided for by regulation implicates legal principles beyond the scope of this article.

[6]  Keep in mind that the criterion is mass loading, not concentration. Thus, the flows at the time that samples are obtained must be recorded.

[7] The Form is captioned “Planned Changes To Waste Stream Reporting Form” and is found under Wastewater Management/DMR Reports/DMR Supplemental Reports on the DEP website.

[8]  To keep this article of manageable size, I have not included a discussion of this important rule. See discussion on page 10 of my July 12 letter introducing Question 6.

New Total Dissolved Solids Requirements for Publicly Owned Treatment Works

by Randy Hurst

New Total Dissolved Solids Requirements For Publicly Owned Treatment Works

DEP’s revised Chapter 95 regulations were published as final on August 21, 2010. These regulations address the acceptance of high-TDS wastes, particularly Marcellus Shale gas drilling wastes (frac fluids and other wastes) received by POTWs. The regulations were complex and DEP developed a Guidance Document to guide NPDES permit writers. A Draft Guidance Document was made available for public comment in early 2011, and comments were submitted by the EPWPCOA. The Final Guidance Document was published on November 12, 20111. The concerns expressed by the EPWPCOA were addressed in the final document.

The Guidance Document is rather complex, and includes different permitting strategies for discharges from POTWs and industrial facilities under a variety of circumstances. To keep this article to a manageable size, the discussion is limited to POTWs and to POTWs that were not accepting “frac” water wastes as of August 21, 2010 (the date of the regulations and a “grandfather” date for these facilities). “Grandfathered” POTWs and industrial direct dischargers of treated frac waters are not discussed in this review.

When Do the Rules Apply?

The regulatory requirements only apply to “New or Expanded Discharges.” This means that POTWs that continue to treat and discharge wastes as they have in the past will not be affected by the new regulations. However, there is an exception. DEP defines “existing” TDS discharges as those for which a permit application provided TDS data which were considered in the development of the NPDES permit. There is also a requirement in Chapter 92a to report substantial changes in influent that are different than the information provided in the most recent permit application. Hence, if the treatment plant currently discharges higher levels of TDS than were reported in the latest permit application due to unreported recent changes in the incoming sewage, DEP could decide that the current discharge is not an existing permitted discharge and would consider the plant not to be exempt. Therefore, a POTW that is contemplating accepting high-TDS wastes, whether from an industrial user or a fracking operation, should review its last NPDES permit application and, if necessary, update its “existing TDS” data by conducting additional effluent sampling prior to accepting the wastes.2

Exemptions

The following are considered not to be “new or expanded” discharges and the TDS permitting rules do not apply:

Existing discharges. The DEP Guidance Document clarifies that POTW discharges are deemed to be permitted to discharge TDS at historical levels even though no TDS limit actually appears in the Permit. That is, most POTWs provided some TDS sampling data as part of their NPDES Permit renewals, so DEP considers those levels of TDS to be allowed by the permits, even though there is no explicit permit limit. The “permitted” discharge mass load is determined as both an annual average using the annual average design flow and average reported concentration, and as the daily maximum, using the maximum daily reported concentration and the daily maximum design flow (both the annual average and daily maximum design flow ratings are shown on the WQM (Part II) permit). This “permitted” TDS limit is also used in evaluating whether an expansion is minor, as discussed next.

§ 95.10(a)(7). Minor expansion. If a new or expanded discharge generates less than 5,000 pounds per day of additional TDS discharged as an annual average, the rules do not apply. For expansions, the increase is measured only with respect to the “new” portion of the discharge. That is, as long as the amount of the increased discharge is less than 5,000 ppd the exemption applies, even if the total discharged TDS (old plus new) exceeds that amount.3

Remember, however, that any change in the incoming waste would still have to be reported to DEP for consideration for possible NPDES permit revisions. It is also important to understand that the exemption applies to the POTW permitting requirements, but not to the requirement discussed below-—that all frac water wastes, regardless of quantity, must be treated by a Centralized Waste Treatment (CWT) facility before being discharged to a POTW. Thus, POTWs accepting even small quantities of these wastes must still ensure that they were properly treated at a CWT and will likely be in violation of the regulations if the waste is not properly pretreated.

New/expanded Discharge

Assuming that the plant is not exempt under the above criteria, a “new or expanded” discharge of TDS-containing wastewater (i.e., the POTW begins accepting high-TDS wastes into the treatment system) must meet the regulatory requirements and will have NPDES requirements which differ depending on the source of the waste being accepted. Frac water wastes are treated differently than other industrial wastes. In particular, all frac wastes must be treated at a Centralized Waste Treatment (“CWT”) facility before being discharged to the POTW. As noted above, this requirement applies to any quantity of waste, even if it results in less than 5,000 pounds per day of TDS discharged. Since the rules are different depending on the source of the wastewater, the discussion below is divided into two parts-—new Industrial waste and new Fracking wastes.

Accepting High TDS wastes other than Frac wastes

If the POTW is not exempt and proposes to accept industrial wastes with high TDS concentrations, the permit requirements depend on the expected effluent concentration resulting from accepting the new wastes. DEP has established two classifications for POTWs accepting high-TDS industrial wastes.

