Take My Advice . . . Please Get a Home Inspection Before You Buy

By Jim Goldsmith, Esq.

I was helping an old friend of mine son and daughter-in-law with their home purchase. The house that most caught their fancy, and the one they eventually purchased, was a flip. Now, I have a lot to say about flipped houses, primarily based upon the volume of litigation that I have handled arising from the purchase of flipped homes. For purposes of this story, let me just say that I was very concerned that my friend’s son and daughter-in-law would later regret their purchase or have serious problems. And so, I embark on my mission, full of advice.

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Your Real Estate Seller May Not Have a Dime’s Worth of Recourse!

By Jim Goldsmith, Esq.

In those good ole days of real estate transactions, offers were also accompanied by deposit checks. There was no place on the standard agreement to accommodate today’s practice of transmitting deposits “within ___ days (5 if not specified) from execution.” It is evident from the many inquiries on this topic, that today’s practice leaves sellers vulnerable, for at least those first days. To protect sellers, the realtor practice of accepting offers, with a deposit, constitutes the sole remedy available to a seller in the event of buyer default.

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NPDES Articles (ALL)

NPDES Permit Basics

Understanding what’s in your Permit

Part Four of Four

By Randy Hurst

This is the last in a series of four articles about NPDES permits for Publicly-owned Treatment Works (POTWs). The first three articles in this series discussed Technology-based limits-—TBELs-—and Water quality-based effluent limits-—WQBELs-— in both numerical and narrative form. This article discusses what may be the most important aspect of Permits as they apply to Certified Operators: reporting. Because the reporting rules are so complicated, and because some NPDES permit provisions conflict with the regulations, this article cannot prescribe what to do in all situations. Attempts to obtain clarification from DEP have not been successful, although at the time of writing (fall, 2017) we have received some preliminary and informal comments that might result in revision of this article if they are affirmed by DEP administrative staff.

In any situation where a requirement is unclear, contact with DEP should be made (and recorded or documented) so that inadvertent reporting violations do not occur. Keep in mind that this article provides only a general description of the requirements; the regulations and NPDES permit should always be consulted when any sort of incident occurs. (The Certification regulations require that a copy of the permit must be provided to all Certified Operators.)

Because all Certified Operators are required to report to the Owner any actual or potential permit or regulatory violations, it might appear that the discharge limits in the Permit are all that you need to know. Also, the Certification regulations do not require Certified Operators to report anything directly to DEP. However, the NPDES regulations and permits include reporting requirements that go beyond the Certification regulations and may affect operators directly. In particular, the requirements to report any unusual releases “immediately” and certain others within 24 hours may affect operators on duty when an event occurs. The telephone number for emergency reporting to your DEP regional office should be posted so that all operators can comply with these requirements.

One last caveat: To keep the article to a manageable size, I have not discussed all of the EPA regulations, which in some cases are somewhat different from the DEP regulations and permits. Most (not all) of the federal requirements are reflected in the Permit, although in different places than are discussed here.[1] Also, because of the complexity, I have constructed a matrix that shows the three sets of requirements for many different possible scenarios; this may not be accurate for all events and is not intended to instruct you on the legal requirements. It is meant to help point to the sections to look at when an event occurs.

DMR/Supplemental DMR
The first kind of report required by the permit is the monthly Discharge Monitoring Report, or DMR. This is a standard form (now usually in electronic form) that summarizes treatment plant performance for the prior month. In addition to the DMR, most DEP regional offices are also requiring “Supplemental” DMR forms, reporting such data as MLSS and biosolids generation and disposal. Note that the frequency and kind of data collection is controlled by the NPDES Permit, not the reporting forms. Thus, although the Supplemental DMRs have a place to enter MLSS each day, this does not create a requirement to sample MLSS each day; similarly, if a particular parameter is not monitored, you are not required to start doing so just because a column for it appears on the Supplement DMR form; data only need to be entered as they are generated as part of routine system monitoring. Since these reports are usually prepared by the plant superintendent and the operators are not directly involved, I won’t discuss them further in this article.

The real concern with reporting is the myriad of special conditions that are required to be reported at differing times by both the Regulations and the permits. These fall into two general categories: routine changes and unexpected events. For each, I provide a discussion of the regulations and the NPDES permits which, unfortunately, do not always agree with each other.

Planned Changes-—DEP Regulation
DEP regulations (§ 92a.24(a)) require reporting three kinds of changes that might result from a planned change in the wastestream or a change in treatment plant processes [2]: (1) a discharge of “new” pollutants not limited in the permit; (2) an increase in the discharge of pollutants with no effluent limit; or (3) an increase in effluent pollutants that might violate effluent limits. The regulation states that any of these changes must be reported to DEP in advance and written permission obtained from DEP before the change is made. [3] In some cases DEP might require an application for a revised NPDES permit to be submitted so that the changed circumstances can be addressed through new permit conditions.

This requirement is an integral part of a concept created by the Clean Water Act and incorporated into the DEP regulations (§ 92a.6): the “permit as a shield” rule. In effect, the burden of protecting the environment falls on the government; once a discharger submits all of the relevant data, DEP decides what permit conditions are necessary to protect the environment. The “permit as a shield” rule says that as long as the POTW complies with the permit, it is deemed to be in compliance with the statute. That is, as long as all permit conditions are met, even if a pollution event occurs, it is not a violation by the permittee since it was DEP’s duty to include all of the necessary protections in the permit. This concept fails, of course, if the information changes. That is, if DEP does not know that an industrial user has started or increased its discharge of, say, “methyl-ethyl death” into the sewer system, it cannot determine what permit conditions, if any, are necessary to deal with it. Thus, the regulation requires the POTW to report whenever the influent is proposed to contain new or increased pollutants and receive written permission from DEP to do so.

Planned Changes-—NPDES Permits
While the regulation is not a model of clarity, the situation is complicated by the fact that NPDES permits include somewhat different requirements. Similarly to the regulations, permits include a requirement to report any planned “new” pollutants due to industrial discharges or hauled wastes; “new” pollutants are defined as those not detected in the last permit application or which were not previously present in industrial wastes. [4] However, regarding “increased” pollutants (those detected in the last Permit application), the permit differs somewhat from the regulations.

