Enforcing Pretreatment

1. Enforcing Pretreatment Les Carlough Senior Policy Advisor Office of Compliance and Enforcement Department of Environmental Quality

2. DEQ Hierarchy EQC Director Program Administrator Region Administrator Enforcement Administrator Permitting Staff Field Inspectors Enforcement Staff

3. Where do pretreatment requirements come from?

4. Federal Delegation Pretreatment is a federal law which EPA may delegate for state administration NPDES Pretreat. State Permits Program Alaska EPA EPA Idaho pending EPA Oregon 1973 1981 Washington 1973 1986

5. Delegation Processes • EPA delegates only if the state has adequate: • statutory and rule authority • agency resources • enforcement authority • EPA oversees delegated programs: • Review & approve/disapprove/object to program modifications • It doesn’t direct state staff • Responsible for viewing & auditing the state program • Possible “overfile” if a case is not “timely and appropriate.” • EPA can revoke delegation if it finds the state doesn’t meet minimum delegation requirements

6. Pretreatment Delegation • Oregon DEQ issues NPDES permits with pretreatment implementation requirements (Schedule E) and monitoring requirements to POTWs that must have a program (24 municipalities in Oregon) • DEQ must periodically report to EPA about inspections and enforcement actions • POTW develops pretreatment program • POTW must issue permits to significant industrial users

7. Oregon Pretreatment Authority The Environmental Quality Commission may require each user of the treatment works of a municipality to comply with the toxic and pretreatment effluent standards and inspection, monitoring and entry requirements of the Federal Water Pollution Control Act, as enacted by Congress, October 18, 1972, and acts amendatory thereof or supplementary thereto, and federal regulations and guidelines issued pursuant thereto. The commission may institute actions or proceedings for legal or equitable remedies to enforce such compliance. Oregon Revised Statutes (ORS) 454.020

8. Oregon Rules • Sources discharging to a permitted POTW don’t need NPDES or WPCF permits but must comply with all water pollution laws. • The POTW has ultimate responsibility for controlling and treating wastes allows to be discharged into the POTW. • Sources discharging to the POTW must comply with applicable toxic and pretreatment standards and rules governing recording, reporting, monitoring, entry, inspection, and sampling. Oregon Administrative Rule (OAR) 340-045-0015(4)

9. Who’s the cop? The POTW ? The POTW must enforce: pretreatment standards, agreements and permits against sources discharging to its system.

10. Who’s the cop? State Agency? The state can enforce against: • The POTW for violations of the permit (i.e., failure to enforce under Schedule E or the city’s own effluent violations) • The wastewater source for violations of categorical standards and general and specific prohibitions of pretreatment law

11. Who’s the cop? EPA ? EPA can enforce: • Pretreatment laws against the wastewater source • Requirements of the NPDES permit against the POTW; and • can revoke delegation of the program to the state

12. Who’s the cop? Citizens ? Citizens can sue: • POTW in violation of NPDES permit if EPA or the state has not initiated enforcement • EPA or the state for failure to perform nondiscretionary duties

13. Who’s the cop? wastewater source NPDES facility DEQ EPA citizens

14. EPA threat of program revocation • Environmental Audit Privilege • Notice of Permit Violation (NPV) • Designation of Significant NonCompliers (SNCs)

15. DEQ pretreatment objectives: • Protect publicly owned treatment works (POTW) from pollutants that may cause interference with sewage treatment plant operations. • Prevent introducing pollutants into a POTW that could cause pass through of untreated pollutants to receiving waters. • Manage pollutant discharges into a POTW to improve opportunities for reuse of POTW wastewater and residuals (sewage sludge). • Prevent introducing pollutants into a POTW that could cause worker health or safety concerns, or that could pose a potential endangerment to the public or to the environment.

16. DEQ Uses Various Tools • Technical assistance – especially on local limits • Notification letters about changes in rules • Warnings • Enforcement

17. Goals of Enforcement • To compel expeditious compliance and cleanup through legally binding processes. • To motivate procrastinators to voluntarily take needed steps to reach compliance. • To create a risk of penalty and negative publicity that risk-analysists and bean-counters will consider as they calculate the costs and benefits of compliance. • To “level the playing field” and create fairness for those who have spent money on pollution-control equipment or other compliance measures by ensuring that non-compliant facilities do not benefit by avoiding those costs.

18. How Enforcement Works

19. Identifying Violations • DEQ refers nearly all complaints to the POTW • DEQ does on-site inspections (about 12 of the 24 facilities per year as agreed with EPA) • DEQ reviews records and the annual report on monitoring

20. Notice of Noncompliance Does: • Give notice that DEQ believes a violation has occurred. • Explain the environmental consequences. • Request that certain steps be taken to correct the violation and recommend steps to fix the problem. • Inform the recipient about whether to expect formal enforcement. Does not: • Assess penalties. • Establish a formal enforceable Order. • Initiate a formal contested-case process.

21. Which cases go to enforcement? • The law violated is particularly important to the environment or to the regulatory program • Significant environmental impact • The violation was repeated • Intentional violation • Economic benefit received Criminal Penalty Warning

22. Notice of Permit Violation • ORS 468.126 says DEQ may not assess a penalty for a violation of a permit unless the permittee has first received a five day advance warning . . . unless the requirement to issue the NPV would disqualify the state program from federal delegation. • In the 1990s, EPA insisted that DEQ stop issuing NPVs for permit violations for air quality, municipal solid waste, and hazardous waste disposal sites. • Last year, EPA insisted that DEQ stop issuing NPVs for violations of NPDES and Underground Injection Control permits (incorporated into state water permits).

