Biographical Information Bridget Morris, Manager, Environmental, - - PDF document
Workshop K Air & NPDES P Air & NPDES Permits rmits Best Practices & Succeeding in the Best Practices & Succeeding in the Process t Process to Obtain the Best P Obtain the Best Possible P ssible Permit rmit Thur
Air & NPDES P Air & NPDES Permits … rmits … Best Practices & Succeeding in the Best Practices & Succeeding in the Process t Process to Obtain the Best P Obtain the Best Possible P ssible Permit rmit
Thur Thursda sday, July 20, 20 , July 20, 2017 10:30 a.m. t :30 a.m. to noon noon
Biographical Information
Bridget Morris, Manager, Environmental, Health, Safety, Security & Sustainability VWR Chemicals, LLC, 28600 Fountain Parkway, Solon, OH 44139 440-914-3394 Bridget.Morris@vwr.com
VWR Chemicals, LLC in Solon, Ohio. Ms. Morris has over 20 years of experience in EHS3 compliance with emphasis on Environmental compliance. During this time, she has managed and implemented various EHS3 projects/programs in Ohio and along the Gulf Coast of the US from small R&D facilities to complex petrochemical operations.
University and an Engineering Management certificate from Louisiana State University. Natalie R Pinheiro, Manager Ramboll Environ US Corporation 5747 Perimeter Drive, Suite 220, Dublin, Ohio 43017 (614) 408-0907 Fax (614) 408-0911 npinheiro@ramboll.com Natalie is a Manager at Ramboll Environ’s Dublin Ohio office and has over eight years
diligence fields. During this time, she has directed and participated in a variety of projects for industrial clients throughout Ohio and surrounding states to assist them with air permitting compliance and other regulatory permitting programs including EPCRA, SPCC, NPDES, and hazardous waste. Air experience includes preparation of air emission inventories, air toxics modeling, NESHAP and NSPS applicability, preparation and submittal of air permit applications, correspondence with regulatory agencies, and regulatory reporting and recordkeeping for minor and major sources. She has also assisted facilities with non-attainment new source review and best available control technology analyses. Finally, Natalie has assisted numerous clients with understanding their permit terms and conditions, preparing plans and procedures to ensure compliance, and responding to and negotiating with the Ohio EPA regarding notices of violation. Natalie holds a Bachelor of Science degree in Natural Resources from The Ohio State University and a Master of Science degree in Environmental Science from The Ohio State University.
Biographical Information
Stephen N. Haughey, Member, Frost Brown Todd, LLC 301 East Fourth Street, Great American Tower, Suite 3300, Cincinnati, Ohio 45202 513.651.6127 Fax: 513.651.6981 ssamuels@fbtlaw.com
Steve is a member of Frost Brown Todd and practices in the area of environmental law. He represents clients across the country in regulatory compliance counselling, permit negotiations, wetlands disputes, rulemaking challenges, and in defense of civil enforcement litigation, citizen suits, criminal prosecutions and claims related to contaminated property. Steve has particular proficiency in representing governmental entities and industry in all aspects of storm water and wastewater regulations, including permitting, compliance counselling, rulemaking challenges and enforcement defense, and in local water, sewer and storm water planning and CSO/SSO control plans. His practice also concentrates in the defense of heavily regulated industries, such as iron and steel mills, pulp and paper mills, titanium mills, chemical plants, landfills and food manufacturers. Steve has extensive experience representing Ohio and other Midwestern governmental entities and the industry in the fields of wastewater, stormwater, drinking water and solid waste counselling, litigation, administrative appeals, strategic planning, and civil and criminal enforcement defense. His wastewater practice focuses, in particular, on all aspects of planning, service, treatment and regulation as they apply to owners and operators of POTWs and sewer collection systems. In Ohio alone, Steve represents more than a dozen counties, cities, villages and regional sewer districts, ranging from small satellite sanitary sewer systems to large combined sewer systems. Steve has commented on, negotiated, and, as necessary, appealed more than 100 NPDES permits to various state and federal administrative boards, including the Ohio Environmental Review Appeals Commission and its predecessor, the Ohio Environmental Board of Review, the Pennsylvania Environmental Hearing Board, the Kentucky Environmental Protection Cabinet, the Indiana Department of Environmental Management, the Illinois EPA, the Michigan Department of Environmental Quality, U.S. EPA administrative law judges and the federal Environmental Appeals Board in Washington, DC. In the permitting process, Steve's expertise in water quality standards, wasteload allocation, antidegradation and antibacksliding procedures and stream use designations has enabled him to save owners of POTWs and industrial facilities tens of millions of dollars of unnecessary capital expenditures and annual compliance costs. Steve has been a member of several state wastewater rulemaking advisory committees. He has commented on numerous draft rules for clients and governmental trade associations, and has prosecuted more than a dozen administrative appeals of wastewater-related rules and policies, covering such areas as state water quality standards and stream use designations, TMDL procedures, listings and implementation, CWA 304(l) listings, state antidegradation procedures, storm water and pretreatment requirements, whole effluent toxicity, wasteload allocation procedures, implementation of the federal GLI, and CSO/SSO control strategies and related CMOM requirements. Steve has a B.S. in environmental health and a minor in chemistry, and he interned at an Ohio POTW while in college. He is a frequent speaker on wastewater and stormwater topics to midwestern operators and regularly presents a clinic to managers of POTWs on the basics of water quality-based permitting and negotiation. Steve is a member of the Water Environment Federation and the Ohio Water Environment Association, and is also an affiliate member of the Ohio County Commissioners Association, the Ohio Sanitary Engineers Association and a speaker for the Operator Training Committee of Ohio.
AI R & NPDES PERMI TS … BEST PRACTI CES & SUCCEEDI NG I N THE PROCESS TO OBTAI N THE BEST POSSI BLE PERMI T
Best practices at effectively communicating internally & externally – the do’s & don’ts. Paving the way with early meetings with the regulators to discuss your permits & goals. Potential roadblocks & hurdles to consider. Dealing with a short timeline and/ or limited
draft permit & follow up strategies to achieve a quicker permit. Case studies & examples.
Bridget Morris Manager VWR Chemicals, LLC Natalie Pinheiro Manager Ramboll Environ US Corporation Stephen Haughey Member Frost Brown Todd
AI R PERMI TS
W HAT YOU NEED TO KNOW BEFORE OBTAI NI NG A PERMI T
quick and easy process, like getting a routine construction permit.
source, and at best, the process of obtaining a permit takes at
least a few months.
requirements can result in serious delays that can cost companies
time, money, and lead to violations.
have to be a difficult process.
STEPS I N THE TYPI CAL PERMI TTI NG PROCESS
INTERNAL FACILITY PLANNING/ COMMUNICATION
engineering, sales)
(modifications/ major source thresholds)
requires at least 6 months for air – although this can take less or more time depending
http: / / epa.ohio.gov/ portals/ 47/ facts/ feeschedule.pdf
STEPS I N THE TYPI CAL PERMI TTI NG PROCESS
IDENTIFYING THE PROPER PERMIT TYPE
potential or requested emissions may trigger certain state and federal regulatory requirements (e.g. 21-09, 21-07, 40 CFR Part 60 (COMS), 40 CFR Part 63 (lower VOC contents, requirements to install expensive control equipment), BACT/ BAT, CAM, air toxics).
that triggers certain permitting thresholds and change plan to avoid becoming subject to certain regulations
STEPS I N THE TYPI CAL PERMI TTI NG PROCESS
COMPILING A PERMIT APPLICATION
permitting process
required.
permitting thresholds) include calculations, process flow diagrams (PFD), emissions activity category (EAC) forms, description and location of all control equipment and egress points.
STEPS I N THE TYPI CAL PERMI TTI NG PROCESS
REACHING OUT TO THE OHIO EPA PRIOR TO SUBMITTING APPLICATION
getting through the permit application process.
load
permit after receiving the permit application.
at an early stage.
can begin to have discussions with the agency to see what they have seen required for similar sources.
STEPS I N THE TYPI CAL PERMI TTI NG PROCESS
SUBMITTING PERMIT APPLICATIONS
EPA’s eBusiness Center Air Services.
source of air emissions at a facility.
STEPS I N THE TYPI CAL PERMI TTI NG PROCESS
AFTER PERMIT APPLICATION IS SUBMITTED
regarding your application.
poles, landscaping, etc.
activities, which REQUIRE APPROVAL PRIOR TO IMPLEMENTATION.