First, while the regulation requires reporting (and getting permission to accept) any increase of existing pollutants with no effluent limit (i.e., those reported at low levels in the permit application so that no effluent limit was necessary), this is not required by the permit. Instead, only increases of more than 20% of the loading reported in the permit application are to be reported. Also, in addition to the regulatory requirement to report increases that could violate an effluent limit, the permit also requires reporting increases that could; (1) violate a water quality standard in the receiving water or (2) interfere with plant operations. This means that the POTW must evaluate the probable effect of a proposed increase in influent pollutants on (1) the in-stream concentration and (2) plant operations before deciding whether to report and get permission to accept it. Because these requirements are so different, they must be evaluated carefully to determine when reporting is required under the regulations and when it is required under the permit. Why? Because the regulations require obtaining written permission to accept an increased pollutant, while the permit does not. In fact, the permit states that if DEP ignores the report and does not give permission, “the permittee may proceed with the increase.”

Unplanned Changes-—NPDES Permits
In addition to addressing a limited class of proposed increases, the permit also requires reporting when an actual increase is more than 20% higher than the highest influent loading reported in the last renewal application. This requirement does not appear in the regulations (but the EPA regulation does require it; see footnote [1]). In addition, since it is found in an un-numbered paragraph of the permit under section C.2 of the Permit, captioned “Planned changes,” it might not be noticed. [5]

Comparing Regulatory and Permit Requirements. The fact that a regulatory requirement does not appear in a permit does not mean you can ignore the regulation. So, since there are two sets of slightly different requirements, one in the permit and one in the regulations, operators should be aware of both sets of requirements and report to management when any new or increased pollutant occurs or is planned so that management can decide whether to report the information to DEP. Because of the differing requirements of the regulations and the permits, I prepared the attached matrix to help in this decision, which addresses the following possibilities:

• Proposed introduction of a new pollutant not previously detected in a permit application, or not previously found in industrial or hauled wastes (both regulation and permit)

• Actual (but unplanned) acceptance of a new pollutant (permit only-—Part B.I.C)

• Proposed increase of a “known” pollutant (i.e., one that showed up on the most recent application testing) for which there is no effluent limit in the permit (regulation; permit applies if the proposed increase is >“ 20% of existing load†)

• Proposed increase of a “known” pollutant that would result in an effluent limit violation (both regulation and permit)

• Proposed increase of a “known” pollutant that would result in a water quality criterion violation (permit only)

• Proposed increase of a “known” pollutant that would result in interference with POTW operations (permit only).

• Proposed increase of a “known” pollutant that would not cause any of the above results (permit only, but only if the increase is >“ 20% of the existing load†)

• Actual (unplanned) increase of a “known” pollutant loading by >“20% † (permit § A.I.C.)

• Actual (unplanned) increase of a “known” pollutant loading by

In addition to the above requirements applicable to influent changes, the regulations and permits require reporting of unexpected discharge events. There are two different requirements: one in the DEP regulations and one in the EPA regulations.

Unexpected Events-—EPA Rules and the Permit 
The EPA regulations (40 CFR §122.41(l)(6)) are found in Part A.III.C of the permit and require reporting within 24 hours when one of these three events occurs:

• An unanticipated “bypass” (with certain exceptions);
• An “upset” that violates effluent limits; or
• A violation of a daily maximum limit that appears in the permit and is specially marked as reportable under this provision (no such limits appear in DEP-issued permits, so this reporting requirement can be ignored)

“Bypass” is defined in the EPA regulations (40 CFR § 122.41(m)) as when a portion of the forward flow is routed around one or more entire treatment processes. An “upset” (§ 122.41(n)) is narrowly defined as an exceptional and unintentional incident that violates Technology-based limits, which we discussed in the first installment of this series (e.g., C-BOD, TSS and TRC).

DEP includes the EPA rules regarding bypasses in Part B of the permits. There are three types of bypass: (1) necessary for essential maintenance and does not result in an effluent limits violation; (2) unavoidable to prevent injury or “severe property damage;” and (3) any other bypass. The reporting rules are different for each. For the first type, no report is necessary (although I would recommend documenting what happened so that the criteria-—”essential maintenance” and “no violations”-—are on record). For the other two types, a report should be submitted ten days prior to the bypass if possible and within 24 hours if the bypass is unexpected (see the first bullet point above regarding the EPA 24-hour reports). If the report is timely submitted, DEP cannot take enforcement action for the second type of bypass (unavoidable to prevent injury or severe damage), but other instances of bypass are a violation, even if timely reported.[6]

In addition to reporting these events within 24 hours, the EPA regulation requires that a follow-up written report be submitted within 5 days, describing the event, its cause and duration, and steps taken to correct it and prevent reoccurrence. This written report may be waived by DEP at the time the oral report is made (be sure to ask when making the initial report).

Unexpected Events-—DEP Regulations and Permit
The DEP regulations require reporting several types of discharge and potential discharge events that are not addressed by the EPA regulations discussed above. Section 91.33 of the DEP regulations requires reporting any “accident or other activity or incident” that results in a discharge of a pollutant to a waterway (including ditches and drains) or “placed so that it might discharge.” The “person in charge” must report to DEP “immediately” by telephone. For no apparent reason, this Chapter 91 rule is modified in Chapter 92a of the DEP rules. Section 92a.41(b) provides that reports under this section must be submitted as soon as possible but always within four hours. This section also requires that a written report similar to the one in the EPA 24-hour reporting rule be submitted within 5 days. Note that, although this rule is superficially similar to the EPA 24-hour reporting rule, it covers different types of events. Also, there is no provision for DEP to waive the 5 day written report under this section. The Section 91.33 rule also includes requirements to (1) notify downstream users if possible, and (2) clean up the release within 15 days.

Probably of most interest to operators, this provision applies to sanitary sewer overflows (SSOs) as well as other sorts of spills or releases. Note that the report is required only if the discharge reaches, or has the potential to reach, a waterway. Overflows or leaks on a site that are contained so that they do not reach a waterway are not subject to this reporting requirement (although some DEP field staff may insist otherwise).

