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HomeMy WebLinkAbout15-02-25 Hearing Notebook.pdf DOCUMENT INDEX 1. Complaint for Administrative Penalties and Permit Revocation 2. District Ordinance OCSD-39 Wastewater Discharge Regulations 3. Opening Brief of Klean Waters' (REDACTED) 4. District's Corrected Opening Brief 5. District's Reply Brief 6. Respondents Corrected Supplemental Brief(REDACTED) 7. District's Supplemental Reply Brief 8. Supplemental Post Hearing 9. Permit Revocation and Penalty Assessment Order 10. Respondents' Notice of Errata re Hearing 11. Respondents' Request for Hearing Errata (REDACTED) 12. Declaration of Matthew Kaplan in support of Appeal 13. Respondents' appeal to Steering Committee 14. District's Additional Brief(if any) (will be added after the mailing of Agenda) 15. Respondents'Additional Brief(if any) (will be added after the mailing of Agenda) Orange County Sanitation District 10a44 allsAvenue.Fountain Valley,CA9270a (714)962-2411 www.ocsewars.com September 15, 2014 Buena Pa,k Tim Miller, President Klean Waters, Inc. 28465 Old Town Front St., Suite 224 Temecula, CA 92590 Garden Grov, Shaun Miller, General Manager HY.Atinftirfr. Klean Waters, Inc. 28465 Old Town Front St., Suite 224 Irvine Temecula, CA 92590 La Labor La Palma RE: Notice of Hearing and Issuance of Administrative Complaint Los Alamiton Mssrs. Miller and Miller: Newport Beach Enclosed please find the Orange County Sanitation District's "Complaint for Orange Administrative Civil Penalties and Permit Revocation" (the "Complaint") against Placentia Klean Waters, Inc., Tim Miller, and Shaun Miller (collectively, the "Permittee"). A hearing on the Complaint will be held on October 29, 2014 at 10:00 AM at the Santa Ara Orange County Sanitation District's Administrative Office located at 10844 Ellis SealBeach Avenue, Fountain Valley, California 92708. Stanton The District's rules of procedure for administrative civil penalties and permit revocation proceedings are also enclosed. Please note that, unless modified by Villa Park the Hearing Officer, the following briefing schedule will apply to these proceedings. No later than 15 calendar days prior to the hearing, District staff Yoma Linda will serve on the Permittee and file with the Hearing Officer a complete report or County, Orange memorandum and all documentary evidence in support of the District's position. No later than 8 calendar days before the hearing, the Permittee shall serve on DistrictCosta S it Lary hric, anitary the District and file with the Hearing Officer a complete report or memorandum and all documentary evidence in support of Permittee's position. No later than 2 MidwayCity days prior to the hearing, District staff may submit evidence in reply to the Sanitary District Permittee's report or memorandum and documentary evidence. Each party Irvine Ra nch shall provide 5 copies of each document submitted to the Hearing Officer. Water istrict Should the Hearing Officer modify the briefing schedule, or any other hearing procedures, the Hearing Officer will provide notice to the Permittee and the District. MI N Sincerely, Aw^ , / "•-J�J / i James D. Herberg General Manager Enclosure RS:JDH:clr We protect public health and the environment by providing effective wastewater collection, treatment,and recycling. ORANGE COUNTY SANITATION DISTRICT In the matter of. COMPLAINT FOR ADMINISTRATIVE CIVIL Mean Waters, Inc., Tim Miller,and PENALTIES AND Shaun Miller PERMIT REVOCATION Industrial Wastewater Discharge Permit No. 52-1-841 Hearing Date: October 29, 2014 Time: 10:00 A.M. Location: District's Administrative Office 10844 Ellis Avenue Fountain Valley, CA 92708 Hearing Officer: Ed Torres TO KLEAN WATERS, INC., TIM MILLER, AND SHAUN MILLER: YOU ARE HEREBY GIVEN NOTICE THAT: An administrative hearing will be held on October 29,2014 at 10:00 a.m. at the Orange County Sanitation District's Administrative Office located at 10844 Ellis Avenue, Fountain Valley, California 92708. The purpose of the hearing is to provide Klean Waters, Inc.,Tim Miller,and Shaun Miller an opportunity to respond to the evidence of the Orange County Sanitation District(the "District")and to present evidence why the District should not revoke Industrial Wastewater Discharge Permit No. 52-1-841 and impose administrative civil penalties pursuant to the District's Wastewater Discharge Regulations, as set forth in District Ordinance No. 39(the "Ordinance"). 1 1023551.3 SUMMARY Pursuant to the Clean Water Act,33 U.S.C. Sections 1251 et seq.; California Government Code Sections 54739 et seq.; and the Ordinance, District staff recommends that Klean Waters, Inc.'s Permit No 52.1-841 be revoked. District's staff also recommends that administrative civil penalties in the minimum amount of$2,055,000 be imposed jointly and severally on Klean Waters, Inc., Tim Miller, and Shaun Miller, for violations of Permit No. 52-1-841 and the Ordinance. LEGAL AUTHORITY 1. The District has the authority to revoke a permit and assess administrative penalties for violations of the Ordinance or any permit condition, prohibition,or effluent limitation pursuant to: the Federal Water Pollution Prevention and Control Act(the "Clean Water Act"),33 U.S.C. Sections 1251 et seq.; the Federal regulations implementing the Clean Water Act,40 C.F.R. Sections 430 et seq.; California Government Code Sections 54739 et seq.; and Sections 605 and 615(D)of the Ordinance. 2. The revocation and administrative penalties recommended herein are based on violations of the Ordinance and the terms and conditions of Permit No. 52-1-841 issued to Klean Waters, Inc. PARTIES 3. The District is a public agency organized and existing pursuant to the County Sanitation District Act, California Health& Safety Code Section 4700 et seq. The District is a publicly owned treatment works ("POTW")responsible for collecting, treating, disposing, and recycling wastewater from residential, commercial,and industrial sources within a 470-square mile service area located in northern and central Orange County. 2 10235513 4. Klean Waters, Inc. ("Klean Waters") is a corporation that operates a centralized waste treatment facility located at 314 W. Freedom Avenue, Orange, California, 92865, within the District's jurisdiction (the "Facility"). Tim Miller, as the President, and Shaun Miller, as the General Manager, have been the persons responsible for Klean Waters'operations at all times referenced in this Complaint. Klean Waters is a significant industrial user causing the discharge of wastewater to the District's collection system. Klean Waters, Tim Miller and Shaun Miller are together hereinafter referred to as the "Perrnittee." REGULATORY BACKGROUND The National Pretreatment Proeram 5. Generally, POTWs collect wastewater from homes, commercial buildings, and industrial facilities and transport that wastewater through a collection system to a treatment plant. After treatment is complete,effluent is discharged to a receiving water body such as a stream, creek, river, lake,estuary or ocean. For purposes of the Clean Water Act,a POTW is a direct discharger into the nation's waters, and its discharge must meet certain effluent limitations included in a permit issued to the POTW under the National Pollutant Discharge Elimination System ("NPDES"). (33 U.S.C. § 1342.) 6. POTWs are generally designed to treat conventional pollutants that are expected to be present in domestic discharges. POTWs, however, are not designed to treat toxic or non- conventional pollutants that are present in non-domestic discharges. Therefore, discharges from industrial or commercial sources can interfere with the operations of a POTW,or pass through a POTW without adequate treatment thereby causing noncompliance with a POTW's NPDES permit limits and have detrimental effects on the water quality of the receiving water body. 3 10235513 7. To protect public health and safety, therefore,the Clean Water Act established the National Pretreatment Program (the 'Program"). The Program is designed to reduce, eliminate, or alter the nature of pollutants in wastewater through pretreatment prior to introducing such wastewater to a POTW. 8. Under the Program,the Environmental Protection Agency("EPA") is authorized to establish pretreatment standards to prevent the discharge of any pollutant through a POTW that interferes with,passes through,or is otherwise incompatible with a POTW. (33 U.S.C. § 1317(b)(1).) 9. EPA has established two types of national pretreatment standards: 'Prohibited Discharges" and "Categorical Pretreatment Standards." The Prohibited Discharges generally preclude the discharge of any pollutant that causes pass through or interference, in addition to specific categories of discharge. (40 C.F.R. § 403.5.) The Categorical Pretreatment Standards are uniform national standards for specific categories of industrial users which limit the discharge of specified toxic and non-conventional pollutants to a POTW based on the best available technology. (40 C.FR. § 403.6.) 10. Under the Program, each POTW meeting certain criteria must adopt its own pretreatment program to control discharges from non-domestic sources. Among other things, each POTW must implement the Prohibited Discharges and Categorical Pretreatment Standards. Additionally, each POTW must develop local limits that take into account site-specific factors such as the status of its receiving waters. Local limits may be more stringent than the Categorical Pretreatment Standards. (40 C.F.R. §§403.5(c),403.4.) 11. Further, each POTW must issue individual permits to significant industrial users which include those industrial users(1) subject to the Categorical Pretreatment Standards; (2) 1023551.3 4 discharging more than 25,000 gallons per day;or(3)determined to be significant based on a reasonable potential for adversely affecting the POTW's operation or for violating any pretreatment standard or requirement. (40 C.F.R. § 403.8(f),403.3(v).) The permits must establish effluent limits in addition to monitoring, sampling, reporting, notification,and recordkeeping requirements. (40 C.F.R. § 403.8(f)(1),403.3(v)(1).) The District's Pretreatment Program 12. The District's pretreatment program,and the District's authority to enforce the pretreatment program, is set forth in the Ordinance. The fees and charges applicable to industrial users are set forth in Ordinance No. OCSD-40 (the "Fee Ordinance"). 13. Prior to discharging to the District's sewerage facilities, a permit must be obtained from the District pursuant to the terms and conditions set forth in the Ordinance. (Ordinance, § 301.) The District generally issues five classes of discharge permits. (Ordinance, § 301(B).) As relevant here, a Class I Wastewater Discharge Permit is issued to any user that is: subject to Categorical Pretreatment Standards; or discharging wastewater which averages 25,000 gallons per day or more of regulated process water; or discharging wastewater determined by the District to have a reasonable potential for adversely affecting the District's operation or for violating any pretreatment standard, local limits, or discharge requirement; or discharging wastewater which may cause,as determined by the General Manager, pass through or interference with the District's system. (Ordinance, § 302(C).) 14. Among other things, a permit application must include plans for implementation of a pretreatment system to ensure that discharge limits will be met. (Ordinance, § 302.1(E).) 15. The terms and conditions of a permit issued pursuant to the Ordinance may be modified during the life of the permit in the sole determination of the General Manager based on, 5 10235313 among other things, the discharger's current or anticipated operating data or a determination by the General Manager that such a modification is appropriate to further the objectives of the Ordinance. (Ordinance § 302.4(A).) Enforcement of the Ordinance 16. The District may issue an administrative complaint to any person who violates a provision of the Ordinance or any permit condition, prohibition,or effluent limitation. (Government Code § 54740.5(a); Ordinance, § 615(D)(1).) 17. The District may assess administrative penalties in an amount which shall not exceed$5,000 per violation for each day of discharge in violation of any waste discharge limit, permit condition, or requirement issued, reissued, or adopted by the District. (Government Code § 54740.5(d)(3); Ordinance, § 615(D)(7); Permit, Part 3, § II(A)(3).) 18. In addition, pursuant to the Ordinance,the General Manager is authorized to revoke a permit when it has been determined that a permittee refuses to provide records, reports, plans,or other documents required by the District to determine permit terms,conditions,or limits,discharge compliance,or compliance with the Ordinance. (Ordinance, § 605(A)(2).) 19. Further, the General Manager is authorized to revoke a permit when it has been determined that a permittee refuses reasonable access to the permittee's premises for the purpose of inspection and monitoring, or, when it has been determined that a permittee violates any condition or limit of its discharge permit or any provision of the Ordinance. (Ordinance, §§ 605(A)(7), (A)(11)•) STATEMENT OF FACTS 20. On or about September 27, 2012, Klean Waters applied for a Class I Wastewater Discharge Permit(the "Application"). The Application indicated that Klean Waters would 6 1023551.3 operate a centralized waste treatment facility for non-hazardous industrial wastewaters. The Application included detailed drawings depicting Klean Waters' planned pretreatment system. The Application was signed by Tim Miller as the responsible corporate officer. 21. On or about January 21, 2013,the District issued to Klean Waters Industrial Wastewater Discharge Class I Permit No. 52-1-841 (the "Initial Permit"). The Initial Permit authorizes Klean Waters to discharge industrial wastewater resulting from the treatment of metal-bearing waste,oily waste, and organic waste from the Facility into the sewer system tributary to the District's sewerage facilities. The Initial Permit became effective on January 1, 2013 and expires on December 31, 2014. 22. The Initial Permit included a flow base of 25,000 gallons per day and imposed effluent discharge limits, including both concentration limits expressed as milligrams per liter (mg/L) and mass emission rate limits expressed as pounds per day (lbs/day). 23. The Initial Permit imposes a number of special conditions. Pursuant to these conditions, Klean Waters is prohibited from accepting hazardous waste,as defined in Title 22 of the California Code of Regulations, for treatment and discharge to the District's sewerage facilities. Additionally,the Initial Permit requires that Klean Waters maintain sampling data and customer profiles in order to verify that Klean Waters is only accepting and treating non- hazardous waste at the Facility. These data and profiles must be provided for review upon request by the District. (Initial Perrot, Part 4—Special Conditions.) 24. The Initial Permit is subject to all provisions of the Ordinance, and is subject to enforcement under the Ordinance in addition to State and Federal law. (Initial Permit, Part 3 — Standard Conditions.) 7 1023551.3 25. After the Initial Permit was issued,Klean Waters approached the District regarding the potential receipt,treatment, and discharge of wastewater from Molycorp, a rare earth mine. Following extensive discussions, and the establishment of sampling protocols,the District approved Kleans' Waters receipt, treatment, and discharge of wastewater from Molycorp. 26. On or about the week of May 27, 2013, discharging from the Facility began. 27. On or about June 10, 2013, Klean Waters provided an initial certification statement to the District describing the Klean Waters pretreatment system as required by 40 C.F.R. Section 437.41. 28. On or about June 28,2013, in response to many of the issues raised by Klean Waters'acceptance and discharge of Molycorp wastewater,the District revised the Initial Permit. The revisions became effective on June 1,2013. (The revised Initial Permit is hereinafter referred to as the "Permit".) 29. The revisions increased the flow base from 25,000 gallons per day to 100,000 gallons per day. The revisions also imposed several additional special conditions authorized per Section 302.2(B)(5) of the Ordinance. Among other things,sampling data and customer profiles for all sources from outside the District's service area shall be submitted for review by the District prior to Klean Waters'acceptance, treatment,and discharge of wastewater from any such source. In addition, Klean Waters is required to inform customers that the District reserves the right to inspect and sample the source of any wastewaters discharged into the District's system upon reasonable notification. All other conditions of the Initial Permit remained the same in the Permit. 30. On or about November 18,2013, Klean Waters submitted a potential customer list to the District, including customers from outside the District's service area. Klean Waters, 8 1023551.3 however, did not provide any sampling data as required by the Permit. At no time did the District authorize Klean Waters to accept waste from these or any other customers from outside of the District's service area. 31. On or about January 3, 2014,the District conducted an inspection of the Facility. District staff determined that batch treatment for oily wastewater was the only treatment system in place at the Facility. 32. On or about February 11, 2014,a compliance meeting was held at the District with Klean Waters. At that meeting, District staff directed Klean Waters to install and make operational its pretreatment system no later than February 28,2014, including chemical feed pumps, pH adjustment systems, and a treatment system to remove organics from waste streams. District staff informed Klean Waters that, pursuant to the Clean Water Act and the Ordinance, dilution is not a substitute for treatment. 33. On or about March 7, 2014,a representative of Stormwater Online contacted the District. The representative indicated that Stormwater Online had been approached about discharging wastewater for Kiewit. Stormwater Online tested the wastewater and determined that it could not be treated to acceptable levels for discharge to the District's facilities. Stormwater Online's sampling of the wastewater showed chromium in excess of applicable limits. Stormwater Online believed that approximately 630,000 gallons of this wastewater was transported to Klean Waters for discharge. 34. On or about March 8,2014, the District investigated the information provided by Stormwater Online. District staff arrived in the vicinity of the Facility and observed tanker trucks arriving and departing from the Facility. District staff set up a sampler downstream of the Facility in the manhole structure on the east side of West Freedom Avenue in the City of Orange. 9 1023551.3 A heavy sewer flow from the east was observed at the time the sampler was placed in the manhole. An area map indicating the location of the sampled manhole is provided in Figure 1. Figure l: Detailed Area Map _- _,� _ ---_ w� _ •'gig I JIU I]IU 1(jU' I �i Ne X 0.Inken Wryr 1 n Wl6'leln Y t 51 N 1 Wf M15 1 1 L1 .. P� - I nl iIOWSWNwN yy.. l ]p]p MNmelun We ' W4mxl[.v�WeY 1��13 Ilril i i N511 M1 9 f h Wpa brt 4ve I, n 4 malls wf ,m�e .. fir: J316 1 {�•/ AO 6JOGN SW 510 SW HOi JIIwM1i ]gJlOfy. 1`:n _ J i . WII X A. ]MI X4e[IIk 51 1� t �F It iilai MWen ® BWW110NYKY uetlClY�bFNO]T M1vd0devee�FRbe wa.esmuomamen m.mp mmgememmermne..aou y rMeA XIWIIFWIBI1W JblNe ueMXXpebWelaan.SW WWI$»B�P(xbe ORANGE COUNTY SANITATION DISTRICT ovreWrAfNW City of Orange Sewer Configuration at Freedom Ave 8 Pacific St 35. From on or about March 8,2014 to March 10, 2014, the District's sampler detected the following discharge violations: Daily Over Over Semple Concentration Maximum Limit Limit Type Violation Date Type Constituent (Mgt') Limit m I (Mg/1) ��0) 3/8-9/2014 1 Chromium 1.48 0.746 0.734 98.4 Major 3/8-9/2014 1 Copper 1.53 0.500 1.030 206 Major 3/8-9/2014 1 Titanium 0.16 0.095 0.065 68.4 Major 3/9-10/2014 1 Copper 1.80 0.500 1.300 260 Major 10 1023551.3 i 36. On or about March 11, 2014, District staff contacted Klean Waters to determine the source of the wastewater that was discharged. Klean Waters informed District staff that the wastewater was from a construction project at the City of Los Angeles Department of Water & Power("DWP") Haynes Generating Station located at 6801 East 2n° Street, Long Beach, California 90803. 37. District staff contacted DWP to determine the source of the wastewater. DWP stated that it was in the process of expanding generators at the Haynes Generating Station. DWP stated that the work was performed by Kiewit. 38. District staff then contacted Kiewit. Kiewit indicated that the water was purged from the Station's cooling system lines. The water had been added to the cooling system prior to the addition of any rust inhibitor which resulted in corrosion of the carbon steel pipelines. At DWP's direction,the lines were flushed to clear any residual rust materials. Approximately 630,000 gallons of wastewater were captured and stored in temporary storage tanks on-site. The storage tanks were emptied into transporter trucks and hauled to the Facility. Kiewit indicated that approximately 132 truckloads were shipped to Klean Waters. 39. On or about March 11, 2014, District staff contacted Klean Waters to discuss the discharge. Klean Waters presented an analysis showing that the discharge had a low level of a single constituent, copper. In addition, Klean Waters presented hand-written results dated March 6 through March 8, 2014 indicating that all constituents complied with effluent limits in the Permit. 40. On or about March 24, 2014,pursuant to Section 615 of the Ordinance,the District issued an Order to Cease Noncompliant Discharges to Klean Waters(the "March Order"). The March Order was based on the downstream sampling results from March 8,2014 11 1023551.3 to March 10, 2014. The March Order directed Klean Waters to cease noncompliant discharges to the District's sewerage facilities. In addition, the March Order was based on the acceptance and discharge of wastewater from outside the District's service area by Klean Waters without prior permission from the District. The March Order directed Klean Waters to attend a compliance meeting at the District on April 8,2014,to discuss corrective measures to be implemented by Klean Waters. 41. On or about April 3,2014, Klean Waters submitted an updated customer list to the District. The list, however, was not accompanied by any sampling as required by the Permit. 42. On or about April 8,2014,the District conducted a compliance meeting with Klean Waters. 43. On or about April 9, 2014, District staff inspected the Cabrillo Power Plant located in Carlsbad, California. Manifests were provided showing that approximately 42,750 gallons were sent to Klean Waters from February to March of 2014. 44. On or about April 11,2014, District staff inspected Environmental Recovery Services, Inc. ("Enviroserv") located in Gardena, California. Manifests provided by Envirosery indicated that three (3) shipments in the approximate amount of 9,800 gallons were sent to Klean Waters in February of 2014 and eight(8) shipments in the approximate amount of 35,700 gallons were sent to Klean Waters in March of 2014. 45. On or about April 17,2014, District staff conducted a compliance inspection of the Facility. During this inspection, District staff determined that the Facility still did not have pretreatment equipment installed and made operational to treat and remove heavy metals and organics in wastewater accepted by Klean Waters for discharge into the District's collection system. 12 10235513 46. On or about April 28, 2014, pursuant to Section 615 of the Ordinance,the District issued an "Order to Cease Noncompliance with the Permit Requirements and Conditions" to Klean Waters(the "April Order"). The April Order directed Klean Waters to cease the acceptance of wastewater from sources outside of the District's service area without prior District review and written approval. The April Order further directed Klean Waters to cease acceptance of wastewater containing constituents exceeding the Permit discharge limits until appropriate pretreatment system(s)have been installed and made operational onsite. 47. On or about May 14, 2014, District staff arrived at the Facility for a compliance inspection. Shaun Miller stated that District staff member Amold Chavez was not permitted on the property. Other District staff present at the time asked to review Klean Waters' records and to sample tanks and trucks at the Facility. Shaun Miller denied each of the District's requests. 48. On or about May 14,2014,the District issued a Notice of Violation(the "May Notice"). The May Notice indicated that denial of District staff to access Klean Waters' records was a violation of Ordinance Section 501.3 and Part 4 of the Permit. The May Notice directed Klean Waters to permit entry of District staff to Klean Waters' treatment and process areas, to permit District staff to access customer profiles, and to permit District staff to sample truckloads hauled to the Facility. 49. On or about May 22, 2014,District staff visited the Facility to perform a quarterly compliance inspection and sampling. District staff were informed by Rick Lang that Klean Waters' records were not available for review. 50. On or about May 23, 2014, District staff visited the Facility. At that time, Shaun Miller again informed District staff that Klean Waters'records were not available for review. 13 1023551.3 51. From approximately May of 2014 to July of 2014, the District contacted companies listed by Klean Waters as potential customers and that are located outside of the District's service area. The District requested copies of manifests for wastewater loads sent to Klean Waters for disposal. The manifests obtained by the District show that Klean Waters has accepted wastewater from customers outside the District's service area at least 32 times, beginning in October of 2013. 52. On or about June 3,2014, District staff visited the Facility. District staff were again denied access to Klean Waters'records by Shaun Miller. 53. On or about June 11, 2014, District staff visited the Facility. District staffs requests to review Klean Waters' records were denied by Tim Miller. 54. On or about June 19,2014, District staff visited the Facility. District staff were denied access to Klean Waters'records by Shaun Miller. 55. On or about June 20,2014,District staff visited the Facility. District staff were again denied access to Klean Waters' records by Shaun Miller. 56. On or about July 3, 2014, District staff visited the Facility. District staffs requests to review Klean Waters' records were denied by Shaun Miller. Shaun Miller further prevented District staff from sampling a load that arrived at the time of the inspection. 57. On or about August 21, 2014, District staff visited the Facility. District staff were denied access to Klean Waters' records by Shaun Miller. 58. On or about September 2,2014, District staff visited the Facility to perform a quarterly compliance inspection and sampling. District staff were denied access to Klean Waters' records by Shaun Miller. 14 1023551.3 59. On or about September 3,2014, District staff visited the Facility to collect the quarterly sample. District staff were denied access to Klean Waters' records by Shaun Miller. COUNT 1: DENIAL OF INSPECTION AND SAMPLING (Violation of Ordinance§§ 208(A),501.3(A); Permit Part 4,Special Conditions) 60. The District realleges and incorporates by reference the prior paragraphs of this Complaint as though fully set forth herein. 61. Section 501.3 of the Ordinance states that the District must be allowed access to all areas of wastewater disposal facilities for the purposes of inspection and sampling during all times the discharger's facility is open, operating, or at any other reasonable time. Further, no person shall interfere with, delay,resist or refuse entrance to authorized District personnel attempting to inspect any facility involved directly or indirectly with a discharge of wastewater to the District's sewerage system. 62. Pursuant to the Permit, Part 4 - Special Conditions,Klean Waters is required to maintain sampling data and customer profiles verifying that Klean Waters has only accepted nonhazardous materials for treatment, and to provide these records to the District for review upon request. 63. Section 208 of the Ordinance authorizes the District to collect samples of each hauled load to ensure compliance with applicable standards. 64, In violation of these requirements, Shaun Miller denied District staff member Arnold Chavez access to the Facility on or about May 14, 2014. 65. In violation of these requirements, Shaun Miller denied District staffs request to sample loads at the Facility on or about May 14,2014 and July 3, 2014. 15 1023551.3 66. In violation of these requirements, Mean Waters, Tim Miller, and Shaun Miller have refused and denied the District's requests to inspect Klean Waters' records at the Facility on or about May 14,2014, May 22, 2014, May 23, 2014,June 3, 2014,June 11, 2014,June 19, 2014, June 20,2014,July 3, 2014, August 21, 2014, September 2, 2014, and September 3,2014. 67. Pursuant to Government Code Section 54740.5,Ordinance Section 615(D)(7)(c), and Permit Part 3, Section II(A)(3), District staff recommends that a civil penalty of at least $70,000 be imposed. 68. Pursuant to Ordinance Sections 605(A)(2), 605(A)(7)and 605 (A)(11), District staff recommends that the Permit be revoked. COUNT 2: FAILURE TO PROVIDE PRETREATMENT (Violation of Ordinance §§ 201(B)(10),202,402(A),(C)) 69. The District realleges and incorporates by reference the prior paragraphs of this Complaint as though fully set forth herein. 70. Section 201(B)(10)of the Ordinance prohibits any discharge to the District's sewerage system that violates any applicable Federal Categorical Pretreatment Standards, statute, regulation,or ordinance of any public agency or regulatory agency with jurisdiction over operation of or discharge of wastewater through the District's sewerage facility. 71. Section 402(A)of the Ordinance requires that all users provide the wastewater pretreatment necessary to achieve compliance with all applicable Categorical Pretreatment Standards and effluent discharge limits. 72. Sections 202 and 402(C)of the Ordinance prohibit dilution as a partial or complete substitution for treatment. Dilution is also prohibited pursuant to 40 C.F.R. § 403.6(d). 16 1023551.3 73. Klean Waters submitted pretreatment system drawings with its Application. The District relied on the pretreatment system represented in Klean Waters'Application in issuing the Permit to Klean Waters. (Ordinance, § 302.1(E).) 74. In violation of these requirements, from the date that Klean Waters began operating on May 27,2013 to the present, Klean Waters has failed and refused to install and make operational the pretreatment system depicted in Klean Waters'Application. 75. Based on Klean Waters' failure and refusal to make operational the pretreatment system depicted in Klean Waters' Application, from on or about March 8,2014 to March 10, 2014,the District detected four major violations of the discharge limits established in the Permit, including: copper concentrations at 260%and 206%, respectively, over the discharge limit; chromium concentrations at 98.4%over the discharge limit; and titanium concentrations at 68.4%over the discharge limit. 76. The District is informed and believes,and thereon alleges, that Klean Waters is using dilution as a substitute for the pretreatment required by law. 77. Pursuant to Government Code Section 54740.5, Ordinance Section 615(D)(7)(c), and Permit Part 3, Section II(A)(3), District staff recommends that a civil penalty of at least $1,825,000 be imposed. 78. Pursuant to Ordinance Section 605 (A)(I 1), District staff recommends that the Permit be revoked. 17 10235513 COUNT 3: ACCEPTANCE OF WASTE FROM OUTSIDE THE DISTRICT'S SERVICE AREA (Violation of Permit Part 4-Special Conditions) 79. The District realleges and incorporates by reference the prior paragraphs of this Complaint as though fully set forth herein. 80. Section 208(D)of the Ordinance, and Table G of the Fee Ordinance, provide that waste hauled from a source that is not within the District's service area is prohibited unless authorized by the General Manager. 81. The Permit provides that Klean Waters must submit for review sampling data and customer profiles for all sources from outside of the District's service area prior to accepting, treating and discharging wastewater from any such source. (Permit, Part 4— Special Conditions, p. 13.) 82. Klean Waters has accepted wastewater from outside of the District's service area for disposal to the District's sewerage facilities at least 32 times since October of 2013. 83. Klean Waters did not, and does not, have authorization from the District's General Manager to accept wastewater from outside the District's service area. 84. Klean Waters did not provide sampling data and customer profiles to the District prior to accepting wastewater from sources outside of the District's service area. 85. Pursuant to Government Code Section 54740.5,Ordinance Section 615(D)(7)(c), and Permit Part 3, Section II(A)(3),District staff recommends that a civil penalty of at least $160,000 be imposed. 86. Pursuant to Ordinance Section 605 (A)(11), District staff recommends that the Permit be revoked. 18 1023551.3 OTHER CONSIDERATIONS 87. Pursuant to Government Code Section 54740.5(c), in determining the amount of civil penalties, all relevant circumstances must be taken into account including,but not limited to,the extent of the harm caused by the violation, the economic benefit derived through any noncompliance,the nature and persistence of the violation, the length of time over which the violation occurs and the corrective action, if any, attempted or taken by the discharger. 88. Klean Waters has discharged wastewater without pretreatment which may, collectively, have the potential to cause interference with the District's wastewater treatment system. This can cause adverse effects including: harn to public health and safety, contamination of biosolids, and damage to the collection system. 89. Klean Waters has derived a substantial economic benefit by failing to comply with the Ordinance and the terms and conditions of the Permit, in an amount according to proof. 90. As set forth herein, Klean Waters has consistently and systematically violated the Ordinance and the Permit since Klean Waters began discharging in May of 2013 to the present. 91. To date, Klean Waters has not taken any corrective action. Klean Waters continues to: deny the District access to records and to sample trucks at the Facility; to refuse to install and make operational the pretreatment system as depicted in the Application; and to accept wastewater from outside the District's service area. At best, Klean Waters has presented District staff with profiles for customers located outside of the District's service area. These profiles, however,were not accompanied by any sampling data as required by the Permit. In addition,these profiles were only presented to the District after Klean Waters accepted and discharged waste from these customers. 19 1023351.3 PENALTIES The District recommends penalties against Klean Waters, Tim Miller, Shaun Miller, and each of them, as follows: Count 1 —Denial of Access to the Facility 1. For civil penalties as prescribed by Government Code Section 54740.5, Ordinance Section 615(D)(7)(c), and Permit Part 3, Section Il(A)(3), in the amount not to exceed $5,000 per violation for each day for discharges in violation of any waste discharge limitation,permit condition,or requirement issued, reissued,or adopted by the District, in the sum of at least $70,000. 2. For permit revocation pursuant to Ordinance Sections 605(A)(2), 605(A)(7),and 605(a)(11). Count 2— Failure to Provide Pretreatment 3. For civil penalties as prescribed by Government Code Section 54740.5, Ordinance Section 615(D)(7)(c), and Permit Part 3, Section II(A)(3), in the amount not to exceed$5,000 per violation for each day for discharges in violation of any waste discharge limitation, permit condition, or requirement issued,reissued, or adopted by the District, in the sum of at least $1,825,000. 4. For permit revocation pursuant to Ordinance Section 605(A)(I 1). Count 3—Acceptance of Waste from Outside the District's Service Area 5. For civil penalties as prescribed by Government Code Section 54740.5, Ordinance Section 615(D)(7)(c), and Permit Part 3, Section ll(A)(3), in the amount not to exceed$5,000 per violation for each day for discharges in violation of any waste discharge limitation, permit 20 1023551.3 condition,or requirement issued, reissued, or adopted by the District, in the sum of at least $160,000. 6. For permit revocation pursuant to Ordinance Section 605(A)(11). On All Counts 7. For any and all other relief deemed just and proper. DATED: o�rsZp(� Kl/vL/ JIM HERBE G GENERAL MANAGER ORANGE COUNTY SANITATION DISTRICT 21 1023551.3 ORDINANCE NO. OCSD-39 AN ORDINANCE OF THE BOARD OF DIRECTORS OF ORANGE COUNTY SANITATION DISTRICT ESTABLISHING WASTEWATER DISCHARGE REGULATIONS,REVISING ARTICLE 1, SECTION 104, AND REPEALING ORDINANCE NO. 00SD-37 The Board of Directors of the Orange County Sanitation District (OCSD) does hereby FIND: A. That a comprehensive 30-year Master Plan of Capital Facilities, entitled "Collection, Treatment and Disposal Facilities Master Plan — 1989", hereinafter referred to as the "Master Plan", which includes detailed financial and engineering reports, was prepared, approved, and adopted by the Boards of Directors of the Predecessor Districts in 1989, setting forth and identifying the required future development of OCSD Facilities, including the financial projections for providing sewer service to all properties within the individual service areas of each of the nine Predecessor Districts; and, B. That the financial and engineering reports of the Master Plan were made available to the public, both prior to and subsequent to the adoption of the Master Plan, and were subject to noticed public hearings, all in accordance with the provisions of the California Constitution and Government Code Section 66016, and other provisions of law; and, C. That the OCSD, in 1997, as part of its maintenance and updating of its Master Plan, undertook a comprehensive evaluation and study of its operational and financial needs for the next 20 years, Including a detailed assessment of all types and categories of users; the demands on the system and capacity needs of the system to provide necessary service to the multiple categories of users; the total costs of the existing and future facilities in the system; and alternate methodologies for establishing fair and equitable charges to connect to and gain access to the system. These comprehensive planning, engineering, and financial studies led to the development of an updated Comprehensive Master Plan of Capital Facilities, which was approved and adopted by OCSD Resolution No. 99-21 of the Board of Directors on October 27, 1999; and, D. That in June 2002 the OCSD completed the Interim Strategic Plan Update (ISPU) which further updated these critical factors and developed revised cost estimates and user fee projections for upgrading the OCSD's level of treatment to secondary standards. On July 17, 2002, after reviewing: (1) the ISPU treatment alternatives, (2) ocean monitoring data, (3) public input, (4) regulatory Issues, and (5)financial considerations, the Board of Directors made the decision to upgrade our treatment to meet secondary treatment standards; and, Page 1 of 80 111111111111 Ii bfIIIIRIVB In 7019095070987 Ordinance OCSD-39 E. That the OCSD is required by federal and state law, including the Clean Water Act (33 U.S.C. 1251, at sea.), the General Pretreatment Regulations (40 C.F.R. 403), and the Porter-Cologne Water Quality Control Act (Water Code Sections 13000 at seg.), to implement and enforce a program for the regulation of wastewater discharges to the OCSD's sewers; and, F. That the OCSD is required by federal, state and local law to meet applicable standards of treatment plant effluent quality; and, G. That the adoption of this Ordinance is statutorily exempt under the California Environmental Quality Act pursuant to the provisions of Public Resources Code Section 21080(b)(8) and California Code of Regulations Section 15273(a) and categorically exempt pursuant to California Code of Regulations Sections 15307 and 15308. NOW, THEREFORE, the Board of Directors of the Orange County Sanitation District does hereby ORDAIN: Section I: Wastewater Discharge Regulations governing the use of OCSD sewerage facilities are hereby enacted to provide: ARTICLE 1 GENERAL PROVISIONS 101. PURPOSE AND POLICY This ordinance sets uniform requirements for Users of OCSD's facilities and enables OCSD to comply with all applicable State and Federal laws, including the Clean Water Act (33 United States Code [U.S.C.] section 1251 at seq.) and the General Pretreatment Regulations (Title 40 of the Code of Federal Regulations [CFR] Part 403). This Ordinance shall be interpreted in accordance with the definitions set forth in Section 102. The provisions of the Ordinance shall apply to the direct or indirect discharge of all liquid wastes carried to facilities of the OCSD. A. The purpose of this Ordinance is to provide for the maximum public benefit from the use of the OCSD facilities. This shall be accomplished by regulating sewer use and wastewater discharges, by providing equitable distribution of costs, in compliance with applicable Federal, State and local Regulations, and by supporting the proper disposal of Prescription Drugs as noted In the guidelines published by the Office of National Drug Control Policy. The revenues to be derived from the application of this Ordinance shall be used to defray all costs of providing sewerage service by the OCSD, including, but not limited to, administration, operation, monitoring, Page 2 of 80 maintenance, financing, capital construction, replacement and recovery, and provisions for necessary reserves; B. This ordinance is meant to protect both OCSD personnel who may be affected by wastewater, sludge, and biosolids in the course of their employment and the general public; C. To comply with Federal, State, and local policies and to allow the OCSD to meet applicable standards of treatment plant effluent quality, biosolids quality, and air quality, provisions are made in this Ordinance for the regulation of wastewater discharges to the public sewer. This Ordinance establishes quantity and quality limits on all wastewater discharges which may adversely affect the OCSD's sewerage systems, processes, effluent quality, biosolids quality, air emission characteristics, or inhibit the OCSD's ability to beneficially reuse or dispose of its treated wastewater, biosolids or meet biosolids discharge criteria. It is the intent of these limits to improve the quality of wastewater being received for treatment and to encourage water conservation and waste minimization by all users connected to a public sewer. It is the OCSD's Intent to limit future increases in the quantity (mass emission) of waste constituents being discharged. This Ordinance also provides for regulation of the degree of waste pretreatment required, the issuance of permits for wastewater discharge and connections and other miscellaneous permits, and establishes penalties for violation of the Ordinance. D. Since the OCSD is committed to a policy of wastewater reclamation and reuse in order to provide an alternate source of water supply, the implementation of programs for reclamation through secondary and tertiary wastewater treatment processes may necessitate more stringent quality requirements on wastewater discharges. In the event that more stringent quality requirements are necessary, the Ordinance will be amended to reflect those changes. E. Since the OCSD is committed to a policy for the beneficial use of biosolids, the implementation of programs to land-apply or provide for the marketing and distribution of biosolids may necessitate more stringent quality requirements on wastewater discharges. F. Since the OCSD is also committed to meet applicable air quality goals established by the South Coast Air Quality Management OCSD, more stringent quality requirements on wastewater discharges may be required to meet such goals. 102. DEFINITIONS Page 3 of 80 A. Unless otherwise defined herein, terms related to water quality shall be as adopted in the latest edition of Standard Methods for the Examination of Water and Wastewater, published by the American Public Health Association, the American Water Works Association and the Water Pollution Control Federation. The testing procedures for waste constituents and characteristics shall be as provided in 40 CFR 136 (Code of Federal Regulations; Title 40; Protection of Environment; Chapter I, Environmental Protection Agency; Part 136, Test Procedures for the Analyses of Pollutants), or as specified. Other terms not herein defined are defined as being the same as set forth in the International Conference of Building Officials Uniform Building Code, Current Edition. 1. Best Manaaement Practices (BMPs1 shall mean schedules of activities, prohibitions of practices, maintenance procedures, operating procedures, practices to control spillage or leaks, treatment requirements, and other management practices to prevent or reduce pollution or to meet Article 2 standards. 2. Biochemical Oxvaen Demand (BOD) shall mean a measurement of oxygen utilized by the decomposition of organic material, over a specified time period (usually 5 days) in a wastewater sample. It is used as a measurement of the readily decomposable organic content of wastewater. 3. Board shall mean the Board of Directors of the Orange County Sanitation District. 4. BVpass shall mean the intentional diversion of wastestreams from any portion of an industrial user's treatment facility. 5. Capital Facilities Connection Charge shall mean the payment of a fee, imposed by the governing Board of the OCSD, to pay for the future costs of constructing new sewerage collection, treatment, and disposal facilities; and as a contributive share of the cost of the existing facilities. This charge shall be paid by all property owners at the time they develop the property and connect directly or indirectly to the OCSD sewerage facilities as a new system user. This charge, whose rates areas set forth in a separate Ordinance, is expressly authorized by the provisions of California Health & Safety Code Sections 5471 and 5474. 6. Charge For Use shall mean the OCSD's sanitary sewer service Page 4 of 80 charge, a charge established and levied by the OCSD upon residential, commercial and industrial users of the OCSD's system, pursuant to Sections 302.6(F)2, or 303.6(F)2 of this Ordinance, in proportion to the use of the treatment works by their respective class, that provides for the recovery of the costs of operation and maintenance expenses, capital facilities rehabilitation or replacement, and adequate reserves for the sewage treatment works. The minimum charge for use Is the Annual Sewer Service Fee Residential Users 7. Chemical Oxygen Demand (COD) shall mean a measure of the oxygen required to oxidize all compounds, both organic and inorganic, in wastewater. B. Class I User shall mean any user who discharges wastewater that: a) is subject to Federal Categorical Pretreatment Standards; or b) averages 25,000 gallons per day or more of regulated process wastewater; or c) is determined to have a reasonable potential for adversely affecting the OCSD's operation or for violating any pretreatment standard, local limit, or discharge requirement; or d) may cause, pass through or interference with the OCSD sewerage facilities 9. Class II Use shall mean any industrial user whose charge for use is greater than special assessment "OCSD Sewer User Fee" included on the County of Orange secured property tax bill exclusive of debt service, that discharges wastes other than sanitary, and that Is not otherwise required to obtain a Class I permit. 10. Code of Federal Regulations (CFR) shall mean the codification of the general and permanent regulations published in the Federal Register by the executive departments and agencies of the Federal Government. 11. Compatible Pollutant shall mean a combination of biochemical oxygen demand, suspended solids, pH, fecal coliform bacteria, plus other pollutants that the OCSD's treatment facilities are designed to accept and/or remove. Compatible pollutants are non-compatible when discharged in quantities that have an adverse effect on the Page 5 of 80 OCSD's system or NPDES permit, or when discharged in qualities or quantities violating any Federal Categorical Pretreatment Standard, local limit, or other discharge requirement. 12. Composite Sample shall mean a collection of individual samples obtained at selected intervals based on an increment of either flow or time. The resulting mixture (composite sample) forms a representative sample of the wastestream discharged during the sample period. 13. Connection Permit shall mean a permit issued by the OCSD, upon payment of a capital facilities connection charge, authorizing the permittee to connect directly to a OCSD sewerage facility or to a sewer which ultimately discharges Into a OCSD sewerage facility. 14. Control Authority shall mean the Orange County Sanitation District. 15. Department Head shall mean that person duly designated by the General Manager to direct the Technical Services Department, including the Source Control Division and perform those delegated duties as specified in this Ordinance. 16. Discharger shall mean any person who discharges or causes a discharge of wastewater directly or indirectly to a public sewer. Discharger shall mean the same as User. 17. District shall mean the Orange County Sanitation District. 18. Division Head shall mean that person duly designated by the General Manager to implement the OCSD's Source Control Program and perform the duties as specified in this Ordinance. 19. Domestic Seotage shall mean the liquid and solid material removed from a septic tank, cesspool, portable toilet, Type III marine sanitation device, or similar treatment works that receives only domestic wastewater. - 20. Domestic Wastewater shall mean the liquid and solid waterbome wastes derived from the ordinary living processes of humans of such character as to permit satisfactory disposal, without special treatment, into the public sewer or by means of a private disposal system. 21. Downstream Sampling or Monitoring shall mean sampling or monitoring usually conducted in a city or agency owned sewer for the purpose of determining the compliance status of an industrial or Page 6 of 80 commercial discharger. 22. Dry Weather Urban Runoff shall mean surface runoff flow that Is generated from any drainage area within OCSD's service area during a period that does not fall within the definition of Wet Weather. It is surface runoff that contains pollutants that interfere with or prohibit the recreational use and enjoyment of public beaches or cause an environmental risk or health hazard. 23. Enforcement Compliance Schedule Agreement (ECSA) shall mean a mutual agreement between the OCSD and permittee requiring implementation of necessary pretreatment practices and/or installation of equipment to ensure permit compliance. 24. Federal Categorical Pretreatment Standards shall mean any regulation containing pollutant discharge limits promulgated by the U.S. EPA in accordance with Sections 307(b) and (c) of the Clean Water Act (33 U.S.C. 1317) which apply to a specific category of industrial users and which appear in 40 CFR Chapter I, Subchapter N, Parts 405-471. 25. Federal Regulations shall mean any applicable provision of the Federal Water Pollution Control Act, also known as the Clean Water Act, as amended, Title 33, United States Code, Section 1251 and following, and any regulation promulgated by the United States Environmental Protection Agency under Title 40 CFR implementing that act. 26. Flow Monitoring Facilities shall mean equipment and structures provided at the user's expense to measure, totalize, and/or record, the incoming water to the facility or the wastewater discharged to the sewer. 27. General Manager shall mean the individual duly designated by the Board of Directors of the OCSD to administer this Ordinance (REFER TO SECTION 107). 28. Grab Sample shall mean a sample taken from a waste stream on a one-time basis without regard to the flow in the waste stream and without consideration of time. 29. Industrial Use shall mean any user that discharges industrial wastewater. 30. Industrial Wastewater shall mean all liquid-carried wastes and Page 7 of 80 wastewater of the community, excluding domestic wastewater and domestic septage, and shall include all wastewater from any producing, manufacturing, processing, agricultural, or other operation. 31. Inspector shall mean a person authorized by the General Manager to Inspect any existing or proposed wastewater generation, conveyance, processing, and disposal facilities. 32. Interference shall mean any discharge which, alone or in conjunction with a discharge or discharges from other sources, either: a) inhibits or disrupts the OCSD, its treatment processes or operations, or Its biosolids processes, use, or disposal; or b) is a cause of a violation of any requirement of the OCSD's NPDES permit or prevents lawful blosolids or treated effluent use or disposal. 33. LEL (Lower Explosive Limit l shall mean the minimum concentration of a combustible gas or vapor in air (usually expressed in percent by volume at sea level) which will ignite if an Ignition source (sufficient ignition energy) is present. 34. Local Sewerino Aaencv shall mean any public agency or private corporation responsible for the collection and disposal of wastewater to the OCSD's sewerage facilities duly authorized under the laws of the State of California to construct and/or maintain public sewers. 35. Maior Violation shall mean a discharge over the permitted discharge limit, as determined by the result of a composite sample analysis, as follows: a) a discharge exceeding a mass emission limit by 20% or more, or b) a discharge exceeding a concentration limit by 20% or more, or c) a pH discharge less than 5.0. 36. Mass Emission Rate shall mean the weight of material discharged to the sewer system during a given time interval. Unless otherwise specified, the mass emission rate shall mean pounds per day of a Page 8 of 80 particular constituent or combination of constituents. 37. Maximum Allowable Discharge Limit shall mean the maximum quantity or concentration of a pollutant allowed to be discharged at any period of time. 38. May shall mean permissive or discretionary. 39. Medical Waste shall mean the discharge of Isolation wastes, infectious agents, human blood and blood byproducts, pathological wastes, sharps, body parts, fomites, etiologic agents, contaminated bedding, surgical wastes, potentially contaminated laboratory wastes, and dialysis wastes. 40. Milligrams Per Liter(mg/L1 shall mean a unit of the concentration of a constituent or compound that is found in water or wastewater. It is 1 milligram of the constituent or compound in 1 liter of water or wastewater. 41. Minor Violation shall mean a discharge over the permitted discharge limit as determined by the result of a composite sample analysis, as follows: a) a discharge exceeding a mass emission limit by less than 20%, or b) a discharge exceeding a concentration limit by less than 20%, or c) a pH discharge equal to or greater than 5.0, but less than 6.0, or d) a pH discharge greater than 12.0. 42. North American Industry Classification System (NAICS) shall mean an industry classification system that groups establishments into industries based on the activities in which they are primarily engaged. 43. National Pollutant Dlscharae Elimination System Permit (NPDES Permit) shall mean the permit issued to control the discharge to surface waters of the United States as detailed in Public Law 92-500, Section 402. 44. New Source shall mean those sources that are new as defined by 40 CFR 403.3(k)as revised. Page 9 of 80 45. Non-Compatible Pollutant shall mean any pollutant which is not a compatible pollutant as defined herein. 46. Normal Workino Da v shall mean the period of time during which production or operation Is taking place or any period during which discharge to the sewer is occurring. 47. OCSD shall mean Orange County Sanitation District. 48. OCSD Sewerage Facility or System shall mean any property belonging to the OCSD used in the treatment, reclamation, reuse, transportation, or disposal of wastewater, or biosolids. 49. Ordinance shall mean that document entitled "Wastewater Discharge Regulations" containing OCSD requirements, conditions, and limits for connecting and discharging to the sewer system, as may be amended and modified. 50. PH shall mean both acidity and alkalinity on a scale ranging from 0 to 14 where 7 represents neutrality, numbers less than 7 increasing acidity, and more than 7 increasing alkalinity, and Is the logarithm of the reciprocal of the quantity of hydrogen ions in moles per liter of solution. 51. Pass Throuah shall mean discharge through the OCSD's sewerage facilities to waters of the U.S. which, alone or in conjunction with discharges from other sources, is a cause of a violation of the OCSD's NPDES permit. 52. Permittee shall mean a person who has received a permit to discharge wastewater into the OCSD's sewerage facilities subject to the requirements and conditions established by the OCSD. 53. Person shall mean any Individual, partnership, copartnership, company, firm, association, corporation or public agency,joint stock company, trust, estate, or any other legal entity; or their legal representatives, agents, assigns, including all Federal, State, and local governmental entitles. 54. Pesticides shall mean those compounds classified as such under Federal or State law or regulations including, but not limited to DDT (dichlorodiphenyltrichloro-ethane, both isomers), DDE (dichlorodiphenyl-ethylene), DOD (dichlorodiphenyldichloroethane), Aldrin, Benzene Hexachloride (alpha [a], beta [0], and gamma Page 10 of 80 isomers), Chlordane, Endrin, Endrn aldehyde, 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD), toxaphene, a-endosulfan, p-endosulfan, Endosulfan sulfate, Heptachlor, Heptachlor epoxide, Dieldrin, Demeton, Guthion, Malathion, Methoxychlor, Mirex, and Parathion. 55. Pollutant shall mean any constituent, compound, or characteristic of wastewaters on which a discharge limit may be Imposed either by the OCSD or the regulatory bodies empowered to regulate the OCSD. 56. Polychlorinated Biohenvls (PCB) shall mean those compounds classified as such under Federal or State law including, but not limited to Aroclors 1016, 1221, 1228, 1232, 1242, 1248, 1254, 1260, and 1262. 57. Pretreatment shall mean the reduction of the amount of pollutants, the elimination of pollutants, or the alteration of the nature of pollutant properties in wastewater to a level authorized by the OCSD prior to, or in Ileu of, discharge of the wastewater into the OCSD's system. The reduction or alteration can be obtained by physical, chemical or biological processes, by process changes, or by other means. 58. Pretreatment Facility shall mean any works or devices that the General Manager determines are appropriate to treat, restrict, or prevent the flow of industrial wastewater prior to discharge into a public sewer. 59. Priority Pollutants shall mean the most recently adopted list of toxic pollutants identified and listed by EPA as having the greatest environmental impact. They are classified as non-compatible pollutants and may require pretreatment prior to discharge in order to prevent: a) interference with the OCSD's operation; or b) biosolids contamination; or c) pass through into receiving waters or into the atmosphere. 60. Public Acencv shall mean the State of California and any city, county, district, other local authority or public body of or within this State. 61. Public Sewer shall mean a sewer owned and operated by the Page 11 of 80 OCSD, a city or other local sewering agency which is tributary to the OCSD's sewerage facilities. 62. RCRA shall mean Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901, at seq.) and as amended. 63. Reaulatory Agencies shall mean those agencies having jurisdiction over the operation of the OCSD Including, but not limited to, the following: a) United States Environmental Protection Agency, Region IX, San Francisco and Washington, DC (EPA). b) California State Water Resources Control Board (SWRCB). c) California Regional Water Quality Control Board, Santa Ana Region (RWQCB). d) South Coast Air Quality Management District(SCAQMD). e) California Environmental Protection Agency(Cal-EPA). 64. Regulatory Comoliance Schedule Agreement (RCSA) shall mean an agreement between the OCSD and permittee requiring the permittee to implement pretreatment practices and/or install equipment to ensure compliance with future revised categorical pretreatment standards or revised discharge limits. 65. Sample Point shall mean a location accepted by the OCSD, from which wastewater can be collected that is representative in content and consistency of the entire flow of wastewater being sampled. Page 12 of 80 66. Semolina Facilities shall mean structure(s) provided at the user's expense for the OCSD or user to measure and record wastewater constituent mass, concentrations, collect a representative sample, or provide access to plug or terminate the discharge. 67. Sanitary Waste shall mean domestic wastewater, human excrement and gray water (household showers, dishwashing operations, etc). 68. Seotic Waste shall mean any sewage from holding tanks such as vessels, chemical toilets, campers, trailers, and septic tanks. 69. Service Area shall mean an area for which the OCSD has agreed to either provide sewer service, or wastewater treatment, or wastewater disposal 70. Sewage shall mean wastewater. 71. Seweraae Facilities or System shall mean any and all facilities used for collecting, conveying, pumping, treating, and disposing of wastewater or sludge or biosolids. 72. Shall mean mandatory. 73. Significant Non-Compliance (SNC) shall mean the compliance status of an industrial user who is in violation of one or more of the criteria as described in 40 CFR 403. 74. Slue Load shall mean a discharge that exceeds the prohibitions stated in Section 201 and significantly exceeds the usual user flow or pollutant loading, either mass or concentration. 75. Sludge shall mean any solid, semi-solid or liquid decant, subnate or supernate from a manufacturing process, utility service, or pretreatment facility. 76. Special Assessment Credit shall mean the portion of the secured property tax bill that represents the regional special assessment sewer user fee as defined by the OCSD. 77. Special Purpose Use shall mean any discharger who is granted a Special Purpose Discharge Permit by the OCSD to discharge unpolluted water, storm runoff, or groundwater to the OCSD's sewerage facilities. 78. Spent Solutions shall mean any concentrated industrial wastewater. Page 13 of 80 79. Spill Containment shall mean a protection system installed by the permittee to prohibit the discharge to the sewer of non-compatible pollutants. 80. Standard Methods shall mean procedures described in the current edition of Standard Methods for the Examination of Water and Wastewater, as published by the American Public Health Association, the American Water Works Association and Water Pollution Control Federation. 81. Susoended Solids shall mean any insoluble material contained as a component of wastewater and capable of separation from the liquid portion of said waste by laboratory filtration as determined by the appropriate testing procedure and expressed in terms of milligrams per liter. 82. Tax redit shall mean the Annual Regional Sewer Service Charge on the Secured Property tax bill. 83. Total Organic Carbon (TOC) shall mean the measure of total organic carbon in domestic or other wastewater as determined by the appropriate testing procedure. 84. Total Toxic Organics (TTO) shall mean the summation of all quantifiable values greater than 0.01 milligrams per liter for the organics regulated by the EPA or OCSD for a specific industrial category. 85. Unpolluted Water shall mean water to which no pollutant has been added either intentionally or accidentally. 86. User shall mean any person who discharges or causes a discharge of wastewater directly or indirectly to a public sewer. User shall mean the same as Discharger or Industrial User. 87. Waste shall mean sewage and any and all other waste substances, liquid, solid, gaseous or radioactive, associated with human habitation or of human or animal nature, including such wastes placed within containers of whatever nature prior to and for the purpose of disposal. 88. Waste Manifest shall mean that receipt which is retained by the generator of hazardous wastes as required by the State of California or the United States Government pursuant to RCRA, or the California Hazardous Materials Act, or that receipt which is Page 14 of 80 retained by the generator for recyclable wastes or liquid non-hazardous wastes as required by the OCSD. 89. Wastehauler shall mean any person carrying on or engaging in vehicular transport of waste as part of, or incidental to, any business for the purpose of discharging said waste into the OCSD's system. 90. Wastewater shall mean the liquid and water-carried wastes of the community and all constituents thereof, whether treated or untreated, discharged Into or permitted to enter a public sewer. 91. Wastewater Constituents and Characteristics shall mean the Individual chemical, physical, bacteriological, and radiological parameters, including volume and flow rate and such other parameters that serve to define, classify or measure the quality and quantity of wastewater. 92. Wet Weather shall mean any period of time during which measurable rainfall occurs within of OCSD's service area. This period shall include the time following the cessation of rainfall until OCSD determines that the wet weather event is no longer impacting OCSD's sewerage system. B. Words used in this Ordinance in the singular may include the plural and the plural the singular. Use of masculine shall mean feminine and use of feminine shall mean masculine. Shall is mandatory; may is permissive or discretionary. 103. CONFIDENTIAL INFORMATION All user information and data on file with the OCSD shall be available to the public and governmental agencies without restriction unless the user specifically requests and is able to demonstrate to the satisfaction of the OCSD that the release of such information would divulge information, processes or methods which would be detrimental to the user's competitive position. The demonstration of the need for confidentiality made by the permittee must meet the burden necessary for withholding such Information from the general public under applicable State and Federal Law. Any such claim must be made at the Page 15 of 80 time of submittal of the information by marking the submittal "Confidential Business Information" on each page containing such Information. Information which is demonstrated to be confidential shall not be transmitted to anyone other than a governmental agency without prior notification to the user. Wastewater constituents and characteristics and other effluent data, as defined in 40 CFR 2.302 shall not be recognized as confidential information and shall be available to the public. 104. TRANSFER OF PERMITS A. Permits issued under this Ordinance are for a speck user, for a specific operation at a specific location or for a specific wastehauler, and create no vested rights. 1. No permit may be transferred to allow a discharge to a public sewer from a point other than the location for which the permit was originally Issued. 2. Except as expressly set forth herein, no permit for an existing cilit may be transferred to a new owner and/or operator of that facility. B. When the permittee is a legal entity(such as a corporation, partnership, limited liability company, or other legal entity), the permittee is deemed to have undergone a change of ownership when any other legal entity or person acquires direct or indirect ownership or control of more than fifty percent(50%) of the total ownership interest in the permittee. C At least thirty (30) days prior to the sale or transfer of ownership of any business operating under a permit issued by the OCSD, the permittee shall notify the OCSD In writing of the proposed sale or transfer. The successor owner shall apply to the OCSD for a new permit at least fifteen (15) days prior to the sale or transfer of ownership in accordance with the provisions of this Ordinance. A successor owner shall not discharge any wastewater for which a permit is required by this Ordinance until a permit is issued by the OCSD to the successor owner. D. The written notification of intended transfer shall be in a force approved by the OCSD and shall include a written certification by the new owner and/or operator which: 1. States that the new owner or operator has no immediate intent to modify the facility's operations and/or processes; Page 16 of 80 2. Identifies the specific date on which the transfer is to occur; and 3. Acknowledges that the new owner or operator is fully responsible for complying with the terms and conditions of the existing permit and all provisions of this Ordinance. 105. EFFECT OF TRANSFER OF PERMITS Except as expressly set forth in Section 104.C, any permit which is transferred to a new owner and/or operator or to a new facility is void. 106. AUTHORITY The OCSD is regulated by several agencies of the United States Government and the State of California, pursuant to the provisions of Federal and State Law. Federal and State Laws grant to the OCSD the authority to regulate and/or prohibit, by the adoption of ordinances or resolutions, and by issuance of discharge permits, the discharge of any waste, directly or indirectly, to the OCSD's sewerage facilities. Said authority includes the right to establish limits, conditions, and prohibitions; to establish flow rates or prohibit flows discharged to the OCSD's sewerage facilities; to require the development of compliance schedules for the installation of equipment systems and materials by all users; and to take all actions necessary to enforce its authority, whether within or outside the OCSD's boundaries, including those users that are tributary to the OCSD or within areas for which the OCSD has contracted to provide sewerage services. The OCSD has the authority pursuant to California Health and Safety Codes 5471 and 5474 to prescribe, revise, and collect all fees and charges for services and facilities fumished by the OCSD either within or without its territorial limits. 107. DELEGATION OF AUTHORITY Whenever any power is granted to or a duty is imposed upon the General Manager, the power may be exercised or the duty may be performed by any person so authorized by the General Manager. 108. SIGNATORY REQUIREMENTS Reports and permit applications required by this Ordinance shall contain the following certification statement: "I have personally examined and am familiarwith the information submitted in the attached document, and I hereby certify under penalty of perjury that this information was obtained in accordance with the Federal Pretreatment Requirements. Moreover, based upon my inquiry of those individuals Page 17 of 80 Immediately responsible for obtaining the information reported herein, I believe that the submitted information is true, accurate, and complete. I am aware that there are significant penalties not limited to fines and Imprisonment for submitting false information." The statement shall be signed by an authorized representative of the industrial user as defined in 40 CFR 403 ores defined and designated by the OCSD. ARTICLE 2 GENERAL PROHIBITIONS, LIMITS AND REQUIREMENTS FOR DISCHARGE 201. PROHIBITED DISCHARGES These prohibitions apply to all users of the OCSD facilities whether or not they are subject to Federal Categorical Pretreatment Standards or any other National, State, or local pretreatment standards or requirements. A. General Prohibitions. 1. No user shall Introduce or cause to be introduced into the OCSD any pollutant, wastewater, or flow which causes pass through or interference or would cause the OCSD to violate any Federal, State, or local regulatory requirement. 2. No user shall increase the contribution of flow, pollutants, or change the nature of pollutants where such contribution or change does not meet applicable standards and requirements or where such contribution would cause the OCSD to violate any Federal, State, or local regulatory permit. 3. No person shall transport waste from one location or facility to another for the purpose of treating or discharging it directly or indirectly to the OCSD sewerage system without written permission from the OCSD. 4. No person shall deliver by vehicular transport, rail car, or dedicated pipeline, directly or indirectly to the OCSD sewerage facilities, wastewater which contains any substance that is defined as a hazardous waste by the Regulatory Agencies. B. Specific Prohibitions. No user shall introduce or cause to be introduced into the sewerage facilities, pollutants, substances, or wastewater which: 1. Creates a fire or explosive hazard in the sewerage facilities including, but not limited to, wastestreams with a closed-cup Page 18 of 80 flashpoint of less than 140 degrees F (60 degrees C) using the test methods specified in 40 CFR 261.21; or produces a gaseous mixture that is 10% or greater of the lower explosive limit(LEL). 2. Causes obstruction to the flow in the sewer system resulting in interference or damage to the sewerage facilities. 3. Produces noxious or malodorous liquids, gases, solids, or other wastewater which, either singly or by interaction with other wastes, is sufficient to create a public nuisance or a hazard to life, or to prevent entry into the sewers for maintenance or repair. 4. Results in toxic gases, vapors, or fumes within the sewerage facilities in a quantity that may cause acute worker health and safety problems. 5. Contains any radioactive wastes or isotopes except in compliance with applicable regulations from other governmental agencies empowered to regulate the use of radioactive materials. 6. Causes, alone or in conjunction with other sources, the OCSD's treatment plant effluent to fail a toxicity test. 7. Caused the OCSD's effluent or any other product of the treatment process, residues, biosolids, or scums, to be unsuitable for reclamation, reuse or disposal. 8. Causes discoloration or any other condition which affects the quality of the OCSD's influent or effluent in such a manner that inhibits the OCSD's ability to meet receiving water quality, biosolids quality, or air quality requirements established by Regulatory Agencies. 9. Creates excessive foaming in the sewerage facilities. 10. Violates any applicable Federal Categorical Pretreatment Standard, statute, regulation, or ordinance of any public agency or Regulatory Agency having jurisdiction over the operation of or discharge of wastewater through the sewerage facilities. 11. Has a temperature higher than 140 degrees Fahrenheit, (60 degrees Centigrade), or which causes the temperature at the treatment plant to exceed 104 degrees Fahrenheit (40 degrees Centigrade). 12. Has a pH less than 6.0 or greater than 12.0. Page 19 of 80 13. Has a maximum Biochemical Oxygen Demand (BOD) greater than 15,000 pounds per day. 14. Is in excess of the permitted mass emission rates established in accordance with: Section 212, or the concentration limits set forth in Table I, or the discharge permit. 15. Contains material which will readily settle or cause an obstruction to flow in the sewer resulting in interference, such as, but not limited to, sand, mud, glass, metal filings, diatomaceous earth, cat litter, asphalt, wood, bones, hair, and fleshings. 202. PROHIBITION ON DILUTION No user shall increase the use of water or in any other manner attempt to dilute a discharge as a partial or complete substitute for treatment to achieve compliance with this Ordinance and the user's permit or to establish an artificially high flow rate for permit mass emission rates. 