STEPS I N THE TYPI CAL PERMI TTI NG PROCESS
PERMIT ISSUANCE
STEPS I N THE TYPI CAL PERMI TTI NG PROCESS
WHAT TO DO AFTER PERMIT IS ISSUED
up the source
POTENTI AL ROADBLOCKS AND HURDLES
OBTAINING A PERMIT
POTENTI AL ROADBLOCKS AND HURDLES
NON-COMPLIANCE
for a currently operating source (either because facility did not continue to evaluate increases in emissions vs permit limits or because a modification was done on the unit and it was not re-evaluated, happens in older sources often)
avoid USEPA involvement.
modifications without evaluating the environmental and permitting implications.
may be/ are (people can and do get fired with significant non-compliance issues occur)
POTENTI AL ROADBLOCKS AND HURDLES
DEALING WITH A LIMITED SCHEDULE
6 months to be issued.
determined to be complete or not within 14 days of submittal
application will go through a more technical review at the district level where the permit terms and conditions will be developed.
complete, the drafted permit will be sent to the central office and a final technical review of the permit is completed.
and a draft/ final permit is issued. Or, if additional information is requested, it can be sent back to the district office. In some cases, the permit can be denied.
to five months after a complete application is received and depending on the complexity of the permit application and the number
is required to put the draft permit
period prior to final issuance.
POTENTI AL ROADBLOCKS AND HURDLES
DEALING WITH A LIMITED BUDGET
(http: / / www.epa.ohio.gov/ dir/ permit_assistance.aspx# 113484684- additional-permitting-resources)
(http: / / www.epa.ohio.gov/ ocapp/ ComplianceAssistanceandPollutionPreventio n.aspx)
early in the planning process (will help prevent schedule stalling later, give the facility ample time to discuss/ plan/ obtain necessary permits/ requirements) for the new process.
the process (will help facilitate a positive relationship with the person potentially writing your permit limits/ requirements, will give you early warnings about scheduling/ unexpected requirements, etc)
PERMI TTI NG - DO’S
complete permit application.
allowed prior to obtaining the permit.
production staff to make sure they can live with permitted throughput limits.
production teams to be aware of planned changes in operations from an early stage.
additional information/ clarification from the Ohio during the application review process.
PERMI TTI NG – DON’TS
permitting discussions.
have impacted emissions.
requirements are and how the limits were developed
WASTEWATER PERMITTING 101
“Negotiating Terms and Conditions for Individual NPDES Permits in the State of Ohio” Remarks of Stephen N. Haughey, Esq. Member, Environmental Practice Group FROST BROWN TODD LLC 301 E. Fourth Street, Suite 3300 Cincinnati, Ohio 45202 (513) 651-6127 shaughey@fbtlaw.com
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I. Introduction. While many terms and conditions in NPDES permits issued by Ohio EPA are standardized and leave little or no room for negotiation, there are often-overlooked opportunities to influence: (1) the presence or absence of numeric limits, (2) the stringency of numeric limits, (3) the deadline to achieve new or more stringent numeric limits, (4) the presence or absence of monitoring requirements, and (5) the level of monitoring requirements.
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than ever, with more effluent limits and monitoring requirements, and more plans and submittals. A 5-year term NPDES permit for a facility with multiple outfalls can easily cost over $100,000 each year in just sampling and monitoring costs alone. If plans, reports, studies/evaluations, or permit to install (PTI) applications are required under the permit, the costs can escalate quickly, particularly if outside firms are necessary. Labor and other manpower expenses can also add substantially to these costs.
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upward of $30,000 or more for each day a term or condition in an NPDES is violated, and with most courts holding that violations of monthly and weekly limits are 30 and 7 days of violation, respectively, the risk of accepting NPDES terms without careful scrutiny is significant.
slippery slope. Once a new monitoring requirement is added to a permit, a database will be generated that must be reviewed by Ohio EPA each renewal to determine if the monitoring should be increased and/or a numeric limit added for the parameter.
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(cont’d)
way streets.” Due to antibacksliding and antidegradation requirements and “regulatory inertia,” limits and monitoring requirements are rarely relaxed or withdrawn in future permits. Permits tend to get more stringent over time, almost never less stringent.
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III. Terms You Can Negotiate in Your NPDES Permit. A. Technology-Based Limits (i.e., “the floor” for permit limits). 1 Federal categorical, technology-based effluent limits for industry, and technology-based secondary treatment standards for POTWs. a. Industry standards codified at 40 CFR Parts 405- 471 for categories of different industries and specific processes, and incorporated by reference in Ohio EPA’s permitting rule (OAC 3745-33-05(A)).
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b. POTW standards codified at 40 CFR Part 133, and incorporated by reference in Ohio EPA’s permitting rule (OAC 3745-33-05(A)). (i) Areas for negotiation under federal categorical effluent limits: (a) Production-based loading limits. (b) Loading versus concentration limits (Ohio EPA Permit Guidance No. 8, available at http://www.epa.ohio.gov/portals/35/guidance/ permit8.pdf). (c) Combined wastestream formula. (d) Intake credits (Ohio EPA Permit Guidance No. 6, available at http://www.epa.
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(e) POTW removal credits. (f) Monitoring waivers for pollutants not present or at levels found in intake water. (g) Overall level
monitoring required in the permit. (ii) Areas for negotiation under the federal secondary standards for POTWs: (a) Wet weather-based, adjusted loading limits and percentage removal requirements for CSO systems. (b) Adjusted standards for POTWs using trickling filters or waste stabilization ponds (lagoons) for primary treatment.
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B. Water Quality Standards-Based Permit Limits. 1. WQBELs are based upon the “reasonable potential” for a pollutant in your discharge to cause or contribute to a violation of an applicable water quality standard. In Ohio, the WQS are both narrative (e.g., streams shall be free of any discharge that is toxic to aquatic life or causes noxious growth of algae or weeds) and numeric (e.g., TDS not to exceed 1500 mg/l). 2. Narrative standards most often used to support whole effluent toxicity monitoring and/or numeric limits, and limits for nutrients (phosphorus and nitrogen). 3. WQBELs are almost always more stringent than technology-based effluent limits for an applicable pollutant.
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C. Projected effluent quality (PEQ) and the important role of your data. 1. Your effluent data is the most important and influential parameter in determining permit limits. The data that you generate
separately as part of a permit renewal application or initial permit application, is evaluated by Ohio EPA, screened as appropriate, and then determinations made regarding the average and maximum PEQ for individual pollutants reported above detection limits. 2. If you generate at least one effluent data point that at or above the applicable detection limit that, Ohio EPA is required, with some exceptions, to determine the maximum and average PEQ for that parameter. OAC 3745-2-04(D).
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3. Your effluent data must, however, be selected and reviewed in a manner that best represents the projected magnitude and variability for each pollutant for the applicable term of a new permit. OAC 3745-2-04(D)(1). In this regard, the most recent 5 years of data must be reviewed and used unless an alternative period better represents the PEQ from your treatment
be used if an upgrade or expansion to the treatment plant took place three years ago and, as a result, only the last 3 years of data are representative of the PEQ of your discharge. As another example, if the treatment plant underwent a period of upset conditions that hindered biological treatment, effluent data for that period may distort the calculated PEQ value and should be discarded.
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4. Because of staffing and funding limitations, a permit renewal application may be submitted several years before the permit renewal process begins and a draft renewal permit issued. MOR and permit renewal application data can become nonrepresentative during the interim. It is up to you to make the best argument possible for the most representative time period for your effluent data. D. Dealing with Outliers. 1. Extreme outliers and other data anomalies resulting from collection, analysis or recording errors, or non-repeated plant
effluent database for purposes of PEQ calculations. OAC 3745-2- 04(D)(1)(b).
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D. Dealing with Outliers. (cont’d) 2. Ohio EPA has a guidance document that sets forth a screening process for outliers and consideration of multiple effluent databases and small data sets. Modeling Guidance No. 1 sets forth these procedures. (available at http://www.epa.ohio.gov/portals/35/guidance/model1.pdf) However, you are free to use an alternative, scientifically defensible statistical method to evaluate your effluent data to demonstrate more accurate long-term variability of your effluent quality. OAC 3745-2-04(D)(2)-(3). A common method is to assume a normal distribution of the data and ask that data points more than two standard deviations away from the mean be discarded. If you do not propose a different statistical method to evaluate the data, Ohio EPA will apply Modeling Guidance No. 1 by default, which employs a conservative procedure that results in fewer data points being rejected as outliers.
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E. Small databases. 1. The default procedure by which Ohio EPA evaluates very small databases (down to as low as a single data point) can result in a grossly inflated calculation of your maximum and average PEQ. Under Modeling Guidance No. 1, the fewer the number of effluent data points, the greater the presumed variability of the effluent quality for that parameter and, as a result, the larger the “fudge factor” (“F”) that is applied to the calculation of the maximum and average PEQ.
