Pretreatment Compliance – Code Enforcement & Beyond

1. Pretreatment Compliance– Code Enforcement & Beyond Region VI Pretreatment Workshop August 5, 2009 Michael P. Carolan Water Utility Legal Coordinator Special Services Division (SSD)

2. Overview of Topics • Legal Authority • Program Objectives • Enforcement Response Plan • Key Enforcement Elements • Typically Noted Violations • Enforcement Options • Example Cases • Questions?

3. Legal Authority – Three Levels Federal a) General Pretreatment Regulations - 40 CFR Part 403 b) Categorical Pretreatment Regulations - Industry Specific Standards

4. Legal Authority – Three Levels State a) 30 TAC Chapter 315 - Delegation to Texas as Approval Authority for Pretreatment Regulations b) Texas Water Code, Chapter 26 (Water Quality Control) c) TPDES Permits d) 30 TAC Chapter 312 (Sludge Use, Disposal, and Transportation)

5. Legal Authority – Three Levels Local a) The Austin City Code (Chapter 15-10 “Wastewater Regulations” and Article 2 of Chapter 15-5 “Liquid Waste Haulers”) b) Control Documents (Wastewater Discharge Permits, Compliance Orders, etc.)

6. Pretreatment Program Objectives • Protect the health and safety of the public, the environment and utility employees, • Prevent damage to the collection system and treatment plants, • Prevent the introduction of pollutants into POTWs that cause interference or pass through, • Achieve compliance with pretreatment regulations as required under all applicable federal, state and local regulations, • Allow the beneficial re-use of bio-solids (Dillo Dirt Program), • Allow the reclamation of the treated effluent for irrigation and other uses (Water Reclamation Initiative), and • Maintain exceptional water quality in the Lower Colorado River.

7. What We Are Trying to Protect! Walnut Creek Wastewater Treatment Plant (WWTP) * South Austin Regional WWTP * Harris Branch WWTP * Hornsby Bend Sludge Land Application “Dillo Dirt” Bio-solids Re-use Program Reclaimed Water Permit Thoroughbred Farms Permit Wild Horse Ranch WWTP Dessau WWTP Onion Creek Water Reclamation Plant (WRP) Garfield WWTP Davenport Ranch WWTP Pickfair WRP Balcones WRP * TPDES Permits that include requirements for the Pretreatment Program Pretreatment Program Objectives

8. Enforcement Response Plan • Spells out the enforcement procedures to address non-compliance. • Annual SNC Publication. • Designed to address repeated non-compliance with escalated enforcement. • Intended to be “politically neutral.”

9. Key Enforcement Elements– Independent Compliance Monitoring

10. Key Enforcement Elements– Independent Compliance Monitoring

11. Key Enforcement Elements– Chain of Custody Documentation

12. Key Enforcement Elements–Review of Reports & Analytical Data • Report Due Dates • Signatory Requirements • Results & Effluent Limits • Flow Data • QA/QC Data Evaluation • Industry's Chain-of-Custody Documentation • Notification Requirements

13. Key Enforcement Elements– Right of Entry • Representatives of the POTW shall be authorized to enter any premises of any Industrial User in which a discharge source or treatment system is located or in which records are required to be kept to assure compliance with Pretreatment Standards.

14. Key Enforcement Elements– Inspections (scheduled & unscheduled) • Pretreatment device or pretreatment system operation • Equipment maintenance / calibration records • Flow metering devices • Effluent monitoring records • Outfall locations • Self-monitoring procedures • Slug Control Plans • Hazardous material storage areas • Waste shipment documentation • Production Information • Operation changes

15. Typically Noted Violations • Failure to Maintain Pretreatment Device (Grease Interceptor) • Records Retention (Waste Manifest Documentation) • Late Reports • Failure to meet permit monitoring requirements • Exceeding permit effluent limits • Failing to report a violation within 24hrs. • Failing to resample within 30 days • Unapproved pretreatment device • Discharging without a permit • Unapproved pretreatment device • Failing to submit reports (SMRs/BMRs) • Right-of-Entry Denial

16. Enforcement Options • Administrative • Civil • Criminal

17. Enforcement Options – Administrative • Notice of Violation (NOV) • Assurances of Voluntary Compliance or Consent Order • Compliance Orders • Show Cause Hearings • Cease and Desist Orders • Water or Wastewater Service Termination • Permit Revocation • Severance of Wastewater Connection • Administrative Search Warrants

18. Enforcement Options– Civil • Restitution – for damages to the POTW infrastructure. • Cost Recovery – for costs associated with repairing damages to the POTW, conducting investigations and enforcement procedures associated with Industrial User noncompliance. • Injunctive Relief – to force action to be taken by the defendant.