Unaffected. If the increased discharge loading will be greater than 5,000 ppd but will not produce effluent TDS concentrations exceeding 2,000 mg/L, the permit will normally contain no provisions related to TDS. If the data are not clear, but it is generally believed that the effluent will not exceed 2,000 mg/L then the permit writer may include monitoring and reporting requirements for TDS to generate data for the next permit. If there is doubt that the effluent will reliably remain below 2,000 mg/L the permit writer may choose to classify the discharge as Conditionally Non-Exempt (Other) (See below.). The Guidance discusses the use of effluent data to make this determination; however, since the determination must be made before the new wastes are accepted, that approach will be unworkable in most cases and the POTW and DEP will have to make educated guesses. In some cases, pilot testing may be beneficial to show whether or not new incoming TDS is likely to pass through the treatment process. For instance, a food manufacturer may have a high TDS loading of degradable materials (e.g., sugars) that will be removed by the treatment process, so that the POTW effluent will not see an effluent TDS increase proportionate to the new influent loading.

Conditionally Non-Exempt (Other). This classification is for all POTWs (and other dischargers) that have an existing permitted discharge of TDS, wish to increase the TDS discharge by more than 5,000 pounds per day on an annual average basis by accepting industrial wastes other than frac water wastes, and have a “reasonable potential” to exceed 2,000 mg/L, so that the “Unaffected” classification discussed above does not apply. These facilities will receive a mass-balanced effluent limit. The existing permitted discharge TDS loading (calculated using the existing concentrations and flows–—see discussion at the first bullet under “Exemptions” above) is retained and the additional mass load is subject to a 2,000 mg/L average, 4,000 mg/L daily maximum at the increased flow. It is not clear from the guidance whether the final permit limits will be expressed as concentration, mass, or both, but the general practice within the Department is to include both measures as effluent limits. Since both mass and concentration are at issue, the expected maximum flow rate from the new industrial source is a critical bit of information and should be confirmed with the industry as part of the application process (and probably “locked in” via a permit issued to the industrial user).

POTWs Accepting Frac wastes

All frac wastes, regardless of volume, must be treated at a Centralized Waste Treatment (“CWT”) facility before being discharged to the POTW. If the wastewater delivered to the POTW contains frac fluids and results in a TDS discharge from the POTW in excess of 5,000 pounds per day, the POTW is denominated a “Non-Exempt (Natural Gas)” facility in the Guidance Document. However, as discussed below, all of the requirements for acceptance of frac waters apply to the incoming wastes; no special effluent limits are required to be imposed on the POTW.

The CWT (pretreatment) facility could be a part of the POTW, but because it is subject to separate EPA standards, would normally be constructed and operated separately, with the treated discharge then delivered to the POTW for final treatment and discharge. (A “direct discharge” from a CWT facility to a receiving water is also permitted by the rules, but is not discussed in this summary.)

Discharge Requirements

The TDS regulations do not impose any effluent limits on POTWs accepting wastewater from a Centralized Waste Treatment Facility treating high-TDS wastes. This was a concern with the Draft Guidance Document, which imposed the same discharge limits on POTWs as on the CWT itself (see shaded areas on the table below). The Final Guidance Document more accurately reflects the provisions of the regulations, which do not require any limits on POTWs since the wastes are being adequately pre-treated by the CWT. However, DEP permit writers might choose to include additional monitoring requirements or effluent limits in the NPDES permit on a case by case basis and this should be discussed with them at the time the permit is being prepared.

The frac water waste received by the POTW from the CWT must meet quality requirements, expressed as numerical monthly average limits for TDS, total chlorides, barium and strontium plus the Pretreatment Standards for New Sources at 40 CFR § 437.47(b) (combined wastes from A, B and C type facilities). All of these limits are shown in the table below.

The regulations do not establish a monitoring frequency for the delivered wastes. It is possible, however, that the NPDES permit issued to the POTW could include a monitoring frequency for the incoming waste. If none is provided, the POTW may determine its own frequency, with the understanding that the EPA Industrial Pretreatment Program regulations (40 CFR Part 403) require self-monitoring and reporting by Categorical Industrial Users in June and December (unless required more frequently by the POTW). See 40 CFR § 403.12(e)(1).

If the POTW has an EPA-approved industrial pretreatment program, the list of required sampling parameters may be shortened and the self-monitoring can be replaced by POTW sampling, as provided by the federal regulations. If the POTW does not have an EPA-approved pretreatment program, the CWT facility will report directly to EPA, which is the “control authority” in such a case, with a copy of the reports sent to the POTW. Note that the limits for TDS, chlorides, Ba and Sr are not federal Categorical standards and the CWT will need to be notified to include these additional tests in its monitoring so that compliance with the DEP regulation can be assessed.

PRETREATMENT STANDARDS FOR
HIGH-TDS WASTES DELIVERED TO A POTW

Parameter

Maximum daily (mg/L)

Max. Monthly Average (mg/L)

Total Dissolved Solids

1,000

500

Total Chlorides

500

250

Barium

20

10

Strontium

20

10

Antimony

0.249

0.206

Arsenic

0.162

0.104

Cadmium

0.474

0.0962

Chromium

0.746

0.323

Cobalt

0.192

0.124

Copper

0.500

0.242

Lead

0.350

0.160

Mercury

0.00234

0.000739

Nickel

3.95

1.45

Silver

0.120

0.0351

Tin

0.409

0.120

Titanium

0.0947

0.0618

Vanadium

0.218

0.0662

Zinc

2.87

0.641

Bis (2-ethyl hexyl) phthalate

0.21

0.101

Carbazole

0.598

0.276

σ-Cresol

1.92

0.561

ρ-Cresol

0.698

0.205

n-Decane

0.948

0.437

Fluoranthene

0.0537

0.0268

n-Octadecane

0.589

0.302

2,4,6 Trichlorophenol

0.155

0.106

Shaded cells are DEP-only requirements; all others are EPA Categorical Standards (also called Effluent Limits Guidelines—ELGs) as found at 40 CFR § 437.47(b).