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E. Small databases. (cont’d) 2. Permit renewal applications include sampling for more pollutants than just those currently regulated in your permit. If you submit a permit renewal application that includes a single sample result for a pollutant not currently monitored in your permit, and you report that result above the detection limit, Ohio EPA will multiply that single result by a “fudge factor” (F) of 6.2 to calculate the PEQ for that pollutant. Too often this results in new draft monitoring requirements and/or numeric limits for pollutants based on nothing more than the single data point that you submitted as part of your renewal application. Careful review
An unexplained “hit” for a pollutant not known to be in your discharge should prompt an immediate follow up with the lab to determine if there is a reason to support rejecting the data point or, if not, to have the sample rerun if the holding time has not yet expired, or submit a new sample to be analyzed for just that pollutant.
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F. Group classification of your data to determine whether there is “reasonable potential” for your effluent parameters to cause to contribute to an exceedance of an applicable WQS. 1. If the maximum or average PEQ for any pollutant is > 25% of the applicable maximum or average WQS that applies to that parameter, Ohio EPA is required to proceed further to develop a preliminary effluent limit (PEL).
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2. During this process, several factors determine the applicable WQS for comparison to the PEQ: a. For metals whose WQS are based on the hardness of the receiving stream (Cu, Zn, Pb, Cr, Ni, and Cd) Ohio EPA calculates the hardness value depending on the source of the hardness data and the size of the database. OAC 3745-2-04(E). The higher the in-stream hardness, the higher the applicable WQS. If the available hardness data for the stream is limited to 10 or fewer values, Ohio EPA uses the arithmetic mean. For larger databases, it uses the median value. If the critical low flow of the receiving stream during drought conditions is zero or near zero, the hardness of your effluent (assuming that there is data) will be used to determine the applicable WQS for hardness-based metals. If your production water is well water, which typically has greater hardness than surface water, the applicable WQS can be substantially higher.
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b. For ammonia the applicable toxicity- based WQS varies depending on the temperature and pH of the receiving stream. Therefore, to determine what WQS criteria apply to your discharge, Ohio EPA generally looks at the 75th percentile values for temperature and pH in the receiving stream during the applicable summer and winter portion of the year. Once again, if the receiving stream has a critical low flow during drought conditions of zero or near zero, the correct pH and temperature to use to determine the applicable ammonia WQS are those for your effluent. c. For other pollutants, Ohio EPA will use the applicable WQS tables set forth in OAC 3745-1-31 to
to a stream that is in the Ohio River basin or in the Lake Erie basin, and on the particular use designation assigned to .
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the receiving stream. As a general rule, Lake Erie basin standards are somewhat more stringent than the Ohio river basin standards due to the impact of U.S. EPA’s Great Lakes Initiative (GLI), and the fact that a lake is not a “free-flowing”
as the use designation changes in order to protect more sensitive aquatic species. For example, warmwater habitat WQS are generally less stringent than exceptional warmwater habitat WQS, which in turn are generally less stringent than coldwater habitat WQS. The reason is that different use designations seek to promote different types of balanced aquatic populations, some of which are much more sensitive to pollutant loadings. 3. After calculating maximum and average PEQ values for your pollutants and determining the applicable WQS, Ohio EPA develops average and maximum preliminary effluent limitations (PEL) for each .
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pollutant, and compares those values to your maximum and average calculated PEQ values. The result is the group classification of your individual pollutants into groupings, ranging from Group 1 to Group 5. OAC § 3745-2- 06(B). a. A pollutant is classified as Group 5 and receives a WQBEL if the average or maximum PEQ is > the average or maximum PEL, respectively. Pollutant parameters are also classified as Group 5 if the average or maximum PEQ is > 75%
loading of that pollutant downstream from your discharge is 75%
pollutant.
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b. A pollutant is classified as Group 4, for which only a monitoring requirement is imposed, if the average or maximum PEQ is > to 50% of the average or maximum PEL, respectively. For Group 4 pollutants, a tracking requirement is often added to the permit, so that Ohio EPA is notified if the discharge reaches a certain level. c. A pollutant is classified as Group 3 if the average or maximum PEQ is < 50% of the average or maximum PEL. Group 3 pollutants receive only a monitoring requirement. d. A pollutant is classified as Group 2 if the maximum or average PEQ is < than 25% of the maximum or average PEL. Importantly, monitoring requirements shall not be recommended for any Group 2 pollutant. OAC 3745-2- 06(B)(5).
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e. A pollutant is classified as Group 1 if insufficient data is available to determine the applicable, numeric WQS. 4. This “group classification process” demonstrates why it is so important that you review all effluent data very carefully and work hard to ensure that the most representative data is being used, and that all possible outliers are being rejected from your
evaluated to determine applicable WQS, for example, in-stream hardness, pH, and temperature.
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1. On paper, the mass balance equation is relatively simple and straightforward. It is used to develop WQBELs for the conservative, toxic parameters, including metals and many inorganic and organic compounds. Simply put, the total pollutant loading allowable in a stream cannot be exceeded by the total pollutant loading discharged to the stream. The mass balance equation is as follows:
WQBEL < WQS (Qeffluent + Qupstream) – Qupstream (WQupstream)
Qeffluent
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WQS is the water quality standard for your pollutant in a concentration form, Qeffluent is the design flow of your treatment plant, Qupstream is the amount of the stream’s critical low flow that applies to your pollutants, and WQupstream is the background (upstream) water quality for your parameter in a concentration form. 2. Importance of stream “critical” low flow. a. As you can see from the above equation, the amount
important. Because Ohio EPA must protect the receiving stream during drought conditions, the mass balance equation uses critical low flows in the determination of the limit, the amount of which used will vary depending on the parameter being evaluated, and on the ratio of your discharge flow to the critical low-flow in the receiving stream. Different critical low flows are used for different parameters.
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b. You may or may not be entitled to use 100% of the critical low flow of the receiving stream in this calculation. If the critical low flow of your receiving stream is less than or equal to 10 times the design flow of your treatment plant, 100%
based on the assumption that there is rapid and complete mixing
if the ratio is much larger, a smaller percentage of the critical low flow of the stream is used, based on the assumption that mixing is a much slower process between your effluent and the receiving stream. As a general rule, only 10% of the critical low flow of the Ohio River is used when determining WQBELs for average-based WQS, and 1% when determining WQBELs for maximum-based WQS.
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c. It is important that you closely evaluate the available USGS stream flow gauging information to ensure that the correct critical low flow is being used to develop the WQBELs. The determination of critical low flow is also a constantly changing parameter. As additional river flow information is generated each day, the database changes from which the critical low flow value is determined. An outdated period used to determine the critical low flow for the receiving stream will frequently result in overly stringent WQBELs. 3. Importance of upstream or background concentrations. a. Upstream/background concentrations generally improve as additional or new treatment is provided upstream, as additional stormwater controls are implemented upstream, and when upstream dischargers shut down. Often Ohio EPA’s
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database for upstream/background concentrations dates to when the Agency performed its last water quality survey for the receiving stream, which can be 5, 10 or more years old by the time your permit comes up for renewal. Under such circumstances, the background concentrations are often no longer representative of current conditions, and additional sampling should be done to demonstrate what the present background concentrations are upstream from your discharge. 4. If actual effluent flow will differ significantly from the treatment plant’s design flow during the life of the permit, Ohio EPA is required to use a reasonable measure of the actual effluent flow rather than original design flow. OAC 3745-2- 05(A)(4)(b). This generally does not hold true for POTWs, where design flow is used.
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Cd). 1. In addition to confirming the correct hardness value to use to determine the applicable WQS, for these metals, the WQS are based on avoiding toxicity associated with the dissolved form of the metal present in the water column in the receiving stream. Depending on the sources of these metals in your influent, your discharge may have a high ratio of the non-toxic particulate or bound form of these metals to the toxic, dissolved form of the metal.
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2. Because Ohio EPA establishes permit limits for these metals based on the total recoverable form, the Agency allows the use of a dissolved metals translator (DMT) to adjust permit limits based on the percentage of the metal in your discharge in the particulate or bound form. A site-specific DMT can be calculated for your discharge. In the alternative, Ohio EPA has established some default DMTs for certain receiving streams segments. OAC 3745-2-04(F). Ohio EPA has issued modeling guidance with which to develop a site-specific DMT (Modeling Guidance No. 2) (available at http://www.epa.ohio.gov/portals/ 35/guidance/model2.pdf).