19. Enforcement Options– Criminal • File complaints in Municipal Court (Class C Misdemeanor) • Deferred Adjudication / Settlement • Trial • Prosecute in State or Federal Court (Referral to EPA-CID or the State Taskforce)

20. Example CasesCost Recovery – SSO Clean-up

21. Example CasesCost Recovery – SSO Clean-up

22. Example CasesCost Recovery – SSO Clean-up

23. Example CasesCost Recovery – SSO Clean-up • SSO incidents and investigation downstream of a chain Italian restaurant revealed serious neglect of the grease interceptor (took several days for customer’s contractor to clean). • Significant costs incurred by Utility as result of the violations. • NOV issued spelling out required corrective actions – including provision of a new grease interceptor.

24. Example CasesCost Recovery – SSO Clean-up Special Billing conducted to recover utility costs incurred as result of the violations, including: • Vehicle and labor charges for utility line maintenance crews for clean-up, and • Vehicle and labor charges for SSD personnel investigation and enforcement activities. Bill issued to customer’s utility account totaling $1,749.54.

25. Example CasesVoluntary Compliance Agreement • The violator was a contractor doing work on a project to recondition chill water process system piping at the facility of an existing permitted SIU. • 2,300 gallons of process water discharged to sanitary sewer system in excess of end-of-pipe copper limits, contrary to instructions from SSD specialist and SIU contact person.

26. Example CasesVoluntary Compliance Agreement • At compliance meeting the violator acknowledged responsibility for discharge. Company representatives claimed it was a result of a miscommunication between the contractor and subcontractor. • A Voluntary Compliance Agreement was drafted and executed – stipulated voluntary removal of economic benefit associated with unauthorized discharge. • Violator contributed $1,932.00 to a non-profit of its own choice. The agreement stipulated that the contribution was strictly voluntary – SSD reserved the right to seek any additional remedies related to the violations recorded regardless of any contributions made or not made.

27. Example CasesDeferral Order – GT Maintenance • SSO incident at Mexican Restaurant and investigation revealed non-compliance with GT maintenance and waste manifest record-keeping requirements. • NOV issued (1st Offense) - Notified of violations and required corrective actions.

28. Example CasesDeferral Order – GT Maintenance • A year later – 2nd SSO incident. • Still non-compliant with GT maintenance and waste manifest record-keeping requirements. • Complaints filed in municipal court against General Manager for three repeated offenses.

29. Example CasesDeferral Order – GT Maintenance Deferral Order agreed upon in lieu of trial, stipulating: • Required contracting with company to assess appropriate GT pump-out schedule. • Complying with GT pump-out schedule, discharge limitations and manifest documentation requirements for six month deferral period. • Posting a bond of $300.00 per case. • Payment of $2,000.00 per case, if order violated. • Refund of $150.00 per case, if all order conditions satisfied. Deferral Order was satisfied.

30. Example CasesAdministrative to Criminal • Over the course of several years numerous reporting and effluent limit violations were recorded at a stencil etching business, with varying levels of cooperation and success in attaining needed corrections. • One particularly troubling violation involved a failure to meet sampling requirements – business owner discovered a sample that was not turned in more than a month after collection, yet claimed that it was properly stored and would produce valid results. • Part of group of violations that seemed to indicate insufficient oversight regarding permit requirements.

31. Example CasesAdministrative to Criminal A compliance meeting was held and an Administrative Compliance Order drafted requiring the company to: • Hire a consultant engineer, • Evaluate pretreatment system effectiveness, • Identify management and oversight improvements to correct reporting problems, • Investigate opportunities to modify operations to eliminate wastewater discharges to the sanitary sewer, and • Maintain compliance with all permit requirements and discharge prohibitions.

32. Example CasesAdministrative to Criminal • Violator met Administrative Compliance Order requirements related to the engineer’s evaluation of their operation - however, additional reporting violations were recorded shortly thereafter for failing to meet monitoring requirements for two pollutants. • Complaints were filed in municipal court and a deferral order was issued. This order stipulated a dismissal of the complaints if the violator changed operations to eliminate categorical discharges, maintained compliance for other discharges and hauled accumulated wastes for proper disposal. • The deferral order was violated when defendant failed to collect a required set if pH samples prior to ceasing discharges. The order was revoked at a hearing before a judge, and the defendant was forced to pay a $3,000.00 fine.