203. PROHIBITION ON SURFACE RUNOFF AND GROUNDWATER A. No person shall discharge groundwater, surface runoff, or subsurface drainage directly or indirectly to the OCSD's sewerage facilities except as provided herein. Pursuant to Section 304 or 305, at seq., the OCSD may approve the discharge of such water only when no alternate method of disposal is reasonably available or to mitigate an environmental risk or health hazard. B. The discharge of such waters shall require a Dry Weather Urban Runoff Permit or a Special Purpose Discharge Permit from the OCSD. Page 20 of 80 C. If a permit is granted for the discharge of such water into a public sewer, the user shall pay the applicable charges established herein and shall meet such other conditions as required by the OCSD. 204. PROHIBITION ON UNPOLLUTED WATER A. No person shall discharge unpolluted water such as single pass cooling water directly or indirectly to the OCSD's sewerage facilities except as provided herein. Pursuant to Section 305, at seq., the OCSD may approve the discharge of such water only when no alternate method of disposal or reuse is reasonably available or to mitigate an environmental risk or health hazard. B. The discharge of such waters shall require a Special Purpose Discharge Permit from the OCSD. C. If a permit is granted for the discharge of such water into a public sewer, the user shall pay the applicable charges established herein and shall meet such other conditions as required by the OCSD. 205. RESERVED 206. PROHIBITION ON THE USE OF GRINDERS A. Waste from Industrial or commercial grinders shall not be discharged into a public sewer, except wastes generated in packing or preparing food or food products. Such grinders must shred the waste to a degree that all particles will be carried freely under normal flow conditions prevailing in the public sewer. B. Waste from Food Service Establishments operating a grinder is prohibited and shall not be discharged into a public sewer unless written authorization from the OCSD General Manager or his designee is obtained. 207. PROHIBITION ON POINT OF DISCHARGE No person, except local sewering agencies involved in maintenance functions of sanitary sewer facilities, shall discharge any wastewater directly into a manhole or other opening in a sewer other than through an approved building sewer, unless approved by the OCSD upon written application by the user and payment of the applicable fees and charges established herein. Page 21 of 80 208. PROHIBITION AND REQUIREMENTS FOR WASTEHAULER DISCHARGES-TO THE OCSD SEWERAGE SYSTEM AND WASTEHAULER STATION A. No Wastehauler shall discharge to the OCSD sewerage system, domestic septage or other approved waste or wastewater from a vacuum pumping truck or other liquid waste transport vehicle, without first obtaining both a valid Orange County Health Care Agency Permit and a OCSD Wastehauler Permit as required by Section 306. Such wastewaters shall be discharged only at locations designated by the OCSD, and at such times as established by the OCSD. The OCSD may collect samples of each hauled load to ensure compliance with applicable standards. B. No Wastehauler shall discharge domestic septage or other approved waste or wastewater constituents in excess of Limits in Table I. C. The discharge of industrial wastewater by any Wastehauler is prohibited unless written permission of the General Manager has been obtained, the proper permits have been obtained, and the waste meets Federal and State limits applicable to the user from which the waste was obtained; or Maximum Local Discharge Limits as specified in Table I, whichever are more stringent. The discharge of hauled industrial wastewater is subject to all other requirements of this ordinance. D. No Wastehauler shall discharge wastewater to sewers that are tributary to the OCSD's sewerage facilities that are from a source that Is not within the OCSD's service area unless prior authorization is granted by the General Manager or his designee. E. No Wastehauler shall discharge directly or indirectly to the sewerage facilities any material defined as hazardous waste by RCRA or 40 CFR 261. F. Wastehaulers shall provide a waste-tracking form for every load. This form shall include, at a minimum, the name and address of the Industrial waste hauler, permit number, truck identification, names and addresses of sources of waste, and volume and characteristics of waste. G. Discharge at the OCSD disposal station shall be through an appropriate hose and connection to the discharge port. Discharging waste directly to the surface area of the disposal station is prohibited. H. Wastehauler hoses must be connected to the disposal station discharge port when being cleaned. 1. Transferring loads between trucks or from portable toilets to trucks on Page 22 of 80 OCSD property is prohibited unless permission from OCSD is obtained. 209. RESERVED 210. PROHIBITION ON MEDICAL WASTE A. No person shall discharge solid wastes from hospitals, clinics, offices of medical doctors, convalescent homes, medical laboratories or other medical facilities to the sewerage system including, but not limited to, hypodermic needles, syringes, instruments, utensils or other paper and plastic items of a disposable nature except where prior written approval for such discharges is given by the General Manager. B. The OCSD shall have the authority to require that any discharge of an infectious waste to the sewer be rendered non-infectious prior to discharge if the infectious waste is deemed to pose a threat to the public health and safety, or will result in any violation of applicable waste discharge requirements. 211. PROHIBITION ON DISPOSAL OF SPENT SOLUTIONS AND SLUDGES Spent solutions, sludges, and materials of quantity or quality in violation of, or prohibited by this Ordinance, or any permit issued under this Ordinance must be disposed of in a legal manner at a legally acceptable point of disposal as defined by the OCSD or appropriate Regulatory Agency. All waste manifests shall be retained for a minimum of three years, and made available to the OCSD upon request. 212. MASS EMISSION RATE DETERMINATION A. Mass emission rates for non-compatible or compatible pollutants that are present or anticipated in the user's wastewater discharge may be set for each user and made an applicable part of each user's permit. These rates shall be based on Table I, Local Discharge Limits, or Federal Categorical Pretreatment Standards, and the user's average daily wastewater discharge for the past three years, the most recent representative data, or other data acceptable to the General Manager or his designee. B. To verify the user's operating data, the OCSD may require a user to submit an inventory of all wastewater streams and/or records indicating production rates. Page 23 of 80 C. The OCSD may revise limits or mass emission rates previously established in the discharger's permit at any time, based on: current or anticipated operating data of the discharger or the OCSD; the OCSD's ability to meet NPDES limits; or changes in the requirements of Regulatory Agencies. D. The excess use of water to establish an artificially high flow rate for mass emission rate determination is prohibited. TABLE ORANGE COUNTY SANITATION DISTRICT MAXIMUM ALLOWABLE LOCAL DISCHARGE LIMITS(a) CONSTITUENT MILLIGRAMS/LITER Arsenic 2.0 Cadmium 1.0 Chromium(Total) 2.0 Copper 3.0 Lead 2.0 Mercury 0.03 Nickel 10.0 Silver 5.0 Zinc 10.0 Cyanide(Total) 5.0 Cyanide(Amenable) 1.0 Polychlorinated Biphenyls 0.01 Pesticides 0.01 Total Toxic Organics 0.58 Sulfide(Total) 5.0 Sulfide(Dissolved) 0.5 Oil and grease of mineral or petroleum origin 100.0 Boo 15,000 Ibs/day MAXIMUM ALLOWABLE DISCHARGE LIMITS FOR WASTEHAULERS DISCHARGING DOMESTIC SEPTAGE CONSTITUENT MILLIGRAMS/LITER Cadmium 1.0 Chromium 2.0 Copper 25.0 Lead 10.0 Nickel 10.0 Zinc 50.0 (a): Users subject to Federal Categorical Pretreatment Standards may be required to meet more stringent limits. Page 24 of 80 ARTICLE 3 DISCHARGE PERMITS, CHARGES, AND FEES 301. INTRODUCTION A. To provide the maximum public benefit from the use of OCSD sewerage facilities, written authorization to use said facilities Is required. This written authorization shall be in the form of a discharge permit. No vested right shall be given by Issuance of permits provided for in this Ordinance. The OCSD reserves the right to establish, by Ordinance or in Wastewater Discharge Permits, more stringent standards or requirements on discharges to the OCSD sewerage facilities if deemed by the General Manager appropriate to comply with the objectives presented in the Introduction and Summary of this Ordinance and the prohibitions and limitations in Article 2. B. The discharge permit shall be in one of five forms and is dependent upon the type of discharger, volume, and characteristics of discharge. The five discharge permits are: 1. Class I Wastewater Discharge Permit. 2. Class II Wastewater Discharge Permit. 3. Dry Weather Urban Runoff Discharge Permit. 4. Special Purpose Discharge Permit. 5. Wastehauler Discharge Permit. 302. CLASS I WASTEWATER DISCHARGE PERMITS A. No user requiring a Class I permit shall discharge wastewater without obtaining a Class I Wastewater Discharge Permit. B. Class I Wastewater Discharge Permits shall be expressly subject to all provisions of this Ordinance and all other regulations, charges for use, and fees established by the OCSD. The conditions of Wastewater Discharge Permits shall be enforced by the OCSD in accordance with this Ordinance and applicable State and Federal Regulations. C. All Class I users proposing to discharge directly or indirectly into the OCSD sewerage facilities shall obtain a Wastewater Discharge Permit by filing an application pursuant to Section 302.1 and paying the applicable fees pursuant to Section 302.3. For purposes of this Ordinance, a Class I Page 25 of 80 user is any user: 1. Subject to Federal Categorical Pretreatment Standards; or 2. Discharging wastewater which averages 25,000 gallons per day or more of regulated process water; or 3. Discharging wastewater determined by the OCSD to have a reasonable potential for adversely affecting the OCSD's operation or for violating any pretreatment standard, local limits, or discharge requirement; or 4. Discharging wastewater which may cause, as determined by the General Manager, pass through or Interference with the OCSD system. 302.1 Class I Wastewater Discharae Permit Application A. Any person required to obtain a Class I Wastewater Discharge Permit shall complete and file with the OCSD, prior to commencing discharge, an application on the form prescribed by the OCSD. The applicant shall submit, in units and terms appropriate for evaluation, the following information: 1. Name, address, assessor's parcel number(s), NAICS number(s), description of the manufacturing process or service activity. 2. (Whichever is applicable) name, address of any and all principals/owners/major shareholders of company; Articles of Incorporation; most recent Report of the Secretary of State; Business License. 3. Volume of wastewater to be discharged. 4. Name of individual who can be served with notices other than officers of corporation. 5. Name and address of property owner, landlord and/or manager of the property. 6. Water supplier and water account numbers. 7. Wastewater constituents and characteristics as required by the OCSD, including, but not limited to, those mentioned in Section 212, Mass Emission Rate Determination, and Table I, Loral Discharge Limits, of this Ordinance. These constituents and Page 26 of 80 characteristics shall be determined by a laboratory selected by the discharger and acceptable to the OCSD. 8. Time and duration of discharge. 9. Number of employees per shift and hours of work per employee per day for each shift. 10. Waste minimization, best management practices, and water conservation practices. 11. Production records, if applicable. 12. Waste manifests, if applicable. 13. Landscaped area in square feet, if applicable. 14. Tons of cooling tower capacity, if applicable. 15. EPA Hazardous Waste Generator Number, if applicable. 16. Any other information as specified. B. Applicants may be required to submit site plans, floor plans, mechanical and plumbing plans, and details to show all sewers, spill containment, clarifiers, pretreatment equipment, and appurtenances by size, location, and elevation for evaluation. C. Applicants may also be required to submit information related to the applicant's business operations, processes, and potential discharge as may be requested by the OCSD to properly evaluate the permit application. D. After evaluation of the data, the OCSD may issue a Wastewater Discharge Permit, subject to terms and conditions set forth in this Ordinance and as otherwise determined by the General Manager to be appropriate to protect the OCSD's sewerage facilities. E. The permit application may be denied if the applicant fails to establish to the OCSD's satisfaction that adequate pretreatment equipment is Included within the applicant's plans to ensure that the discharge limits will be met or if the applicant has, in the past, demonstrated an inability to comply with applicable discharge limits. F. The permit application may be denied if the applicant has in the past demonstrated an inability to keep current with OCSD invoices for items Page 27 of 80 such as Permit Fees, Non-Compliance Fees, Civil Penalties, Administrative Civil Penalties, Charges for Use, and Supplemental Capital Facilities Capacity Charges. 302.2 Class I Permit Conditions. and Limits A. A Class I permit shall contain all of the following conditions or limits: 1. Mass emission rates and concentration limits regulating non-compatible pollutants. 2. Requirements to notify the OCSD in writing prior to modification to processes or operations through which Industrial wastewater may be produced. 3. Location of the user's on-site sampling point. 4. Requirements for submission of self-monitoring reports, technical reports, production data, discharge reports, compliance with Pretreatment Standards, BMP-based Categorical Pretreatment Standards and/or local limits, and/or waste manifests. 5. Requirements for maintaining, for a minimum of three years, plant records relating to wastewater discharge, and waste manifests as specified by OCSD. 6. Requirements to submit copies of tax and water bills. B. A Class I permit may contain any of the following conditions or limits: 1. Requirements for the user to construct and maintain, at his own expense, appropriate pretreatment equipment, pH control, flow monitoring facilities, and sampling facilities. 2. Limits on rate and time of discharge or requirements for flow regulation and equalization. 3. Requirements to self-monitor. Page 28 of 80 4. Assumed values for BOD and suspended solids characteristics that typify the discharger's effluent for determination of the charge for use. 5. Other terms and conditions which may be appropriate to ensure compliance with this Ordinance or determined by the General Manager or his designee to be appropriate to protect the sewerage system. 302.3 Class I Permit Fee A. The Class I permit fee shall be in an amount adopted by Ordinance of the Board of Directors. The permit fee shall be payable at the time a permit application is submitted for the Issuance of a new permit or a renewed permit. Payment of permit must be received by the OCSD prior to issuance of either a new permit or a renewed permit. Permittee shall also pay any delinquent invoices in full prior to permit renewal. B. Any permit issued for a location wherein the Permittee is not the property owner may be conditioned upon depositing financial security to guarantee payment of all annual fees and charges to be incurred, in accordance with the provisions of Section 521.(E) of this Ordinance. 302.4 Class I Permit Modification of Terms and Conditions A. The terms and conditions of an issued permit may be subject to modification and change in the sole determination by the General Manager during the life of the permit based on: 1. The discharger's current or anticipated operating data; 2. The OCSD's current or anticipated operating data; 3. Changes in the requirements of Regulatory Agencies which affect the OCSD; or 4. A determination by the General Manager that such modification is appropriate to further the objectives of this Ordinance. B. New source indirect dischargers shall be required to install and start up any necessary pollution control equipment before beginning discharge, and comply with applicable Federal Categorical Pretreatment Standards not to exceed thirty(30) days after the commencement of discharge. Page 29 of 80 C. Permittee may request a modification to the terms and conditions of an issued permit. The request shall be in writing stating the requested change, and the reasons for the change. The OCSD shall review the request, make a determination on the request, and respond in writing. D. Permittee shall be informed of any change in the permit limitations, conditions, or requirements at least forty-five (45) days prior to the effective date of change. Any changes or new conditions in the permit shall include a reasonable time schedule for compliance. 302.5 Class I Permit Duration and Renewal Class I permits shall normally be issued for a period not to exceed two (2) years. At least 45 days prior to the expiration of the permit, the user shall apply for renewal of the permit in accordance with the provisions of this Article 3. 302.6 Class I Permit Charge for Use A. The purpose of a charge for use is to ensure that each recipient of sewerage service from the OCSD pays its reasonably proportionate share of all the costs of providing that sewerage service. Charges for use to recover the cost of conveying, treating, and disposing of sewage in OCSD facilities are exclusive of any fees levied by local sewering agencies. The charge for use shall be based on the total maintenance, operation, capital expenditures, and reserve requirements for providing wastewater collection, treatment, and disposal. B. A discharger who is issued a Class I Wastewater Discharge Permit under the provisions of this Ordinance shall pay a charge for use in accordance with the formula contained herein and the unit charge rates adopted annually by Ordinance of the Board of Directors. These fees shall be invoiced on a quarterly basis. The quarterly Invoice shall be based upon an estimate of the annual use as determined by the OCSD. Annually, the OCSD shall compute the charge for use based upon actual use for the preceding 12-month period on an annual reconciliation statement. The charge for use is payable within forty-five (45) days of Invoicing by the OCSD. A credit will be allowed for any regional sanitary sewer service charge adopted by the Board of Directors by separate Ordinance and levied against the permitted property. Page 30 of so C. Current property tax bills shall be supplied by the pennittee to the OCSD by May 31 of each year for use in determining the regional sanitary sewer service credit. If the tax bills are not supplied, the OCSD will endeavor to obtain the data. Data obtained by the OCSD will be considered correct and will not be adjusted before the next annual reconciliation statement. There shall be a fee levied for the OCSD administrative costs when regional sanitary sewer service charge data is obtained by the OCSD. The amount of the fee shall be adopted by the OCSD's Board of Directors. D. In order for the OCSD to determine actual annual water use, the user shall provide to the OCSD copies of its water bills. If these water bill copies are not received by July 31 of each year for the 12-month period ended closest to June 30, the OCSD will endeavor to obtain the water use data. Data obtained by the OCSD will be considered correct and will not be adjusted before the next annual reconciliation statement. There shall be a fee levied for OCSD administrative costs when the OCSD obtains water use data. The OCSD's Board of Directors shall adopt the amount of the fee. E. The charge for use shall be computed by the following formula: Charge for Use = V,V + 13,13 + S,S -Tax Credit Where V = total annual volume of flow, in millions of gallons B = total annual discharge of biochemical oxygen demand, in thousands of pounds S =total annual discharge of suspended solids, in thousands of pounds V,,B,,S, = Unit Charge rates established and adopted by Ordinance of the OCSD's Board of Directors, based upon the funding requirements of providing sewerage service, in dollars per unit as described in Paragraph F below: F. The Unit Charge rates in the charge-for-use formula shall be determined by the following method: 1. An Operations and Maintenance component of the Unit Charge for the total annual operation and maintenance funding requirements of the sewerage system shall be levied at a rate to be determined from time to time by the Board of Directors. This Charge shall be allocated among the three wastewater charge parameters of flow, biochemical oxygen demand and suspended solids in accordance with the General Manager's determination as to the costs associated with each parameter and pursuant to applicable Page 31 of 80 requirements of State and Federal Regulatory Agencies. The operation and maintenance costs as distributed to flow, biochemical oxygen demand and suspended solids shall be divided by the projected annual total flow volume and weights of biochemical oxygen demand and suspended solids to be treated by the sewerage system in the budgeted year. 2. A Capital Facilities Replacement Service component of the Unit Charge for capital replacement and capital improvement shall be levied at a rate to be determined from time to time by the Board of Directors. This charge shall be allocated among wastewater charge parameters of flow, biochemical oxygen demand, and suspended solids in accordance with the General Manager's determination of which portion of the charge predominantly relates to each parameter. The capital facilities charge distributed to biochemical oxygen demand, and suspended solids shall be divided by the projected annual weights of biochemical oxygen demand and suspended solids to be treated by the sewerage system in the budgeted year. 3. The Unit Charge rates for each respective wastewater component in (1) and (2) above shall be summed. The Unit Charge rates so determined will be expressed in dollars per million gallons for Vo, and in dollars per thousand pounds for Bo and So. G. Other measurements of the organic content of the wastewater of a discharger, such as COD or TOC, may be used Instead of BOD. However, the discharger must establish to the General Manager's satisfaction a relationship between the BOO of the wastewater and the parameter of measure. This relationship shall be used by the OCSD in determining the charge for use. When wastewater from sanitary facilities is discharged separately from the other wastewater of a discharger, the charge for use for discharging the sanitary wastewater may be determined by using the following: 1. 25 gallons per employee per eight-hour working day. 2. BOD and suspended solids to be calculated at domestic wastewater strength per employee per year. Page 32 of 80 The number of employees will be considered as the average number of people employed full-time on a daily basis. This may be determined by averaging the number of people employed at the beginning and end of each quarter, or other period that reflects normal employment fluctuations. 303. CLASS II WASTEWATER DISCHARGE PERMITS A. No user requiring a Class II permit shall discharge wastewater without obtaining a Wastewater Discharge Permit. B. Class II Wastewater Discharge Permits shall be expressly subject to all provisions of this Ordinance and all other regulations, charges for use and fees established by the OCSD. The conditions of Wastewater Discharge Permits shall be enforced by the OCSD in accordance with this Ordinance and applicable State and Federal Regulations. C. All Class II users proposing to discharge directly or indirectly into the OCSD sewerage facilities shall obtain a Wastewater discharge Permit by filing an application pursuant to Section 303.1 and paying the applicable fees pursuant to Section 303.3. For purposes of this Ordinance, a Class II user is any user: 1. Whose charge for use is greater than the special assessment "OCSD Sewer User Fee" included on the County of Orange secured property tax bill exclusive of debt service, that discharges wastes other than sanitary, and that is not otherwise required to obtain a Class I permit, and 2. Discharging waste other than sanitary; and 3. Not otherwise required to obtain a Class I permit. 303.1 Class II Wastewater Discharge Permit Application A. Any person required to obtain a Class II Wastewater Discharge Permit shall complete and file with the OCSD, prior to commencing discharge, an application on the form prescribed by the OCSD. The applicant shall submit, in units and terms appropriate for evaluation, the following information: 1. Name, address, assessor's parcel number(s) and NAICS number(s); description of the manufacturing process or service activity. Page 33 M 80 2. (Whichever is applicable) Name, address of any and II principals/owners/major shareholders of company; Articles of Incorporation; most recent Report of the Secretary of State; Business License. 3. Volume of wastewater to be discharged. 4. Name of Individual who can be served with notices other than officers of corporation. 5. Name and address of property owner, landlord and/or manager of the property. 6. Water supplier and water account numbers. 7. Wastewater constituents and characteristics as required by the OCSD, including, but not limited to, those mentioned in Section 212, Mass Emission Rate Determination, and Table I, Local Discharge Limits of this Ordinance. These constituents and characteristics shall be determined by a laboratory selected by the discharger and acceptable to the OCSD. 8. Time and duration of discharge. 9. Number of employees and average hours of work per employee per day. 10. Waste minimization, best management practices, and water conservation practices. 11. Production records, If applicable. 12. Waste manifests, if applicable. 13. Landscaped area in square feet, If applicable. 14. Tons of cooling tower capacity, if applicable. 15. EPA Hazardous Waste Generator Number, if applicable. 16. Any other Information as specified. Page 34 of 80 B. Applicants may be required to submit site plans, floor plans, mechanical and plumbing plans, and details to show all sewers, spill containment, clarifiers, pretreatment systems, and appurtenances by size, location, and elevation for evaluation. C. Applicants may also be required to submit other information related to the applicant's business operations, processes, and potential discharge as may be requested to properly evaluate the permit application. D. After evaluation of the data fumished, the OCSD may issue a Wastewater Discharge Permit, subject to terms and conditions set forth in this Ordinance and as otherwise determined by the General Manager to be appropriate to protect the OCSD system. E. The permit application may be denied if the applicant fails to establish to the OCSD's satisfaction that adequate pretreatment equipment is included within the applicant's plans to ensure that the discharge limits will be met or if the applicant has, in the past, demonstrated an inability to comply with applicable discharge limits. 303.2 Class II Permit Conditions and Limits A. A Class II permit shall contain all of the following conditions or limits: 1. Applicable mass emission rates and concentration limits regulating non-compatible pollutants. 2. Requirements to notify the OCSD in writing prior to modification to processes or operations through which industrial wastewater may be produced. 3. Location of the user's on-site sample point. 4. Requirements for submission of technical reports, production data, discharge reports, and/or waste manifests. 5. Requirements to submit copies of tax and water bills. B. A Class 11 permit may contain any of the following conditions or limits: 1. Requirements for the user to construct and maintain, at his own expense, appropriate pretreatment equipment, pH control, flow monitoring and/or sampling facilities. Page 35 of 80 2. Limits on rate and time of discharge or requirements for Flow regulation and equalization. 3. Assumed values for BOD and suspended solids characteristics that typify the discharger's effluent for determination of the charge for use. 4. Requirements to self-monitor. 5. Requirements for maintaining, for a minimum of three years, plant records relating to wastewater discharge, and waste manifests as specified by OCSD. 5. Other provisions which may be appropriate to ensure compliance with this Ordinance. 7. Other terms and conditions determined by the General Manager to be appropriate to protect the OCSD's system. 303.3 Class II Permit Fee A. The Class II permit fee shall be in an amount adopted by Ordinance of the Board of Directors. The permit fee shall be payable at the time a permit application is submitted for the issuance of a new permit or a renewed permit. Payment of the permit fee must be received by the OCSD prior to issuance of either a new permit or a renewed permit. Permittee shall also pay any delinquent invoices in full prior to permit renewal. B. Any permit issued for a location wherein the Permittee is not the property owner may be conditioned upon depositing financial security to guarantee payment of all annual fees and charges to be incurred, in accordance with the provisions of Section 521.(E) of this Ordinance. 303.4 Class II Permit Modification of Terms and Conditions A. The terms and conditions of an issued permit may be subject to modification and change in the sole determination by the General Manager during the life of the permit based on: 1. The discharger's current or anticipated operatng data; 2. The OCSD's current or anticipated operating data; 3. Changes in the requirements of Regulatory Agencies which affect the OCSD; or Page 36 of 80 4. A determination by the General Manager that such modification is appropriate to further the objectives of this Ordinance. B. The permittee may request a modification to the terms and conditions of an issued permit. The request shall be in writing stating the requested change, and the reasons for the change. The OCSD shall review the request, make a determination on the request, and respond in writing. C. Permittee shall be informed of any change in the permit limitations, conditions, or requirements at least forty-five (45) days prior to the effective date of change. Any changes or new conditions in the permit shall include a reasonable time schedule for compliance. 303.5 Class II Permit Duration and Renewal Class II permits shall normally be issued for a period not to exceed three (3) years. At least 45 days prior to the expiration of the permit, the user shall apply for renewal of the permit in accordance with the provisions of this Article 3. 303.6 Class II Permit Charoe for Use A. The purpose of a charge for use is to ensure that each recipient of sewerage service from the OCSD pays its reasonably proportionate share of all the costs of providing that sewerage service. Charges for use to recover the cost of conveying, treating, and disposing of sewage in OCSD sewerage facilities are exclusive of any fees levied by local sewering agencies. The charge for use shall be based on the total maintenance, operation, capital expenditures, and reserve requirements for providing wastewater collection, treatment, and disposal. B. A discharger who is issued a Class II Wastewater Discharge Permit under the provisions of this Ordinance shall pay a charge for use in accordance with the formula contained herein and the Unit Charge rates adopted annually by Ordinance of the Board of Directors. These fees shall be invoiced on a quarterly basis. The quarterly Invoice shall be based upon an estimate of the annual use as determined by the OCSD. Annually, the OCSD shall compute the charge for use based upon actual use for the preceding 12-month period on an annual reconciliation statement. The charge for use is payable within forty-five (45) days of invoicing by the OCSD. A credit will be allowed for any regional sanitary sewer service charge adopted by the Board of Directors by separate Ordinance and levied against the permitted property. C. Current property tax bills shall be supplied by the permittee to the OCSD by May 31 of each year for use in determining the regional sanitary sewer Page 37 of 80 service credit. If the tax bills are not supplied, the OCSD will endeavor to obtain the data. Data obtained by the OCSD will be considered correct and will not be adjusted before the next annual reconciliation statement. There shall be a fee levied for OCSD administrative costs when sanitary sewer service charge data is obtained by the OCSD. The amount of the fee shall be adopted by the OCSD Board of Directors. D. In order for the OCSD to determine actual annual water use, the user shall provide to the OCSD copies of its water bills. If these water bill copies are not received by July 31 of each year for the 12•month period ended closest to June 30, the OCSD will endeavor to obtain the water use data. Data obtained by the OCSD will be considered correct and will not be adjusted before the next annual reconciliation statement. There shall be a fee levied for OCSD administrative costs when water use data is obtained by the OCSD. The amount of the fee shall be adopted by the OCSD Board of Directors. E. The charge for use shall be computed by the following formula: Charge for Use = VaV+ BoB + S,S - Tax Credit Where V = total annual volume of flow, in millions of gallons B = total annual discharge of biochemical oxygen demand, in thousands of pounds S =total annual discharge of suspended solids, in thousands of pounds Vo,BO,S, = Unit Charge rates adopted annually by Ordinance of the OCSD's Board of Directors, based upon the funding requirements of providing sewerage service, in dollars per unit as described in Paragraph F below. F. The unit charge rates in the charge for use formula shall be established annually and shall be determined by the following method: 1. An Operations and Maintenance component of the Unit Charge for the total annual operation and maintenance funding requirements of the sewerage system shall be levied at a rate to be determined from time to time by the Board of Directors. This charge shall be allocated among the three wastewater charge parameters of flow, biochemical oxygen demand and suspended solids in accordance with the General Manager's determination as to the costs associated with each parameter and pursuant to applicable Page 38 of 80 requirements of State and Federal Regulatory Agencies. The operation and maintenance costs as distributed to flow, biochemical oxygen demand and suspended solids shall be divided by the projected annual total flow volume and weights of biochemical oxygen demand and suspended solids to be treated by the sewerage system in the budgeted year. 2. A Capital Facilities Replacement component of the Unit Charge for capital replacement and capital Improvement shall be levied at a rate to be determined from time to time by the Board of Directors. This charge shall be allocated among the three wastewater charge parameters of flow, biochemical oxygen demand and suspended solids in accordance with the General Manager's determination of which portion of the charge predominantly relates to each parameter. The capital facilities charge distributed to biochemical oxygen demand and suspended solids shall be divided by the projected annual weights of biochemical oxygen demand and suspended solids to be treated by the sewerage system in the budgeted year. 3. The unit charge rates for each respective wastewater component in (1) and (2) above shall be summed. The Unit Charge rates so determined will be expressed in dollars per million gallons for V,, and in dollars per thousand pounds for Bo and So. G. Other measurements of the organic content of the wastewater of a discharger, such as COD or TOC, may be used instead of BOD. However, the discharger must establish to the General Manager's satisfaction a relationship between the BOD of the wastewater and the other parameter of measure. This relationship shall be used by the OCSD in determining the charge for use. When wastewater from sanitary facilities is discharged separately from the other wastewater of a discharger, the charge for use for discharging the sanitary wastewater may be determined by using the following: 1. 25 gallons per employee per eight-hour working day. 2. BOD and suspended solids to be calculated at domestic wastewater strength per employee per year. The number of employees will be considered as the average number of people employed full-time on a daily basis. This may be determined by averaging the number of people employed at the beginning and end of each quarter, or other period that reflects Page 39 of 80 normal employment fluctuations. 304. DRY WEATHER URBAN RUNOFF DISCHARGE PERMITS A. No user shall discharge urban runoff directly to OCSD's sewerage system without obtaining a Dry Weather Urban Discharge Permit. B. OCSD shall determine whether the dry weather urban runoff proposed to be discharged Into OCSD's sewerage system may cause a potential environmental risk and/or health hazard that cannot be economically or practically control by alternative disposal methods. C. Dry Weather Urban Runoff Permits shall be subject to all provisions of this Ordinance and all other regulations, charges for use, and fees established by OCSD. D. All users required to obtain a Dry Weather Urban Runoff Permit proposing to discharge directly or indirectly Into OCSD's sewerage facilities shall file an application pursuant to Section 304.1 and pay the applicable fees pursuant to Sections 304.3 and 304.6. Dry Weather Urban Runoff Discharae PermltAoolication A. An applicant shall contact OCSD prior to any construction of facilities and discharge of dry weather urban runoff Into the sewerage system to determine if the discharge of dry weather urban runoff to the OCSD sewerage facilities is feasible. B. Applicants shall complete and file with OCSD, prior to commencing discharge, an application in the form prescribed by OCSD. This application shall be accompanied by applicable fees, design plans, a detailed analysis of other disposal alternatives, or other data as needed by OCSD for review. The applicant shall provide justification that disposal alternatives for the dry weather urban runoff are not economically or practically feasible in lieu of sewer discharge. C. In addition to the discharge permit, OCSD may require that the permit applicant enter Into an agreement setting forth the terms under which the dry weather urban runoff discharge is authorized. D. Applicants shall provide adequate pretreatment and/or best management practices included within the applicants' plans to ensure that the applicable discharge limits shall be met. Dry Weather Urban Runoff Discharae Permit Condition and Limits Page 40 of 80 The issuance of a Dry Weather Urban Runoff Discharge Permit may contain any the following conditions or limits: A. Mass emission rates and concentration limits regulating non-compatible pollutants. B. Requirements for the user to construct and maintain, at the user's expense, appropriate pretreatment equipment, flow monitoring facilities, and devices to prevent storm water discharge Into OCSD's sewerage system during a wet weather event (rain event). C. Requirements for the user to provide OCSD with its operations and maintenance plan, best management practices, and pollution prevention strategies designed to minimize or eliminate dry weather urban runoff pollutants. D. Limits on rate and time of discharge or requirements for flaw regulation and equalization prior to discharge to the sewerage system. E. Requirements to self-monitor the discharge to the sewerage system. F. The General Manager, or his designees, may Impose additional requirements as may be appropriate to reduce the burden on OCSD's collection, treatment, and disposal facilities. G. Prohibitions on the discharge, which may cause OCSD's effluent, biosolids, or any other product of its treatment process, to be unsuitable for reclamation, reuse, or disposal. Dry Weather Urban Runoff Discharge Permit Fee A. The Dry Weather Urban Runoff Discharge Permit fee shall be paid by the applicant in an amount established in the applicable Ordinance or Resolution adopted by OCSD's Board of Directors. Payment of permit fees must be received by OCSD prior to issuance of either a new permit or a renewed permit. Each permittee shall also pay delinquent Invoices in full prior to permit renewal. Dry Weather Urban Runoff Discharge Permit Modification of Terms and Conditions A. The terms and conditions of an Issued permit may be subject to modification and change in the sole determination by OCSD during the life of the permit based on: 1. The discharger's current or anticipated operating data; Page 41 of 80 2. OCSD's current or anticipated operating data; 3. Changes in the requirements of Regulatory Agencies, which affect OCSD; or 4. A determination by the General Manager or his designee that such modification is appropriate to further the objectives of this Ordinance. B. A permittee may request a modification to the terms and conditions of an issued permit. The request shall be in writing stating the requested changes and the reasons for the change. OCSD shall review the request, make a determination on the request, and respond accordingly. C. A permittee shall be informed of any changes in the permit at least forty- five (45) days prior to the effective date change. Any changes or new conditions in the permit shall include a reasonable time schedule for compliance. Dry Weather Urban Runoff Discharae Permit Duration and Renewal Dry Weather Urban Runoff Permit shall normally be issued for a period not to exceed two (2) years. At least 45 days prior to the expiration of the permit, the user shall apply for renewal of the permit in accordance with the provisions of this Article 3. Dry Weather Urban Runoff Discharae Permit Charge for Use A discharger who is issued a Dry Weather Urban Runoff Permit under the provision of this Ordinance shall pay a charge for use in accordance with rates established by Ordinance or Resolution adopted by OCSD's Board of Directors. Page 42 of 80 305. SPECIAL PURPOSE DISCHARGE PERMITS A. No user requiring a Special Purpose Discharge Permit shall discharge wastewater without obtaining a Special Purpose Discharge Permit. B. Special Purpose Discharge Permits shall be expressly subject to all provisions of this Ordinance and all other regulations, charges for use, and fees established by the OCSD. The conditions of Wastewater Discharge Permits shall be enforced by the OCSD in accordance with this Ordinance and applicable State and Federal Regulations. C. All Special Purpose Discharge Permit users proposing to discharge directly or indirectly into the OCSD's sewerage facilities shall obtain a Wastewater Discharge Permit by filing an application pursuant to Section 305.1 and paying the applicable fees pursuant to Sections 305.3 and 305.6. This discharge permit may be granted when no alternative method of disposal is reasonably available, or to mitigate an environmental risk or health hazard. 305.1 Special Purpose Discharas Permit Application A. Applicants seeking a special purpose wastewater permit shall complete and file with the OCSD, prior to commencing discharge, an application in the form prescribed by the OCSD. This application shall be accompanied by the applicable fees, plumbing plans, a detailed analysis of the alternatives for water disposal, or other data as needed by the OCSD for review. B. The permit application may be denied when the applicant has failed to establish to the OCSD's satisfaction that adequate pretreatment equipment is included within the applicants' plans to ensure that the discharge limits will be met or that the applicant has, in the past, demonstrated an inability to comply with applicable discharge limits. 305.2 Special Purpose Discharae Permit Conditions and Limits A. Discharge conditions and limits shall be no less stringent than Section 201(A), General Prohibitions; 201(B), Specific Prohibitions; Section 212, Mass Emission Rate Determination; and Table I, Local Discharge Limits. B. Monitoring requirements for the discharge shall be for those non-compatible pollutants known to exist in the discharge. At least one set of baseline analysis prior to or upon sewer discharge may be required for all constituents contained in the most current Environmental Protection Agency(EPA) "Priority Pollutant" list, excluding asbestos. Page 43 of 80 C. The OCSD may specify and make part of each Special Purpose Discharge Permit specific pretreatment requirements or other terms and conditions determined by the General Manager to be appropriate to protect the OCSD's Sewerage Facility, the Local Sewering Agency, to comply with Regulatory Agencies' requirements, to ensure compliance with this Ordinance, and to assess a charge for use. 305.3 Special Purpose Discharge Permit Fee The special purpose discharge permit fee shall be paid by the applicant in an amount adopted by Ordinance of the Board of Directors. Payment of permit fees must be received by the OCSD prior to issuance of either a new permit or a renewed permit. Each permittee shall also pay delinquent invoices in full prior to permit renewal. 305.4 Special Purpose Discharge Permit Modification of Terms and Conditions A. The terms and conditions of an issued permit may be subject to modification and change in the sole determination by the OCSD during the life of the permit based on: 1. The discharger's current or anticipated operating data; 2. The OCSD's current or anticipated operating data; 3. Changes in the requirements of Regulatory Agencies which affect the OCSD; or 4. A determination by the General Manager that such modification is appropriate to further the objectives of this Ordinance. B. A permittee may request a modification to the terms and conditions of an issued permit. The request shall be in writing stating the requested change, and the reasons for the change. The OCSD shall review the request, make a determination on the request, and respond In writing. C. A permittee shall be informed of any changes in the permit at least forty-five (45) days prior to the effective date of change. Any changes or new conditions in the permit shall include a reasonable time schedule for compliance. Page 44 of 80 305.5 Special Purpose Discharge Permit Duration and Renewal Special purpose discharge permits shall normally be issued for a period not to exceed three (3) years, but may be renewed as determined by the General Manager. Users seeking permit renewal shall comply with all provisions of this Article 3. 305.E Special Purpose Discharge Permit Chame for Use The General Manager shall establish a charge for use to cover all costs of the OCSD for providing sewerage service and monitoring. A deposit determined by the General Manager to be sufficient to pay the estimated charges for use shall accompany the Special Purpose Discharge Permit application, and said deposit shall be applied to the charges for use. 306. WASTEHAULER DISCHARGE PERMIT A. Wastehauler Discharge Permits shall be expressly subject to all provisions of this Ordinance and all other regulations, charges for use, and fees established by the OCSD. The conditions of Wastehauler discharge permits shall be enforced by the OCSD in accordance with this Ordinance and applicable State and Federal Regulations. B. A Wastehauler proposing to discharge waste into the OCSD disposal station shall obtain both a valid Orange County Health Department Permit (where applicable), and a OCSD Wastehauler Permit. 306.1 Wastehauler Discharge Permit Application A. No Wastehauler shall discharge wastewater without a Wastehauler Discharge Permit. B. Any person required to obtain a Wastehauler Discharge Permit shall complete and file with the OCSD prior to commencing discharge, an application in a form prescribed by the OCSD. This application shall be accompanied by the applicable fees. The applicant shall submit, in units and terms appropriate for evaluation, the following information: 1. Name, address, telephone number, and description of the industries, or clients using the applicant's services. 2. (Whichever is applicable) Name, address of any and all principals/owners/major shareholders of the company; Articles of Incorporation; most recent Report of the Secretary of State; Business License. Page 45 of 80 3. Name and address of leaseholder of the vehicle or trailer, if applicable. 4. Number of trucks and trailers and the license numbers and tank hauling capacity of each. 5. A copy of the applicant's Orange County Health Department Permit, where applicable. C. Other information related to the applicant's business operations and potential discharge may be requested to properly evaluate the permit application. D. After evaluation of the data furnished, the OCSD may issue a Wastehauler discharge permit, subject to terms and conditions set forth in this Ordinance and as otherwise determined by the General Manager to be appropriate to protect the OCSD's system. 306.2 Wastehauler Discharge Permit Conditions and Limits The issuance of a Wastehauler permit may contain any of the following conditions or limits: A. Limits on discharge of heavy metals and other priority pollutants. B. Requirements for maintaining and submitting waste hauling records and waste manifests. C. Additional requirements as otherwise determined to be appropriate by the General Manager to protect the OCSD's system or as specified by other Regulatory Agencies. D. Other terms and conditions which may be applicable to ensure compliance with this Ordinance. 306.3 Wastehauler Discharge Permit Fee The Wastehauler discharge permit fee shall be paid by the applicant in an amount adopted by Ordinance of the Boards of Directors. Payment of permit fees must be received by the OCSD prior to issuance of either a new permit or a renewed permit. A penmittee shall also pay any delinquent invoices in full prior to permit renewal. Page 46 of 80 306.4 Wastehauler Identification Decal and Access Card Transfer A. The identification decal is non-transferable. B. If a gate access card is issued, it shall be Issued to a specific permitted vehicle and is non-transferable unless previously authorized in writing by the OCSD. 306.5 Wastehauler Discharae Permit Modification of Terms and Conditions A. The terms and conditions of an issued permit may be subject to modification and change in the sole determination by the OCSD during the life of the permit based on: 1. The discharger's current or anticipated operating data; 2. The OCSD's current or anticipated operating data; 3. Changes in the requirements of Regulatory Agencies which affect the OCSD; or 4. A determination by the General Manager that such modification is appropriate to further the objectives of this Ordinance. B. Permittee may request a modification to the terms and conditions of an issued permit. The request shall be in writing stating the requested change, and the reasons for the change. The OCSD shall review the request, make a determination on the request, and respond in writing. C. Permittee shall be informed of any change in the permit limits, conditions, or requirements at least forty-five (45) days prior to the effective date of change. Any changes or new conditions in the permit shall include a reasonable time schedule for compliance. 306.6 Wastehauler Discharae Permit Duration and Renewal Wastehauler discharge permits shall be issued for a period not to exceed one (1) year. Upon expiration of the permit, the user shall apply for renewal of the permit In accordance with the provisions of Article 3. 306.7 Wastehauler Discharae Permit Charae for Use A charge for use to cover all costs of the OCSD for providing the disposal station service and monitoring shall be established by Ordinance of the Board of Directors. Page 47 of 80 307. RESERVED 308. RESERVED 309. RESERVED 310. OUT OF DISTRICT PERMITS/DISCHARGERS A. Industrial Wastewater Discharge Permits for dischargers located outside the OCSD's boundaries but within the OCSD service area and tributary to the OCSD's sewerage facilities, may be issued by a local sewering agency after approval by the OCSD. The OCSD shall have the right of inspection and sampling of the user's discharge to determine compliance with industrial waste discharge regulations. Such inspection and sampling will be performed under a coordinated plan developed with the local agency. The more stringent of the industrial waste discharge regulations and effluent limits of the OCSD and the local agency shall apply to the discharger. B. Pursuant to Article 6 herein, the OCSD shall have the right to enforce the Federal Pretreatment Regulations, the provisions of this Ordinance, and permit conditions and limits applicable to any person located outside of the OCSD's service area, but whose discharge is tributary to the OCSD's sewerage facilities. C. The fees for use shall be determined by the OCSD and set forth in a use agreement with the local sewering agency. ARTICLE 4 FACILITIES REQUIREMENTS 401. DRAWING SUBMITTAL REQUIREMENTS Upon request by the OCSD: A. Applicants or users may be required to submit three copies of detailed facility plans. The submittal shall be in a form and content acceptable to the OCSD for review of existing or proposed pretreatment facilities, spill containment facilities, monitoring facilities, metering facilities, and operating procedures. The review of the plans and procedures shall in no way relieve the user of the responsibility of modifying the facilities or procedures in the future, as necessary to produce a discharge acceptable to OCSD, and to meet the requirements of this Ordinance or any requirements of other Regulatory Agencies. Page 48 of 80 B. The drawing shall depict as a minimum the manufacturing process (waste generating sources), spill containment, monitoring or metering facilities, and pretreatment facilities. C. The applicant or user shall submit a schematic drawing of the pretreatment facilities, piping and instrumentation diagram, and wastewater characterization report. D. Users and applicants may also be required to submit for review site plans, floor plans, mechanical and plumbing plans, and details to show all sewers, spill containment, clarifiers, and appurtenances by size, location, and elevation for evaluation. E. The OCSD may require the drawings be prepared by a California Registered Chemical, Mechanical, or Civil Engineer. F. Permittee shall be required to submit updated detailed facility plans. 402. PRETREATMENT FACILITIES A. All users shall provide wastewater treatment as necessary to comply with this ordinance and shall achieve compliance with all Categorical Pretreatment Standards, Table 1, Local Discharge Limits, and the prohibitions set out in Sections 201 (A) & (B) of this ordinance within the time limitations specified by EPA, the State, or OCSD, whichever is more stringent. Any facilities necessary for compliance shall be provided, operated by a qualified operator, and maintained in proper operating condition at the users expense. B. All users may also be required by the OCSD to submit waste analysis plans, contingency plans, and meet other necessary requirements to ensure proper operation of the pretreatment facilities and compliance with permit limits and this Ordinance. C. No user shall increase the use of water or in any other manner attempt to dilute a discharge as a partial or complete substitute for treatment to achieve compliance with this Ordinance and the users Permit. 403. SPILL CONTAINMENT FACILITIES/ACCIDENTAL SLUG CONTROL PLANS A. All users shall provide spill containment for protection against discharge of prohibited materials or other wastes regulated by this Ordinance. Such protection shall be designed to secure the discharges and to prevent them from entering Into the system in accordance with reasonable engineering standards. Such facilities shall be provided and maintained at the users Page 49 of 80 expense. B. The General Manager may require any industrial user to develop and implement an accidental discharge/slug control plan. At least once every two years the OCSD shall evaluate whether each significant industrial user needs such a plan. Any user required to develop and implement an accidental discharge/control slug plan shall submit a plan which addresses, at a minimum, the following: 1. Description of discharge practices, including non-routine batch discharges. 2. Description of stored chemicals. 3. Procedures for immediately notifying the POTW of any accidental of slug discharge. Such notification must also be given for any discharge which would violate any of the prohibited discharges in Article 2 of this Ordinance. 4. Procedures to prevent adverse impact from any accidental or slug discharge. Such procedures include, but are not limited to, inspection and maintenance of storage areas, handling and transfer of materials, loading and unloading operations, control of plant site run-off, worker training, building of containment structures or equipment, measures for containing toxic organic pollutants (including solvents), and measures and equipment for emergency response. 404. MONITORING/METERING FACILITIES A. The OCSD may require the user to construct and maintain in proper operating condition at the user's sole expense, flow monitoring, constituent monitoring and/or sampling facilities. B Permittees may be required to install and maintain an appropriate effluent flow monitoring device. Calibration of such flow monitoring device shall be done annually or as specified in the wastewater discharge permit. C. The monitoring or metering facilities may be required to include a security closure that can be locked with a OCSD provided hasp lack during sampling or upon termination of service. D. The location of the monitoring or metering facilities shall be subject to approval by the OCSD. E. The user shall provide immediate, clear, safe and uninterrupted access to Page 50 of 80 the OCSD to the user's monitoring and metering facilities. F. For all industries permitted by the OCSD, domestic wastewaters shall be kept segregated from all industrial wastewaters until the industrial wastewaters have passed through any required pretreatment system or device and the permittee's sample point. 405. WASTE MINIMIZATION REQUIREMENTS A. The user shall provide waste minimization plans to reduce or eliminate pollutant discharge to the sewerage system and conserve water. The user shall investigate product substitution, housekeeping practices, provide inventory control, implement employee education, and other steps as necessary to minimize waste produced. B. A user may certify that their facility does not discharge any type of wastewater, containing pollutants that may directly or indirectly discharge Into the OCSD sewerage system as a form of Best Management Practice (BMP), upon approval by the OCSD. ARTICLE 5 MONITORING, REPORTING, NOTIFICATION, AND INSPECTION REQUIREMENTS 501. MONITORING AND REPORTING CONDITIONS A. Monitorina for Annual Charge for Use The wastewater constituents and characteristics of a discharger needed for determining the annual charge for use shall be submitted in the form of self-monitoring reports by the user to the OCSD, if requested. The frequency of analyses and reporting shall be set forth in the user's permit. The analyses of these constituents and characteristics shall be by a laboratory acceptable to the OCSD, and at the sole expense of the permittee. Analyses performed by OCSD's personnel may used In the - determination of the annual charge for use. Page 51 of 80 B. Monitorina for Compliance with Permit Conditions or Reporting Requirements The OCSD may require reports for self-monitoring of wastewater constituents and characteristics of the discharger needed for determining compliance with any limit or requirements as specified in the user's permit, Federal or State Regulations, or this Ordinance. These reports include: (1) Baseline Monitoring Reports. (2) Compliance Schedule Progress Reports. (3) 90-Day Compliance Reports. (4) Periodic Reports on continued compliance. (5) Notification of the Discharge of Hazardous Waste. (6) Other reports as required by the OCSD. Monitoring reports of the analyses of wastewater constituents and characteristics shall be in a manner and form approved by the OCSD and shall be submitted upon request of the OCSD. When applicable, the self- monitoring requirement and frequency of reporting may be set forth in the user's permit as directed by the OCSD. The analyses of wastewater constituents and characteristics and the preparation of the monitoring report shall be done at the sole expense of the user. If sampling performed by a user indicates a violation, the user must notify the OCSD within twenty-four (24) hours of becoming aware of the violation. The user shall also repeat the sampling and analysis and submit the results of the repeat analysis to the OCSD within thirty (30) days after becoming aware of the violation. Resampling by the Industrial user is not required if the OCSD performs sampling at the user between the time when the initial sampling was conducted and the time when the user or OCSD receives the results of this sampling, or If the OCSD has performed the sampling and analysis in lieu of the industrial user. If the OCSD performed the sampling and analysis In lieu of the industrial user, the OCSD will perform the repeat sampling and analysis unless it notifies the user of the violation and requires the user to perform the repeat sampling and analysis. Failure by the user to perform any required monitoring, or to submit monitoring reports required by the OCSD constitutes a violation of this Ordinance, may result in determining whether the permittee is in significant non-compliance, and be cause for the OCSD to initiate all Page 52 of 80 necessary tasks and analyses to determine the wastewater constituents and characteristics for compliance with any limits and requirements specked in the user's permit or in this Ordinance. The user shall be responsible for any and all expenses of the OCSD in undertaking such monitoring analyses and preparation of reports. 501.1 Inspection and Sampling Conditions A. The OCSD may inspect and sample the wastewater generating and disposal facilities of any user to ascertain whether the intent of this Ordinance Is being met and the user is complying with all requirements. B. The OCSD shall have the right to place on the user's property or other locations as determined by the OCSD, such devices as are necessary to conduct sampling or metering operations. Other sampling locations may include downstream manholes, usually in the sewerage system, for the purpose of determining the compliance status of an industrial or commercial discharger. C. In order for the OCSD to determine the wastewater characteristics of the discharger for purposes of determining the annual use charge and for compliance with permit requirements, the user shall make available for inspection and copying by the OCSD all notices, self-monitoring reports, waste manifests, and records including, but not limited to, those related to production, wastewater generation, wastewater disposal, and those required in the Federal Pretreatment Requirements without restriction but subject to the confidentiality provision set forth In Section 103 herein. All such records shall be kept by the user a minimum of three (3) years. D. If a discharger falsifies, tampers with, or knowingly renders inaccurate any monitoring device or sample collection method, the discharger may be subject to imposition of penalties, permit suspension or permit revocation. 501.2 Analytical Reauirements All pollutant analyses, including sampling techniques, to be submitted as part of a wastewater discharge permit application or report shall be performed in accordance with the techniques prescribed in 40 CFR Part 136 and amendments thereto, unless otherwise specified in an applicable categorical Pretreatment Standard. If 40 CFR Part 136 does not contain sampling or analytical techniques for the pollutant in question, or where the EPA determines that the Part 136 sampling and analytical techniques are inappropriate for the pollutant in question, sampling and analyses shall be performed by using validated analytical methods or any other applicable sampling and analytical procedures, including procedures suggested by the General Manager or other parties approved by EPA. Page 53 of 80 501.3 Rlaht of Entry A. Persons or occupants of premises where wastewater is created or discharged shall allow the OCSD, or its representatives, reasonable access to all parts of the wastewater generating and disposal facilities for the purposes of inspection and sampling during all times the dischargers facility is open, operating, or any other reasonable time. No person shall interfere with, delay, resist or refuse entrance to authorized OCSD's personnel attempting to inspect any facility involved directly or indirectly with a discharge of wastewater to the OCSD's sewerage system. B. Where a user has security measures in force, the user shall make necessary arrangements so that personnel from the OCSD shall be permitted to enter without delay for the purpose of performing their specific responsibilities. 501.4 Notification of Spill or Slun Loadina A. In the event the discharger is unable to comply with any permit condition due to a breakdown of equipment, accidents, or human error, or the discharger has reasonable opportunity to know that his discharge will exceed the discharge provisions of the users permit, Sections 201(A) & (B) or Table I, Local Discharge Limits, the discharger shall immediately notify the OCSD by telephone. If the material discharged to the sewer has the potential to cause or result in a fire or explosion hazard, the discharger shall immediately notify the local fire department and the OCSD. B. Confirmation of this notification shall be made in writing no later than five (5) working days from the date of the Incident. The written notification shall state the date of the incident, the reasons for the discharge or spill, what steps were taken to immediately correct the problem, and what steps are being taken to prevent the problem from recurring. C. Such notification shall not relieve the user of any expense, loss, damage or other liability which may be incurred as a result of damage or loss to the OCSD or any other damage or loss to person or property; nor shall such notification relieve the user of any fees or other liability which may be imposed by this Ordinance or other applicable law. Page 54 of 80 501.5 Notification of Bypass A. Bypass of industrial wastewater to the sewerage system is prohibited. The OCSD may take enforcement action against the user, unless: 1. Bypass was unavoidable because it was done to prevent loss of life, personal injury, or severe property damage; 2. There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, elective slow-down or shut-down of production units or maintenance during periods of production downtime. This condition is not satisfied if adequate backup equipment could have been feasibly installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventative maintenance; and 3. The permittee submitted notices as required under Section 501.4(B). B. If a permittee knows in advance of the need for a bypass, It shall submit a written request to allow the bypass to the OCSD, if possible, at least ten (10) days before the date of the bypass. C. The OCSD may approve an anticipated bypass at its sole discretion after considering Its adverse effects, and the OCSD determines that the conditions listed in Section 501.5(A)(1-3) are met. D. A permittee shall provide telephone notification to the OCSD of an unanticipated bypass that exceeds its permitted discharge limits within four hours from the time the permittee becomes aware of the bypass. A written report shall also be provided within five (5) days of the time the permittee becomes aware or could reasonably have been aware of the bypass. The report shall contain a description of the bypass and its cause; the duration of the bypass, including exact dates and times, and, if the bypass has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent recurrence of the bypass. Failure to submit oral notice or written report may be grounds for permit revocation. Page 55 of 80 ARTICLE 6 ENFORCEMENT 600. PURPOSE AND SCOPE A. The Board finds that in order for the OCSD to comply with the laws, regulations, and rules imposed upon it by Regulatory Agencies and to ensure that the OCSD's sewerage facilities and treatment processes are protected and are able to operate with the highest degree of efficiency, and to protect the public health and environment, specific enforcement provisions must be adopted to govern the discharges to the OCSD's system by industrial discharge permittees. B. To ensure that all Interested parties are afforded due process of law and that non-compliance and violations are resolved as soon as possible, the general policy of the OCSD is that: 1. Any determination relating to a Probation Order, Enforcement Compliance Schedule Agreement (ECSA), or Regulatory Compliance Schedule Agreement (RCSA) will be made by the Division Head of the Source Control Division, with a right of appeal by the permittee to the General Manager pursuant to the procedures set forth in Section 617. 2. A user, permittee, or applicant for a permit may request the Steering Committee to hear an appeal of the General Manager's decision pursuant to Section 618. Such request may be granted or denied by the Steering Committee. 3. Any permit suspension or revocation recommended by the Source Control Division Head will be heard and a recommendation made to the General Manager by a OCSD Department Head or other person designated by the General Manager with a right of appeal of the General Manager's order by the permittee to the Steering Committee pursuant to the provisions of Section 618. 4. Actions and decisions by the Division Head or Department Head are made pursuant to a delegation of authority by the General Manager as authorized by Section 107 of this Ordinance. 5. The Board of Directors may adopt rules of procedure to establish the conduct of certain administrative proceedings. Page 56 of 80 C. The OCSD, at its discretion, may utilize any one, combination, or all enforcement remedies provided in Article 6 in response to any permit or Ordinance violation. 601. DETERMINATION OF NON-COMPLIANCE WITH DISCHARGE LIMITS A. Sampling Procedures 1. Sampling of all permittees shall be conducted in the time, place, manner, and frequency determined at the sole discretion of the OCSD. 2. Non-compliance with mass emission rate limits, concentration limits, permit discharge conditions, or any discharge provision of this Ordinance may be determined by an analysis of a grab or composite sample of the effluent of a user. Non-compliance with mass emission rate limits shall be determined by an analysis of a composite sample of the user's effluent, except that a grab sample may be used to determine compliance with mass emission rate limits when the discharge is from a closed (batch) treatment system in which there is no wastewater flow Into the system when the discharge is occurring, the volume of wastewater contained In the batch system is known, the time interval of discharge is known, and the grab sample is homogeneous and representative of the discharge. 3. Any sample taken from a sample point is considered to be representative of the discharge to the public sewer. 602. ENFORCEMENT PROCEDURES AND APPLICABLE FEES A. Self-Monitorino Requirements as a Result of Non-Compliance 1. If analysis of any sample obtained by the OCSD or by a permittee shows non-compliance with the applicable wastewater discharge limits set forth in the Ordinance or in the permittee's discharge permit, the OCSD may impose self-monitoring requirements on the permittee. 2. A permittee shall perform required self-monitoring of constituents in a frequency, at the specific location, and in a manner directed by the OCSD. 3. All analyses of self-monitoring samples shall be performed by an independent laboratory acceptable to the OCSD and submitted to the OCSD in a form and frequency determined by the OCSD. Page 57 of 80 4. All self-monitoring costs shall be borne by the permittee. 5. Nothing in this section shall be deemed to limit the authority of the OCSD to impose self-monitoring as a permit condition. B. Puroose of Non-Compliance Semolina Fees The purpose of the non-compliance sampling fee is to compensate the OCSD for costs of additional sampling, monitoring, laboratory analysis, treatment, disposal, and administrative processing incurred as a result of the non-compliance, and shall be in addition to and not in lieu of any penalties as may be assessed pursuant to Sections 615 and 616. C. Non-Compliance Sampling Fees for Composite Samples 1. Each violation of a permittee's permit limit or condition is a violation of this Ordinance. 2. a) If analysis of any composite sample of a permittee's discharge obtained by the OCSD shows a major violation by the permittee of the mass emission rates or concentration limits specified In the permittee's discharge permit or in this Ordinance, then the permittee shall pay non-compliance sampling fees to the OCSD pursuant to fee schedules adopted by the OCSD's Board of Directors. b) If analysis of any composite sample of a permittee's discharge obtained by the OCSD shows a minor violation by the permittee of the mass emission rates or concentration limits specified in the permittee's discharge permit or in this Ordinance, then the OCSD may impose non-compliance sampling fees pursuant to fee schedules adopted by the OCSD's Board of Directors. 3. The fees specified in subsection 602.C.2.(a), C.2.(b) and D herein shall be Imposed for each date on which the OCSD conducts sampling as a result of a violation by a permittee. Page 58 of 80 D. Non-Compliance Samplina Fees for Grab Samples and Self-Monitoring Results 1. If analysis of any grab sample analysis of a permittee's discharge shows non-compliance with any concentration limits as set forth in the user's permit or in this Ordinance, the OCSD may impose non- compliance sampling fees, pursuant to fee schedules adopted by the OCSD Board of Directors, for sampling conducted by the OCSD as a result of a violation by the permittee. 2. If any self-monitoring analysis of a permittee's discharge shows non-compliance with any concentration limits or mass emission rates as set forth in the user's permit or in this Ordinance, the OCSD may impose non-compliance sampling fees, pursuant to fee schedules adopted by the OCSD Board of Directors, for sampling conducted by the OCSD as a result of a violation by the permittee. 602.1 Probation Order A. Grounds In the event the Division Head determines that a permittee has violated any provision of this Ordinance, or the terms, conditions and limits of its discharge permit, or has not made payment of all amounts owed to the OCSD for user charges, non-compliance fees or any other fees, the General Manager may issue a Probation Order, whereby the permittee must comply with all directives, conditions and requirements therein within the time prescribed. B. Provisions The issuance of a Probation Order may contain terms and conditions Including, but not limited to, installation of pretreatment equipment and facilities, requirements for self-monitoring, submittal of drawings or technical reports, operator certification, audit of waste minimization practices, payment of fees, limits on rate and time of discharge, or other provisions to ensure compliance with this Ordinance. C. Probation Order- Expiration A Probation Order issued by the General Manager shall be in effect for a period not to exceed ninety(90) days. Page 59 of 80 602.2 Enforcement Compliance Schedule Aareement (ECSA) A. Grounds Upon determination that a permittee is in non-compliance with the terms, conditions or limits specified in its permit or any provision of this Ordinance, and needs to construct and/or acquire and install equipment related to pretreatment, the General Manager may require the permittee to enter into an ECSA which will, upon the effective date of the ECSA, amend the permittee's permit. The ECSA shall contain terms and conditions by which a permittee must operate during its term and shall provide specific dates for achieving compliance with each term and condition for construction and/or acquisition and installation of required equipment related to pretreatment. B. Provisions The Issuance of an ECSA may contain terms and conditions Including but not limited to requirements for self-monitoring, installation of pretreatment equipment and facilities, submittal of drawings or reports, operator certification, audit of waste minimization practices, payment of fees, limits on rate and time of discharge, deposit of performance guarantee, interim limits, or other provisions to ensure compliance with this Ordinance. C. ECSA - Payment of Amounts Owed The OCSD shall not enter into an ECSA until such time as all amounts owed to the OCSD, including user fees, non-compliance sampling fees, deposits, or other amounts due are paid in full, or an agreement for deferred payment secured by collateral or a third party, is approved by the General Manager. Failure to pay all amounts owed to the OCSD shall be grounds for permit suspension or permit revocation as set forth in Section 604 and 605. D. ECSA- Permit Suspension/Revocation If compliance is not achieved in accordance with the terms and conditions of an ECSA during its term, the General Manager may issue an order suspending or revoking the discharge permit pursuant to Section 604 or 605 of this Ordinance. Page 60 of 80 603. REGULATORY COMPLIANCE SCHEDULE AGREEMENT (RCSA) A. Grounds If at any time subsequent to the issuance of a Wastewater Discharge Permit to an industrial user, Federal Categorical Pretreatment Standards are adopted or revised by the United States Environmental Protection Agency, or in the event the OCSD enacts revised discharge limits, the General Manager, upon determination that an industrial user would not be in compliance with the adopted or revised limits, may require the industrial user to enter into a RCSA with the OCSD under terms and conditions that would provide for achieving compliance with all new standards by the industrial user on a specific date. The RCSA shall have a maximum term of two hundred-seventy (270) days. B. Provisions The Issuance of a RCSA may contain terms and conditions including but not limited to requirements for installation of pretreatment equipment and facilities, submittal of drawings or reports, waste minimization practices or other provisions to ensure compliance with this Ordinance. C. RCSA- Non-Compliance Semolina Fee During the period said RCSA is in effect, any discharge by permittee in violation of the RCSA will require payment of non-compliance sampling fees in accordance with Article 6. 