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I. Modeling to establish WQBELs for DO-related parameters (DO, ammonia and CBOD) for Sanitary Discharges. 1. Ammonia is regulated in two different ways by Ohio
is avoidance of a DO sag in violation of applicable WQS for DO. 2. The tables found at OAC 3745-1-35 (Tables 35-2 through 35-8) are toxicity-based WQS that are dependent on the seasonal pH and temperature of the receiving stream. If your permit limits for ammonia are established based solely on avoiding ammonia toxicity, the limits will generally be considerably higher, frequently above 5.0 mg/l. Such limits are limited mostly to industrial dischargers of ammonia.
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3. For sanitary discharges, ammonia limits are set at substantially more stringent concentrations based on the need to maintain a minimum DO concentration in the receiving
digest (nitrify) ammonia and feed on organic loadings (CBOD), thereby potentially causing in-stream DO concentrations to fall below the established WQS. For that reason, depending on the size of your receiving stream and the quality of its habitat, ammonia limits based on avoidance of DO violations can be considerably more stringent than ammonia limits based on the avoidance of ammonia toxicity.
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a. In determining ammonia and CBOD limits based
EPA uses a model into which different values for ammonia and CBOD are imputed along with certain stream flow and habitat data, and resulting DO concentrations then determined. Because ammonia, DO and CBOD are interrelated, sanitary dischargers can request that different limits be applied for the parameters, which can result in significant cost savings. For example, accepting a higher DO limit than, for example, the standard limit of 5 mg/l for a WWH, can result in your receiving higher ammonia and CBOD limits. The addition of post-aeration to increase DO concentration in the final effluent is a considerably less expensive step than modifying other segments of the treatment process to reduce ammonia and CBOD loadings.
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J. Importance of water quality stream survey reports and fact sheets. 1. Whether a water quality stream report exists for your receiving stream is important for two reasons when your permit comes up for renewal. First, if your draft renewal permit did not consider the findings of a recent water quality survey report, important information regarding improved upstream/background conditions, attainment of applicable biological and chemical criteria, and changes in stream flow can be obtained from a water quality survey report, and can be valuable in influencing the final terms and conditions of the permit. In the alternative, if the draft renewal permit was issued based on the findings of an outdated water quality stream survey report, the background concentrations, achievement of biological and chemical criteria, and other findings in the stream report, may no longer be representative, and may not reflect the current water quality conditions.
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2. Ohio EPA is required to issue a “fact sheet” with the draft permit issued for all “major” dischargers. The term “major” is generally defined as a treatment plant with a design flow with at least 1.0 mgd, but also includes draft permits that contain a sewage sludge land application plan, as well as draft permits that are the subject of wide-spread public interest or that raise major issues. a. The fact sheet is required to set forth the significant factual, legal, methodological and policy questions that were considered in preparing the draft permit. 40 CFR 124.8. A fact sheet must include: (i) A description of a type of discharge that is the subject of the draft permit;
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(ii) A summary of the basis for each draft permit condition, including references to applicable statutory and regulatory provisions and supporting references to the administrative record developed to support the draft permit; (iii) A statement of basis why any requested variance or alternatives to required effluent standards or WQS are not justified; and (iv) A description of procedures for reaching a final decision on the draft permit, including the beginning and ending date of the comment period, and a summary of the procedures for requesting a hearing on the final permit.
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1. In addition to the expense of sampling and analytical costs, monitoring frequencies that vary from pollutant to pollutant often present a major labor problem for a permit holder, because the potential “hodge podge” of inconsistent, variable sampling requirements cause gross inefficiencies in terms of the manpower that is necessary to take all required samples. Excessive and inconsistent monitoring requirements also increase the risk of oversight. For these reasons, permit holders should not ignore proposed monitoring requirements and frequencies in draft permits.
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2. In general, Ohio EPA uses four permit guidance documents (Guidance Nos. 1-3 and 11) (available at http://www.epa.ohio.gov/dsw/guidance/guidance.aspx#115485539- permit-guidance) to establish influent, effluent, upstream and downstream monitoring requirements for permits, as well as sludge monitoring requirements for sanitary discharges. 3. Permit Guidance No. 1 applies specifically to sanitary discharges, and sets forth recommended monitoring requirements for effluent, influent, upstream and downstream, and sludge. Importantly, generally speaking, the amount and frequency of monitoring requirements are based on the average dry weather design flow of the treatment plant, and, with respect to the sludge, the dry weight of sludge disposed in a calendar year. The requirements can be adjusted and can vary from the recommended levels on a case-by- case basis based on factors such as:
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a. Type of treatment system and the effectiveness of the O&M program for the treatment plant; b. The dilution available in the receiving stream; c. The potential for the discharge to cause violations of WQS; d. It the permit holder is a POTW, whether it participates in the Municipal Compliance Maintenance Program; e. The actual discharge volume of an under-loaded treatment plant; and f. The relevance of the monitoring requirement to the day- to-day operations and performance of the treatment plant.
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4. The important point here is the Ohio EPA has considerable discretion under Guidance No. 1 to vary from the guidance-driven recommendations for monitoring frequencies for sanitary discharges. The Agency has historically been very receptive to requests to harmonize the monitoring requirements to avoid unnecessary labor expenses. In addition, Ohio EPA has also been receptive to significant reductions in monitoring frequencies if the effluent data shows consistent and excellent performance, even if the effluent data does not yet support removing the monitoring requirement completely. 5. Permit Guidance No. 2 applies specifically to industrial discharges and set recommended frequencies based on a formula that includes the discharger’s flow, the ratio of its flow to the critical low flow of the receiving stream, and a factor based on the variability of the discharger’s flow and pollutant loadings. Once again, like Guidance No. 1, this guidance provides Ohio
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EPA with considerable discretion to vary from the recommended monitoring frequencies based on: a. High flows with low pollutant loadings; b. Consistency of frequencies and avoiding inefficiencies for sampling; c. Pollutant loadings with high percentage
inert materials or NCCWs; d. Presence/absence of history of spills or noncompliance; and e. Adequacy of data to determine effluent variability.
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6. Permit Guidance No. 3 is used by Ohio EPA on a case-by-case basis to establish upstream and downstream sampling stations when, for example: a. Biomonitoring requirements are included in the permit; b. There is a need to assess upstream water quality related to a particular permit term or condition (an example is monitoring hardness upstream for purposes of metals limits); c. Where there is a need to assess downstream water quality related to a particular permit term or condition (an example is if Ohio EPA agreed to establish a mixing zone); and d. When Ohio EPA agrees to establish flow-based, tiered permit limits that require monitoring of the upstream or downstream flow in the receiving stream.
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7. Permit Guidance No. 11 sets recommended sampling/reporting requirements for sewage sludge/biosolids from sanitary treatment based on whether the sludge is disposed in a landfill, sent to a POTW for treatment/consolidation with its sludge, incinerated, land applied, or treated to a level sufficient for consumer use as fertilizer. 8. PRACTICE POINTER: If you successfully negotiate minimal sampling requirements for monthly or weekly average limits, such as, for example, a once per month requirement, that sample will determine compliance with the monthly average limit. When sampling frequency is minimized, it is best to sample at the beginning of the month or week, respectively, so that, if the one result should exceed the monthly or weekly average, additional samples can be taken later in the month or week to reduce the average to comply with the applicable limit. Sampling frequencies in permits are minimum frequencies and permittees are free to take additional samples as they so choose, as long as the additional results are reported on the MOR.
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I. Impact
Antibacksliding Requirements
Permit Limits. 1. The concept of “antibacksliding” strikes unnecessary fear into permit holders. While generally speaking, once limits are established in a permit, they cannot be made less stringent in later permits, the more correct application of the term is that such limits cannot be removed or made less stringent in later permits “without a good reason.” 2. Under Ohio EPA’s rules (OAC 3745-33-05(F)), permits can be reissued or modified to contain limits that are less stringent than the previous permit under the following conditions:
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a. Material and substantial additions or alternations to the treatment plant or industrial processes occurred after the permit was issued, which additions or alterations justify the application
b. Information is now available that was unavailable at the time the permit was issued, and which information would have justified less stringent limits had it been available at the time the permit was issued; c. Technical mistakes or mistaken interpretations of law were made in issuing the permit; d. A less stringent limit is necessary because of events over which the permit holder has no control and for which there is no
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e. The permit holder has installed the treatment equipment required to meet the new effluent limits and has operated and maintained the equipment properly, but has nevertheless been unable to achieve the effluent limits; f. If the WQS are being maintained and the request for less stringent limits is submitted to the applicable requirements of Ohio EPA’s antidegradation rule.