DEP has developed Supplemental Noncompliance forms to report these discharges and violations. Most of these forms are available on the DEP website or from the Regional office.

There is no DEP regulation for “upsets,” so an upset is reportable within 24 hours under the EPA regulation discussed above.[7]

Compliance Schedules-—EPA Rules
EPA regulations provide that if there is a compliance schedule in the Permit, a report of compliance or non-compliance must be submitted within 14 days of each schedule due date. 40 CFR § 122.41(l)(5).

Compliance Schedules-—NPDES Permit
Part B of DEP-issued NPDES permits contains the EPA requirement above, but extends the requirement well beyond schedules. The Permit states that a report is to be submitted for compliance or non-compliance with “any interim and final requirements contained in this Permit. Such reports shall be submitted no later than 14 days following the applicable schedule date or compliance deadline.” Since effluent limits are final permit requirements with a compliance deadline of the effective date of the permit, this provision requires a report that the POTW is meeting its effluent limits to be submitted within 14 days of the effective date of the permit when it is first issued.

Other Reports 
This article is not comprehensive and does not discuss reports such as the annual “Chapter 94” and industrial pretreatment program reports, whole effluent toxicity testing reports (again, DEP permits differ from the EPA requirements), special studies, and other such things. All operators should review the entire NPDES permit and identify the various kinds of reports that are required. While you may not need to submit the report yourself, your diligence may help the administrative staff avoid a permit violation.

Because of the number of reporting requirements, and the fact that there are three different sets of them (EPA regulations, DEP regulations, and NPDES permits), a matrix is attached which should help identify what requirements apply to what sort of event. In all cases, if there is a question DEP should be contacted and a written record kept of the advice received regarding how, when, and what to report.

[1] For instance, EPA rules require giving “adequate notice” of any “substantial change” in pollutants received from industrial users, while the DEP rules only address planned changes. A truncated version of the EPA requirement is found in Part B.I.C.4 of the permit, which requires reporting certain kinds of industrial waste changes in the annual Wasteload Management (“Chapter 94”) report.

[2] Since the regulations apply to all dischargers, including industrial sources, they are worded very broadly and include reporting changes in treatment processes. However, since substantial modifications to POTW treatment processes may only be made pursuant to a DEP permit, this reporting requirement will only be triggered by a new or changed industrial waste discharge into the system: a “change in waste stream.”

[3] It is not known under what circumstances DEP might approve an increase that would cause a violation of effluent limits, so that part of the requirement seems pointless.

[4] The permit condition actually states any “new introduction of pollutants into the POTW,” which literally would mean any new industrial user, regardless of whether the pollutants were already present from another source. In an attempt to reconcile the regulations and the permit, and in the absence of clarification from DEP, I have assumed that this phrase is intended to mean the “introduction of new pollutants.”

[5] DEP has informally stated that this provision does not require reporting increases in pollutants if they are not planned. If that position is confirmed by a responsible official, we will revise this article and the decision matrix accordingly.

[6] Failure to report a violation is itself a violation, so bypasses should be reported even if they are not excusable.

[7] The EPA regulations state than an upset is a defense to a violation because it is beyond the reasonable control of the operator. However, DEP has not adopted this rule and treats upsets as permit violations.

MATRIX FOR SELECTING REPORTING REQUIREMENTS

Under Pennsylvania Department of Environmental Protection NPDES permits
(All listed requirements apply; always implement all of them if possible)

EPA-DEP-NPDES-Permit-Matrix

1. By definition, a “New” Pollutant is one that was not detected in the influent during the last permit application and, therefore, has no permit limit. However, many detected pollutants (i.e., “existing” pollutants) will also not have a permit limit, so the determination of a “new pollutant” or “existing” pollutant depends on a review of the Application, not the Permit.

2. The 20% criterion is based on maximum loading in the most recent Permit Application

† Most of the EPA Regulations are either restated, or incorporated by reference, in the DEP regulations of Chapter 92a. Where they are not, the entry so indicates (e.g., upsets).

‡ Note that a violation occurs even if effluent limits are met during these bypasses.

© 2017, Randall G. Hurst. May be reproduced only with author’s permission. This summary table does not constitute legal advice and should not be relied on to determine legal obligations.


Other articles in the NPDES Permit Basics – Understanding what’s in your Permit:

Article I: NPDES Technology Based Effluent Limits
Article II: NPDES Water Quality-Based Effluent Limits
Article III: NPDES Technology-Based Effluent Limits
Article IV: NPDES Permit Basics

NPDES Articles (ALL)

NPDES Technology Based Effluent Limits

Part Three of Four

By Randy Hurst

NPDES Technology-Based Effluent Limits

This is the third article in this 4-part series: [1] about NPDES permits for wastewater discharges from Publicly-Owned Treatment Works (POTWs). All POTWs are required by regulation to give a copy of the current NPDES Permit to all of their Certified Operators. Certified operators, in turn, are required by regulation to know what the Permit requirements are and report to the Owner when a violation is–—or is likely to–—occur. Hence, all Certified Operators should become familiar with the provisions of their permits. Because it is the most complex topic, we discuss effluent limits in the first three installments. The fourth article will explore reporting requirements.

There are two conceptually different bases for effluent limits: Technology-based and Water Quality-based. We will discuss Water Quality-based limits in the second article in this series.

The concept of Technology-based Effluent Limits (TBELs) was adopted by Congress in drafting the comprehensive Water Pollution Control Act amendments (now known as the Clean Water Act) in 1972. The idea behind TBELs is to force a reduction of pollutant discharges by requiring the use of available and practical technology. The concept is embodied in the very first section of the Act: “It is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.” (Hence the term “National Pollution Discharge Elimination System.”) Complex analysis of the effects on the environment of each discharge is not needed; everyone must use available and effective technology, with the goal of eventually eliminating pollutant discharges altogether. In this way, all dischargers are treated alike and all pollutant discharges are reduced. This “level playing field” approach reduces a major source of conflict in permitting decisions–—deciding what level of pollutant discharge is acceptable. The law provides the answer: everyone must use the most effective and available pollutant reduction technology.