23. Formal Enforcement

24. Notice & Order • Lays out DEQ’s regulatory authority • Makes findings of fact related to the alleged violation • Lays out DEQ’s case that a violation occurred • Assesses a penalty for the violation and lays out how the penalty was calculated • May order certain steps be taken to come into compliance • Provides notice of how appeal may be obtained • Contains an offer to meet informally before the hearing.

25. Penalty Factors • Importance of the law or regulation to the environment or regulatory system • Impact of this particular transgression • Prior enforcement history (+ or -) • Duration or repeatedness • Accident, negligence, intentional, flagrant • Cooperative (+ or -) • Economic benefit

26. Review the Documents • Are the facts correct? • Did DEQ properly apply the law? • Is the penalty calculated properly? • If there is an Order, does it set out reasonable requirements?

27. Steps to Take • If making appeal, make sure your request and answer is delivered within the statutory 20 days • Ask for an informal discussion to tell your side of the story. At the informal: • Discuss the documents and evidence • Identify & simplify issues in case there is a hearing • Find out what must be done under the Order • Present mitigating information or alternate theories • Present any new information regarding errors in the documents or information showing the violations have been corrected

28. Reasons for Settlement • Conforming to the facts • Supplemental Environmental Projects • Payment Plan • Extraordinary compliance • Self-Disclosure Policy • Financial Hardship • “Litigation” risk

29. Mutual Agreement & Order • Agreement to settle • Details of conditions (e.g., new facts, mitigated penalty, SEP, payment plan, etc.) • Waiver of appeal rights • Acknowledgment that these violations constitute prior history for future penalties • Final Order for penalty which generally must be submitted with the MAO

30. Interim permit variance “MAOs” DEQ uses these when a source cannot comply with its permit and a compliance schedule is needed which will exceed six months. • May settle past violations • Settles future violations by • Settle for $0 violations of the permit that are not in violation of “interim limitations” set by the permit • Settle violations of the compliance schedule or MAO’s interim limitations for an amount stipulated in advance.

31. Contested-case Hearing • Similar to a court trial, but less formal • Attended by a hearings officer, respondent, DEQ representative, and witnesses • DEQ must put on its case and prove its allegations by a preponderance of the evidence • Hearing officer will prepare a written proposed order

32. Appeals to the EQC Panel

33. Appeals to the Courts

34. Environmental Crimes • History of violation • Violator’s culpability – deceitful, deliberate or dishonest conduct • Results of the conduct – threaten public health or environmental damage

35. Whistleblowers

36. What is it? Whistleblower protection laws are designed to allow employees to stop, report or testify about employer actions which are illegal or unhealthy. Different amounts of protection are available depending on the applicable law and state.

37. Federal Environmental Whistleblower Protections • Clean Air Act (42 USC §7622) • CERCLA (superfund) (42 USC §9610) • Energy Reorganization Act (42 USC §5851) • Safe Drinking Water Act (42 USC §300j-9(I)) • Solid Waste Disposal Act (42 USC §6971) • Toxic Substance Control Act (15 USC §2622) • Clean Water Act (33 USC §1367; 29 CFR 24)

38. Additional State Protection Some states provide additional protections in additional to applicable federal protection Public policy Statutory Statutory exception to protection protection for employee generally state & local State at willapplicable gov’t employees Alaska Yes No Yes Idaho Yes No No Oregon Yes Yes Yes Wash. Yes Yes Yes

39. Be Prepared • Keep good contemporaneous records, bench sheets, lab and meeting notes, phone logs, calendar, diary, etc. • Do not let false accusations of misconduct, especially written charges, go unanswered, but be polite, diplomatic, and respectful in your response.

40. Be able to answer • What was the employer doing or demanding be done? • What did you do? Did you disclose the illegal activity to authorities? • When and how often did these events happen? • To whom was the disclosure made? • Are there relevant witnesses, evidence or documents to support the case?

41. Possible steps to take • Individuals who believe they have been retaliated against by an employer for whistleblower activities related to the six environmental statutes, may file a complaint with the US Department of Labor (DOL). • If DOL determines that retaliation has occurred, DOL may order corrective actions. DOL may instruct the employer to provide appropriate relief, which may include restoration of back pay, employment status and benefits, or compensatory damages.

42. Act quickly ! Generally you must file a complaint about an “adverse action” with the appropriate authority within 30 days. Adverse action can be something as small as an unjust criticism or a change in work pattern. Remember it may take time to find counsel and file the correct papers with the appropriate authority.

43. Whistleblower Resources • Oregon State Law: Oregon Revised Statutes 659A.200 et seq. • Bureau of Labor and Industries: www.boli.state.or.us/civil/crprotoc.html#state • Government Accountability Project www.whistleblower.org • National Whistleblower Center www.whistleblowers.org • Public Employees for Environmental Responsibility: www.peer.org

44. General Advice Don’t be a whistleblower: • Do the right thing, but try to avoid open challenge of authority – keep a low profile • Leak information to known whistleblower, activist organization or plaintiff’s attorney • Be careful leaking information to the press or politicians If you choose to be a whistleblower: • Know the laws, rules and your rights before you start out • Contact an expert – if you use an attorney, find one experienced in whistleblower law. • Understand that your safety is in having a high profile • Educate and use your constituency to protect you.