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1. Ohio EPA’s antidegradation rule (OAC 3745-1-05) impacts permit terms in several ways. As a general rule, any request for a new
review under the antidegradation rule. The review must be performed upon submission of any “control document” in which the new or increased mass loading is requested, including a PTI application to build or expand a treatment plant, a permit renewal application, or an application submitted to modify an existing permit. 2. The rule is basically designed to protect waters whose quality is better than applicable WQS from losing their margin of higher quality without a good reason. Maintenance of applicable WQS is not in question, just how much of the remaining assimilative capacity will be allotted to new or expanding sources.
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3. If a request for a new or increased mass loading does not meet
that the proposed lowering
water quality is necessary to accommodate important social or economic development, Ohio EPA has the authority under the rule to deny the proposed lowering of water quality, or to limit the proposed lowering of water quality through requiring technically and economically feasible no or minimum degradation alternatives or mitigation techniques. 4. For sanitary discharges subject to conventional parameters (i.e., CBOD, TSS, ammonia, DO, and chlorine residual), the rule typically affects permit holders in two ways. First, if the application is for a new discharge, the permit holder is subject to the BADCT limits set forth in Table 5-1 to the antidegradation rule, regardless of any
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demonstration that important social or economic development issues are at stake. Second, for an expansion to an existing sanitary treatment plant, unless the “important social
economic development demonstration” is made, the increased flow will be offset with more stringent concentration limits, so that there is no net increase in mass loadings to the receiving stream. If the permit holder is already subject to the BADCT limits, a proposed expansion can result in new permit limits that are considerably more stringent than the BADCT limits set forth in the rule for new sources. 5. For industrial discharges, there is no BADCT-type limits in the rule. New sources will be subject to any applicable BAT-based categorical effluent limitations. Modified/expanded sources will be subject to the same type of social/economic development demonstration requirement as for modified/expanded sanitary sources, except that the rule exempts an increase in mass loading when:
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a. It is based on production capacity previously documented
b. When it involves a discharge to a POTW and the increase does not trigger a permit limit for the POTW; c. It involves a de minimis net increase to the receiving stream (generally 10% or less of remaining assimilative capacity
d. It involves a change in fuel if the facility previously had the capability of using that fuel; or
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e. It involves an increase in TSS of 65 mg/l or less or increase in O&G of 10 mg/l or less. 6. PRACTICE POINTER: The social/economic development demonstration requirement is not a significant hurdle to overcome if a proposed industrial expansion will result in new jobs and new tax revenues,
an expanded POTW is necessary to accommodate new growth. Ohio EPA has been very reasonable in allowing proposed increases in pollutant loadings for applicants that were willing to undergo the full antidegradation review process.
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N. Monitoring/Numeric Limits for Phthalates. 1. Phthalates are widely used as plasticizers in the production of PVC piping. They are found in very small concentrations in discharges from many sanitary and industrial
plastic tubing or containers are used. They are relatively expensive to monitor for, and not readily removed by most treatment processes. 2. Ohio EPA has a policy (No. DSW-0700.006, available at http://epa.ohio.gov/portals/35/policy/07_06r.pdf) that states that unless there is a known source, only quarterly monitoring requirements should be imposed, not numeric limits, and only if the effluent data shows the presences of phthalates > 10% of the calculated PEL based on the phthalate WQS.
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3. Because of the expense of monitoring for phthalates, permit holders should carefully evaluate the sampling data submitted with a permit renewal application, because an analysis for phthalates is part of the priority pollutant scan required for the renewal application.
Biomonitoring/Whole Effluent Toxicity Testing. 1. Whole effluent toxicity testing can be very expensive throughout the life of a 5-year permit. If the permit contains a quarterly biomonitoring requirement for both acute and chronic tests for fleas and minnow, the five-year expense for biomonitoring will be close to $50,000 or more. In addition to
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the expense, the unreliability of biomonitoring, particularly in terms of accurately predicting chronic toxicity to fleas, has been questioned and well documented in recent studies. 2. Once you receive a biomonitoring requirement in the permit, you may find it difficult to eliminate or significantly reduce the amount of biomonitoring required in future permits, and the reason may have nothing whatsoever to do with the toxicity of the effluent to the test species. Therefore, it is critically important that you review carefully each set of biomonitoring results, particularly if the results indicate elevated acute
chronic toxicity when your effluent monitoring data shows that the treatment plant is running well and meeting all applicable permit limits.
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3. If you suspect that your lab is producing elevated toxicity results that are inconsistent with the quality of your effluent, you should split a wastewater sample during the next biomonitoring test, and have the biomonitoring performed by two different labs. If it turns out that your lab generated elevated toxicity results compared to another lab, that may be a sign that something is wrong with your lab’s QA/QC procedures, or a problem with the quality of the test organisms purchased to run the tests. 4. Even if you do not currently have a biomonitoring requirement in your permit, Ohio EPA generally requires that permittees conduct one round of biomonitoring to be submitted with the permit renewal application. If that single round of biomonitoring results in elevated toxicity, your next permit may contain periodic biomonitoring requirements.
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5. For discharges to the Ohio River basin, Ohio EPA relies primarily on Table 1 in OAC 3745-33-07 in making decisions on biomonitoring requirements. In that table, the degree of toxicity of your effluent is categorized in one of four categories, ranging from Category 4 for no toxicity, Category 3 for possible toxicity, Category 2 for strongly suspected toxicity, and Category 1 for documented toxicity. 6. Where your effluent falls in these categories depends
performed on your effluent and/or upstream or downstream, the percentage of the tests that exceed a calculated toxicity wasteload allocation for your discharge, and whether the downstream biological criteria are in attainment
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documented toxicity or has the potential to cause or contribute to exceedance of in-stream WQS, the discharge will be classified as Category 1, and the permit will contain a discharge limit for toxicity and regular biomonitoring requirements. If the discharge is classified as Category 2, the permit will contain a monitoring requirement, but not a numeric toxicity limit. If the discharge is classified as Category 3, the Director has discretion to require biomonitoring or require that the permittee conduct an evaluation in order to identify and eliminate or reduce potential sources of toxicity. 7. For discharges to the Lake Erie basin, the determination whether to impose biomonitoring or numeric WET limits is based upon the federal rule developed as part of the GLI (40 CFR 132, Appendix F, Procedure 6) which is
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applicable to Ohio per 40 CFR 132.6(c)). That procedure is considerably stricter than the procedure used for Ohio River basin dischargers, as it uses a formula based on the number of test results, the highest toxicity test reported, a multiplying factor for small databases, and the critical low flow of the receiving stream. 8. On June 23, 2017, Ohio EPA issued draft new Permit Guidance No. 13 (available at http://www.epa.ohio.gov/Portals/35/guidance/wetstaff4.pdf) which provides significant guidance on how the Agency interprets and applies the two different rules for determining whether to impose biomonitoring and/or WET limits in NPDES permits for Lake Erie and Ohio River basin dischargers. The Guidance should be reviewed to determine if it helps in negotiating the biomonitoring and/or WET limits proposed in your next permit.
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P. Interim limits and construction schedules. 1. If a draft renewal permit contains new limits that you know, or suspect, that the facility will be unable to meet consistently once the permit goes final, it is important to negotiate to receive interim, less stringent permit limits and/or a compliance schedule in the final permit. Interim, less-stringent limits and/or compliance schedules should be included in the permit itself, rather than in administrative findings and orders, because the permit terms and conditions are federally enforceable by U.S. EPA and private citizens. Interim, less stringent permit limits and/or compliance schedule that are not a part of the permit are not a defense against claims that the final limits in the permit are being violated.
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2. Ohio EPA is required to include a combination of interim, less-stringent permit limits and/or an appropriate schedule of compliance in a new permit if it contains new or more restrictive WQBELs and you cannot meet those limits, or there is insufficient information at the present time to determine whether you can meet the new limits. OAC 3745-33-05(B) and (G). 3. A schedule of compliance to meet new limits can last beyond the term of a 5-year permit. OAC 3745-33-05 (G)(3)(c). As a general rule, the schedule of compliance should not include milestone dates separated by more than 12 months, and will require submittal of notice to the Agency within 14 days following the completion of each interim milestone date.
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1. Because WQBELs are developed based on the need to protect the aquatic environment during critical low-flow, drought conditions in the receiving stream, the resulting permit limits are substantially more stringent than necessary to protect water quality during the vast majority of the time when the receiving stream has flows significantly above the critical low-flow. 2. Ohio EPA has authority to impose WQBELs only when necessary to achieve and maintain applicable water quality
year under all stream flow conditions can result in significant labor and treatment costs for a permit holder that are unnecessary to achieve and maintain applicable water quality standards.