Additional Reporting Requirements

In addition to monitoring requirements, the CWT must complete and submit to the POTW an Initial Certification described at 40 CFR § 437.41(a) and an Annual Certification of continuing treatment operation as described in 40 CFR § 437.41(b). Since this is a regulatory requirement, the POTW should ensure that the CWT facility submits this Certification each year. (The Certification is submitted to the POTW regardless of whether or not the POTW has an EPA-approved pretreatment program.)

Since the Chapter 95 regulations and the NPDES permit regulate the POTW, not the CWT, if the CWT does not meet the above standards it is a violation by the POTW to discharge effluent resulting from acceptance of the non-conforming wastes. This is not only part of the Guidance Document, it is a requirement in all NPDES permits. See, e.g., Section B.I.C.5.e of most permits, which requires the Permittee to ensure that industrial users comply with all applicable pretreatment standards.4 Hence, POTWs should be careful to ensure that the wastes they receive from CWTs meet the standards at all times and that the annual Certification Statement is received. A contract with the CWT’s owner providing that it will reimburse the POTW for any penalties resulting from the CWT’s violation of its requirements would be worth considering in addition to any discharge permit that the POTW might issue to the CWT facility.

Water quality-based Effluent limits

It should always be kept in mind that the Chapter 95 TDS regulations are primarily technology-based and intended to set a uniform “floor” for all TDS discharges. If water quality is impacted by TDS or other constituents of a discharge, however, permit limits to preserve the quality of the receiving stream are always possible. Hence, TDS discharges in any amount could be subject to permit limits if they threaten to impact the receiving water, regardless of the standards established by Chapter 95. Thus, all discussions about permitting must consider that site-specific water quality-based TDS limits established outside of the technology-based Chapter 95 regulations may be a possibility.
SUMMARY

The Guidance Document outlines permitting rules for all of the situations that a POTW is likely to encounter and provides clarity to the somewhat confusing regulatory requirements. The following situations of interest to most POTWs are covered (DEP designation is shown in parentheses):5

Existing permitted discharge (as of August 21, 2010) of TDS with no anticipated change–—no Permit changes are required. However, if the existing discharge is near 2,000 mg/L the DEP permit writer may decide to include additional monitoring conditions (but not effluent limits) in the permit on a case-by-case basis. (Not Regulated)

Existing permitted discharge of TDS proposing to discharge less than 5,000 ppd of added TDS from wastewater from an industrial source–—no Permit changes are required, although the DEP permit writer may decide to include additional monitoring conditions in the permit on a case-by-case basis. The proposed change in influent constituents must be reported to DEP for consideration for possible permit amendment. (“Exempt.”)

Existing discharge of TDS proposing to discharge more than 5,000 ppd of added TDS from wastewater from an industrial source, but effluent TDS is not likely to exceed 2,000 mg/L–—the proposed change in influent constituents must be reported to DEP for consideration for possible permit amendment. The Permit will not include discharge limits for TDS under Chapter 95, but may include monitoring requirements or site-specific water quality-based discharge limits. (“Unaffected.”)

Existing discharge of TDS proposing to discharge more than 5,000 ppd of added TDS from wastewater from an industrial source and there is a potential to exceed 2,000 mg/L–—the Permit will include discharge limits for TDS based on a mass balance analysis–—no diminution of the existing mass load, but the added TDS is limited to 2,000 mg/L monthly average and 4,000 mg/L daily maximum. (“Conditionally Non-exempt (Other).”)

Existing discharge of TDS proposing to discharge less than 5,000 ppd of new TDS from wastewater from a natural gas source (frac waters or other)–—no Permit changes are required, but the POTW must ensure that the source of the frac water being delivered is a Centralized Waste Treatment facility and that the CWT complies with all of the federal regulations, along with the state-imposed limits for TDS, chlorides, barium and strontium. No permit changes should occur but the Permittee can nevertheless be held responsible for ensuring compliance by the CWT. Also, DEP might impose monitoring requirements on a case-by-case basis. If the change in influent constituents is significant, the proposed change must be reported to DEP for possible permit amendment. (“Exempt.”)

Existing discharge of TDS proposing to discharge more than 5,000 ppd of new TDS wastewater from a natural gas source (frac waters or other)–—the Permit will require that the POTW must ensure that the source of the waste is a Centralized Waste Treatment facility and that the CWT complies with all of the federal regulations, along with the state-imposed limits for TDS, chlorides, barium and strontium. DEP might also impose monitoring requirements on a case-by-case basis. (“Non-exempt (Natural Gas).”)

The above discussion is an attempt to clarify and summarize a complex set of regulations and guidance and is not intended to replace the official documents. Since some of the rules and procedures remain ambiguous, the actual process followed by individual DEP permit writers may differ from the above. It is important that POTWs intending to accept additional high-TDS wastes read the regulations and Guidance Document carefully; acquire valid supporting data; and work cooperatively with the Department to obtain a permit that is both environmentally protective and compliant with the regulations.