604. PERMIT SUSPENSION A. Grounds The General Manager may suspend any permit when it is determined that a permittee: 1. Fails to comply with the terms and conditions of either an ECSA or RCSA. 2. Knowingly provides a false statement, representation, record, report, or other document to the OCSD. 3. Refuses to provide records, reports, plans, or other documents required by the OCSD to determine permit terms, conditions, or limits, discharge compliance, or compliance with this Ordinance. 4. Falsifies, tampers with, or knowingly renders inaccurate any monitoring device or sample collection method. Page 61 of 80 5. Fails to report significant changes in operations or wastewater constituents and characteristics. 6. Violates a Probation Order. 7. Refuses reasonable access to the permittee's premises for the purpose of Inspection and monitoring. 8. Does not make timely payment of all amounts owed to the OCSD for user charges, non-compliance sampling fees, permit fees, or any other fees imposed pursuant to this Ordinance. 9. Violates any condition or limit of its discharge permit or any provision of the OCSD's Ordinance. B. Notice/Hearing When the General Manager has reason to believe that grounds exist for permit suspension, he shall give written notice thereof by certified mail to the permittee setting forth a statement of the facts and grounds deemed to exist, together with the time and place where the charges shall be heard by the General Manager's designee. The hearing date shall be not less than fifteen (15) calendar days nor more than forty-five (45) calendar days after the mailing of such notice. 1. At the suspension hearing, the permittee shall have an opportunity to respond to the allegations set forth in the notice by presenting written or oral evidence. The hearing shall be conducted in accordance with procedures established by the General Manager and approved by the OCSD's General Counsel. 2. After the conclusion of the hearing, the General Manager's designee shall submit a written report to the General Manager setting forth a brief statement of facts found to be true, a determination of the Issues presented, conclusions, and a recommendation. Upon receipt of the written report, the General Manager shall make his determination and should he find that grounds exist for suspension of the permit, he shall issue his decision and order in writing within thirty (30) calendar days after the conclusion of the hearing by his designee. The written decision and order of the General Manager shall be sent by certified mail to the permittee or its legal counsel/representative at the permittee's business address. Page 62 of 80 C. Effect 1. Upon an order of suspension by the General Manager becoming final, the permittee shall Immediately cease and desist its discharge and shall have no right to discharge any industrial wastewater, directly or indirectly to the OCSD's system for the duration of the suspension. All costs for physically terminating and reinstating service shall be paid by the permittee. 2. Any owner or responsible management employee of the permittee shall be bound by the order of suspension. 3. An order of permit suspension issued by the General Manager shall be final in all respects on the sixteenth (16th) day after it is mailed to the permittee unless a request for hearing Is filed with the Steering Committee pursuant to Section 618 no later than 5:00 p.m. on the fifteenth (15th)day following such mailing. 005. PERMIT REVOCATION A. Grounds The General Manager may revoke any permit when it is determined that a permittee: 1. Knowingly provides a false statement, representation, record, report, or other document to the OCSD. 2. Refuses to provide records, reports, plans, or other documents required by the OCSD to determine permit terms, conditions, or limits, discharge compliance, or compliance with this Ordinance. 3. Falsifies, tampers with, or knowingly renders inaccurate any monitoring device or sample collection method. 4. Fails to report significant changes in operations or wastewater constituents and characteristics. 5. Fails to comply with the terms and conditions of an ECSA, permit suspension, or probation order. Page 63 of 80 6. Discharges effluent to the OCSD's sewerage system while its permit is suspended. 7. Refuses reasonable access to the permittee's premises for the purpose of inspection and monitoring. 6. Does not make timely payment of all amounts owed to the OCSD for user charges, non-compliance sampling fees, permit fees, or any other fees imposed pursuant to this Ordinance. 9. Causes interference with the OCSD's collection, treatment, or disposal system. 10. Fails to submit oral notice or written report of bypass occurrence. 11. Violates any condition or limit of Its discharge permit or any provision of the OCSD's Ordinance. B. Notice/Hearing When the General Manager has reason to believe that grounds exist for the revocation of a permit, he shall give written notice by certified mail thereof to the permittee setting forth a statement of the facts and grounds deemed to exist together with the time and place where the charges shall be heard by the General Manager's designee. The hearing date shall be not less than fifteen (15) calendar days nor more than forty-five (45) calendar days after the mailing of such notice. 1. At the hearing, the permittee shall have an opportunity to respond to the allegations set forth in the notice by presenting written or oral evidence. The revocation hearing shall be conducted in accordance with the procedures established by the General Manager and approved by the OCSD's General Counsel. 2. After the conclusion of the hearing, the General Manager's designee shall submit a written report to the General Manager setting forth a brief statement of facts found to be true, a determination of the issues presented, conclusions, and a recommendation. Upon receipt of the written report, the General Manager shall make his determination and should he find that grounds exist for permanent revocation of the permit, he shall issue his decision and order in writing within thirty (30) calendar days after the conclusion of the hearing by his designee. The written decision and order of the General Manager shall be sent by certified mail to the permittee Page 64 of 80 or its legal counsel/representative at the permittee's business address. In the event the General Manager determines to not revoke the permit, he may order other enforcement actions, including, but not limited to, a temporary suspension of the permit, under terms and conditions that he deems appropriate. C. Effect 1. Upon an order of revocation by the General Manager becoming final, the permittee shall permanently lose all rights to discharge any Industrial wastewater directly or indirectly to the OCSD system. All costs for physical termination shall be paid by the permittee. 2. Any owner or responsible management employee of the permittee shall be bound by the order of revocation. 3. Any future application for a permit at any location within the OCSD by any person subject to an order of revocation will be considered by the OCSD after fully reviewing the records of the revoked permit, which records may be the basis for denial of a new permit. 4. An order of permit revocation issued by the General Manager shall be final in all respects on the sixteenth (16th) day after it is mailed to the permittee unless a request for hearing is filed with the Steering Committee pursuant to Section 618 no later than 5:00 p.m. on the fifteenth (15th) day following such mailing. 606. WASTEHAULER NON-COMPLIANCE WITH PERMIT CONDITIONS A Wastehauler's non-compliance with permit requirements shall be determined by an analysis of a sample of the discharge for any constituent or conditions specified in the Wastehauler's discharge permit or this Ordinance. If the discharge of a Wastehauler is found by the analysis to be in excess of the concentration limits specified in the Wastehauler's discharge permit or in this Ordinance, the Wastehauler shall, after receiving a demand from the OCSD, identify in writing, all sources of the discharge. Even if it is established to the satisfaction of the General Manager that the origin of the discharge is domestic septage, or septic waste, the OCSD may still elect not to accept waste from that particular source. Page 65 of 80 If the discharge is Industrial wastewater from an industrial source(s) and exceeds permit concentration limits or limits specified in this Ordinance, the following shall apply: A. First Violation 1. The permittee shall pay a non-compliance sampling fee. 2. The Wastehauler permit for disposal privileges shall be suspended for five (5) days. B. Second Violation 1. The permittee shall pay a non-compliance sampling fee. 2. The Wastehauler permit for disposal privileges shall be suspended for ten (10) days. 3. The Wastehauler permit may be revoked in accordance with Section 606, 607. DAMAGE TO FACILITIES OR INTERRUPTION OF NORMAL OPERATIONS A. Any person who discharges any waste which causes or contributes to any obstruction, interference, damage, or any other impairment to the OCSD sewerage facilities or to the operation of those facilities shall be liable for all costs required to clean or repair the facilities together with expenses Incurred by the OCSD to resume normal operations. Such discharge shall be grounds for permit revocation. A service charge of twenty-five percent (25%) of OCSD costs shall be added to the costs and charges to reimburse the OCSD for miscellaneous overhead, including administrative personnel and record keeping. The total amount shall be payable within forty-five (45) days of invoicing by the OCSD. B. Any person who discharges a waste which causes or contributes to the OCSD violating its discharge requirements established by any Regulatory Agency incurring additional expenses or suffering losses or damage to the facilities, shall be liable for any costs or expenses incurred by the OCSD, including regulatory fines, penalties, and assessments made by other agencies or a court. Page 66 of 80 608. INDUSTRIAL WASTE PASS THROUGH Any person whose discharge results in a pass through event affecting the OCSD or its sewerage facilities shall be liable for all costs associated with the event, including treatment costs, regulatory fines, penalties, assessments, and other Indirect costs. The discharger shall submit to the OCSD plans to prevent future recurrences to the satisfaction of the OCSD. 609. PUBLICATION OF VIOLATION Upon a determination in a permit suspension, permit revocation, or civil penalty proceedings that a user has discharged in violation of its permit or any provision under this Ordinance, the OCSD may require that the user notify the public and/or other users of the OCSD sewerage facilities of such violation, of actions taken to correct such violation, and of any administrative or judicial orders or penalties imposed as a result of such violation. 610. PUBLISHED NOTICES FOR SIGNIFICANT NON-COMPLIANCE In accordance with Federal Regulations, the OCSD shall annually cause to be published the names of all industrial users in significant non-compliance. Upon a minimum of a thirty (30)-day notification to the user, said publication shall be made in the newspaper of the largest daily circulation published in the OCSD service area. 611. PUBLIC NUISANCE Discharge of wastewater in any manner in violation of this Ordinance or of any order issued by the General Manager, as authorized by this Ordinance, is hereby declared a public nuisance and shall be corrected or abated as directed by the General Manager. Any person creating a public nuisance Is guilty of a misdemeanor. 612. TERMINATION OF SERVICE A. The OCSD, by order of the General Manager, may physically terminate sewerage service to any property as follows: 1. On a term of any order of emergency suspension or revocation of a permit; or 2. Upon the failure of a person not holding a valid discharge permit to immediately cease discharge, whether direct or indirect, to the OCSD sewerage facilities. B. All costs for physical termination shall be paid by the user as well as all Page 67 of 80 costs for reinstating service. 613. EMERGENCY SUSPENSION ORDER A. The OCSD may, by order of the General Manager, suspend sewerage service or Wastehauler discharge service when the General Manager determines that such suspension is necessary in order to stop an actual or impending discharge which presents or may present an Imminent or substantial endangerment to the health and welfare of persons, or to the environment, or may cause interference to the OCSD sewerage facilities, or may cause the OCSD to violate any State or Federal Law or Regulation. Any discharger notified of and subject to an Emergency Suspension Order shall immediately cease and desist the discharge of all industrial wastewater to the sewerage system. B. As soon as reasonably practicable following the issuance of an Emergency Suspension Order, but in no event more than five (5) days following the issuance of such order, the General Manager shall hold a hearing to provide the user the opportunity to present information in opposition to the issuance of the Emergency Suspension Order. Such a hearing shall not stay the effect of the Emergency Suspension Order. The hearing shall be conducted in accordance with procedures established by the General Manager and approved by the OCSD General Counsel. The General Manager shall issue a written decision and order within two (2) business days following the hearing, which decision shall be sent by certified mail to the user or its legal counsel/representative at that user's business address. The decision of the General Manager following the hearing shall be final and not appealable. 614. INJUNCTION Whenever a discharger of wastewater is in violation of or has the reasonable potential to violate any provision of this Ordinance, permit condition, or any Federal Pretreatment Standard or requirement as set forth in 40 CFR Section 403.8 at seq., fails to submit required reports, or refuses to allow the OCSD entry to inspect or monitor the user's discharge, the OCSD may petition the Superior Court for the issuance of a preliminary or permanent injunction, or both, as may be appropriate to restrain the continued violation or to prevent threatened violations by the discharger. Page 68 of 80 615. CIVIL PENALTIES A. Authority All users of the OCSD's system and facilities are subject to enforcement actions administratively or judicially by the OCSD, U.S. EPA, State of California Regional Water Quality Control Board, or the County of Orange District Attorney. Said actions may be taken pursuant to the authority and provisions of several laws, including but not limited to: (1) Federal Water Pollution Control Act, commonly known as the Clean Water Act (33 U.S.C.A. Section 1251 at seq.); (2) Califomia Porter-Cologne Water Quality Control Act (California Water Code Section 13000 at seq.); (3) California Hazardous Waste Control Law (California Health & Safety Code Sections 25100 to 25250); (4) Resource Conservation and Recovery Act of 1976 (42 U.S.C.A Section 6901 at seq.); and (5) California Government Code, Sections 54739-54740. B. Recovery of Fines or Penalties In the event the OCSD is subject to the payment of fines or penalties pursuant to the legal authority and actions of other regulatory or enforcement agencies based on a violation of law or regulation or its permits, and said violation can be established by OCSD, as caused by the discharge of any user of the OCSD system which is in violation of any provision of the OCSD Ordinance or the users permit, OCSD shall be entitled to recover from the user all costs and expenses, including, but not limited to, the full amount of said fines or penalties to which It has been subjected. C. Ordinance Pursuant to the authority of Califomia Government Code Sections 54739 - 54740, any person who violates any provision of this Ordinance; any permit condition, prohibition or effluent limit; or any suspension or revocation order shall be liable civilly for a sum not to exceed $25,000.00 per violation for each day in which such violation occurs. Pursuant to the authority of the Clean Water Act, 33 U.S.C. Section 1251 at seq., any person who violates any provision of this Ordinance, or any permit condition, prohibition, or effluent limit shall be liable civilly for a sum not to exceed $25,000.00 per violation for each day in which such violation occurs. The General Counsel of the OCSD, upon order of the General Manager, shall petition the Superior Court to impose, assess, and recover such penalties, or such other penalties as the OCSD may Impose, assess, and recover pursuant to Federal and/or State legislative authorization. Page 69 of 80 D. Administrative Civil Penalties 1. Pursuant to the authority of California Government Code Sections 54740.5 and 54740.6, the OCSD may Issue an administrative complaint to any person who violates: a) any provision of this Ordinance; b) any permit condition, prohibition, or effluent limit; or c) any suspension or revocation order. 2. The administrative complaint shall be served by personal delivery or certified mail on the person and shall inform the person that a hearing will be conducted, and shall specify a hearing date within sixty (60) days following service. The administrative complaint will allege the act or failure to act that constitutes the violation of the OCSD requirements, the provisions of law authorizing civil liability to be Imposed, and the proposed civil penalty. The matter shall be heard by the General Manager or his designee. The person to whom an administrative complaint has been issued may waive the right to a hearing, in which case a hearing will not be conducted. 3. At the hearing, the person shall have an opportunity to respond to the allegations set forth in the administrative complaint by presenting written or oral evidence. The hearing shall be conducted in accordance with the procedures established by the General Manager and approved by the OCSD's General Counsel. 4. After the conclusion of the hearing, the General Managers designee shall submit a written report to the General Manager setting forth a brief statement of the fads found to be true, a determination of the issues presented, conclusions, and a recommendation. 5. Upon receipt of the written report, the General Manager shall make his determination and should he find that grounds exist for assessment of a civil penalty against the person, he shall issue his decision and order in writing within thirty (30) calendar days after the conclusion of the hearing by his designee. 6. If, after the hearing or appeal, if any, it is found that the person has violated reporting or discharge requirements, the General Manager or Steering Committee may assess a civil penalty against that person. In determining the amount of the civil penalty, the General Manager or Steering Committee may take into consideration all Page 70 of 80 relevant circumstances, including but not limited to the extent of harm caused by the violation, the economic benefit derived through any non-compliance, the nature and persistence of the violation, the length of time over which the violation occurs, and corrective action, if any, attempted or taken by the person involved. 7. Civil penalties may be assessed as follows: a) In an amount which shall not exceed two thousand dollars ($2,000.00) for each day for failing or refusing to furnish technical or monitoring reports; b) In an amount which shall not exceed three thousand dollars ($3,000.00) for each day for failing or refusing to timely comply with any compliance schedules established by the OCSD; c) In an amount which shall not exceed five thousand dollars ($5,000.00) per violation for each day of discharge In violation of any waste discharge limit, permit condition, or requirement issued, reissued, or adopted by the OCSD; d) In any amount which does not exceed ten dollars ($10.00) per gallon for discharges in violation of any suspension, revocation, cease and desist order or other orders, or prohibition issued, reissued, or adopted by the OCSD; 8. An order assessing administrative civil penalties issued by the General Manager shall be final in all respects on the thirty-first (31st) day after its is served on the person unless an appeal and request for hearing is filed with the Steering Committee pursuant to Section 618 no later than the thirtieth (30th) day following such mailing. An order assessing administrative civil penalties issued by the Steering Committee shall be final upon issuance. 9. Copies of the administrative order shall be served on the parry served with the administrative complaint, either by personal service or by registered mail to the person at his business or residence address, and upon other persons who appeared at the hearing and requested a copy of the order. 10. Any person aggrieved by a final order issued by the Steering Committee, after granting review of the order of the General Manager, may obtain review of the order of the Steering Committee in the superior court, pursuant to Government Code Section 54740.6, by filing In the court a petition for writ of mandate within Page 71 of 80 thirty (30) days following the service of a copy of the decision or order Issued by the Steering Committee. 11. Payment of any order setting administrative civil penalties shall be made within thirty (30) days of the date the order becomes final. The amount of any administrative civil penalties Imposed which have remained delinquent for a period of sixty (60) days shall constitute a lien against the real property of the discharger from which the discharge resulting in the imposition of the civil penalty originated. The lien shall have no effect until recorded with the county recorder. The OCSD may record the lien for any unpaid administrative civil penalties on the ninety-first (91st) day following the date the order becomes final. 12. No administrative civil penalties shall be recoverable under Section 615.D for any violation for which the OCSD has recovered civil penalties through a judicial proceeding filed pursuant to Government Code Section 54740. 616. CRIMINAL PENALTIES Any person who violates any provision of this Ordinance is guilty of a misdemeanor, which upon conviction is punishable by a fine not to exceed $1,000.00, or imprisonment for not more than thirty (30) days, or bath. Each violation and each day in which a violation occurs may constitute a new and separate violation of this Ordinance and shall be subject to the penalties contained herein. 617. APPEALS TO GENERAL MANAGER A. General Any user, permit applicant or pennittee affected by any decision, action or determination made by the Division Head may file with the General Manager a written request for an appeal hearing. The request must be received by the OCSD within fifteen (15) days of mailing of notice of the decision, action, or determination of the OCSD to the appellant. The request for hearing shall set forth in detail all facts supporting the appellanPs request. B. Notice The General Manager shall, within fifteen (15) days of receiving the request for appeal, and pursuant to Section 107, designate a Department Head or other person to hear the appeal and provide written notice to the appellant of the hearing date, time and place. The hearing date shall not be more than thirty (30) days from the mailing of such notice by certified mail to the appellant unless a Page 72 of 80 later date is agreed to by the appellant. If the hearing is not held within said time due to actions or inactions of the appellant, then the staff decision shall be deemed final. C. Hearina At the hearing, the appellant shall have the opportunity to present Information supporting Its position concerning the Division Head's decision, action or determination. The hearing shall be conducted in accordance with procedures established by the General Manager and approved by the OCSD's General Counsel. D. Written Determination After the conclusion of the hearing, the Department Head (or other designee) shall submit a written report to the General Manager setting forth a brief statement of facts found to be true, a determination of the issues presented, conclusions, and a recommendation whether to uphold, modify or reverse the Division Head's original decision, action or determination. Upon receipt of the written report, the General Manager shall make his determination and shall issue his decision and order within thirty (30) calendar days of the hearing by his designee. The written decision and order of the General Manager shall be sent by certified mail to the appellant or its legal counsel/representative at the appellant's business address. The order of the General Manager shall be final in all respects on the sixteenth (16th) day after it is mailed to the appellant unless a request for hearing is filed with the Steering Committee pursuant to Section 618, no later than 5:00 p.m. on the fifteenth day following such mailing. 618. APPEALS TO THE STEERING COMMITTEE A. General Any user, permit applicant, or permittee adversely affected by a decision, action, or determination made by the General Manager may, prior to the date that the General Manager's order becomes final, file a written request for hearing before the Steering Committee of the Joint Boards of Directors accompanied by an appeal fee In the amount established by a fee ordinance of the OCSD Board of Directors. The request for hearing shall set forth in detail all the issues in dispute for which the appellant seeks determination and all facts supporting appellant's request. No later than sixty (60) days after receipt of the request for hearing, the Steering Committee shall either set the matter for a hearing, or deny the request for a hearing. Page 73 of 80 A hearing shall be held by the Steering Committee within sixty-five (65) days from the date of determination granting a hearing, unless a later date is agreed to by the appellant and the Steering Committee. If the matter is not heard within the required time, due to actions or inactions of the appellant, the General Manager's order shall be deemed final. B. Grantina Request for Hearing The Steering Committee shall grant all requests for a hearing on appeals concerning permit suspension, revocation, or denial. Whether to grant or deny the request for a hearing on appeals of other decisions of the General Manager shall be within the sole discretion of the Steering Committee. C. Appeal Fee Refund The appeal fee shall be refunded if the Steering Committee denies a hearing or reverses or modifies, in favor of the appellant, the order of the General Manager. The fee shall not be refunded if the Steering Committee denies the appeal. D. Written Determination After the hearing, the Steering Committee shall make a determination whether to uphold, modify, or reverse the decision, action, or determination made by the General Manager. The decision of the Steering Committee shall be set forth in writing within sixty- five (65) days after the close of the hearing and shall contain a finding of the facts found to be true, the determination of issues presented, and the conclusions. The written decision and order of the Steering Committee shall be sent by certified mail to the appellant or its legal counsel/representative at the appellant's business address. The order of the Steering Committee shall be final upon its adoption. In the event the Steering Committee fails to reverse or modify the General Manager's order, it shall be deemed affirmed. 618.1 Appeal of Charges and Fees Any user, permit applicant, or permittee affected by any decision, action, or determination by the OCSD, relating to fiscal issues of the OCSD in which the user, applicant, or permittee Is located, Including but not limited to the Imposition and collection of fees, such as connection charges, sewer use charges, special purpose discharge use charges and Wastehauler fees, may request that the OCSD reconsider imposition of such fees or charges. Following review of such a request, the OCSD shall notify the user, permit applicant, or permittee by certified Page 74 of 80 mail of the OCSD's decision on the reconsideration request. Any user, permit applicant, or permlttee adversely affected by the OCSD's decision on the reconsideration request may file an appeal which shall be heard by the Board of Directors of the District in which the appellant's property is located. The notice of appeal must be received by the OCSD within thirty (30) days of the mailing of the OCSD's decision on the reconsideration request. Notwithstanding the foregoing, appeals of non-compliance sampling fees shall be made pursuant to the appeal procedures set forth in Sections 617 and 618. 619. PAYMENT OF CHARGES A. Except as otherwise provided, all fees, charges and penalties established by this Ordinance are due and payable upon receipt of notice thereof. All such amounts are delinquent if unpaid forty-five (45) days after date of invoice. B. Any charge that becomes delinquent shall have added to it a penalty in accordance with the following: 1. Forty-six (46) days after date of invoice, a basic penalty of ten percent (10%) of the base invoice amount, not to exceed a maximum of$1,000.00; and 2. A penalty of one and one-half percent (1.5%) per month of the base invoice amount and basic penalty shall accrue from and after the forty-sixth (46th) day after date of invoice. C. Any invoice outstanding and unpaid after ninety (90) days shall be cause for immediate initiation of permit revocation proceedings or immediate suspension of the permit. D. Penalties charged under this Section shall not accrue to those invoices successfully appealed, provided the OCSD receives written notification of said appeal prior to the payment due date. E. Payment of disputed charges is still required by the due date during OCSD review of any appeal submitted by permittees. Page 75 of 80 619.1 Collection of Delinquent Accounts Collection of delinquent accounts shall be in accordance with the OCSD's policy resolution establishing procedures for collection of delinquent obligations owed to the OCSD, as amended from time to time by the Board of Directors. Any such action for collection may include an application for an injunction to prevent repeated and recurring violations of this Ordinance. 620. RECOVERY OF COSTS INCURRED BY OCSD In the event permittee fails to comply with any of the terms and conditions of the OCSD's Ordinance, a probationary order, a permit suspension or revocation, an ECSA, RCSA, or a permit issued hereunder, the OCSD shall be entitled to reasonable attorney's fees and costs which may be Incurred in order to enforce any of said terms and conditions, with or without filing proceedings in court. 621. FINANCIAL SECURITY/AMENDMENTS TO PERMIT A. Compliance Deposit Permittees that have been subject to enforcement and/or collection proceedings may be required to deposit with the OCSD an amount determined by the General Manager as necessary to guarantee payment to OCSD of all charges, fees, penalties, costs and expenses that may be incurred in the future, before permission is granted for further discharge to the sewer. B. Delinquent Accounts The OCSD may require an amendment to the permit of any permittee who fails to make payment in full of all fees and charges assessed by the OCSD, including reconciliation amounts, delinquency penalties, and other costs or fees incurred by Permittee. C. Bankruptcv Every Permittee filing any legal action in any court of competent jurisdiction, Including the United States Bankruptcy Court, for purposes of discharging its financial debts or obligations or seeking court-ordered, protection from its creditors, shall, within ten (10) days of filing such action, apply for and obtain the issuance of an amendment to Its permit. D. Permit Amendments The OCSD shall review and examine Permittee's account to determine whether previously incurred fees and charges have been paid in accordance with time requirements prescribed by this Ordinance. The OCSD may thereafter issue an Page 76 of 80 amendment to the User's permit in accordance with the provisions of Article 3 and Section 621(E)of this Ordinance. E. Security An amendment to a waste discharge permit issued pursuant to Sections 621(B), (C), and (D), may be conditioned upon the Permittee depositing financial security in an amount equal to the average total fees and charges for two (2) calendar quarters during the preceding year. Said deposit shall be used to guarantee payment of all fees and charges incurred for future services and facilities furnished by OCSD and shall not be used by the OCSD to recover outstanding fees and charges incurred prior to the Permittee filing and receiving protection from creditors in the United States Bankruptcy Court. F. Return of Security In the event the Permittee makes payment in full within the time prescribed by this Ordinance of all fees and charges incurred over a period of two (2) years following the Issuance of an amendment to the permit pursuant to Sections 621(B), (C), and (D), the OCSD shall either return the security deposit posted by the Permittee or credit their account. 622. JUDICIAL REVIEW A. Puroose and Effect Pursuant to Section 1094.6 of the California Code of Civil Procedure, the OCSD hereby enacts this part to limit to ninety (90) days following final decisions in adjudicatory administrative hearings the time within which an action can be brought to review such decisions by means of administrative mandamus. B. Definitions As used in this Section, the following terms and words shall have the following meanings: 1. Decision shall mean and include adjudicatory administrative decisions that are made after hearing, or after revoking, suspending, or denying an application for a permit or a license. 2. Complete Record shall mean and include the transcript, if any exists, of the proceedings, all pleadings, all notices and orders, any proposed decision by the General Manager, the final decision, all admitted exhibits, all rejected exhibits in the possession of the OCSD or its offices or agents, all written evidence, and any other papers in the case. Page 77 of 80 3. Party shall mean a person whose permit has been denied, suspended, or revoked. C. Time Limit for Judicial Review Judicial review of any decision of the OCSD or its officer or agent may be made pursuant to Section 1094.5 of the Code of Civil Procedure only if the petition for writ of mandate is filed not later than the ninetieth (90th) day following the date on which the decision becomes final. If there is no provision for reconsideration in the procedures governing the proceedings or if the date is not otherwise specified, the decision is final on the date it is made. If there is provision for reconsideration, the decision is final upon the expiration of the period during which such reconsideration can be sought; provided that If reconsideration is sought pursuant to such provision the decision is final for the purposes of this Section on the date that reconsideration is rejected. D. Preparation of the Record The complete record of the proceedings shall be prepared by the OCSD officer or agent who made the decision and shall be delivered to the petitioner within ninety (90) days after he has filed written request therefor. The OCSD may recover from the petitioner its actual costs for transcribing or otherwise preparing the record. E. Extension If the petitioner files a request for the record within ten (10) days after the date the decision becomes final, the time within which a petition, pursuant to Section 1094.5 of the Code of Civil Procedure, may be filed shall be extended to not later than the thirtieth (30th) day following the date on which the record is either personally delivered or mailed to the petitioner or the petitioner's attorney of record, if appropriate. F. NglLq2 In making a final decision, the OCSD shall provide notice to the party that the time within which judicial review must be sought is governed by Section 1094.6 of the Code of Civil Procedure. Page 78 of 80 G. Administrative Civil Penalties Notwithstanding the foregoing in Section 622, and pursuant to Government Code Section 54740.6, judicial review of an order of the Steering Committee Imposing administrative civil penalties pursuant to Section 615.D may be made only if the petition for writ of mandate is filed not later than the thirtieth (30th) day following the day on which the order of the Steering Committee becomes final. ARTICLE 7 SEWER SERVICE CHARGES - CONNECTION CHARGES 701. SANITARY SEWER SERVICE CHARGE Every parcel of real property located within the OCSD which is improved with structures designed for residential, commercial, or Industrial use, and connected to the OCSD system, shall pay a sanitary sewer service charge in an amount adopted by the Board of Directors by separate Ordinance. 702. CAPITAL FACILITIES CONNECTION CHARGE Every parcel of real property located within the OCSD which is improved with structures designed for residential, commercial, or industrial use, and connected to the OCSD system, shall pay a capital facilities connection charge In an amount adopted by the Board of Directors by separate Ordinance. ARTICLE 8 SEVERABILITY 801. SEVERABILITY If any provision of these Regulations or the application to any or circumstances is held invalid, the remainder of the regulations or the application of such provision to other persons or other circumstances shall not be affected. 802. GENERAL APPLICATION The provisions of this Ordinance shall apply to all properties within the OCSD including those properties otherwise deemed exempt from payment of taxes or assessments by provisions of the State Constitution or statute, including properties owned by other public agencies or tax-exempt organizations. Section II: This Ordinance is enacted in order to preserve the public Page 79 of 80 health and safety, and in order to continue the provision of sewer services by the OCSD. The facts requiring the public health and safety to be preserved are that the regulation of the discharge of industrial and sanitary sewage is regulated by Federal and Stale law, and protection of individuals' health and the environment require that no discharges of untreated sewage/wastewater are allowed to occur that are not in accord with technical specifications and requirements. Section III: Effective Date. This Ordinance shall take effect October 1, 2009. Section IV: Repeal. Ordinance No. OCSD-37 is hereby repealed. Section V: The Clerk of the Board shall certify to the adoption of this Ordinance and shall cause a summary to be published in a newspaperof general circulation as required by law. PASSED AND ADOPTED by a vote of not less than two-thirds of the Board of Directors of the Orange County Sanitation District at a Regular Meeting held the 23 day of September, 2009. J"t- Chair, BAtd df Directors Oreng C unty Sanitation District ATTEST: Clerk of A Boa I Orange County Sanitation District Bradl6y R. How Gerieral luor Page 80 of 80 I TUCKER ELLIS LLP CARMEN A. TRUTANICH SBN 86629 2 carmen.trutanich@tuckerellis.com MATTHEW I. KAPLAN SBN 177242 3 matthew.kaplan@tuckerellis.com WILLIAM H.DANCE SBN 230041 4 william.dance@tuckerellis.com 515 South Flower Street - 5 Forty-Second Floor Los Angeles, CA 90071-2223 6 Telephone: 213.430.3400 Facsimile: 213.430.3409 7 Attorneys for KLEAN WATERS,INC., 8 TIM MILLER, and SHAUN MILLER 9 ORANGE COUNTY SANITATION DISTRICT g 10 w 11 In the Matter of: 12 Mean Waters,Inc., Tim Miller, OPENING BRIEF OF XLEAN WATERS,INC., a 13 and Shaun Miller TIM MILLER,AND SFIAUN MILLER ; o w = 14 Industrial Wastewater Discharge Hearing Date: October 29,2014 z Permit No. 52-1-841 Time: 10:00 A.M. 3 15 Location: OCSD Administrative Office 10844 Ellis Avenue E~ E 16 Fountain Valley, CA 92708 Hearing Officer: TBD 17 18 19 I. INTRODUCTION 20 The Orange County Sanitation District charges Mean Waters,Inc. with regulatory violations in 21 three counts: failure to provide pretreatment, denial of inspection and sampling, and acceptance of waste 22 from outside the District's service area. 23 When Klean Waters discharged wastewater into the OCSD sewer system, it was within the limits 24 for constituent concentrations specified in Klean Waters' permit. Klean Waters proves this through its 25 self-monitoring reports and quarterly inspection results. Klean Waters also shows OCSD's own sample 26 results me so unreliable they are not credible evidence of lack of compliance. 27 Klean Waters has repeatedly offered OCSD the opportunity to install its own twenty-four hour 28 composite sampling device inside Klean Walters' facility for daily testing so OCSD can assure itself of OPENING BRIEF OF KLEAN WATERS,INC.,TIM MILLER,AND SHAUN MILLER 303oz5]3 I Klean Waters' compliance but OCSD's response has been either that it lacks the manpower to 2 implement actual discharge sampling or no response at all. Klean Waters reiterates this offer at this 3 time,as this ought to definitively establish its discharge compliance and good faith in trying to meet 4 OCSD's expectations. 5 The Clean Water Act and its implementing federal, state, and local regulations focus on the 6 quality of the wastewater going into the sewer system and ultimately into bodies of water such as the 7 Santa Ana River and the Pacific Ocean. Klean Waters' permit shares this focus: it prescribes results,not 8 processes. For some reason, OCSD regulators have chosen to focus almost entirely on 9 micromanagement of process rather than monitoring and enforcing what really matters, results. This 10 dispute has arisen almost entirely because OCSD misinterprets and misapplies the terms of the permit it 11 issued to Klean Waters and the governing OCSD Ordinance. N 12 Mistrust developed between Klean Waters management and several OCSD employees and as a 13 result Mean Waters refused access, first to these employees and then more generally to OCSD. Klean a W v 14 Waters admits this but offers evidence showing that OCSD employees were contacting its clients and x g 15 stating Klean Waters was engaged in illegal conduct, causing a sharp decline in Klean Waters' business. E 16 One OCSD employee,Arnold Chavez,was contacted by Klean Waters' only Orange County competitor, 17 to whom he was assigned as inspector, and informed of a large quantity of potentially violative 18 wastewater that might soon be delivered to Mean Waters. Instead of warning Klean Waters about a U 19 possible illegal disposal effort by a wastehauler and generator, OCSD set up an elaborate"sting" in 20 which it used this advance knowledge to try and catch Klean Waters discharging noncompliant effluent. 21 These are the March 8-10, 2014 samples OCSD discusses, which are entirely unreliable and not 22 representative of Mean Waters' discharge at all. As explained in expert declarations submitted with this 23 Opposition, OCSD's samples are composited samples containing substantial discharged wastewater 24 from other entities. The evidence thus shows compliance by Klean Waters through their self-monitoring 25 and other data. 26 Mean Waters also heard from its clients that Mr. Chavez and other OCSD personnel harmed its 27 reputation in the course of making phone calls with the ostensible purpose of checking on wastewater 28 shipments to Klean,Waters. Mr. Chavez also conducted a number of unannounced inspections on Klean 2 OPENING BRIEF OF KLEAN WATERS,INC.,TIM MILLER,AND SHAUN MILLER 1030257.3 I Waters despite the fact he was not the finn's assigned OCSD inspector. This conduct by OCSD 2 employees fostered a belief among Klean Waters management that at least some OCSD employees, 3 supposedly neutral officials enforcing regulations with an even hand,were instead improperly engaged 4 in conduct detrimental to Klean Waters' business. Klean Waters therefore limited access to its facility 5 as it retained counsel and tried to setup meetings with OCSD supervisory personnel to address these 6 issues. One such meeting was eventually setup where Klean Waters was told James Colston would meet 7 with them,but Mr. Colston failed to show up at the meeting and OCSD offered no explanation for his 8 refusal to meet. Klean Waters offers this background not as an excuse for the access limitations, but 9 rather as an explanation. g 10 Finally,OCSD alleges Mean Waters accepted waste from outside the OCSD service area in 11 violation of a Special Condition in its revised permit. But OCSD did not have the authority to impose g 12 this Special Condition under Ordinance No. OCSD-39, Section 208(A). The Special Condition was an 4 � 13 improper attempt by OCSD to force Klean Waters to report information OCSD already compels the 3 14 wastehaulers to submit directly. In addition,while the Special Condition required Klean Waters to w 0 15 "submit"information to OCSD"for review,"OCSD attempted to enforce the condition as one requiring H E 16 prior OCSD approval for Klean Waters to accept any out-of-area wastewater,a requirement Klean 17 Waters understood OCSD did not impose on its competitor. Klean Waters tried to comply with this 5 18 condition,but OCSD's responses were so slow as to be, in effect,nonresponsive. Enforcement of the u 19 special condition OCSD tried to impose is also invalid and preempted by state law. ANd, OCSD is 20 barred from arguing the special condition is not preempted under the doctrine ofludicial estoppel. 21 II. OCSD'S IMPLEMENTATION OF THIS ADJUDICATION DENIES KLEAN WATERS 22 DUE PROCESS 23 Before turning to its substantive defense,Klean Waters brings to the Hearing Officer's attention 24 the fact OCSD's conduct has prevented Klean Waters from presenting important evidence and has been 25 denied its due process rights in its defense of this Administrative Matter. Klean Waters reserves its right 26 to submit supplemental and additional information prior to the hearing based on its inability to obtain 27 necessary evidence required for its defense and OCSD's failure to provide it adequate time to prepare its 26 defense. These failures have caused substantial harm to Mean Waters and limited its ability to defend 3 OPENING BRIEF OF KLEAN WATERS,INC.,TIM MILLER,AND SHAUN MILLER 1030257.3 I itself. 2 Khan Waters sought a continuance from assigned Hearing Officer Ed Torres because OCSD 3 failed to timely respond to its public information requests. OCSD contends because the documents 4 requested are `voluminous," it cannot produce them until October 27th,just two days before the hearing 5 and six days after Klean Waters' deadline to submit its brief and evidence. Despite this, OCSD refuses 6 to stipulate to a continuance and Hearing Officer Torres denied Klean Waters' request for a continuance. 7 This injustice can be corrected by the Hearing Officer immediately granting a continuance so 8 OCSD cannot hide behind the hearing deadline to deny Mean Waters a fair defense. The continuance 9 should be long enough for Klean Waters to receive,review, and integrate the public records it requested g 10 and for it to obtain evidence from its personnel who are have been away and unavailable to assist in 11 preparation of the defense papers (specifically,respondent Tim Miller the President of Klean Waters, g 12 who have been travelling in New England). A sixty day continuance would be appropriate. OCSD"s .tea < 13 Hearing Officer argued in denying the continuance that a delay would pose a health danger because a W u 14 Klean Waters will continue to discharge untreated wastewater, but as will be shown,that position is x o 15 devoid of merit because it is based on faulty assumptions and invalid sample data. In fact,a continuance E 16 causes no health danger because Klean Waters discharges only properly pretreated wastewater. 17 But the continuance is not the only area in which the hearing procedure treads on Mean Waters' 18 due process rights. As set forth in OCSD's "Rules of Procedure"the entire hearing process lacks due U 19 process safeguards. The requirements of due process are flexible,especially where administrative 20 procedure is concerned. (Haas v. Cnry. of San Bernardino(2002)27 CalAth 1017, 1037.) Perhaps for a 21 single minor discharge violation,the lack of structure and short time frames for receiving and 22 responding to evidence would be appropriate. But much more is at stake here. OCSD wants to put 23 Mean Waters out of business by revoking its permit. In addition,OCSD seeks to have the Hearing 24 Officer impose the maximum civil penalties,totaling$2,055,000.00. OCSD also seeks to hold Tim and 25 Shaun Miller personally liable. These are huge penalties, of life-changing dimension to both men as 26 well as the other employees of Klean Waters. With so much at stake, a more structured, formalized 27 procedure is required that provides Respondents an opportunity to obtain, evaluate and respond to the 28 charges with all relevant evidence and discovery from OCSD. For example, Mean Waters has yet to 4 OPENING BRIEF OF KLEAN WATERS,INC,TIM MILLER,AND SHAUN MILLER 1030257.3 1 receive any documents in response to its four public information requests,so it cannot use any of this 2 discovery in its defense. And"because the due process clause ensures that an administrative proceeding 3 will be conducted fairly," courts have held that"discovery must be granted if in the particular situation a 4 refusal to do so would so prejudice a parry as to deny him due process." (Mohilef v. Janovici(1996) 51 5 Cal.AppAth 267, 302.) 6 In fact,Klean Waters expected that Mr. Torres would have recused himself and a new Hearing 7 Officer from outside the OCSD would have been designated by the time it filed this Opposition because, 8 Mr. Torres has already concluded that Klean Waters is culpable,he has engaged in ex parte 9 communications with the prosecution team and coordinated strategy with them, and he is acting as both g 10 adjudicator and member of the prosecution team. In fact, OCSD's General Counsel informed Klean LL 11 Waters five days ago, on October 16,2014,that a new Hearing Officer would be assigned,but as of 12 today's date Klean Waters has not received any formal notification confirming this fact or identifying 13 the new Hearing Officer. Moreover,Klean Waters sought a stipulation to a continuance from the U 14 prosecution team after learning of Mr. Tones'planned replacement and notified OCSD of its intent to Y o 15 seek a further continuance from the new Hearing Officer,but has received no response at all since that u „ [- $ 16 request was made four days ago. This topic is addressed in further detail in the contemporaneously 17 submitted Declaration of Matthew I. Kaplan and attached exhibits,which are incorporated by reference. 's 18 As set forth in Paragraph 12 of the Rules of Procedure for this matter,the"Hearing Officer shall U 19 decide all questions of procedure and evidence"and the format for the hearing"may at the discretion of 20 the Hearing Officer be modified as necessary...." The Klean Waters parties are especially concerned 21 about their right to confront their accusers through cross-examination and the allotted time for evidence 22 presentation and questioning. Therefore,Klean Waters seeks advance negotiation of the procedure to be 23 followed in this adjudication or a Pre-Hearing Conference to address these matters in addition to a 24 continuance. 25 26 27 28 5 OPENING BRIEF OF KLEAN WATERS,INC.,TIM MILLER,AND SHAUN MILLER 1030257.3 I M. KLEAN WATERS HAS NOT FAILED TO PROVIDE PRETREATMENT TO THE 2 WASTEWATER IT DISCHARGES 3 A. Tim and Shaun Miller Have a Long History of Wastewater Pretreatment 4 Compliance 5 Tim Miller is the President of Klean Waters. His son Shaun is the General Manager. Prior to 6 coming to Orange County to open Mean Waters' western operation,Tim Miller had constructed and 7 operated wastewater pretreatment facilities in compliance with federal, state, and local regulations for 8 approximately 18 years.' 9 Shaun Miller grew up learning the skills of wastewater treatment from his father. Shaun has g 10 worked at and operated at least three different industrial wastewater pretreatment facilities his father 11 built in the Midwest, demonstrating outstanding compliance success at both and even winning an award 5 12 for his compliance track record. From Mid-2007 until October 201, Shaun managed Klean Waters' a — a 13 plant Milwaukee, Wisconsin. During his management of the facility,the plant won recognition on the s w u 14 Milwaukee Metropolitan Sewage District Honor Roll for the years 2009 and 2010 (the last three months n 15 of which the plant was run by one of our employees,Tom Pailin),which was a recognition awarded for > > E 16 discharges that went for a full calendar year without a violation of any permit conditions. The Klean 17 Waters facility in Griffith,Indiana attained an even more remarkable accomplishment under Tim and 18 Shawn's joint oversight: it went five years without a single discharge violation. Tim and Shaun are far U 19 from novices in this business;they brought a wealth of experience and a long history of successful 20 operation of wastewater pretreatment facilities with them when they decided to move to Orange County 21 and open a new arm of their business. 22 B. Klean Waters' Permit Specifies the Constituents of the Pretreated Wastewater It 23 May.Discharge 24 On September 25,2012, Tim Miller submitted Klean Waters' application for a Class I 25 26 1 As noted,Mr.Miller has been bevelling since the Opening Brief and Evidence were received from 27 OCSD and has been unable to prepare a declaration in his own defense. Information about him reported in this Brief is based on a few short phone calls and the understanding of his son. They therefore may be 28 corrected in subsequent documents anticipated to be filed in this matter. 6 OPENING BRIEF OF KLEAN RATERS,INC.,TIM MILLER,AND SHAUN MILLER 1030257.3 I Wastewater Discharge Permit to OCSD. Klean Waters sought permission for`centralized wastewater 2 treatment for non-hazardous industrial wastewaters"at its facility at 314 W.Freedom Avenue, Orange, 3 California. Mr.Miller applied to produce two products from the wastewater he would treat,"effluent 4 water to meet O.C.S.D. permit limits"and"non-hazardous treatment sludge." 5 The Klean Waters application included several drawings depicting the contemplated layout of 6 the facility and the pretreatment system. The truck unloading area led to two 6,500 gal. unloading tanks, 7 eight 6,000 gal. storage tanks, ten 6,000 gal.process tanks, and two 9,000 gal._settling tanks. The 8 drawings also showing the locations of five 220 gal, chemical tanks,various pipes, valves,and pumps, a 9 control panel, and a flow meter. g 10 OCSD issued the first Klean Waters permit on January 21, 2013, authorizing Klean Waters to 11 "discharge industrial wastewater from [its facility at W. Freedom Avenue] into the District's sewer 12 system in accordance with the conditions set forth in this permit." The permit was immediately 13 effective giving Klean Waters the right to start discharging wastes, even though Klean Waters' entire g 14 plant remained to be built. W C � o li Part 1 of the permit regulated the content of the pretreated wastewater Klean Waters would be U E 16 allowed to discharge to the OCSD sewer system. In Part 1, OCSD specified 32"constituents"for Klean 17 Waters' pretreated wastewater, requiring Klean Waters' "effluent discharge shall not exceed either ... 18 concentration limits in mg/L or the mass emission rates in lbs/day,"quantifying the limits for each u 19 constituent in a chart. The permit also specified an instantaneous concentration limit and a monthly 20 average concentration limit for most constituents. 21 The remaining parts of the permit specified"Self-monitoring,Notification and Reporting 22 Requirements" (Part 2), "Standard Conditions" (Part 3), and`Special Conditions for Permit No. 52-1- 23 841 (Part 4). Several attachments further specified self-monitoring requirements and provided technical 24 and calibration requirements for Klean Waters' effluent flow meter. 25 Klean Waters pretreated wastewater it received to meet the requirements of its permit. OCSD 26 alleges they did not. This issue turns on the answers to three questions: Has Mean Waters been treating 27 its wastewater in compliance with the permit? Does the permit require Klean Waters to use a particular 28 pretreatment process? And does the governing Ordinance No. OCSD-39 require Klean Waters to use a 7 OPENING BRIEF OF KLEAN WATERS,INC.,TIM MILLER,AND SHAUN MILLER 1030257.3 1 particular process? 2 1. Klean Waters Pretreated the Wastewater It Discharged in Compliance With 3 the Permit 4 The answer to the first question is affirmative;Klean Waters has been pretreating wastewater in 5 compliance with the permit ever since it started discharging waste. The permit specified the results,and 6 Mean Waters has been achieving the required results. Klean Waters' documented laboratory analysis of 7 the concentration levels of its discharged wastewater shows no permit exceedances. (Shaun Miller, 8 Dect. at¶¶3,5, 7) 9 2. The Permit Does Not Require Klean Waters to Use a Particular g 10 Pretreatment Process 11 No provision of the permit requires Klean Waters to use any particular process to pretreat its 12 wastewater. (See Hoenig and Bracewell Declarations.) No permit provision requires Mean Waters to c.i m a ¢ 13 use the processing system described in its application to accomplish its pretreatment. OCSD does not u 14 assert to the contrary in its Complaint or brief. The permit focuses on results and is silent on process. x o 15 Thus, so long as Klean Waters' effluent meets its discharge requirements after treatment of wastewater, !— a 16 there is no permit violation. 17 Moreover,there is no violation of OCSD Ordinance No. 39 either. OCSD's Complaint states 9 18 "Section 402(A) of the Ordinance requires that all users provide the wastewater treatment necessary to 'u 19 achieve compliance with all applicable Categorical Pretreatment Standards and effluent discharge 20 limits." (Complaint at 170). This is important not for what it says but for what it does not say. The 21 Ordinance, like the permit, is silent as to process. It does not specify, in the section cited by the OCSD, 22 or anywhere else, any details of any required pretreatment process,nor does it specify that the 23 pretreatment plan described in a permit application must be the method used by the permitter,to achieve 24 compliance. OCSD does not even contend otherwise in its Complaint or brief. Like the permit, the 25 Ordinance focuses on results—compliance—and not the process for achieving it. (See Bracewell 26 Declaration.) Mean Waters produced the required results and its sampling data proves it. That should 27 be the end of the discussion about whether Klean Waters complied with its permit in its pretreatment of 28 wastewater. 8 OPENING BRIEF OF KLEAN WATERS,INC.,TIM MILLER,AND SHAUN MILLER 1030257.3 1 3. Klean Waters Substantially Conformed to the Process It Described in its 2 Permit Application 3 OCSD's Complaint(¶ 14) states "a permit application must include plans for implementation of 4 a pretreatment system to ensure that discharge limits will be met." The permit application included 5 these plans. (See Permit Application). Furthermore,Klean Waters' pretreatment system as 6 implemented is substantially similar to the system described in the permit 7 OCSD inspector Martin Holl described in a"Permit Fact Sheet"Mean Waters' anticipated 8 pretreatment process. "Wastewater is bucked into the plant and unloaded into one of two 6500-gallon 9 unloading tanks. From there,the solutions are pumped into one of eight 6000-gallon storage tanks. g 10 Wastewater is subsequently pumped into one of ten process tanks for treatment with caustic,sulfuric, 11 aluminum sulfate, and cationic or anionic polymers (stored in 220-gallon bulk tanks)as required. 5 a 12 Process tanks are equipped with mixers and instrumentation, and operated from a central control panel. a13 After treatment, solids are settled in one of two 9000-gallon settling tanks. Solids are returned and 14 solidified in one of two pits,while supernatant liquid is discharged through an effluent meter to the g 15 sewer." (Permit Fact Sheet).- At present,the system operates as Mr. Holl describes. (Shaun Miller `e 16 Decl. at IT 4-9). For a considerable time,though,while construction and installation were still being 17 completed and the bulk chemical tank was being plumbed,the treatment chemicals were stored in 55- s 18 gallon drums in a separate storage area,and instead of being pumped into the treatment tank from the U 19 bulk tank,they were measured into a graduated five-gallon container and dispensed through access ports 20 at the top of the tanks. (Id, at¶8). Adding chemicals in this manner achieved the same result, the 21 chemical reactions occurred in the treatment tanks in exactly the same way they would when by 22 pumping chemicals in from the bulk storage tanks. (See,Bracewell Declaration.) During a July 3,2014 23 inspection Shaun Miller confirmed this to OCSD employee H. Ted Gerber, who noted"[w]hen asked, 24 Shaun did not expect there to be much change on the treatment methodology after the chemical addition 25 system was completed." (Francis Exh.A). 26 C. OCSD's Sampling Data,Allegedly Showing Noncompliance,Is Worthless 27 OCSD's basic contention—Klean Waters has been noncompliant in meeting the permit 28 requirements for constituents in its effluent discharge—is based on test results from sewage samples 9 OPENING BRIEF OF KLEAN WATERS,INC.,TIM MILLER,AND SHAUN MILLER 30302 73 I OCSD contends are representative of Klean Waters' discharge. OCSD is wrong. Klean Waters has 2 submitted declarations from percipient and expert witnesses as well as numerous documents that 3 establish that its effluent complied with the Permit requirements at the designated sample point. In 4 addition, Klean Waters will show OCSD's sampling is conceptually flawed and performed with so many 5 errors that any allegations of noncompliance OCSD,bases on lab results from its samples must be 6 disregarded. 7 First, OCSD's efforts to sample Klean Waters' effluent has ignored the only assured method of 8 collecting samples indisputably 100% constituted of Klean Waters effluent. The assured method is to go 9 into Klean Waters' facility and sample from the sampling point designated in the permit and set up for g 10 that very purpose. At the sampling point, all pretreatment processes have been completed;the effluent is 11 exactly what is will be discharged into the OCSD sewer. 12 But OCSD inspectors Arnold Chavez,David Yager and others who performed all of the testing 13 showing alleged permit violations did not choose to use this location to take samples. Rather,they ti o 14 collected samples from underneath a manhole from the sewer system which also had wastewater w 8 15 discharged by other entities mixed with the discharges coming from Klean Waters. The March 8-10 E 16 sampling, which is the sole noncompliance evidence alleged in the Complaint, was collected from this u 17 sewer location. The sampling was initiated after Mr. Chavez had received a tip from Klean Waters' 18 only Orange County competition, Stormwater Online, alleging that Kiewit Corp. was trying to discharge u 19 contaminated wastewater from a Los Angeles D WP generating station into OCSD's sewers,presumably 20 at Klean Waters. (Chavez Decl. at¶4; Exh. A). Mr. Chavez engaged in what was essentially a "sting" 21 operation in which he expected to catch Klean Waters violating its permit with noncompliant discharges. 22 So instead of going to the sampling point at Mean Waters,the one and only spot he could sample 23 and be certain he had only Klean Waters' effluent,Mr. Chavez worked out a fallback plan. He located a 24 manhole access to a sewer located over 500 feet away from Klean Waters' discharge location at the 25 intersection of W. Freedom and N. Pacific. (Chavez Decl, at jj 5 (manhole location), Hoenig 26 Decl.(manhole distance).) Not an ideal location,perhaps,but to Mr. Chavez, good enough. 27 But it's not good enough, not even close when OCSD seeks to impose over$2,000,000 in 28 penalties and shut down a business, as is the case here. The moment Mr. Chavez decided not to draw 10 OPENING BRIEF OF KLEAN WATERS,INC.,TIM MILLER,AND SHAUN MILLER 1030257.3 I his sample directly from the Klean Waters sample point, OCSD could not credibly assert that the 2 samples established whether Klean Waters'. discharge was compliant with its permit. 3 The sewage in the manhole Mr. Chavez accessed could have been carrying sewage from many 4 different sources. It may have been carrying sewage flow discharged upstream from Klem Waters. It 5 may have been carrying sewage from dischargers located between Mean Waters' discharge point and 6 that intersection. Mr. Yager described the presence of"the opposing lateral" sewer line new the 7 sampling location, too. (Yager Decl.Exh. B). This branch of the sewer line could deliver sewage from 8 dischargers located anywhere to the east of that intersection, and possibly up another street intersecting 9 W. Freedom west of N. Pacific(American Way). Mean Waters' expert Dr. Dwight Hoenig identified at g 10 least three dischargers that may have discharged heavy metals to the same sewer where OCSD sampled, 11 Fletcher Coatings, OCE Printing, and Merical Manufacturing and Custom Packaging. (See Hoenig 12 Declaration) Mr. Yager admits as much in his narrative of the March 9-10t' sampling,describing Klean a - 13 Waters as just"one source"to the east. (Yager Decl.Exh. B). As explained in the Bracewell 3 14 Declaration, the sewage OCSD collected and sampled is undoubtedly from multiple sources because the w � o 15 reported results indicated samples were collected throughout consecutive 24 hour periods,including [-� E 16 many hours when Klean Waters was closed and not discharging. As a result, OCSD's samples contain 17 commingled wastes from sources other than Klean Waters and there is no scientifically valid basis to S 18 assert that the results obtained from those samples show anything at all about Klean Waters' discharge. u 19 OCSD own records and descriptions of the March 8-10a' sewer sampling substantiate these 20 indications of umeliability. Mr. Yager described the sampling device as holding 24 sample bottles, 21 containing samples drawn every fifteen minutes over the course of 24 hours. (Yager Dec¶4). He 22 stated in his report(Dec. Exh. B)that all the bottles were completely filled. Then he said"[a]ll bottles 23 were then composited as one volume for samplejar filling." In other words, he poured the contents of 24 all 24 bottles into one big sample jar and sent a portion of that mixture to the lab for testing. 25 Mean Waters' expert consultant and wastewater engineer Dr. Lloyd Bracewell explains although 26 the sampling covered a 24-hour period,Klean Waters was only operating for fifteen of these hours. 27 (Bracewell Decl, at¶ 12). Therefore,nine of the 24 samples were drawn from wastewater sources that 28 did not include KZean Waters. Because of this,the composited sample from March 8-9' cannot be 11 OPENING BRIEF OF KLEAN WATERS,INC.,TIM MILLER,AND SHAUN MILLER 1030257.3 I representative of Klean Waters' discharge in Dr.Bracewell's opinion. (Id.). 2 Dr. Bracewell also explains on March 9th, Klean Waters operated from 5:00 a.m. =615:00 p.m. 3 for a total of twelve hours. (Bracewell Decl, at¶ 12). OSCD sampled, according to Mr. Yager's report, 4 from 2:00 a.m on March 9th to 2:00 a.m. on March 10c'. (Yager Decl.Exh. B). OCSD collected 22 5 samples. (Id.) The first two bottles were dry because there was no wastewater in the sewer. (Id.) So 6 only twelve of the 22 hourly samples OCSD collected during the March 9-10`'period contained any 7 wastewater, and the other samples undoubtedly contain wastewater from sources other than Klean 8 Waters, and the composited is therefore not representative of Klean Waters' discharge. (Bracewell 9 Decl. at¶ 12.) g 10 A major discrepancy also exists between the OCSD inspectors' description of the samples 11 collected and the nature of the industrial wastewater Mean Waters discharged over these two days. a 12 Klean Waters' discharge was almost exclusively from Kiewit's construction at the DWP Haynes 13 generating station, consisting of water drained from rusted cooling pipes. (Chavez Decl. at¶6; Wv 14 Bracewell Decl.,¶ 12.) But Mr. Yager described the water captured in all the samples as being black g 15 and murky,not rusty. (Yager Decl. at¶5). Both Mr. Yager and Mr. Chavez described the samples and F" E 16 the sewer water they observed on 3/8, 3/9, and 3/10 as having a"strong petroleum smell." (Yager Decl. 17 at¶ 5, Chavez Deed. at 15). The lab test results from the OCSD sampling show a significant 18 concentration of grease and oil. Dr.Bracewell explains,however,that Mr. Chavez and Mr. Yager's U 19 descriptions of the black color,murkiness, and petroleum odor of the samples are inconsistent with the 20 wastewater delivered to Klean Waters from Kiewit and actually discharged. (Bracewell Decl. at¶ 21 12(d).) Dr. Bracewell views this discrepancy as supporting his opinion"that the composited wastewater 22 samples obtained and tested by OCSD contain wastewater from sources other than Klean Waters. (Id.) 23 The sole evidence OCSD offers to prove Klean Waters' noncompliance is the test results from 24 the samples Mr. Chavez and Mr. Yager collected on March 8-10`h, but these samples do not represent 25 the actual content of Klean Waters' effluent. As evidence,they fail to prove OCSD's claim that there 26 are dangerous untreated discharges from Klean Waters' facility, so the allegation Klean Waters failed to 27 pretreat the wastewater it discharged into OCSD's sewer is unsupported. 28 OCSD's Opening Brief lists an additional set of dates when Klean Waters allegedly discharged 12 OPENING BRIEF OF KLEAN WATERS,INC.,TIM MILLER,AND SHAUN MILLER 1030257.3 I noncompliant effluent after the Complaint was filed. OCSD characterizes these discharges as"major 2 violations." (Opening Br., 15.) These samples too were collected in the same manner and apparently 3 from the same location as the sampling done in March. (Opening Brief at 15-16.) OCSD's conclusions 4 about these samples have even less factual foundation than those related to March, 2014, OCSD 5 sampled on eight days-9/17,9/18, 9/22, 9/23, 9/24, 9/25, 9/26, and 9/28. (Id.) The reports of test 6 samples from these dates all show excessive concentrations of various metals. (Id.) If accurate, the 7 reports would be troubling because some of the samples greatly exceed the limits. (Id) For instance, 8 the titanium on 9/17 is 12993.9%over the limit 2 (Id) But Klean Waters keeps records of the flow 9 meter indicating the volume of gallons discharged on each day of operation. Klean Waters discharged g 10 zero gallons on 9/17, 9/18, 9/22, and 9/24. (See Bracewell Declaration) There was also no discharge w 11 on Sunday, 9/28 because Klean Waters was closed. In other words, of the alleged 30 "major violations" 12 by Klean Waters found with samples collected from the sewer, Klean Waters was not discharging any a 13 wastewater on the dates covering 26 of those results. (Id) The lab analysis of the sewage OCSD w � 14 collected on the five days Klean Waters had no discharge are clearly not probative of any violation by z o li Klean Waters. And the sample results for the two days when Klean Waters was discharging still have E 16 comingled wastes from other sources and it is reasonable to conclude that Klean Waters is not 17 responsible for the two days of exceedances since there is no evidence of any discharge violations from 18 the permitted sample point, self-monitoring reports or OCSD's own sampling from the designated U 19 sampling point at the discharge location. Therefore,the allegations based on these samples are without 20 evidentiary support and the Hearing Officer should disregard the allegations OCSD makes in its brief 21 that Klean Waters engaged in noncompliant discharges in September,2014. 22 IV. KLEAN WATERS' DENJAL OF INSPECTION AND SAMPLING WAS BASED ON 23 MISTRUST 24 The relationship and communications between Klean Waters and OCSD became increasingly 25 26 2 The September 17,2014 sample is described in OCSD's brief as"7-2C." Klean Waters understands 27 that this code means that the sample is"for information only,"as opposed to being usable scientifically reliable evidence of the sample's contents. Since Klean Waters did not discharge any wastewater that 28 day anyway,this is only marginally significant. 13 OPENING BRIEF OF KLEAN WATERS,INC,TIM MI LLER,AND SHAUN MILLER 1030257.3 1 tense as Mom Waters received indications OCSD employees were not only contacting its clients but 2 were telling them Mean Waters was violating its permit and engaging in illegal activity. After trying 3 unsuccessfully to address this and other issues with OCSD inspectors,the inspectors' supervisor, and the 4 general manager, Klean Waters grew frustrated and mistrustful and began denying OCSD employees 5 permission to sample and review records. OCSD also complains Klean Waters denied it access to the 6 trucks of the wastehaulers delivering wastewater(see, e.g., Opening Brief at page 12, line 13),but this is 7 a red herring. Klean Waters can neither grant nor deny sample access to wastehaulers' trucks because it 8 does not own or control them. Moreover, OCSD Ordinance No. 39 gives OCSD direct authority to 9 sample these trucks through requests of the wastehaulers themselves. See, Section 208A. g 10 A. Klean Waters Management's Beliefs About OCSD Employees' Actions 11 Klean Waters' management participated in a compliance meeting led by OCSD supervisor Roya 12 Sohanaki on February 11,2014 in which they felt Ms. Sohanaki was unwilling to listen to and consider a m a` 13 their side of the story about their efforts to instal]all planned equipment and make it operational,their 14 discharges, and the difficulties imposed on them by the OSCD's imposition of a Special Condition 0 15 discussed below requiring Klean Waters to submit for OCSD review test samples and profiles for every E~ E 16 load of wastewater it wished to accept from an out-of-area source. 17 Then,in early March, 2014,Mr. Chavez, an OCSD inspector not previously assigned to Mean L 18 Waters, conducted the sting operation discussed above, leading to charges of noncompliant discharges U 19 for March 8-10,2014. Klean Waters understood Mi. Chavez had been and continued to be assigned to 20 monitor the compliance of Klean Waters' sole Orange County competitor, Stormwater Online. Klean 21 Waters also understood that OCSD was imposing many requirements on Mean Waters it did not impose 22 on the competitor. It was therefore beginning to feel to Klean Waters as though OCSD was treating it 23 differently than OCSD reportedly treated Stormwater Online and in ways that made it more difficult for 24 Klean Waters to stay in business. 25 Mean Waters also learned over the course of the next few months OCSD had contacted a large 26 number of Klean Waters' clients to investigate whether Klean Waters was accepting deliveries of 27 wastewater originating outside OCSD's service area. OCSD employees Chavez and Dean Carrico 28 admitted in May, June, and July 2014 that they contacted companies on a list Klean Waters' furnished of 14 OPENING BRIEF OF KLEAN WATERS,INC.,TIM MII.LER,AND SHAUN MILLER 10302573 I customers and potential customers located outside the OCSD jurisdiction. (Chavez and Carrico Decls.) 