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3. Ohio EPA has a rule (OAC 3745-2-05) and policy (No. DSW-0100.016, available at http://epa.ohio.gov/portals/ 35/policy/01_16r.pdf) that allow a permit holder to request a tiered permit that contains different limits that apply during different flow ranges in the receiving stream. All that is required is that the permit holder have the capability to monitor stream flow. USGS maintains river gauging stations on most significant streams and rivers in
than $20,000, which will include the ability to obtain instantaneous flow readings through some type of computer linkup on the internet.
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1. Proper group classification of your pollutants. 2. Avoiding monitoring requirements or effluent limits based
3. Discarding non-representative or outlier effluent data. 4. Reducing excessive (and expensive) monitoring requirements. 5. Harmonizing sampling frequencies to reduce labor costs. 6. Concentration versus loading limits.
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7. Calculation errors for production-based limits, and increasing limits based on planned increases in production. 8. Proper classification of regulated and non-regulated wastestreams under the combined wastestream formula. 9. Trading off ammonia, DO and CBOD limits for sanitary discharges.
more stringent limits.
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WASTEWATER PERMITTING 101
“Negotiating Terms and Conditions for Individual NPDES Permits in the State of Ohio” Remarks of Stephen N. Haughey, Esq. Member, Environmental Practice Group FROST BROWN TODD LLC 301 E. Fourth Street, Suite 3300 Cincinnati, Ohio 45202 (513) 651-6127 shaughey@fbtlaw.com I. Introduction. While many terms and conditions in NPDES permits issued by Ohio EPA are standardized and leave little or no room for negotiation, there are often-overlooked opportunities to influence: (1) the presence or absence of numeric limits, (2) the stringency of numeric limits, (3) the deadline to achieve new or more stringent numeric limits, (4) the presence or absence of monitoring requirements, and (5) the level of monitoring requirements. II. Why Negotiate the Terms in Your NPDES Permit?
and monitoring requirements, and more plans and submittals. A 5-year term NPDES permit for a facility with multiple outfalls can easily cost over $100,000 each year in just sampling and monitoring costs alone. If plans, reports, studies/evaluations, or permit to install (PTI) applications are required under the permit, the costs can escalate quickly, particularly if outside firms are necessary. Labor and other manpower expenses can also add substantially to these costs.
each day a term or condition in an NPDES is violated, and with most courts holding that violations of monthly and weekly limits are 30 and 7 days of violation, respectively, the risk of accepting NPDES terms without careful scrutiny is significant.
will be generated that must be reviewed by Ohio EPA each renewal to determine if the monitoring should be increased and/or a numeric limit added for the parameter.
and antidegradation requirements and “regulatory inertia,” limits and monitoring requirements are rarely relaxed or withdrawn in future permits. Permits tend to get more stringent over time, almost never less stringent.
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III. Terms You Can Negotiate in Your NPDES Permit.
based secondary treatment standards for POTWs.
industries and specific processes, and incorporated by reference in Ohio EPA’s permitting rule (OAC 3745-33-05(A)).
Ohio EPA’s permitting rule (OAC 3745-33-05(A)). i. Areas for negotiation under federal categorical effluent limits: a) Production-based loading limits. b) Loading versus concentration limits (Ohio EPA Permit Guidance No. 8, available at http://www.epa.ohio.gov/portals/35/guidance/permit8.pdf). c) Combined wastestream formula. d) Intake credits (Ohio EPA Permit Guidance No. 6, available at http://www.epa.ohio.gov/portals/35/guidance/permit6.pdf) e) POTW removal credits. f) Monitoring waivers for pollutants not present or at levels found in intake water. g) Overall level of monitoring required in the permit. ii. Areas for negotiation under the federal secondary standards for POTWs: a) Wet weather-based, adjusted loading limits and percentage removal requirements for CSO systems. b) Adjusted standards for POTWs using trickling filters or waste stabilization ponds (lagoons) for primary treatment.
to cause or contribute to a violation of an applicable water quality standard. In Ohio, the WQS are both narrative (e.g., streams shall be free of any discharge that is toxic to aquatic life or causes noxious growth of algae or weeds) and numeric (e.g., TDS not to exceed 1500 mg/l).
and/or numeric limits, and limits for nutrients (phosphorus and nitrogen).
an applicable pollutant.
permit limits. The data that you generate over the term of your permit, and the effluent data you generate separately as part of a permit renewal application or initial permit application, is evaluated by Ohio EPA, screened as appropriate, and then
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determinations made regarding the average and maximum PEQ for individual pollutants reported above detection limits.
detection limit that, Ohio EPA is required, with some exceptions, to determine the maximum and average PEQ for that parameter. OAC 3745-2-04(D).
represents the projected magnitude and variability for each pollutant for the applicable term of a new permit. OAC 3745-2-04(D)(1). In this regard, the most recent 5 years of data must be reviewed and used unless an alternative period better represents the PEQ from your treatment plant. For example, the last five years of MOR data should not be used if an upgrade or expansion to the treatment plant took place three years ago and, as a result, only the last 3 years of data are representative
period of upset conditions that hindered biological treatment, effluent data for that period may distort the calculated PEQ value and should be discarded.
submitted several years before the permit renewal process begins and a draft renewal permit issued. MOR and permit renewal application data can become nonrepresentative during the interim. It is up to you to make the best argument possible for the most representative time period for your effluent data.
recording errors, or non-repeated plant operation or discharge conditions, can be eliminated from your effluent database for purposes of PEQ calculations. OAC § 3745-2-04(D)(1)(b).
and consideration of multiple effluent databases and small data sets. Modeling Guidance No. 1 sets forth these procedures. (available at http://www.epa.ohio.gov/portals/35/guidance/model1.pdf) However, you are free to use an alternative, scientifically defensible statistical method to evaluate your effluent data to demonstrate more accurate long-term variability of your effluent quality. OAC § 3745-2-04(D)(2)-(3). A common method is to assume a normal distribution
mean be discarded. If you do not propose a different statistical method to evaluate the data, Ohio EPA will apply Modeling Guidance No. 1 by default, which employs a conservative procedure that results in fewer data points being rejected as outliers.
as low as a single data point) can result in a grossly inflated calculation of your maximum and average PEQ. Under Modeling Guidance No. 1, the fewer the number
that parameter and, as a result, the larger the “fudge factor” (“F”) that is applied to the
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calculation of the maximum and average PEQ.
currently regulated in your permit. If you submit a permit renewal application that includes a single sample result for a pollutant not currently monitored in your permit, and you report that result above the detection limit, Ohio EPA will multiply that single result by a “fudge factor” (F) of 6.2 to calculate the PEQ for that pollutant. Too often this results in new draft monitoring requirements and/or numeric limits for pollutants based on nothing more than the single data point that you submitted as part
should prompt an immediate follow up with the lab to determine if there is a reason to support rejecting the data point or, if not, to have the sample rerun if the holding time has not yet expired, or submit a new sample to be analyzed for just that pollutant.
potential” for your effluent parameters to cause to contribute to an exceedance of an applicable WQS.
maximum or average WQS that applies to that parameter, Ohio EPA is required to proceed further to develop a preliminary effluent limit (PEL).
the PEQ:
Zn, Pb, Cr, Ni, and Cd) Ohio EPA calculates the hardness value depending on the source of the hardness data and the size of the database. OAC 3745-2-04(E). The higher the in-stream hardness, the higher the applicable WQS. If the available hardness data for the stream is limited to 10 or fewer values, Ohio EPA uses the arithmetic mean. For larger databases, it uses the median value. If the critical low flow of the receiving stream during drought conditions is zero or near zero, the hardness of your effluent (assuming that there is data) will be used to determine the applicable WQS for hardness-based metals. If your production water is well water, which typically has greater hardness than surface water, the applicable WQS can be substantially higher.
temperature and pH of the receiving stream. Therefore, to determine what WQS criteria apply to your discharge, Ohio EPA generally looks at the 75th percentile values for temperature and pH in the receiving stream during the applicable summer and winter portion of the year. Once again, if the receiving stream has a critical low flow during drought conditions of zero or near zero, the correct pH and temperature to use to determine the applicable ammonia WQS are those for your effluent.