The Act defined two classes of TBELs: those for industrial dischargers and those for POTWs. Because of the wide variety of industrial processes that produce pollutants, the industrial limits (called, misleadingly, Effluent Limit Guidelines–—they are, in fact, regulations) are developed on an industry-specific basis. Currently, there are about 58 categories of Technology-based Industrial discharge limits. Those of you with Industrial Pretreatment Programs know these better as “Categorical” industrial discharge limits.

The TBELs developed for POTWs are called “Secondary Treatment Standards.” Three pollutants are regulated by Federal Secondary Treatment Standards: BOD/C-BOD, TSS, and pH. The requirements for both BOD and TSS are defined by the allowable effluent concentrations, which are 30 mg/L as a 30-day average and 45 mg/L as a 7-day average; the rule includes slightly lower limits for C-BOD of 25 and 40 mg/l as a 30 and 7-day average respectively. There is also a pH limit of between 6 and 9 at all times. In addition to the discharge limits, POTWs must achieve 85% removal (on a 30-day average basis) of BOD/C-BOD and TSS, based on an influent/effluent comparison. All POTWs must meet these requirements, which are achievable using readily available technology.

In Pennsylvania, PaDEP has expanded the definition of Secondary treatment to be more comprehensive and more stringent than the Federal standards. PaDEP regulations adopt the Federal BOD/C-BOD, TSS and pH limits and removal rates, and add limits for three additional pollutants. The PaDEP regulations also redefine “Secondary Treatment” itself to be more restrictive than the EPA definition.

The definition of Secondary Treatment in PaDEP’s NPDES regulations (Chapter 92a) adds the following two requirements: First, Secondary Treatment must “include significant biological treatment,” which is further defined as the use of a “biological treatment process” (this term is undefined) that achieves at least 65% removal of BOD as a 30-day average. Additionally, the treatment plant must provide for the “disposal or beneficial use of sludge.” All POTW and non-POTW sewage treatment plants in Pennsylvania must meet these operational standards.

The PaDEP regulations also add discharge limits for fecal coliform, total residual chlorine, and oil and grease to the Secondary Treatment standards. Keeping in mind that these limits are based on technology only, they are as follows. Fecal coliform: From May–September: 200 cfu/100 ml as a geometric mean and 1000 cfu/100 ml as a maximum at any time; from October–April the limits are a mean of 2,000 and a maximum of 10,000. Total Residual Chlorine: 0.5 mg/L as a 30-day average (except in Special Protection Waters, where the limit is zero unless special conditions are met). Oil and Grease: maximum of 30 mg/L in any (grab) sample, and 15 mg/L as a daily average (if only one sample is obtained in a day, then the lower limit applies); and “at no time cause a film or sheen upon or discoloration of the waters . . . or adjoining shoreline.”

You might notice that the last limit mentioned differs from all the others mentioned so far in that there is no numerical measurement; it is a “narrative” limit that does not rely on scientific measurements. We will discuss narrative limits in the third article in this series.

Five of the pollutants discussed above–—BOD, TSS, pH, fecal coliform, and oil and grease–—are also called “conventional pollutants” since POTWs are capable of treating these pollutants using conventional treatment methods (as they existed in the 1970’s when the standards were first defined). Thus, Secondary Treatment Standards are TBELs that apply to Conventional Pollutants (plus, in PA, TRC) by regulation and, with one exception, are numerical limits.

Because TBELS are set by regulation, no analysis of the effect on the receiving water is necessary to include them in permits. In fact, many streams are perfectly capable of absorbing C-BOD or TSS concentrations well in excess of the limits. That isn’t the point. The goal of TBELS is to reduce the discharge of pollutants in the hopes of someday meeting the “zero discharge” goal set by Congress over 45 years ago. Over the last 20 years environmental protection groups have periodically urged EPA to “ratchet down” these standards by reducing the limits for BOD/C-BOD and TSS and by adding additional pollutants–—most notably phosphorus and nitrogen–—to the list of conventional pollutants, since readily available modern treatment processes are capable of routinely achieving low levels of these pollutants. To date, EPA has rejected these attempts, at least in part because it believes that attainment of water quality standards can achieve the same objective. We will discuss that concept in the next article.

A final twist on TBELs: In some cases, a permitting agency identifies a pollutant that is not regulated by TBELs, but which may require some limits in the permit. Usually, these pollutants are regulated as water quality-based limits (discussed in the next article), but in some cases the concept of imposing a technology-based “floor” is applicable. The Clean Water Act provides for case-by-case imposition of TBELs under limited circumstances. Section 402(a)(1)(B) states, somewhat densely, “the Administrator [of the EPA] may . . . issue a [NPDES] permit for the discharge of any pollutant . . . upon condition that such discharge will meet (A) all requirements [for TBELS in the Act] or (B) prior to the taking of necessary implementing actions relating to [TBELs], such conditions as the Administrator determines are necessary . . . .” This section is usually referred to as the “best professional judgment” rule. In essence, it allows a TBEL to be developed on a case by case basis when none has been formally adopted for a class of discharger, such as POTWs. However, it also restricts the use of best professional judgment to those parameters that do not already have promulgated TBELs (such as those regulated by secondary treatment standards). This restriction keeps the process “clean”: once the EPA or DEP has gone through the process of determining what technology-based limits are appropriate and POTWs have built treatment plants to meet these standards, it would be counterproductive to have individual permit writers making up their own technology-based limits. This does not mean that more stringent effluent limits for C-BOD or TRC cannot be issued if necessary to protect water quality, however. This “lowest limit controls” principle is discussed in the second article in this series, Water Quality-based effluent limits.

Notes.
[1] This version differs slightly from that published in the PWEA magazine Keystone Water Quality Manager. The final paragraph here does not appear in that article.