2 OCSD employees Mila Klienbergs and Jamie Malpede declared that they contacted Klean Waters' 3 potential customers located outside OCSD jurisdiction in June 2014. (Malpede and Klenbergs 4 Declarations) Mr. Chavez explained the official purpose of his calls by declaring"I requested and 5 received manifests from a number of these companies for wastewater loads sent to Klean Waters for 6 disposal." (Chavez Decl.) He said nothing in his declaration about informing those clients Klean 7 Waters was breaking the law. 8 During the same time period these OCSD employees and others were making these contacts, 9 Mean Waters experienced a sharp decline in its business. Mean Waters management learned about 10 OCSD's contacts from some of their clients. Based on what the clients told them and showed them,and 11 based on a sharp decline in their business. Following the March 8-10 "sting," Klean Waters' customer 12 volumes dropped precipitously. April 2014 outflows were 550,931 gallons, May 2014 dropped to a = .a a 13 373,936 gallons and June dropped to 287,019 gallons. (Shaun Miller Decl., ¶ 17.) Klean Waters W. 14 suspected OCSD employees were saying things to its customers and potential customers causing them to 15 decide not to do business or not to continue doing business with Klean Waters. [— 16 Mr. Chavez, the inspector assigned to Klean Waters' competitor who was now also scrutinizing 17 several aspects of Klean Waters' operation reported a May 15,2014 "unannounced visit"to Klean 18 Waters he made with OCSD employees David Yager and Jamie Malpede. (Chavez Deal. Exh. B). u 19 Klean Waters was by this time aware of Mr. Chavez's calls to clients and his March sting effort. Mr. 20 Chavez reported"it was stated by Sean [sic] that this inspector[Mr. Chavez]was not welcome at the 21 company and was told to leave the facility." (Id.) This is the first documentation of Klean Waters 22 refusing access to any OCSD employees. 23 Mr. Chavez also states "[d]uring this conversation, contact Rick [Klean Waters' employee] 24 questioned why this inspector[Mr. Chavez] was on the company's property as [David Yager] is the 25 `assigned' inspector for OCSD. [Mr. Yager] explained that any OCSD representative may conduct 26 official business at a permittee as needed. This inspector was also questioned as to why I have been 27 seem so frequently around the business." (Chavez Decl.Exh. B) Mr. Chavez's narrative shows Klean 28 Waters management felt he had singled Klean Waters out for special attention. And, of note,only Mr. 15 OPENING BRIEF OF KLEAN WATERS,INC.,TIM MILLER,AND SHAUN MILLER 1030257.3 I Chavez was denied access. 2 Another OCSD employee Klean Waters felt was causing it problems was Roya Sohanald, 3 supervisor of the inspectors. Mean Waters was so stymied in its efforts to communicate with 4 Ms. Sohahaki it went to the extreme of hiring an outside consultant,Dr.Attar Khan, a former state 5 water regulator, in hopes he could facilitate better interaction Dr. Khan attended an April 11, 2014 6 meeting with Klean Waters management and Ms. Sohanaki. He recalls her conduct as `very 7 unprofessional,"saying she did not seem interested in addressing or even hearing Mean Waters' 8 concerns. An e-mail between Ms. Sohanald and Tim Miller dated April 15-16, 2014 shows Mr.Miller '. 9 asking Ms. Sohanald for additional time"to address the fine situation"because Dr. Khan had to leave g 10 the country. Dr.Khan explains in his declaration his mother-in-law had suddenly become very ill. He, 11 too, had asked Ms. Sohanaki for an extension,citing the medical crisis,but she had refused. In the 12 exchange between Mr.Miller and Ms.Sohanaki, she replied to his request for a two-week time 13 extension that"I can only give you until 4:00 p,tomorrow to reach a decision if you want to resolve the S 14 noncompliance issues with OCSD in lieu of being served with an Administrative Complaint" (E-mail). afr ❑ 15 However, Dr. Khan was away in Pakistan this whole time and could not be consulted. Ms. Sohanaki E 16 seemed to Klean Waters to be inflexible and unwilling to consider other points of view as well. (See 17 Declaration of Rick Lang.) L 18 Then, on May 14, 2014, one of Mr. Miller's client contacts forwarded him an e-mail exchange V I 19 between Klean Waters client and Ms. Sohanaki. The earliest message is the initial contact 20 from Roya Sohanaki to employee Grace Pina-Garrett Ms. Sohanaki tells Ms. Pina-Garrett 21 that 22 "[a]s part of their permit condition,they[Klean Waters] are required to obtain OCSD's permission for any loads coming to their facility from 23 outside OCSD's area. As of today, OCSD has not granted Klean Waters any permission to accept wastewater from—locations outside 24 OCSD area. So all the truck loads coming from Shoshone,Death Valley, Mammoth, and Bishop were illegally accepted by Klean Waters and ?5 discharged into our sewer system without OCSD's permission." 26 Ms. Sohanaki's statement that Klean Wags was violating its permit because it had not obtained 27 28 "permission"from OCSD to accept out of area wastewater is not correct. Klean Wags was only 16 OPENING BRIEF OF KLEAN WATERS,INC.,TIM MH.LER,AND SHAUN MMLER io3ozn.s I required to"submit"information for OCSD`review,"not approval. (Permit at page 12). Ms. j 2 Schanaki's statement to Mean Waters'client mentions OCSD permission three times in three sentences, 3 each a false statement misrepresenting of the actual terms of Waters'permit. 4 Ms. Sohanaki confines her declaration to describing three compliance meetings with Klean 5 Waters,on February 11,April 8,and May 28,2014. She does not admit that she was part of the group i 6 of OCSD personnel contacting Mean Waters' customers. She fails to mention that she had scat a-mails 7 to any of Klean Waters' customers and fails to mention at all the Klean Waters had,directly and through 8 its consultant Dr.Khan,raised concerns that personality conflicts were the cause ofthe disputes between 9 OCSD and Klean Waters. But if the nature of her contact with Ms.Pina-Garrett is indicative of what g 10 other OCSD employees were.saying about Klean Waters,these communications with clients went far s 11 beyond simply inquiring about manifests and extended totelling these clients that Klean Waters was q 12 engaging in illegal conduct by doing business with Even in Ms. Sohadci's�ezchange, in f R®FC. ' 13 a different part ofthe string another—ern oyce asks that the message be forwarded to a j i e 14 supervisor,stating that the supervisor"has been informed of this contract violation before Grace notified 15 us." So clients were receiving multiple contacts from multiple OCSD personnel falsely accusing Klein 16 Waters of permit violations and engaging in illegal conduct. It is likely that if this was what Ms. - 17 Sohanaki told this Klean Waters client,it was also what she told many others and was probably typical 's 18 of what the other OCSD employees may have told Klean Waters' clients since she was their supervisor 19 and was in a position to dictate their massaging. This entirely plausible suspicion was confirmed by 20 reports to Klem Waters management that Arnold Chavez had also called clients and advised them not to 21 do business with Klean Waters. OCSD employee Jamie Malpede recorded that on a May 14,2014 site 22 visit"Shawn[sic] and Rick stated... Arnold Chavez was not allowed on the site since Arnold was 23 telling generators not to do business with us." Thw�commumcations,which Klean Waters 24 received from its customer,appears to be fraudulent misrepresentations designed to disrupt Klean 25. Waters' business--at least that is what Messrs.Miller and Lang believed was taking place. - - 26 In May,Dr.Khan was able to reach James Colston,OCSD Environmental Compliance Manager 27 and Ms. Sobanaki's supervisor,and prevailed on him to meet with Mean Waters management Both 28 W. Colston and Ms.Sobanaki confirmed this meeting to Dr.Khan. On the appointed day,the Mean 17 OPENING BRIEF OF XLEANWATER$INC.,TIM b1UER,AND SHAUN MMM i 1a3Qr5r3 I I Waters team went to OCSD's offices. Mr. Colston did not show up and did not call to explain. Shaun 2 Miller saw him walking out of the building. Mean Waters was given no explanation of Mr.Colston's 3 refusal to meet with them. After the meeting,therefor,Dr. Khan wrote Mr. Colston a letter stating"we 4 regretfully inform you that we were highly disappointed by this action." He summarized the meeting 5 that had taken place with Ms. Sohanaki after Mr. Colston failed to show, explaining that"[t]he company 6 representatives requested that the requirements regarding approval for our of the county waste streams,. 7 and certified laboratory analysis for each tanker waste load were extremely unreasonable and ... be re- 8 considered [sic]," and adding that"since these additional requirements have been imposed,the company 9 has lost almost 75% of its business, making an extreme economic hardship." g 10 Mean Waters' management's awareness of the improper and false communications with their 11 clients by Ms. Sohanaki, Mr. Chavez, and others, combined with Arnold Chavez's sting and the S 12 experience of going to a scheduled, confirmed meeting with Mr. Colston, having him not show up,and tI a13 then having to deal with Ms. Sohanaki's inflexibility on the out-of-area wastewater special permit 14 condition, taken together, explain why Klean Waters' management became convinced that OCSD was 15 treating Klean Waters unfairly and prejudicially and how this could lead to decisions not to allow OCSD 16 employees to enter their facility if all they were there to do was engage in further harassment. 17 These events also help explain the beliefs underlying statements such as the one OCSC's Jamie 's 18 Malpede recorded from Klean Waters personnel in a note from a May 14,2014 unannounced visit that 0 19 Klean Waters"accused Roya(Sohanaki) of`slander' and Rick said `she has a hard-on for us.' 20 E-mails, declarations, and notes of site visits by OCSD personnel document the level of Klean 21 Waters' managers frustration with OCSD and their belief that OCSD was treating Mean Waters 22 unfairly. An example is David Yager's note from a June 11,2014 attempted inspection and sampling. 23 Mr. Yager says that"[d]uring the visit,Tim Miller was upset with the current conditions and 24 requirements that OCSD has put on them ... Tim Miller appears that he has some valid points, but 25 would like to discuss these points with Dr. Khan and Jim Colston." (Exh. H to Yager declaration). 26 Mr. Yager added"sampling not performed due to Tim Miller's being upset in regards to the 27 current requirements and conditions that OCSD has implemented onto them. Access to daily logbooks, 28 profiles and manifests not available for viewing(Tim Miller indicating that this information should not 18 OPENING BRIEF OF KLEAN WATERS,INC.,TIM MILLER,AND SHAUN MILLER 1030251.3 I be of concern to OCSD; stated other [wastewater pretreatment businesses] out-of-county and across the 2 region are not required to supply/submit analytical information, wastewater profiles and especially 3 sampling incoming tracks." 4 As recently as September 15, 2014,Dr. Khan again tried to intercede again through a contact he 5 had at OCSD. An e-mail message from Mr. Khan showed him trying to set up a meeting with Mr. 6 Colston through Robert Gbirelli,the OCSD Assistant General Manager. Mr.Khan told Mr. Ghirelli, 7 "Klean Waters, Inc, compliance issue is going nowhere because my client needs to discuss this situation 8 with supervisory and higher level since numerous unjustified and un-reasonable [sic] requirements 9 have been imposed by Rays, Sohanaki, creating an impossible situation to operate in Orange County, g 10 and to compete with surrounding County competitors. We have made numerous requests to meet with 11 James Colston, or upper management which have all been either un-answered [sic] or denied." 12 In its Complaint(¶66) OCSD accuses Klean Waters of denying access on 11 occasions, In its a, � '� < 13 Opening Brief,page 24,Klean Waters expands the number to 14 by triple-counting May 14,2014 as j14 denial of access to records, the facility, and sampling, and by double-counting the denial on July 3,2014 x o 15 as denial of sampling and access. The District then asks the maximum penalties allowed for each of U ( E 16 these denials, $5,000 each, for a total penalty of$70,000. Such claims are unreasonable and there is no 17 justification for anything near a maximum penalty for any instance of access denial. 18 Klean Waters accepts full responsibility for denying access,which it understands are violations u 19 of the Ordinance. But it asks the Hearing Officer consider these denials in the context of the highly 20 charged relationship that developed between OCSD and Klean Waters. The evidence supports and 21 explains Klean Waters' management's belief that Ms. Sohanaki and Mr. Chavez, at least, were 22 contacting its clients,misrepresenting OCSD's conditions as requiring permission rather than review 23 and telling them they should refrain from doing further business with Klean Waters and Mem Waters 24 was engaging in illegal activity. Ms. Sohanaki appears to have been less than fully candid in her 25 declaration when stating the scope of her disclosure of her role in these misunderstandings,and it is 26 possible to see how Klean Waters' managers could have seen Mr. Chavez lingering around the facility 27 and singling them out for compliance requirements that he did not enforce on their main competitor. 28 Klean Waters has informed OCSD that it will make its facilities, records, and wastewater 19 OPENING BRIEF OF KLEAN WATERS,INC.,TIM MILLER,AND SHAUN MILLER 1030257.3 I available for inspection by any OCSD employee at any time it is open for business. Klean Water has 2 also offered OCSD the opportunity to place a permanent monitoring device inside its facility to sample 3 their effluent on a 24 hour/seven days a week basis. These good faith efforts show Kleao Waters' desire 4 resolve the differences with OCSD and reset their regulatory relationship. Unfortunately, OCSD has 5 told Mean Waters that it lacks the manpower to install a real-time permanent monitoring program of the 6 effluent, a disappointment to Klean Waters since that would solve any issue of noncompliant effluent 7 discharge. In light of these efforts and the background of legitimate concerns as to the impartiality of 8 some OCSD employees,Mean Waters asks Your Honor to penalize Klean Waters at a much lower level 9 than OCSD seeks for its denials of access and onsite sampling. g 10 V. OCSD'S SPECIAL CONDITION ON ACCEPTANCE OF WASTE FROM OUTSIDE 11 OCSD'S JURISDICTION IS UNENFORCEABLE AND MISREPRESENTED 12 A. The Special Condition is Beyond the Scope of OCSD's Authority a 13 OCSD issued a revised permit to Klean Waters on June 20, 2013 imposing a new requirement. w ' 14 In Part 4, Special Conditions, OCSD added that"[s]ampling data and customer profiles for all sources 0 15 from outside of the OCSD's service area shall be submitted for review prior to acceptance, treatment, H e 16 and discharge of wastewater from-that source." 17 Ordinance No. OSCD-39 requires, at section 302.4(D), that"[p]ermittee shall be informed of any 18 change in the permit limitations, conditions,or requirements at least forty-five(45)days prior to the U 19 effective date of change"and that"[a]ny changes or new conditions in the permit shall include a 20 reasonable time schedule for compliance." But instead of providing 45 days to become effective,this 21 revised permit went into effect 20 days before it was issued; it was dated June 20, 2013 with an effective 22 date of June 1, 2013. It did not include a reasonable time schedule for compliance; in effect, it required 23 compliance 20 days before Klean Waters even knew it had been issued. Had OCSD provided the 24 required 45 days,Klean Waters might have been able to negotiate some sort of accommodation with 25 OCSD that addressed OCSD's concerns without effectively preventing Mean Waters from accepting 26 waste from any source outside OCSD's service area. But OCSD's disregard for its own procedures 27 denied it this opportunity. Ironically, OCSD now wants to hold Mean Waters responsible for taking out 28 of county waste even where its own revised permit condition should not be enforceable under Section 20 OPENING BRIEF OF KLEAN WATERS,INC.,TIM MILLER,AND SHAUN MILLER 1030257.3 I 302.4(D). 2 OCSD asserts in the Complaint(¶80)that Section 208(D)of Ordinance No. OSCD-39 allows it 3 to impose this Special Condition but it is mistaken; Section 208 prescribes the conduct of wastehaulers, 4 not wastewater treatment plants. Section 208 is titled"Prohibition and Requirements for Wastehauler 5 Discharges to the OCSD Sewerage System and Wastehauler Station." The Ordinance further defines 6 wastehaulers as"any person carrying on or engaging in vehicular transport of waste as part of, or 7 incidental to, any business for the purpose of discharging said waste into the OCSD's system." 8 (Ordinance,section 102.89), That description does not fit Klean Waters, so Section 208(D)does not 9 apply to Mean Waters and there can be no violation of this alleged special condition. g 10 Further, the wastehauler provisions in the Ordinance do make clear that OCSD requires 11 wastehaulers to provide directly to OCSD all the information OCSD sought for review from Klem y 12 Waters through the Special Condition. Section 208(F)requires a waste-tracking form for each load 13 including "at a minimum,the name and address of the industrial wastehauler,permit number,truck 14 identification,names and addresses of the sources of waste, and volume and characteristics of waste." w 8 15 Also,the OCSD brief implies that the Special Condition means Klean Waters cannot accept out- E 16 of-area wastewater"unless authorized by the General Manager." (opening Brief, p. 21:23.) And Roya 17 Sohanaki explained the provision to Mean Waters' clients similarly, as requiring that Klean Waters 18 obtain OCSD advance percussion. But in reality, OCSD had no authority from the Ordinance to impose U 19 the Special Condition because the provision OCSD cites forjustification, section 208, applies only to 20 wastehaulers. Therefore, OCSD should not have imposed this Special Condition in the first place. It is 21 unenforceable on Mean Waters. 22 The Hearing Officer should impose no penalty on Klean Waters for failure to comply with a 23 permit provision that OCSD's authorizing ordinance does not give it the authority to impose or enforce. 24 B. Klean Waters' Attempts to Comply With the Advance Review Provision. 25 Klean Waters did not realize at the time that OCSD lacked the authority to impose this Special 26 Condition so it attempted to comply with it. This meant that an out-of-area client who wanted to bring a 27 load to Klean Waters had to first provide information, including sample results for the specific 28 wastewater load, and then wait along with Klean Waters while the OCSD contemplated whether the load 21 OPENING BRIEF OF KLEAN WATERS,INC.,TIM MILLER,AND SHAUN MILLER 1030257.3 I was acceptable. This process would be difficult under any circumstances because a wastehauler who 2 already has a load in his or her truck cannot afford to wait around for very long; time is money. To 3 make matters worse,though,Klean Waters discovered that OCSD did not respond to its submissions for 4 review. In a May 14,2014 report(Exh.A), OCSD inspector Jamie Malpede reported that"Rick and 5 Shawn [sic] stated that profiles from the waste they received had been sent to Martin approximately 5 6 months prior,but no response from OCSD was given on whether or not they could accept the waste and 7 no procedure was in place for this process." Ina July 3,2014 inspection report(Francis Exh.A), 8 OCSD employee Ted Gerber reported that Shaun Miller told him that"he has yet to receive approval or 9 disapproval from OCSD regarding any wastewater loads received." Shaun"requested modification of 10 the conditions as he has in past conversations. He expressed that his business is suffering as a result of 11 the permit conditions...:' This shows that if Mean Waters were to comply with the Special Condition as 12 interpreted by OCSD (requiring advance approval),Klean Waters and its clients would have to wait for a a 13 an indeterminate amount of time,putting both in an impossible situation. It is unreasonable to require W 14 out-of-area clients with loads of wastewater already in their tank trucks to wait weeks and months while 0 15 the District supposedly reviews information it already has obtained directly from the wastehauler. So F E 16 not only is the Special Condition outside the scope of OCSD's authority, but as applied by OCSD it also 17 imposes an unreasonable restriction on Klean Waters' operation that effectively prevents it from 18 accepting out-of-area wastewater. 0 19 C. The Special Condition As Enforced On Klean Waters Is Preempted by State Law 20 The Special Condition OCSD imposed on Mean Waters, as interpreted and applied by OCSD, 21 amounts to a total ban on Klean Waters accepting waste that originates outside the OCSD service area. 22 It has proven impossible for Klean Waters to obtain the profile and certified lab results for each potential 23 load, obtain permission from OCSD, and then receive the load during a reasonable period of time due to 24 the fact that wastehaulers cannot wait days,weeks, or months for approval to discharge, especially when 25 they can discharge without the wait at a different facility. Moreover, such a provision is cost prohibitive 26 for clients seeking to discharge small loads as the cost of certified lab results would exceed the cost of of 27 discharging the load itself. 28 "Under article XI, section 7 of the California Constitution, `[a] county or city may make and 22 OPENING BRIEF OF KLEAN WATERS,INC.,TIM MILLER,AND SHAUN MILLER 1030257.3 I enforce within its limits all local,police, sanitary, and other ordinances and regulations not in conflict 2 with general laws."' (Viacom Outdoor, Inc. v. City of Arcata(2006) 140 Ca1.App.4th 230,236.) "If 3 otherwise valid local legislation conflicts with state law,it is preempted by such law and is void." 4 (Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 Cal.3d 879, 885." A conflict 5 exists if an ordinance"contradicts"general law. (Morehart v. County of Santa Barbara(1994) 7 CaLe 6 725, 747), and an ordinance is "`contradictory' to general law when it is inimical thereto"(Sherwin- 7 Williams Co. v. City of Los Angeles(1993)4 Cal.4's 893, 898). 8 The Special Condition OCSD imposed on Klean Waters amounts to a sanitary regulation under 9 Viacom Outdoor, Inc. OCSD's Special Condition, as applied,precludes Klean Waters from accepting 10 wastewater fromjurisdictions other than OCSD. The mandate of the state law governing wastewater LL 11 treatment"is `to attain the highest water quality which is reasonable, considering all demands being 12 made and to be made on those waters and the total values involved,beneficial and detrimental, 13 economic and social, tangible and intangible."' (City of Arcadia v. State Water Res. Control Bd. (2010) 14 191 Cal. App. 4th 156, 164, as modified on denial ofreh'g(Jan. 20, 2011)(quoting Wat.Code, § c, 15 13000).) Because the Special Condition as applied has the effect of banning Klean Waters from H 'e 16 accomplishing an activity the state law seeks to encourage,the treatment of wastewater to promote clean o 17 water,the Permit Condition conflicts with state law and is preempted. 18 D. Judicial Estoppel Precludes OCSD's Argument That the Special Condition Is u 19 Enforceable 20 The doctrine ofjudicial estoppel precludes a party from taking inconsistent positions in separate 21 judicial proceedings. (Svahn Grp., Inc. v. Segal(2010) 183 Cal, App. 4th 831, 841). "Judicial estoppel 22 is intended to protect against a litigant playing"fast and loose with the courts. It seems patently wrong 23 to allow a person to abuse the judicial process by first [advocating] one position, and later,if it becomes 24 beneficial,to assert the opposite." Ibid. (internal citations omitted). 25 Judicial estoppel should apply when"(1)the same party has taken two positions; (2)the 26 positions were taken in judicial or quasi-judicial administrative proceedings;(3)the party was successful 27 in asserting the first position(i.e.,the tribunal adopted the position or accepted it as true); (4)the two 28 positions are totally inconsistent; and(5)the first position was not taken as a result of ignorance, fraud, 23 OPENING BRIEF OF KLEAN WATERS,INC.,TIM MILLER,AND SHAUN MILLER 103025]3 1 or mistake." (Intl Engine Parts, Inc. v. Feddersen & Co. (1998) 64 Cal. App. 4th 345, 351 (citing 2 Jackson v. County of Los Angeles(1997) 60 Cal.App.4th 171, 181). 3 OCSD's conduct justifies application ofjudicial estoppel here by virtue of the position it took in 4 City of Los Angeles v. County of Kern (2013) 154 Cal.Rptr.3d 122, rev'd on other grounds (2014) 59 5 Cal.4th 618. OCSD, a plaintiff, argued that state water law preempted a local ordinance which, as 6 applied, would preclude plaintiffs from spreading biosolid waste from counties other than Kern on 7 unincorporated farmland in Kem County. The plaintiffs—including OCSD—succeeded with this 8 position;the Court ruled that they would likely prevail in seeking an injunction based on it. If this 9 argument were applied to the facts in this dispute and OCSD took the same position, its argument would 8 10 be the same as Klean Waters,' state water law preempts a local regulation that,as applied,precludes 11 Klean Waters from accepting waste from counties other than Orange. OCSD must abandon its position 12 on the Special Condition because it conflicts with its own position on transportation of out of county 13 wastes in the City of Los Angeles litigation. wv 14 So OCSD has taken two positions, the first in a judicial proceeding and the second in a judicial c � o" 15 quasi-judicial administrative proceeding;it succeeded in asserting the first position. City of Los Angeles, E 16 supra at page 142 ("we conclude that the superior court was correct when it determined that plaintiffs 17 likely will succeed on the merits of their ... preemption claim"). OCSD's position in City of Los s 18 Angeles is totally inconsistent with its position in this dispute. Moreover, OCSD's position in the U 19 judicial proceeding was advocated by the very same counsel representing OCSD in this dispute, so it is 20 unlikely that its position in the first proceeding was the result of ignorance, fraud, or mistake. 21 All the requirements for application of the doctrine ofjudicial estoppel are met. Application of 22 the doctrine forecloses OCSD from arguing in this dispute that state law does not preempt enforcement 23 of the Special Condition OCSD imposed on Klean Waters that, as applied,prevented Klean Waters from 24 accepting wastewater from outside OCSD's jurisdiction. 25 VI. CONCLUSION 26 Klean Waters has been pretreating wastewater and discharging in compliance with the terms of 27 its permit. OCSD's evidence of noncompliance is not at all credible. Klean Waters limited OCSD's 28 access to inspection and sampling for a period of time because it believed OCSD employees were 24 OPENING BRIEF OF KLEAN WATERS,INC.,TIM MILLER,AND SHAUN MILLER 1030257.3 I8 1 damaging its business and reputation and making misstatements to its clients,facts supported by the 2 very evidence put forth in this case. Regardless, Klean Waters now understands its obligations under the 3 law and intends to comply with them. Mean Waters has explained that its denial of access was based on 4 the belief that OCSD employees were spreading the story among its customers that it was engaged in 5 illegal activity. Klean Waters has presented evidence that the employees actually were doing this,and 6 as a result, its denial is understandable. The Special Condition OCSD applied to Klean Waters is 7 beyond the scope of the authority granted to OCSD by the relevant section of the Ordinance and is preempted by state law,and OCSD is estopped from arguing against preemption by application of the 9 doctrine of judicial estoppel. The Hearing Officer should rule against OCSD on its Complaint and enter g 10 judgment in Klean Waters' favor. I I DATED: October 21, 2014 TUCKER ELLIS LLP 12 / a m j //' 13 ;;�� i s By: Ie 14 Matthew I. Kaplan g IS Attorneys for KLEAN WATERS,INC., T'IM MILLER,and SHAUN MILLER U 17 18 U 19 20 21 22 23 24 25 26 27 28 25 OPENING BRIEF OF KLEAN WATERS,INC,TIM MILLER,AND SHAUN MILLER 1030257.E I PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 I am employed in the County of Los Angeles. I am over the age of eighteen years and not a party to the within entitled action. My business address is 515 South Flower Street, Forty Second Floor 4 Los Angeles, CA 90071. 5 On October 21, 2014,I served the foregoing document(s) described as OPENING BRIEF OF KLEAN WATERS,INC. TIM MILLER,AND SHAUN MILLER on the interested party(im)in this 6 action as follows: 7 [See Attached Service List.] 8 O BY MAIL: By placing a true copy thereof enclosed in a sealed envelope(s)addressed as above, and placing each for collection and mailing on that date following ordinary business practices. I 9 am readily familiar with this business's practice for collecting and processing correspondence for trailing. On the same day that correspondence is placed for collection and mailing,it is g 10 deposited in the ordinary course of business with the U.S.Postal Service in Los Angeles, 'S California,in a sealed envelope with postage fully prepaid. I 11 -� (X) BY OVERNIGHT DELIVERY: I enclosed the documents in an envelope or package provided • 12 by an overnight delivery carrier and addressed as noted below. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight 13 delivery carrier. a W14 ( ) BY FACSIMILE: Based on agreement of the parties to accept service by fax transmission,I faxed the documents to the persons at the fax numbers listed below. The telephone number of ❑ 15 the sending fax machine was 213.430.3409. The sending facsimile machine issued a transmission report confirming the transmission was complete and without error. A copy of that F 16 report is attached. 17 O BY E-MAIL,OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement 'S of the parties to accept service by e-mail or electronic transmission,I caused the documents to be 18 sent to the persons at the e-mail addresses listed below. I did not receive, within a reasonable time after the transmission,any electronic message or other indication that the transmission was 19 unsuccessful. 20 ( ) STATE: I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 21 22 Executed on October 21, 2014, at Los Angeles, California. 23 �. 24 25 Anna-Maria Dukeslaw 26 27 28 PROOF OF SERVICE 014100.000001/1030662.1 I SERVICE LIST 2 In the matter of Klean Waters, Inc. Tim Miller, and Shaun Miller 3 Industrial Wastewater Discharge, Permit No. 42-1-841 4 Bradley R.Hogin Attorneys for Orange County Sanitation bhogin@wss-law.com District 5 Rica R. Haget- rhager@wss-law.com 6 Woodruff, Spradlin& Smart 7 555 Anton Boulevard, Suite 1200 Costa Mesa,CA 92626-7670 8 Tel: (714) 558-7000 Fax: (714) 835-7787 9 g 10 11 s 12 a 13 a 14 w wA 15 16 3 17 18 U 19 20 21 22 23 24 25 s ws 26 27 28 2 PROOF OF SERVICE 014100.000001/1030662.1 I WOODRUFF, SPRADLIN& SMART, APC BRADLEY R. HOGIN— State Bar No. 140372 2 bhogin wss-law.com RICIA . HAGER—State Bar No. 234052 3 rhager@wss-law.com 555 Anton Boulevard, Suite 1200 4 Costa Mesa, CA 92626-7670 Telephone: (714) 558-7000 5 Facsimile: (714) 835-7787 6 Attorneys for ORANGE COUNTY SANITATION DISTRICT 7 8 9 10 11 In the matter o£ ORANGE COUNTY SANITATION DISTRICT'S CORRECTED OPENING 12 BRIEF a 13 Klean Waters,Inc. Tim Miller, and Shaun Miller `NOTICE OF ERRATA FILED CONCURRENTLY HEREWITH] 14 p" c Industrial Wastewater Discharge Date: November 6, 2014 15 Permit No. 52-1-841 Time: 10:00a.m. $ Location: District's Administrative 16 Office 10844 Ellis Avenue 17 Fountain Valley, CA 92708 18 Hearing Officer: Roberta Larson 19 20 21 22 23 24 25 26 27 28 1042179.1 I TABLE OF CONTENTS 2 Page 3 I. Introduction ....................................................................................................................1 4 II. Standard of Review ........................................................................................................1 5 III. Statement of Facts ..........................................................................................................1 6 A. The National Pretreatment Program Protects Public Health and Safety.............I B. The District Must Implement the National Pretreatment Program.....................2 7 C. The District's Pretreatment Program ...................................................................3 8 D. The Klean Waters Permit Application ................................................................4 9 E. The Klean Waters Permit ....................................................................................5 10 F. The Enforcement History ....................................................................................7 11 IV. Klean Waters Has Systemically Violated the Pretreatment Program and Permit........17 12 A. Klean Waters FIas Denied Requests to Inspect and Sample at the Facility ... ..17 13 B. Klean Waters Has Failed and Refused to Provide the Required Pretreatment.19 s< C. Klean Waters Has Accepted Unauthorized Wastewater...................................21 -F w 14 V. The District is Authorized to Revoke the Permit and Impose Civil Penalties .............22 om � 15 s A. The Permit Should Be Revoked ........................................................................23 16 B. The Maximum Civil Penalties Should Be ILnposed..........................................23 17 C. Tim Miller and Shaun Miller Should Be Held Personally Liable.....................25 18 VI. Conclusion....................................................................................................................26 19 20 21 22 23 24 25 26 27 28 i 1042179.1 I TABLE OF AUTHORITIES 2 Page 3 STATE CASES 4 Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d 314, 324................................................ 1 5 People v. International Steel Corporation (1951) 102 Cal.App.2d Supp. 935.........................25 6 People v. Matthews (1992) 7 Cal.App.4th 1052........................................................................25 7 People v. Roscoe (2008) 169 Cal. App.4th 829................................................................... 25, 26 8 Sea Horse Ranch, Inc. v. Superior Court(1994) 24 Cal.App.4th 446......................................25 9 FEDERALSTATUTES 10 33 U.S.C. section 1317(b)(1).......................................................................................................2 11 33 U.S.C. section 1342 ................................................................................................................ 1 12 STATE STATUTES 13 Government Code section 54740.5(d)(3).................................................................................22 ? s, .z ® 14 Government Code section 547405(c).......................................................................................23 omff" 15 REGULATIONS 16 40 C.F.R. section 403.12(I)(1).....................................................................................................5 17 40 C.F.R. section 403.4 ............................................................................................................... 3 18 40 C.F.R. section 403.5 ...............................................................................................................2 19 40 C.F.R. section 403.5(c)........................................................................................................... 3 20 40 C.F.R. section 403.6 .........................................................................................................2, 20 21 40 C.F.R. section 403.8(b)...........................................................................................................4 22 40 C.F.R. section 403.8(f)(1)(iii)................................................................................................. 3 23 40 C.F.R. section 403.8 1 iii B 3 24 40 C.F.R. section 437.2(h) 20 ......................................................................................................... 25 40 C.F.R. section 437.41(a).......................................................................................................20 26 40 C.F.R. section 437.41(a)(1) 20 .................................................................................................. 27 40 C.F.R. section 437.41(c)................................................................................................. 17, 18 28 40 C.F.R. section 437.47 (a)(2)................................................................................................. 20 ii 1042179.1 I TABLE OF AUTHORITIES 2 page 3 40 C.F.R. section 437.47(a)(2) .................................................................................................... 6 4 40 C.F.R. section 437.47(a)(4) ............................................................................................ 17, 18 5 6 7 8 9 10 11 12 s 13 14 15 3 � 16 17 18 19 20 21 22 23 24 25 26 27 28 1042179.1 1 I. Introduction 2 Klean Waters, Inc. has failed and refused to comply with some of the most 3 fundamental requirements of the District's Pretreatment Program and its Industrial 4 Wastewater Discharge Permit. District staff therefore recommends that Klean Waters' 5 Permit No. 52-1-841 be revoked. District staff also recommends that administrative civil 6 penalties in the minimum amount of$2,055,000 be imposed jointly and severally on Klean 7 Waters, Inc., Tim Miller, and Shaun Miller. 8 II. Standard of Review 9 The preponderance of the evidence standard applies to this proceeding. (Resolution 10 No. OCSD 98-14, Rules of Procedure for Permit Suspension, Permit Revocation, 11 Administrative Civil Penalties, Appeals and Other Administrative Proceedings Before the 12 General Manager.) A preponderance of the evidence means "evidence that has more s 13 convincing force than that opposed to it." (Glage v. Hawes Firearms Co. (1990)226 14 Cal.App.3d 314, 324.) r „�s otlg$ 15 HI. Statement of Facts 3 16 A. The National Pretreatment Program Protects Public Health and Safety 17 Generally, Publicly Owned Treatment Works ("POTWs") collect wastewater from 18 homes, commercial buildings, and industrial facilities and transport that wastewater through 19 a collection system to a treatment plant. After treatment is complete, effluent is discharged 20 to a receiving water body such as a stream, creek, river, lake, estuary or ocean and residual 21 biosolids are reclaimed, reused through land application, or disposed. For purposes of the 22 Clean Water Act, a POTW is a direct discharger into the nation's waters, and its discharge 23 must meet certain effluent limitations included in a permit issued to the POTW under the 24 National Pollutant Discharge Elimination System ("NPDES"). (33 U.S.C. § 1342.) 25 POTWs are generally designed to treat conventional pollutants that are expected to be 26 present in domestic discharges. POTWs, however, are not designed to treat toxic or non- 27 conventional pollutants that are present in non-domestic discharges. Therefore,pollutants 28 that can be present in non-domestic discharges can interfere with the operations of a POTW, 1 ma2rro.1 I or pass through a POTW without adequate treatment, thereby causing noncompliance with a 2 POTW's NPDES permit limits and having detrimental effects on the water quality of the 3 receiving water body as well as the reclamation and reuse of residual biosolids. (40 C.F.R 4 § 403.3.) 5 To protect public health, safety, and receiving waters, therefore, the Clean Water Act 6 established the National Pretreatment Program (the "Program"). The Program is designed to 7 reduce, eliminate, or alter the nature of pollutants in wastewater through pretreatment prior 8 to introducing such wastewater to a POTW. Under the Program, the Environmental 9 Protection Agency ("EPA") is authorized to establish pretreatment standards to prevent the 10 discharge of any pollutant through a POTW that interferes with,passes through,or is 11 otherwise incompatible with a POTW. (33 U.S.C. § 1317(b)(1).) The pretreatment 12 regulations are therefore preventive in nature. 13 EPA has established two types of pretreatment standards: "National Pretreatment o s LLHws 14 Standards" and "Categorical Pretreatment Standards." The National Pretreatment Standards o`° $ 15 generally include"Prohibited Discharges"which are the discharge of any pollutant to the 3 16 sewers from any industrial user that causes pass through or interference, or exceeds local 17 limits developed by a POTW as described below. (40 C.F.R. § 403.5.) 18 The Categorical Pretreatment Standards are uniform national standards for specific 19 categories of industrial users which limit the discharge of specified toxic and non- 20 conventional pollutants to a POTW. These standards are based on the best available 21 technology. (40 C.F.R. § 403.6.) 22 B. The District Must Implement the National Pretreatment Program 23 The District is a POTW responsible for collecting, treating, disposing, and recycling 24 wastewater from residential, commercial, and industrial sources within a 471-square mile 25 service area located in northern and central Orange County. The District's treated effluent is 26 either discharged to the ocean or delivered to the Orange County Water District for further 27 treatment and reclamation. (NPDES Permit,District Ex. 1,p. 7; Declaration of Jaynes E. 28 Colston, ¶3, Ex. A.) 2 10421 N.I I Under the Program, the District must adopt its own pretreatment program to control 2 discharges from non-domestic sources. As a part of its pretreatment program,the District 3 must implement the National Pretreatment Standards and the Categorical Pretreatment 4 Standards. Additionally, the District must develop local limits that take into account site- 5 specific factors such as the status of its receiving waters. The local limits may be more 6 stringent than the Categorical Pretreatment Standards. (40 C.F.R. §§ 403.5(c),403.4.) The 7 District enforces the Prohibited Discharges, the Categorical Pretreatment Standards, and the 8 local limits. 9 Further, the District must issue individual permits to significant industrial users which 10 include those industrial users (1) subject to the Categorical Pretreatment Standards; (2) 11 discharging more than 25,000 gallons per day; (3) contributing a process wastestream which 12 makes up 5 percent or more of the average dry weather hydraulic or organic capacity of the 13 POTW Treatment plant; or(4) determined to be significant based on a reasonable potential c_ 3� 14 for adversely affecting the POTW s operation or for violating any pretreatment standard or g«�s 15 requirement. (40 C.F.R. § 403.8(f)(1)(iii), 403.3(v).) The permits must establish effluent 3 16 limits in addition to monitoring, sampling, reporting, notification, and recordkeeping 17 requirements. (40 C.F.R. § 403.8(f)(1)(iii)(B).) 18 In addition, the District's NPDES permit requires the District to implement its adopted 19 pretreatment program throughout the District's service area, including contributing 20 jurisdictions. (NPDES Permit, District Ex. 1, §§ V, p. 12; VI(C)(4)(c)(2), pp. 38; 21 Declaration of James E. Colston; ¶4, Ex. A.) The District is subject to enforcement actions, 22 penalties, fines or other remedies imposed by the U.S. Environmental Protection Agency and 23 / or the California Regional Water Quality Control Board, Santa Ana Region, for the failure 24 to properly implement pretreatment requirements. (NPDES Permit, District Ex. 1, § 25 VI(C)(4)(c)(1),pp. 37; Declaration of James E. Colston, ¶4, Ex. A.) 26 C. The District's Pretreatment Program 27 The District's Pretreatment Program, and the Districts authority to enforce the 28 Pretreatment Program, is set forth in the District's Wastewater Discharge Regulations, 3 1042179.1 I District Ordinance No. 39 (the "Ordinance"). The fees and charges applicable to industrial 2 users are set forth in Ordinance No. OCSD-40 (the "Fee Ordinance"). The District's 3 Pretreatment Program has been approved as required by 40 C.F.R. section 403.8(b). 4 (NPDES Permit, District Ex. 1, § V,p. 12; Declaration of James E. Colston, ¶5,Ex.A.) 5 Prior to discharging to the District's sewerage facilities, a permit must be obtained by 6 the industrial wastewater discharger from the District pursuant to the terms and conditions 7 set forth in the Ordinance. (Ordinance, § 301.) The District generally issues five classes of 8 discharge permits. (Ordinance, § 301(B).) As relevant here, a Class I Wastewater Discharge 9 Permit is issued to any user that is: subject to Categorical Pretreatment Standards; or 10 discharging wastewater which averages 25,000 gallons per day or more of regulated process 11 water; or discharging wastewater determined by the District to have a reasonable potential 12 for adversely affecting the District's operation or for violating any pretreatment standard, 13 local limits, or discharge requirement; or discharging wastewater which may cause, as ay3� 14 determined by the General Manager, pass through or interference with the District's system. oms 15 (Ordinance, § 302(C).) 3 16 The District may deny a permit application if the applicant fails to establish to the 17 District's satisfaction that adequate pretreatment equipment is included within the applicant's 18 plans to ensure that discharge limits will be met. (Ordinance, § 302.1(E).) The terms and 19 conditions of a permit issued pursuant to the Ordinance may be modified during the life of 20 the permit in the sole determination of the General Manager based on, among other things, 21 the discharger's current or anticipated operating data or a determination by the General 22 Manager that such a modification is appropriate to further the objectives of the Ordinance. 23 (Ordinance, § 302.4(A).) 24 D. The Klean Waters Permit Application 25 On September 27, 2012, Klean Waters applied to the District for a Class I Wastewater 26 Discharge Permit(the "Application"). As stated in the Application, Klean Waters planned 27 to operate a centralized waste treatment facility at 314 W. Freedom Avenue within the City 28 of Orange (the "Facility"). As a centralized waste treatment facility, Klean Waters planned 4 I 2179.1 I to treat non-hazardous industrial wastewater generated offsite, and to discharge it to the 2 sewer system. The Application stated that the facility would operate five days per week, 3 with a total of 260 production days per year, and anticipated an industrial discharge of 4 25,000 to 100,000 gallons per day. Klean Waters planned to commence discharging by 5 November 1, 2012. The Application was signed by Tim Miller as the responsible corporate 6 officer pursuant to 40 C.F.R. section 403.12(l)(1). (Application, District Ex. 2,pp. 1-2; 7 Declaration of Martin Holl, ¶ 3, Ex. A.) 8 The Application included detailed drawings showing Klean Waters'planned 9 pretreatment system. The system included: two 6,500 gallon unloading tanks; eight 6,000 10 gallon storage tanks; ten 6,000 gallon process tanks; five 220 gallon chemical tanks; and two 11 9,000 gallon settling tanks. (Application, District Ex. 2; Declaration of Martin Holl,14, Ex. 12 A.) The Application indicated that the chemicals to be used in the pretreatment process were 13 sodium hydroxide, sulfuric acid, aluminum sulfate, cationic polymers, and anionic polymers. s s8 14 (Application, District Ex. 2, p. 2; Declaration of Martin A. Holl, 13,Ex. A.) tpi g°�C8 15 The pretreatment system was intended to operate as follows. Wastewater generated 3 16 offsite would be trucked into the Facility and unloaded into one of the unloading tanks. The 17 wastewater would then be pumped into one of the storage tanks, then subsequently into one 18 of the process tanks for treatment with sodium hydroxide, sulfuric acid, aluminum sulfate, 19 cationic polymers, and anionic polymers, as required. After treatment, solids would be 20 settled in one of the two settling tanks. The solids would be returned and solidified in one of 21 two pits, and the treated wastewater would be discharged through an effluent meter to the 22 sewer. (Permit Fact Sheet, District Ex. 3, p. 1; Declaration of Martin A. Holl,15, Ex. B.) 23 E. The Klean Waters Permit 24 On January 21, 2013, the District issued Industrial Wastewater Discharge Class I 25 Permit No. 52-1-841 to Klean Waters (the "Initial Permit"). The Initial Permit had an 26 effective date of January 1, 2013. The Initial Permit conditionally authorized Klean Waters 27 to discharge industrial wastewater resulting from the treatment of metal-bearing waste, oily 28 waste, and organic waste from the Facility into the sewer system tributary to the District's 5 [042[79.1 I sewerage facilities. The Initial Permit included a flow base of 25,000 gallons per day and 2 imposed effluent discharge limits, including both concentration limits expressed as 3 milligrams per liter(mg/L) and mass emission rate limits expressed as pounds per day 4 (lbs/day). (Initial Permit—Part 1: Effluent Limits and Flow Basis, District Ex.4, p. 2; 5 Declaration of James E. Colston, 16, Ex. B.) Discharging from the Facility did not actually 6 begin until the last week of May 2013. 7 The Initial Permit imposed a number of special conditions. Pursuant to these 8 conditions, Klean Waters must maintain sampling data and customer profiles in order to 9 verify that Klean Waters is only accepting and treating non-hazardous waste at the Facility. 10 These data and profiles must be provided for review upon request by the District. (Initial 11 Permit: Part 4 — Special Conditions for Permit No. 52-1-841, District Ex. 4,p. 13; 12 Declaration of James E. Colston, ¶7, Ex. B.) The Initial Permit is subject to all provisions of 13 the Ordinance, and is subject to enforcement under the Ordinance in addition to State and s8 ..a 14 Federal law. (Initial Permit: Part 3 - Standard Conditions, District Ex. 4,p. 11;Declaration oa g m c 15 of James E. Colston,¶7, Ex.B.) 16 On June 10, 2013, Klean Waters requested category assignment to Centralized Waste 17 Treatment Facility, Subpart D. This category includes the processing of waste under 40 18 C.F.R. Part 437, Multiple Wastestreams Subcategory. (Request for Category Assignment, 19 District Ex. 5, p. 1; Declaration of Martin A. Holl, ¶6, Ex. C.) On that same day, pursuant to 20 40 C.F.R. section 437.47(a)(2), Klean Waters provided an Initial Certification statement to 21 the District describing the Klean Waters pretreatment system. The Initial Certification 22 stated, "[a]s per our plans and specifications, we are a batch treatment facility where each 23 load of wastewater is segregated for individual treatment to meet effluent limits." (Initial 24 Certification, District Ex. 6,p. 1; Declaration of Martin A. Holl, 17, Ex. D.) 25 After the Initial Permit was issued, Klean Waters approached the District regarding 26 the potential receipt, treatment, and discharge of wastewater from Molycorp, a rare earth 27 mine. Following extensive discussions, and the establishment of sampling protocols,the 28 District approved Klean Water's receipt, treatment, and discharge of wastewater from 6 1042179.1 I Molycorp. (Permit Fact Sheet (Revision), District Ex. 7, p. 1; Declaration of Martin A. Holl, 2 18, Ex. E) On June 28, 2013, in response to many of the issues raised by Klean Waters' 3 acceptance and discharge of Molycorp wastewater, the District revised the Initial Permit. 4 The revisions became effective on June 1, 2013. (The revised Initial Permit is hereinafter 5 referred to as the "Permit".) The revisions increased the flow base from 25,000 gallons per 6 day to 100,000 gallons per day. (Permit, District Ex. 8; Declaration of James E. Colston,¶ 8, 7 Ex. C.) 8 The revisions also imposed several additional special conditions authorized per 9 Section 302.2(B)(5) of the Ordinance. Among other things, sampling data and customer 10 profiles for all sources from outside the District's service area must be submitted for review 11 by the District prior to Klean Waters' acceptance, treatment, and discharge of wastewater 12 from any such source. In addition, Klean Waters is required to inform customers that the 13 District reserves the right to inspect and sample the source of any wastewaters discharged s 14 into the District's system upon reasonable notification. All other conditions of the Initial <$ 15 Permit remained the same in the Permit. (Permit: Part 4 — Special Conditions for Permit No. 16 52-1-841, District Ex. 8,p. 13; Declaration of James E. Colston, 18, Ex. C.) 17 F. The Enforcement History 18 On June 6, 2013, District staff inspected the Facility. Staff noted that Klean Waters 19 had started receiving and storing wastewaters onsite. This included water from MolyCorp's 20 mineral ore extraction process and other organic process water. The Facility's processing 21 and pretreatment system were still in the installation process. (Inspection and Data Report 22 (Event No. 14596), District Ex. 9, p. 2; Declaration of David M. Yager, 13, Ex.A.) 23 On November 18, 2013,Klean Waters submitted a list of potential customers to the 24 District, including customers from outside the District's service area. Klean Waters, 25 however, did not provide any sampling data as required by the Permit. (November Customer 26 List, District Ex. 10, Filed Under Seat.) As a result, the District did not authorize Klean 27 Waters to accept waste from these or any other customers from outside of the District's 28 service area. (Declaration of James E. Colston, 19.) 7 IN2179.1 I On January 3, 2014, the District conducted an inspection of the Facility. District staff 2 noted that the treatment chemical tanks were not connected to the process tanks, and that 3 these chemical tanks were empty. District staff did not find any of the chemicals that were 4 supposed to be used in the Klean Waters' pretreatment system at the Facility. (Declaration of 5 Arnold Chavez,IN 3, 10.) 6 On January 20, 2014, the District issued a Notice of Violation to Klean Waters 7 ("January Notice"). Based on the District's sampling at the Facility in the month of July 8 2013, Klean Waters' discharge violated the monthly average limits in the Permit regarding 9 copper. Klean Waters was directed to correct the copper exceedance problem. (January 10 Notice,District Ex. 11; Declaration of Jaynes E. Colston,¶ 10, Ex. D.) 11 On February 11, 2014, a compliance meeting was held at the District with Klean 12 Waters. District staff in attendance included Roya Sohanaki, Martin Holl and David Yager. } 13 Tim Miller attended on behalf of Klean Waters. At that meeting,District staff directed e 14 Klean Waters to install and make operational its pretreatment system no later than February g s 15 28, 2014, including chemical feed pumps, pH adjustment systems, and a treatment system to 16 remove organics from waste streams. District staff informed Klean Waters that,pursuant to 17 the Clean Water Act and the Ordinance, dilution is not a substitute for treatment. 18 (Declaration of Roya Sohanaki, ¶ 3.) 19 On March 7, 2014, a representative of Stormwater Online contacted the District. The 20 representative indicated that Stormwater Online had been approached about discharging 21 wastewater for Kiewit. Stormwater Online tested the wastewater and determined that it 22 contained excessive pollutants and that they could not treat it to acceptable levels for 23 discharge to the District's facilities. Stormwater Online's sampling of the wastewater showed 24 chromium in excess of applicable limits. Stormwater Online believed that approximately 25 630,000 gallons of this wastewater was instead being transported to Klean Waters for 26 discharge. (Declaration of Arnold Chavez, ¶ 4.) 27 On March 8, 2014, the District investigated the information provided by Stormwater 28 1 Online. District staff arrived in the vicinity of the Facility and observed tanker trucks 8 1042179.1 I arriving and departing from the Facility. District staff set up a sampler downstream of the 2 Facility in the manhole structure on the east side of West Freedom Avenue in the City of 3 Orange. A heavy sewer flow from the east was observed at the time the sampler was placed 4 in the manhole. An area trap indicating the location of the sampled manhole is provided in 5 Figure 1. (Inspection Data Report (Event No. 16266), District Ex. 12, Declaration of David 6 M. Yager, ¶4, Ex. B; Inspection Data Report (Event No. 16267), District Ex. 13; 7 Declaration of David M. Yager, ¶ 8, Ex. C.) 8 From March 8, 2014 to March 10, 2014, the District's sampler detected the following 9 discharge violations: 10 Daily Over Over 11 Sample Concentration Maximum Violation Date Constituent Limit Limit 12 Type (mg/1) Limit Type (mg/1) N 13 (mg/1) °g :< 14 3/8-9/2014 I Chromium 1.48 0.746 0.734 98.4 Major 15 3/8-912014 1 Copper 1.53 0.500 1.030 206 Major 3 16 3/8-9/2014 1 Titanium 0.16 0.095 0.065 68.4 Major 17 3/9-10/2014 1 Copper 1.80 0.500 1.300 260 Major 18 19 (March Sampling Results, District Ex. 14; Declaration of David M. Yager, 19,Ex. D.) 20 On March 11, 2014, District staff contacted Klean Waters to determine the source of 21 the wastewater that was discharged. Klean Waters informed District staff that the 22 wastewater was from a construction project at the City of Los Angeles Department of Water 23 &Power("DWP")Haynes Generating Station located at 6801 East 2nd Street,Long Beach, 24 California 90803. (Declaration of Martin A. Holl, ¶ 9.) 25 District staff contacted DWP to determine the source of the wastewater. DWP stated 26 that it was in the process of expanding generators at the Haynes Generating Station. DWP 27 stated that the work was performed by Kiewit. District staff then contacted Kiewit. Kiewit 28 indicated that the water was purged from the Station's cooling system lines. The water had 9 1042179.1 I been added to the cooling system prior to the addition of any rust inhibitor which resulted in 2 corrosion of the carbon steel pipelines. At DWP's direction, the lines were flushed to clear 3 any residual rust materials. Approximately 630,000 gallons of wastewater were captured and 4 stored in temporary storage tanks on-site. The storage tanks were emptied into transporter 5 trucks and hauled to the Facility. Kiewit indicated that approximately 132 truckloads were 6 shipped to Klean Waters. (Continuation of Inspection Reports 16266 and 16267; District Ex. 7 15;Declaration of Arnold Chavez, 16, Ex. A.) 8 On March 11, 2014, District staff contacted Klean Waters to discuss the discharge. 9 Klean Waters presented an analysis showing that the discharge had a low level of a single 10 constituent, copper. In addition, Klean Waters presented hand-written results dated March 6 11 through March 8, 2014 indicating that all constituents complied with effluent limits in the 12 Permit. (Declaration of Martin A. Holl,¶ 10.) 13 On March 24, 2014,pursuant to Section 615 of the Ordinance,the District issued an �a3 14 Order to Cease Noncompliant Discharges to Klean Waters the "March Order" The March LL�w P • g ( )• o a 15 Order was based on the downstream sampling results from March 8, 2014 to March 10, 3 � 16 2014. The March Order directed Klean Waters to cease noncompliant discharges to the 17 District's sewerage facilities. In addition, the March Order was based on the acceptance and 18 discharge of wastewater from outside the District's service area by Klean Waters without 19 prior permission from the District as required by the Permit. The March Order directed 20 Mean Waters to attend a compliance meeting at the District on April 8, 2014,to discuss 21 corrective measures to be implemented by Klean Waters. (March Order, District Ex. 16; 22 Declaration of James E. Colston, ¶ 11, Ex. E.) 23 On April 3, 2014, Klean Waters submitted an updated customer list to the District. 24 The list, however,was not accompanied by any sampling as required by the Permit. (April 25 Customer List, District Ex. 17, Filed Under Seal.) Again, the District did not authorize 26 Klean Waters to accept waste from these or any other customers from outside of the 27 District's service area. (Declaration of James E. Colston, ¶ 12.) 28 10 10421 N.1 1 On April 8, 2014, the District conducted a compliance meeting with Klean Waters. 2 District staff in attendance included Roya Sohanaki, Arnold Chavez, and David Yager. Tim 3 Miller, Rick Lang and Athar Kahn attended on behalf of Klean Waters. At this meeting, the 4 District addressed Klean Waters' continued failure to implement its pretreatment system and 5 its failure to obtain the District's authorization prior to accepting and discharging out-of- 6 jurisdiction waste. (Declaration of Roya Sohanaki, ¶4.) 7 On April 9, 2014, District staff inspected the Cabrillo Power Plant located in 8 Carlsbad, California. Manifests were provided showing that approximately 42,750 gallons 9 were sent to Klean Waters from February to March of 2014. (Declaration of Arnold Chavez, 10 17.) On April 11, 2014, District staff inspected Environmental Recovery Services, Inc. 11 ("Enviroserv") located in Gardena, California. Manifests provided by Envirosery indicated 12 that three (3) shipments in the approximate amount of 9,800 gallons were sent to Klean 13 Waters in February of 2014 and eight(8) shipments in the approximate amount of 35,700 a8 14 gallons were sent to Klean Waters in March of 2014. The wastewater analysis provided by LL��F o" 15 Envirosery for typical effluent produced by Envirosery showed significant levels of heavy 16 metals. (Declaration of Arnold Chavez, 18.) 17 On April 17, 2014, District staff conducted a compliance inspection of the Facility. 18 During this inspection, District staff determined that the Facility still did not have 19 pretreatment equipment installed and made operational to treat and remove heavy metals and 20 organics in wastewater accepted by Klean Waters for discharge into the District's collection 21 system. Again,the chemical tanks were not connected to the process tanks, and the chemical 22 tanks were empty. (Inspection Report Dated 4/17/14, District Ex. 18.) 23 On April 28, 2014, pursuant to Section 615 of the Ordinance, the District issued an 24 "Order to Cease Noncompliance with the Permit Requirements and Conditions"to Klean 25 Waters (the "April Order"). The April Order advised Klean Waters that its discharge is 26 subject to federal pretreatment standards which were established using the Best Available 27 Technology for centralized waste treatment facilities. The District indicated that it would not 28 approve the acceptance of wastewaters by Klean Waters for which Klean Waters did not 11 H42199.1 1 have adequate pretreatment. Based on the District's inspection of the Facility on April 17, 2 2014, the District determined that the Facility does not have adequate pretreatment 3 equipment to treat and/or remove heavy metals and organics detected in the wastewaters 4 currently accepted at the Facility. Klean Waters was directed to stop accepting wastewater 5 containing constituents exceeding the Permit discharge limits until appropriate pretreatment 6 system(s)have been installed and made operational onsite. The April Order further directed 7 Klean Waters to cease the acceptance of wastewater from sources outside of the District's 8 service area without prior District review and written approval. (April Order,District Ex. 9 19; Declaration of James E. Colston, ¶ 13, Ex. F.) 10 On May 14, 2014,District staff arrived at the Facility for a compliance inspection. 11 Shaun Miller stated that District staff member Arnold Chavez was not permitted past the 12 lobby of the Facility. Other District staff present at the time asked to review Klean Waters' 13 records and to sample tanks and trucks at the Facility. Shaun Miller denied each of the s� 14 District's requests. (Inspection and Data Report (Event No. 16678), District Exhibit 20; $ 15 Declaration of Arnold G. Chavez,¶9,Ex. B; Inspection and Data Report (Event No. 16709), $ 16 District Exhibit 21; Declaration of David M. Yager, ¶ 10, Ex. E; Inspection and Data Report 17 (Event No. 16689), District Exhibit 22; Declaration of Jamie M. Malpede, 13,Ex. A.) 18 On May 14, 2014, the District issued a Notice of Violation (the "May Notice"). The 19 May Notice indicated that denial of District staff to access Klean Waters' records was a 20 violation of Ordinance Section 501.3 and Part 4 of the Permit. The May Notice directed 21 Klean Waters to permit entry of District staff to Klean Waters' treatment and process areas, 22 to permit District staff to access customer profiles, and to permit District staff to sample 23 truckloads hauled to the Facility. (May Notice, District Ex. 23; Declaration of James E. 24 Colston,114, Ex. G.) 25 This pattern, however, continued. On May 22, 2014,District staff visited the Facility 26 to perform a quarterly compliance inspection and sampling. District staff were informed that 27 Klean Waters' profiles and manifests were not available for review. (Inspection and Data 28 Report (Event No. 16751), District Ex. 24; Declaration of David M. Yager, ¶ 11,Ex. F.) 12 I W2179.1 I District staff determined that chemical dosing in the pretreatment system was 2 performed manually with an undisclosed polymer and a bucket. The District observed some 3 progress in installing the chemical feed system, however, it was not connected or 4 operational. (Inspection and Data Report (Event No. 16742), District Ex. 25; Declaration of 5 Jaime M. Malpede, 14, Ex. B.) 6 On May 28, the District held another compliance meeting. The meeting was attended 7 by Roya Sohanaki, Martin Holl, Arnold Chavez, and David Yager on behalf of the District. 8 Tim Miller, Shaun Miller, Rick Lang, and Athar Kahn attended on behalf of Klean Waters. 9 Klean Waters' continued failure to implement its pretreatment system and its failure to 10 obtain the District's authorization prior to accepting out-of-jurisdiction waste was addressed. 11 (Declaration of Roya Sohanaki, 15.) 12 On June 3, 2014, District staff visited the Facility. District staff were denied access to 13 Klean Waters' records by Shaun Miller. The chemical feed system was still not operational. s� 14 (Inspection and Data Report(Event No. 16799), District Ex. 26; Declaration of David M. yin g" s 15 Yager, 112, Ex. G; Photos of the Facility dated June 3, 2014, District Ex. 27; Declaration of 3 � 16 David M. Yager,112.) 17 On June 11, 2014, District staff visited the Facility. District staffs requests to review 18 Klean Waters' records were denied by Tim Miller. The chemical feed system was still not 19 operational. (Inspection and Data Report (Event No. 16843), District Ex. 28; Declaration of 20 David M. Yager, 113, Ex. H.) 21 On June 19, 2014 and June 20, 2014, District staff visited the Facility. District staff 22 were denied access to Klean Waters' records by Shaun Miller. The chemical feed system 23 was still not operational and it did not appear that any progress had been made on the system 24 since June 11, 2014. (Inspection and Data Report (Event No. 16909), District Ex. 29; 25 Declaration of David M. Yager, ¶ 14, Ex. I.) 26 On July 3, 2014, District staff visited the Facility. District staffs requests to review 27 Klean Waters' records were denied by Shaun Miller. Shaun Miller further prevented District 28 staff from sampling a load that arrived at the time of the inspection. At this time, District 13 IN21]9.1 I staff asked Shaun Miller where the chemicals listed on the Klean Waters Application, and 2 purportedly used in the pretreatment process, were stored. Shaun Miller responded that they 3 were not necessary to treat the wastes received by the Facility which included wastewaters 4 bearing food-grade organics, oily waters, and heavy metals. Shaun Miller stated that the 5 Facility does not receive volatile organics. The only chemical onsite was an undisclosed 6 polymer stored in an unlabeled 55-gallon drum. District staff could not confirm the nature of 7 the polymer. (Inspection Report Dated July 3, 2014, District Ex. 30; Declaration of David P. 8 Francis, 13, Ex. A.) 9 On August 20, 2014,District staff visited the Facility. District staff were denied 10 access to Klean Waters' records by Shaun Miller. The chemical storage tanks,plumbing to 11 treatment tanks and electrical and control components were installed and operational. The 12 chemical storage tanks, however, were empty. And again, the only treatment chemical 13 present onsite was an unlabeled 55-gallon drum containing an unidentified polymer. District 14 staff set up sampling equipment at the sampling point to take samples from Tanks 1, 2, and 4 LLf�s 3 &g g k" 15 as they discharged. Shaun Miller began this discharge while District staff were onsite. 3 16 District staff were also informed that discharge occurred later that day from Tanks 5, 6, 7, & 17 8, for a total of 30,400 gallons. Despite this total volume of discharge, the District's 18 samplers only collected a small amount of discharge which was approximately the same 19 amount of discharge that District staff observed the sampler collect while they were onsite. 20 The cause of the disruption to the District's samplers is unknown. (Inspection Report Dated 21 August 20, 2014, District Ex. 31; Declaration of David P. Francis,¶4,Ex. B.) 22 On September 2, 2014,District staff visited the Facility to perform a quarterly 23 compliance inspection and sampling. District staff were denied access to Klean Waters' 24 records by Shaun Miller. District staff also requested information regarding the chemistry 25 used at the Facility. Klean Waters declined to respond, citing "confidentiality concerns." On 26 or about September 3, 2014,District staff visited the Facility to collect the quarterly sample. 27 District staff were denied access to Klean Waters' records by Shaun Miller. (Inspection and 28 Data Report (Event No. 17409), District Ex. 32; Declaration of David P. Francis,¶ 5, Ex. C.) 14 1042179.1 1 From approximately May of 2014 to July of 2014, the District contacted companies 2 listed by Klean Waters as potential customers and that are located outside of the District's 3 service area. The District requested copies of manifests for wastewater loads sent to Klean 4 Waters for disposal. The manifests obtained by the District show that Klean Waters has 5 accepted wastewater from customers outside the District's service area at least 32 times, 6 beginning in October of 2013. (Manifests, District Ex. 33,Filed Under Seal; Declaration of 7 Jamie Malpede, 15; Declaration of Mila S.Kleinbergs, ¶3; Declaration of Deon Carrico, ¶ 8 3.) 9 In September of 2014, the District conducted additional downstream sampling. The 10 District detected an additional 30 major violations of the Permit's effluent limitations. 11 Daily Over Over 12 Sample Lab Concentration Maximum Violation Date Constituent Limit Limit 13 Type Number (mg/1) Limit Type s 14 (mg/1) (mg/1) N 15 9/17/14 7-2C Chromium 1.870 0.75 1.12 150.6 Major a ` 16 9/17/14 7-2C Copper 38.400 0.50 37.90 7580.0 Major 17 9/17/14 7-2C Zinc 32.9 2.87 30.03 1046.3 Major 18 9/17/14 7-2C Lead 2.280 0.35 1.93 551.4 Major 19 9/17/14 7-2C Antimony 1.720 0.25 1.47 590.7 Major 20 1778897 9/17/14 7-2C Cobalt 1.800 0.19 1.61 837.5 Major 21 9/17/14 7-2C Tin 6.260 0.41 5.85 1430.5 Major 22 9/17/14 7-2C Titanium 12.400 0.09 12.31 12993. Major 23 9 24 9/17/14 7-2C Vanadium 0.970 0.22 0.75 344.9 Major 25 9/18/14 3 Copper 7.900 0.50 7.40 1480.0 Major 26 9/18/14 3 1781702 Lead 0.690 0.35 0.34 97.1 Major 27 9/18/14 3 Zinc 9.260 2.87 6.39 222.6 Major 28 15 1042179.1 I Daily Over Over 2 Sample Lab Concentration Maximum Violation Date Constituent Limit Limit 3 Type Number (mg/1) Limit Type (m8/1) NO 4 (mg/1) 5 9/18/14 3 Antimony 0.440 0.25 0.19 76.7 Major 6 9/18/14 3 Cobalt 2.940 0.19 2.75 1431.2 Major 7 9/18/14 3 Tin 1.230 0.41 0.82 200.7 Major 8 9/18/14 3 Titanium 5.690 0.09 5.60 5908.4 Major 9 9/18/14 3 Vanadium 0.330 0.22 0.11 51.3 Major 10 9/18/14 3 Copper 12.100 0.50 11.60 2320.0 Major 11 9/18/14 _3 Zinc 4.220 2.87 1.35 47.0 Major 12 1781701 9/18/14 3 Tin 0.450 0.41 0.04 10.0 Minor 13 spas 9/18/14 3 Titanium 3.220 0.09 3.13 3300.2 Major 14 tlg 9/22/14 3 Copper 4.740 0.50 4.24 848.0 Major 6 15 1781906 a 9/22/14 3 Titanium 1.110 0.09 1.02 1072.1 Major 16 9/23/14 3 1782038 Titanium 0.250 0.09 0.16 163.9 Major 17 9/24/14 3 Copper 3.32 0.5 2.82 564 Major 18 1782699 19 9/24/14 3 Titanium 0.12 0.09 0.03 26.7 Major 20 9/25/14 3 1782717 Copper 0.85 0.5 0.35 70 Major 21 9/25/14 3 Titanium 0.57 0.09 0.03 26.7 Major 22 9/26/14 3 1782780 Lead 1.18 0.35 0.83 237.1 Major 23 9/28/14 3 1777184 Titanium 0.14 0.09 0.05 47.8 Major 24 (September Sampling Results, District Ex. 34; Declaration of David P. Francis,16, Ex. D; 25 Declaration of Darrin L. Canen,¶3, Ex. A; Declaration of David Yager,¶ 15, Ex. 7.) 26 On October 10, 2014, District staff arrived to inspect the Facility. Shaun Miller 27 barred the District's representative, Paul M n, from accessing the Facility. p arty g y (Declaration 28 of Paul Marlyn, ¶ 11; Declaration of Harold T. Gerber,¶3.) Further, Shaun Miller stated 16 1042179.1 I that he would not permit the taking of photographs, would not provide waste profiles, 2 customer lists, or sampling outside of the sample point. (Declaration of Harold T. Gerber,¶ 3 3.) 4 It is estimated that Klcan Waters discharged 38.93 million gallons to the District from 5 7/1/13 to 6/30/14. (Declaration of Harold T. Gerber, 15.) 6 IV. Mean Waters Has Systemically Violated the Pretreatment Program and Permit 7 A. Klean Waters Has Denied Requests to Inspect and Sample at the Facility 8 Industrial users such as Klean Waters within the Centralized Waste Treatment, 9 Subpart D, Multiple Wastestrcams Subcategory, must maintain at the office of the facility 10 and allow inspection of on-site compliance paperwork, including: (1) a list and description of 11 the subcategory wastes being accepted for treatment at the facility; (2) a list and description 12 of the treatment systems in-place at the facility, modifications to the treatment systems, and 13 the conditions under which the systems are operated for the subcategories of wastes accepted =g, 14 for treatment at the facility; (3) information and supporting data establishing that these o" 15 treatment systems will achieve equivalent treatment; (4) a description of the procedures it 3 ` 16 follows to ensure that its treatment systems are well-operated and maintained; and (5) an 17 explanation of why the procedures it has adopted will ensure its treatment systems are well- 18 operated and maintained. (40 C.F.R. § 437.47(a)(4); 40 C.F.R. § 437.41(c).) 19 In addition, Klean Waters is required to make a wide variety of documents available 20 for inspection and copying to the District. (Ordinance, § 501.1(C).) These documents 21 include all notices, self-monitoring reports, waste manifests, and records related to 22 wastewater disposal and records required by federal pretreatment requirements. (Ordinance, 23 § 501.1(C).) The Permit also requires that Klean Waters maintain sampling data and 24 customer profiles for review by the District upon request. (Permit, Part 4— Special 25 Conditions.) 26 The District's review of industrial user records is essential to the District's 27 pretreatment program. Without reviewing records, the District would have no way of 28 knowing what Klean Waters has accepted for subsequent disposal into the sewerage 17 1042179.1 I facilities, whether Klean Waters is capable of treating the received wastewaters, and whether 2 Klean Waters did in fact treat the wastewater prior to its discharge to the District. 3 (Declaration of Paul Marlyn, ¶ 13.) This is particularly key because, as a Centralized Waste 4 Treatment Facility, Klean Waters may accept a broad range of wastewater for subsequent 5 disposal to the District's facilities. (Id.) 6 Klean Waters has repeatedly denied District requests to inspect records at the Facility. 7 Specifically, Shaun Miller denied requests by District staff to inspect records on nine (9) 8 separate occasions: May 14, 2014; May 23, 2014; June 3, 2014; June 19, 2014; June 20, 9 2014; July 3, 2014; August 21, 2014; September 2, 2014; and September 3, 2010 Rick 10 Lang denied requests by District staff to inspect records on May 22, 2014. Tim Miller 11 denied requests by District staff to inspect records on June 11, 2014. Klean Waters has 12 therefore denied 11 separate requests to inspect records. The denial of access to records at 13 the Facility is a violation of the Clean Water Act, 40 C.F.R. § 437.47(a)(4); 40 C.F.R. § a8 14 437.41(c), Ordinance, § 501.1(C), and Permit, Part 4— Special Conditions. (Declaration of 15 Paul Marlyn,117.) a 16 Further,pursuant to Section 501.3 of the Ordinance, Klean Waters must allow the 17 District to access all areas of wastewater disposal facilities for the purposes of inspection and 18 sampling during all times the discharger's facility is open, operating, or at any other 19 reasonable time. No person shall interfere with, delay, resist or refuse entrance to 20 authorized District personnel attempting to inspect any facility involved directly or indirectly 21 with a discharge of wastewater to the District's sewerage system. (Ordinance, § 501.3.) 22 Additionally, the District is authorized to collect samples of each hauled load to ensure 23 compliance with applicable standards. (Ordinance, § 208.) Access to vehicles carrying 24 input materials for sampling purposes is necessary to ensure that the treatment facility is only 25 processing wastewater that the facility is qualified to treat, and not otherwise evading 26 compliance with permit conditions. (Declaration of Paul Marlyn, ¶ 14.) 27 28 1 Shaun Miller also denied access to records on October 10, 2014, after the Complaint in this matter had been filed and served. 18 1042179.1 I Shaun Miller denied District staff member Arnold Chavez access to the Facility on or 2 about May 14, 2010 Further, Shaun Miller denied District staff s request to sample loads 3 at the Facility on or about May 14, 2014 and July 3, 2014. The denial District staffs request 4 to enter the Facility is a violation of Section 501.3 of the Ordinance. (Declaration of Paul 5 Martyn, ¶20.) The denial of District staff requests to sample at the Facility is a violation of 6 Ordinance Section 501.3 and Ordinance Section 208. (Declaration of Paul Martyn, ¶21.) 