1 The Guidance Document can be found on the DEP website at http://www.elibrary.dep.state.pa.us/dsweb/Get/Document-85967/385-2100-002%20tech%20guidance.pdf . Or use the “DEP Programs” link and click on TDS. (Do not use the “Search DEP” option.)

2 Since, as discussed below, accepting new wastes requires reporting the plan to DEP, this additional sampling should be a normal part of any plan to accept additional wastes.

3 There was some ambiguity in the Draft Guidance Document about where the 5,000 ppd criterion is applied. The Final Guidance Document clarifies that the value is measured as the effluent loading.

4 This requirement was in the prior Chapter 92 regulations (§ 92.53(c)) but was deleted when those regulations were revised and reissued as Chapter 92a in 2010. However, it has been a standard condition of all POTW permits for many years and is likely to continue to be included in future permits.

5 Other situations, such as a POTW that currently accepts frac waters and wishes to increase its discharge of these wastes, are subject to different requirements that are not discussed in this report.

DEP Takes Another Regulatory Step Toward “Discharge Elimination”

The New Chapter 92a Regulations Ratchet Down NPDES Discharge Standards Again
by Randy Hurst

DEP Takes Another Regulatory Step Toward "Discharge Elimination"

In 1972, the Clean Water Act established national policies and goals to enhance and protect our nation’s waters. The primary national goal was “that the discharge of pollutants into the navigable waters be eliminated by 1985.” An interim goal of what became known as “fishable, swimmable” waters, was to be achieved “wherever attainable” by July 1, 1983. A national policy was that “the discharge of toxic pollutants in toxic amounts be eliminated.” [1]

Probably the most prominent creation of the Act was the National Pollutant Discharge Elimination System (NPDES) permitting program and the so-called “delegation” of that program to the states. Hence, for the last forty years the goal of the Clean Water Act has been to eliminate the discharge of pollutants. While the implementation of water quality-based discharge limits seems generally to have eliminated the discharge of toxic pollutants in toxic amounts as planned, the discharge of other pollutants continues some twenty-five years after the deadline for elimination.

Several provisions in the Act call for a gradual “ratcheting down” of discharge standards. Of particular interest in this respect is the concept of “technology-based effluent limits,” or TBELs. Applicable to industrial dischargers through Effluent Limitations Guidelines (ELGs) for the forty or so so-called “categorical” industries, and to publicly owned treatment works (POTWs) through the “secondary treatment standards,” the innovative concept of TBELs served to standardize wastewater treatment, resulting in discharges that, in most cases, are significantly “cleaner” than necessary to meet established water quality standards-a substantial step toward the goal of discharge elimination. For some industrial categories, TBELs have already implemented that goal by setting “no discharge” as the allowable limit. For POTWs, however, the TBELs that were established in the 1970s have not changed and the discharge of “conventional” pollutants, nutrients, and some others continues, even though treatment technology and the skill of treatment plant operators have measurably improved. [2] While EPA continues to evaluate potential new categories of industry for development of ELGs and revisits existing categories to determine if new technologies justify more stringent standards, no such program has been implemented to evaluate secondary treatment standards. [3] From time to time, environmental groups propose additional or more stringent secondary treatment standards, but EPA has not acted on these proposals.

Another relevant aspect of discharge standards under the Act is the concept of “narrative” standards. That is, in place of measurable numeric values, a more or less subjective standard is used. Probably the most ambiguous example familiar to Pennsylvania practitioners is the Maryland standard for chlorophyll α [4], which was used in part to impose over a billion dollars in treatment plant improvement costs on over 180 Pennsylvania POTWs under Pennsylvania’s Department of Environmental Protection (PaDEP’s) Chesapeake Bay Initiative. [5] Narrative standards can be useful, but depending on how well they are defined, can pose enforcement problems. In Pennsylvania, the NPDES regulations included a narrative standard prohibiting the discharge of “floating materials, oil, grease, scum, foam sheen, and substances which produce color, taste, turbidity or settle to form deposits in concentrations or amounts sufficient to be, or creating a danger of being, inimical to the water uses to be protected or to human, animal, plant or aquatic life.” [6]

With no progress by the EPA on tightening secondary treatment standards, some states have taken the initiative to do so on their own. PaDEP took a small but significant step in this direction in 2000 with revisions to its Chapter 92 regulations. [7] Although adopted under the rubric of the “regulatory basics initiative,” which was intended to be a process of simplifying regulations and eliminating those which were more stringent than EPA’s, the 2000 rule changes made secondary treatment standards more stringent. Those changes added numerical discharge standards for total residual chlorine and fecal coliform bacteria and attempted to add standards for pH and oil and grease. [8] These relatively modest additions generated little opposition since most POTWs could readily meet the more stringent standards.

In 2009, PaDEP proposed additional changes to Chapter 92, now to be completely reorganized and readopted as “Chapter 92a.” Among the proposed changes were a further “ratcheting down” of TBELs for POTWs, including a more stringent definition of secondary treatment and a radical change to the narrative discharge standards, both of which were adopted (with minor changes) in the final rulemaking. [9] Because these new rules have the potential to make NPDES permits issued to both POTWs and industrial dischargers impossible, or at least impossibly expensive, to meet, all permittees should be aware of them and prepare to address them when their permits are renewed. [10] The following discussion only addresses new and more stringent TBEL provisions; other changes to the rules are outside the scope of this article.