Other articles in the NPDES Permit Basics – Understanding what’s in your Permit:

Article I: NPDES Technology Based Effluent Limits
Article II: NPDES Water Quality-Based Effluent Limits
Article IV: NPDES Permit Basics

NPDES Articles (ALL)

NPDES Water Quality Based Effluent Limits

Part Two of Four

By Randy Hurst

NPDES Water Quality-Based Effluent Limits

In the first article in this 4-part series, we discussed “Technology-Based” Effluent Limits, or TBELs, for C-BOD, TSS, pH, fecal coliform bacteria, residual chlorine, and oil and grease. These limits are set by regulation and apply to all POTW discharges regardless of whether or not they are necessary to protect water quality. They are intended to move toward the Clean Water Act’s national goal of “no discharge of pollutants” by requiring all treatment plants to implement readily available technology. For sewage treatment plants, TBELS are the Secondary Treatment standards; for industrial dischargers they are the Effluent Limit Guidelines (also called Categorical Standards).

The 1972 Clean Water Act also set a national “interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water [to] be achieved by July 1, 1983.” [2] A related “national policy” is “that the discharge of toxic pollutants in toxic amounts be prohibited.” These principles, sometimes called the “fishable/swimmable” goal, form the basis for protection of water quality by implementing “Water Quality-Based Effluent Limits,” or WQBELs.[3] The “interim” goals and WQBELs were intended to eventually be superseded by TBELs, which would incrementally implement the national goal of “zero discharge” as the technology to do so becomes available. However, over the last 40 years the emphasis has shifted away from the zero discharge concept and WQBELs have become a permanent part of the permitting system.

Unlike TBELs, which apply to all POTWs equally, WQBELs are site specific. They are based on a concept called “Water Quality Standards,” which involves two sequential analyses to generate an “acceptable” level of pollutant discharge: a level that will not result in adverse effects to aquatic life or to people who use the water. The first step in setting water quality standards is to set the “Designated Use” of the water at issue: what sort of aquatic life is (or should be) present in the receiving water, and what sort of use will the water be put to by humans? Some states have created multiple classes of designated use. Maryland, for instance, defines four classes of waters (each with one subclass) and North Carolina, ten. Pennsylvania, however, classifies all waters into just three classes: warm water fish habitat, trout stocking, and cold water fish habitat; all “waters of the Commonwealth” are also designated for other uses such as a source for public water supply (after proper treatment), irrigation, and recreation.

Step two of setting Water Quality Standards is to establish Water Quality Criteria for individual pollutants to protect the Designated Uses. Criteria are based on various effects on aquatic life or on humans who consume the water. There are multiple considerations. In-stream dissolved oxygen levels are addressed by regulating oxygen demanding pollutants such as C-BOD and ammonia, as well as “nutrients” like nitrogen and phosphorus which contribute to algal blooms and oxygen depletion. Fecal coliform bacteria are limited based on human contact during swimming. Physical effects on aquatic life such as temperature and pH are regulated, primarily in cold water fish habitat. And “toxic” pollutants [4] such as residual chlorine, ammonia, aluminum, copper and toluene are regulated. Most toxic pollutants are evaluated for three kinds of effect: short-term (“acute”) aquatic life effects (high concentrations occurring at the point of effluent discharge, but dissipating with dilution), long term (“chronic”) effects (lower concentrations persisting in the stream after mixing of the effluent), and human health (assuming the pollutant will enter a public water supply after treatment). Given this complexity of analysis when setting limits to protect water quality, it’s easy to see why Congress chose to establish the “floor” of Secondary Treatment to force installation of basic technology that would protect most waters from most pollutants most of the time.

Individual WQBELs are computed for each discharge using the water quality criteria applicable to the receiving water and considering the dilution that occurs when the effluent is discharged. Thus, each POTW’s WQBELs are unique. Small plants discharging to large streams and rivers may have a lot of dilution and therefore no need for WQBELs at all because the actual maximum discharge concentrations resulting from the Secondary Treatment technology are substantially lower than the water quality-based effluent limits. Other plants may have to reduce particular pollutants to achieve some critical water quality criterion. A common example of a water quality-driven effluent limit is ammonia. Ammonia is both an oxygen demanding pollutant and toxic to aquatic life, so two analyses are necessary to set a limit; the lower of the two is used in the NPDES Permit.

This “lowest limit controls” concept also applies to certain Secondary Treatment pollutants. Although C-BOD is limited by the Secondary treatment standard of 25 mg/L as a monthly average, it is also a measure of oxygen demand, so in some cases C-BOD must be reduced to below the secondary treatment level to maintain in-stream dissolved oxygen at the criterion level, especially for waters classified for cold water fishes, which require high DO. Effluent C-BOD limits as low as 10 mg/L appear in some POTW permits for this reason. Similarly, since residual chlorine is toxic, we frequently see effluent TRC limits set much lower than Pennsylvania’s Secondary Treatment limit of 0.5 mg/L to protect aquatic life in the receiving water; in fact, many POTWs have been required to abandon the use of chlorine disinfection altogether to protect water quality.

On the other hand, since there is no water quality criterion for TSS a WQBEL cannot be computed at all and no Reasonable Potential (discussed below) to violate a water quality criterion can exist, so there should be no POTW permits with effluent limits for TSS less than the Secondary Treatment TSS limits of 30 (monthly) and 45 (weekly) mg/L. [Author’s Note: DEP objected to this paragraph and at its request it was omitted from the article published in the Keystone Water Quality Manager. Despite requests, DEP did not provide a reason for its objection.]

In the case of dischargers in the Chesapeake Bay watershed, the analysis is further complicated by the fact that Pennsylvania must honor Maryland’s water quality standards. This results in “cap loads” for nutrients in waters crossing the state line, which DEP then doles out to various sources, including POTWs and non-point sources such as agricultural land use. Thus, although in many cases nutrient limits were not determined to be necessary to protect the receiving stream (i.e., the stream is not “impaired”), water quality-based effluent limits are still necessary to meet criteria set for the Chesapeake Bay many miles away.

By regulation, WQBELs are included in NPDES permits only when the regulatory agency determines that there is a “reasonable potential” for violating water quality criteria if the limits are not imposed.[5] Thus, all WQBELs must be supported by an analysis showing that the discharge has a potential for causing water quality criteria to be exceeded unless an effluent limit is set. To make this determination, PaDEP uses computer programs that compute the maximum allowable effluent concentration using minimum stream flow, maximum (design) effluent flow, a rough estimate of in-stream mixing rate, and other factors (for instance, some metal criteria vary with water hardness and ammonia criteria are pH dependent, so effluent and stream water hardness and pH are factored into some calculations). If the reported maximum effluent concentration is greater than the calculated monthly average limit minus a “safety factor,” then PaDEP assumes that there is a reasonable potential for a water quality impact and imposes the calculated effluent limit.