7 B. Klean Waters Has Failed and Refused to Provide the Required Pretreatment 8 Section 20l(B)(10) of the Ordinance prohibits any discharge to the District's sewerage 9 system that violates any applicable Federal Categorical Pretreatment Standards, statute, 10 regulation, or ordinance of any public agency or regulatory agency with jurisdiction over 11 operation of or discharge of wastewater through the District's sewerage facility. Section 12 402(A) of the Ordinance requires that all users provide the wastewater pretreatment facilities 13 necessary to achieve compliance with all applicable Categorical Pretreatment Standards and <g 14 effluent discharge limits. These facilities must be operated by a qualified operator and m° 15 maintained in proper operating condition at the user's expense. a 16 The pretreatment standards for the Centralized Waste Treatment Category are based 17 on the best available technology. Within the metals subcategory, the pretreatment standards 18 are based on primary precipitation, liquid-solid separation, secondary precipitation, 19 clarification, and sand filtration. Within the oils subcategory, the pretreatment standards are 20 based on emulsion breaking/gravity separation and dissolved air flotation. Within the 21 organics subcategory, the pretreatment standards are based on equalization and biological 22 treatment. (1 Environmental Protection Agency,Development Document for the Effluent 23 Limitations and Standards Centralized Waste Treatment Industry-Final, Ch. 9(2000).) 24 Where a facility treats wastewater from more than one subcategory, it must treat the 25 waste in separate systems and comply with the appropriate discharge limitations for each 26 subcategory. In the alternative, the facility may meet the Multiple Wastestream Subcategory 27 2 Shaun Miller denied District representative Paul Martyn access to the Facility on October 10, 28 2014, after the Complaint in this matter had been filed and served. 19 ma2m.i 1 standards. (40 C.F.R. § 437.41(a)(1).) In order to do so, the facility must submit an initial 2 certification signed by a responsible corporate officer that: (1) lists and describes the 3 subcategories of waste accepted for treatment at the facility; (2) lists and describes the 4 treatment systems in place at the facility and the conditions under which the treatment 5 systems are operated for the subcategories of wastes accepted for treatment at the facility; 6 and(3) include information and supporting data establishing that these treatment systems 7 will achieve equivalent treatment. (40 C.F.R. § 437.47 (a)(2); 40 C.F.R. § 437.41(a).) 8 Equivalent treatment means a wastewater system that achieves comparable pollutant 9 removals to the applicable treatment technology selected as the basis for the limitations and 10 pretreatment standards. (40 C.F.R. § 437.2(h).) 11 Klean Waters requested categorization in the Subpart D, Multiple Wastestream 12 Subcategory. As a result, Klean Waters is required to establish a pretreatment system that 13 will achieve equivalent treatment. (40 C.F.R. § 437.47(a)(2); 40 C.F.R. section 437.41(a).) s a� 14 Dilution is prohibited as a partial or complete substitution for treatment. (40 C.F.R. § 15 403.6(d); Ordinance, §§ 202 and 402(C).) a 16 The Klean Waters Application depicted a pretreatment system that included chemical 17 storage, dosing, metering, and delivery. The District relied on the pretreatment system 18 represented in Klean Waters' Application in issuing the Permit to Klean Waters. (Ordinance, 19 § 302.l(E); Declaration of Martin Holl, ¶ 11.) As depicted, the chemical feed system would 20 provide five chemical feeds: sodium hydroxide for upward pH adjustment and metals 21 hydroxide precipitation; sulfuric acid for downward pH adjustment, hexavalent chromium 22 reduction and emulsion breaking; aluminum sulfate for coagulation and flocculation of 23 particulates to aid in settling precipitates and solids; cationic polymer for flocculation of 24 negatively charged particles in suspension to aid in settling precipitates and solids; and 25 anionic polymers for flocculation of positively charged particles in suspension to aid in 26 settling participates and solids. These components are necessary to achieve equivalent 27 treatment for oily, metals-bearing, and organics-bearing waste-waters. (Declaration of 28 Martin Holl, ¶ 12; Declaration of Paul Martyn, ¶24; Declaration of Greg Arthur, ¶12.) 20 IM2179.1 I Klean Waters, however,has failed and refused to make this system operational. The 2 installation of the chemical transport equipment was not completed until August of 2014, 3 even though Klean Waters began discharging in May of 2013. At no time has any District 4 inspector observed sodium hydroxide, sulfuric acid, aluminum sulfate, or cationic polymer at 5 the Facility. (Declaration of David Francis ¶7; Declaration of David Yager¶ 16; 6 Declaration of Jamie Malpede¶6;Declaration of Arnold Chavez¶ 10.) The pretreatment 7 system cannot achieve equivalent treatment standards without these or equivalent 8 components. (Declaration of Martin A. Holl, ¶ 12; Declaration of Greg Arthur,112.) The 9 manual addition of one, unknown polymer does not meet the treatment standard depicted in 10 Application (Declaration of Martin A. Holl, ¶ 12.) Nor does this satisfy equivalent treatment 11 standards. (Declaration of Greg Arthur,¶ 12.) The District believes that Klean Waters is 12 using dilution in lieu of pretreatment at the Facility. 13 As a result of Klean Waters' failure and refusal to implement this pretreatment system, s 14 the District has detected major violations of the effluent limitations in the Permit. These have 8" $ 15 included concentrations as high as 12993.9% over the discharge limit. 3 16 C. Klean Waters Has Accepted Unauthorized Wastewater 17 Section 208(D) of the Ordinance, and Table G of the Fee Ordinance, provide that 18 waste hauled from a source that is not within the District's service area is prohibited unless 19 authorized by the General Manager. Moreover, the Permit provides that Klean Waters must 20 submit for review sampling data and customer profiles for all sources from outside of the 21 District's service area prior to accepting, treating and discharging wastewater from any such 22 source. (Permit, Part 4—Special Conditions, District Ex. 8,p. 13.) 23 These provisions are essential to implementation of the District's pretreatment 24 program. The District's regulatory authority is limited to the District's service area. Within 25 the District's jurisdiction, the District may inspect, monitor, and enforce its pretreatment 26 program requirements. Outside of the District's service area, however, the District does not 27 have this authority. 28 It is especially important for a POTW to know what is coming into its facilities so 21 1042179.1 1 that it can take appropriate actions to prevent the discharge of pollutants into the receiving 2 waters. A POTW's compliance with its own NPDES permit is often dependent on the 3 industrial user upstream. It is critical, therefore, for a POTW to know exactly what is 4 occurring upstream. The District's pre-screening requirements are key for this reason. 5 (Declaration of Paul Marlyn, ¶15.) 6 Klean Waters has accepted wastewater from outside of the District's service area for 7 disposal to the District's sewerage facilities at least 32 times since October of 2013. Klean 8 Waters has never provided a single sample of this wastewater to the District. Mean Waters 9 did not, and does not, have authorization from the District's General Manager to accept 10 wastewater from outside the District's service area. The acceptance of waste from outside 11 the District's jurisdiction without prior approval from the District violates Section 208(D) of 12 the Ordinance, and Table G of the Fee Ordinance and Permit, Part 4— Special Conditions. s 13 (Declaration of Paul Marlyn¶27.) o s e„wc 14 V. The District is Authorized to Revoke the Permit and Impose Civil Penalties 15 The District may assess administrative penalties in an amount which shall not exceed 3 16 $5,000 per violation for each day of discharge in violation of any waste discharge limit, 17 permit condition, or requirement issued, reissued, or adopted by the District. (Government 18 Code § 54740.5(d)(3); Ordinance, § 615(D)(7); Permit,Part 3, § II(A)(3).) 19 In addition, pursuant to the Ordinance, the General Manager is authorized to revoke a 20 permit when it has been determined that a permittee refuses to provide records,reports, 21 plans, or other documents required by the District to determine permit terms, conditions, or 22 limits, discharge compliance, or compliance with the Ordinance. (Ordinance, § 605(A)(2).) 23 Further, the General Manager is authorized to revoke a permit when it has been 24 determined that a permittee refuses reasonable access to the permittee's premises for the 25 purpose of inspection and monitoring, or, when it has been determined that a permittee 26 violates any condition or limit of its discharge permit or any provision of the Ordinance. 27 (Ordinance, §§ 605(A)(7), (A)(1I).) 28 22 1042179.1 I A. The Permit Should Be Revoked 2 Klean Waters has failed and refused to comply with some of the most fundamental 3 requirements of the District's pretreatment program and the Permit. As set forth in detail 4 above, Klean Waters has repeatedly denied the District's requests to review records at the 5 Facility and to sample wastewater loads at the Facility. Klean Waters has barred District 6 representatives from the Facility. Klean Waters did not complete the installation of its 7 pretreatment system until 15 months after it began discharging to the District's facilities. 8 Even though installation is now complete, Klean Waters has failed to actually operate that 9 system. For these reasons, the Permit should be revoked. (Declaration of Paul Marlyn, ¶ 10 28.) 11 B. The Maximum Civil Penalties Should Be Imposed 12 Pursuant to Government Code section 54740.5(c), in determining the amount of civil 13 penalties, all relevant circumstances must be taken into account including, but not limited to, =a 14 the extent of the harm caused by the violation, the economic benefit derived through any „2G 8" s 15 noncompliance, the nature and persistence of the violation, the length of time over which the 3 16 violation occurs and the corrective action, if any, attempted or taken by the discharger. 17 Here, Klean Waters has discharged wastewater without the required pretreatment 18 which may, collectively, have the potential to cause interference with the District's 19 wastewater treatment system. This can cause adverse effects including: harm to public 20 health and safety, contamination of biosolids, and damage to the collection system. 21 Moreover, Klean Waters has derived a substantial economic benefit by failing to comply 22 with the Ordinance and the terms and conditions of the Permit based on avoided compliance 23 costs. (Declaration of Greg Arthur,114.) 24 Klean Waters has consistently and systematically violated the Ordinance and the 25 Permit from the time Klean Waters began discharging in May of 2013 to the present. Klean 26 Waters continues to: deny the District access to records and to sample trucks at the Facility; 27 refuse to make operational the pretreatment system as depicted in the Application; and 28 accept wastewater from outside the District's service area. Although Klean Waters has 23 ioa2ir9A 1 finally installed its pretreatment system, Klean Waters has failed and refused to operate that 2 system. The District has detected 30 major violations of the Permit's effluent limitations 3 since the Complaint in this matter was served on Klean Waters including at least one 4 violation 12993.9%in excess of permitted limits. 5 Klean Waters has also presented District staff with profiles for customers located 6 outside of the District's service area. These profiles, however, were not accompanied by any 7 sampling data as required by the Permit. In addition, these profiles were only presented to 8 the District after Klean Waters accepted and discharged waste from these customers. 9 On this basis, the maximum penalties provided by Government Code 54740.5(d)(3) 10 and Ordinance Section 615(D)(7) should be imposed as follows. (Declaration of Paul 11 Martyn, ¶¶29-33.) 12 Date(s) Violation Civil Penalty 13 5/14/14; 5/22/14; 5/23/14; 6/3/14; Denial of Access to Records $55,000 14 6/11/14;6/19/14; 6/20/14; 7/3/14; 8� 8 15 8/21/14; 9/2/14; 9/3/14 a 16 5/14/14; Denial of Sampling $10,000 17 7/3/14 18 5/14/14 Denial of Access to the Facility $5,000 19 5/27/13 through 9/15/14 Failure to provide pretreatment $1,825,000 20 for one year 21 10/4/13; 10/17/13; 1/13/14; 1/17/14 (3 Acceptance of unauthorized $160,000 22 instances); 2/11/14; 2/12/14;2/15/14; wastewater 23 2/18/14;2/26/14(2 instances); 3/4/14; 24 3/5/14 (2 instances); 3/10/14; 3/17/14; 25 3/24/14; 3/27/14(2 instances); 4/4/14; 26 4/10/14;4/18/14(2 instances); 4/28/14; 27 4/29/14; 5/7/14; 5/13/14; 5/16/14; 28 24 1042179.1 1 5/30/14(2 instances); 6/10/14. 2 Total $2,055,000 3 4 C. Tim Miller and Shaun Miller Should Be Held Personally Liable 5 Tim Miller and Shaun Miller are personally liable for civil penalties based on their 6 active participation in numerous violations of the Permit and the Ordinance. 7 Ordinance Section 615(D)(1)provides that the District may issue an administrative 8 complaint to any person who violates any provision of the Ordinance, or any permit 9 condition, prohibition, or effluent limit. Ordinance Section (102)(A)(53) defines a "person" 10 as "any individual, partnership, copartnership, company, firm, association, corporation or 11 public agency,joint stock company, trust, estate, or any other legal entity; or their legal 12 representatives, agents, assigns ..." (emphasis added). Thus, the corporation and its officers 3 13 may be held responsible for violations of the Permit and the Ordinance. 14 Furthermore, corporate officers and agents are personally liable for violations of 8 <° 15 statutes when they actively participate in the corporation's violations. (See, People v. 3 16 Matthews (1992) 7 Cal.AppAth 1052 (corporate president who was in a position to address 17 the situation of the company that led to the environmental statute violation is criminally 18 liable); Sea Horse Ranch, Inc. v. Superior Court(1994) 24 Cal.App.4th 446; People v. 19 International Steel Corporation (1951) 102 Cal.App.2d Supp. 935). In People v. Roscoe 20 (2008) 169 Cal. App.4th 829, the court extended corporate officer joint and several liability 21 for civil penalties arising out of the corporation's violations of strict liability statutes 22 protecting the public welfare. Id. at 831. At issue in Roscoe was a trial court order imposing 23 close to $2.5 million in civil penalties on two individuals who were officers of a family 24 company for an underground storage tank that leaked 3,000 gallons of gasoline into the 25 ground. In applying the responsible corporate officer doctrine, the trial court found that the 26 Roscoes could have prevented or promptly remedied the noticed violations, but failed to do 27 so. (Id. at 833.) The court of appeal, in upholding the trial court's ruling, held that three 28 essential elements must be satisfied before liability will be imposed upon a corporate officer 25 IW2V9.1 I under the responsible corporate officer doctrine: "(1)the individual must be in a position of 2 responsibility which allows the person to influence corporate policies or activities; (2) there 3 must be a nexus between the individual's position and the violation in question such that the 4 individual could have influenced the corporate actions which constituted the violations; and 5 (3)the individual's actions or inactions facilitated the violations." (Id. at 839.) 6 All three elements identified in Roscoe for imposing civil penalty liability for 7 corporate officers or agents are present as applied to Tim Miller and Shaun Miller. Tim 8 Miller is the president of the corporation. Tim Miller submitted and executed the permit 9 application and is listed as the responsible party for the corporation. Tim Miller personally 10 received the notices of violation and compliance orders notifying the corporation of the 11 violations. Tim Miller was also present and actively participated in many of the violations of 12 the Permit. Tim Miller attended the various compliance meetings at the District. Similarly, _ 13 Shaun Miller is the general manager of the corporation. Shaun Miller was present during s� +> 14 many of the inspections of the corporation's facility and personally directed the activities at u o" $ 15 the facility leading to many of the violations listed in the Complaint. On this basis, Tim 3 � 16 Miller and Shaun Miller should be held personally liable. 17 Vl. Conclusion 18 For the reasons set forth above,the Permit should be revoked and administrative civil 19 penalties in the amount of$2,055,000 be imposed jointly and severally on Klean Waters, 20 Inc., Tim Miller, and Shaun Miller. 21 DATED: October ZA, 2014 WOODRUFF, SPRADLIN & SMART,APC 22 23 By: 24 BRADLEY R. HO i RICIA R. HAGER 25 Attorneys for ORANGE COUNTY 26 SANITATION DISTRICT 27 28 26 1042179.1 I PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF ORANGE 3 I am over the age of 18 and not a party to the within action; I am employed by WOODRUFF, SPRADLIN & SMART in the County of Orange at 555 Anton Boulevard, 4 Suite 1200, Costa Mesa, CA 92626-7670. 5 On October 2014, I served the foregoing document(s) described as ORANGE COUNTY SANITA IN DISTRICT'S CORRECTED OPENING BRIEF 6 7 ❑O by placing the true copies thereof enclosed in sealed envelopes addressed as stated on the attached mailing list; 8 ❑ by placing ❑ the original ❑ a true copy thereof enclosed in sealed envelopes addressed as follows: 9 ❑ (BY MAIL) I placed said envelopes) for collection and mailing, following ordinary 10 business practices, at the business offices of WOODRUFF, MIN & SMART, and addressed as shown on the attached service list, for deposit in the United States 11 Postal Service. I am readily familiar with the practice of WOODRUFF, SPRADLIN & SMART for collection and processing correspondence for mailing with the United 12 States Postal Service, and said envelope(s) will be deposited with the United States Postal Service on said date in the ordinary course of business. a 13 <� ❑ (BY ELECTRONIC SERVICE) by causing the foregoing document(s) to be y H 14 electronically filed using the Court's Electronic Filing System which constitutes g s� service of the filed document(s) on the individual(s) listed on the attached mailing list. @ 15 0 (BY OVERNIGHT DELIVERY) I placed said documents in envelope(s) for 16 collection following ordinary business practices, at the business offices of WOODRUFF, SPRADLIN & SMART, and addressed as shown on the attached 17 service list, for collection and delivery to a courier authorized by Norco Overnite to receive said documents, with delivery fees provided for. I am readily familiar with 18 the practices of WOODRUFF, SPRADLIN & SMART for collection and processing of documents for overnight delivery, and said envelope(s) will be deposited for 19 receipt by Norco Overnite on said date in the ordinary course of business. 20 ❑ (BY FACSIMILE) I caused the above-referenced document to be transmitted to the interested parties via facsimile transmission to the fax number(s) as stated on the 21 attached service list. 22 ❑ (BY PERSONAL SERVICE) I delivered such envelope(s) by hand to the offices of 23 the addressee(s). 24 0 (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 25 Executed on Octoberc� 2014, at Costa Mesa, California. 26 LlNDS � 27 L S Y S UG S 28 27 IN2179.1 I SERVICE LIST 2 Matthew Kaplan Attorney for Klean Waters, Inc- 3 Tucker Ellis LLP 515 South Flower Street; 42nd Floor 4 Los Angeles, CA 90071 Telephone: (213) 430-3309 5 Facsimile: (213) 430-3409 6 7 8 9 10 11 12 y 13 L_£ 14 15 k 16 17 18 19 20 21 22 23 24 25 26 27 28 28 [N2U9.1 I WOODRUFF, SPRADLIN& SMART, APC BRADLEY R. HOGIN - State Bar No. 140372 2 bhogin wss-law.com RICIA . HAGER - State Bar No. 234052 3 rhager@wss-law.com 555 Anton Boulevard, Suite 1200 4 Costa Mesa, CA 92626-7670 Telephone: (714) 558-7000 5 Facsimile: (714) 835-7787 6 Attorneys for ORANGE COUNTY SANITATION DISTRICT 7 8 9 10 11 In the matter of: ORANGE COUNTY SANITATION DISTRICT'S REPLY BRIEF 12 I(lean Waters, Inc. Tim Miller, and a 13 Shaun Miller Date: November 6, 2014 s Time: 10:00 a.m. bass 14 Location: District's Administrative Office s m=3 Industrial Wastewater Discharge 10844 Ellis Avenue 15 Permit No. 52-1-841 Fountain Valley, CA 92708 16 Hearing Officer: Roberta Larson 17 18 19 20 21 22 23 24 25 26 27 28 i I0 2092.1 I TABLE OF CONTENTS 2 I. Introduction. ............................................................................................................. 1 3 II. Klean Waters Concedes That Access to the Facility Was Denied...........................2 4 III. Klean Waters Concedes That It Failed to Provide the Required Pretreatment........4 5 A. The Pretreatment System Depicted on the Plans Must Be Provided. ..........:4 6 B. The District's Sampling Results Are Valid................................................. 10 IV. Klean Waters Does Not Dispute That it Accepted Out-of-Jurisdiction Waste...... 17 7 A. The Condition is Lawful -Klean Waters Had a Grace Period of 296 8 Days............................................................................................................. 17 9 B. Another Centralized Waste Treatment Facility is Complying With the Requirement. ............................................................................................... 18 10 C. The District's Permit Condition is Not Preempted. .................................... 18 11 V. The Hearing Date Should Not Be Continued......................................................... 19 12 A. The District's Hearing Procedures Do Not Violate Due Process ...............20 a. ; 13 B. A Further Continuance is Not Warranted ...................................................21 s�.;s 14 VI. Conclusion..............................................................................................................23 so 15 3 16 17 18 19 20 21 22 23 24 25 26 27 28 ii 1042092.1 1 TABLE OF AUTHORITIES 2 STATE CASES 3 Barsky v. Board of Regents off.Y (1954) 347 U.S. 442........................................................20 4 County Sanitation District v. ARCO(1990) 218 Cal.App.3d 98 ............................................20 5 Getz v. Pebble Beach Community Services District(1990) 219 Cal.App.3d 229...................20 6 Hobby v. City of Sonora (1956) 142 Cal.App.2d 457.............................................................20 7 Home Gardens Sanitary District v. City of Corona (2002) 96 Cal.App.4th 87......................21 8 STATESTATUTES 9 Government Code section 54740.5(d)(3)..................................................................................4 10 Government Code section 6253(c)..........................................................................................22 11 Government Code section 6253(c)(2) .....................................................................................22 12 Government Code sections 6250 et seq...................................................................................22 3 13 Health & Safety Code section 4700 ........................................................................................21 .g� 14 WaterCode section 13000.......................................................................................................19 § 15 TREATISES a 16 Effluent Limitations Guidelines, Pretreatment Standards, and New Source Performance 17 Standards for the Centralized Waste Treatment Point Source Category..........................5, 6 18 Envtl. Prot. Agency,Industrial User Inspection and Sampling Manual for POTWs (1994)...2, 3, 11 19 Envtl. Prot. Agency, Small Entity Compliance Guide, Centralized Waste Treatment Effluent 20 Limitations Guidelines and Pretreatment Standards (2001) .................................... . 6, 7, 8 21 REGULATIONS 22 40 C.F.R. section 403 ..............................................................................................................15 23 40 C.F.R. section 403.8(i)(1)(v)................................................................................................2 24 40 C.F.R. section 437.2(h).........................................................................................................7 25 40 C.F.R. section 437.40(b).....................................................................................................10 26 40 C.F.R. section 437.41(a).......................................................................................................7 27 40 C.F.R. section 437.41(b).......................................................................................................8 28 40 C.F.R. section 437.41(c)...................................................................................................2, 8 iii 1042092.1 1 40 C.F.R. section 437.47(a)(2)..................................................................................................7 2 40 C.F.R. section 437.47(a)(4)..............................................................................................2, 8 3 65 Fed. Reg. 81,242-01, 81,287-88 (Dec. 22, 2000)..........................................................:......5 4 65 Fed. Reg. 81,250...................................................................................................................8 5 65 Fed. Reg. 81,288...................................................................................................................7 6 68 Fed. Reg. 71,014-01, 71,016 (Dec. 22, 2003).....................................................................6 7 8 9 10 11 12 13 14 s< s 15 3 ` 16 17 18 19 20 21 22 23 24 25 26 27 28 iv IMOM 1 I. Introduction. 2 In its brief, Klean Waters admits the following facts: 3 • On multiple occasions, Klean Waters' personnel refused to allow District 4 inspectors to enter and/or inspect the Facility, and/or take samples from various 5 locations within the Facility as required by the Permit; 6 • Klean Waters failed to implement the pretreatment system described in its 7 Application and Initial Certification as required by the Permit; 8 . Klean Waters accepted waste from outside the District's jurisdiction without 9 obtaining the District's permission as required by the Permit. 10 Given the requirements of the Permit, these admissions alone provide more than enough 11 justification for the relief sought in the District's Complaint for Administrative Civil 12 Penalties and Permit Revocation. 13 With respect to Count 2 (Failure to Provide Pretreatment), Klean Waters claims that it <e= 14 is not required to install or operate the pretreatment system described in its application and g'tl�k s 15 initial certification as long as its discharge meets Permit limits. Klean Waters, however, 3 16 fundamentally misunderstands the Clean Water Act requirements applicable to its Facility. 17 As a Centralized Waste Treatment facility within Subcategory D, Multiple Wastestreams, 18 Klean Waters must implement the pretreatment system described in its initial certification. 19 The Ordinance and the Permit incorporate the requirements of the Clean Water Act. 20 With respect to Count 3 (Acceptance of Waste from Outside the District's Service 21 Area), Klean Waters contends that the Permit condition is invalid and unreasonable. The 22 District's regulatory authority is limited to the District's service area. Within the District's 23 jurisdiction, the District may inspect, monitor, and enforce its pretreatment program. 24 Outside of the District's service area, however, the District does not have this authority. The 25 District's policy, therefore, is to pre-approve waste from outside the District's service area. 26 Klean Waters alleges that the condition is invalid because it did not have advanced notice of 27 the requirement. In actuality, however,Klean Waters had a grace period of 296 days before 28 the condition was enforced. 1 I092092.1 I Moreover, Klean Waters' claim that the requirement is overly burdensome is belied 2 by the fact that the only other Centralized Waste Treatment facility within the District's 3 jurisdiction has been successfully complying with the requirement. 4 For these reasons, the Hearing Officer should revoke the Permit and award the civil 5 penalties requested in the Complaint. 6 H. Klean Waters Concedes That Access to the Facility Was Denied. 7 The right to access and inspect industrial user facilities is a critical requirement 8 because it allows POTWs to confirm that the facilities are complying with their permits and 9 the pretreatment regulations. (Envtl. Prot. Agency, Industrial User Inspection and Sampling 10 Manual for POTWs, p. 52 (1994); 40 C.F.R. § 403.8(0(1)(v).) As set forth in the Opening 11 Brief, Klean Waters is subject to numerous, detailed requirements authorizing the District to 12 enter, inspect records, and sample at the Facility. (See Corrected Opening Brief, pp. 17-18 a 13 (citing 40 C.F.R. § 437.47(a)(4); 40 C.F.R. § 437.41(c); Ordinance § 501.1(C); Ordinance § rgm 14 501.3; Permit, Part 4 — Special Conditions.) �reo 8 a° 15 Klean Waters does not dispute that it barred District inspectors from entering the 3 16 Facility, refused to provide records to the District upon request, and refused to allow District 17 inspectors to take samples of wastewater from various locations at the Facility. (KW Brief 18 p. 14, Ins. 4-5; p. 15, Ins. 21-22;p. 19, Ins. 18-19.) Each of these actions constitutes a blatant 19 violation of the Clean Water Act, the District's Ordinance, and the Permit, and makes it 20 impossible for the District to fulfill its duties under the pretreatment regulations. On these 21 grounds alone,the Permit should be revoked. 22 If the relationship was "tense," it was because the District had been trying to bring 23 Klean Waters into compliance with some of the simplest requirements of the Clean Water 24 Act, the Ordinance, and the Permit over the course of nine (9) months. Over that time, the 25 District took a series of enforcement actions against Klean Waters. These enforcement 26 actions included two Notices of Violation, two Orders to Cease, and three compliance 27 meetings. When it became apparent that Klean Waters had no intention of correcting the 28 violations identified by the District, the District no longer saw any reason to meet with Klean 2 1042092.1 1 Waters and the District began preparing an Administrative Complaint. 2 Klean Waters complains that Dvlatistrict inspectors conducted a number of 3 unannounced inspections at the Facility, including a purported "sting" operation in March of 4 2014. (KW Brief, p. 2, In. 28; p. 14 his. 17-19; p. 15, Ins. 16-18.) As EPA has explained, 5 unannounced inspections are a key component of effective enforcement. (Industrial User 6 Inspection and Sampling Manual for POTWs, supra, p. 4 ("[t]he knowledge that an 7 inspection could occur unannounced encourages industrial plant managers to keep their 8 operations in compliance.") Indeed, "[a] routine compliance inspection is most effective 9 when it is unannounced or conducted with very little advanced warning." (Id. at 9.) 10 Klean Waters seems to believe that the District's actions in contacting Klean Water's 11 customers somehow justifies Klean Water's failure to comply with the Ordinance and the 12 Permit. This is nonsense. The District clearly has the authority—indeed the duty—to fully a 13 investigate the nature and origin of waste that is ultimately disposed to the District's . a 14 treatment system. stl=o15 Klean Waters asserts that it cannot grant or deny access to sample wastewater in 3 16 trucks arriving at the Facility because Klean Waters does not own or control the trucks. 17 (KW Brief, p. 14, Ins. 7-8.) This is nonsensical. Clearly, Klean Waters has the right to 18 sample wastewater trucks arriving at its facility. If Klean Waters has the right to sample, 19 then Klean Waters can allow the District to sample. 20 In addition, Klean Waters also denied sampling of wastewater loads as they were off- 21 loaded into the Facility's holding tanks. (District Exhibit 20, p. 2; District Exhibit 22,p. 2; 22 District Exhibit 30, p. 1.) As set forth in the Opening Brief, Klean Waters must allow the 23 District to access all areas of wastewater disposal facilities for the purposes of inspection and 24 sampling during all times the discharger's facility is open, operating, or at any other 25 reasonable time. (See Corrected Opening Brief, p. 18, Ins. 16-26 (citing Ordinance § 501.3; 26 27 Contrary to Klean Waters' assertions, District inspectors did not direct customers to cease 28 conducting business with Klean Waters. Rather, the inspectors explained to customers that the District was conducting an investigation of Klean Waters' permit conditions. 3 1042092.1 I Ordinance § 208).) Klean Waters has clearly violated this requirement. 2 Finally, Klean Waters asserts that the number of incidents to be penalized in the 3 District's Complaint somehow differ from the number of incidents identified in the District's 4 Opening Brief. This is wrong. Count One of the Administrative Complaint identifies 14 5 separate violations, including 11 denials of access to records, two denials of sampling, and 6 one denial of inspector access to the facility, and requests penalties in the amount of$70,000. 7 (District's Complaint, IT 64-67.) The District's Opening Brief identifies the same 14 8 separate violations and requests penalties in the total amount of$70,000. (District's 9 Corrected Opening Brief, p. 24.) Contrary to Klean Waters' assertion, the District has not 10 double-counted or triple-counted the violations identified on May 14, 2014 and July 3, 2014. 11 The District is authorized to impose penalties in an amount not to exceed $5,000 per 12 violation for each permit condition or requirement adopted by the District. (Government a 3 13 Code § 54740.5(d)(3); Ordinance § 615(D)(7)(c).) Penalties should therefore be imposed as =af 14 requested in the Complaint and Opening Brief. €„w s 15 III. Klean Waters Concedes That It Failed to Provide the Required Pretreatment. 3 16 According to Klean Waters, the pretreatment system described in its application and 17 its initial certification was not constructed and operational until September of 2014. Thus, 18 by its own admission, Klean Waters operated for 16 months and discharged in excess of 38 19 million gallons to the District without providing the pretreatment system required by the 20 Clean Water Act and its implementing regulations. This is a blatant violation of the Permit 21 and the pretreatment regulations, and provides more than enough justification in itself for the 22 relief sought in the Complaint. 23 A. The Pretreatment System Depicted on the Plans Must Be Provided. - 24 Klean Waters essentially argues that its pretreatment process is irrelevant, as long as 25 its discharge meets the limits in its Permit. (KW Brief, pp. 6-8.) Klean Waters wholly 26 ignores the Clean Water Act requirements applicable to the Facility. As a Centralized Waste 27 Treatment facility within the "Multiple Wastestreams" Subcategory, Klean Waters must 28 implement the pretreatment system described in its Application and Initial Certification. 4 1042092.1 1 Within the Centralized Waste Treatment category, facilities are classified by one of 2 the four types of waste that the facility may receive. Subcategory A includes facilities that 3 treat or recover metal from metal-bearing waste, wastewater, or used material recovered 4 from off-site. Subcategory B includes facilities that treat or recover oil from oily waste, 5 wastewater, or used material recovered from off-site. Subcategory C includes facilities that 6 treat or recover organics from organic waste, wastewater, or used material recovered from 7 off-site. Subcategory D, "Multiple Wastestreams" ("Subcategory D") includes facilities that 8 treat or recover some combination of metal-bearing, oily, or organic wastewater, or used 9 material from off-site. (Envtl. Prot. Agency, Small Entity Compliance Guide, Centralized 10 Waste Treatment Effluent Limitations Guidelines and Pretreatment Standards, p. 3-2 11 (2001).) 12 Facilities that fall within multiple subcategories (A, B, or C) may elect to comply a, s 13 separately with each set of restrictions for each type of waste or they may elect to comply 3a 14 with the restrictions established for Subcategory D. (Effluent Limitations Guidelines, 8 $ 15 Pretreatment Standards, and New Source Performance Standards far the Centralized Waste 3 16 Treatment Point Source Category, 65 Fed. Reg. 81,242-01, 81,287-88 (Dec. 22, 2000).) This 17 decision fundamentally alters the nature of the requirements applicable to any given 18 Centralized Waste Treatment facility. 19 Where a facility elects to comply with each set of restrictions separately, the 20 wastestreams for each type of waste may not be commingled prior to monitoring for 21 compliance and discharging to the sewer. (Id. at 81,288.) These facilities must monitor 22 compliance with the applicable effluent limitations for each type of waste separately. This 23 requires the use of multiple sampling points. (Small Entity Compliance Guide, Centralized 24 Waste Treatment Effluent Limitations Guidelines and Pretreatment Standards, supra, at p. 7- 25 2.) An example is provided below.2 26 27 28 2 Small Entity Compliance Guide, Centralized Waste Treatment Effluent Limitations Guidelines and Pretreatment Standards, supra, at p. 7-3. 5 1042092.1 1 Metals Waste OiL Waste Orgaucs Waste 2 20,OQ7t(j}L/dev 10,00f0(JyL 1 day 45,000L/day 3 V Y V 4 Dletals Oil; Orgazvcs 5 Treatutent Treatment 6 Treatment � . 7 8 Sample Paint 1 Sample Point 2 Sample Paint 3 9 Figure 7-1 Facility Accepting Waste in All Three Subcategories With Treatment ui Each 10 In Subcategory D, however, a facility may commingle its wastestreams prior to 11 monitoring for compliance and discharging to the sewer. A single sampling point is used for 12 these purposes. (Small Entity Compliance Guide, Centralized Waste Treatment Effluent a 13 Limitations Guidelines and Pretreatment Standards,supra, at p. 7-3.) "Using Subpart D s ,£ 14 limitations and standards simplifies implementation of the rule and compliance monitoring 15 for CWT facilities that treat wastes subject to more than one of the first three subcategories." a 16 (Effluent Limitations Guidelines, Pretreatment Standards, and New Source Performance 17 Standards for the Centralized Waste Treatment Point Source Category, 68 Fed. Reg. 18 71,014-01, 71,016 (Dec. 22, 2003).) An example is provided below.3 19 Metab Wute 201 Se 22 �'� oils V let 3au,toru,g Treaturrnt ��` Treatment �.�''^" Pmnt 23 24 Figure 7-3 Facility Accepting Wastes is Multiple Subcategories and Treating Separately 25 26 27 3 Small Entity Compliance Guide, Centralized Waste Treatment Effluent Limitations 28 Guidelines and Pretreatment Standards, supra, at p. 7-5. 6 IN2092.1 I Classification within Subcategory D, however, is a privilege not a right. In order to 2 qualify for Subcategory D, a facility must request classification in Subcategory D and certify 3 that an "equivalent treatment" system is properly designed, maintained, and operated. This 4 means that the facility is providing treatment for its mixed wastewater that is discharged to 5 the sewer to ensure that pollutant removal is essentially the same as would be obtained from 6 separate treatment of the different types of wastestreams. (40 C.F.R. § 437.2(h).) 7 A facility establishes that it is providing"equivalent treatment"by providing an initial 8 certification. (40 C.F.R. § 437.47(a)(2); 40 C.F.R. § 437.41(a).) The initial certification 9 must include: a list of the subcategories of wastes accepted; a list and description of the 10 treatment systems at the facility and the conditions under which the systems are operated for 11 the subcategories of wastes accepted; and information and supporting data establishing that 12 these treatment systems will achieve equivalent treatment. (40 C.F.R. § 437.47(a)(2); 40 13 C.F.R. § 437.41(a).) The initial certification should include a flow diagram of each s &ea 14 treatment system. (Small Entity Compliance Guide, Centralized Waste Treatment Effluent Y=� 15 Limitations Guidelines and Pretreatment Standards, supra, at p. 8-3.) a 16 Thereafter, the POTW determines whether the treatment system will achieve 17 equivalent treatment. EPA left this determination to the POTW's best professional 18 judgment. (65 Fed. Reg. at 81,288.) Where equivalent treatment is demonstrated, the 19 POTW issues discharge requirements based on one of the four subsets of limitations or 20 standards promulgated for Subcategory D. (Id.) 21 Where multiple wastestreams are commingled, as under Subcategory D, it is possible 22 to achieve a reduction in pollutants through dilution. This was of great concern to EPA 23 when it approved Subcategory D. 24 The primary reason some members of the waste treatment industry favored development of a multiple wastestream 25 subcategory was to simplify implementation for facilities treating wastes covered by multiple subcategories. As detailed in the 26 proposal, EPA's primary reason for not proposing (and adopting) this option was its concern that facilities that accept wastes in 27 multiple subcategories need to provide effective treatment of all waste receipts. This concern was based on EPA's data that 28 showed such facilities did not currently have adequate treatment- 7 ioa2M.1 1 in-place. While these facilities meet their permit limitations, EPA concluded that compliance was likely achieved through 2 co-dilution of dissimilar wastes rather than treatment. As a result, EPA determined that adoption of"multiple wastestream 3 subcategory" limitations as described above could argguably encourage ineffective treatment." (65 Fed. Reg. at 81,250 4 (emphasis added).) 5 As a result, EPA established the "equivalent treatment"requirements so that pollutant 6 reductions would be obtained through treatment rather than dilution. (Id.; Small Entity 7 Compliance Guide, Centralized Waste Treatment Effluent Limitations Guidelines and 8 Pretreatment Standards,supra, p. 8-8.) The equivalent treatment requirements addressed 9 EPA's concerns that wastes receive adequate treatment. (65 Fed. Reg. at 81,250.) 10 The equivalent treatment requirement does not magically disappear once a facility is 11 classified under Subcategory D. Each facility must maintain records on-site that: (1) list and 12 describe the subcategory wastes being accepted for treatment at the facility; (2) list and a 3 13 describe the treatment systems in-place at the facility, modifications to the treatment systems p<a 14 and the conditions under which the systems are operated for the subcategories of wastes g �V 15 accepted for treatment at the facility; (3)provide information and supporting data that these 16 treatment systems will achieve equivalent treatment; (4) describes the procedures it follows 17 to ensure that its treatment systems are well-operated and maintained; and (5)explain why 18 the procedures it has adopted will ensure its treatment systems are well-operated and 19 maintained. (40 C.F.R. 437.47(a)(4);40 C.F.R. § 437.41(c).) 20 The facility must periodically certify that the facility "is operating its treatment 21 system to provide equivalent treatment as set forth in the initial certification." (40 C.F.R. § 22 437.41(b).) Where a facility modifies its treatment system after it has been classified in 23 Subcategory D, it must submit a description of the modified systems and information and 24 supporting data to establish that the revised system will achieve equivalent treatment. (Id.) 25 This revised information must be submitted to the POTW in a manner similar to the initial 26 certification. (Id.) Small changes, such as the addition of a mixer to an existing system, 27 would not trigger this requirement. But, removing or changing an entire treatment step in the 28 treatment train does trigger the requirement. (Small Entity Compliance Guide, Centralized 8 1042092A I Waste Treatment Effluent Limitations Guidelines and Pretreatment Standards,supra, at p. 8- 2 11 — 8-12.) 3 Here, Klean Waters submitted an application that included detailed plans of its 4 pretreatment system. (District Exhibit 2.) Later, Klean Waters requested reclassification 5 under Subcategory D and provided an Initial Certification signed by its responsible corporate 6 officer. (District Exhibits 5, 6.) The Initial Certification was based on the detailed plans 7 submitted with the Application. Specifically, the Initial Certification stated, "Asper our 8 plans and specifications, we are a batch treatment facility where each load of wastewater is 9 segregated to meet effluent limits." (District Exhibit 6.) Klean Waters' plans and 10 specifications were therefore far more than a mere "contemplated layout." (KW Brief,p. 7.) 11 Klean Waters relied on these plans to demonstrate to the District that its system would 12 achieve equivalent treatment, and to obtain classification under Subcategory D. s 3 13 Despite the requirements that Subcategory D facilities implement the system peg 14 described in their initial certification, Klean Waters freely admits that it has not done so. 8° 15 (KW Brief, p. 9, lns. 16-20; Declaration of Shaun Miller, ¶ 8.) According to Klean Waters, 3 16 chemical addition was achieved by using a bucket"for a considerable time." (Id.) By 17 Klean Waters' own admission, the actual pretreatment system was not completed until 18 September 14, 2014. (Declaration of Shaun Miller, 18.) This is a clear violation of the 19 Subcategory D requirements. 20 From the record, it is not clear that even the purported chemical addition was taking 21 place. Klean Waters now asserts that the appropriate chemicals were stored in 55-gallon 22 drums in a"separate storage area." (KW Brief p. 9, Ins. 16-20.) As set forth in the Opening 23 Brief,no District inspector ever observed the chemicals described in the Application and 24 Initial Certification at the Facility. (Corrected Opening Brief, p. 21, Ins. 3-6 (citing 25 supporting Declarations).) In fact, Klean Waters had taken the position that the chemicals 26 described in the Application and Initial Certification are not necessary. (See District Exhibit 27 30 ("Chemicals designated on the drawings include: caustic soda, cationic polymer, anionic 28 polymer, aluminum sulfate, and sulfuric acid. Upon asking where the other designated 9 1042092.1 I chemicals were, Shaun [Miller] explained that they were not necessary to treat the wastes 2 received by the facility.")) Moreover, the District was informed that the adjacent storage 3 area contained diatomaceous earth. (Id.) 4 Even if Klean Waters wished to deviate from the pretreatment system described in the 5 Application and Initial Certification, it was required to notify the District, describe the 6 changes, and establish that the modified system would achieve equivalent treatment. (40 7 C.F.R. § 437.40(b).) Klean Waters never did so. Moreover, the modified method described 8 by Klean Waters, does not meet the pretreatment standard in the Application and Initial 9 Certification, nor does it achieve equivalent treatment. (Declaration of Martin Holl, ¶ 12; 10 Declaration of Greg Arthur,¶ 12.) 11 Klean Waters alleges its pretreatment process is irrelevant so long as it has met its 12 Permit limits at the sample point and in its self-reporting. (KW Brief, p. 8, Ins. 14-16.) 13 Klean Waters ignores that the District has detected violations of the Permit limits at the 14 sample point. (See Notice of Violation dated January 20, 2014; District Exhibit 11.) Klean 83 15 Waters also fails to mention that there have been issues with the laboratory analysis 3 16 supporting Klean Waters' self-reporting. (See District Exhibit 35.) Further, as explained 17 above, it was the very concept that existing facilities were meeting permit limits without 18 adequate treatment by commingling waste streams that prompted EPA to adopt the 19 "equivalent treatment" requirements for Subcategory D facilities like Klean Waters. 20 Far from "micromanaging" Klean Waters' treatment process, the District is enforcing 21 a central requirement of the National Pretreatment Program as required by the Clean Water 22 Act and the District's NPDES permit. The Permit should be revoked and penalties should be 23 imposed as requested in the Complaint and Opening Brief. 24 B. The District's Sampling Results Are Valid. 25 Klean Waters now disputes the District's March sampling results. Klean Waters, 26 however, never appealed the March Notice of Violation. It is too late to do so now. 27 (Ordinance § 617.) 28 Nonetheless, Klean Waters alleges that the March 2014 sampling should have been 10 ioazom.1 I conducted at the sampling point rather than in a downstream manhole, and that the sampling 2 in the downstream manhole could have included sewage from other dischargers to the east of 3 the manhole. Klean Waters is wrong on both counts. 4 The Ordinance provides the District with broad authority to sample the discharge of 5 permittees like Klean Waters. Specifically, sampling may be conducted "in the time, place, 6 manner, and frequency determined at the sole discretion of the District." (Ordinance § 7 601(A)(1).) Indeed, sampling locations may include downstream manholes. (Ordinance § 8 501.1(B.). The EPA acknowledges that notification should not be given to the facility when 9 illegal discharges are suspected. (Industrial User Inspection and Sampling Manual for 10 POTWs, supra, at p. 20.) Sampling at the sampling point would certainly have given notice 11 to Klean Waters that an investigation was occurring. Even where other facilities may 12 contribute to the sampled manhole, the EPA recognizes that downstream sampling may help s 13 with further enforcement activities or future investigations by uncovering activities that a s, pal 14 facility may be attempting to hide. (Id. at p. 28, 29.) -O�W� " 15 For these purposes, the District has set samplers to the east of the manhole at Freedom 16 Avenue and Pacific Street and carefully investigated other potential sources of industrial 17 flow in this area. Upstream of the manhole, the District has identified only one industrial use 18 with a wet process, Patio Door& Outlet located at 410 W. Fletcher, Patio Door& Outlet has 19 held an industrial discharge permit from the District since at least 2006. This user, however, 20 was closed during the weekend of the March 2014 sampling event. (See District Exhibit 38.) 21 Specifically, the District has identified, and eliminated as a source of industrial 22 wastewater, the following potentially tributary dischargers within the area: 23 Address Use 24 240 W. Fletcher Avenue Scope Packaging prints onto supplied pre-cut 25 corrugated cardboard, and produces some wastewater 26 related to their ink processing. However, Scope 27 Packaging discharges this wastewater into an 28 underground clarifier that does not discharge into the 11 1042092.1 1 Address Use 2 sewers. Instead, Scope Packaging contracts with a 3 wastehauler to pump out this clarifier on a quarterly 4 basis. Yager inspected the clarifier and confirmed 5 that there was no outflow into the sewer. 6 426 W. Fletcher Avenue Fletcher Coatings coats steel pipe and rebar with an 7 epoxy powder. Their process is entirely dry, and does 8 not require any water, and thus no wastewater is 9 generated or discharged. 10 15762 W. Fletcher Avenue Cell phone tower with no wastewater discharge 11 445 West Freedom Avenue Ingram Entertainment Inc.—a movie warehouse that 12 receives and distributes DVDs. There are no a 13 industrial wet processes on-site. A walk-thru s ` 14 revealed only shelves of boxes/crates/containers of 8 $ 15 the noted supplies. a 16 447 West Freedom Avenue MeriCal, Inc.—a vitamin/health supplement 17 warehouse that receives and ships dry goods. There 18 are no industrial wet processes on-site. A walk-thru 19 revealed only shelves of boxes/crates/containers of 20 the noted supplies. 21 449 West Freedom Avenue Corrovan —a warehouse containing office furniture 22 and fixtures. There are no industrial wet processes 23 on-site. A walk-thru revealed shelves of 24 fumiture/boxes/bins/boxes only. 25 337 & 345West Freedom Mesa Safe Company - The company is a distributor 26 Avenue of safes. The facility is a warehouse which receives, 27 inventories, then distributes various sized safes to 28 12 1MO92.1 I Address Use 2 consumer outlets. There are no industrial wet 3 processes on-site. - 4 650 West Freedom Avenue The location of JJFoil & Packaging, a packaging and 5 labeling company providing gluing, die-cutting, hot- 6 foil stamping, and other dry packaging services. 7 630 West Freedom Avenue The location of Egg Whites International, a freezer 8 storage facility for egg white products. 9 620 West Freedom Avenue The location of Gulf Music Sales, a musical 10 equipment supplier providing accordions, guitars, and 11 other instruments. 12 600 West Freedom Avenue The location of Insignia Signs Company, a dry- __ 3 13 process manufacturer of specialty sign products, 14 including neon channel letters, illuminated signs, high Sv=Y 15 rise signs, ADA code compliant signage, vehicle 3 16 wraps, fleet graphics, complex architectural 17 monuments, vinyl banners, and offering portable or 18 mobile sandblasting sign service. 19 590 West Freedom Avenue The location of Maverick Caulking & Coatings, a 20 contracting firm providing, caulking, waterproofing, 21 floor sealing, polishing, concrete restoration, and 22 specialty coatings. 23 570 West Freedom Avenue The location of Water Heater Man, Inc., a 24 commercial specialist in water heater service and 25 installation. 26 560 West Freedom Avenue The location of Peterson Grading &Paving, a 27 construction contractor specializing in grading, new 28 13 IN2092.1 1 Address Use 2 paving, and repair work for asphalt and concrete. 3 540 West Freedom Avenue The location of OC Baking Company, a high-end 4 artisan bakery. 5 2442 &2444 North American Residence and equipment storage areas for businesses 6 Way operated by the owners of the residence. 7 2390 North American Way American Way Cultural Center Event Venue, a 8 special event venue that holds weddings and other 9 formal gatherings. 10 11 The parcel also includes an equipment storage area 12 owned by the same occupant of the above parcel s 3 13 (2442 &2444 North American Way). This includes .a 14 domestic septic transportation vehicles that deliver 8 €° 15 sanitary waste to OCSD's plant for authorized s 16 disposal. The business, A-1 Septic Pumping, is 17 operated out of Yorba Linda, but stores equipment at 18 this address and is registered with OCSD under Non- 19 Industrial Wastchauler Permit#93. 20 2393 North American Way A warehouse and storage facility for the neighboring 21 Fletcher Coatings at 426 West Fletcher Avenue, 22 which houses a powdercoating operation coating steel 23 pipe and rebar for corrosion protection. A site 24 investigation of 426 West Fletcher Avenue revealed 25 this to be a dry operation,producing no industrial 26 discharge to the sewer. 27 2346 North Pacific Street The location of TMR, Inc., a hydraulic parts supplier 28 14 1042M.1 1 Address Use 2 for vehicles including automobiles, motorcycles, and 3 boats. 4 2341 North Pacific Street This facility discharges to Pacific Street, south of the 5 sampled manhole. 6 7 (District Exhibit 36.) 8 Klean Waters asserts that it has identified three dischargers that may have discharged 9 heavy metals to the sampled manhole including Fletcher Coatings, OCE Printing, and 10 Merical. (KW Brief,p. 11, Ins. 9-12; Hoenig Declaration, ¶ 8.) As noted above, the District 11 has already investigated both Fletcher Coatings and Merical and determined that they do not 12 have wet processes. In addition, OCE Printing is not located in the subject area. Although a ; 13 an intemet search provides an erroneous location for this business, it is actually located on 14 Fletcher and Glassell and is not tributary to the sampled manhole. (District Exhibit 36.) o 15 Klean Waters complains that the samples were combined. (KW Brief,p. 11, Ins. 22- °a ` 16 24.) This is appropriate, however, to determine compliance with Klean Waters' daily 17 maximum effluent limits. (See 40 C.F.R. Part 403, Appendix E, Sampling Procedures.) 18 Further, Klean Waters asserts that it was not"operating" during nine of the 24 hours sampled 19 on March 8th to March 9th. (KW Brief, p. 11, Ins. 25-28; Bracewell Declaration, ¶ 12.) It is 20 unclear what is meant by "operating." The District's investigators witnessed trucks arriving 21 and leaving the Facility in the middle of the night which would not generally be considered 22 "operating" hours. (Declaration of Arnold Chavez, 15.) In addition, the Facility has large 23 storage tanks. Klean Waters need not be open and "operating" in order for these tanks to 24 discharge to the sewer. Given the large volume of wastewater and surcharging observed, this 25 26 27 28 15 1042092.1 I is likely what occurred.' Nonetheless, the District determined that the only other industrial 2 user in this area that could have contributed to the sampling result was not open or operating 3 at the time the sampling was conducted. If there was any other flow at the sampled times, it 4 would have been domestic flow. A domestic flow would have only diluted the sample, 5 which would have reduced the concentrations of constituents detected thus working to Klean 6 Waters' advantage. 7 Klean Waters also asserts that the petroleum smell of the flow was inconsistent with 8 the District's sampling results. Certainly, the District's sampling results include levels of oil 9 and grease of mineral or petroleum origin and benzene, toluene, ethylbenzene, and xylene 10 (BTEX)volatile organic compounds associated with petroleum derivatives, as well as I I significant copper, chrome, and titanium concentrations. Klean Waters states, however, that 12 "Klean Waters' discharge was almost exclusively from Kiewit's construction atthe DWP s 13 Haynes generating station, consisting of water drained from rusted cooling pipes." (KW 14 Brief, p. 12, Ins. 10-13.) This leaves open the possibility that Klean Waters was discharging 15 something else at the same time. For example, manifests obtained by the District show that 3 16 Klean Waters took in waste from Caltrans around March 5, 2014. (See, District Exhibit 33.) 17 Ultimately, though, this is irrelevant. The District has established that the sampling from the 18 manhole was representative of the Klean Waters flow. 19 Klean Waters contends that the District's September sampling results should be 20 disregarded. The District has not yet written any Notice of Violation for these results, and, 21 because the results were obtained after the Complaint was filed, they are not a part of the 22 Administrative Complaint. Nonetheless, the September sampling results were included in 23 the Opening Brief to show that there is reason to believe that Klean Waters has continued to 24 commit significant violations even after the Complaint was filed. Based on the District's 25 investigation of other tributary sources, the District has determined that Klean Waters or 26 Patio Door are the only industrial wet processes in the area. And, Patio Door has a long 27 28 ° Klean Waters states the approximate volume as 600,000 gallons. (Declaration of Shaun Miller, ¶ 11.) 16 ioa MA I history of non-detectable or near non-detectable levels of these constituents. 2 Finally, Klean Waters suggests the solution is for the District to install a 24-hour 3 sampler at the Facility. As set forth above, however, sampling of effluent is not a substitute 4 for the required pretreatment. 5 IV. Mean Waters Does Not Dispute That it Accepted Out-of-Jurisdiction Waste. 6 Klean Waters does not deny that it has accepted out-of-jurisdiction waste without 7 prior review by the District. Instead, Klean Waters contends that the condition is invalid. 8 A. The Condition is Lawful-IQean Waters Had a Grace Period of 296 Days. 9 The District's regulatory authority is limited to the District's service area. Within the 10 District's jurisdiction, the District may inspect, monitor, and enforce its pretreatment 11 program. Outside of the District's service area, however, the District does not have this 12 authority. 4 3 13 For this reason, the District has a policy that waste hauled from a source that is not < s, m E 14 within the District's service area is prohibited unless authorized by the General Manager. Ee"-3 8 k" 15 (See, e.g. Ordinance § 208(D); District Ordinance 40, p. 22.) Most industrial permittees 3 16 generate their own waste rather than receive it from others. Wastehaulers, who in every case 17 accept waste from others, are subject to the pre-approval requirement. Requiring centralized 18 waste treatment facilities like Klean Waters to obtain pre-approval is consistent with this 19 practice. 20 When Klean Waters approached the District about receiving wastewater from 21 Molycotp, the District determined that Klean Waters was likely to seek additional customers 22 outside the District's service area. As set forth in the Ordinance, the terms and conditions of 23 a permit may be modified in the General Manager's discretion based on, among other things, 24 the discharger's current or anticipated operating data or a determination by the General 25 Manager that such a modification is appropriate to further the objectives of the Ordinance. 26 (Ordinance § 302.4(A).) The District thus imposed the condition in the Permit. 27 Klean Waters contends that the condition is invalid because Klean Waters was not 28 informed at least 45 days before it became effective, and Klean Waters did not have 17 1042092.1 I sufficient time to "negotiate an accommodation." (KW Brief,p. 20, Ins. 17-26.) In actuality, 2 Klean Waters had a grace period of nearly 296 days. The permit condition became effective 3 on June 1, 2013. The District issued a Notice of Violation for failure to comply with this 4 provision on March 24, 2014, or 296 days after the condition became effective. At no time 5 during that period did Klean Waters object to the condition or otherwise attempt to negotiate 6 an accommodation. 7 B. Another Centralized Waste Treatment Facility is Complying With the 8 Requirement. 9 Klean Waters alleges that the Permit condition effectively precludes it from accepting 10 waste that originates outside the District's service area. First, Klean Waters alleges that it 11 submitted profiles to the District, but waited months for approval from the District. (KW 12 Brief, p. 22, Ins. 2-18.) As the District has explained on a number of occasions, however, the 13 profiles submitted by Klean Waters were not accompanied by the samples required by the "I 14 Permit. Klean Waters' submittal was therefore incomplete. o` $ 15 Second, Klean Waters asserts that this process is unreasonable because out-of-area 3 � 16 clients cannot afford to wait for sampling results. (KW Brief, p. 22, Ins. 13-15.) To the 17 contrary, the only other centralized waste treatment facility within the District's jurisdiction 18 is successfully complying with this requirement. (See, Industrial Wastewater Discharge 19 Class I Permit No. 52-1-835 issued to Storm Water Online, Inc. on March 31, 2014; District 20 Exhibit 37.) Under this Permit, Storm Water Online submits profiles and sampling from out- 21 of-jurisdiction customers for District review. The condition has been implemented without 22 incident. 23 C. The District's Permit Condition is Not Preempted. 24 Kern County Measure E bans the land application of biosolids in unincorporated Kern 25 County. The land application process allows biosolids to be reused beneficially rather than 26 disposed in landfills or incinerators. The District, among others, has challenged this ban 27 because it is preempted by the clear directives in the Integrated Waste Management Act that 28 18 IN20M 1 local agencies promote and maximize the recycling of solid waste. (See Public Resources 2 Code § 40051.) 3 Klean Waters attempts to analogize its Permit condition to the land application ban in 4 Measure E, and argues that the Permit condition is somehow preempted by State law. The 5 analogy is flawed for many reasons. 6 Klean Waters recites the law generally applicable to conflict preemption, and a 7 general proposition from the Water Code. (KW Brief, p. 23, Ins. 10-15 (citing Water Code § 8 13000).) This provision of the Water Code states that "[tjhe Legislature further finds and 9 declares that activities and factors which may affect the quality of the waters of the state 10 shall be regulated to attain the highest water quality which is reasonable, considering all I I demands being made and to be made on those waters and the total values involved, 12 beneficial and detrimental, economic and social,tangible and intangible." (Water Code § a 13 13000.) Klean Waters provides no analysis explaining why this general proposition in the s 14 Water Code purportedly preempts the Permit Condition. " 15 At best, Klean Waters characterizes the Permit Condition as "effectively" banning 16 Klean Waters from treating wastewater to promote clean water as encouraged by state law. 17 This is simply not the case. First, unlike Measure E,the Permit Condition does not ban any 18 activity. Second, as explained above, the Permit Condition has not "effectively"banned any 19 treatment activity either. The District estimates that Klean Waters has taken in and 20 discharged over 38 million gallons of wastewater in the last fiscal year alone. Moreover, the 21 only other Centralized Waste Treatment Facility within the District's jurisdiction is 22 successfully complying with this requirement. If anything is preventing Klean Waters from 23 receiving out-of-jurisdiction waste, it is its own failure to submit the documentation required 24 by the Permit Condition. 25 V. The Hearine Date Should Not Be Continued 26 Klean Waters has filed a motion for continuance. The District will soon file an 27 opposition to that motion. This section addresses the arguments raised in Klean Waters' 28 brief regarding a hearing continuance. 19 IMN2.1 I A. The District's Hearing Procedures Do Not Violate Due Process 2 Pursuant to the 141s Amendment to the U.S. Constitution, and Article I sections 7 and 3 15 of the California Constitution, "life, liberty, or property" may not be taken in an 4 adjudicative administrative action without due process consistent with the interest at stake. 5 The U.S. Supreme Court has defined the issue as whether a given interest has "vested,"thus 6 requiring a hearing with full procedural safeguards before a taking, or whether the item or 7 activity merely involves a"privilege" that might be taken at the discretion of the 8 administrative agency with minimal or no procedural safeguards (Barsky v. Board of Regents 9 off Y. (1954) 347 U.S. 442, 451). 10 Here, no "vesting" or property interest exists to discharge into the District's facilities. 11 The District provides a privilege and a revocable right to connect and discharge to its 12 facilities subject to preconditions, such as the payment of a fee and/or the compliance with 13 regulations. In fact, the District's regulations have the force of law within its jurisdiction. In 14 County Sanitation District v. ARCO (1990) 218 Cal.App.3d 98, the court held that a »w `°cs 15 Sanitation District's ordinance has the same force within the District's jurisdictional limits as a 16 a statute passed by the Legislature has throughout the state (Id. at 107). The court further 17 accepted the Sanitation District's assertion that it is "not under any obligation to accept 18 industrial wastes into [its] system" but for the adoption of the ordinance authorizing the 19 issuance of industrial permits. Consequently, the court accepted that the Sanitation District 20 has no common law duty to accept industrial waste into its system (Id. at 108). 21 Similarly, in Hobby v. City of Sonora (1956) 142 Cal.App.2d 457, the court confirmed 22 that a connection into the sewer system of a sewer agency does not grant a vested property 23 right as it only provides a revocable permit to connect to the sewer system. The court thus 24 confirmed that a sewer agency is not required to allow a person to connect to its sewer 25 system or to continue to discharge wastewater except pursuant to the permit conditions (Id. 26 at 460). Finally, in Getz v. Pebble Beach Community Services District (1990) 219 27 Cal.App.3d 229, the court confirmed that a sewer agency may deny the right of a property 28 owner or user to connect to its sewer system, especially when the proposed connection 20 1042092.1 I would violate its rules, regulations, and policies. In sum, the right of Klean Waters to 2 continue to discharge into the District's sewer and sewage treatment system is limited by the 3 District's regulations established in the Ordinance and the Permit. 4 Klean Waters claims that the District's powers are limited by the Constitutional grant 5 of powers to counties and cities. This is not so. The District is considered an extension of 6 the State and its powers to operate its sewerage facilities are broadly granted pursuant to the 7 County Sanitation District Act of 1939, Health & Safety Code 4700 et seq. In Home 8 Gardens Sanitary District v. City of Corona (2002) 96 Cal.App.4th 87, the court confirmed 9 that special districts exercising powers granted by State statute "exercise a portion of the 10 police power of the state within their district boundaries, which is superior to the police I powers exercised by cities or counties to the extent that they conflict." (Id. at 94-95). 12 B. A Further Continuance is Not Warranted 13 The District's Ordinance requires that this matter be heard within not less than 15 s <:E 14 days and not more than 45 days after the Complaint is mailed to the permitee. (Ordinance § yoo 8 a` 15 605(B).) These time periods are based on the District's important public health and safety 3 16 mandate. Here, although the hearing could have been set 15 days from September 17, 2014, 17 the hearing was actually set for 42 days later on October 29, 2014. The hearing has now 18 been continued to November 6, 2014, or 50 days after service of the Complaint. 19 Although the District has been working to bring Klean Waters into compliance for 20 approximately 9 months, Klean Waters contends it needs a continuance of the hearing of this 21 matter. Klean Waters has had ample notice and time to prepare. In May of this year, Klean 22 Waters retained at least two separate lawyers to defend the District's enforcement efforts, 23 Thomas H. Bienert, Jr. of Bienert, Miller & Katzman, PLC, and Richard J. McNeil of Snell 24 & Wilmer. It is unclear why Mr. Bienert and/or Mr. McNeil no longer represent Klean 25 Waters. In any case, it is the District's duty to enforce the federal and local pretreatment 26 regulations. The District is not responsible for any alleged failure of Klean Waters to 27 employ or retain counsel in a timely manner. 28 Klean Waters specifically seeks a continuance of the hearing date because it has not 21 I042092A I yet received responses to five requests it has submitted to the District under the California 2 Public Records Act(Government Code sections 6250 et seq.) The Public Records Act, 3 however, is a regulatory scheme wholly separate and distinct from the administrative 4 proceeding at issue here. Klean Waters' records requests have no bearing here. 5 Nonetheless, without any basis, Klean Waters alleges that the District's responses to 6 its Public Records Act requests have been untimely. (See, KW Brief, p. 4, Ins. 2-3). Klean 7 Waters made this allegation on October 21, 2014. The District, however, was not obligated 8 under the Public Records Act to provide an initial determination as to any of the requests by 9 that date, let alone records. 10 Under the Public Records Act, a public agency provides an initial determination to a 11 requester within ten calendar days from receipt of the request. (Government Code § 12 6253(c).) In the initial determination, the public agency informs the requester whether or not a 13 the agency is in the possession of disclosable public records, and provides the estimated date paa 14 and time when records will be made available. (Id.) There is no specified time in which g 15 records must be provided following the issuance of an initial determination. Where the .- 3 16 request seeks a voluminous amount of separate and distinct records in a single request, the 17 ten day period for the initial determination may be extended 14 calendar days. (Government 18 Code § 6253(c)(2).) 19 Klean Waters' records requests were submitted on October 3, 2014, October 13, 2014, 20 October 14, 2014, October 16, 2014, and October 20, 2014, respectively. The District's 21 response to Klean Waters request dated October 3, 2014 was due on October 13, 2014. The 22 request seeks 28 categories of documents. Pursuant to Government Code section 6253(c), 23 the District extended the ten day period for the initial determination to October 27, 2014. 24 Otherwise, the District's initial determination on each of Klean Waters' other requests are/ 25 were due on October 24, 2014, October 27, 2014, October 27, 2014, and October 31, 2014, 26 respectively. As a result, none of the District's responses were "untimely" on October 21, 27 2014 when Klean Waters filed its brief. Moreover, the District has now provided an initial 28 determination regarding the October 3, 2014, October 14, 2014, and October 16, 2014 22 IN2Ml I requests. Additionally, the District has now provided an initial determination and responsive 2 records to the October 13, 2014 request. 3 Further, all of the Klean Waters' records requests seek documents related to the 4 District's sampling in March of 2014 and the related March Order to Cease. Some 5 exclusively seek information related to the District's sampling procedures and policies. . 6 Klean Waters provides no explanation why these requests were not submitted at any time 7 over the past 7 months. 8 VI. Conclusion 9 For the reasons set forth above, and as set forth in the District's Opening Brief,the 10 Permit should be revoked and penalties in the amount of$2,055,000 should be imposed. 11 DATED: October 27, 2014 WOODRUFF, SPRADLIN & SMART, APC 12 a 13 By: f 3 BRAbLEY R. HOG 14 RICIA R. HAGER m=u 8 Qa 15 Attorneys for GRAN r COUNTY SANITATION DISTRICT 16 17 18 19 20 21 22 23 24 25 26 27 28 23 1042092.1 I PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF ORANGE 3 I am over the age of 18 and not a party to the within action; I am employed by WOODRUFF, SPRADLIN & SMART in the County of Orange at 555 Anton Boulevard, 4 Suite 1200, Costa Mesa, California 92626-7670. 5 On October � , 2014, I served the foregoing document(s) described as ORANGE 6 COUNTY SANITATION DISTRICT'S REPLY BRIEF 7 0 by placing the true copies thereof enclosed in sealed envelopes addressed as stated on the attached mailing list; 8 ❑ (BY MAIL) I placed said envelope( for collection and mailing, following ordinary q business practices, at the business o ices of WOODRUFF, SPRADLIN & SMART, and addressed as shown on the attached service list, for deposit in the United States 10 Postal Service. I am readily familiar with the practice of WOODRUFF, SPRADLIN & SMART for collection and processing correspondence for mailing with the United 11 States Postal Service, and said envelope(s) will be deposited with the United States Postal Service on said date in the ordinary course of business. 12 ❑ (BY ELECTRONIC MAIL) by causing the foregoing document(s) to be 13 electronically mailed on the individual(s) listed on the attached mailing list. ` 14 0 (BY OVERNIGHT DELIVERY) I placed said documents in envelope(s) for collection following ordinary business practices, at the business offices of g 15 WOODRUFF, SPRADLIN & SMART, and addressed as shown on the attached 3 service list, for collection and delivery to a courier authorized by Overnite Express to 16 receive said documents, with delivery fees provided for. I am readily familiar with the practices of WOODRUFF, SPRADLIN & SMART for collection and processing 17 of documents for overnight delivery, and said envelope(s) will be deposited for 18 receipt by Overnite Express on said date in the ordinary course of business. ❑ (BY FACSIMILE) I caused the above-referenced document to be transmitted to the 19 interested parties via facsimile transmission to the fax number(s) as stated on the attached service list. 20 ❑x (State) I declare under penalty of perjury under the laws of the State of California 21 that the above is true and correct. 22 ❑ (Federal) I declare that I am employed in the office of a member of the bar of this 23 court at whose direction the service was made. I declare under penalty of perjury that the above is true and correct. 24 Executed on October 2014 at Costa Mesa, California. 25 26 'A B BBIE MARS - 27 28 24 1042092.1 1 2 3 SERVICE LIST 4 5 Matthew Kaplan Tucker Ellis LLP 6 515 South Flower Street 7 42nd Floor Los Angeles, CA 90071 8 (213)430-3400 Telephone (213)430-3409 Facsimile 9 10 Carmen Trutanich. 