33. Example CasesAdministrative to Criminal • Some months later the defendant sold its operations to a new company. A wastewater discharge permit had been in effect limiting allowed discharges to photo-processing waste from one silver recovery unit. • An inspection after the sale indicated that discharges of categorically regulated wastes had resumed under the new ownership. Also, significant volumes of accumulated wastewater were identified in unlabeled drums. • A Cease & Desist Order was issued against the new company which strictly forbids the discharge of any process wastewater. • The TCEQ Hazardous Waste Program Office was contacted regarding the accumulated wastewater. • A follow-up inspection conducted later verified no process discharge to the sewer, but waste shipments and labeling issues still not resolved. • The Austin Fire Department and the Environmental Task Force have been notified and the company faces potential further investigation.

34. Example CasesIllegal Discharge Investigation – Small WWTP • An SSD Compliance Specialist was investigating operational problems at a small WWTP – low pH discharges from an unpermitted source was a suspected cause. • While checking the various WW lines, a strong HCl odor was noted in a MH downstream of a known user of this chemical. • A discreet sample port was not available for the suspected source.

35. Example CasesIllegal Discharge Investigation – Small WWTP • pH probes with data loggers were purchased and set out in upstream and downstream MHs; and at the head of the WWTP. Picture of the data-logger.

36. Example CasesIllegal Discharge Investigation – Small WWTP • The equipment was set out starting on a weekend and data was collected and recorded for two weeks. One pH measurement taken per minute (battery would allow up to 18 days of recording). Picture of the water proof case that was fashioned to hold the data-logger.

37. Example CasesIllegal Discharge Investigation – Small WWTP • The data indicated no pH excursions attributable to the suspected source, but did indicate lower than usual pH reading and potentially septic conditions originating from a force main from a new residential development. Picture of data-logger download using adapter for USB port..

38. Example CasesHeartland Automotive Services

39. Example CasesHeartland Automotive Services November 2000, Referral from City’s Watershed Protection Department and subsequent inspection revealed discharge to the sanitary sewer of groundwater contaminated with oil from a Jiffy Lube franchise owned and operated by Heartland Automotive. A sump pump in the pit directed contaminated seepage to a mop sink connected to the sewer. Notice of Violation issued to Heartland Automotive for the illegal discharge. Subsequent inspection confirmed the removal of the pump.

40. Example CasesHeartland Automotive Services August 2007, Informant calls the SSD, concerned about oily waste being pumped to the sanitary sewer. From informant’s information it seems clear that the actions are being carried out with intentional disregard for the law. A televised inspection of the facility’s private lateral is conducted - signs of petroleum oil in the pipe are observed which are consistent with the discharges described by the informant. The case was referred to the Texas Parks and Wildlife Department (the Agency with Enforcement Authority for Texas Water Code violations) for criminal investigation.

41. Example CasesHeartland Automotive Services September 2007, Search warrant executed by Texas Parks & Wildlife and Environmental Taskforce members. SSD personnel provided technical assistance by collecting wastewater samples from various points in the facility.

42. Example CasesHeartland Automotive Services September 2007, Taskforce team members interviewed lube shop employees at the facility in question and at the company’s HQ. The company’s computers were also confiscated.

43. Example CasesHeartland Automotive Services

44. Example CasesHeartland Automotive Services

45. Example CasesHeartland Automotive Services

46. Example CasesHeartland Automotive Services

47. Example CasesHeartland Automotive Services

48. Example CasesHeartland Automotive Services

49. Example CasesHeartland Automotive Services September 2007 – March 2009, Lots and lots of work done by lead investigator and Travis County District Attorney’s Office in case preparation for grand jury indictment of company officials. The Offenses –Unauthorized Discharges under Chapter 26 (Water Quality Control) Subchapter D of the Texas Water Code.

50. Example CasesHeartland Automotive Services The Offenses – Spelled Out in Law Texas Water Code Sec. 26.047 (c)  The commission is authorized to apply, and to enforce pursuant to Subchapter D of this chapter, against industrial users of publicly owned treatment works, toxic effluent standards and pretreatment standards for the introduction into such treatment works of pollutants which interfere with, pass through, or otherwise are incompatible with such treatment works. SUBCHAPTER D. PROHIBITION AGAINST POLLUTION; ENFORCEMENT, Sec. 26.121(e)  No person may cause, suffer, allow, or permit the discharge from a point source of any waste or of any pollutant, or the performance or failure of any activity other than a discharge, in violation of this chapter or of any rule, regulation, permit, or other order of the commission. Austin City Code § 15-10-22 SPECIFICALLY PROHIBITED POLLUTANTS. Except as authorized by this chapter, a person may not discharge to the POTW the following: …(26) drainage water or ground water contaminated by a prohibited pollutant, except as specifically authorized in this chapter.