OAC 3745-1-31 to 37. The WQS vary depending on whether the discharge is to a stream that is in the Ohio River basin or in the Lake Erie basin, and on the particular use designation assigned to the receiving stream. As a general rule,
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Lake Erie basin standards are somewhat more stringent than the Ohio river basin standards due to the impact of U.S. EPA’s Great Lakes Initiative (GLI), and the fact that a lake is not a “free-flowing” stream. As a general rule, the WQS also become more stringent as the use designation changes in order to protect more sensitive aquatic species. For example, warmwater habitat WQS are generally less stringent than exceptional warmwater habitat WQS, which in turn are generally less stringent than coldwater habitat WQS. The reason is that different use designations seek to promote different types of balanced aquatic populations, some of which are much more sensitive to pollutant loadings.
determining the applicable WQS, Ohio EPA develops average and maximum preliminary effluent limitations (PEL) for each pollutant, and compares those values to your maximum and average calculated PEQ values. The result is the group classification of your individual pollutants into groupings, ranging from Group 1 to Group 5. OAC § 3745-2- 06(B).
maximum PEQ is > the average or maximum PEL, respectively. Pollutant parameters are also classified as Group 5 if the average or maximum PEQ is > 75% of the average or maximum PEL, respectively, and the total loading of that pollutant downstream from your discharge is 75% or more of the loading capacity
imposed, if the average or maximum PEQ is > to 50% of the average or maximum PEL, respectively. For Group 4 pollutants, a tracking requirement is often added to the permit, so that Ohio EPA is notified if the discharge reaches a certain level.
the average or maximum PEL. Group 3 pollutants receive only a monitoring requirement.
25% of the maximum or average PEL. Importantly, monitoring requirements shall not be recommended for any Group 2 pollutant. OAC 3745-2- 06(B)(5).
the applicable, numeric WQS.
review all effluent data very carefully and work hard to ensure that the most representative data is being used, and that all possible outliers are being rejected from your database. It also underscores the importance of conducting your own evaluation
example, in-stream hardness, pH, and temperature.
used to develop WQBELs for the conservative, toxic parameters, including metals and many inorganic and organic compounds. Simply put, the total pollutant loading allowable in a stream cannot be exceeded by the total pollutant loading discharged to
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the stream. The mass balance equation is as follows:
WQBEL < WQS (Qeffluent + Qupstream) – Qupstream (WQupstream)
Qeffluent WQS is the water quality standard for your pollutant in a concentration form, Qeffluent is the design flow of your treatment plant, Qupstream is the amount of the stream’s critical low flow that applies to your pollutants, and WQupstream is the background (upstream) water quality for your parameter in a concentration form.
develop the WQBEL is critically important. Because Ohio EPA must protect the receiving stream during drought conditions, the mass balance equation uses critical low flows in the determination of the limit, the amount of which used will vary depending on the parameter being evaluated, and on the ratio of your discharge flow to the critical low-flow in the receiving stream. Different critical low flows are used for different parameters.
receiving stream in this calculation. If the critical low flow of your receiving stream is less than or equal to 10 times the design flow of your treatment plant, 100% of the critical low flow of the stream is used in the equation, based on the assumption that there is rapid and complete mixing of your discharge with the receiving stream. On the other hand, if the ratio is much larger, a smaller percentage of the critical low flow of the stream is used, based on the assumption that mixing is a much slower process between your effluent and the receiving
used when determining WQBELs for average-based WQS, and 1% when determining WQBELs for maximum-based WQS.
information to ensure that the correct critical low flow is being used to develop the WQBELs. The determination of critical low flow is also a constantly changing parameter. As additional river flow information is generated each day, the database changes from which the critical low flow value is determined. An
will frequently result in overly stringent WQBELs.
treatment is provided upstream, as additional stormwater controls are implemented upstream, and when upstream dischargers shut down. Often Ohio EPA’s database for upstream/background concentrations dates to when the Agency performed its last water quality survey for the receiving stream, which can be 5, 10 or more years old by the time your permit comes up for renewal. Under such circumstances, the background concentrations are often no longer representative of current conditions, and additional sampling should be done to demonstrate what the present background concentrations are upstream from your discharge.
during the life of the permit, Ohio EPA is required to use a reasonable measure of the
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actual effluent flow rather than original design flow. OAC 3745-2-05(A)(4)(b). This generally does not hold true for POTWs, where design flow is used.
WQS, for these metals, the WQS are based on avoiding toxicity associated with the dissolved form of the metal present in the water column in the receiving stream. Depending on the sources of these metals in your influent, your discharge may have a high ratio of the non-toxic particulate or bound form of these metals to the toxic, dissolved form of the metal.
recoverable form, the Agency allows the use of a dissolved metals translator (DMT) to adjust permit limits based on the percentage of the metal in your discharge in the particulate or bound form. A site-specific DMT can be calculated for your discharge. In the alternative, Ohio EPA has established some default DMTs for certain receiving streams segments. OAC 3745-2-04(F). Ohio EPA has issued modeling guidance with which to develop a site-specific DMT (Modeling Guidance No. 2) (available at http://www.epa.ohio.gov/portals/35/guidance/model2.pdf).
CBOD) for Sanitary Discharges.
ammonia toxicity, and the second is avoidance of a DO sag in violation of applicable WQS for DO.
WQS that are dependent on the seasonal pH and temperature of the receiving stream. If your permit limits for ammonia are established based solely on avoiding ammonia toxicity, the limits will generally be considerably higher, frequently above 5.0 mg/l. Such limits are limited mostly to industrial dischargers of ammonia.
concentrations based on the need to maintain a minimum DO concentration in the receiving stream. Bacteria and other organisms consume oxygen as they digest (nitrify) ammonia and feed on organic loadings (CBOD), thereby potentially causing in-stream DO concentrations to fall below the established WQS. For that reason, depending on the size of your receiving stream and the quality of its habitat, ammonia limits based on avoidance of DO violations can be considerably more stringent than ammonia limits based on the avoidance of ammonia toxicity.
minimum DO criteria, Ohio EPA uses a model into which different values for ammonia and CBOD are imputed along with certain stream flow and habitat data, and resulting DO concentrations then determined. Because ammonia, DO and CBOD are interrelated, sanitary dischargers can request that different limits be applied for the parameters, which can result in significant cost savings. For example, accepting a higher DO limit than, for example, the standard limit of 5
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mg/l for a WWH, can result in your receiving higher ammonia and CBOD limits. The addition of post-aeration to increase DO concentration in the final effluent is a considerably less expensive step than modifying other segments of the treatment process to reduce ammonia and CBOD loadings.
for two reasons when your permit comes up for renewal. First, if your draft renewal permit did not consider the findings of a recent water quality survey report, important information regarding improved upstream/background conditions, attainment of applicable biological and chemical criteria, and changes in stream flow can be
final terms and conditions of the permit. In the alternative, if the draft renewal permit was issued based on the findings of an outdated water quality stream survey report, the background concentrations, achievement of biological and chemical criteria, and
reflect the current water quality conditions.
“major” dischargers. The term “major” is generally defined as a treatment plant with a design flow with at least 1.0 mgd, but also includes draft permits that contain a sewage sludge land application plan, as well as draft permits that are the subject of wide-spread public interest or that raise major issues.
and policy questions that were considered in preparing the draft permit. 40 CFR 124.8. A fact sheet must include: i. A description of a type of discharge that is the subject of the draft permit; ii. A summary of the basis for each draft permit condition, including references to applicable statutory and regulatory provisions and supporting references to the administrative record developed to support the draft permit; iii. A statement of basis why any requested variance or alternatives to required effluent standards or WQS are not justified; and iv. A description of procedures for reaching a final decision on the draft permit, including the beginning and ending date of the comment period, and a summary of the procedures for requesting a hearing on the final permit.
that vary from pollutant to pollutant often present a major labor problem for a permit holder, because the potential “hodge podge” of inconsistent, variable sampling requirements cause gross inefficiencies in terms of the manpower that is necessary to take all required samples. Excessive and inconsistent monitoring requirements also increase the risk of oversight. For these reasons, permit holders should not ignore proposed monitoring requirements and frequencies in draft permits.