515 South Flower Street 11 42nd Floor Los Angeles, CA 90071-2223 12 (213)430-3400 Telephone a 13 (213)430-3409 Facsimile s .a 14 8 15 3 16 17 18 19 20 21 22 23 24 25 26 27 28 25 1042092.1 I TUCKER ELLIS LLP CARMEN A. TRUTANICH (State Bar No. 86629) 2 carmen.tmtanich@tuckerellis.com MATTHEW I. KAPLAN (State Bar No. 177242) 3 matthew.kaplan@tuckerellis.com WILLIAM H. DANCE(State Bar No. 230041) 4 william.dance@tuckerellis.com 515 South Flower Street 5 Forty-Second Floor Los Angeles, CA 90071-2223 6 Telephone: 213.430.3400 Facsimile: 213.430.3409 7 8 Attorneys for Respondents KLEAN WATERS,INC., SHAUN MILLER 9 and TIM MILLER 10 ORANGE COUNTY SANITATION DISTRICT 11 In the Matter of: y RESPONDENTS' CORRECTED 12 KLEAN WATERS,INC., SHAUN MILLER SUPPLEMENTAL BRIEF AND TIM MILLER 13 Hearing Date: November 13, 2014 h i� 14 Industrial Wastewater Discharge Permit No. Time: 10:00 A.M. 52-1-841. Location: OCSD Administrative Office 15 10844 Ellis Avenue Fountain Valley, CA 92708 O 16 Hearing Officer: Roberta L. Larson $ 17 18 0 19 20 21 22 23 24 25 26 27 28 RESPONDENTS'CORRECTED SUPPLEMENTAL BRIEF 1036212/1/ I TABLE OF CONTENTS 2 I. INTRODUCTION................................................................................................................1 3 II. SUMMARY OF KLEAN WATERS,INC.'S SUPPLEMENTAL RESPONSE.................2 4 A. The Dispute Results from Vindictive Conduct by Sohanaki....................................2 5 B. The Out of Area Wastewater Limitation Is Unreasonable and Illegal .....................2 6 C. I{lean Waters' Pretreatment Process is Compliant...................................................3 7 D. OCSD's Sampling Was Flawed And Unreliable And Proves Nothing....................3 8 E. Limited Denial of Access Was Motivated by OCSD's Arbitrary 9 Enforcement............................................................................ .................................4 10 F. No Harm Has Resulted From Klean Waters' Conduct.............................................4 11 III. OCSD PERMISSION WAS NOT REQUIRED FOR OUT-OF-JURISDICTION 12 WASTEWATER..................................................................................................................4 13 IV. OCSD'S PRETREATMENT NONCOMPLIANCE ALLEGATIONS ARE aFALSE..................................................................................................................................5 3 a 14 A. OCSD Sampling is Unreliable..................................................................................9 15 Y16 B. Denials.................................................................................................................... II F" E 17 V. PENALTIES.......................................................................................................................15 49 18 A. Extent of Harm...................................................................................:....................15 u 19 B. Economic Benefit Derived...................................................................................... 17 20 C. Nature and Persistence of Violation.......................................................................17 21 D. Corrective Action Taken or Attempted by Discharge............................................17 22 VI. CONCLUSION................................................................................................................... 18 23 24 25 26 27 28 i TABLE OF CONTENTS 014100/000001/1036212/1 I TABLE OF AUTHORITIES 2 Cases 3 4 Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985)39 Cal.3d 878...........................5 5 City of Arcadia v. State Water Res. Control Bd. (2010) 191 Cal.App.4th 156..........................................5 6 San Diego WatercraJts, Inc. v. Wells Fargo Bank N.A. (2002) 102 Ca1.App.4s'308................................9 7 Other Authorities 8 9 (httpl/wwwmeniam-webster.com/dictionary/sandbag.............................................................................9 Wat.Code, § 13000.....................................................................................................................................5 10 11 12 a 13 =I 0 14 15 E16 a 17 U 18 C) 19 20 21 22 23 24 25 26 27 28 i RESPONDENTS'CORRECTED SUPPLEMENTAL BRIEF 1036212n/ 1 I. INTRODUCTION 2 OCSD has breached its duty to enforce consistently, impartially,and reasonably. When Klean 3 Waters approached OCSD for its pert,OCSD employees had absolutely no knowledge how to permit 4 and regulate a centralized wastewater treatment facility. Klean Waters' president and owner,Tim 5 Miller, educated OCSD employees based on his extensive experience building, obtaining permits, and 6 operating wastewater facilities with exemplary compliance records. (Declaration of Tim Miller at¶¶2- 7 10.) OCSD employees,primarily inspector Martin Holl,provided their interpretation of permit 8 provisions to Klean Waters and lean Waters abided by these interpretations. (Id. at¶111.27.) 9 Then, abruptly, in February 2014,the relationship between OCSD and Klean Waters soured. gg 10 With no change in permit provisions and no change in the way Klean Waters complied with the permit, .2 11 suddenly OCSD became bent on putting Klean Waters out of business and putting Tim Miller and his h12 son Shaun into personal bankruptcy. a 13 What happened? OCSD employee Roya Sohamaki, Engineering Supervisor in charge of issuing 14 permits and enforcing compliance,had only a partial understanding of the requirements and limitations 15 of centralized waste treatment facilities. (Declaration of Tim Miller at¶¶41-50.) She imposed u 16 conditions for additional build-out that were not based on CWT processes;some were appropriate for 17 treatment of hazardous waste,which Klean Waters did not do. (Id.) When Tim Miller objected and ag 18 tried to point out to her why she was mistaken, she became angry. (Declaration of Tim Miller at 142.) 19 The relationship deteriorated and Sohanaki appears to have become convinced Tim Miller was somehow 20 trying to game her system. (Declaration of Tim Miller at¶¶41-64) Ms. Sohanaki's system is not a 21 regime of consistency, impartiality,and fairness; it is the opposite. She changed the rules at will and 22 applied them in ways that make compliance impossible. Beginning with a meeting between OCSD and 23 Klean Waters on February 11,2014,through a March 2014 sting operation and an April 2014 meeting in 24 which Sohanaki virtually tried to extort$40,000 out of Klean Waters,and continuing to the present, 25 Sohanaki's purpose has been to punish Klean Waters over a series of events that she has tramped up into 26 allegations of massive violation but which are, in reality, largely the results of poorly written permit 27 conditions she enforces arbitrarily,vindictively, and with malice. (See Declaration of Tim Miller 28 generally and particularly¶¶41-64.) 1 RESPONDENTS'CORRECTED SUPPLEMENTAL BRIEF 1036212/1/ 1 Instead of imposing the draconian penalties OCSD seeks, the Hearing Officer should recognize 2 that most of the charged violations are without legal foundation. No business could have complied with 3 Sohanaki's deliberate, capricious misapplication of its Hiles. A reasonable solution would be to instruct 4 OCSD to enforce the Hiles consistently and as written and to instruct Klean Waters and OCSD to work 5 out their differences in a mediation and reset their relationship,putting aside personality conflicts and 6 recognizing that both sides have a duty to act responsibly with the shared goal of cleaning wastewater to 7 meet EPA requirements. 8 IL SUMMARY OF KLEAN WATERS,INC.'S SUPPLEMENTAL RESPONSE 9 OCSD's positions on permission for out-of-area wastewater acceptance,Klean Waters' 10 pretreatment process,and denial of access are filled with error and mischaracteriration. 11 A. The Dispute Results from Vindictive Conduct by Sohanaki 12 Tim Miller describes at length in his declaration the deterioration in his relationship with 13 Sohanaki and the near-vendetta she has engaged in to punish him,his son Shaun Miller,and 14 Klean Waters. (See Declaration of Tim Miller at¶¶41- 64.) w ! 15 B. The Out of Area Wastewater Limitation Is Unreasonable and Illegal 16 Mean Waters will comply with a reasonable plan from OCSD to submit waste generator 17 profiles and information about wastewater for OCSD review. 18 Tim Miller's Declaration at paragraphs 19-28 describes how this limitation was one OCSD v 6 19 had never imposed before and did not know how to enforce; Inspector Martin Holl allowed 20 Klean Waters to accept out-of area wastewater while awaiting guidance from his 21 supervisors as to how Klean Waters could comply but the guidance never came. 22 • Klean Waters' permit Special Condition does not require it to seek permission to accept out- 23 of-area wastewater 24 • The Special Condition is legally unenforceable as applied because it is preempted 25 • OCSD's enforcement rendered compliance impossible 26 • OCSD is judicially estopped from arguing that the Condition is enforceable. 27 28 / / / 2 RESPONDENTS'CORRECTED SUPPLEMENTAL BRIEF 1036212)1/ I C. Klean Waters'Pretreatment Process is Compliant 2 • Klean Waters' pretreatment process is compliant with the Permit,the Ordinance,the 3 underlying EPA regulations, and its own plans and specifications for a Category D batch 4 treatment CWT facility 5 • Manual dispensing of pretreatment chemicals is identical in terms of the pretreatment process 6 to mechanical dispensing. 7 • OCSD approved Klean Waters' manual pretreatment by issuing the permit without a 8 condition requiring installation of the chemical tanks because the inspectors, if not Sohanaki, 9 understood manual and mechanical addition of pretreatment chemicals produced identical 10 results. 11 The EPA contract inspector from Tetra Tech, Inc. implicitly recognized that manual 12 pretreatment was acceptable when she inspected Klean Waters on February 20,2014. 13 OCSD inspected Klean Waters for many months without raising a concern over manual a � � 14 pretreatment,amounting to approval. G 15 Pretreatment method only became a problem at the February 11,2014 meeting at which 16 Sohanaki demanded that Klean Waters also install equipment to treat wastewater containing 17 hazardous volatile organic compounds,something no CWT is allowed to do under EPA 0 18 regulations. G 19 D. OCSD's Sampling Was Flawed And Unreliable And Proves Nothing 20 • The September lab results are flawed in their sampling and testing methodology and their 21 failure to eliminate sources other than Klean Waters;the constituent concentrations allegedly 22 detected in the sewage cannot be attributed to Klean Waters. 23 • But the fact that OCSD is trying shows how irrationally focused on punishing Klean Waters 24 OCSD has become. 25 • The March lab results leading to allegations of noncompliant discharge by Klean Waters are 26 likewise flawed in their sampling and testing methodology and their failure to eliminate 27 sources other than Klean Waters;the constituent concentrations allegedly detected in the 28 sewage cannot be attributed to Klean Waters. 3 RESPONDENTS'CORRECTED SUPPLEMENTAL BRIEF Im62un/ 1 E. Limited Denial of Access Was Motivated by OCSD's Arbitrary Enforcement 2 • Klean Waters will make its facility available to OCSD at any time and has offered to install a 3 24n sampling device to assure OCSD of its discharge compliance, though OCSD responded 4 by saying its employees are all too busy to address this offer. 5 • Klean Waters allowed sampling and access to the pretreatment area even while it denied 6 access to certain OCSD employees to protect its trade secrets 7 • Klean Waters denied access to OCSD employee Arnold Chavez because it was obvious to 8 Klean Waters employees he favored Mean Waters' competitor, Stormwater Online,and 9 would pass on Klean Waters' trade secrets if he could. 10 F. No Harm Has Resulted From Klean Waters' Conduct 11 The acceptance of out-of-area wastewater caused no harm because it was all compliant when 12 Klean Waters discharged it. a A 13 Klean Waters' pretreatment process adequately pretreats wastewater that requires it. 14 The March test results, even if they could be attributed to Klean Waters, which they cannot, 15 show levels of chromium and copper that are below OCSD's maximum allowable local 16 discharge limits for those metals, so the presence of the metals caused no harm regardless of 17 the source of the contamination. 18 The denial of access caused no harm because Klean Waters kept records and will provide 0 19 them for OCSD review and because Klean Waters allowed quarterly sampling. 20 M. OCSD PERMISSION WAS NOT REQUIRED FOR OUT-OF4URISDICTION 21 WASTEWATER 22 The Special Condition in the Permit requires Klean Waters to"submit for review"profiles and 23 sample data. (See Permit 52-1-841,OCSD Exh. 8,at page 13.) "[S]ubmit for review"does not have the 24 same meaning as `obtaining the District's permission." This point is not disputable. Yet OCSD 25 continues to argue that Klean Waters acted`without obtaining the District's permission as required by 26 the Permit." This is nonsense and is an example of OCSD's arbitrary enforcement. 27 OCSD argues that for 296 days, Klean Waters had the opportunity to object to and negotiate this 28 Special Condition but did not do so. This is not accurate; Mean Waters engaged in extensive efforts 4 RESPONDENTS'CORRECTED SUPPLEMENTAL BRIEF 103621211/ 1 over many months to determine how OCSD wanted it to comply in a reasonable way. Tim Miller 2 explains the many efforts he made to find out how OCSD wanted Klean Waters to comply with the 3 Special Condition. For many months OCSD inspector Martin Holl told Tim that OCSD did not know 4 how to enforce compliance. Klean Waters provided two customer lists to OCSD at its request and Mr. 5 Holl deemed this sufficient pending clarification from his superiors. Rather than providing clarification, 6 though, OCSD sent a Notice of Violation on March 24, 2014. (Declaration of Tim Miller at¶¶ 19-278.) 7 OCSD does not dispute that it failed to provide compliance direction when Klean Waters sought 8 it and submitted confidential client lists. This failure to respond illustrates the unreasonable and 9 dysfunctional way OCSD conducted its regulation of Klean Waters. It is absurd for OCSD to argue that 10 Klean Waters should have waited months for a response;the delay renders even the provision as written, 11 "submit for review," impossible to comply with. 12 Judicial estoppel precludes OCSD from arguing that Klean Waters should be penalized for a 13 accepting out-of-jurisdiction waste. Mean Waters argued this in its Responsive Brief and OCSD 14 conceded the point by failing to even address it in its reply. The Hearing Officer should dismiss this 15 count in its entirety on this basis alone. 16 State law preempts the Special Condition purportedly governing out-of-jurisdiction waste as 17 applied by OCSD. Where the purpose of a state law and the local regulation conflict,the regulation is 18 preempted. (Candid Enterprises, Inc. v. Grossmont Union High School Dist. (1985) 39 CaUd 878, 885. 0 19 The purpose of the state law governing wastewater treatment"is 'to attain the highest water quality 20 which is reasonable,considering all demands being made and to be made on those waters and the total 21 values involved,beneficial and detrimental,economic and social,tangible and intangible."' (City of 22 Arcadia v. State Water Res. Control Bd. (2010) 191 Cal.App.4th 156, 164,as modified on denial of 23 reh'g(Jan. 20, 2011) (quoting Wat.Code, § 13000).) Because the Special Condition as enforced had the 24 effect of precluding Klean Waters from treating certain wastewater to accomplish the goal of the state 25 law, to attain the highest reasonable water quality, it conflicts with the state law and is preempted. 26 IV. OCSD'S PRETREATMENT NONCOMPLIANCE ALLEGATIONS ARE FALSE 27 Nothing shows the inconsistent and arbitrary nature of OCSD's enforcement better than its 28 contention that Klean Waters'permit should be revoked and it should be fined for failing to pretreat 5 RESPONDENTS' CORRECTED SUPPLEMENTAL BRIEF 1036312/1/ 1 wastewater with a maximum penalty for every day it has been in operation. (OCSD Opening Brief at 2 pgs. 23-24.) 3 Considerable evidence establishes that Klean Waters pretreated wastewater. Documentary 4 evidence of pretreatment includes receipts for pretreatment chemical purchases and billing and receipts 5 for sludge produced from Mean Waters. (See Declaration of Tim Miller at¶¶37-38 and Exh. J.; see 6 also Declaration of Shaun Miller at¶¶5-9 and exhibits documenting chemical purchases and sludge 7 receipts.) 8 Even the declarations of OCSD employees state that they observed pretreatment taking place. 9 See,e.g.,Declaration of Jamie M.Malpede, OCSD Principal Environmental Specialist with OCSD 10 (Declaration 10 in support of OCSD Opening Brief): "On May 22,2014, I visited the Facility to I1 perform a quarterly compliance inspection and sampling. I observed that the chemical dosing m the � P 4 Y P sP Pam• 8 N12 pretreatment system was performed manually with an undisclosed polymer and a bucket. There a 13 appeared to be some progress in the installation of the chemical feed system,but it was not connected or 14 operational." See also Ex.A to Declaration of David Francis (Declaration 6 in support of OCSD S 15 Opening Brief),describing the pretreatment process he observed on July 3,2014. 16 OCSD's real argument seems to be that pretreatment by manual addition of chemicals is not 8 17 consistent with Mean Waters'permit and is not a valid type of pretreatment. This argument is wrong 18 both as to the permit and as to the validity of the methodology. Klean Waters' certification,part of its 0 19 application process for the June 2013 permit modification, stated,"per our plans and specifications,we 20 are a batch treatment facility where each load of wastewater is segregated for individual treatment to 21 meet of auent limits." (Exhibit 6 in support of OCSD Opening Brief.) This was correct at the time it 22 was written and remained accurate throughout the permit period through today. 23 According to Dr. Lloyd Bracewell,batch treatment means,"wastewater is added to a tank and 24 treated to whatever extent is necessary until the desired level of treatment has been reached and then 25 discharged. Then another batch of wastewater is added to the tank and the process repeated" 26 (Supplemental Declaration of Dr. Lloyd Bracewell at 18.) For chemical addition,Klean Waters 27 purchased and stored chemicals in 55 gallon drums in their chemical storage building and used a 28 graduated 5 gallon bucket to manually pour chemicals directly into a batch tank and provide air to mix 6 RESPONDENTS'CORRECTED SUPPLEMENTAL BRIEF 1036212/l/ 1 the chemical. (Declaration of Shaun Miller at¶¶8-9.) In September, installation of the chemical feed 2 pumps and piping was completed to supply various chemicals to whichever tank was selected. 3 (Declaration of Tim Miller at 136.) According to Dr.Bracewell, "the two chemical feed systems are 4 completely equivalent,with both being operated manually and providing the exact same level of 5 treatment. There is no significant difference whether the method of adding chemical is manually using a 6 bucket or manually using a pump...:' (Declaration of Dr. Lloyd Bracewell at¶8.) "[T]he method of 7 providing chemical addition is not part of the definition of a batch treatment process." (Aid.) 8 Dr. Lloyd Bracewell reviewed EPA regulations and could find stating the treatment system 9 provided by Klean Waters must match exactly the flow diagram. (Declaration of Dr. Lloyd Bracewell at 10 115.) The sample flow diagram on p. 8-4 of EPA's Small Entity Compliance Guide, Centralized Waste 11 Treatment Effluent Limitations Guidelines and Pretreatment Standards(2001) shows treatment steps p 12 labeled `Primary Chemical Precipitation' and 'Secondary Chemical Precipitation'. Nowhere do they N j 9 13 call out the method of chemical addition to effect this chemical precipitation. The sample flow diagram a 14 on p. 8-10 shows the addition of sulfuric acid,polymer,caustic, lime and pH adjusting chemicals 15 without mention of the method of addition. It is clear that EPA is concerned with the addition of these u 16 chemicals,not the method of addition," (Ibid.) 17 OCSD employees Martin Hall,the permit writer assigned to Klean Waters, and inspector David 18 Francis inspected Klean Waters' facility after Klean Waters submitted its application for a Category D a U 19 CTW permit but before the OCSD actually issued the permit. (Declaration of Tim Miller at¶ 11.) Hall 20 was aware of Klean Waters' representation of how the process would work because he reviewed the 21 permit application. (Declaration of Martin Hall at¶5.) Tim Miller explained, "Mr. Holl,Mr. Francis 22 and I walked through our facility and I explained to them how we were going to operate our batch 23 treatment with chemical addition treatment system. At this time, we did not have our facility completely 24 built out. We were still in the process of installing our process tanks and piping and had not begun 25 installing our catwalk or hard-piped chemical pumping system. Still,Mr. Holl and Mr. Francis were 26 satisfied with our facility and treatment plans and handed us our permit." (Declaration of Tun Miller at 27 111.) 28 111 7 RESPONDENTS'CORRECTED SUPPLEMENTAL BRIEF 1036212/11 I Between February 18 and February 20,2014, 1-Hain Lee from Tetra Tech,Inc.,under contract 2 with EPA, performed a pretreatment compliance inspection of Klean Waters' facilities on behalf of the 3 California Regional Water Quality Control Board. (Pretreatment Compliance Report, attached to 4 Declaration of Tim Miller as Exh.F.) In the October 8,2014 Pretreatment Compliance Inspection 5 Report,the EPA contractor wrote the"facility analyzes each batch of water brought in using its own lab 6 equipment to determine the load's characteristics,then conducts a bench-scale test to determine which 7 treatment chemicals should be used. Each load of waste is treated separately and is not mixed with other 8 wastewaters." (Id. at attached Site Visit Data Sheet for Klean Waters.) Ms.Hsin-Lee also directly 9 addressed the chemical delivery methodology with Tim Miller,who was on-site at the time,and 10 reported her findings: yI 1 During the site visit,the inspection team asked how treatment chemicals s 12 are added to the tank because there were no observed chemical feed lines. 13 The facility representative stated that the treatment chemicals are 14 manually poured into the tanks via 5-gallon buckets.... Furthermore,the 15 facility representative indicated that they are in the process of installing 16 automated chemical feed lines. H 17 (Ibid.) 18 Dr. Bracewell reviewed the report and stated"As can be seen from this inspection report,the a 19 auditors found no problem with Klean Waters adding chemicals manually ... since in their 20 recommendations they did not even mention that the chemical metering pumps were missing or were 21 required for Klean Waters to be in compliance. Since the auditors found no problems at Mean Waters 22 during their inspection,Klean Waters was quite justified in believing their pretreatment system, as they 23 had explained how it was being operated to the inspector during the inspection,was in compliance." 24 (Declaration of Dr. Lloyd Bracewell at¶ 11.) 25 Klean Waters encountered many difficulties installing the chemical feed tanks. It went through 26 three electricians and four fabricators before it was able to bring the chemical feed system online. The 27 system is now online,but the process consumed many months. (Declaration of Tim Miller at¶¶31,33- 28 36.) 8 RESPONDENTS'CORRECTED SUPPLEMENTAL BRIEF 103621VII I A. OCSD Sampling is Unreliable 2 Preliminarily, it is not fair for one side to rely on evidence it could have,but chose not to, 3 produce to the other side. In lay terms, it is called sandbagging. Merriam Webster online dictionary 4 defines sandbagging as"to hide the truth about oneself so as to gain an advantage over another." 5 (bM:/Avww.merri=-webster.com/dictionar`V­­/`­sandbag,accessed by William Dance on November 3, 6 2014.) This also applies in legal proceedings. (See, e.g.,San Diego Watercrafts, Inc. v. Wells Fargo 7 Bank N.A. (2002) 102 Cal.App.0 308,316(consideration of evidence first submitted in reply brief 8 implicates due process concerns on summaryjudgment).) That is exactly what OCSD did with the 9 documents describing the sewer study made in connection with the March 8-10 sting. The Hearing 10 Officer should not tolerate the use of documents and evidence at the hearing that OCSD could have but s11 did not produce to Klean Waters in response to its public record requests. 12 In its Opening Brief, OCSD made alarming allegations that Klean Waters had engaged in a 13 egregious noncompliance during eight days in September 2014. (OCSD Opening Brief at pgs. 15-16.) a 5 14 The allegations suggest that Mean Waters was a chronic and major violator. But Klean Waters pointed w g e 15 out in its Reply Brief that Klean Waters was not discharging at all when 26 of the 30"major violations" x a „ 16 events OCSD alleged occurred. Based on that fact,it was very unlikely that any of the noncompliant 17 samples originated from Klean Waters. 18 OCSD had little more to say about the allegations of massive September violations in its Reply chi 19 Brief. (See OCSD Reply Brief at pgs. 16-17.) OCSD did not venture an explanation of how Klean 20 Waters could have been responsible for the 26 violations on days it discharged no wastewater because 21 there was nothing to be said. (See id.) The allegations are patently indefensible. 22 Nevertheless,the September allegations are important to the Hearing Officer's understanding of 23 this case for what they reveal of OCSD's state of mind. OCSD is unwilling to accept the possibility that 24 the September samples are not traceable to Klean Waters in the face of overwhelming evidence that this 25 is so. Its stubbornness on this point indicates just how determined OCSD is to pin massive wrongdoing 26 on Klean Waters,regardless of whether Mean Waters actually engaged in the alleged misconduct. 27 OCSD has lost all objectivity with respect to Klean Waters,to such an extent that it is willing to ignore 28 some other entity dumping large quantities of heavy metals into its sewer system, endangering the water 9 RESPONDENTS'CORRECTED SUPPLEMENTAL BRIEF 1036212/1/ I that OCSD is supposed to protect,so that the agency can"get their man." 2 With respect to OCSD's March 8-10 allegations of noncompliant discharge, Stormwater Online, 3 Klean Waters' competitor,told its OCSD inspector,Arnold Chavez,that it had been approached to 4 accept wastewater from the Haynes DWP generating plant that tested as being untreatable to acceptable 5 OCSD limits. (Declaration of Arnold Chavez at 14.) Stormwater had tamed the loads down and had 6 then heard that KQean Waters was going to take them. (Id.) Chavez apparently reported this to 7 Sohanaki,who seized the apparent opportunity to catch Klean Waters in a permit violation. 8 Analysis of the available relevant OCSD exhibits by Klean Waters' experts Dr. Lloyd Bracewell, 9 Dr. Carla Kagel,and Dr. Dwight Hoenig—even without access to the voluminous additional 10 documentation required of OCSD but not provided to Klean Waters despite its public records requests- 11 indicates that OCSD's investigation and sampling were so methodologically flawed as to be unreliable. y12 Dr. Hoenig examined OCSD's documents describing its efforts to eliminate all other possible a 13 sources of the sewage OCSD alleges was noncompliant discharge by Klean Waters. In his Declaration, y 14 he points out that"[d]espite having months to complete facility inspections prior to filing their 15 enforcement action, OCSD apparently inspected only 6 of the 19 facilities whose waste water discharges 16 to the sewerjunction which they sampled. OCSD relies instead on intemet searches to determine the 17 potential for an illicit discharge from the remaining facilities. The rationale most often cited[by OCSD] 18 for dismissing these entities is that they lack 'wet process' operations. That analysis fails to recognize G19 that companies such as Fletcher Coatings,JJ Foil, Maverick Coatings,Insignia Signs Company and 20 others routinely utilize heavy metals such as copper,chrome and titanium in paints, dyes, coatings and 21 other industrial processes. While they may not be directly involved in wet processing,all have the 22 potential for accidental spills,and discharges and the need for disposal of off-spec products,rinse 23 waters, equipment change out and clean ups which can result in incidental discharge of metal bearing 24 wastes. The 'intemet inspection' of these companies does not eliminate them as potential dischargers of 25 the contaminants reportedly detected in the OCSD samples." (Supplemental Declaration of Dwight 26 Hoenig at¶¶2-3.) 27 Dr. Bracewell compared the time during which OCSD sampled on March 8-10 with Klean 28 Waters' operating hours and concluded that a significant portion of the aggregated sample from both the 10 RESPONDENTS'CORRECTED SUPPLEMENTAL BREEF 3 0362 3 2/1/ I 24-hour periods must have been comprised of sewage from a source other than Klean Waters because 2 Klean Waters was closed. (Declaration of Dr.Lloyd Bracewell at¶ 12.) OCSD contends in its Reply 3 Brief that Klean Waters may have continued to discharge while it was supposedly closed. (Reply Brief 4 at p. 15.) Tim Miller refutes this argument,stating that Klean Waters never discharged when it was 5 closed due to the dangers doing so posed. (Declaration of Tim Miller at 150.) Tim Miller also points to 6 the hourly power consumption records for Klean Waters,which show very low power consumption 7 during the times Klean Waters was closed, as additional support for the fact that it actually was closed. 8 (Declaration of Tim Miller at¶¶66-67; Exh, T.) 9 Dr. Kagel,an analytical chemist who has designed,implemented and interpreted chemical 10 measurement programs involving wastewater,pointed out a number of problems with OCSD's reported 3 11 sampling methodology that supported her opinion"that the laboratory test reports provided in support of �� P tn8 SY PP P ry reP P PP S 12 OCSD's Complaint do not provide sufficient information to demonstrate violation of Klean Waters' 13 discharge limits."(Declaration of Dr. Carla Kagel at¶ 16; also see generally¶¶ 13-16.) Among the 14 problems she identified were the fact that the sampler was compromised by being knocked over and the W a 15 validity of the lab test results cannot be established because the reports show no date of analysis and a 's a � 16 were issued beyond the six-month holding limit for this analysis. Also,the infomlation provided on the F E 17 reports does not contain the analysis date,the minimum reporting level, or any quality control results, 18 which she states are all necessary to determine the adequacy,accuracy,and precision of the results. (Id. u 19 at 116.) She stated that the lab reports"do not meet [California] requirements for accredited 20 laboratories, do not meet permit requirements for monitoring data,and do not meet generally accepted 21 standards for laboratory results used in the course of legal proceedings." (Id. at 115.) 22 Tim Miller explains in detail the precautions Klean Waters took to ensure that it could accept the 23 wastewater from Kiewit. (Declaration of Tim Miller at¶44.) Klean Waters had obtained a Generator 24 Certification and Waste Profile dated February 26,2014 indicating the water contained no pollutants 25 based on analytical lab data generated on February 26, 2014. (Id;Exh.N.). Klean Waters also 26 performed its own analysis of the Kiewit wastewater each day. (Exh. G to Declaration of Shaun Miller.) 27 B. Denials 28 In its Opening Brief Mean Waters accepted responsibility and states it will no longer deny 11 RESPONDENTS'CORRECTED SUPPLEMENTAL BRIEF 103QIVll I access. It invited OCSD to come anytime. It also offered to install a 24/7 sampling device but OCSD so 2 far has only responded that it does not have the time to concern itself with the offer. 3 It is true that the Klean Waters management denied access to OCSD inspectors on several 4 occasions starting on May 14,2014 when it refused to let Arnold Chavez past the lobby but allowed 5 quarterly sampling by other OCSD employees. OCSD was also allowed to sample on June 19th, August 6 20th, and September 3r6. 7 Klean Waters had reasons for denying the access. The denials began after two disastrous 8 meetings between Klean Waters' personnel and OCSD on February 11,2014 (Declaration of Tim Miller 9 at¶¶41-43)and April 8, 2014 (Id. at¶¶49-58). According to Tim Miller, at the February 11, 2014 10 meeting, Sohanaki"focused on issues unrelated to Klean Waters' permit and was demanding that Klean 11 Waters install equipment to treat waste streams Klean Waters does not even accept and is not permitted a 12 to accept" (Declaration of Tim Miller at 141.) Sohanaki dismissed Tim Miller's explanation of the j m 13 understanding Klean Waters had with Martin Holl concerning manual pretreatment. (Declaration of y 14 Tim Miller at 142.) Tim Miller and Sohanaki had an angry telephone exchange following Klean 3 n 15 Waters' receipt of the March 24, 2014 Order to Cease, again focusing on Sohanaki's insistence that 16 Klean Waters install additional equipment beyond the scope of its permitted operation. (Declaration of 17 Tim Miller at¶¶46-48.) 18 Another meeting on April 8, 2014 resulted in further deterioration of the relationship,with a 19 Sohanaki now insisting that Klean Waters sample and obtain lab data for each out-of-area wastewater 20 load,a condition that Tim Miller explains was impossible to meet. (Declaration of Tim Miller at 149.) 21 At the April 8"meeting, Sohanaki and Chavez asserted they had indisputable proof that Klean 22 Waters had accepted and discharged wastewater in violation of its permit during the March 8-10 sting. 23 (Declaration of Tim Miller at 15 1.) They refused to show the Klean Waters attendees the evidence but 24 Sohanaki demanded immediate payment of$40,000,threatening that if she did not get the money, she 25 would file an Administrative Complaint. (Ibid.) Finally,Martin Holl produced the data. It was 26 purportedly a March 6,2014 analysis of the Kiewit wastewater produced for Stormwater Online. (Id. at 27 ¶52.) Tim Miller obtained an extension until April 15,2014 to pay the fine. 28 111 12 RESPONDENTS'CORRECTED SUPPLEMENTAL BRIEF 1036211/l/ I Meanwhile,Dr. Khan, who was attempting to facilitate the relationship and was negotiating on 2 behalf of Klean Waters,learned that his mother-in-law had suffered a stroke in Pakistan. He needed to 3 go there with his wife for this medical emergency. When Tim Miller asked for an extension of time to 4 allow Dr. Khan to go to Pakistan,Ms.Sohanaki refused. (Declaration of Tim Miller at 154;Exh.P.) It 5 was this refusal that Dr. Khan referred to in his declaration when he described Ms. Sohanaki"cruel"and 6 said he thought she"may have been motivated by some son of vendetta against Klean Waters." 7 (Declaration of Dr.Athan Khan at 19.) 8 On April 17,2014,two OCSD employees appeared at Klean Waters to"remind"Tim Miller of 9 the$40,000 deadline. Tim Miller explains that this entire chain of events made him extremely 10 uncomfortable and that the fine seemed to be an"extortionate demand." (Declaration of Tim Miller at$ 11 55.) REDACTED 12 On May 14th,Sohanaki's hostile, vindictive stance toward Klean Waters was confirmed when A13 Andy Richard,a_employee,forwarded to Tim Miller the a-mail Ms. Sohanaki had sent to 5 14 _employee Grace Pina-Garrett,in which Ms. Sohanki libeled Klean Waters by stating that 15 Klean Waters was breaking the law and violating its permit. Mean Waters also had began to hear o 16 similar stories from other clients concerning OCSD investigations and allegations of violations and 17 illegal activity,particularly by Ms. Sohanki and Mr.Chavez. (Declaration of Shaun Miller at 9[9[ 16-17.) U 18 May 14, 2014 was the first day Mean Waters denied access to anyone from OCSD. Klean u 19 Waters specifically refused to let Mr.Chavez past the lobby. While admittedly a violation,placed into 20 the context of dealing with the virtual extortion that occurred at the April meeting and the libel and 21 slander Mean Waters was starting to learn about,this denial is at least understandable. Mr.Chavez had 22 been at the meeting,had been contacting clients and reporting that Klean Waters was violating its permit 23 and breaking the law. He was also apparently one of the two instigators of the March 8-10 sting. In 24 addition,Mr. Chavez was the inspector assigned to Klean Waters' only Orange County competitor, 25 Stormwater Online. 26 Klean Waters regarded Mr.Chavez as a spy for Stormwater Online. Mesa Waters has a 27 wastewater treatment chemical it regards as a trade secret, at least from Stormwater Online. That is why 28 the Klean Waters inspectors could not identify the name of the chemical when they inspected. Klean 13 RESPONDENTS'CORRECTED SUPPLEMENTAL BRIEF 01410000000110962121 1 Waters believed that once Mr. Chavez knew the name and source of the chemical, it would be only a 2 short time until Stormwater Online learned it as well,and Klean Waters would lose a competitive 3 advantage. All this was in the forefront of the minds of Klean Waters' ownership and management 4 when they first denied Mr. Chavez access to the facility. 5 Against the backdrop of these events,Dr.Khan tried to facilitate the meeting between general 6 manager of environmental compliance James Colston and Klean Wasters. Dr.Khan finally confirmed 7 the meeting and confirmed that it would be with Mr. Colston. Klean Waters hoped that it might find 8 someone it could communicate with—it was obvious at that time that there was absolutely no point in 9 further discussion with her. But though Mr. Colston had committed to attend the meeting,he did not 10 appear and did not have the courtesy to even offer an excuse. Instead,Klean Waters staff happened to 1 I catch sight of him leaving the building. Ms. Sohanaki came in his stead,which made it a foregone 12 conclusion that the meeting would be acrimonious and pointless. Dr.Khan,the former regulator, n 13 commented on Mr. Colston's apparent refusal to appear that "I thought this was very discourteous on a a a 14 his part. Mr. Colsmn's action made me believe that the OCSD supervisory staff was extremely non- ce . 15 cooperative with Klean Water,Inc, in refusing to provide them an opportunity to explain their „ 16 grievances and their concerns regarding the additional permit condition." (Declaration of Dr.Athar S 17 Khan at 18.) Dr.Khan found Ms. Sohanaki"arrogant and unprofessional." (Id, at 17.) 18 To Klean Waters,the denial of the opportunity to meet with Mr. Colston represented a complete a 19 loss of hope that it would get any kind of fair shake from OCSD. OCSD was not good on its word, 20 something that had been increasingly obvious over the preceding months,and OCSD inspectors seemed 21 more interested in helping Klean Waters' competitor and punishing it. It was obvious to Klean Waters 22 that OCSD would not function as a neutral government body working to insure water quality safety 23 through fair and equal administration of its regulations. 24 Following the failure of the May 28,2014 meeting,Klean Waters continued to deny OCSD 25 access during its surprise inspections. Klean Waters understands OCSD has the right to make these 26 surprise inspections and now regrets these denials. 27 One of the specific points OCSD makes in both its briefs is that Mean Waters would not allow 28 OCSD to sample from the trucks delivering wastewater. Klean Waters explained that this was because 14 RESPONDENTS'CORRECTED SUPPLEMENTAL BRIEF 10301VII I the trucks did not belong to Klean Waters. It seems self-evident that one cannot provide access to 2 someone else's property. In addition, OCSD inserted a provision in Klean Waters' permit that 3 "Permittee shall inform customers that OCSD reserves the right to inspect and sample the source of any 4 wastewater discharged into OCSD's sewerage system upon reasonable notification." (Permit No. 52-1- 5 841, Special Conditions,page 13,emphasis added.) 6 If OCSD wanted Klean Waters to sample the trucks on its behalf,it could have inserted a Special 7 Condition to that effect in the permit. The fact that it did not do so but instead required Klean Waters to 8 inform the truckers that OCSD reserved the sampling right suggests that OCSD recognized that while it 9 might be able to assert sampling authority over a trucker as a regulator, compelling Klean Waters to act 10 as its proxy in this respect was improper. Here, again, is OCSD trying to impose on Klean Waters a 11 condition that is not what the permit provides for and then punishing it for failure to comply. y 12 V. PENALTIES 13 Government Code section 54740.5 guides the Hearing Officer as to how to assess penalties. In 14 determining the amount of the civil penalty,the Hearing Officer or Board may take into consideration 9 15 all relevant circumstances including,but not limited to,the extent of harm caused by the violation. 16 A. Extent of Harm F a 17 One overarching circumstance the Hearing Officer should consider is the capricious and 18 vindictive nature of OCSD's enforcement resulting from Sohanki's vendetta. 0 19 The permit Special Condition should not be considered at all for the reasons discussed above, but 20 if it is,the Hearing Officer should bear in mind that OCSD sought to enforce it in a way that made 21 compliance impossible. 22 The denials,though violative of the permit,were understandable based on Sohanaki's behavior 23 libeling and slandering Klean Waters and Chavez's obvious link to Stomtwater Online. The denials 24 undoubtedly irritated OCSD,but they did not cause any other harm. Klean Waters has all the required 25 records and admitted OCSD employees for the scheduled periodic monitoring. Klean Waters has 26 offered to install a round-the-clock sampling system at its sampling point so OCSD can be assured that 27 Klean Waters is always compliant in its discharge. Consistent with OCSD's refusal to be reasonable 28 with Klean Waters, though, OCSD employees insist that they are so busy with their routine business that 15 RESPONDENTS'CORRECTED SUPPLEMENTAL BRIEF 1036212/1/ I they cannot take the time out to even consider this offer. 2 No harm resulted from Klean Waters' alleged noncompliance with the pretreatment 3 requirements. This should also be evaluated as a non-issue. Klean Waters complied with the pert and 4 its certification,as required by the EPA and as illustrated by numerous OCSD inspections up through 5 February 2014 where the inspectors identified no problems. The EPA inspected Klean Waters at the 6 very time OCSD was bringing its noncompliance hammer down hard and found no compliance 7 problems at all. Klean Waters has presented extensive documentary evidence of its compliance. 8 There is no evidence that any of the out-of-area wastewater Klean Waters may have accepted 9 was noncompliant in terms of the wastewater's chemical composition when Mean Waters accepted it or 10 when it was discharged. 11 Klean Waters was compliant with its permitted discharge concentrations throughout the March S 12 8-10 sting. OCSD's data from March 8-10 provides no credible evidence of Klean Waters' IPI13 noncompliance. g14 In terms of the actual harm to water quality,the concentration levels of chromium and copper a x 15 OCSD allegedly detected in the March 8-10 sewer flow 500 feet downstream of Klean Waters are below u „ 16 the maximum allowable local discharge limits set by OCSD as described in OCSD Ordinance No. 39, 17 page 24. The maximum allowable local discharge limit is 2.0 milligrams per liter for total chromium. 18 The chromium concentration in OCSD's lab report shows in the sewer flow 500 feet downstream of u 19 Klean Waters on March 8-9, 2014 was 1.48 mg/l. The Ordinance states the maximum allowable local 20 discharge limit for copper as 3.0 mg/l. The copper concentration OCSD's lab report shows in sewer 21 flow 500 feet downstream of Mean Waters was 1.53 mg/l on March 8-9,2014 and 1.80 mg/1 on March 22 9-10, 2014. The Ordinance does not list a maximum allowable local discharge limit for titanium,the 23 third metal OCSD detected in the sewer flow downstream of Klean Waters. Klean Waters does not 24 point this out to say that if it had made these discharges,its own permit limits should be disregarded in 25 favor of the local limits. Rather,the local limits represent OCSD's own boundaries of concentration 26 levels that,if exceeded, could potentially harm its system. The levels it detected, allegedly attributable 27 to Klean Waters,are at levels that by OCSD's own reckoning would not harm its system or adversely 28 affect the water quality. 16 RESPONDENTS'CORRECTED SUPPLEMENTAL BRIEF 103631M1 1 B. Economic Benefit Derived 2 Another consideration in assessing penalties under Government Code section 54740.5 is the 3 economic benefit derived from any noncompliance. Klean Waters derived none because it did not 4 engage in any noncompliance that provided any economic advantage. OCSD alleges Klean Waters 5 failed to pretreat its discharge for over a year but offers absolutely no evidence whatsoever that this is 6 so. The argument comes down to bucket and barrel versus tube and tank,a completely meaningless 7 distinction that has nothing to do with whether Mean Waters properly treated its wastewater. The S records prove it properly treated its wastewater or that the water did not need treatment. So Klean 9 Waters derived no economic benefit from alleged noncompliance. 10 C. Nature and Persistence of Violation 11 A third factor is the nature and persistence of the violation. Violations based on lack of 12 pretreatment should not be an issue; Mean Waters pretreated in compliance with its permit and EPA 13 requirements. Violations based on acceptance of out-of-area waste should not be an issue for a variety a m w 14 of reasons discussed above including judicial estoppel,preemption, OCSD's misinterpretation of the as 15 permit language, and Mean Waters' good faith efforts to get OCSD to tell it how to comply. That wQ 16 leaves the denials,which came largely as a result of legally actionable harm inflicted on Klean Waters d 17 by OCSD employees,particularly Roya Sohanaki and Arnold Chavez. Mean Waters' government claim 19 in connection with these harms is pending and once it is denied,Klean Waters intends to file suit G 19 alleging slander,libel per se,trade libel,intentional and negligent interference with prospective 20 economic disadvantage,and extortion. When a regulator's employees engage in this kind of wrongful 21 conduct, some denial of access is understandable simply as a matter of self-preservation. As Klean 22 Waters stated in its Opening Brief,it provides these details not as an excuse but as an explanation. It 23 understands that its denials violated its permit conditions and the Ordinance. But under the 24 circumstances,the penalties should be minimal. 25 D. Corrective Action Taken or Attempted by Discharge 26 The final factor to be considered by the Hearing Officer under Government Code section 27 54740.5 is the corrective action taken or attempted by the discharger. With respect to the denials of 29 access,Klean Waters has invited OCSD employees to visit at any time and to make whatever 17 RESPONDENTS'CORRECTED SUPPLEMENTAL BRIEF 1036212/1/ I inspections we specified in the permit. Mean Waters has also offered to install a 24/7 monitor but 2 OCSD professes that its people are too busy to deal with this. Klean Waters has completed the 3 installation of all its tanks and plumbing. 4 VI. CONCLUSION 5 This Complaint is based on unsubstantiated allegations of wrongdoing that Klean Waters has 6 refuted. The real basis for the Complaint is the arbitrary and unprofessional conduct of Roya Sohanaki. 7 Klean Waters has been punished enough already as a result of this conduct. Mean Waters' conduct has 8 not caused any harm. For these reasons, no penalty should be assessed and Klean Waters'permit should 9 not be revoked. 10 - II y 12 DATED: November 6,2014 TUCKER ELLIS UP a 13 14 15 By. 1&Mga711/ William H. Dance 16 Attorneys for Respondents KLEAN WATERS, INC., SHAUN MILLER Pit o 17 and TIM MILLER U 18 19 20 21 22 23 24 25 26 27 28 18 RESPONDENTS'CORRECTED SUPPLEMENTAL BRIEF 103621VI/ I WOODRUFF, SPRADLIN & SMART, APC BRADLEY R. HOGIN - State Bar No. 140372 2 bhogin wss-law.com RICIA . HAGER- State Bar No. 234052 3 rhager@wss-law.com 555 Anton Boulevard, Suite 1200 4 Costa Mesa, CA 92626-7670 Telephone: (7141558-7000 5 Facsimile: (71 ) 835-7787 6 Attorneys for ORANGE COUNTY SANITATION DISTRICT 7 8 9 10 11 In the matter of: ORANGE COUNTY SANITATION DISTRICT'S SUPPLEMENTAL 12 Klean Waters, Inc. Tim Miller, and REPLY BRIEF Shaun Miller 13 Hearing Date: November 13, 2014 s5 Time: 10:00 a.m. =a 14 Location: District's Administrative Office Industrial Wastewater Discharge 10844 Ellis Avenue 15 Permit No. 52-1-841 Fountain Valley, CA 92708 s 16 Hearing Officer: Roberta Larson 17 18 19 20 21 22 23 /// 24 1H 25 26 27 28 1064618.1 I TABLE OF CONTENTS 2 I. Introduction.............................................................................................................. l 3 II. The Denials of Access, Inspection, and Sampling Violate Some of the Most......... l 4 Fundamental Requirements of the Pretreatment Program .................................................. 1 5 ITI. Klean Waters Has Failed to Provide the Required Pretreatment.............................3 6 A. Klean Waters Ignores the Law......................................................................3 B. Klean Waters Distorts the Facts....................................................................4 7 1. The Chemical Receipts Demonstrate the Lack of Treatment............5 8 2. The Facility Processing Rate Cannot Be Supported By Manual 9 Treatment ...........................................................................................6 10 3. EPA Is Concerned With the Method of Treatment............................7 11 4. The District's Downstream Sampling Results Are Valid..................7 12 IV. Klean Waters Has Accepted Unauthorized Wasterwater.........................................9 V. The Maximum Civil Penalties Should Be Imposed............................................... 10 a 13 s a.ffl 14 15 3 16 17 18 19 20 21 22 23 24 25 26 27 28 ii 1W618.1 1 TABLE OF AUTHORITIES 2 REGULATIONS 3 40 C.F.R. section 437.41(a).......................................................................................................3 4 40 C.F.R. section 437.41(b)...............................................................................................3, 4, 5 5 40 C.F.R. section 437.41(c).......................................................................................................3 6 40 C.F.R. section 437.47 (a)(4).................................................................................................3 7 40 C.F.R. section 437.47(a)(2)..............................................................................................3, 7 8 9 10 11 12 z � 13 14 §ms 15 3 16 17 18 19 20 21 22 23 24 25 26 27 28 I W4618.1 1 I. Introduction 2 This is a simple case. Klean Waters concedes that it denied access to the Facility and 3 denied requests to inspect records. Klean Waters does not dispute that it denied requests to 4 sample holding tanks at the Facility. By its own admission, Klean Waters did not have the 5 pretreatment system depicted in its Application and Initial Certification until September of 6 2014. Nor does Klean Waters dispute that it accepted out-of-jurisdiction waste. The Permit 7 should be revoked and the maximum civil penalties should be imposed as set forth in the 8 District's Administrative Complaint, Corrected Opening Brief, Reply Brief, and this 9 Supplemental Reply Brief. 10 II. The Denials of Access. Inspection, and Sampling Violate Some of the Most 11 Fundamental Reauirements of the Pretreatment Program 12 Klean Waters concedes that it denied District investigators access to the Facility and 13 requests to review records and sample at the Facility. The seriousness of these violations 14 cannot be overstated. The District must be able to verify what Klean Waters is accepting and 15 discharging to the District's facilities. An incident from January of this year underscores the 0 3 16 importance of the District's right to access, inspect and sample at the Facility. 17 On January 3, 2014, District staff toured the Facility. Tanker trucks were coming and 18 leaving consistently during this time. District staff observed a tanker truck discharging into 19 the Facility and inquired about the source of the wastewater. According to the driver, the 20 truck was carrying wastewater from Bristol Industries. District staff took two samples from 21 the receiving trench in the truck unloading area. (Inspection and Data Report(Event No. 22 15897), District Exhibit 39; Supplemental Decl. A.Chavez, ¶ 3; Supplemental Decl. M. Holl, 23 13.) 24 Bristol Industries is a District permittee with an extensive metal finishing shop. They 25 perform cadmium, zinc, chrome, and copper plating. In addition, they use cyanide solutions, 26 highly acidic solutions, and highly alkaline solutions in their processes. Bristol has its own 27 pretreatment system. Knowing the nature of Bristol's operations,the fact that this 28 wastewater was coming from Bristol raised suspicions for the District. (Supplemental Decl. 1044618. I A. Chavez¶4.) 2 The District requested a wastewater profile for this load. The "Generator 3 Certification/ Waste Profile"provided by Klean Waters indicated that the waste was "mop 4 water/ oily water." (District Exhibit 40; Supplemental Decl. M. Holl, ¶4.) 5 The lab results, however, confirmed the District's suspicions. The results show that 6 the wastewater received into the Facility had extremely high levels of metals concentrations. 7 (Sample Summary, District Exhibit 41.) Specifically: 8 Metal Analyzed %Over % Over 9 Concentration Klean Klean 10 Waters' Waters' Daily 11 Instantaneous Maximum 12 Limit Limit 13 Cadmium 7.189 618.9% 1416.7% �F3s 14 Chromium 9.22 361.0% 1135.9% B" 15 Copper 252.07 8302.3% 50314.0% 16 Lead 2.05 2.5% 485.7% 17 Nickel 14.52 45.2% 267.6% 18 Silver 4.63 3758.3% 19 Zinc 54.45 1 444.5% 1797.2% 20 21 22 This was hardly "mopwater/oily water" as had been stated in the waste manifest. Although 23 Klean Waters did not have the capability to treat this water, Klean Waters accepted it into the 24 Facility. 25 Ultimately, Klean Waters sent this wastewater back to the generator, Bristol. Bristol 26 subsequently labeled this wastewater as hazardous and it was transported to DK 27 Environmental in Los Angeles. Thereafter, Bristol began characterizing its loads as 28 hazardous waste. (Inspection and Data Report(Event No. 16102), District Exhibit 42; 2 1044618.1 I Supplemental Decl. A. Chavez, ¶ 5.) 2 Two other samples were taken on January 3, 2014 from a different unloading tanker 3 truck. The wastewater in this truck was from DCOR which operates an offshore oil derrick 4 and, according to the driver, consisted of deck cleaning waters. This load looked and 5 smelled oily. (District Exhibit 39; Supplemental Decl. A. Chavez, 16.) The District's lab 6 results for these samples show high levels of oil and grease. (Sample Summary, District 7 Exhibit 43.) These levels required treatment with chemicals Klean Waters does not have. 8 Klean Waters' denial of District requests to access, inspect and sample at the Facility 9 must be reviewed in light of the Bristol and DCOR incidents. Klean Waters claims that it 10 accepts responsibility for these violations. (KW Opening Brief, p. 19, Ins. 18-19; p. 25, Ins. 11 2-3; KW Supplemental Brief,p. 14, Ins. 24-26; p. 17, Ins. 22-23.) At the same time, Klean 12 Waters attempts to rationalize these violations and alleges they did not result in any harm. g 13 This is a convenient argument in light of the fact that the District's rights of access. s $ 14 inspection, and sampling have been denied. The Bristol and DCOR examples, however, 15 clearly demonstrate the harm that may arise when the District's rights to access, inspect, and a 16 sample at the Facility are denied. 17 M. Klean Waters Has Failed to Provide the Required Pretreatment 18 A. Klean Waters Ignores the Law 19 As explained in detail in the District's Reply Brief, as a Centralized Waste Treatment 20 Facility in the Multiple Wastestreams Subcategory D, Klean Waters must implement the 21 pretreatment system described in its Application and Initial Certification. (See District's 22 Reply Brief, pp. 4— 10 (citing, among others, 40 C.F.R. §§ 437.47(a)(2), (a)(4); 40 C.F.R. §§ 23 437.41(a), (b), (c).) This is because the Initial Certification establishes that pollutant 24 reductions will be obtained through "equivalent treatment." 25 Further, if a Centralized Waste Treatment Facility in Subcategory D modifies its 26 treatment systems, it must submit a description of the modified systems and information and 27 supporting data to establish that the modified system will also achieve equivalent treatment. 28 (40 C.F.R. § 437.41(b).) Moreover, when the District revised the Permit to reclassify Klean 3 1044618.1 I Waters in Subcategory D, the District clearly stated, "Klean Waters is also required to notify 2 OCSD in writing of any changes relating to company information, manufacturing processes, 3 pretreatment modification, wastes/wastewater quantity, sampling point location,piping 4 modification, or any other relevant information." (Revision of Class I Industrial Wastewater 5 Discharge Permit No. 52-1-841, District Exhibit 8, p. 2.) 6 Klean Waters makes no attempt to address the regulations applicable to Centralized 7 Waste Treatment Facilities in Subcategory D including the "equivalent treatment" 8 requirement. (See, e.g., Supplemental Decl. of L. Bracewell, 17.) By its own admission the 9 pretreatment system described in the Application and Initial Certification were not 10 completed until September of 2014. (KW Opening Brief, p. 9, Ins. 16-20; Decl. S. Miller, ¶ 11 8.) Instead, Klean Waters deviated from the pretreatment system described in its Application 12 and Initial Certification. It failed to provide chemical feed pumps and piping, opting instead 13 for manual addition, and did not use the identified chemicals, opting instead for an 5 14 unidentified polymer or, based on the chemical receipts provided, no treatment at all. 15 Even construing these deviations as modifications of the pretreatment system s 16 described in the Application and Initial Certification, Klean Water was required to inform the 17 District and demonstrate that these modifications would provide equivalent treatment. (40 18 C.F.R. § 437.41(b).) Klean Waters never notified the District of these modifications. Nor 19 did Klean Waters demonstrate that these deviations would achieve "equivalent treatment." 20 The District would not have approved a methodology that included chemical addition with a 21 bucket or the use of a single, unidentified polymer as achieving equivalent treatment 22 standards. (Supplemental Decl. M. Holl, ¶ 5.) 23 B. Klean Waters Distorts the Facts 24 Rather than address the Subcategory D requirements, Klean Waters maintains that it 25 has provided the required chemicals, that manual addition with a bucket provides the same 26 level of treatment as automated chemical feed lines and pumps, that the EPA is not 27 concerned with the method of pretreatment, and that the District's sampling results are 28 invalid. These arguments, however, are not supported by the facts of this case. 4 IW618.1 1 1. The Chemical Receipts Demonstrate the Lack of Treatment 2 As the District has explained repeatedly, Klean Waters was required to provide five 3 (5)separate chemicals for pretreatment purposes: sodium hydroxide, sulfuric acid, 4 aluminum sulfate, cationic polymers, and anionic polymers. (District's Corrected Opening 5 Brief, p. 5, Ins. 12-13; p. 20, p. 21, Ins. 3-8.) Klean Waters discharged approximately 38.93 6 million gallons to the District from 7/1/13 to 6/30/14. (Id. at p. 17.) 7 The chemical receipts provided by Klean Waters, however, show that only 1,265 8 gallons and 55 pounds of flocculent/ coagulent and 660 gallons of caustic were purchased 9 before September of 2014. (Supplemental Decl. T. Gerber, ¶4.) This is not nearly enough 10 to treat the millions of gallons discharged. (Id., 15.) Estimates from a smaller Centralized 11 Waste Treatment Facility demonstrate that 300 gallons of caustic are used per month for a 12 similar or smaller volume of wastewater. (Supplemental Decl. R. Sohanaki, 13.) Further, z 13 the pretreatment system relies on sulfuric acid to both treat oily wastes by breaking the stable 14 emulsions of the oil and water mixtures, and to lower the pH of wastewater as needed. The , x S K 15 chemical receipts submitted by Klean Waters show that no sulfuric acid was ordered before a 16 September of 2014. (Supplemental Decl. T. Gerber, 14.) 17 At best, District investigators observed a single 55 gallon drum at the Facility which 18 Klean Waters now describes as a polymer whose composition is a trade secret. This is 19 problematic for a number of reasons. First, it is impossible that this single barrel contained 20 all five(5)of the required chemicals. (Supplemental Decl. of G. Arthur,13.) Second, the 21 chemicals are supposed to be added in different, discrete steps. Discrete steps cannot be 22 combined in a single barrel. (Supplemental Decl. of G. Arthur,14.) Third,Klean Waters 23 never alerted the District to this change in its pretreatment system or demonstrated that the 24 change would achieve equivalent treatment as required by 40 C.F.R. § 437.41(b). 25 Further, the method described by Klean Waters indicates that the amount of required 26 chemical addition would be predetermined. There is no evidence demonstrating that Klean 27 Waters ever undertook this analysis. Klean Waters certainly never submitted this analysis to 28 the District. 5 1044618.1 l 2. The Facility Processing Rate Cannot Be Supported By Manual 2 Treatment 3 The processing rate at the Facility is up to and exceeding 450,000 gpd. (Decl. Shaun 4 Miller, 122, Exhibit K (self-report flow meter reading on 1/9/14 indicating that flow peaked 5 at 451,439).) The processing rate of the Facility is not supported by manual treatment. 6 There are only two employees working in the treatment area, one of which is the 7 General Manager who has other duties. (Supplemental Decl. of T. Gerber, ¶ 6.) Chemical 8 addition and mixing is critical to ensure the proper chemical reactions. This was purportedly 9 accomplished manually with an operator placing a chemical polymer into a five gallon 10 bucket, carrying the five gallon bucket of chemical up a steep staircase, down a catwalk, I I dumping the bucket into the opening of the tank over the railing of the catwalk, and mixing 12 the tank with the compressed air from a portable hose. The lack of an automated chemical 13 addition and mixing system requires that this process is performed for each 5-gallon s 14 chemical dosing, for each of the eight treatment tanks. (Supplemental Decl. of T. Gerber,¶ g° 15 7.) Though Klean Waters began discharging in late May of 2013,the catwalk was not even 16 installed until October of 2013. (Decl. of Tim Miller,¶31, fn. 2.) Since the method 17 described by Klean Waters calls for addition at the top of the tanks, it is unclear how 18 treatment was manually added before that time, if at all. 19 During the two-day March downstream sampling, the Facility received 88 truckloads 20 from Kiewit and 4 from other sources. This is a total of approximately 425,000 gallons over 21 the course of 26 hours. (Decl. S. Miller, Ex. L,pp. 391-395.) This means that Klean Waters 22 would have had to process all 8 treatment tanks approximately 9 to 10 times in 26 hours. 23 That is,the Facility would have less than 3 hours to offload trucks, fill the 8 treatment tanks, 24 manually add chemical to all 8 treatment tanks, mix them, repeat the manual addition and 25 mixing for each required chemical dosing, drain the wastewater, and remove the solids. 26 (Supplemental Decl. T. Gerber, ¶ 8.) This is highly improbable. (Supplemental Decl. P. 27 Martyn,¶3.) 28 6 IN4618.1 1 3. EPA Is Concerned With the Method of Treatment 2 Further, contrary to Klean Waters' assertion, EPA has directed the District to review 3 the method of District permittees' pretreatment. This direction extends beyond the 4 Centralized Waste Treatment Category. Specifically, in 1998, the EPA directed the District 5 to perform technical compliance reviews of all District permittees. (EPA Pretreatment 6 Performance Evaluation Report, District Exhibit 45.) According to EPA, the review should 7 identify each wastewater source and justify whether the design and operation of the controls 8 will result in compliance. "A justification of this sort could cause proper configurations to 9 be in place prior to issuing a permit because the permitting authorities could approve or 10 reject the permit application based on the soundness of the justification." (Id. at 12.) EPA, 11 therefore, is clearly concerned with more than an industrial user simply meeting its effluent 12 limitations which could be achieved through dilution or selective sampling. a 13 Klean Waters argues that the report issued on October 8, 2014 shows that EPA did not c 14 object to Klean Waters adding chemicals manually. This argument is flawed for several $me 15 reasons. First, the initial certification demonstrating "equivalent treatment" must be a 16 submitted to the local control authority. (40 C.F.R. § 437.47(a)(2).) The District, not EPA, 17 is the local control authority here. The determination of equivalent treatment, therefore, is 18 made by the District not EPA. Second, the scope of the EPA's site visit was not to determine 19 whether the system implemented by Klean Waters was achieving equivalent treatment as 20 described in Klean Waters' Application and Initial Certification. In fact, the contract EPA 21 representative did not even witness any wastewater treatment during the visit. (Pretreatment 22 Compliance Inspection Report, Site Visit Data Sheet p. 8, District Exhibit 45.)1 23 4. The District's Downstream Sampling Results Are Valid 24 Klean Waters questions the extent of the investigation performed by the District 25 regarding other businesses in the area of the sampled manhole. The District's samplers were 26 27 1 Klean Waters represented to the EPA representative that the chemicalpumps and feed lines 28 would be finished "soon." (District Exhibit 45.) Not surprisingly, this is the same explanation Klean Waters repeatedly gave to District investigators. 7 1044618.1 I set to the east of the intersection at Pacific and Freedom Avenue. Based on the massive 2 surcharging coming from the east during the sampling event, flow from the western lateral 3 was obstructed. The District,therefore, physically investigated each of the businesses that 4 are tributary to the eastern portion of that sewer lateral. (See District Exhibit 36.) Only one 5 of these businesses is an industrial user with a wet process, Patio Door and Outlet. Through 6 its investigation, the District determined that Patio Door and Outlet was closed during the 7 entirety of the March downstream sampling event. The District's investigation was 8 sufficient. (Supplemental Decl. of P. Martyn, 14 [labelled 2].) 9 Klean Waters criticizes the District for eliminating as potential sources of pollutants 10 those businesses that do not have"wet processes." Klean Waters alleges that these I 1 businesses could have contributed pollutants though spills, discharges for off-spec products, 12 rinse waters, equipment change out and clean ups. The metal concentrations detected during a 13 the downstream, sampling, however,were extremely high. Klean Waters admits the flow 3 14 volume at this time was significant. For the average concentration of metals to be so high, at 5r=� 15 least several pounds of metals were discharged. It is highly improbable that this 16 concentration resulted from spills, discharges for off-spec products, rinse waters, or 17 equipment change out and clean ups,particularly on a weekend. (Supplemental Decl. P. 18 Martyn,¶ 5 [labelled 3).) 19 Klean Waters contends that its power consumption records show very low power 20 levels during the time that Klean Waters was closed, and concludes that Klean Waters could 21 not have been discharging at that time. Klean Waters, however, did not need electricity in 22 order to allow gravity to drain the tanks. 23 Klean Waters, based on the Declaration of Dr. Kagel, questions the District's lab 24 results. First, without providing any explanation, Dr. Kagel asserts that the sampler was 25 compromised because it was knocked over. The sampler, however, was not knocked over. 26 It was tilted, or leaning on its side. (Declaration D. Yager, IT 5, 8; Decl. A. Chavez,15.) 27 The tilting of the sampler would not have impacted the validity of the samples. (Declaration 28 of Ronald Coss in Support of the District's Supplemental Reply Brief, ¶ 5) 8 IW618.1 I Next, Klean Waters questions the lab results because they do not include the date of 2 analysis, the minimum reporting level, or quality control results. The District has two main 3 software systems for purposes of lab analysis. The first, the "Laboratory Information 4 Management System" or"LIMS" is used to initiate, process, and organize sample results and 5 stores all corresponding metadata. The second "Source Control Applications System," is 6 used to provide summary results to the District's Source Control department. (Decl. R. 7 Coss, ¶6.) The results from the Source Control Applications System were previously 8 submitted. The results from the LIMS system include the information requested by Klean 9 Waters. (Decl. R. Coss,¶ 6; District Ex. 48.) 10 IV. Klean Waters Has Accepted Unauthorized Wasterwater 11 Klean Waters alleges that its permit condition did not require prior authorization by 12 the District. Instead, Klean Waters alleges the Permit only requires Klean Waters to submit a 13 wastewater profiles and sampling for "review" by the District. This is nonsensical. The I3 AA 14 common sense construction of this condition is that the profiles and sampling must be " 15 submitted for approval, not simply "review." Further, as explained previously, the permit a 16 condition was imposed after the Molycorp vetting process. The Molycorp wastewater 17 presented a number of issues which required the development of specific protocols. After 18 that process, it was clear the District intended to review and approve future wastewater from 19 outside the District's jurisdiction before Klean Waters accepted it. 20 The arguments in Klean Waters' Supplemental Brief add nothing to the prior, cursory 21 assertion that the District's condition is preempted by State law. The related assertion that 22 the District is judicially estopped is equally without basis. As set forth in the District's 23 Reply Brief, the condition does not create a ban of any type. Additionally, as set forth in the 24 District's Reply Brief, the only other Centralized Waste Treatment Facility within the 25 District's jurisdiction is currently complying with this requirement. Klean Waters has failed 26 to establish that the condition is preempted, or that the District should be judicially estopped. 27 Indeed, industrial users in other jurisdictions that are subject to even more 28 burdensome requirements and are successfully complying with those requirements. The Los 9 10"618.1 I Angeles Sanitation District has imposed several permit conditions that are functionally 2 equivalent, if not more stringent, than those imposed on Klean Waters by the District. For 3 example, permitees are not allowed to accept any new type of commercial or industrial waste 4 without LASD pre-approval — regardless of whether the waste came from inside or outside 5 the sanitation district's service area. As part of the LASD's pre-approval process, the 6 permitee must run a "testing program," whereby the District evaluates the facility's 7 performance prior to deciding whether the permitee is allowed to accept a new source of 8 wastewater. An example of this provision may be found in Section 2 of LASD Permit 9 Number 001317 and LASD Permit Number 21452. (Supplemental Decl. of P. Martyn, ¶ 3, 10 District Exhibit 46.) Also part of the LASD's pre-approval requirement are screening and 11 prequalification requirements. The permitee must provide details about the waste generator, 12 the process that generated the waste, and a laboratory report describing its treatability. This a 13 screening must be repeated periodically to account for the potential of major changes in 14 waste characteristics. Examples of these provisions may be found in Section 5 of LASD ="8 B 15 Permit Number 001317, and Section 3 of LASD Permit 21452. (Declaration of P. Martyrs, ¶ s 16 4; District Exhibit 46.) 17 V. The Maximum Civil Penalties Should Be Imposed 18 The District, through its pretreatment program, serves an important public health and 19 safety mandate. Not only does the District ultimately discharge to the ocean, but the District 20 also provides the Orange County Water District ("OCWD") with treated water for use in the 21 Ground Water Replenishment System ("GWRS'�. 22 Ajoint project between the District and OCWD, the GWRS is the world's largest 23 advanced water purification system for potable reuse. The District provides OCWD with 24 water treated to remove a high degree of impurities, which is in turn further purified by the 25 GWRS before injection into the groundwater basin. In other words, this internationally- 26 renowned project takes treated water that normally would have been discharged into the 27 Pacific Ocean, and further purifies it into drinking water. The recharging of this 28 groundwater basin effectively makes Orange County self-sufficient; unlike many other parts 10 IM4618.1 I of Southern California, Orange County does not need to rely on imported water supplies. 2 The GWRS is a direct partnership between the treatment system and the drinking 3 water supply. Because the ultimate output of the GWRS is potable water(i.e., drinking 4 water), the District's strict control over the input is extremely important. 5 For this reason, in addition to the reasons set forth extensively in the District's 6 Administrative Complaint, Corrected Opening Brief, Reply Brief, and this Supplemental 7 Reply Brief,the Permit should be revoked and the maximum civil penalties should be 8 imposed. 9 DATED: November 12, 2014 WOODRUFF, SPRADLIN & SMART, APC 10 11 By: 12 B LEY R. ROGT 13 RICIA R. HAGER F a Attorneys for ORANGE COUNTY W; 14 SANITATION DISTRICT 15 8 a 16 17 18 19 20 21 22 23 24 25 26 27 28 n I OOdb16.1 I PROOF OF SERVICE 2 STATE OF CALIFORNIA COUNTY OF ORANGE 3 I am over the age of 18 and not a party to the within action; I am employed by WOODRUFF, SPRADLIN & SMART in the County of Orange at 555 Anton Boulevard, 4 Suite 1200, Costa Mesa, California 92626-7670. 5 On November _k).-- 2014, I served the foregoing document(s) described as 6 ORANGE COUNTY SANITATION DISTRICT'S SUPPLEMENTAL REPLY BRIEF 7 ❑O by placing the true copies thereof enclosed in sealed envelopes addressed as stated on the attached mailing list; 8 ❑ (BY MAIL) I placed said envelopes for collection and mailing, following ordinary 9 business practices, at the business ofI1ces of WOODRUFF, SPRADLIN & SMART and addressed as shown on the attached service list, for deposit in the United States 10 Postal Service. I am readily familiar with the practice of WOODRUFF, SPRADLIN & SMART for collection and processing correspondence for mailing with the United I I States Postal Service, and said envelope(s) will be deposited with the United States Postal Service on said date in the ordinary course of business. 12 © (BY ELECTRONIC MAIL) by causing the foregoing document(s) to be s ; 13 electronically mailed on the individual(s) listed on the attached mailing list. S F� 14 N (BY OVERNIGHT DELIVERY) I placed said documents in envelopes) for r � collection following ordinary business practices, at the business offices of $ 15 WOODRUFF, SPRADLIN & SMART, and addressed as shown on the attached a service list, for collection and delivery to a courier authorized by Norco Delivery 16 Services to receive said documents, with delivery fees provided for. I am readily familiar with the practices of WOODRUFF, SPRADLIN & SMART for collection 17 and processing of documents for overnight delivery, and said envelope(s) will be deposited for receipt by Norco Delivery Services on said date in the ordinary course 18 of business. 19 ❑ (BY FACSIMILE) I caused the above-referenced document to be transmitted to the interested parties via facsimile transmission to the fax number(s) as stated on the 20 attached service list. 21 p (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 22 23 Cl (Federal) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. I declare under penalty of 24 perjury that the above is true and correct. 25 Executed on November J_-2 ,2014 at Costa Mesa, California. 