Since this “reasonable potential” decision is usually based on comparing highest one of three effluent samples obtained during the permit renewal process with the calculated maximum allowable monthly average concentration, it is statistically questionable. Some POTWs that are told that they will have effluent limits for these pollutants have obtained additional samples, either during the permit renewal testing or after seeing the draft permit, to generate statistically valid data for decision-making (and in some cases, “clean sampling” has helped to establish the true concentrations of the pollutant of concern). Some POTWs have avoided thousands of dollars in unnecessary testing costs over the life of their permits by generating data more representative of the monthly average discharge that show that they do not have the potential to cause a water quality criterion violation.

In some cases, a pollutant is present, but not quite at the threshold fraction of the calculated limit to justify an effluent limit. In these cases, PaDEP may include a “monitor” condition in the permit to generate additional effluent data to be used in a future permitting decision.

While most effluent limits are expressed as concentrations, not all limits are stated in numbers. In the next article in this series we will discuss the interesting topic of “narrative” effluent limits.

Notes:

[1] This article was edited at the request of DEP for publication in the PWEA magazine. This version is the full article.

[2] As noted in the first article, the goal of “zero discharge of pollutants” was to be met by 1985.

[3] Imagine how much longer this article would be if we didn’t have acronyms for National Pollutant Discharge Elimination System, water quality-based effluent limits, technology-based effluent limits, treatment standards for publicly owned treatment works, carbonaceous biochemical oxygen demand, total suspended solids, etc.

[4] Technically, only 126 specific pollutants are defined by the Clean Water Act as “toxic.” For purposes of this discussion, however, all pollutants that have a toxic effect are called “toxic.”

[5] The EPA Reasonable Potential standard is at 40 CFR § 122.44(d)(1).


Other articles in the NPDES Permit Basics – Understanding what’s in your Permit:

Article I: NPDES Technology Based Effluent Limits
Article III: NPDES Technology-Based Effluent Limits
Article IV: NPDES Permit Basics

NPDES Articles (ALL)

NPDES Technology Based Effluent Limits

Part One of Four

By Randy Hurst

NPDES Technology-Based Effluent Limits

This is the first in a series of four articles [1] about NPDES permits for wastewater discharges from Publicly-Owned Treatment Works (POTWs). All POTWs are required by regulation to give a copy of the current NPDES Permit to all of their Certified Operators. Certified operators, in turn, are required by regulation to know what the Permit requirements are and report to the Owner when a violation is-—or is likely to-—occur. Hence, all Certified Operators should become familiar with the provisions of their permits. Because it is the most complex topic, we discuss effluent limits in the first three installments. The fourth article will explore reporting requirements.

There are two conceptually different bases for effluent limits: Technology-based and Water Quality-based. We will discuss Water Quality-based limits in the second article in this series.

The concept of Technology-based Effluent Limits (TBELs) was adopted by Congress in drafting the comprehensive Water Pollution Control Act amendments (now known as the Clean Water Act) in 1972. The idea behind TBELs is to force a reduction of pollutant discharges by requiring the use of available and practical technology. The concept is embodied in the very first section of the Act: “It is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.” (Hence the term “National Pollution Discharge Elimination System.”) Complex analysis of the effects on the environment of each discharge is not needed; everyone must use available and effective technology, with the goal of eventually eliminating pollutant discharges altogether. In this way, all dischargers are treated alike and all pollutant discharges are reduced. This “level playing field” approach reduces a major source of conflict in permitting decisions-—deciding what level of pollutant discharge is acceptable. The law provides the answer: everyone must use the most effective and available pollutant reduction technology.

The Act defined two classes of TBELs: those for industrial dischargers and those for POTWs. Because of the wide variety of industrial processes that produce pollutants, the industrial limits (called, misleadingly, Effluent Limit Guidelines-—they are, in fact, regulations) are developed on an industry-specific basis. Currently, there are about 58 categories of Technology-based Industrial discharge limits. Those of you with Industrial Pretreatment Programs know these better as “Categorical” industrial discharge limits.

The TBELs developed for POTWs are called “Secondary Treatment Standards.” Three pollutants are regulated by Federal Secondary Treatment Standards: BOD/C-BOD, TSS, and pH. The requirements for both BOD and TSS are defined by the allowable effluent concentrations, which are 30 mg/L as a 30-day average and 45 mg/L as a 7-day average; the rule includes slightly lower limits for C-BOD of 25 and 40 mg/l as a 30 and 7-day average respectively. There is also a pH limit of between 6 and 9 at all times. In addition to the discharge limits, POTWs must achieve 85% removal (on a 30-day average basis) of BOD/C-BOD and TSS, based on an influent/effluent comparison. All POTWs must meet these requirements, which are achievable using readily available technology.

In Pennsylvania, PaDEP has expanded the definition of Secondary treatment to be more comprehensive and more stringent than the Federal standards. PaDEP regulations adopt the Federal BOD/C-BOD, TSS and pH limits and removal rates, and add limits for three additional pollutants. The PaDEP regulations also redefine “Secondary Treatment” itself to be more restrictive than the EPA definition.

The definition of Secondary Treatment in PaDEP’s NPDES regulations (Chapter 92a) adds the following two requirements: First, Secondary Treatment must “include significant biological treatment,” which is further defined as the use of a “biological treatment process” (this term is undefined) that achieves at least 65% removal of BOD as a 30-day average. Additionally, the treatment plant must provide for the “disposal or beneficial use of sludge.” All POTW and non-POTW sewage treatment plants in Pennsylvania must meet these operational standards.