Secondary Treatment Standards

Most of the changes to secondary treatment standards are relatively minor. The revised rules impose the following new and more stringent standards for POTWs:

Physical/chemical treatment may not be used unless in concert with “significant biological treatment,” which is defined as “the use of an aerobic or anaerobic biological treatment process . . . to consistently achieve a 30-day average of at least 65% BOD removal.” See § 92a.47(a). The practical ramification of the rule is difficult to predict, but it will likely mean that some wet weather high flow treatment processes using ballasted flocculation (which by itself meets federal secondary treatment standards) may have to be re-designed to include some level of biological treatment under PaDEP’s unique and more stringent definition of secondary treatment.

The standard for effluent fecal coliform has been made more stringent. The prior “swimming season” (May-September) standard of a monthly geometric mean of 200 cfu/100 ml has been retained but the maximum of “no more than 10% of the samples greater than 1,000” cfu/100 ml (which was based on scientific principles related to bacteriological testing as reflected in the similar Chapter 93 Bac1 water quality standard of no more than 10% of samples greater than 400) has been replaced by a maximum any time (aka “instantaneous maximum”) standard of 1,000. In addition, an entirely new October-April standard of 2,000 as a mean and 10,000 as a maximum has also been created. Some POTWs reportedly worry that they will have to increase the chlorination rate in order to ensure full compliance with their NPDES permits under the new standard. This, in turn, may implicate some NPDES permits that contain a vague narrative “chlorine minimization” clause inserted by certain regional offices.

The federal “equivalent to secondary” standards for certain treatment technologies (lagoons and some trickling filter plants), which have more lenient C-BOD and TSS removal rates and relaxed effluent standards for C-BOD and TSS [11] have been eliminated. However, the new rules also provide that this “ratcheting down” will not be imposed on existing facilities with current permits reflecting the federal standards until the facility’s WQM permit is amended to allow an increase in the design flow. See § 92a.47(f).

The oil and grease standards for industrial dischargers (30 mg/L in any sample, 15 mg/L as a daily maximum), improperly adopted in the prior rules as noted above, have now been properly adopted and are enforceable, as are the pH limits of 6-9. See §§ 92a.47(a)(7) and 95.2(1), (2). As discussed below, however, the numerical oil and grease standard creates an internal inconsistency in the regulations that will require attention on a permit-by-permit basis.

Older POTWs with combined sewers will be pleased to note that the federal standard for allowing a lower “dry weather” percentage removal of C-BOD and TSS was not changed. Similarly, the federal standard allowing a lower percentage removal in separate sanitary systems with dilute influent was not changed in the new PaDEP rules. [12]

Narrative Standards

Probably the most worrisome change in the new regulations for POTWs and industrial treatment plants is the elimination of the rather vague narrative standards for foam, floating materials, etc. discussed above and the creation of a new two-tiered system of regulation. According to the Preamble to the Proposed Rulemaking, 40 Pa. Bull., 852, February 13, 2010, the change was prompted by the fact that the previous, water quality-based narrative standard (“inimical to the water uses to be protected”) was “too cryptic and nebulous to be useful.” Id. The new § 92a.46(c) revised the standard to an ostensibly technology-based one, but the change seems merely to have replaced one question with a host of new ones and promises to be a source of substantial cost and compliance headaches for many POTWs.

The new provision is written in two parts. The first sentence says that a discharger “may not discharge floating materials, scum, sheen, or substances that result in deposits in the receiving water.” Although still ostensibly a narrative standard, it is in fact numerical: the standard is now effectively “zero.” It is apparent that this new “zero discharge” requirement will result in the need for many, if not most POTWs and industrial dischargers to install skimmers or other specialized equipment to reduce normal environmentally inconsequential amounts of “scum” and “sheen” to undetectable levels.[13] Additionally, since the terms are not defined, compliance issues may arise as PaDEP inspectors attempt to interpret the rules under specific circumstances. Finally, there is the compliance question regarding the inherent conflict between the secondary treatment standard for total suspended solids (45 mg/L as a maximum weekly average) and the prohibition on the discharge of settleable solids. A discharger meeting the secondary treatment standard may, nevertheless, find that it is in violation of the new narrative standard, especially when the receiving stream is relatively quiescent, as many are during low flow summertime conditions.

It may be the second part of § 92a.46(c) that will create the most turmoil, though. This provision states “[e]xcept as provided for in the permit, the discharger may not discharge foam, oil, grease, or substances that produce an observable change in the color, taste, odor or turbidity of the receiving water.” This new standard raises a series of questions:

Where in the receiving water is the change to be observed? That is, since discharges into most waters produce a widening “plume,” any color, turbidity, and foam rapidly dissipate as they move downstream, so the selection of the point to make the determination of an “observable change” can be the difference between compliance and multiple permit violations. PaDEP has established a standard for measuring compliance with water quality standards for toxic substances using a fifteen-minute mixing zone for acute water quality criteria, and a twelve-hour mixing zone for chronic water quality criteria. Although the new regulation clearly applies the color and turbidity standards somewhere in the receiving water, it makes no mention of where in the stream the inspector (or the concerned discharger) is to look. (Although, see the discussion below regarding permit limits for foam for some guidance on that particular constituent.) It would seem reasonable to assume that if mixing is appropriate for “serious” pollutants like toxics, it is also appropriate for purely aesthetic concerns like color and turbidity. However, the regulation does not reflect that logic.