26 AAw. i n n _ 27 BOBBIE MARSH Z 28 12 [OW18.1 I SERVICE LIST 2 3 Matthew Kaplan 4 Tucker Ellis LLP 515 South Flower Street 5 42nd Floor Los Angeles, CA 90071 6 (213)430-3400 Telephone 7 (213)430-3409 Facsimile matthew.kaplan@tuckerellis.com 8 Carmen Trutanich 9 515 South Flower Street 10 42nd Floor Los Angeles, CA 90071-2223 11 (213)430-3400 Telephone (213)430-3409 Facsimile 12 carmen.trutanich@tuckerellis.com s 13 5 ' z 14 8'i a 15 a 16 17 18 19 20 21 22 23 24 25 26 27 28 13 IW618.1 I TUCKER ELLIS LLP CARMEN A.TRUTANICH(SBN 86629) 2 calmer.trutmich((��tuckerellis,com MATTHEW I, KAPLAN(SBN 177242) 3 matthew.kaplan@tuckerellis.com WILLL9M H. DANCE(SBN 230041) 4 william.dmec@,tuekerellis.com 515 South Flower Street, Forty-Second Floor 5 Los Angeles, CA 90071-2223 Telephoner 213.430.3400 6 Facsimile; 213.430,3409 - 7 Attorneys for Respondents KLEAN WATERS,INC., r 8 TTM MILLER,and SHAUN MILLER 9 ORANGE COUNTY SANITATION DISTRICT � l0 h 11 In the Matter of: 5 a 12 RESPONDENTS' POST-REARING �y Klean Waters,Inc,,Tim Miller, SLTI'LEMENTAL DRIES .=da 13 and Shaun Miller 14 Industrial Wastewater Discharge Hearing Date: November 13 and 14,2014 x ' Permit No. 52-1-841 Time: 10:00 A M. e 0 15 Location: OCSD Administrative OYfloe 10844 Ellis Avenue [-^ 1 16 Fountain Valley,CA 92708 Hearing Officer: Roberta L.Larson 8 17 `s 19 20 21 22 23 24 25 26 27 28 RESPONDENTS'POST-HEARING SUPPLEMENTAL ERIEF LelmenR6DI 4100\000001\1038550.1 I Respondents Klean Waters,Inc„Tim Miller and Shaun Miller(collectively,"Klean Waters") 2 submit this Supplemental Post-Hearing Brief as authorized by this Tribunal at the Hearing,Day 2, 3 On Friday,November 14,2014 just minutes before the second and final day of the Hearing was 4 to begin,the Orange County Sanitation District("OCSD")served a Notice of Errata Re Orange County Sanitation District's Exhibit 41 Filed in Support of Supplemental Reply Brief. The Notice of Errata b I I pwported to"replace"two single page summary laboratory sheets with four separate reports,consisting of 39 pages of new evidence(the reports begin on pages 1, 8, 12 and 16 of the replacement exhibit), 8 Only two of the four new reports appear to have anything to do with the pages being replaced. And the 9 new reports raise additional serious ques$ons about the consistency of the evidence submitted by OCSD 10 in this proceeding and the quality of the operations of OCSD's in-house lab, ' 11 ORIGINAL EXHIBIT 41 5 12 Each of the single page summary analyses state that they relate to a"grab"sample collected . W a 13 Ianuary 3, 2014 at 10:45 a.m, by"Chavez." The first one reports"Metals Digestion"results for a 14 sTnple assigned"LIMS Sample 4 1598200." The second page summary analysis reports cyanide results Y A 15 ("CN amen,")for"LIMS Sample N 1598201." 16 REPLACEMENT EXHIBIT 41 17 The four new lab reports in replacement Exhibit 41 are identifiable'by"LIMS ID"numbers 18 rcported on the first page of each-opon in the upper right-hand comer, That same page identifies the i 19 "Source Control Sampling Points"as"Klean Waters, Inc," Additional data from the first page of each 20 rcport is summarized below: 21 Report (as stacked Print Date Identified LIMS ID;22 b OCSD No.of Pages 23 1 November 12,2014 7 SC-52-1-841-1598200 2 November 12,2014 4 SC-52-1-841-1598201 24 3 November 12 2014 4 SC-52-1.841-1598202 25 4 November 12,2014 24 SC-52-1-841-1598203 26 None of these four reports contain information about the same sample throughout the document. 27 'The footer on each of these reports lists the total number of pages of each report and the page number 28 (i.e.,"1 of 7" "2 of 7",etc.) I RESPONDENTS'POST-HARING SUPPLEMENTAL BRIEF UlmanaUX014100\000001\1038550.1 1 Each of them report data on different samples, as they use different LIMS ID numbers on various pages 2 of the reports and different collection dates for the samples. More troubling,however,is the fact drat j 3 first and fourth reports contain pages and pages of information about samples collected at other locations 4 on days other than January 3,2014 and have nothing whatsoever to do with Klean Waters, 5 Take for example,the fast report in the 39 page etacic,the 7 page report. The pages report: 6 Page TiNTC ID; Sampling Identification Collection up per left hand description) Date 7 — 1 SC-52-1-841-1598200 Sorrce Control Sampling Points- 01/03/14 g Klean Waters, -ra. 2 QC-BLANK-1598559 Qua ry Con m. Samples- 01/09/14 9 C SamN cs 10 3 QC.BS-ICPES SPEX_27-2071E-15985 Qu lity C.on nl Samples- 01/09/14 QC Sampl s d 11 4 QC-SPK-ICPES SPEX-27-2071B-1598 Quarry Control Samples- 01/08/14 IS,,ertifc Spray Finishes,Inc. i 12 Qcali:y Control Samples- I a 5 QC-SA-ICPES_SPEX-27-207.TB-15985 Scicnti is Spray Finishes,Inc, O]/08/14 _ 1.3 Quality Carlo: Sv<nples- 6 QC-SPK-ICPES SPEX-27-207M-1598 01/07/14 14 — Basic Electronics lnc. 7 QC-SR-ICPES SPEX-27-207JB-15995 Quality Ce 'rcl Samples Ol/07/14 a" 15 — Basic Electronics Jnc. I, 16 The second and third reports in the stack both contain pages with different LIMS ID number's - 17 and report multiple sample collection dates. The fourth report--the 24 page one--also has multiple l I8 collection dates and LIMS ID numbers,but it too contains pages and pages of data about a company 0 19 other than Klean Waters. The last page of the fourth report that appears to relate to Klean Waters is 20 page 14 of 24;beginning on page 15 of 24 the data relates to a company called Precision Resource, 21 California, 22 Each of the three other companies identified on the Replacement Exhibit 41 are, according to 23 Google searches,dischargers to the OCSD sewer system: 24 Scientific Spray Finishes,Inc,—a provider of Professional Wet and Powder Coating 25 Services, covering metal wood and plastic and uses three Wet Booths,one of which is used 26 for Class A Wet Finishes.We also have Conveyor Powder Line and two Liquid Conveyor 27 Lines-htb:,//www.scismay.co . OCSD identifies it as a company with pretreatment 28 equipment in the category"Metal Finishing PSNS"- 2 RESPONDENTS'POST-REARING SUPPLEMENTAL BRIEF LaucanapW14100\0000010038550.1 j i I I http•//wwwocscLcom/Home/ShowDocu mt2id=l 0407(at page 114). 2 Basic Electronics,Inc. -- a Military Supplier of U.S. Government electronic sub-systems and 3 systems assemblies-http�//wwwbasicelectmnicsinc.com/#Iabotit, Provides:Box:&rigid 4 flex circuits(all :ends & assemblies);Integral step etch flex;Pressure point contact 5 connector flex;Thermal flexible circuitry;Printed circuit boards (all levels&assemblies); i 6 Power bus has,Heat sinks;Insulated shield planes;Membrane switch panels; Computer I' i 7 switching systems;Power supplies;Electromagnetic interference shields;Discrete '.. 8 component modules-httm•//wwwbasicelmtmnicsinc.com/#Iscivices. OCSD identifies it as 9 a company with pretreatment equipment in the category`%,fetal Finishing PSNS"- g 10 htti):H/ w.ocsd.com/Home/ShowDoc=mt?id=l D467(at page 107). g � � 11 Precision Resource— 'a recognized leader in the development of fineblanking technology, a 12 With our more than 100 fineblanking presses and extensive secondary finishing capabilities 13 we produce m ilIions of fully finished components for our customers every day,"- '' 14 hap://www preclslomesoume.coru/comt) G 15 It is clear from a close study of the documents submitted as part of the Replacement Exhibit 41 that the lab reports are inconsistent,incomplete,unreliable and,ultimately, irrelevant to the issues in this 17 case, Indeed,Exhibit 41 is only discussed on pages 1 and 2 of OCSD's Supplemental Reply Brief, 18 where OCSD tries to create the impression that Klean Waters was engaged in conduct about which it G 19 was rightly suspicious. But the testimony at the bearing of Martin Holl of OCSD and others 20 demonstrated that Us incident was the one where Klean Waters was the victim,because it was misled 21 by the waste generator and wastehauler into believing the wastes were non-hazardous,when in that they 22 were not. There was extensive testimony about how Klean Waters properly dealt with this situation by 23 rejecting the load,requiring the generator to retrieve the load and haul it off to a hazardous waste 24 disposal facility. It was also established that the Department of Toxic Substances Control investigated 25 this situation and concluded that Klean Waters acted properly. So it is nuclear why OCSD is concerned 26 about this incident,or the content of Exhibit 41 at all. I 27 Still,Replacement Exhibit 41 is very important. It is important because it proves that OCSD, 28 and its lab in particular,is wueliable in the information they gather,report and use to demand fines out 3 RESPONDENTS'POST-HBARING SUPPLEMENTAL HRMF La[mmege\0141001W0001\1N85S0.1 I of permittees(and submit as evidence in an effort to revoke permits,shut down businesses and put I 2 individuals onto the unemployment line), Do these reports actually relate to Klean Waters in any 3 material respect? Were the Lab samples actually cross-contaminated when the lab analyses were done. 4 Were the lab analyses run property,but the data mixed up and misreported when it was entered into the 5 computer system? Were the lab analyses run properly and the data properly entered into the computer, 6 but reports generated improperly by cross-reporting events and data? Were the lab analyses ran - 7 properly and the data properly entered into the computer, but the technicians did"copy and paste" 8 activity when saving and printing reports such that some data is accurate and relates to Klean Waters, 9 while other data does not? s 10 Or,more nefariously,was the effort to submit few reports in place of the irrelevant two pages 11 comprising the original exhibit a deliberate effort by OCSD and/or its counsel to introduce irrelevant 5 12 and umcliable data into this proceeding to mislead this Tribunal and Respondents, Most likely, OCSD's 13 counsel was either unaware of the deficiencies in the Replacement Exhibit 41 such that it was misled by e =, t 14 OCSD itself, or OCSD and its counsel were both careless and failed to review the information earoMy x = A 15 before submitting it to this Tribunal. , o „ `e 16 But the answer does not really matter. What is clear is that this replacement exhibit slows that 17 OCSD,its investigators and lab are all unreliable and their claims are not to be trusted. Indeed,there 5 18 was testimony from OCSD itself about its lab running improper tests on Molycorp, wastewater such that V 19 false positive results of arsenic were reported due to interference from lanthanide. And we now know 20 that they do not even proofread their lab reports—lab reports that are being used in an effort to destroy a 21 business, impose millions of dollars in fines and put innocent people out of work. More professionalism 22 is to be required from public prosecutors invoking the police powers of the State. 23 OCSD has overreached and overcharged KIcan Waters. Although OCSD gave Klean Waters its 24 permit to discharge while knowing full well that its mechanical pump system was not in place and 25 watching Kbam Waters treat wastewater with bucket addition of chemicals, 0CSD now blames Klean 26 Waters for treating wastes this way. OCSD claims it is"business friendly"but James Colston,the head 27 of the unit involved in this one,blew off a confirmed meeting with Mesa Waters to address the 28 compliance issues and a situation Klean Waters believed(and believes)was wholly a personality driven 4 RESPONDENTS'POST-t1EAlUNG SUPPLEMENTAL BRIE} Lannan WW 14100W0000 A[03 B550.1 I enforcement action pushed by Roya Sohanaki,the supervisor in charge of this compliance matter. Ms. 2 Sohanaki herself refused invitations to visit and inspect Klean Waters and see its operations and any :i cocumentsshewanted. When Klcan Waters tried to obtain OCSD approval for out-of-area wastes, 4 OCSD took more than two months to respond. When Klem Waters asked for specific details on the 5 iawic.umon about out-of-area wastes sought by OCSD as part of its new initiative to gather this 6 infommation from centralized wastewater treatment facilities, OCSD failed to respond at all until just this 7 pa k August—fourteen months after Klean Waters asked for guidance. Once the personality disputes 8 became openly hostile,OCSD began calling Klean Waters' customers and telling them it was illegally 9 accepting and discharging wastewater and misrepresenting the terms of Klean Waters'permit. Only g 10 ei'cr*his occurred and after 0CSD supervisors refused to meet with Klean Waters did Klean Waters 17 begin restricting the scope of information OCSD could review and limiting the identity of who cc old S 12 i we access to its facility. While this was wrong,when viewed in context,it is understandable and all a 19 weighs in favor of allowing Klean Waters to keep its permit and imposing only a small fine for access N9 14 refusal. �Ia l 0 15 One final addendum The citation for the case referenced during Mr. Trutanich's statement of e 16 his objection after evidence was taken was Garrity v. State ofN",Jersey,385 U.S. 493,497, 87 S.Ct. 17 616, 619, 17 L,Ed.2d 562(1967). S 18 DATED: November 19,2014 TUCKER ELLIS LLP 19 20 21 By: Matthew I.Kaplan _ 22 Attorneys for Respondents KLEAN WATERS,INC., SHAUN MILLER 23 and TIM MILLER 24 25 26 27 28 5 RESPONDENTS'POST-HEARING SUPPLEMENTAL BRIEF Lalmenege101 V100\o00001\1038550,1 � 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 I am employed in the County of I,es Angcics, lam over the age of eighteen years and not a party to the within entitled action. My hus.ress ccress is 5 k5 South I7ower Street,Forty Second Floor 4 Los Angeles, CA 9007E 5 On November 19,2014,I served thc_o:egoing documcnt(s) described as RESPONDENTS' POST-HEARING SUPPLEMENTAL BRIEF on the lnacrested party(ies)in this action as follows: 6 [See Attached Service List.] 7 (JQ BY MAIL: Byplaeiug a true copy thereof enclosed in a sealed cuvclope(s)addressed as above, 8 and placing each for collection and mailing on that date following ordinary business practices. I am readily familiar with this business's nraetice for collecting and processing correspondence for 9 marlin Un Inc same ca thateones ondenceis it as i g y p placed for eollecdon and mailing, deposited in the ordinary course of business witnt the U.S.Postal Service in Los Angeles, g 10 Cali£omia,in a sealed envelope with postage fully prepaid. ]1 ( ) BY OVERNIGHT DELIVERY: I enclosed the documents in an envelope or package provided H by an overnight delivery carrier and addressed as noted below. I placed the envelope or package 12 for collection and overnight delivery at an office or a regularly utilized drop box of the overnight — delivery carrier. e 13 I . O BY FACS11V LE: Based on agreement of the parties to accept service by fax transmission,I _ 14 faxed the documents to the persons at the fax numbers listed below. The telephone number of the sending fax machine was 213,430.3409. The sending tacsimllc ma �mc issnad a s transm'Ission re ort confirming the transmission was corn i c to ana w-thout e o:. A eo � -5 P n4 1 - PY of that report is attached. 16 6 "Q BY F­7/UJL DR ELECTRONIC TRANSMISSION: Based on a court order or an agreement 17 of the padres to accept service by e-mail or electronic transmission,I caused the documents to be j acnt`.o the persons at the e- eii acdre.sses listed below. I did net'receive,within a reasonable 18 mtune afrcr the transmission, soy electronie message or other indication that the transmission was unsuccessful. 19 (J) STATE: I declare under penalty of perjury under the laws of the State of California that the 20 foregoing is true and correct. - I I 21 Executed on November 19,2014,at Los Angeles,California. 22 23 401k,24 ia Dukesh v 25 26 27 28 PROOF OF SERVICE 107007.1 i ] SERVICE LIST 2 Bradley R.Hogin,Esq. 3 WOODRUFF,SPRADLIN&SMART 555 Anton Boulevard, Suite 1200 4 Costa Mesa, CA 92626 Tel: (714)415-1006 - 5 Fax: (714)415-1106 e-mail•bhogn@wss-law,com ! 6 Carrie L.Robles 7 Secretary to the General Manager 8 Orange County Sanitation District 10944 Ellis Avenue - 9 Fountain Valley, CA 92708 Tel! (714) 593-7433 a 10 Fax: (714)962-0356 il 11 E-mail: crobles@ocsd.com h 2 Roberta Larson a = Executive Director 13 CASA ., 1225 8"Street,Suite 595 14 Sacramento,CA 95814 0 15 Tel: (916)446-0388,Ext. 1 E-mail;blarson@casaweb.org 16 17 18 19 20 21 22 23 24 25 26 27 28 2 PROOF OF SERVICE 103700.1 ORANGE COUNTY SANITATION DISTRICT In the matter of. Klean Waters,Inc.,Tim Miller, and Shaun Miller ORDER Industrial Wastewater Discharge Permit No. 52-1-841 On November 13 and November 14,2014, a hearing was conducted before Roberta L. Larson, Hearing Officer, for the purpose of providing Klean Waters, Inc., Tim Miller, and Shaun Miller an opportunity to respond to evidence of the Orange County Sanitation District(the "District") and to present evidence as to why the District should not revoke Industrial Wastewater Discharge Permit No. 52-1-841 and impose administrative civil penalties pursuant to the District's Wastewater Discharge Regulations as set forth in District Ordinance No. 39 (the "Ordinance"). For the reasons set forth below,the hearing officer finds that the permit shall be revoked and administrative civil penalties in the amount of$ 1,190,000.00 be imposed upon Klean Waters,Inc., Tim Miller and Shaun Miller. LEGAL FRAMEWORK Generally, Publicly Owned Treatment Works("POTWs") collect wastewater from homes, commercial buildings, and industrial facilities and transport that wastewater through a collection system to a treatment plant. After treatment is complete,effluent is discharged to a receiving water body such as a stream, creek,river, lake,estuary or ocean and residual biosolids are reclaimed, reused through land application, or disposed. For purposes of the Clean Water Act, a POTW is a direct discharger into the nation's waters, and its discharge must meet certain effluent limitations included in a permit issued to the POTW under the National Pollutant Discharge Elimination System("NPDES"). (33 U.S.C. § 1342.) POTWs are generally designed to treat conventional pollutants that are expected to be present in domestic discharges. POTWs, however, are not designed to treat toxic or non-conventional pollutants that are present in non-domestic discharges. Therefore,pollutants that can be present in non-domestic discharges can interfere with the operations of a POTW, or pass through a POTW without adequate treatment, thereby causing noncompliance with a POTW's NPDES ORDER 1 In the Matter of Klean Waters Inc. et al. permit limits and having detrimental effects on the water quality of the receiving water body as well as the reclamation and reuse of residual biosolids. (40 C.F.R. § 403.3.) To protect public health, safety, and receiving waters,the Clean Water Act established the National Pretreatment Program(the "Program"). The Program is designed to reduce, eliminate, or alter the nature of pollutants in wastewater through pretreatment prior to introducing such wastewater to a POTW. Under the Program,the Environmental Protection Agency("EPA") is authorized to establish pretreatment standards to prevent the discharge of any pollutant through a POTW that interferes with,passes through, or is otherwise incompatible with a POTW. (33 U.S.C. § 1317(b)(1).) EPA has established two types of pretreatment standards: "National Pretreatment Standards" and "Categorical Pretreatment Standards." The National Pretreatment Standards generally include "Prohibited Discharges"which are the discharge of any pollutant to the sewers from any industrial user that causes pass through or interference, or exceeds local limits developed by a POTW as described below. (40 C.F.R. § 403.5.) The Categorical Pretreatment Standards are uniform national standards for specific categories of industrial users which limit the discharge of specified toxic and non-conventional pollutants to a POTW. These standards are based on the best available technology. (40 C.F.R. § 403.6.) The District is a POTW responsible for collecting,treating,disposing, and recycling wastewater from residential, commercial, and industrial sources within a 471-square mile service area located in northern and central Orange County. The District's treated effluent is either discharged to the ocean or delivered to the Orange County Water District for further treatment and reclamation. (NPDES Permit, District Ex. 1.) Under the Program, the District must adopt its own pretreatment program to control discharges from non-domestic sources. The District's Pretreatment Program, and the District's authority to enforce the Pretreatment Program, is set forth in the District's Wastewater Discharge Regulations,District Ordinance No. 39 (the "Ordinance") The District issues individual permits to significant industrial users, as defined in the regulations. The District may deny a permit application if the applicant fails to establish to the District's ORDER 2 In the Matter of Klean Waters Inc. et al. satisfaction that adequate pretreatment equipment is included within the applicant's plans to ensure that discharge limits will be met. (Ordinance, § 302.1(E).) FACTUAL BACKGROUND On September 27, 2012, Klean Waters,Inc. ("Klean Waters") applied to the District for a Class I Wastewater Discharge Permit(the "Application"). Klean Waters planned to operate a centralized waste treatment facility at 314 W. Freedom Avenue within the City of Orange (the "Facility"). As a centralized waste treatment facility,Klean Waters planned to treat non-hazardous industrial wastewater generated offsite, and discharge it to the sewer system. Klean Waters planned to commence discharging by November 1,2012. Tim Miller signed the application as the responsible corporate officer. (District Ex.2,pp. 1-2.) The Application included detailed drawings showing Klean Waters'planned pretreatment system. On January 21,2013, the District issued Industrial Wastewater Discharge Class I Permit No. 52- 1-841 to Klean Waters (the "Initial Permit"),effective January 1, 2013. The Initial Permit conditionally authorized Klean Waters to discharge industrial wastewater resulting from the treatment of metal-bearing waste,oily waste, and organic waste from the Facility into the sewer system tributary to the District's sewerage facilities. On June 10,2013, Klean Waters requested category assignment to Centralized Waste Treatment Facility, Subpart D. (District Ex. 5,p. 1.) On that same day, Klean Waters provided an Initial Certification statement to the District describing the Klean Waters pretreatment system. On June 28, 2013, the District issued a revised permit(the "permit"). A lengthy enforcement history ensued. The facts that gave rise to the issuance of the complaint against Klean Waters are set forth in detail in the briefs, declarations and exhibits submitted by the parties. The material facts,which are not in dispute, are these: On multiple occasions, Klean Waters' personnel denied District staff access to inspect the Facility, inspect records and take samples from various locations in the Facility. Klean Waters did not construct and install the pretreatment system reflected in its permit application/initial certification until September 2014. ORDER 3 In the Matter of Klean Waters Inc. et al. On multiple occasions, Klean Waters accepted waste from sources located outside the District's jurisdiction without submitting customer sampling data and without the District's approval. ANALYSIS I. Klean Waters Violated the Permit and Failed to Implement its Pretreatment Program. The evidence shows that, in violation of its permit, Klean Waters officials denied access to District inspectors seeking to enter and inspect the facility on multiple occasions, accepted waste from outside the District's jurisdiction without obtaining the District's approval, and failed to implement the pretreatment system described in its initial certification. Klean Waters Barred District Inspectors from Entering the Facility, Denied Access to Records and Prevented Sampling. The right to access and inspect industrial facilities covered by its pretreatment program is a fundamental requirement for POTWs such as the District. The right is set forth in governing regulations, the District Ordinance, and the permit itself. (40 C.F.R. §437.47(a); 40 C.F.R. §437.41(c); Ordinance §§501.1(C) and 501.3; Permit Part 4-Special Conditions.) Klean Waters concedes it barred access to the District personnel on 11 separate occasions[ over a span of four months. (Klean Waters Opening Brief at p. 19.) Klean Waters also concedes, in its papers and at hearing, that these denials constitute violations of the permit, characterizing the refusals as the result of a"personality conflict" and prompted by a desire to protect the financial interests of the company. This is no defense to deliberate violations of a clear and unambiguous permit condition, one that should have been well understood by company officials experienced with pretreatment permit requirements. (Klean Waters Opening brief p.6; Declaration of Tim Miller IM2 4.) Klean Waters Accepted Out-of-Jurisdiction Waste Without District Approval The permit requires Klean Waters to provide to the District for review sampling data and customer profiles for sources from outside the District's service area prior to acceptance, t The District maintains that access was denied on I separate dates. Whether access was denied on May 22,2014 was disputed at the hearing. Review of the evidence reveals that access to the facility was permitted on that date, but that a request to review records was denied. Thus,access to inspect,sample or review records was denied on 1 l days. ORDER 4 In the Matter of Klean Waters Inc. et al. treatment and discharge of wastewater from these sources. (Permit Part 4.) The permit also provides that the District reserves the right to refuse permission to accept any wastewater that will have an adverse effect on the District's permit compliance or operations. The District submitted evidence of 32 instances of accepted unauthorized out-of-jurisdiction waste by Klean Waters, each of which is a separate violation of the permit. Klean Waters presented no evidence to controvert the District's proof. Instead, Klean Waters argues (1) the permit does not require the District's pre-approval; (2) the permit condition is overly burdensome and unreasonable and(3) the permit condition is invalid and unlawful. The permit language states, in relevant part: • "Sampling data and customer profiles for all sources from outside of the OCSD's service area shall be submitted for review prior to acceptance, treatment, and discharge of wastewater from that source. sus • OCSD reserves the right to refuse any wastewater that will cause violation of its NPDES permit conditions, upset the treatment process, or adversely affect its ability to dispose of biosolids" Klean Waters' position is that because the permit does not use the word "approval," Klean Waters could accept, treat and discharge waste without the District's approval, provided it had submitted the sampling data and customer profiles. This is a strained reading of the permit language. Read together, the two statements provide for both review, and approval or rejection, of the proposed wastes by the District. The District's right to refuse wastes would be rendered a nullity if the permittee could accept, treat and discharge the waste without pre-approval. In any event, this question of interpretation is largely moot, as the evidence showed that Klean Waters did not submit all of the required information prior to acceptance of waste and was therefore out of compliance even under its own reading of the permit condition. With regard to the second contention, the District provided evidence that this condition has been included in a permit for another CWT facility, and also provided expert testimony that a similar condition is in effect in permits issued to industrial dischargers in Los Angels County. (Testimony of Paul Martyn.) Moreover, the provision is on its face reasonable. The District provided evidence that out-of-jurisdiction waste presents unique challenges. The District does not have the authority to inspect, monitor and enforce its pretreatment program requirements on ORDER 5 In the Matter of Klean Waters Inc. et al. sources outside its jurisdiction. Yet it must know what is coming into its system in order to protect its treatment processes and comply with its own NPDES permit conditions. Klean Waters also contends the requirement for pre-approval is unlawful and pre-empted by state law. Klean Waters equates the condition requiring District review and approval before acceptance of out-of jurisdiction waste to an effective ban on acceptance of waste, in conflict with Section 13000 of the Water Code. The permit condition, however, is clearly not a ban, as the District did approve Klean Waters' acceptance of significant volumes of wastewater from Molycorp, a rare earth mine located outside the District's boundaries, and has also approved acceptance of out-of-jurisdiction wastes under an identical permit condition issued to another discharger. (District Ex. 37.) The challenge to the permit's reasonableness and validity is also untimely. The transmittal letter accompanying the revised permit expressly provided that the permittee should raise in writing any issues regarding the terms or conditions of the permit. Klean Waters did not object to the permit until commencement of the enforcement action. It is well settled that the reasonableness of lawfulness of a permit requirement may not be collaterally attacked in the context of an enforcement proceeding. (See, e.g., Pub. Interest Research Grp. of NJ, Inc. v. Powell Duffryn Terminals Inc., 913 F.2d 64, 78 (3d Cit. 1990) (`Because [the defendant] never challenged the [biochemical oxygen demand and total suspended solids] limits in its permit until PIRO brought this enforcement action, it may not challenge them now...even though [the] action might eventually result in the imposition of severe civil or criminal penalties")) Klean Waters Failed to Implement the Required Pretreatment System Klean Waters operates a centralized waste treatment (CWT) facility, treating waste from multiple subcategories for which pretreatment standards have been established. The federal regulations require that the Klean Waters CWT facility either treat the different subcategories of wastewater in separate systems--and comply with the appropriate discharge limitations for each subcategory--or meet the Multiple Wastestream Subcategory standards. (40 C.F.R. § 437.41(a)(1).) In order to do so, the facility most submit an initial certification signed by a responsible corporate officer that: (1) lists and describes the subcategories of waste accepted for treatment at the facility; (2) lists and describes the treatment systems in place at the facility and the conditions under which the treatment systems are operated for the subcategories of wastes ORDER 6 In the Matter of Klean Waters Inc. et al. accepted for treatment at the facility; and (3) include information and supporting data establishing that these treatment systems will achieve equivalent treatment. (40 C.F.R. § 437.47 (a)(2); 40 C.F.R. § 437.41(a).) In its application for a revised permit, Mean Waters submitted an initial certification, signed by Tim Miller, stating that waste would be treated at the facility per the plans and specifications provided to the District with the initial permit application. Based upon this certification, the District issued the permit. The permit requires submittal of an annual certification statement certifying that the "facility is operating its treatment systems to provide treatment as set forth in the initial certification." It is undisputed that Klean Waters did not construct and operate the pretreatment system described in its permit application and initial certification until September 2014. In contesting the complaint, Klean Waters argues (1) the permit does not require use of a particular pretreatment process and(2)that Klean Waters"substantially complied"with the permit 2 As the District demonstrated, EPA established the "equivalent treatment" requirements to ensure that pollutant levels from CWT discharges were achieved through treatment rather than dilution. Mean Waters was required to operate its system in accordance with the initial certification. (40 C.F.R. 437.41; See also hearing testimony of Greg Arthur and Paul Marlyn.) Much focus was placed in the briefs and at hearing on the second contention, that the treatment system actually operated by Klean Waters did in fact provide equivalent treatment. (See, e.g. testimony of Dr. Lloyd Bracewell; testimony of Greg Arthur.) Whether or not the alternative treatment system utilized by Klean Waters could have been demonstrated to provide the required equivalent treatment, however, is not a matter to be determined by the hearing officer. The alternative system is not the system certified by Klean Waters, and not the system the District 2 Mean Waters also contends that as long as the effluent limitations were met, the facility should be deemed in compliance. This argument misunderstands the requirements of the Clean Water Act and EPA regulations. The pretreatment requirement is a 'Yechnology-based" standard, which requires the facility to demonstrate comparable pollutant removals to the treatment technology that served as the basis for the pretreatment standards. (Declaration of Greg Arthur,110.) ORDER 7 In the Matter of Klean Waters Inc. et al. evaluated when issuing the permit. Klean Waters must comply with the permit it applied for and received until such time as the permit is modified by the District.3t DUE PROCESS Klean Waters maintained throughout the course of this enforcement proceeding that the hearing procedures lack due process safeguards. Due process, `unlike some technical roles, is not a technical conception with a fixed content unrelated to time, place and circumstances [citations omitted]. It is flexible and calls for such procedural protections as the situation demands [citations omitted]." (Mathews v. Eldridge (1976) 424 US 319, 334). The specific hearing procedures required to satisfy due process depend upon the nature of the interest at stake. Here, there is no vested right to discharge to the District's sewer system. The permit issued to Klean Waters provides a privilege and a revocable right to connect and discharge to the sewer system subject to its requirements and conditions. (Hobby v. City of Sonora (1956) 142 Cal. App. 2d 457, 460; Getz v. Pebble Beach Community Services District(1990)219 Cal. App. 3d 229.) The District hearing procedures comport with this standard. Klean Waters' desire for additional time to prepare its case must be balanced with the seriousness of the allegations in the complaint and the need for prompt resolution of this matter involving public health, safety and the environment. The District appointed an independent hearing officer, delayed the hearing date, and provided Klean Waters ample opportunity to cross-examine District witnesses. At hearing, Mean Waters also objected to the District calling Tim Miller as a witness.4 Despite the fact that Mr. Miller submitted a lengthy declaration and is Klean Waters President, Klean Waters contended that he could not be required to take the stand for questioning by District 3 Klean Waters vigorously disputes the validity and relevance of the District's sampling results. (Klean Waters Opening Brief pp. 9-13; testimony of Dr. Carla Kagel.) These sampling results are not material, however, to whether or not Klean Waters violated the permit as alleged in the complaint. While the District did issue notices of violation associated with the monitoring,the District does not seek administrative civil penalties for violations of the facility effluent limitations. Given the failure of Klem Waters to provide the customer profiles and sampling data required, the District was prudent in conducting its own investigation to understand the wastes coming into its system. The District went to great lengths to identify and eliminate other sources of wastewater, and expert testimony confirmed the use of downstream sampling in sewers for off-site verification. (Testimony of Paul Marlyn.) 4 This issue was not briefed in advance by Klem Waters, even though the question of whether a witness may be called under such circumstances does not rest upon whether a criminal investigation is in fact underway, as argued by Klean Waters. If there is a law under which the witness may be prosecuted for his actions, and those actions relate to the examination at hand,the person cannot be compelled to answer after invoking the privilege. (Ex Parts Clarke(1894) 103 Cal.352,354.) ORDER 8 In the Matter of Klean Waters Inc. et al. counsel due to the possibility of a parallel criminal investigation into facts at issue in the administrative proceeding. The hearing officer allowed District counsel to examine Mr. Miller, thus placing him in the position of responding under oath to questions or asserting his right against self-incrimination. This decision was correct under governing case law. With respect to compelling a witness to testify in a civil proceeding, which might then force the individual to assert his Fifth Amendment privilege, a witness "has no absolute right not to be forced to choose between testifying in a civil matter and asserting his Fifth Amendment privilege." (Keating v. Office of Thrift Supervision (1995) 45 F.3d 322, 326 (Keating).) The Keating Court deemed it permissible to conduct a civil proceeding at the same time as a criminal proceeding, "even if that necessitates invocation of the Fifth Amendment privilege[.]" (Ibid.) CALCULATION OF ADMINISTRATIVE PENALTIES In determining the amount of administrative civil penalties to be imposed, the hearing officer is to take into consideration all relevant circumstances, including"the extent of harm caused by the violation, the economic benefit derived through any noncompliance, the nature and persistence of the violation, the length of time over which the violation occurs, and corrective action, if any, attempted or taken by the discharger." (Gov. Code § 54740.5(c).) The District seeks imposition of the maximum penalty provided by statute. With regard to Count 1, Denial of Inspection and Sampling, the maximum available penalty is appropriate. Klean Waters willfully and deliberately denied access to its facility for purposes of inspection and sampling on 11 separate dates totaling 14 separate violations of the permit. These refusals did not come from a lower level employee who might be confused or conflicted regarding his or her obligations but from the company President, Tim Miller, and the company General Manager, Shaun Miller. This conduct occurred over a four month time span, during which time Klean Waters continued to operate and discharge with the District in the dark as to the nature of the wastewaters being received and processed. The only explanation offered that Klean Waters management was frustrated and mistrusted the District staff�cannot justify the repeated violation of a fundamental requirement of the permit, the Ordinance and the pretreatment regulations. The maximum penalty for these violations of$70,000 is warranted. ORDER 9 In the Matter of Klean Waters Inc. et al. With regard to Count 2, Failure to Provide Pretreatment, the District established that Klean Waters did not construct and operate the pretreatment system described in its permit application and initial certification until September 2014. It is relevant to the penalty calculation for this ongoing violation that the first definitive statement by the District that Klean Waters' alternative "bucket" system was non compliant and appears to have been the February 11, 2014 compliance meeting. (District Opening Brief at p. 8; Decl. of Roya Sohanaki, 13.) Prior to that, it is plausible that Klean Waters may have believed its system to be providing"equivalent treatment" At that meeting, the District directed Klean Waters to install the system no later than February 28, 2014. This was a clear and unambiguous directive. Yet Klean Waters did not move forward quickly to comply with this requirement, which was not installed until over six months after this deadline. Mean Waters realized an economic benefit by delaying installation of the system. Talking into account these considerations,the penalty for these violations is $1,000,000. With regard to Count 3, Acceptance of Unauthorized Wastewater From Outside the District's Jurisdiction, the District provided evidence of 32 instances of receipt of waste from outside the District's jurisdiction without the District's approval. Klean Waters did not offer any contrary evidence; in their testimony, both Tim and Shaun Miller admitted to having accepted and discharged out of jurisdiction waste on multiple occasions. These incidents are violations of the permit. There was evidence, however, that the specifics of the required submittals may not have been fully understood by Klean Waters and clearly communicated by District staff until March 24, 2014. Klean Waters did submit some information, though inadequate to meet the permit terms, which is relevant to culpability. The penalty for these violations is $120,000. LIABILITY OF TIM MILLER AND SHAUN MILLER All users of the District's sewer system are subject to enforcement actions seeking fines or penalties for violation of District permits, laws and regulations. (Ordinance §615.) A corporate officer or agent can be held personally liable for civil penalties resulting from a statutory violation if the officer's position within the company (i.e., owner, operator, lessee, etc.) is among those the statute identifies as responsible if officer had the responsibility and authority to prevent or correct the statutory violation and failed to do so. Ordinance Section 615(D)(1)provides that the District may issue an administrative complaint to any person who violates any provision of the Ordinance, or any permit condition,prohibition, or ORDER 10 In the Matter of Klean Waters Inc. et al. effluent limit. Ordinance Section (102)(A)(53) defines a "person" as "any individual, partnership, copartnership, company, firm, association, corporation or public agency,joint stock company, trust, estate, or any other legal entity; or their legal representatives, agents, assigns ..." (emphasis added). Thus, Klean Waters, Inc. and its officers may be held responsible for violations of the Permit and the Ordinance. In determining whether corporate officials should be liable, the courts consider several factors: (1) the individual must be in a position of responsibility which allows the person to influence corporate policies or activities; (2) there must be a nexus between the individual's position and the violation in question such that the individual could have influenced the corporate actions which constituted the violations; and(3) the individual's actions or inactions facilitated the violations. (People v. Roscoe (2008) 169 CalAppAth 829, 839 [citing In re Dougherty (1992)482 N.W.2d 485,4901.) The Roscoe factors are satisfied here. Tim Miller is the president of the corporation, and Shaun Miller is the General Manager. Tim Miller submitted and executed the permit application, including the initial certification, and is listed as the responsible party for the corporation. Tim Miller personally received the notices of violation and compliance orders notifying the corporation of the violations. Tim Miller was also present and actively participated in many of the violations of the Permit. Shaun Miller was present during many of the inspections of the corporation's facility and personally directed the activities at the facility leading to many of the violations. Corporate officers with significant responsibility are subject to personal liability unless they have "undertaken all objectively possible means to discover, prevent and remedy any and all violations of [the law]. (People v. Matthews (1992) 7 Cal.AppAth 1052, 1062).) That is far from the case here. The violations in this case are deeply troubling, and involve deliberate and willful non-compliance with permit terms and laws designed to protect public health and the environment. The Millers chose to enter into a business which is not only highly regulated, but in effect, requires that the company operate as a skilled and capable partner in waste treatment and uphold the highest standards. Their conduct warrants revocation of the permit and the imposition of liability for the violations committed by Mean Waters, Inc. ORDER 11 In the Matter of Klean Waters Inc. et al. BASED UPON THE FOREGOING,IT IS HEREBY ORDERED THAT: 1. Industrial Wastewater Discharge Permit No. 52-1-841 is revoked. 2. Klean Waters, Inc., Tim Miller and Shaun Miller shall pay administrative civil penalties in the amount of$1,190,000.00 Dated: December 8, 2014 By: �,�s� X aaUtx-' Roberta L. Larson Hearing Officer ORDER 12 In the Matter of Klean Waters Inc. et al. I TUCKER ELLIS LLP CARMEN A. TRUTANICH (State Bar No. 86629) 2 carmen.trutanich@tuckerellis.com MATTHEW I. KAPLAN(State Bar No. 177242) 3 matthew.kaplan@tuckerellis.com WILLIAM H. DANCE(State Bar No. 230041) 4 william.dance@tuckerellis.com 515 South Flower Street,Forty-Second Floor 5 Los Angeles, CA 90071-2223 Telephone: 213.430.3400 6 Facsimile: 213.430.3409 7 Attorneys for Respondents KLEAN WATERS,INC., SHAUN MILLER 8 and TIM MILLER 9 10 ORANGE COUNTY SANITATION DISTRICT 11 In the Matter of: l RESPONDENTS' NOTICE OF ERRATA RE 2 KLEAN WATERS, INC.,TIM MILLER REQUEST FOR HEARING BEFORE STEERING AND SHAUN MILLER, COMMITTEE PURSUANT TO SECTION 618 OF a 13 WASTEWATER DISCHARGE REGULATIONS Industrial Wastewater Discharge Permit No. ORDINANCE NO. 00SD-39,APPEALING THE • 14 52.1-841. GENERAL MANAGER'S ORDER REVOKING z KLEAN WATERS' PERMIT AND IMPOSING Y • 15 ADMINISTRATIVE CIVIL PENALTIES BASED H 16 ON ORDER OF HEARING OFFICER ROBERTA L. LARSON a 17 'a 18 u 19 There were numerous copying errors resulting in incomplete copies and missing pages in the 20 documents contained in the Appendices filed by Respondents on Friday,December 26,2014 with their 21 Request for Hearing Before Steering Committee Pursuant to Section 618 of Wastewater Discharge 22 Regulations Ordinance No. OCSD-39, Appealing the General Manager's Order Revoking Klean 23 Waters' Permit and Imposing Administrative Civil Penalties Based on Order of Hearing Officer Roberta 24 25 26 27 28 1 RESPONDENTS'NOTICE OF ERRATA RE REQUEST FOR HEARING PURSUANT TO SECTION 618 OF WASTEWATER DISCHARGE REGULATIONS ORDINANCE NO.00SD-39 LalmmaQa\014100\000001\1045883.1 I L. Larson.' Also, by mistake, two documents were included in the Appendix which were independent 2 documents filed in support of Respondents' Request for Hearing: (1)Declaration of Tim Miller in 3 Support of Brief to OCSD Board of Directors, and (2)Declaration of William Dance in Support of Brief 4 to OCSD Board of Directors. 5 To correct these problems, Respondents are filing this Notice of Errata along with replacement 6 Appendices for use by the Steering Committee and parties and are also resubmitting copies of the two 7 declarations as stand-alone documents. In addition, Respondents are filing a corrected Request for 8 Hearing with the citations corrected in order to correspond to the corrected Appendices submitted with 9 this Errata, corrections of various typographical and proofreading errors and to supply a table of contents 8 10 and a table of authorities. E$ 11 DATED: January 6, 2015 TUCKER ELLIS LLP S 12 a < 13 By: Matthew I. Kaplan 14 Attorneys for Respondents w ¢ KLEAN WATERS, INC., SHAUN MILLER Y 15 and TIM MILLER U „ 16 a 17 18 G 19 20 21 22 23 ' The Appendices were actually delivered to the Orange County Sanitation District("OCSD")by 24 messenger on Monday, December 29, 2014. They were technically filed on December 26, however, 25 because the OCSD unexpectedly closed early due to the Christmas holiday and was not open at the time respondents tried to deliver the documents. Under Ordinance No. OCSD-39 section 605.C.4, OCSD 26 was to be open until 5:00 p.m. to receive the documents. OCSD's General Counsel confirmed in correspondence with Respondent's counsel that delivery by messenger on December 29 was deemed a 27 timely filing with the OCSD. Respondents' contend the December 26, 2014 appeal deadline imposed by the OCSD and Section 605.C.4 are invalid because they conflict with Government Code § 54740.5(b). 28 2 RESPONDENTS'NOTICE OF ERRATA RE REQUEST FOR HEARING PURSUANT TO SECTION 618 OF WASTEWATER DISCHARGE REGULATIONS ORDINANCE NO. OCSD-39 LalmwagaTT4100\000001\1045883.1 I PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 I am employed in the County of Los Angeles. I am over the age of eighteen years and not a party to the within entitled action. My business address is 515 South Flower Street, Forty Second Floor 4 Los Angeles, CA 90071. 5 On January 6, 2015, 1 served the foregoing document(s) described as RESPONDENTS' NOTICE OF ERRATA RE REQUEST FOR HEARING BEFORE STEERING COMMITTEE 6 PURSUANT TO SECTION 618 OF WASTEWATER DISCHARGE REGULATIONS ORDINANCE NO. OCSD-39,APPEALING THE GENERAL MANAGER'S ORDER 7 REVOKING KLEAN WATERS' PERMIT AND IMPOSING ADMINISTRATIVE CIVIL PENALTIES BASED ON ORDER OF HEARING OFFICER ROBERT L. LARSON on the 8 interested party(ies) in this action as follows: 9 [See Attached Service List.] g 10 (X) BY MAIL: By placing a true copy thereof enclosed in a sealed envelope(s) addressed as above, and placing each for collection and mailing on that date following ordinary business practices. I I am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is 12 deposited in the ordinary course of business with the U.S. Postal Service in Los Angeles, California, in a sealed envelope with postage fully prepaid. it 13 ( ) BY OVERNIGHT DELIVERY: I enclosed the documents in an envelope or package provided 14 by an overnight delivery carrier and addressed as noted below. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight Y 15 delivery carrier. U „ (= 16 ( ) BY FACSIMILE: Based on agreement of the parties to accept service by fax transmission, I faxed the documents to the persons at the fax numbers listed below. The telephone number of • 17 the sending fax machine was 213.430.3409. The sending facsimile machine issued a transmission report confirming the transmission was complete and without error. A copy of that `L 18 report is attached. U 19 ( ) BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be 20 sent to the persons at the e-mail addresses listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was 1 unsuccessful. 22 (X) STATE: I declare under penalty of perjury under the laws of the State of California that the 23 foregoing is true and correct. 24 Executed on January 6, 2015, at Los Angeles, California. 25 26 27 Anna Maria Dukeslaw 28 PROOF OF SERVICE LelmanaRe\014100\000001\1045883.1 I SERVICE LIST 2 In the matter of Klean Waters, Inc. Tim Miller, and Shaun Miller 3 Industrial Wastewater Discharge, Permit No. 42-1-841 4 Bradley R. Hogin Attorneys for Orange County Sanitation bho in wss-1 w com District 5 Rica R. ager rhager@wss-law.com 6 Woodruff, Spradlin& Smart 555 Anton Boulevard, Suite 1200 7 Costa Mesa, CA 92626-7670 Tel: (714) 558-7000 8 Fax: (714) 835.7787 9 g 10 n � I1 12 f1, = � < 13 H g = 14 wa 15 U „ F e 16 17 z 18 U 19 20 21 22 23 24 25 26 27 28 4 PROOF OF SERVICE I,n1mannm•\0141nmmnnnmmnai2Ni I I TUCKER ELLIS LLP CARMEN A. TRUTANICH (State Bar No. 86629) 2 carmen.trutanich@tuckerellis.com MATTHEW I. KAPLAN (State Bar No. 177242) 3 matthew.kaplan@tuckerellis.com WILLIAM H. DANCE (State Bar No. 230041) 4 william.dance@tuckerellis.com 515 South Flower Street 5 Forty-Second Floor Los Angeles, CA 90071-2223 6 Telephone: 213.430,3400 Facsimile: 213.430.3409 7 8 Attorneys for Respondents KLEAN WATERS, INC., SHAUN MILLER 9 and TIM MILLER 10 ORANGE COUNTY SANITATION DISTRICT I I In the Matter of: RESPONDENTS' REQUEST FOR HEARING N 12 KLEAN WATERS, INC.,TIM MILLER BEFORE STEERING COMMITTEE PURSUANT AND SHAUN MILLER, TO SECTION 618 OF WASTEWATER a c 13 DISCHARGE REGULATIONS ORDINANCE —� Industrial Wastewater Discharge Permit No. NO. 00SD-39,APPEALING THE GENERAL g 14 52-1-841. MANAGER'S ORDER REVOKING KLEAN w e 15 WATERS' PERMIT AND IMPOSING ADMINISTRATIVE CIVIL PENALTIES BASED & ON ORDER OF HEARING OFFICER ROBERT U „ 16 L.LARSON—ERRATA 17 18 c 19 20 21 22 23 24 25 26 27 28 1 RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO§618-ERRATA 014100.00000111046835 � 9 I TABLE OF CONTENTS 2 I. REQUEST FOR STEERING COMMITTEE HEARING AND APPEAL .........................2 3 II. INTRODUCTION AND BACKGROUND FACTS............................................................ 2 4 III. ARGUMENT .......................................................................................................................6 5 A. The Portion of the Order Based on Count III of the Administrative 6 Complaint—Acceptance of Waste Outside OCSD's Service Area— ShouldBe Overturned..............................................................................................6 7 8 1. The Ordinance Provision Relied On By OCSD Staff Does Not Authorize Imposition of the Permit Condition on Class I 9 Dischargers................................................................................................... 6 10 2. The Express Language of Permit No. 52-1-841 Does Not Require Prior Approval By OCSD of Out of Area Wastes........................................ 7 Il 3. The Permit Condition for Out of Areas Wastes Is Unenforceable rs 12 Because It Was Not Issued In Accordance with Ordinance n13 Section 302.4.1)............................................................................................ 8 y < 14 4. Klean Waters Substantially Complied With the New Permit Condition Regarding Out of Area Wastes.................................................... 9 IS B. Klean Waters Pretreated In Compliance With Its Permit and The Clean 16 Water Act................................................................................................................ 12 a' 17 I. Klean Waters' Permit Specifies Discharge Limits, Not Specific c5 Treatment Technologies............................................................................. 12 18 c19 C. OCSD Improperly Applied Wastehauler Sampling Ordinance Provisions toKlean Waters. ..................................................................................................... 17 20 D. Ms. Sohanaki Orally Imposed Conditions Not Stated in the OCSD 21 Letters..................................................................................................................... 18 22 E. Klean Waters's Conduct Does Not Justify the Extreme Penalties 23 Imposed. ................................................................................................................. 19 24 IV. CONCLUSION.................................................................................................................. 22 25 26 27 28 i RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO§618—ERRATA 014100,000001/1046835 l TABLE OF AUTHORITIES 2 Page(s) 3 Cases 4 Pub. Interest Research Group ofNJ, Inc., v. Powell Duffryn Terminals, Inc. 913 F.2d 64, 78 (3d Cit. 1990)..............................................................................................................11 5 S. Cal, Edison Co. v. Public Utilities Comm'n(2000) 6 85 Cal. App. 4th 1086..............................................................................................................................9 7 U.S. ex rel Administrator of E.P.A. v. CITGO Petroleum Corp., 723 F. 3d 547 (5th Circuit 2013).....................................................................................................23,24 8 9 Statutes 10 Government Code § 54740.5(c) ................................................................................................................13 11 Government Code Section 54740.5(b)..................................................................................................4, 24 s 12 Other Authorities 13 OCSD Ordinance No. OCSD-39 Section 102.89........................................................................................8 y ` 14 OCSD Ordinance No. OCSD-39 Section 208.F..........................................................................................9 15 OCSD Ordinance No. OCSD-39 Section 302.4.D..............................................................................10, 11 16 OCSD Ordinance No. OCSD-39 Section 602.1 ........................................................................................13 Fy 17 OCSD Ordinance No. OCSD-39 Section 602.2........................................................................................13 8 18 OCSD Ordinance No. OCSD-39 Section 618.........................................................................................4, 5 19 Regulations 20 20 C.F.R. 437.............................................................................................................................................15 21 Treatises 22 Envtl. Prot. Agency,Small Entity Compliance Guide, Centralized Waste Treatent Effluent Limitations 23 Guidelines and Pretreatment Standards,pp. 8-11 —8-12.....................................................................16 24 25 26 27 28 ii RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO§618-ERRATA 014100.000001/1046835 1 I. REQUEST FOR STEERING COMMITTEE HEARING AND APPEAL 2 As provided in Section 618 of Orange County Sanitation District Ordinance No. OCSD-39 (the, 3 "Ordinance"), Respondents Klean Waters, Inc., Tim Miller and Shaun Miller(together, "Klean Waters") 4 hereby request a hearing before the Steering Committee of the Joint Boards of Directors of the Orange 5 County Sanitation District ("Steering Committee")to review the December 11, 2014 Permit Revocation 6 and Penalty Assessment Order issued by General Manager James D. Herberg (the"Order"), and the 7 December 8, 2014 Order of Hearing Officer Roberta L. Larson (the "Report") upon which the Order is 8 based. 9 Klean Waters hereby appeals both aspects of the Order: (1) the portion revoking Industrial 10 Wastewater Discharge Permit No. 52-1-841, and (2) the portion assessing administrative civil penalties 11 in the amount of$1,190,000. y12 Klean Waters asks that the Steering Committee overturn both aspects of the Order and direct 13 Orange County Sanitation District("OCSD") staff to work cooperatively with it to establish protocols 3 � 14 and procedures for sharing necessary information to satisfy OCSD's need to insure compliance with 15 Industrial Wastewater Discharge Permit No. 52-1.841 without disrupting Klean Waters' operations or 16 customer relationships. Klean Waters further asks the Steering Committee to direct OCSD staff to treat F 's 17 Klean Waters the same as it treats any other permittee. 18 The evidence and argument in support of this request are set forth below and in the concurrently 19 filed Appendix, which contains Klean Waters' briefs filed in connection with the Hearing which are 20 incorporated by reference. Klean Waters reserves the right to supplement this filing with additional 21 argument and evidence because the time deadlines for filing this Request for Hearing in Ordinance 22 section 618 are improper and are preempted by Government Code section 54740.5(b), which gives 23 Klean Waters thirty days to file its appeal following the Hearing. 24 II. INTRODUCTION AND BACKGROUND FACTS 25 After almost twenty years of successful and award winning operation of centralized wastewater 26 treatment plants ("CWTs") in the mid-west, in roughly 2010, Tim Miller and his son Shaun decided, as 27 so many people do,to leave the cold and move to Southern California. (November 5,2014 declaration 28 of Tim Miller("T. Miller Dec. I"), ¶¶2-5; October 20, 2104 declaration of Shaun Miller("S. Miller Dec. 2 RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO§618—ERRATA 014100.000001/1046835 I I",¶2.)1 The Millers kept their Chicago-area Klean Waters CWT (which they still operate today in 2 Indiana), but decided to build a similar facility in Southern California. (Id.;see also, OCSD Ex. 6.Z) In 3 2012, the Millers decided to open their business in the OCSD service area and, from the very beginning, 4 have done their best to work cooperatively and professionally with OCSD personnel in setting up and 5 operating their plant, which is located at 314 West Freedom Avenue, Orange, California. (T. Miller 6 Dec. I, ¶¶ 5-6.) 7 OCSD had not worked with CWT plants extensively prior to this time and was unfamiliar with 8 many aspects of their operations and the governing regulations. (See e,g., Hearing Testimony of OCSD 9 Employee Martin Hbll ("Holl Testimony"),256:11-257:1, 272:3-10.)3 But the Millers worked 10 cooperatively with the OCSD permit writer(Mr. Holl) and inspector(David Yager) as the plant was 11 built in the fall of 2012 and into 2013, and as Klean Waters began operations in May 2013. (T. Miller y12 Dec. I, ¶¶ 12.18.) As Klean Waters' operations picked up, OCSD was learning more about CWT's and g 13 their operations and, over time, began imposing additional requirements on Klean Waters both formally, 14 through modifications to Klean Waters' permit(which,as discussed below, were not properly issued in t IV 15 accordance with Ordinance § 302.4.D), and informally through demands made during phone m 16 conversations and at various meetings. (See e.g., Holl Testimony, 306:14-327:2.) Klean Waters made F e 17 every effort to comply with these demands and engage in conversations to (1) get a clear understanding 18 of what OCSD wanted(which OCSD itself did not know because CWTs were new to it and new policies u 19 were being implemented piecemeal), and(2) explain why various demands were unnecessary or 20 unworkable. (See e.g., Holl Testimony, 276:13.278:21, 280:8-17; T. Miller Dec. I, ¶¶20-23,25-28.) 21 Klean Waters worked with Mr. Holl to obtain clarification of OCSD's demands, in particular new 22 permit terms related to receipt of wastewater from outside of OCSD's service area that Klean Waters 23 contested yet tried to comply with. (Id.) Thus, Klean Waters submitted the specific information Mr. 24 25 1 Documents and evidence referenced in this Request for Hearing are being concurrently submitted with 26 this Request in a multi-volume Appendix. The Miller declarations are in Appendix Vol. II—Errata. a OCSD's Exhibits Filed in Support of Opening Brief are found in Appendix Vol. III—Errata.27 3 Copies of the transcripts from the November 13 and 14,2014 Hearing on Administrative Complaint 28 are located in Appendix Vol. VI -Errata. 3 RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO §618—ERRATA 014100 NOO IMM835 I Holl requested and waited for further guidance while OCSD itself decided how to implement its new 2 policy regarding out of area wastewater and tried to comply with the out of area submission requests. 3 (1d.; see also,132.) 4 Despite the positive working relationship with Mr. Holl, Mr. Yager and other front line OCSD 5 employees, Klean Waters became a high level focus of concern with OCSD supervisory staff and 6 management, particularly Roya Sohanaki. Klean Waters"got on the radar screen"of management in 7 early 2014 when OCSD issued an Notice of Violation("NOV") on January 3 related to an alleged 8 violation in October 2013 of Klean Waters' maximum monthly average limit for Copper. (T. Miller 9 Dec. I,¶39.) On January 20, 2014, OCSD issued a second NOV to Klean Waters involving an alleged 10 monthly average Copper violation,this one related to Klean Waters' first full month of discharges(July 11 2013) and showed discharges at .28 mg/L,barely above the .242 mg/L permitted monthly average limit 12 and far below the .500 mg/L daily maximum. (Id.,¶¶ 18 and 40.) Three days later, on January 23, 13 2014, OCSD withdrew the first NOV and apologized to Klean Waters for issuing it in error(1d., and 6 14 OCSD Ex. K), but still invited Klean Waters came to attend a"compliance meeting"which took place $ 15 on February 11, 2104. (1d,141; October 13,2014 Declaration of Roya Sohanaki, ¶3°) In other words, `i tl 16 Klean Waters was invited to a compliance meeting with senior management despite having only one 17 NOV related to its first month of operations. 18 The February 11, 2014 compliance meeting did not go well, as Tim Miller and Ms. Sohanaki did a 19 not get along at all. (See e.g.,T. Miller Dec. I,¶¶ 41-43; Holl Testimony, 312:17-313:22.) Ms. 20 Sohanaki demanded Klean Waters install equipment to treat waste streams it did not even accept and 21 equipment that would not work. (See e,g.,T. Miller Dec. I,¶ 41; Holl Testimony, 309:7-311:22.) Mr. 22 Miller insulted and swore at Ms. Sohanaki (e.g., Holl Testimony, 312:17-313:9), and OCSD thereafter 23 turned up the heat on Klean Waters, refused to work with Klean Waters cooperatively and moved 24 forward with further enforcement actions. Klean Waters submitted additional information to OCSD as 25 requested and continued to ask for guidance from Mr. Holl and others as to how to comply with certain 26 OCSD expectations, particularly those related to out of area wastewater. (See e.g., Holl Testimony 27 28 4 Ms. Sohanaki's declaration is in Appendix Vol. IV—Errata, 4 RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO§618—ERRATA 014100.000001t1046835 1 304:6-9; Gerber Testimony 456:13-457:10; Exhibit E of December 26,2014 Declaration of William 2 Dance in support of Brief to OCSD Board of Directors at 2773, 3296, 3258.) But, as noted, OCSD 3 employees needed guidance from Ms. Sohanaki and other OCSD managers and that guidance was not 4 forthcoming. (See e.g., Hearing Testimony of OCSD Employee James Colston ("Colston Testimony"), 5 170:5-173:7; Holl Testimony, 276:13-278:21, 280:8.17; T. Miller Dec. I, ¶¶ 20-23, 25-28.) 6 Tim Miller recognized that personality issues were interfering with the communications between 7 the parties and he not only tried to work with Mr. Holl, Mr. Yager and the other front line employees 8 with whom he got along, he went so far as to hire an environmental consultant and former regulator with 9 the California Regional Water Quality Control Board, Dr. Athar Khan,to meet with OCSD and work 10 through the issues, (See e.g., T. Miller Dec. I, 748-49, 59, 63.64; October 21, 2014 Declaration of I 1 Athar Khan,IN 2.15.) But OCSD management, and Ms. Sohanaki in particular, remained unwilling (or H12 unable) to address any of Klean Waters' legitimate concerns such as installation of unneeded equipment c 13 the length of time it would take OCSD to respond to requests that it approve Klean Waters' acceptance 14 of specific out of area wastes. As an example, it took roughly two months for OCSD to evaluate wastes 15 from two potential Klean Waters customers, Molycorp. and the City of Coachella, delays which lead to 16 the loss of the City of Coachella business. (See e.g., T. Miller Dec. I., ¶ 32; Colston Testimony, 173:16- F a 17 175:9; Holl Testimony, 267:8-268:4, 300:4-303:22.) Thus,the parties could not reach a settlement and 18 OCSD staff went forward with an administrative enforcement action. 19 Because of the personality conflicts involved, OCSD has pursued the harshest possible remedies, 20 far beyond those reasonably appropriate or imposed previously by the OCSD (in the prior fourteen years 21 combined OCSD has assessed only $1,315,387 in combined penalties and noncompliance fees).' For 22 each of Klean Waters' alleged violations, OCSD staff sought to put Klean Waters out of business by 23 24 ' Figures are from OCSD Source Control Annual Reports available on the Internet. A summary table of these violations is attached as Exhibit A to the declaration of William Dance. As can be seen on the 25 table, over the past ten years the highest fine imposed by OCSD was $100,000 for a chronic 26 Significantly Noncompliant Discharger("SNC") who had actual discharge violations (Electron Plating). It also shows numerous discharges that have been on the SNC list repeatedly, including for repeated 27 illegal discharges, yet have not had their permits suspended(let alone revoked)or had fines imposed anywhere near those sought against Klean Waters. For example, Air Industries has been fined three 28 separate times but only for a total of$81,000 and has been on the SNC list eight of the past ten years. 5 RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO §618—ERRATA 0 14100,0000011104693 5 l revoking its permit and to impose the maximum $5,000 per day penalties on the company and the 2 Millers for a total of$2,055.00 in penalties without any discussion of(1)conflicting evidence, (2)the 3 failure of OCSD staff to provide consistent and clear directions to Klean Waters, (3) the reasons for 4 Klean Waters' actions, the absence of any evidence of harm to the OCSD sewer system or environment 5 (shockingly termed"immaterial" in the Report), or the other statutorily required penalty factors, and (4) 6 the Report recommended and the Order adopted extreme penalties that are wholly unwarranted(permit 7 revocation plus $1,190,000 in penalties). The Steering Committee should hear this matter and reinstate 8 Klean Waters' permit and revoke all penalties, recognizing that the hundreds of thousands of dollars 9 spent trying to obtainjustice in this matter and workable permit terms and compliance program that 10 protects OCSD's sewer system and the ability of business to operate in its service area. I III. ARGUMENT a 12 A. The Portion of the Order Based on Count III of the Administrative Complaint— ; 9 13 Acceptance of Waste Outside OCSD's Service Area—Should Be Overturned. H 14 1. The Ordinance Provision Relied On By OCSD Staff Does Not Authorize is Imposition of the Permit Condition on Class I Dischargers. 16 In the "revised"permit issued to Klean Waters on June 28, 2013, OCSD imposed anew term in 17 the Special Conditions contained in Part 4 of the permit, bullet point no. 5, which required: "Sampling u° 18 data and customer profiles for al] sources from outside of the OCSD's service area shall be submitted for 19 review prior to acceptance,treatment, and discharge of wastewater from that source." (OCSD Ex. 8.) In 20 Paragraph 80 of the Complaint, OCSD alleges that Ordinance Section 208.1) grants it the authority to 21 impose this term. It does not. 22 Section 208 addresses the conduct of wastehaulers, not wastewater treatment plants. Section 23 208 is titled"Prohibition and Requirements for Wastehauler Discharges to the OCSD Sewerage System 24 and Wastehauler Station." The Ordinance defines "wastehauler"in Section 102.89 as "any person 25 carrying on or engaging in vehicular transport of waste as part of, or incidental to, any business for the 26 purpose of discharging said waste into the OCSD's system." That description does not fit Klean Waters. 27 Mr. Colston acknowledged the language of the ordinance applies only to wastehaulers, although he did 28 say OCSD interprets that language differently than the plain meaning of the words. (Colston Testimony, 6 RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO§618-ERRATA 014100.000001A046835 1 160:15-164:14.) It is unfair and inappropriate to hold Klean Waters or any other permittee responsible 2 for alleged violations that are inconsistent with clear statutory language. OCSD staff s internal 3 interpretation of that language that is not part of the ordinance cannot form the basis of any penalty or 4 the revocation of a permit. (See e.g., S. Cal. Edison Co. v. Public Utilities Comm'n (2000) 85 Cal. App. 5 4th 1086, 1105 ("[A]n agency's interpretation of a regulation or statute does not control if an alternative 6 reading is compelled by the plain language of the provision.").) Section 208.D does not apply to Klean 7 Waters and it cannot support imposition of a condition requiring prior approval of out of area wastes on 8 Klean Waters. 9 Further, of note, the wastehauler provisions in the Ordinance requires wastehaulers themselves to 10 provide directly to OCSD all the information OCSD sought from Klean Waters through this Special 11 Condition. (See, Section 208.F.) Rather than seek the information they wanted through this channel (or y12 work with Klean Waters to devise a system that would not disrupt its business), OCSD staff pursued and 13 the Order imposed the harshest possible penalties against Klean Waters related to this allegation. `p 14 2. The Express Language of Permit No. 52-1-841 Does Not Require Prior 15 Approval By OCSD of Out of Area Wastes. wg 16 The express language of the Special Condition does not require prior approval by OCSD of out F � 17 of area wastes. It merely requires the submission, "prior to acceptance,treatment, and discharge of 18 wastewater" of"[s]ampling data and customer profiles for all sources from outside of the OCSD's 0 19 service area." Nowhere in this language is there any requirement for prior approval by OCSD. OCSD's 20 employees agreed the language did not require prior approval at the Hearing. (See, Colston Testimony, 21 166:4-14; Holl Testimony, 276:3-11.) Nevertheless, the Administrative Complaint charges prior 22 authorization is required and seeks revocation of Klean Waters' permit for failing to obtain this prior 23 authorization. (Administrative Complaint,¶¶83, 86.) The Report also concludes that prior approval is 24 required, which is a finding that cannot be sustained based on the plain language of the Permit. 25 The Report cites the permit language quoted above from Part 4, bullet point no. 5 and also bullet 26 point no. 8, by which "OCSD reserve[d] the right to refuse any wastewater that will cause violation of 27 its NPDES permit conditions, upset the treatment process, or adversely affect its ability to dispose of 28 biosolids." The Report concludes that"the right to refuse waste would be rendered a nullity" if pre- 7 RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO§618-ERRATA 014100,000001/1046935 1 approval was not required when reading the terms together. However,the language of the provisions 2 contemplates submittal of information and the ability of OCSD to issue notice that Mean Waters may 3 not discharge wastewater into OCSD's system—it only reserves the right of OCSD to refuse acceptance 4 of the wastewater. Indeed, that is reflected by the language of bullet 8, which requires OCSD to 5 establish that the discharge "will cause violation of[OCSD's] NPDES permit conditions, upset the 6 treatment process, or adversely affect its ability to dispose of biosolids." Without such a determination, 7 OCSD cannot refuse to accept the wastewater. Neither in the Orders to Cease Noncompliant Discharges 8 it issued nor at the Hearing did OCSD provide any evidence to establish that any wastewater Klean 9 Waters planned to discharge would result in a violation or upset the treatment process. 10 Moreover,there is nothing in the Ordinance that authorizes OCSD to prohibit Klean Waters from I I accepting any wastewater whatsoever. Klean Waters could, theoretically, accept and treat wastewaters a 12 and then ship them off-site for disposal,or it could act as a holding station for waters. OCSD has no d 13 jurisdiction to take any action against Klean Waters if this is what it was doing; its authority relates only y 14 to discharges to its sewer system. Indeed,the express language of bullet point no. 5 recognizes this, 3 a 15 because it only requires submission of sampling data and customer profiles "prior to acceptance, mg c'�i • 16 treatment, and discharge of wastewater." The language is in the conjunctive,not the disjunctive. The 17 word "and"was chosen over"or"for a purpose, which is to respect the scope of authority granted to 18 OCSD under the Clean Water Act. u 19 3. The Permit Condition for Out of Areas Wastes Is Unenforceable Because It 20 Was Not Issued In Accordance with Ordinance Section 302A.D. 21 Under the Ordinance, if OCSD wants to modify a permit it must follow strict procedures 22 designed to give permittees notice of any changes. Specifically, Section 302.40 of the Ordinance 23 states: 24 Permittee shall be informed of any change in the permit limitations, 25 conditions, or requirements at least forty-five (45) days prior to the effective date of change. Any changes or new conditions in the permit 26 shall include a reasonable time schedule for compliance. 27 It is undisputed that Klean Waters was not afforded the protections provided by Section 302A.D. The 28 "revised"permit was issued by OCSD staff without notice to Klean Waters and was delivered by 8 RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO§618—ERRATA 014100,000001/1046835 I Certified Mail. (See, OCSD Ex. 8; T. Miller, Dec. I., ¶ 19; Holl Testimony, 273:22-24.) Klean Waters 2 was not given the 45 days required to address the proposed permit changes. (See e.g., Holl Testimony, 3 274:5.27:9.) 4 The Report on page 6 argues that Klean Waters was notified by the transmittal cover letter of the 5 "revised"permit that it could challenge new terms and that it did not object to this new terms until the 6 hearing. Both contentions are false. The transmittal letter merely states: "If there are any discrepancies 7 with the information described on the permit,please notify OCSD in writing." (OCSD Ex.No. 8, page 8 2 (emphasis added).) The"discrepancies"referred to are between the description of the permit changes 9 in the cover letter and the language in the actual permit itself, and nothing in this transmittal letter 10 notifies Klean Waters about Ordinance Section 302.4.D,or that it could object to new permit terms and 11 that it was required to do so in writing or forever waive its right to challenge enforcement of its permit.' y12 (1d.) Further, Klean Waters repeatedly objected to this permit condition. (See e.g., Holl Testimony 13 276:19-279:9; Gerber Testimony 494:14-495:25; Ex. E to Dance Declaration at 2273, 3296, 3260.) It is � tP `g 14 unfair and a due process violation to impose penalties based on a permit term that was not instituted in ¢ 15 compliance with the law. m U 16 4. Klean Waters Substantially Complied With the New Permit Condition F 17 Regarding Out of Area Wastes. u 1 18 The requirement for submission of information about out of area wastes was a brand new policy u 19 developed and implemented by OCSD for the first time with Klean Waters. OCSD staff admitted that it 20 had no policy or procedures in place regarding the information it wanted to receive or would require 21 from permittees. (See e.g., Colston Testimony, 172:16-24; Holl Testimony, 278:2.21.) Klean Waters 22 tried complying with this procedures when, for example, it contacted OCSD about wastewater from the 23 City of Coachella, but OCSD took almost two months to respond and Klean Waters lost that business. 