The PaDEP regulations also add discharge limits for fecal coliform, total residual chlorine, and oil and grease to the Secondary Treatment standards. Keeping in mind that these limits are based on technology only, they are as follows. Fecal coliform: From May–September: 200 cfu/100 ml as a geometric mean and 1000 cfu/100 ml as a maximum at any time; from October–April the limits are a mean of 2,000 and a maximum of 10,000. Total Residual Chlorine: 0.5 mg/L as a 30-day average (except in Special Protection Waters, where the limit is zero unless special conditions are met). Oil and Grease: maximum of 30 mg/L in any (grab) sample, and 15 mg/L as a daily average (if only one sample is obtained in a day, then the lower limit applies); and “at no time cause a film or sheen upon or discoloration of the waters . . . or adjoining shoreline.”

You might notice that the last limit mentioned differs from all the others mentioned so far in that there is no numerical measurement; it is a “narrative” limit that does not rely on scientific measurements. We will discuss narrative limits in the third article in this series.

Five of the pollutants discussed above-—BOD, TSS, pH, fecal coliform, and oil and grease-—are also called “conventional pollutants” since POTWs are capable of treating these pollutants using conventional treatment methods (as they existed in the 1970’s when the standards were first defined). Thus, Secondary Treatment Standards are TBELs that apply to Conventional Pollutants (plus, in PA, TRC) by regulation and, with one exception, are numerical limits.

Because TBELS are set by regulation, no analysis of the effect on the receiving water is necessary to include them in permits. In fact, many streams are perfectly capable of absorbing C-BOD or TSS concentrations well in excess of the limits. That isn’t the point. The goal of TBELS is to reduce the discharge of pollutants in the hopes of someday meeting the “zero discharge” goal set by Congress over 45 years ago. Over the last 20 years environmental protection groups have periodically urged EPA to “ratchet down” these standards by reducing the limits for BOD/C-BOD and TSS and by adding additional pollutants-—most notably phosphorus and nitrogen-—to the list of conventional pollutants, since readily available modern treatment processes are capable of routinely achieving low levels of these pollutants. To date, EPA has rejected these attempts, at least in part because it believes that attainment of water quality standards can achieve the same objective. We will discuss that concept in the next article.

A final twist on TBELs: In some cases, a permitting agency identifies a pollutant that is not regulated by TBELs, but which may require some limits in the permit. Usually, these pollutants are regulated as water quality-based limits (discussed in the next article), but in some cases the concept of imposing a technology-based “floor” is applicable. The Clean Water Act provides for case-by-case imposition of TBELs under limited circumstances. Section 402(a)(1)(B) states, somewhat densely, “the Administrator [of the EPA] may . . . issue a [NPDES] permit for the discharge of any pollutant . . . upon condition that such discharge will meet (A) all requirements [for TBELS in the Act] or (B) prior to the taking of necessary implementing actions relating to [TBELs], such conditions as the Administrator determines are necessary . . . .” This section is usually referred to as the “best professional judgment” rule. In essence, it allows a TBEL to be developed on a case by case basis when none has been formally adopted for a class of discharger, such as POTWs. However, it also restricts the use of best professional judgment to those parameters that do not already have promulgated TBELs (such as those regulated by secondary treatment standards). This restriction keeps the process “clean”: once the EPA or DEP has gone through the process of determining what technology-based limits are appropriate and POTWs have built treatment plants to meet these standards, it would be counterproductive to have individual permit writers making up their own technology-based limits. This does not mean that more stringent effluent limits for C-BOD or TRC cannot be issued if necessary to protect water quality, however. This “lowest limit controls” principle is discussed in the second article in this series, Water Quality-based effluent limits.

Notes.
[1] This version differs slightly from that published in the PWEA magazine Keystone Water Quality Manager. The final paragraph here does not appear in that article.


Other articles in the NPDES Permit Basics – Understanding what’s in your Permit:

Article II: NPDES Water Quality-Based Effluent Limits
Article III: NPDES Technology-Based Effluent Limits
Article IV: NPDES Permit Basics

Have Questions about Commercial Real Estate Valuation?

By Mark Silver Esq.

Selling? Buying? Refinancing? Tax Assessment Appeal? Condemned?

Commercial Real Estate

When establishing a value for commercial real estate, a qualified and experienced PA Certified real estate appraiser is essential. You should engage a professional appraiser who has been certified as a MAI, SRPA or SREA and will comply with the Uniform Standards of Professional Appraisal Practice.

You can help facilitate the process by gathering documentation including: two years of gross revenue; operating and maintenance expenses; real estate taxes; vacancy history; costs of recent improvements and/or major repairs to the land or structure(s).

In order to support their estimate of value, the appraiser may utilize one (or more) valuation approaches including: market (sales comparison); cost in limited instances; or income. If more complex issues arise, the appraiser should work with an experienced real estate attorney to assure a comprehensive appraisal that supports the opinion of value.

If you would like to discuss your commercial real estate legal concerns, contact Mark Silver, Esq by phone at (717) 232-5000 or by email at mssilver@mette.com.

Should I Have My Own Attorney for Residential Real Estate Transactions?

house-for-saleBuying a home will probably be the largest and most significant purchase you will make in your life. Having an experienced real estate attorney who will protect your interests can help you avoid problems with a home purchase or sale.

Residential real estate transactions involve the law of real property, which is unique and can involve issues that require an experienced real estate lawyer who is trained to deal with these problems.

If you’re selling your home and using a real estate agent, you’ll be asked to sign a brokerage contract which may be a standard form that might require certain provisions that aren’t suitable or does not cover unusual circumstances. In addition, these contracts determine who is liable to pay the brokerage commissions. Having an attorney review the brokerage contract before you sign is a good idea.

While the home is being marketed, real estate agents, representing each party, typically handle negotiations between the buyer and seller. Once an informal agreement is reached, buyer and seller enter into a purchase agreement, which is the formal written contract of the sale.

Even the most straightforward real estate transaction involves a large number of documents, all of which should be thoroughly reviewed by an attorney before you sign to ensure that the final documents accurately reflect what you’ve agreed to.

Most buyers need to finance the purchase with a mortgage. The legal commitments required for certain mortgages can be complex. In some cases, purchase agreements contain requirements to protect sellers that require the buyer to obtain a commitment for financing the purchase. Your attorney can review loan documents and explain the important provisions of the documents before you sign.