What is an “observable change”? While oil and grease, color, and turbidity can be analyzed in the laboratory to produce numerical results, a difference in test results is not necessarily equivalent to an “observable change.” For instance, if a discharge increases the stream turbidity from 80 to 85 NTU, can that difference be observed, especially in a moving and turbulent receiving stream? Moreover, discharge plumes can sometimes be easily observed in receiving waters simply because of their different density-not color or clarity-making the determination of what, exactly, is being “observed” another potential point of debate.

What about the secondary treatment standard for oil and grease? As noted above, the regulations adopt the Chapter 95.2(2)(ii) discharge standards of 15 mg/L as a daily average and 30 mg/L in any one sample. If a discharge meets this standard, but oil and grease is nevertheless “observable” in the receiving stream, [14] is the discharge in compliance or not?

The solution to these regulatory conundrums appears to lie in the phrase “except as provided for in the permit.” That is, since nearly every POTW and industrial discharger will have some level of oil and grease, foam, turbidity, and/or color in its effluent, and since the new standard is technology-based, the risk of violations (or the uncertainty of what constitutes a violation) can be addressed by incorporating specific provisions in the NPDES permit reflecting the capabilities of the treatment plant. Permittees should be prepared to discuss the following issues with the PaDEP permitting staff during the development of the permit:

For oil and grease, the secondary treatment standard obviously should be in the permit. The question then becomes whether or not to actually conduct effluent testing for this parameter and, if so, how often. Perhaps that question could be more easily answered if some effluent data were available to demonstrate the risk of exceeding the limits. The testing conducted as part of the permit renewal application process may be a good opportunity to develop these data. Hence, managers and consultants should be prepared to conduct additional effluent testing for oil and grease in the hope of avoiding extensive compliance testing throughout the five year life of the permit.

For color there is a statewide water quality criterion in Chapter 93 (75 Pt-Co units) applicable to streams used for potable water supplies. Since PaDEP routinely generates the effluent/stream dilution ratio in its permit review, an appropriate effluent color limit should be calculable once the compliance point in the stream is determined. For some dischargers, pre-application effluent testing for color may be worthwhile to see if a higher TBEL is appropriate.

While turbidity can be measured, there is no numerical water quality criterion for it, so an empirical approach seems to be necessary. It would seem prudent to conduct some representative sampling of the effluent to establish a normal effluent turbidity baseline to use as a basis for proposing an appropriate permit limit. Averages are probably not appropriate as permit limits: obtaining sufficient data to estimate the level at two standard deviations above the mean (probably at least ten samples, possibly more depending on variability) would be prudent to avoid suggesting a turbidity limit that will be violated half of the time.

Leaving the issue of effluent odor and taste for another day, this leaves foam. [15] Of course, there is no standard for measuring it and no water quality criterion except for the legacy provision in Chapter 93 that it (along with the other substances) “must be controlled” to avoid “amounts sufficient to be inimical or harmful to the water uses to be protected or to human, animal, plant or aquatic life.” Like grease, virtually any amount of foam would be “observable” because of its light color and the fact that it floats. However, small amounts of foam are clearly not harmful (in fact, foam occurs naturally in many healthy streams due to naturally occurring organic matter). To avoid a “no discharge” permit limit, it would be prudent to propose some sort of measurable TBEL based on treatment plant performance so that both the operating staff and PaDEP inspectors can determine and agree on compliance status. There is some guidance for this in the Preamble to the Proposed Rulemaking, 40 Pa. Bull. 852, which states, “foaming would still be an unacceptable condition if the foaming is visually objectionable or persists for any distance away from the immediate vicinity of the discharge.”

As for color and turbidity, effluent monitoring (perhaps documented by photos) to determine what is “normal” would be a prudent first step in deciding on an appropriate permit limit. There being no precedent for this, and in light of PaDEP’s stated goal (not visually objectionable or persistent), the author proffers the following narrative “limit” as a starting point for discussion: “foam to appear on no more than 10% of the water surface within the discharge plume and less than 100 feet of the discharge point; and no visible foam more than 500 feet from the point of discharge.” This formula at least puts some numbers in the permit that can be checked by using photographs (now readily taken with any cell phone). Since the standard is technology-based, each permittee will have to suggest an acceptable TBEL based on its documented performance in light of the goals stated in the Preamble.

In sum, the new regulations replace a vague narrative water quality-based standard that was difficult for PaDEP to apply with a new and even more ambiguous narrative technology-based standard that shifts the interpretive burden (and substantial compliance costs) onto the shoulders of dischargers. Over the next few years, as the over 2,000 NPDES permits in the Commonwealth are renewed under these new and different rules, the hope is that some standardized method of addressing the concerns will be developed cooperatively between PaDEP and the regulated community.

It is difficult to find fault with steps taken to move toward meeting a national goal now twenty-five years past due. Unfortunately, the manner in which PaDEP took the latest step has created a host of new risks for industrial dischargers and POTWs that may take years to resolve. The point to remember is that a large share of the burden has been shifted to the permittees, and those that do not understand and react appropriately to these changes are likely to find themselves saddled with permit requirements that simply cannot be met. Preparation, data gathering, and an open dialogue with the PaDEP permitting (and enforcement) staff before the next permit is issued will go a long way toward preventing significant adverse consequences and hopefully will reduce compliance costs somewhat.