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11) (available at http://www.epa.ohio.gov/dsw/guidance/guidance.aspx#115485539- permit-guidance) to establish influent, effluent, upstream and downstream monitoring requirements for permits, as well as sludge monitoring requirements for sanitary discharges.
recommended monitoring requirements for effluent, influent, upstream and downstream, and sludge. Importantly, generally speaking, the amount and frequency
treatment plant, and, with respect to the sludge, the dry weight of sludge disposed in a calendar year. The requirements can be adjusted and can vary from the recommended levels on a case-by-case basis based on factors such as:
treatment plant;
Compliance Maintenance Program;
performance of the treatment plant.
for sanitary discharges. The Agency has historically been very receptive to requests to harmonize the monitoring requirements to avoid unnecessary labor expenses. In addition, Ohio EPA has also been receptive to significant reductions in monitoring frequencies if the effluent data shows consistent and excellent performance, even if the effluent data does not yet support removing the monitoring requirement completely.
recommended frequencies based on a formula that includes the discharger’s flow, the ratio of its flow to the critical low flow of the receiving stream, and a factor based on the variability of the discharger’s flow and pollutant loadings. Once again, like Guidance No. 1, this guidance provides Ohio EPA with considerable discretion to vary from the recommended monitoring frequencies based on:
upstream and downstream sampling stations when, for example:
limits);
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permit term or condition (an example is if Ohio EPA agreed to establish a mixing zone); and
monitoring of the upstream or downstream flow in the receiving stream.
sewage sludge/biosolids from sanitary treatment based on whether the sludge is disposed in a landfill, sent to a POTW for treatment/consolidation with its sludge, incinerated, land applied, or treated to a level sufficient for consumer use as fertilizer.
for monthly or weekly average limits, such as, for example, a once per month requirement, that sample will determine compliance with the monthly average limit. When sampling frequency is minimized, it is best to sample at the beginning of the month or week, respectively, so that, if the one result should exceed the monthly or weekly average, additional samples can be taken later in the month or week to reduce the average to comply with the applicable limit. Sampling frequencies in permits are minimum frequencies and permittees are free to take additional samples as they so choose, as long as the additional results are reported on the MOR.
generally speaking, once limits are established in a permit, they cannot be made less stringent in later permits, the more correct application of the term is that such limits cannot be removed or made less stringent in later permits “without a good reason.”
to contain limits that are less stringent than the previous permit under the following conditions:
industrial processes occurred after the permit was issued, which additions or alterations justify the application of less stringent effluent limits;
issued, and which information would have justified less stringent limits had it been available at the time the permit was issued;
permit;
has no control and for which there is no other reasonably available remedy;
effluent limits and has operated and maintained the equipment properly, but has nevertheless been unable to achieve the effluent limits;
submitted to the applicable requirements of Ohio EPA’s antidegradation rule.
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pollutant will trigger some level of review under the antidegradation rule. The review must be performed upon submission of any “control document” in which the new or increased mass loading is requested, including a PTI application to build or expand a treatment plant, a permit renewal application, or an application submitted to modify an existing permit.
WQS from losing their margin of higher quality without a good reason. Maintenance
capacity will be allotted to new or expanding sources.
exemptions, and the applicant does not demonstrate that the proposed lowering of water quality is necessary to accommodate important social or economic development, Ohio EPA has the authority under the rule to deny the proposed lowering of water quality, or to limit the proposed lowering of water quality through requiring technically and economically feasible no or minimum degradation alternatives or mitigation techniques.
ammonia, DO, and chlorine residual), the rule typically affects permit holders in two
the BADCT limits set forth in Table 5-1 to the antidegradation rule, regardless of any demonstration that important social or economic development issues are at stake. Second, for an expansion to an existing sanitary treatment plant, unless the “important social or economic development demonstration” is made, the increased flow will be
loadings to the receiving stream. If the permit holder is already subject to the BADCT limits, a proposed expansion can result in new permit limits that are considerably more stringent than the BADCT limits set forth in the rule for new sources.
will be subject to any applicable BAT-based categorical effluent limitations. Modified/expanded sources will be subject to the same type of social/economic development demonstration requirement as for modified/expanded sanitary sources, except that the rule exempts an increase in mass loading when:
permit limit for the POTW;
less of remaining assimilative capacity of high quality waters or 5% of superior high quality waters);
that fuel; or
less.
requirement is not a significant hurdle to overcome if a proposed industrial
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expansion will result in new jobs and new tax revenues, or an expanded POTW is necessary to accommodate new growth. Ohio EPA has been very reasonable in allowing proposed increases in pollutant loadings for applicants that were willing to undergo the full antidegradation review process.
found in very small concentrations in discharges from many sanitary and industrial
containers are used. They are relatively expensive to monitor for, and not readily removed by most treatment processes.
EPA has a policy (No. DSW-0700.006, available at http://epa.ohio.gov/portals/35/policy/07_06r.pdf) that states that unless there is a known source, only quarterly monitoring requirements should be imposed, not numeric limits, and only if the effluent data shows the presences of phthalates > 10%
evaluate the sampling data submitted with a permit renewal application, because an analysis for phthalates is part of the priority pollutant scan required for the renewal application.
and chronic tests for fleas and minnow, the five-year expense for biomonitoring will be close to $50,000 or more. In addition to the expense, the unreliability of biomonitoring, particularly in terms of accurately predicting chronic toxicity to fleas, has been questioned and well documented in recent studies.
to eliminate or significantly reduce the amount of biomonitoring required in future permits, and the reason may have nothing whatsoever to do with the toxicity of the effluent to the test species. Therefore, it is critically important that you review carefully each set of biomonitoring results, particularly if the results indicate elevated acute or chronic toxicity when your effluent monitoring data shows that the treatment plant is running well and meeting all applicable permit limits.
with the quality of your effluent, you should split a wastewater sample during the next biomonitoring test, and have the biomonitoring performed by two different labs. If it turns out that your lab generated elevated toxicity results compared to another lab, that may be a sign that something is wrong with your lab’s QA/QC procedures,
EPA generally requires that permittees conduct one round of biomonitoring to be submitted with the permit renewal application. If that single round of biomonitoring
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results in elevated toxicity, your next permit may contain periodic biomonitoring requirements.
3745-33-07 in making decisions on biomonitoring requirements. In that table, the degree of toxicity of your effluent is categorized in one of four categories, ranging from Category 4 for no toxicity, Category 3 for possible toxicity, Category 2 for strongly suspected toxicity, and Category 1 for documented toxicity.
factors, including the number of tests performed on your effluent and/or upstream or downstream, the percentage of the tests that exceed a calculated toxicity wasteload allocation for your discharge, and whether the downstream biological criteria are in attainment or nonattainment. As a general rule, if the discharge has documented toxicity or has the potential to cause or contribute to exceedance of in-stream WQS, the discharge will be classified as Category 1, and the permit will contain a discharge limit for toxicity and regular biomonitoring requirements. If the discharge is classified as Category 2, the permit will contain a monitoring requirement, but not a numeric toxicity limit. If the discharge is classified as Category 3, the Director has discretion to require biomonitoring or require that the permittee conduct an evaluation in order to identify and eliminate or reduce potential sources of toxicity.
biomonitoring or numeric WET limits is based upon the federal rule developed as part of the GLI (40 CFR 132, Appendix F, Procedure 6) which is applicable to Ohio per 40 CFR 132.6(c)). That procedure is considerably stricter than the procedure used for Ohio River basin dischargers, as it uses a formula based on the number of test results, the highest toxicity test reported, a multiplying factor for small databases, and the critical low flow of the receiving stream.
http://www.epa.ohio.gov/Portals/35/guidance/wetstaff4.pdf) which provides significant guidance on how the Agency interprets and applies the two different rules for determining whether to impose biomonitoring and/or WET limits in NPDES permits for Lake Erie and Ohio River basin dischargers. The Guidance should be reviewed to determine if it helps in negotiating the biomonitoring and/or WET limits proposed in your next permit.
facility will be unable to meet consistently once the permit goes final, it is important to negotiate to receive interim, less stringent permit limits and/or a compliance schedule in the final permit. Interim, less-stringent limits and/or compliance schedules should be included in the permit itself, rather than in administrative findings and orders, because the permit terms and conditions are federally enforceable by U.S. EPA and private citizens. Interim, less stringent permit limits and/or compliance schedule that are not a part of the permit are not a defense against claims that the final limits in the permit are being violated.
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limits and/or an appropriate schedule of compliance in a new permit if it contains new or more restrictive WQBELs and you cannot meet those limits, or there is insufficient information at the present time to determine whether you can meet the new limits. OAC 3745-33-05(B) and (G).
compliance should not include milestone dates separated by more than 12 months, and will require submittal of notice to the Agency within 14 days following the completion of each interim milestone date.
environment during critical low-flow, drought conditions in the receiving stream, the resulting permit limits are substantially more stringent than necessary to protect water quality during the vast majority of the time when the receiving stream has flows significantly above the critical low-flow.
maintain applicable water quality standards. ORC 6111.03(J)(3). Meeting WQBELs throughout the year under all stream flow conditions can result in significant labor and treatment costs for a permit holder that are unnecessary to achieve and maintain applicable water quality standards.
http://epa.ohio.gov/portals/35/policy/01_16r.pdf) that allow a permit holder to request a tiered permit that contains different limits that apply during different flow ranges in the receiving stream. All that is required is that the permit holder have the capability to monitor stream flow. USGS maintains river gauging stations on most significant streams and rivers in Ohio. An additional gauging station can be added at a cost of less than $20,000, which will include the ability to obtain instantaneous flow readings through some type of computer linkup on the internet.
small database.
increases in production.
combined wastestream formula.
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