Your attorney can also verify that the property title is clear. The property title is searched to satisfy the lender and the buyer. Finally, the property is transferred from the seller to the buyer, and the seller receives the purchase price bargained for in the contract.

It’s not uncommon for issues to arise during a home inspection or final walk-through of the property. What happens if a buyer has an inspection of the property that uncovers problems with termites, asbestos or radon? What are the legal consequences if the closing does not take place? What happens to the down payment?

The closing is when the purchase and sale transactions are completed. The deed and other closing papers are signed and the title for the property passes from seller to buyer. Even at this late stage in the transaction, it’s not unheard of for issues to arise. There could be discrepancies in the final closing cost statement, required documents can be missing or the other party may attempt to change the agreement at the last minute. Having an experienced real estate attorney will help to protect your interests and resolve any problems.

Responding to Cell Tower and Similar Lease Offers

By: Jennifer Denchak Wetzel, Esquire

Responding to Cell Tower and Similar Lease Offers

Since agricultural land, almost by definition, is located in rural, sparsely-populated areas across the state, often in townships with loose, or even no, zoning requirements, many such landowners will be approached by a telecommunications company to lease a small portion of their land to construct a cellular tower and related equipment. Like the real estate market in general, location has a significant impact on the market rental price, with some geographic areas seeing significantly higher rental amounts. Having a proposed cellular lease negotiated and reviewed by an attorney who is familiar with these types of leases and aware of market values can be very important for ensuring fair terms and compensation for the landowner.

The standard lease presented to a landowner is written from the perspective of the cellular company tenant. It likely does not provide for the best rental payment and escalator, a signing bonus, payment of attorney fees for lease review and negotiation, and/or payment of a portion of the revenue received by the tower company for additional carriers that co-locate on the site. Further, if the property is enrolled in the Clean and Green program, the lease needs to contain language that requires the cellular company to cover any roll-back taxes attributable to the non-agricultural use of the property.

Agricultural landowners statewide have been, and continue to be, approached by telecommunications companies with leasing opportunities. In the counties bordering Philadelphia, telecommunications companies have entered into agreements with landowners to either lease space on an existing silo for placement of their antennae or to actually assist with the process and cost of constructing a silo for this purpose. In northern and central parts of the state, sites are often selected on the tops of wooded mountains. An optimal site in western Pennsylvania saw the use of a mobile temporary tower for immediate operation. No two telecommunications leases are exactly the same.

If a cellular company needs coverage in your geographic area, and if your site is preferable for any number of reasons, such as elevation, lack of other viable alternatives, preferable zoning requirements, etc., you will have a significant amount of bargaining power, and do not need to settle for the initial lease terms offered by the tower company. Since the duration of the standard cellular tower lease is approximately thirty (30) years, it is important to arrive at lease terms that will benefit the landowner into the future.

Aside from telecommunications leases, agricultural landowners are also often approached by companies to lease portions of their property for other purposes such as wind energy and solar energy. Most of the same concepts apply to the negotiation of the leases associated with these non-agricultural uses.

The attorneys at Mette, Evans and Woodside have experience representing landowners in the review and negotiation of lease agreements for all of the above-mentioned purposes, and are available to assist you in that regard.

Gaining Access to Landlocked Property After O’Reilly Case

By: Paula J. Leicht, Esq.

Gaining Access To Landlocked Property

For property owners whose property does not adjoin a public road and does not have access thereto either through an express access easement or easement across adjoining property by implication involving a common owner in the chain of title, the Private Road Act (the “Act”) of June 13, 1836 P.L. 551 as amended, 36 P.S. §§ 1781-2891, offered the landlocked property owner a remedy.

Since the Act was adopted in 1836, the owner of landlocked property could petition the court of common pleas in the county where the property is located for a Board of Viewers to lay out a road on adjoining properties for access to a public road for the landlocked property. The damages for same as determined by the Board of Viewers would be paid by the landlocked property owner.

Several recent appellate court cases on the subject, however, have called into question the constitutionality of this remedy and its availability to redress the problem. The argument goes that a petitioner must establish that the public be the primary and paramount beneficiary of the opening of the road to the landlocked property, otherwise the taking of another’s property for an access easement would in effect be an unconstitutional taking of another’s property in the absence of a public purpose.

The original case which brought us to this end is In the matter of: Opening a Private Road for benefit of O’Reilly, 954 A.2d 57 (Cmnwth., 2008) (the “First O’Reilly Appeal”). In this First O’Reilly Appeal to Commonwealth Court, the Commonwealth Court upheld the Court of Common Pleas of Allegheny County in determining that the Act is constitutional for many reasons, including the long history of the Act’s use to provide an access remedy for truly landlocked parcels. The Commonwealth Court held that the opening of a road to an otherwise landlocked property serves a public purpose because “otherwise inaccessible swaths of land in Pennsylvania would remain fallow and unproductive, . . . making the land virtually worthless and not contributing to commerce or the tax base of this Commonwealth.”

The parties whose land would be taken for the private access road appealed the First O’Reilly Appeal to the Pennsylvania Supreme Court, 5 A.3d 246 (2010) (the “Second O’Reilly Appeal”). The Pennsylvania Supreme Court sent the case back to the Commonwealth Court to “determine whether the public may be fairly regarded as the primary and paramount beneficiary of a taking under the Act.” Following a further remand by the Commonwealth Court, 22 A.3d 291 (Cmnwth., 2011) to the Court of Common Pleas of Allegheny County to develop additional evidence, the Court of Common Pleas concluded that the petitioner did not establish that the public would be the primary and paramount beneficiary of the O’Reilly application. The petitioner appealed this decision to the Commonwealth Court in the Third O’Reilly Appeal, 100 A.3d 689 (2014), which upheld the lower court’s last conclusion, i.e., that the public benefit was not established in this case.

In conclusion, the above series of appellate cases, although not outright determining that the Act is unconstitutional, certainly will make any future petitioner’s case for access to landlocked property over land of another a very difficult one to win. This result may affect members of the farming community because very often historically agricultural lands were conveyed together with a wood lot on the nearby forested hills, parcels which were not necessarily contiguous to the agricultural lands and parcels for which access easements to a public road were not granted.