Notes
[1] See section 101(a) of the Clean Water Act, 33 U.S.C. § 1251(a).

[2] Originally, TBELs for POTWs were to be further reduced to “best practicable treatment” by 1983; this provision (CWA § 301(b)(2)(B)) was repealed in 1981.

[3] Although the Act requires that EPA review all industrial ELGs every five years, no such requirement applies to secondary treatment standards. See CWA § 301(d) (33 U.S.C. § 1311(d)).

[4] “Concentrations of chlorophyll a in free floating microscopic aquatic plants (algae) may not exceed levels that result in ecologically undesirable consequences that would render tidal waters unsuitable for designated uses.” COMAR 26.8.02.03-3.C(10).

[5] Implemented more than four years before a TMDL was actually developed for the Bay, under EPA’s “fire, aim, anybody ready?” approach to the Chesapeake Bay TMDL.

[6] 25 Pa. Code § 92.51(6) (superseded). (Section 93.6, still in effect, retains this standard while adding “odors ” to the list of regulated pollutants.)

[7] Technically, regulatory changes are only proposed by PaDEP; they are carried out by the Environmental Quality Board. Since PaDEP proposes and drafts the regulations, however, the Department is, for all practical purposes, the author of any regulatory changes.

[8] The final-form 2000 secondary treatment regulations included a reference to the standards for industrial facilities at § 95.2 (1)-(3), which set pH and oil and grease discharge standards. However, since this provision (§ 92.2c(b)(4)) was inserted in the final published rule at the last minute without notice or opportunity for comment, this section was not properly promulgated and was unenforceable. That defect was corrected by the 2010 rulemaking.

[9] The Proposed Rulemaking also included a number of controversial provisions that were not retained in the final rulemaking and need not be discussed here.

[10] PaDEP has indicated informally that the new more stringent requirements will not be imposed immediately, but will be incorporated into the next NPDES permit. While the regulations themselves do not include this assurance, it is hoped that regional enforcement staff will honor that promise.

[11] 40 CFR § 133.105.

[12] 40 CFR § 133.103(e) and (d), respectively; reproduced virtually ver batim at § 92a.47(g) & (h).

[13] Inexplicably, in the Preamble to the Final Rulemaking (41 Pa. Bul. 5773) PaDEP stated that there would be no new compliance costs associated with these standards because the revised regulations “do[] not include new broad-based treatment requirements that would apply to most facilities.”

[14] In some POTW effluents, oil and grease are apparent as small, widely dispersed floating white flecks. Both BOD and oil-and-grease testing prove that these particles are a minuscule fraction of the discharge and do not result in water quality concerns, but because they concentrate on the surface, they can appear to the inexperienced eye to constitute a significant fraction of the discharged water.
[15] Under § 92a.46(c) “floating materials” are prohibited, but “foam”-clearly a “floating material”-is allowed (if provided for in the permit). According to the Preamble to the Proposed Rulemaking, the prohibition on “floating materials” only applies to “floating solid materials.”

The Official Record – a Little Used Tool for Understanding and Interpreting Regulations

by Randy Hurst

Tool For Understanding and Interpreting Regulations

Statutes, regulations, permits, statements of policy, guidance documents, orders, notices of violation. As regulated entities (water, solid waste, and wastewater authorities) we are subject to a multitude of “official” documents. Understanding these requirements can be a challenge. This article adds another level of complexity to the subject-the “official record.”

Statutes, of course, are adopted by an elected legislative body. Whether enacted by Congress, the General Assembly, or the Borough Council, a properly adopted statute or ordinance is enforceable law. Because of the complexity of the subject matter of many statutes, the legislature often (thankfully) does not include all of the minute details that are necessary to create the implementation structure. Instead, the legislature authorizes an administrative agency to adopt regulations. When regulations are properly adopted as authorized by the statute, they also become enforceable law, just as if the details were included in the statute itself.

Even though the provisions of statutes and regulations are generally clear, there are always situations where interpretation is necessary. Interpretation of the meaning of these rules can be by the legislature itself or by the administrative agency charged with enforcement. The regulated entity (including its lawyers and engineers) is NOT given the power to interpret rules; doing so would create chaos as everyone interpreted laws in their own unique way. When a requirement is ambiguous or vague there may be several sources of clarification. First, one might look to the interpretation decided by the judiciary-court opinions or the opinions of quasi-judicial agencies like the Environmental Hearing Board. However, many technical questions have never been the subject of a published judicial opinion, so the most useful source of information is usually the second tier of “official” documents-guidance manuals, statements of policy, or the written opinions of authorized agency officials. These forms of information are part of the record (in fact, many of these documents are available on agency websites) and they are expected to be applied fairly, consistently, and uniformly. This does not mean, however, that these documents have the force of law. Any policy can be challenged for nonconformance with the underlying law (statute or regulation), and every policy must be applied on a case-by-case basis. Policies and guidance documents are valuable, but may not be treated as if they are law: what the courts call a “binding norm.” Doing so, even when reasonable, has been repeatedly held to be unlawful. You will note that many guidance manuals and policy statements have a “disclaimer” at the beginning which reflects this concept; it reminds the agency staff that the document is not to be considered as a binding requirement, but as a guide to reasonable interpretation of the “real” law-the statute and regulations.

The official record contains more than contemporary documents, however. Some of the most important elements of the record are the interpretations and policy statements made at the time the statute or regulation is first adopted. In the case of statutes, one may look to the legislative record: what did the legislators who drafted and passed the bill say about it? In the case of federal laws, the Congressional Record provides a wealth of information such as committee reports, amendments (both adopted and rejected), and floor debate by sponsors and opponents of the bill. The Pennsylvania legislature has a much more limited written record, and local governments rarely have much of anything to turn to.

Since the “nuts and bolts” of most laws are found in the regulations, however, it is these rules, not the statutes, that are most often in need of interpretation to address particular situations. And, fortunately, regulations are nearly always supported by an extensive record. By law, regulations must be adopted using a formal procedure that includes publication of a draft for public comment (a Notice of Proposed Rulemaking) and review of comments submitted by the public and interested agencies-most notably the Independent Regulatory Review Commission, an arm of the legislature charged with reviewing draft regulations for conformity with the authorizing statute. For many regulations, the agency will prepare a “comment response document” that itemizes all of the comments received and the agency’s responses. In many cases, in response to a comment the agency will modify the final rule. Upon adoption, the final rule is published again along with explanatory notes, including a discussion of the changes that were made to the proposed rules in response to the comments received. The discussion portion of the public notice is often significantly longer than the rule itself. Thus, a written official record is created which explains the purpose behind the regulations, the various alternatives that were considered, and the way in which the adopting agency intends for the final rule to be interpreted and applied. These record documents (the comment-response document and the discussions accompanying the notices of proposed and of final rulemaking) provide valuable interpretive tools.

Hence, when a regulatory provision is unclear, one place to look for an explanation (in addition to contemporary guidance documents and statements of policy by the agency) is the record created at the time of adoption. While this exercise may be tedious and time consuming, it can yield valuable-even surprising-results. One recent example will illustrate the potential cost, in real dollars, of not being cognizant of the official record.

In 1997 PaDEP proposed a number of changes to its municipal wasteload management regulations (Chapter 94). One of the proposed changes was a new requirement to install flow meters at the influent end of each treatment plant “or other part of a facility.” A number of comments were submitted objecting to this proposed rule for two reasons. First, many treatment plants already had flow meters at the effluent end of the plant and installing influent flow meters would have been costly, unnecessary, and, in some cases, physically impossible. The second objection was to the vague term “other part of a facility,” which some feared could be interpreted to give PaDEP the power to require flow meters to be installed throughout the collection system. In response to these comments, DEP revised the final version of the rule to delete both the word “influent” and the phrase “or other part of a facility.”

The reasons for the changes stated by PaDEP “on the record” were that it recognized that influent flow meters were not always necessary (although a flow meter at some location was still required), and that it had no intention of creating a power to require flow meters to be installed anywhere other than a treatment plant. (It should be noted that PaDEP can, as part of the permitting process, require meters to be installed as part of a new facility such as a pumping station; the rule change only limited PaDEP’s power to require retro-fitting meters into existing facilities.)

The changes and the reasons were discussed in three “official” places: the Comment-Response document, the Final Order issued by the EQB (the rule-making body for PaDEP), and the notice of final rulemaking published in the Pennsylvania Bulletin. The current rule (§ 94.13(a)) states that “a plant [with over 0.1 mgd flow] shall be equipped to continuously measure, indicate and record the flow.”

Recently, however, one regional PaDEP office sent letters to a number of municipalities demanding that they install influent flow meters immediately, citing the Chapter 94 regulation as authority. In addition, some plants received demands to install new flow meters in their pumping stations and other places in the collection system so as to better monitor system flow characteristics. Again, Chapter 94 was cited as giving authority for the demands. Costs for compliance for some municipalities could run into tens of thousands of dollars.

Reading only the rule as written, the regulatory interpretation asserted in these “notices” is plausible, if not entirely reasonable. Since it is the agency, and not us, that has the power to interpret its regulations, it would appear on the surface that the demands were valid and enforceable agency interpretations of an ambiguous regulation. In fact, however, in light of the entire official record, there is no ambiguity in the rules that would allow for such an interpretation. An “interpretation” is only allowed when the rule itself is not clear. In this case the rule is clear; the letters did not “interpret” the regulation, they attempted to substantively change it. That fact, however, is only apparent from a review of the entire official record.

In response to the letters, I provided the information discussed above (including copies of the relevant documents) to the regional counsel. In response, I received a letter that said that the letters were drafted by technical staff (apparently without consulting with legal counsel), that the requirements stated in the letters were actually “requests,” and that the staff believed that the installation of the additional flow meters would be helpful in monitoring flows required to be reported in the annual “Chapter 94” report. Although the response did not specifically address the information in my letter, it appears that the regional office agrees that the regulatory claims in the letters were in error and that they were merely requests, not regulatory requirements.

This example is only one of several recent instances where long-standing policies have been abruptly changed-usually by mid- or low level staff-without notice to or discussion with the regulated community. I suspect that the trend will continue. PaDEP has undergone extensive personnel changes in the last few years. Many of the officials who were present when the regulations were adopted, and who knew what they were intended to mean, have been retiring and being replaced by new people who have no such experience or knowledge. This phenomenon, commonly known as “loss of institutional memory,” will, I believe, become more and more of a problem as we move forward. It behooves the regulated community and its consultants-engineers and attorneys-to become more vigilant in understanding the regulations as they were meant to be understood and questioning changes in long-established policies and procedures. The Official Record will be a valuable tool in reviewing these changes and keeping them within the bounds of the law.