24 (See e.g., T. Miller Dec. I.,¶32; Colston Testimony, 173:16-175:9; Holl Testimony,267:8-268:4, 25 26 6 The Report cites a case out of the Federal Courts in New Jersey for the proposition that Klean Waters 27 has waived its right to object to the permit term. That case,Pub. Interest Research Group of N.J., Inc., v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 78 (3d Cit. 1990),was a citizen suit enforcement of the 28 Clean Water Act, it was not a California case dealing with government enforcement. 9 RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO§618--ERRATA 014100.000001/1046835 1 300:4-303:22.) Klean Waters then followed Mr. Holl's instructions about submitting a customer list as 2 the initial information while he sought management's guidance on what else to submit. (See, T. Miller 3 Dec. I,IN 22-28.) And OCSD issued an Order to Cease on April 28, 2014 related to submission of 4 information on this permit condition even though OCSD had never responded to Klean Waters' request 5 for further guidance. (See,T. Miller Dec. I,IN 22-28; Colston Testimony, 170:17-172:24.) 6 Thereafter, Klean Waters still tried to comply with this condition (and all other requests of 7 OCSD staff) as demonstrated by its hiring Dr. Khan, their efforts to meet with OCSD management, and 8 through the summer working with their new permit writer. (See e.g., T. Miller Dec. I.,¶¶48-49, 59, 63- 9 64; Khan Declaration, ¶¶2-15; Shaun Miller Hearing Testimony, 478:25-480:16; Harold T. Gerber 10 Hearing Testimony ("Gerber Testimony"),494:19-495:1,495:14.25.) Recognizing that Ms. Sohanaki 11 might be the problem, Klean Waters asked to meet with her supervisor, Jim Colston, and succeeded in y12 getting a meeting set up for May 28, 2014; however, Mr. Colston stood Klean Waters up and did not 13 appear at the meeting. (See e.g., T. Miller Dec. I, ¶¶63-64; Khan Dec.,IN 8, 13-14; Holl Testimony, 14 315:5-316:6.) a y 15 Still, OCSD staff sought permit revocation and maximum penalties based on thirty-two alleged mg U 16 instances of accepting out of area waste. (Administrative Complaint,182.) The Order and Report F E 17 concluded there were 32 violations, imposed $3,750 penalties for each violation andjustified permit 18 revocation on this ground and the others in the Administrative Complaint. The Report's basis for u 19 coming up with this figure is inconsistent with the evidence and statements within the Report about what 20 the facts concluded, in addition to being wildly excessive in severity. On page 10, the Report concluded 21 "that the specifics of the required submittals may not have been fully understood by Klean Waters and 22 clearly communicated by District staff until March 24, 2014." (Report, p. 10.) The evidence of the 23 thirty-two alleged instances was submitted as OCSD Exhibit No. 33, which contains information on only 24 thirteen instances of out of area wastewater after March 24, 2014, and only 31 in total.' If there were 25 only thirteen instances of acceptance of out of area waste for which Klean Waters could potentially be 26 27 For the convenience of the Steering Committee, a summary table of the evidence in Exhibit 33 is 28 attached as Exhibit D to the Dance Declaration. 10 RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO§619-ERRATA 014100.000001/1046835 I viewed as culpable,then the Order amounts to a fine of$9,230.77 per violation, far in excess of the 2 $5,000 maximum authorized under the law. 3 The justification of revocation of Klean Waters' permit based on acceptance of out of area waste 4 and imposition of severe fines is wholly unwarranted in this case. Such enforcement action reflects a 5 drastic departure from the traditional penalties imposed by OCSD and an abandonment of the graduated 6 enforcement regime set forth in the Ordinance. OCSD did not seek a probation order under Section 7 602.1, did not seek an enforcement compliance schedule order under section 602.2 (or try to negotiate 8 one with Dr. Khan), did not seek a permit suspension, but went straight to revocation and maximum 9 penalties. This was at the behest of Ms. Sohanaki and Mr. Colston, as shown on a May 29, 2014 email gg 10 from Mr. Colston produced to Klean Waters after the Hearing. This email is attached as Exhibit E to the g l l Dance Declaration at 2594,and states "Roya and I are going to recommend that we revoke the Klean H12 Waters permit, in addition to whatever penalties the General Counsel's office believes are appropriate." g 13 This despite the refusal of either Ms. Sohanaki or Mr. Colston to visit the Klean Waters facility 14 themselves and Mr. Colston's refusal to meet with Klean Waters. (See e.g., Colston Testimony, 119:11- a ! 15 23.) m 16 Neither the Report nor Order considered the lesser options available under the graduated 17 enforcement regime either. Nor did they consider the harm, or lack thereof, to the facility or 18 environment. There was no evidence of any discharges by Klean Waters in violation of its permit limit. u 19 The only evidence of any such discharge was from downstream monitoring samples taken from a sewer 20 manhole that had results below OCSD's own local limits. (See, OCSD Ex. 16.) And the validity of 21 these samples was hotly contested at the hearing due to evidence of cross-contamination from the sewer 22 and disruption of the sampling equipment. (See e.g.,November 5,2014 Declaration of Carla Kagel,s 23 Carla Kagel Hearing Testimony, 398:2-411:18,413:7.434:22.) The Report outrageously concluded that 24 the"sampling results are not material"(page 8, in. 3),but they are extremely material and must be 25 considered as part of the evaluation of the appropriate penalty. (Government Code § 54740.5(c).) There 26 is no evidence of discharges that harmed the sewer system,disrupted OCSD's treatment plants or risked 27 28 s The Declaration of Carla Kagel is at Tab H of Appendix Vol. I—Errata. 11 RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO§618-ERRATA 014100,000001/1046835 I violations of OCSD's own NPDES permit. The only discharges at issue are shown to be below the local 2 limits. This must be considered when evaluating the penalties and preclude any finding that a permit 3 revocation is warranted or penalties beyond those typically imposed in past cases by the OCSD (i.e., 4 something in the tens of thousands of dollars)9 5 B. Klean Waters Pretreated In Compliance With Its Permit and The Clean Water Act. 6 1. Klean Waters' Permit Specifies Discharge Limits, Not Specific Treatment 7 Technologies. 8 The Order,based on the Report, imposes $1,000,000 in fines based on a misunderstanding of the 9 governing statute, the permit language and misapprehension of the facts presented at the hearing. In 10 essence, the Order revokes a permit and imposes a million dollar fine on what amounts to a mere I 1 paperwork violation. 12 Klean Waters uses a batch treatment with chemical addition treatment system. (See,Declaration m13 of Lloyd Bracewell,¶ 14.)10 OCSD's own expert witness and former United States Environmental y 14 Protection Agency regulator, Greg Arthur, agreed that the system was a batch treatment with chemical 3 15 addition system: 5 16 Q; My question is that the treatment system used by Klean Waters is 92 batch treatment with chemical dosing? S 17 18 A: Yes, 0 19 (Greg Arthur Hearing Testimony, 242:23-243:1.) OCSD contends that Klean Waters violated its permit 20 because a certification it asked Klean Waters to provide when"revising"the Klean Waters permit cross- 21 references plans submitted eight months earlier, which showed plastic tubing, mechanical pumps and 22 chemical tanks being used to dose the batches with the treatment chemicals, as opposed to measuring the 23 24 Additional sampling was conducted in the sewers by OCSD in September 2014 in an effort to find 25 additional violations. What the evidence showed about these samples, however, is that Klean Waters had no discharge when 26 of the 30 alleged additional violations were collected. (See e.g., October 21, 26 2014 Declaration of Dwight Hoenig, ¶¶ 10-11 (Tab I of Appendix Vol. I—Errata).) The samples 27 collected when Klean Waters was not discharging showed results as high as 12,993.9%above discharge limits, proving there is another source in the area that OCSD is not pursuing. 28 10 The Declaration of Lloyd Bracewell is at Tab ] of Appendix Vol. I—Errata. 12 RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO§618-ERRATA 014100.000001/1046835 I treatment chemicals into a bucket and then manually adding them to a batch of wastewater requiring 2 treatment. The Report concurred. (Report, pp. 6-7.) 3 Mr. Holl confirmed at the hearing that he issued the wrong permit initially and that he then read 4 the federal regulations governing such permits and realized that a Subpart D certification was required. 5 He"called Tim and ... said,Tim, I need to clean this up.i11 (Holl Testimony 272:9-10.) Part of the 6 transition from Subcategories A-B-C to Subcategory D required OCSD to get from Tim Miller a 7 certification stating that"[a]s per our plans and specifications, we are a batch treatment facility where 8 each load of wastewater is segregated for individual treatment to meet effluent limits." (OCSD Ex. 6.) 9 Mr. Miller provided the requested certification to facilitate the District's effort to belatedly bring itself 10 into compliance with the EPA regulations implementing the Clean Water Act, 20 C.F.R. 437. The I 1 certification does not state that Klean Waters dispenses pretreatment chemicals by pumping them from p12 tanks through pipes into the pretreatment tanks; what it certifies is that, per Klean Waters' plans and 13 specifications submitted eight months earlier(OCSD Ex. 2), it is a batch treatment facility where each 14 load of wastewater is treated separately by chemical addition. 15 Neither the permits, the OCSD ordinances,nor the regulations applying the Clean Water Act m „ 16 require a Centralized Waste Treatment facility operating under Subcategory A-B-C, as Klean Waters did a 17 initially, or under Subcategory D, as Klean Waters did following its permit revision in June 2013, to use 8 18 any specific methodology or process to accomplish pretreatment. This was undisputed in evidence and 0 19 testimony presented to the Hearing Officer and was confirmed by Mr. Arthur: (Q: "And it's true that 20 EPA lets you—a centralized waste treatment facility use any method of treatment they want to use; 21 right? A: It does not prescribe, that's true. Q: It doesn't tell you what to use? A: Does not say you 22 must use one kind of another.") (Arthur Testimony 219:7-12.) 23 Until its chemical feed system, designed to pump pretreating chemicals to tanks of wastewater 24 25 I 1 Months after the first permit was issued, Mr. Holl realized that Tim Miller had a better understanding 26 of the categorical batch treatment requirements than he, or apparently anyone else at the District, did. On April 23, 2013, Mr. Holl e-mailed his OCSD colleague David Yager, explaining "the 3 different 27 categories are NOT supposed to be mixed into one sample point, so Tim Miller is right about that. Don't know what we're going to do about that.... Helluva mess, all the other CWT [permits] will have 28 to be changed too." (Dance Declaration, Ex. E at 4214) 13 RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO§618-ERRATA 014100,000001/1046835 I from reservoirs, was fully operational, which it was as of August 20, 2014, (OCSD inspector H. Ted 2 Gerber: "The chemical storage tanks,plumbing to the treatment tanks, as well as electrical and control 3 components are installed and operational...." (OCSD Ex. 31).) Klean Waters delivered pretreatment 4 chemicals to wastewater as required by measuring a dosage amount into the tank using a bucket. It was 5 undisputed at the hearing that delivering the chemical doses by bucket and by pipe produced the exact 6 same result. For instance, when OCSD's expert Greg Arthur was asked whether there was any 7 difference in how waste in a batch treatment facility is treated based on how the treatment chemical is 8 added, any difference to what happens inside that tank, he replied that"[t]he chemical reaction is the 9 chemical reaction.") (Arthur Testimony 223:8-9.) Klean Waters's expert, Dr. Lloyd Bracewell, 10 confirmed this at the Hearing("Am I going to get a different result? No." Bracewell Testimony 396:9- 11 397:2. g 12 Federal guidance (not regulation, so it lacks the force of law) for centralized waste treatment v 13 facilities, the Small Entity Compliance Guide, states that when a major modification is made, the y 14 operator must inform the regulator. (Envtl. Prot. Agency,Small Entity Compliance Guide, Centralized 3 15 Waste Treatent Effluent Limitations Guidelines and Pretreatment Standards, pp. 8.11 —8-12,emphasis w 16 added.) OCSD acknowledged in its reply brief that"small changes would not trigger this requirement" F � � 17 although"removing or changing an entire treatment"would. (OCSD Reply Brief 8:26-28.) Like Greg 18 Arthur and Lloyd Bracewell, OCSD employee Martin Holl testified that manual addition by bucket and u19 by mechanical addition produced the same resulting chemical process. (Holt Testimony: Q: "Is there 20 any difference between chemical addition that's manually done through a bucket in terms of the 21 treatment quality versus manual addition of chemicals that's done through manually operating a pump? 22 A: No. Q: You get the same results with your treatment? A: Yes. Q: Measure the same amount of 23 chemical, you put it in, you aerate it for the same amount of time, it's the same end product? A: Yes.) 24 (Holl Testimony 264:21-265:7.) In other words, using the terminology of the EPA guidance, according 25 to OCSD's own employee,this was not just a small change, but no change at all. There is no material 26 difference whatsoever in the treatment results or process used. 27 Despite the clear testimony to the contrary from OCSD's employee, OCSD's expert, and Klean 28 Waters' expert,the Report endorsed the Administrative Complaint's position that Klean Waters' use of 14 RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO§618—ERRATA 014100,000001/1046835 l manual chemical delivery rather than piped delivery, although producing identical pretreatment results, 2 represented a material deviation from Klean Waters' certification and violated its permit. The Report's 3 reasoning on this point is vague—it states that"Klean Waters must comply with the permit it applied for 4 and received until such time as the permit is modified by the District." (Report 8:1.2.) But it also 5 ignores testimony from witnesses on both sides that Klean Waters' treatment did not materially differ 6 from what is stated in its certification. The Report then refuses to address the core issue, stating whether 7 the treatmentsystem used"could have been demonstrated to provide the required equivalent treatment 8 ... is not a matter to be determined by the hearing officer,"all the while failing to acknowledge the 9 testimony from OCSD's own witnesses that it not only could have been, but was equivalent treatment. g 10 (Report 7:21-22, emphasis in original.) In reaching this determination, the Report ignores the clear I 1 weight of the evidence that Klean Waters' method of adding its chemicals produced the same result as y12 the system it eventually installed. The Hearing Officer's decision on this point is legally unsound. a i 13 Even if the method of delivery of the pretreatment chemicals did represent a material 3 14 modification, which it does not, that would still not support the Hearing Officer's finding that Klean 4 15 Waters "did not construct and operate the pretreatment system described in its permit application and x � 16 initial certification until September 2014." (Report 10:1-3.) The only issue is the mechanical chemical F � 17 feed component of the overall treatment system, a network of tanks, pipes, settling pits,and analytical 18 equipment that Klean Waters employs to assess and, when necessary, pretreat wastewater. Dosing the u` 19 wastewater with treating chemicals by bucket rather than pump does not equate to a complete failure to 20 pretreat or a complete failure to install the specified system, as the Report concludes. Klean Waters 21 supplied records of its purchases of pretreatment chemicals (S. Miller Dec. I, Ex. B (pretreatment 22 chemical purchase receipts); Ex. C (material safety data sheets); T. Miller Dec. I, Exs. A-D, 7 23 (pretreatment chemical purchase receipts); RS (material safety data sheets)), and OCSD personnel 24 noted in their inspection reports on several occasions they directly observed Klean Waters personnel 25 engaged in pretreatment activities or observed tools indicating such activities. (See e.g., OCSD Exs. 25, 26 26, 30.) 27 Two last pieces of evidence attest to the reasonableness of Klean Waters's position that its 28 pretreatment procedures were appropriate and compliant. The first is the 2014 Pretreatment Compliance 15 RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO§618—ERRATA 014100.00000111046835 I Inspection Report of EPA contract inspector I-Hsin Lee.12 On February 19, 2014, Ms. Lee from Tetra 2 Tech, Inc., under contract with EPA, performed a pretreatment compliance inspection of Klean Waters' 3 facilities on behalf of the California Regional Water Quality Control Board. In the report, the EPA 4 contractor wrote the "facility analyzes each batch of water brought in using its own lab equipment to 5 determine the load's characteristics, then conducts a bench-scale test to determine which treatment 6 chemicals should be used. Each load of waste is treated separately and is not mixed with other 7 wastewaters." (Id. at attached Site Visit Data Sheet for Klean Waters, pp. 7-10 of Site Visit Data Sheets 8 appended to Report.) Ms. Hsin-Lee also directly addressed the chemical delivery methodology with 9 Tim Miller, who was on-site at the time, and reported her findings: 10 During the site visit,the inspection team asked how treatment chemicals are 11 added to the tank because there were no observed chemical feed lines. The 12 facility representative stated that the treatment chemicals are manually poured a 13 into the tanks via 5-gallon buckets.... ti 14 (Id. at 9.) 15 Klean Waters' expert Dr. Lloyd Bracewell reviewed the report and stated"[a]s can be seen from m 16 this inspection report, the auditors found no problem with Klean Waters adding chemicals manually ... 17 since in their recommendations they did not even mention that the chemical metering pumps were 18 missing or were required for Klean Waters to be in compliance. Since the auditors found no problems at o19 Klean Waters during their inspection, Klean Waters was quite justified in believing their pretreatment 20 system, as they had explained how it was being operated to the inspector during the inspection,was in 21 compliance." (Supplemental Declaration of Lloyd Bracewell 5:19-28, Appendix Vol. I—Errata at Tab 22 R.) 23 In fact, documents produced by OCSD after the hearing demonstrate that the EPA inspector's 24 report was so positive that Roya Sohanaki sent Chuck Durham at Tetra-Tech an e-mail arguing that the 25 EPA contractor had only given such a glowing review because she had failed to see what was really 26 27 12 The 2014 Pretreatment Compliance Inspection Report, including the Cite Visit Data Sheets, is at 28 Appendix Vol. II—Errata, Tab T, T. Miller Dec. I, at Ex. F. 16 RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO§618-ERRATA 014100.000001/1046935 I going on at Klean Waters. (Dance Declaration, Ex. E at 2263-2264.) Mr. Durham expressed his 2 concern"that we can't really report something that I-Hsin did not witness"but agreed to impose 3 adjustments incorporating the language Ms. Sohanaki suggested, after having"a conversation with I- 4 Hsin about how much of the changes you propose she is comfortable with and then I'll make a decision 5 as how best to modify." (Id. at 2263.) Ms. Sohanaki's strident efforts to convince the Tetra-Tech 6 contractors to change the content and tone of their report about Klean Waters were unsuccessful, in that 7 the published report remained positive and did not identify Klean Waters's bucket treatment as any sort 8 of failing. 9 The report of the EPA inspector provides additional support that the Hearing Officer disregarded gg 10 strong evidence supporting Klean Waters's position that(a) it pretreated and (b) it pretreated in a g 11 manner that was not a material modification of the batch treatment of segregated wastewater in yaa 12 compliance with its Subcategory D permit. The entire premise of OCSD's pretreatment allegation is 13 that Klean Waters' pretreatment method violates EPA regulations, but the one person representing the y 14 EPA who inspected Klean Waters and was in a position to judge found no problem with Klean Waters' 3 15 pretreatment methods. m c'�i • 16 Finally, at the hearing, Martin Holl confirmed that he was aware of another centralized waste 17 treatment facility permitted by OCSD, Sertec, operated or owned by a Brad Reese (Holl Testimony u 18 343:8.15), at which the operators had a fully operational pump and tank chemical dosing system but 0 19 preferred to use manual bucket dosing, as well as several other operators that use buckets because they 20 do not have the piping. (Holl Testimony 339:11.21.) Mr. Holl testified that he.had not issued violations 21 for these operators and had not even brought up the one that used buckets despite having an operational 22 piping system with Ms. Sohanaki and that he was comfortable with the fact that Sertec preferred 23 treatment by bucket. (Holt Testimony 330:21-331:3.) This illustrates the hypocrisy in the fact that the 24 District is trying to revoke Klean Waters's permit and put its principals into bankruptcy while failing to 25 even issue violations for other operators permitted by the District who engage in exactly the same 26 conduct. 27 C. OCSD Improperly Applied Wastehauler Sampling Ordinance Provisions to Klean 28 Waters. 17 RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO§618-ERRATA 014100,0ON01/1046935 1 The Hearing Officer assesses penalties against Klean Waters for fourteen events involving denial 2 of sampling. (Report 9:19-20.) One, which occurred on July 3, 2014, is where Klean Waters refused to 3 give permission to OCSD to draw a sample from a wastehauler truck's tank. (See Administrative 4 Complaint,¶52; OCSD Ex. 30.) Here, again,the Hearing Officer and OCSD confuse Klean Waters, a 5 centralized wastewater treatment facility, with wastehauler tank trucks. It is common sense that Klean 6 Waters cannot grant access to someone else's property, and a wastehauler's truck is the wastehauler's 7 property, regardless of whether the truck is about to deliver wastewater to Klean Waters. Mr. Colston 8 argued that Klean Waters controls the truck, but that is nonsense. (Colston Testimony 159:14-24.) 9 Moreover, OCSD has its own independent authority to sample wastewater from wastehauler trucks 10 within its service area. Mr. Colston made a tortured argument that the wastewater wastehaulers deliver I 1 to Klean Waters is not discharged into the OCSD system but then admitted it ultimately was. (Colston 12 Testimony 162:19-164:14.) Under Mr. Colston's own reasoning process, if a truck dumps waste into the w 13 OCSD system, OCSD has direct authority to inspect it. (Colston Testimony 162:19-24.) OCSD seeks y 14 to punish Klean Waters by holding it responsible to provide access to the property of another,the 15 wastehauler truck contents, in a circumstance where Klean Waters lacks,but OCSD possesses,the m 16 authority to require such access. F � � 17 D. Ms. Sohanaki Orally Imposed Conditions Not Stated in the OCSD Letters. 18 OCSD required Klean Waters to attend a compliance meeting on February 11, 2014 at which 0 19 Ms. Sohanaki orally imposed several requirements on Klean Waters that were never communicated in 20 follow-up letters, perhaps because they were so unreasonable. (Holl Testimony 309:7-18; 310:25- 21 311:10.) She demanded that Klean Waters install an activated carbon filtration system, something that 22 at the hearing Mr. Holl stated was in his view unnecessary. (Holl Testimony 311:8-10 (Q: "Do you 23 think organic treatment was needed at that plant [Klean Waters]? I'm sorry, carbon treatment? A: 24 No.").) Tim Miller agreed that this was unnecessary. (T. Miller Dec. I,¶41.) According to Tim Miller, 25 Ms. Sohanaki also demanded that he install an automated pH adjustment system, something that"would 26 not work in our system because it would get covered in mineral scale and residual solids and would not 27 read accurately. i explained that the lack of functionality of an automated ph system was why it was not 28 included in our design plans and why the permit was issued without any such requirement. Mr. Holl 18 RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO§618-ERRATA 014100,OOOOOMN6835 1 agreed with what I was saying and told Ms. Sohanaki that an activated carbon system would not help 2 treat what we accept and that an automated ph adjustment system would not work,but Ms. Sohanaki 3 would not listen." (T. Miller Dec. I, 14 1.) Finally, Ms. Sohanaki demanded that the activated carbon 4 system, the automated pH adjustment system, and the chemical feed piping all be completely installed 5 by February 28, 2014, an arbitrary date. (Id., ¶¶41-42.) Mr. Holl agreed to act as a go-between to 6 "discuss the next steps with Ms. Sohanaki and his colleagues and let [Klean Waters] know how to 7 proceed." (Id., ¶43.) OCSD counsel Brad Hogin confirmed the February 28'h date in his opening 8 statement at the Hearing. (Hogin Statement 11:15-17 ("A deadline was given by the District of 9 February 28th......).) Ms. Sohanaki's unreasonable, unwarranted and unjustifiable demands added a gggg 10 layer of conflict to the Klean Waters/OCSD relationship that is not fully apparent in the documentary 11 evidence. y12 E. Klean Waters's Conduct Does Not Justify the Extreme Penalties Imposed. A 13 Count One, denial of inspection and sampling, consists of fourteen alleged violations of the 3 14 permit at $5,000 per day, totaling$70,000, This is the maximum assessment per violation under penalty 15 schedule in Ordinance. I6 OCSD charges Klean Waters with too many violations. It charges Klean Waters with violations 17 on two days when there were no inspections documented in the record, May 23, 2014 and September 3, 18 2014. (Administrative Complaint,¶¶ 50, 59.) There can be no denial without an inspection. It also u 19 charges Klean Waters with a sampling denial on July 3,2014 when the only sample OCSD sought was 20 one it wanted to take directly from the wastehauling truck at Klean Waters. (/d., ¶52; OCSD Ex. 30.) 21 Klean Waters cannot provide or deny access to something it does not own or control, and it neither 22 owned nor controlled the wastehauler truck, so that violation should be dropped. Also,on May 14, 23 2014, OCSD charges Klean Waters with three separate denials. (Id, IT 64-66.) It is not fair to charge 24 Klean Waters three times for what was, in effect, one incident. Therefore,there were only eight 25 violations,not fourteen, for a maximum of$40,000.00. 26 Moreover, Klean Waters only denied access following a complete breakdown in communication 27 with Roya Sohanaki combined with the reasonable perception that OCSD was attempting to destroy its 28 business under the pretext of conducting an investigation. For example, Ms. Sohanaki stated in a May 1, 19 RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO§618-ERRATA 014100.000001/1046835 REDACTED 1 2014 e-mail to Grace Pina-Garrett at_that Mean Waters was "illegally accepting"wastewater by 2 "discharging into our sewer system without OCSD's permission." (T. Miller Dec. I,Ex. Q.) 3 Even then, Mean Waters hired an independent consultant,Dr. Athar Khan, with an extensive 4 background as a regulator, in order to facilitate resolution of the communications breakdown and toxic 5 relationship,but OCSD in effect refused to meet with him. (Declaration of Athar Khan,1 Y 4,6, 8, 13 6 and Ex.A, Appendix Vol. I—Errata at Tab K.) While the breakdown in communications does not fully 7 excuse Mean Waters refusal to grant access to its facility,it does demonstrate that the District was not 8 working cooperatively with Mean Waters to resolve the noncompliance issues. 9 Count Two,Failure to Provide Pretreatment: 200 days of operation without pretreatment starting 10 February 11, 2014 to September, 2014) at$5,000 per day equates to $1,000,000. This is the maximum 11 penalty per day for this violation. 12 The number of days Mean Waters allegedly operated without pretreatment is grossly overstated. m v 13 According to Ted Gerber, Klean Waters' pump and tank pretreatment system was operational on a 14 August 20, 2014. (OCSD Ex. 31 (OCSD inspector H. Ted Gerber: "The chemical storage tanks, 15 plumbing to the treatment tanks, as well as electrical and control components are installed and 8 16 operational...:')). Second, according to the daily flow meter by which Mean Waters recorded its E' E 17 effluent discharges,it was either closed (no discharge)or open but had no discharge for 96 of the 191 u ' 18 days in the period. (S.Miller Dec. I, Ex. K. (Mean Waters flow meter records).) Thus, Mean Waters u 19 discharged for only 95 of these days, so even if the maximum penalty is assessed per discharge day, it 20 should only be 95 x $5,000, or$475,000.00. 21 More importantly, this penalty is entirely inappropriate because it is undisputed that Mean 22 Waters did pretreat during this period. The failure to timely install the chemical feed system specified as 23 one subcomponent in its permit application constitutes a paperwork violation, not a failure to provide 24 pretreatment. As described in detail above, at pages 11, 13-14,the testimony of Greg Arthur,Martin 25 Holl, and Dr. Lloyd Bracewell supports the conclusion that Mean Waters provided pretreatment during 26 this period. While the methodology utilized was not the pump system specified in its permit drawings, 27 Mean Water did treat its wastewater manually. Mean Waters documented purchase receipts for 28 pretreatment chemicals and records of biosolids trucked away. (S. Miller Dec. I, Ex.B (pretreatment 20 RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO§618-ERRATA 014100.000001/1046835 I chemical purchase receipts); Ex. C (material safety data sheets); Ex. D (biosolid shipping receipts); T. 2 Miller Dec. 1, Exs. A-D, J (pretreatment chemical purchase receipts); R-S (material safety data sheets).) 3 The declarations and attached exhibits of Tim and Shaun Miller, as well as several inspection reports by 4 OCSD staff, confirm that Klean Waters was pretreating wastewater. (S. Miller Dec. I, ¶¶7-9, Exs. B- 5 D; T. Miller Dec. I,¶65, Exs. A-D, J, R-S; OCSD Exs. 25, 26, 30.). 6 In addition, the Hearing Officer does not conclude that sampling established that Klean Waters 7 did not pretreat and the evidence does not support this. The Hearing Officer concludes in her Report that 8 the "District does not seek administrative civil penalties for violations of the facility effluent limits." 9 (Report, 8 (fn. 3).) However,the allegation that Klean Waters failed to provide pretreatment can only be 10 substantiated on the basis of sampling. Such sampling would have to demonstrate that wastewater was 11 not treated and/or was discharged in excess of the permit limits. In the absence of sampling showing no y12 pretreatment, the failure to timely operate the automatic feed pretreatment system set forth in its permit " 13 is more appropriately classified as a paperwork violation which does not warrant an administrative y 14 maximum per day penalty. n 15 The Hearing Officer concludes that the appropriate penalty for failure to provide pretreatment 16 consistent with Klean Waters permit application is to recapture the economic benefit realized through F- E 17 the noncompliance. Generally,the regulator must make a reasonable approximation of 18 economicbenefit to the violator resulting from its violation of the Clean Water Act (CWA)when Y u 19 calculating a penalty under the CWA. See U.S. ex rel Administrator of E.P.A. v. CITGO Petroleum 20 Corp., 723 F. 3d 547 (5th Circuit 2013). However, the Hearing Officer makes no attempt to determine 21 the true economic benefit that may have resulted from the delayed installation of the system set forth in 22 its permit. Instead, she assesses the maximum administrative penalty per day for the entire period prior 23 to installation without citing any evidence in support. She does not conclude, and evidence does not 24 support, that Klean Waters derived significant economic benefit, let alone anywhere close to $1,000,000, 25 from the delayed installation of its chemical feed system. Expert testimony would be appropriate to 26 support such a finding, but none has been offered. In fact, there has been no allegation whatsoever in 27 any of the briefing that Klean Waters derived a specific economic benefit from the alleged failure to 28 pretreat. 21 RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO§618-ERRATA 014100.000001/1046835 I Klean Waters derived very little economic benefit from the delay in installing its automated 2 chemical feed pretreatment component. As the December 26, 2014 Declaration of Tim Miller in support 3 of Brief to OCSD Board of Directors shows, Klean Waters spent only$24,127.03 on the piping, pumps 4 and electronic measuring system. (Declaration of Tim Miller filed in support of Brief to OCSD Board 5 of Directors,¶2.) Even the most aggressive estimates of the time value of money for delayed 6 compliance for a seven month period would, at best, result in a penalty of less than $30,000. A 7 $1,000,000 penalty based on "economic benefit"is unsupported and unsupportable. 8 IV, CONCLUSION 9 The Order imposes inappropriate and excessive fines, far out of proportion to the way other $ 10 permittees, including ones with much worse conduct, have been treated by OCSD in the past. The I I record establishes great effort by Klean Waters to work with OCSD employees and comply with their H12 requests, yet senior management refused to even meet with Klean Waters. Worse, they agreed to meet 13 and then blew off the meeting. There is no evidence of harm to the sewer system, OCSD's equipment or 14 the environment and no evidence of any economic benefit from Klean Waters' conduct. The Steering 15 Committee should grant a hearing and overturn the order. 16 Further,there was insufficient time to prepare this Request for Hearing in light of the Christmas F � � 17 Holiday and lengthy record. Section 605.C.4 allows only 15 days to appeal this order,yet Government 'S 18 Code Section 54740.5(b) gives Klean Waters thirty days to file its appeal following the Hearing. The u` 19 Ordinance conflicts with and is preempted by State law. Klean Waters reserves its right to supplement 20 this brief at a later date. 21 DATED: January 6, 2015 TUCKER ELLIS LLP 22 23 By: Matthew I. Kaplan 24 Attorneys for Respondents KLEAN WATERS, INC., SHAUN MILLER 25 and TIM MILLER 26 27 28 22 RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO§618—ERRATA 014100.00000I/I046835 I PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 1 am employed in the County of Los Angeles. I am over the age of eighteen years and not a party to the within entitled action. My business address is 515 South Flower Street, Forty Second Floor 4 Los Angeles, CA 90071. 5 On January 6, 2015, 1 served the foregoing document(s) described as RESPONDENTS' REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 6 618 OF WASTEWATER DISCHARGE REGULATIONS ORDINANCE NO. OCSD-39, APPEALING THE GENERAL MANAGER'S ORDER REVOKING KLEAN WATERS' 7 PERMIT AND IMPOSING ADMINISTRATIVE CIVIL PENALTIES BASED ON ORDER OF 8 HEARING OFFICER ROBERT L. LARSON on the interested party(ies) in this action as follows: v [See Attached Service List.] (X) BY MAIL: By placing a true copy thereof enclosed in a sealed envelope(s) addressed as above, 10 and placing each for collection and mailing on that date following ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for I I mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the U.S. Postal Service in Los Angeles, 12 California, in a sealed envelope with postage fully prepaid. 13 ( ) BY OVERNIGHT DELIVERY: 1 enclosed the documents in an envelope or package provided S by an overnight delivery carrier and addressed as noted below. I placed the envelope or package 14 for collection and overnight delivery at an office or a regularly utilized drop box of the overnight IS delivery carrier. F 16 ( ) BY FACSIMILE: Based on agreement of the parties to accept service by fax transmission, I _ faxed the documents to the persons at the fax numbers listed below. The telephone number of rg the sending fax machine was 213.430.3409. The sending facsimile machine issued a 17 transmission report confirming the transmission was complete and without error. A copy of that report is attached. is ( ) BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement 19 of the parties to accept service by e-mail or electronic transmission, I caused the documents to be �0 sent to the persons at the e-mail addresses listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 21 (X) STATE: I declare under penalty of perjury under the laws of the State of California that the 22 foregoing is true and correct. 23 24 Executed on January 6, 2015, at Los Angeles, California. 25 26 27 -Ama Maria O� aw 28 PROOF OF SERVICE 014100,000001/1046835 1 SERVICE LIST 2 In the matter of Klean Waters, Inc. Tim Miller, and Shaun Miller 3 Industrial Wastewater Discharge, Permit No. 42-1-841 4 Bradley R. Hogin Attorneys for Orange County Sanitation bho in aws -laws m District 5 Rica R. Rica rhager@wss-law.com 6 Woodruff, Spradlin & Smart 555 Anton Boulevard, Suite 1200 7 Costa Mesa, CA 92626-7670 Tel: (714) 558.7000 8 Fax: (714) 835-7787 9 q 10 � I1 12 ,`uj ° 13 y � 14 u 15 u � F 16 17 �a 18 u 19 20 21 22 23 24 25 26 27 28 24 PROOF OF SERVICE 014100.000001/1W935 , 1 TUCKER ELLIS LLP RECEE\.'FD CARMEN A. TRUTANICH ISBN 86629) y015 JAN -8 PM R� 30 2 carmen.tmtanich@tuckerellis.com MATTHEW I. KAPLAN ISBN 177242) 3 matthew.kaplan@tuckemllis.com `)OSD WILLIAM H. DANCE ISBN 230041) receptionist 4 william.dance@tuckemllis.com 515 South Flower Street,Forty-Second Floor 5 Los Angeles, CA 90071-2223 Telephone: 213.430.3400 6 Facsimile: 213.430.3409 7 Attorneys for Respondents KLEAN WATERS, INC., 8 TIM MILLER, and SHAUN MILLER 9 ORANGE COUNTY SANITATION DISTRICT g 10 5 11 In the Matter of: • 12 DECLARATION OF MATTHEW I.KAPLAN IN = Kleau Waters,Inc.,Tim Miller, SUPPORT OF RESPONDENTS' APPEAL TO 13 and Shaun Miller THE BOARD OF DIRECTORS OF THE — ORANGE COUNTY SANITATION DISTRICT _ 14 Industrial Wastewater Discharge PURSUANT TO GOVERNMENT CODE § Permit No. 52-1-841 54740.5(B)AND REQUEST FOR HEARING Y 15 BEFORE BOARD OF DIRECTORS' STEERING COMMITTEE PURSUANT TO SECTION 618 OF F�`e 16 WASTEWATER DISCHARGE REGULATIONS ORDINANCE NO.00SD-39 17 `b 18 Hearing Date: Time: 19 Location: Hearing Officer: TBD 20 21 22 23 24 25 26 27 28 DECLARATION OF MATTHEW 1.KAPLAN IN SUPPORT OF RESPONDENTS'APPEAL La!menage\014100\000001\I0476Ig.1 1 DECLARATION OF MATTHEW I.KAPLAN 2 I, Matthew I. Kaplan, declare: 3 1. I am a Partner in the law firm Tucker Ellis LLP. The firm has been retained to represent 4 Klean Waters,Inc., Tim Miller, and Shaun Miller(collectively,"Klean Waters") in the Orange County 5 Sanitation District("OCSD") administrative proceeding entitled In the Matter ofKlean Waters, Inc., 6 Tim Miller and Shaun Miller, Industrial Wastewater Discharge Permit No. 52-1-841. I have personal 7 knowledge of the facts set forth below and, if called as a witness, could competently testify to the 8 following facts. 9 2. Tucker Ellis LLP submitted Public Records Act requests to OCSD on October 3,October 8 10 13,October 15,October 16, October 20, and November 10, 2014. 5 11 3. The hearing in this matter was held on November 13 and 14,2014. After the hearing 5 a 12 thousands of pages of documents were produced by OCSD staff to Klean Waters in response to the 13 Public Records Act requests referenced in Paragraph 2,above. a 14 4. Attached as Exhibit A is a true and correct copy of an email I sent to OCSD employee Ed c 15 Torres(the Hewing Officer at the time)requesting a brief continuance of the Administrative Hearing. e 16 5. Attached as Exhibit B is a true and correct copy of the United States Environmental 17 Protection Agency's Small Entity Compliance Guide, Centralized Waste Treatment Effluent Limitations 5 18 Guidelines and Pretreatment Standards(40 CFR 437). On January 8, 2015 I verified that the document U 19 with the same title is available at bnP://www.epa.eov/rfa/documents/Compliance- 20 WasteTreatmentEffluentLimits.udf. 21 I declare under penalty of perjury under the laws of the State of California that the foregoing is 22 true and correct. 23 Executed on the 9th day of January, 2015, in Los Angeles, California. 24 25 174V�5�:� 26 Matthew I. Kaplan 27 28 1 DECLARATION OF MAT MEW 1.KAPLAN IN SUPPORT OF RESPONDENTS'APPEAL Lalme k014100\000001\1047618.1 From: Kaplan, Matthew 1, lmailto:matthew.kaolan(altuckerellis.coml Sent: Friday,October 10,20144:53 PM To:Torres,Ed Cc: Herberg,Jim;Sohanakl, Roya;Colston,Jim;Trutanich,Carmen A.; Dukeslaw,Anna Subject: Klean Waters Administrative Complaint, Permit No.51-1-841 Importance:High Dear Hearing Officer Ed Torres, Our firm was recently retained by Klean Waters,Inc.to represent it in connection with the Complaint for Administrative Civil Penalties and Permit Revocation Initiated by the Orange County Sanitation District and currently set for hearing on October 29,2014. Beyond Introducing ourselves to you and the individuals Involved on behalf of the OCSD,the purpose of this email is to request a continuance of the hearing so we can prepare a defense for our client. We are just getting up to speed on this matter and need time to become familiar with the facts and obtain necessary documents to defend our client. Towards that end,we served a Public Records Act Request under Government Code 4§6250 at seq.on OCSD on October 3,2014 but have not yet received a response. We need the requested information in order to prepare our client's defense and trust you recognize the due process rights that would be implicated should our client be forced to defend itself without the benefit of this discovery. Also, we wanted to inquire as to the process for obtaining administrative subpoenas or otherwise insuring the presence of OCSD employees at the hearing on this matter. Finally,the Complaint did not Identify the prosecution team members for this matter. I have therefore cCd the person who signed the Complaint and the OCSD employees our client Identified as being involved in the Issuance of Notices of Violation so as to avoid an inappropriate ex parte communications. Thank you very much for your consideration. We look forward to your prompt response. Have a nice weekend. Matthew Kaplan I Tucker Ellie LLIP 515 South Flower Street I Forty Second Floors Los Angeles,CA 90071 Direct:213-430-3309 1 Fax: 213-430-3409 1 matthew.kaolanAtuckerellis.com Online biomoby:Matthew Kaplan tuckerellis.com This e-mail may contain information that Is privileged or confidential.If you are not the Intended recipient,please de late the e. mail and notify us Immediately by return email. 1 United States Office of Water EPA 821-B-01-003 Environmental Protection (4303) June 2001 Agency Version 3.a ��iEPA SMALL ENTITY COMPLIANCE GUIDE Centralized Waste Treatment Effluent Limitations Guidelines and Pretreatment Standards (40 CFR 437) (This Page Left Intentionally Blank) DISCLAIMER The Engineering and Analysis Division ofEPA's Office of Water prepared this guide pursuant to section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996(SBREFA), Public Law 104-121. EPA intends this guide to aid small regulated entities that are direct or indirectindustrial dischargers in complying with recently published national regulations,"Effluent Limitations Guidelines,Pretreatment Standards,and New Source Performance Standards for the Centralized Waste Treatment Industry Point Source Category"(Federal Register,Vol. 65,No.247, pages 81242-81313,December 22,2000). The discussion in this document is Intended solely as guidance. This guide is not a regulation itself nor does not it substitute for any requirements under Clean Water Act or EPA's regulations.Thus,itdoes notimposelegally-bindingrequirements on EPA,States,othe regulated community, and the general description provided here may not apply to a particular situation based upon the circumstances. This guide does not confer legal rights or impose legal obligations upon any member of the public. Among other things,in the course of the guide,the document describes new and existing requirements with respect to industrial dischargers under the Clean Water Act and its implementing regulations at 40 CFR §§ 122, 123, 124 403 and chapter 1, subchapter N. A discharger's legal duty requires it to comply with the CWA and its implementing regulations. While EPA has made every effort to ensure the accuracy of the discussion in this guide, a discharges s obligations we determined, in the case of direct dischargers by the terms of their NPDESpermitand EPA's regulations or inthecase of indirectdischargers by permits orequivalant control mechanisms issued to POTW industrial users or by regulatory requirements. Nothing in this guide,of course,changes any statutory or regulatory requirement. In the event of a conflict between the discussion in this guide and any permit or regulation, the guide would not be controlling. EPA and local decisionmakers retainthe discretion to adoptapproaches on a case-by- case basis that differ from those described in this guidance where appropriate. However,in any civil or administrative action against a small business for violation of the effluent limitations guidelines,pretreatment standards or new source performance standards for the centralized waste treatment industryunder 40 CFR Part437,the content of this guide may be considered as evidence of the reasonableness or appropriateness of proposed fines,penalties or damages. Mention of trade names or commercial products does not constitute endorsement or recommendation for their use. EPA may decide to revise this guide without public no tice to re flect changes in the Agency's approach to implementing effluentlimitations guidelines,pretreatmentstandards,andnew source performance standards for the centralized waste treatment industry,or to clarify and update text. To determine whether the Agency has revised this guide and/or to obtain copies,contact EPA's Small Business Ombudsman Office at(202)260-0490. You can also determine whether EPA has revised or supplemented the information in this guide by accessing the document at www,oa.gov/ost/`g!iide/cwti.htm . i (This Page Left Intentionally Blank) CHAPTER 1 INTRODUCTION his documentis published by the U.S.Environmental Protection Agency(EPA)mom official compliance guide for small entities, as required by the Small Business Regulatory Enforcement Faimess'Act of 1996. Before you begin using this guide you should know that the rule for which EPA has prepared this guide was published on December 22, 2000. EPA is continuallyimproving and upgrading its rules,policies,complianceprograms and outreach efforts. You can determine whether EPA has revised or supplemented any of the rules or information provided in this guide by visiting www.eRa.ecrv/ost/pide/cwti.html. EPA published the regulation titled " Effluent Limitations Guidelines and Pretreatment Standards for the Centralized Waste Treatment Industry" (Federal Register,Volume 65,No.247, pages 81242-81313)on December 22, 2000 under the authority of the Clean Water Act(CWA). EPA has prepared this small entity compliance guide because Section 212 of the Small Business Regulatory Enf orcement Fairness Act of 1996,Public Law No.104-121,requires EPA to prepare and publish such guides for any rule for which it has prepared a regulatory flexibility analysis under the Regulatory Flexibility Act,5 U.S.C.§601,etseq. EPA prepared a regulatory flexibility analysis of this rule and consequently also has developed this guide. EPA designed this guide to help owners and operators of centralized waste treatment (CWT) facilities that are small entities - whether they are small businesses, small government jurisdictions or small non-profit organizations—understand and comply with the CWT effluent guidelines limitations and pretreatment standards ("the rule"). EPA has focused this guide on what a small entity will need to know to comply with the regulation. Small entity is defined as(1) a small business with gross revenue under$6 million(based on Small Business Administration size standards); (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population less than 50,000;and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its Held. 1.1 Why is Proper Implementation Important? Implementation of a regulation is obviously a critical component in achieving the desired objectives of the regulation. If this regulation is not effectively implemented, than expected reductions in pollutant discharges and the environmental benefits expected to be obtained from the reduced discharges may not occur. Furthermore, CWT facilities that do not properly implement the rule may not be able to comply with it and consequently may violate the CWA. 1-1 INTROOUCTION CWT SMALL ENTITY COMPLIANCE GUIDE Effective implementation of this regulation will require the cooperation of the CWT facilities that are discharging their wastewater and the Federal, State and local authority that regulate discharges from these facilities. In discussions with permitting control authorities,many stressed the need forclose communicationwith CWTfacilities. Federal,State and local permit and control authorities need to have a thorough understanding of a CWT facility's operations to implement this rule properly. Likewise,CWT facilities must maintain close communication with the generators and sources of the wastes and wastewater treated at the CWT facility in order to accurately characterize and treat the incoming waste streams. 1.2 Who Should Use This Guide? EPA developed this guide to aid small entities that are CWT facilities. CWT facilities treat or recover hazardous or non-hazardous industrial waste,wastewater,or used material from off- site. The entities that are subject to this rule include small entities that me CWT facilities that either discharge wastewater directly into surface water or that introduce wastewater into publicly owned treatment works. Because the regulation establishes the same requirements for all affected facilities,this guide is helpful for both small and large businesses that are CWT facilities. 1.3 What Does This Guide Cover? EPA designed this information to provide guidance on implementing effluent limitations guidelines and standards for the CWT industry. As part of this guidance,EPA included general information on effluent limitations guidelines and pretreatment standards(thatis,whatare they?) and specific information on those promulgated for the CWT industry. This guidance also enables the reader to determine whether a facility is a CWT and, thus, affected by this rule, what CWT wastewater discharges are subject to this rile,and what requirements a CWT facility may have to meet to comply with this rule. 1.4 How to Use this Guide This guide contains 11 chapters and 1 appendix: Chapter provides basicinformation oneffluentguidelinesandpretreatmentstandards. EPA developed this chapter primarily for readers with little or no experience with effluent limitations or pretreatment standards. Chapter 3 provides a general overview of the CWT industry and summarizes the CWT rule. This summary includes a description of the requirements of the CWT rule along with a compliance timetable. Chapter 4 provides guidance on what type of facilities and operations must comply with this rule. Chapter 5 provides information on determining what subcategories apply to a facility's operations. 1-2 INTRODUCTION CWT SMALL ENTITY COMPLIANCE GUIDE Chapter 6 provides information on implementing the rule for facilities complying with a single subcategory only. Chapter 7 provides information on implementing the rule for facilities complying with more than one CWT subcategory. Chapter 8 provides information on establishing equivalent treatment for facilities complying with the multiple wastestream subcategory. Chapter 9 includes information on the compliance assurance process. This chapter describes how EPA determines compliance and how violations may be corrected. Chapter 10 presents questions frequently asked during the development of this rule and EPA's responses to those questions. Chapter 11 provides a list of resources for additional help in complying with the regulation. Appendix A presents the final limitations and standards for the CWT regulation. How Do I Obtain a Complete Copy of the Rule? You may obtain a complete copy of this rule at 65 Fed.Reg.81242(December 22,2000)or by visitingwww.epa.gov/ost/euide/cwti.hbrd. 1-3 (This Page Left Intentionally Blank) CHAPTER 2 OVERVIEW OF EFFLUENT LIMITATIONS GUIDELINES AND PRETREATMENT STANDARDS �LLLLJJJJ PA is providing basic information in this chapter on effluent limitations guidelines and pretreatmentstandards(ELGs). EPA has simplified the information presented so as to make it useful to individuals with little or no experience with ELGs. You will find addition information on ELGs in the preamble of the CWT rule. 2.1 What Are Effluent Limitations Guidelines and Pretreatment Standards? Effluent limitations guidelines and pretreatment standards are restrictions which may apply to wastewater discharges from CWT facilities. The Clean Water Act(CWA)prohibits the discharge of pollutants into navigable waters except as otherwise authorized by the statute. It establishes restrictions on the types and amounts of pollutants discharged from various industrial, commercial, and public sources of wastewater. Among these are restrictions on the direct discharge of effluent i.e.wastewater,into navigable waters("effluentlimitations")and restrictions on the indirect discharge of pollutants to navigable waters ("pretreatment standards") through their introduction publicly owned treatmentworks(which,in turn,discharge to navigable waters). These effluent limitations and pretreatment standards do not prevent CWT facilities from discharging wastewater. However,they impose a requirement or limit,on the concentration of pollutants a CWT may discharge,regardless of its location in the United States or the condition of the receiving water. ELGs are notwatet quality or health based requirements. Rather,asrequired by the CWA,EPA bases ELGs on the performance of wastewater treatment technologies applied to CWTwastestreams. ELGs represent the greatestpollutantreductionseconomically achievable for the CWT industry. CWT facilities are not the only facilities that may be subject to effluent limitations guidelines and pretreatment standards. EPA develops ELGs on an industry-by-industry basis and has developed effluent guidelines limitations and pretreatment standards for over 55 categories of industries. Therefore,a facility which is required to meetthe restrictions established by this rule may also be required to meet the restrictions for another rule if it also performs industrial operations in another regulated industrial category. Effluent limitations and pretreament standards represent different sets of restrictions. As noted above,effluent limitations apply to direct dischargers and pretreatment standards apply to indirect dischargers. Finally,as mentioned above,ELGs are minimum requirements. The permit writer or control authority may establish additional or tighter restrictions(based on site-specific local POTW pretreatment ordinance limits,water quality standards, and other authority) than 2-1 OVERVIEW OF ELGS CWT SMALL ENTITY COMPLIANCE GUIDE those established by this rule. Therefore,discharge requirements may be more restrictive than the ELGs,but not less restrictive than the ELGS. 2.2 Direct Dischargers and Effluent Guidelines A direct discharger is a facility that discharges pollutants directly to waters of the A CWT facility discharging wastewater U.S.such as a river or stream directly to waters of the U.S.,the. If a CWT facility construction of which commenced after is a direct discharger, it is required to have a August 28,2000 is considered a new source. - permit to discharge wastewater— an NPDES permit NPDES permits are drafted by "Permitting Authorities"and contain effluent limitations. For CWT direct discharging facilities,EPA has established four overall sets of limits which may apply. These we referred to as BPC, BCT, BAT, or NSPS. These acronyms stand for Best Practicable Control Technology Currently Available, Best Conventional Pollutant Control Technology, Best Available Technology BPT- Best Practicable Control Technology, Economically Achievable,and New Source Economically Achievable. Performance Standards, respectively. BAT- Best Available Control Technology, Existing direct discharging CWT facilities Economically Achievable. are required to Comply with BPC for BCC- Best Conventional Control Technology, conventional pollutants'(BODs,TSS,oil and Economically Achieveable. grease,PH)and BAT for all other regulated NSPS- New Source Performance Standards. PSNS- Pretreatment Standards for New Sources. pollutants. New source direct dischargers PSES- Pretreatment Standards for Existing Sources. must comply with NSPS for all regulated pollutants. The BPC, BCT,BAT,and NSPS limits are listed in Appendix A. 2.3 Indirect Dischargers and Pretreatment Standards An indirect discharger is a facility that discharges pollutants to surface water indirectly by introducing In this guide and the CWT rule pollutants into a publically owned treatment works and preamble,EPA refers to the (POTW). POTWs are often referred to as municipal POTW or the state collectively wastewater treatment plants. if a CWT facility discharges as the"control authority." wastewater to a sewer,than it is an indirect discharger.It is also art indirect discharger if it trucks or sends its wastewater to a POTW by barge or rail. Permits for indirect dischargers are drafted by"Control Authorities"and contain pretreatment standards. 'Conventional pollutants also include fecal coliform,but EPA has not regulated fecal coliform in the CWT rule. 2-2 OVERVIEW OF ELGs CWT SMALL ENTITY COMPLIANCE GUIDE A CWT facility discharging wastewater PorCWTindirectdischargingfacilities,EPA to a POTW,the construction of which has established two overall sets of pretreatment commenced after August 28,2000 is standards which may apply. These are referred to considered a new source. as PSES and PSNS. These acronyms stand for Pretreatment Standards for Existing Sources and Pretreatment Standards for New Sources. Existing indirect dischargers must comply with PSES. New sources that are indirect dischargers must comply withPSNS. PSES and PSNS do not contafnrestrictions for conventional pollutants because POTWs are generally designed to treat these parameters effectively. PSES and PSNS are listed in Appendix B. 2.4 Zero or Alternative Dischargers and ELGs Some CWT facilities do notdischarge process wastewaterinto waters of the U.S.or aPOTW. These facilities are referred to as zero or alternative dischargers. Zero or alternative discharging CWT facilities dispose of their process wastewater through evaporation,land application,deep well injection,or off- In Lremainderer of thissite transfer to a facility other than a POTW. These refers to control facilities do not have to meet the restrictions established permit toby this rule(these facilities may have to meet restrictions POTW collectively established under other acts or rules, such as the Clean mechanism." Air Act or RCRA). However, if a CWT transfers its process wastewater off-site directly to a POTW,then the CWT standards would continue to apply to that wastewater (this would not be true if the CWT wastewater is sentoff-site to another CWT). If a zero or alternative discharging CWT facility alters its disposal method and becomes a direct or indirect discharger,then it will be required to comply with the applicable CWT restrictions. A CWT facility which is currently a direct or indirect discharging facility and alters its wastewater disposal method to become a zero or alternative discharger would no longer be regulated under this rule. 2-3 (This Page Left Intentionally Blank) CHAPTER 3 THE CWT INDUSTRY AND THE CWT RULE { - this chapter provides a general overview of the CWT industry and the CWT rule. It also includes general information on the requirements of the CWT rule. EPA developed this chapter primarily for readers unfamiliar with this industry or this rule. Interested parties may obtain additional information from the preamble or the technical development document for the rule. 3.1 What Is A CWT Facility? A CWT facility is one that accepts for treatment and/or recovery used industrial materials generated off-site(at another location). These used materials may be hazardous,non-hazardous, solid,or liquid. A CWT facility may be a stand alone operation(i.e.,centralized waste treatment is the only operation at that site) or it may be operated in conjunction with other industrial operations(such as production of chemicals). CWT facilities do not fail into a single description. Some treat used materials or wastes Treatment means any method,technique, from a few generating facilities while others treat or process designed to change the wastes from hundreds of generators. Some treat physical,chemical or biological character non-hazardous wastes exclusively while others or composition of any metal-bearing, treathazardous andnon-hazardous wastes. Some oily,or organic waste so as to neutralize such wastes,to render such wastes primarily treat concentrated wastes while others primarily treat dilute wastes. Some primarily energy or to discharge 1, it recover P Y P Y energy or recover metal,oil,or organic perform wastewater treatment or materials content from the wastes. recovery and recycling,whileothersperform both. _ EPA estimates there are 223 centralized waste treatment facilities in 38 states. The major concentration of centralized waste treatment facilities is in EPA Region 4,5 and 6 due to the proximity of the industries generating the wastes undergoing treatment.Thevastmajority of CWT In this document,wastes are defined as facilities are indirect dischargers. Fewer than 10%are direct dischargers. The average volume aqueous,non-aqueous,and solid waste, wastewater,and/or used material. of wastewater discharged on an annual basis by Waste receipts are those wastes that CWT anindirect dischargingCWT facilityis 9.3 million facillties receive from off-site for the gallons while a direct discharging CWT facility purpose of treatment. Waste receipts do averages 38 million gallons/year. EPA estimates not include those wastes generated at the that sixty-three small companies own CWT as part of its regular operation. discharging facilities that are subject to the requirements of this rule. 3-1 THE CWT INDUSTRY AND THE CWT RULE CWT SMALL ENTITY COMPLIANCE GUIDE 10 l 7 7 3 S 10 ©a ` 0 0 Figure 3-lEPA Regions 3.2 What is the CWT Rule and What Does It Require? The CWT rule contains effluentlimitations guidelines and standards forthe CWT industry. These are numerical restrictions that may be applied to the discharge of wastewaters from CWT facilities to waters of the U.S.or the introduction of wastewater from a CWT facility into a PCITW. The CWT rule requires facilities that are subject to this rule to meet these discharge requirements. EPA developed different effluent limitations and standards for the CWT operations depending on the type of Chapter 5 provides waste received by the CWT. There are four types, or guidance on determining subcategories,of waste(oily,metals,and organics wastes and the applicable subcategories. a fourth,a mixture of any of the three previously listed waste - types). The subcategories are as follows: • Subcategory A; Facilities that treat or recover metal from metal-bearing waste,wastewater, or used material received from off-site, • Subcategory B: Facilities that treat or recover oil from oily waste, wastewater, or used material received from off-site; • Subcategory C: Facilities that treat or recover organics from organic waste,wastewater,or used material received from off-site;and • Subcategory D: Facilities that treat or recover some combination of metal-bearing,oily,or organic waste,wastewater,or used material received from off-site. CWT facilities thatfall within multiple subcategories(A,B,or C)may Chapter8providee elect to comply with each set of restrictions separately or those more information on established for Subcategory D. If a facility elects to comply with the demonstrating Subcategory D limitations, the CWT Wil h'e requires the facility to equivalent treatment. demonstrate equivalent treatment. 3-2 THE CWT INDUSTRY AND THE CWT RULE CWT SMALL ENTITY COMPLIANCE GUIDE 3.3 What Treatment Technologies Were Used to Establish the CWT Limitations and Pretreatment Standards? EPA based the effluent limitations for existing CWT facilities on the following technologies: Table 3-1 Technology Basis for the Final CWT Limitations for Existing Facilities Subpart Name of Subcategory Tedmology Basis A Metal-Bearing Waste Batch Precipitation,Liquid-Solid Separation,Secondary Treatnent and Recovery Precipitation,Clarification,and Sand Filtration (metals) For Metal-Bearing Waste Which Includes Concentrated Cyanide Streams: Alkaline Chlorination in a two step process B Used/Waste Oil Treatment Emulsion Breaking/Gravity Separation,Secondary and Recovery Gravity Separation and Dissolved Au Flotation (oils) C Organic Waste Treatment Equalintion and Biological Treatment (orgy) EPA based the pretreatment standards for the metals'and organics subcategories on the same technologies as those listed in Table 31. For the oils subcategory,however,the technology basis forthe pretreatmentstandardsis emulsionbreaking/gravity separation and dissolved airflotation. The technology basis for the effluent limitations and standards for new CWT facilities for the oils and organics subcategories are the same as those listed in Table 1. For new CWT metals facilities,however,the technology basis for the limitations is selective metals precipitation,liquid- solid separation,secondary precipitation,liquid-solid separation,tertiary precipitation,and liquid- solid separation. The CWT rule only establishes numerical restrictions on a CWT facility's discharge. ltdoesnotestablishmonitoring frequencies nor The CWT Wile does not does it require that a particular technology be used. A CWT facility require a specific may use any technology it deems appropriate as long as its treatment technology. discharges are not in excess of those established in the rule. 'The treatment technology basis for PSES for the metals subcategory does not include sand filtration 3-3 THE CWT INDUSTRY AND THE CWT RULE CWT$MALL ENTITY COMPLIANCE GUIDE 3.4 What CWT Discharges Are Subject to This Rule? The wastewater discharges covered by this rule include some or all discharges related to Discharges of non-contaminated materials received from off-site (waste receipts) stormwater are not subject to this rule and on-site CWT wastewater generated as a and should not be mixed with discharges subject to this rule prior to complete result of CWT operations. Examples of off-site treatment of covered wastewaters. waste receipts include metal finishing rinse waters and sludges, used oils, and leachate or groundwater cleanup. On-site CWT wastewater include: See Chapter 14 of the technical solubilization wastewater, emulsion breaking/gravity development document for a separation wastewater, used oil processing wastewater, detailed description of treatment equipment washes, transport washes (tanker stormwater(contaminated and truck, drum, and roll-off boxes), laboratory-derived non-contaminated)and wastewater, air pollution control wastewater, landfill wastewaters subject to this rule. wastewater from on-site landfills,andcontaminated storm water. 3.3 Compliance Timetable As described above, the CWT rule requires facilities subject to the rule to comply with the applicable set(s) of effluent limitations or standards. The following table summarizes these requirements and the required compliance dates. Table 3-2 Compliance Times for CWT Facilities Type of CWT Facility' Requirement Deadline Existing Direct Discharger Comply with BPT(conventional when your federal or pollutants)and BAT(other regulated state NPDES permit is re- pollutants) issued New Direct Discharger Comply with NSPS when you begin discharging Existing Indirect Discharger Comply with PSES December 22,2003 New Indirect Discharger Comply with PSNS when you begin discharging u A new discharger is a CWT facility that commences construction after August 28,2000 3-4 THE CWT INDUSTRY AND THE CWT RULE CWT SMALL ENTITY COMPLIANCE GUIDE 3.5 How Does This Regulation Relate to Other Federal,State,and Local Requirements? Effluent limitations and standards act as a primary mechanism to control the concentration of pollutants discharged into waters of the United States. These effluent limitations and standards are applied to individual facilities through NPDES permits or control mechanisms developed by POT Ws orauthorized States under Section 402 of theCWA and local pretreatmentprograms under Section 307 of the CWA. A CWT facility may be required to comply with more stringent limits than those contained in the CWT rule,pursuant to(1)federal or state statutes or rules or(2)local ordinances. For example, certain POTWs are required by federal regulations to develop local limits to protect against pass- through and interference. This means the control authority must develop local limits that protect the treatment plant from pollutants that may upset the plant,pass-through the plant untreated(or inadequately treated), may endanger the well being of workers, or would inhibit sludge management practices. These local limits may be more stringent than the CWT pretreatment standards. In addition to CWT requirements,other federal,state,or local requirements may also apply to a CWT facility. These may include,but are not limited to,other NPDES program and general pretreatment requirements (CWA), waste tracking requirements (RCRA, EPCRA), waste managementplanningrequimments(RCRA), spill prevention,reporting and emergencyresponse requirements(SPCC,EPCRA),and maximum achievablecontrol technology(MACr)requirements (CAA). In general,the CWT nile will not impact these other requirements. 3.7 What Steps Do I Need to Take to Comply With This Rule? 1. A CWT facility should determine if its operations are subject to the CWT rule. Chapter 4 describes the applicability of the CWT rule to various CWT operations. 2 If a facility is subject to the CWT rule,it should determine what subcategory its wastes may be classified into. Chapter 5 provides guidance on classifying wastes. 3. If a CWT facility accepts wastes in more than one subcategory,it must decide to comply with each applicable set of limitations or standards separately or to comply with the applicable set of multiple wastestream subcategory effluent limdtations or standards. If the facility chooses the later,it will be required to demonstrate equivalent treatment(See Chapter 8). 4. A CWT facility must determine if its treatment system will allow it to meet the required discharge restrictions. Ifnot,it will be required to alter its operation or treatment system prior to the compliance date to achieve the discharge restrictions. 5. If a CWT facility is an indirect discharger,it must also The CWT rule does not require a Comply with the general pretreatment reporting BMl the general pretreatment requirements which includes submission of a baseline regulations do. BMRs for monitoring report within 180 existing indirect discharging The effective date days of the effective date of the CWTs are due on July 21,2001. of the CWT rule is CWT rule,or July 21,2001. This January 22,2000. baseline monitoring report 3-5 THE CWT INDUSTRY AND THE CWT RULE CWT SMALL ENTITY COMPLIANCE GUIDE (HMR) must include results of sampling and analysis identifying you can obtain 40 CFR§ the concentration of all regulated pollutants in its discharges. 403.1.2 through EPA's Additional informationon this requirementcanbe found in40 CPR web site:www.epa.gov §403.12(b). 3.8 What Compliance Monitoring Is Required by the CWT Rule? The CWT rule doesnot establish monitoring frequency requirements. Monitoring frequencies are found in other sections of the CWA regulations. For example,§403.12(e)requires industrial users (IUs) subject to categorical pretreatment standards,such as the CWT regulations, to self- monitor and report at least twice per year. Additionally, pursuant to 40 CFR 403, POTWs, or control authorities, have developed industrial pretreatment programs (IPPs). IpPs generally containguidelines for determiningmonitoring frequencies.Permittingandcontrolauthoritieslook towards these rules,IPPs,and guidelines to determinemonitoring frequencies.They also consider the individual characteristics of a site,such as compliance history of the facility and other relevant factors. 3-6 CHAPTER 4 APPLICABILITY his chapter provides guidance on the types of facilities and CWT operations that must comply with this rule. It is only a summary. The preamble to the rule contains detailed information on many of these operations. 9..1 Regulated and Non-Regulated CWT Activities The CWT Wile applies to all wastewater discharges to a receiving stream or to a POTW from a facility defined by the See also Section V of the rule as a CWT facility unless specifically excluded. As preamble and Chapter 3 of the Development Document. previously noted, the rule does not establish different requirements for CWT thatare smallentities. Theruledefines " a CWT facility as "any facility that treats and/or recovers or recycles any hazardous or non- hazardous industrial waste, hazardous or non-hazardous industrial wastewater, and/or used material from off-site." The following table provides a general summary of regulated and non- regulated CWT activities. Table 4-1 Examples of Regulated and Non-Regulated CWT Operations Centralized Waste Regulated by this Wile Not Regulated by this rule Treatment Activity Those performed at federally owned facilities all federally owned CWT operations none POTWs none all Thermal drying of none all POTW biosolide Sanitary wastes or toilet wastes MM all Food processing none all wastes 4-1 APPLICABILITY ._. CWT SMALL ENTITY COMPLIANCE GUIDE Table 4-1 Examples of Regulated and Non-Regulated CWT Operations Centralized Waste Regulated by this rule Not Regulated by this Wile Treatment Activity 'those that accept off-site wastes for treatment and/or recovery that aze not generated in a Manufacturing manufacturing process subject to the same facilities lir stations/standards as on-site generated waste all others and that the permit writer determines are not similar to,and compatible with treatment of,the on-site waste those that accept waste materials from use of those that accept back their their products that are not similar to,and unused products,shipping Product stewazdship compatible with,treatment of waste generated and storage containers with on-site product residues,and off- specification products materials received via pipeline from waste all other piped materials and Pipeline materials consolidators or commingled with other covered POTWs CWT wastewaters Recycle/recovery all unless specifically excluded elsewhere activities Traditional solvent none all recovery Fuel blenders those that generate a wastewater Dry"operations Scrap metals none all recyclers only included when wastewater generated from Sflver recovery these activities is commingled with other all others covered wastes Used oil filters&oily those that generate a wastewater "Dry"operations absorbent recycling High Temperature Metals Recovery those that generate a wastewater "Dry"operations Used glycol recovery all none Re-refining .. all none Solids,soils,and those activities which generate a wastewater d operations sludges unless specifically excluded "dry" Stabilization/Solidiff those that generate a wastewater "Dry"operations cation Transfer stations and none all recycling centers 4-2 APPLICABILITY CWT SMALL ENTITY COMPLIANCE GUIDE Table 4.1 Examples of Regulated and Non-Regulated CWT Operations Centralized Waste Regulated by this rule Not Regulated by this Wile Treatment Activity only included when the wastewater generated Incineration activities from these activities is received from off-site and all others commingled with other covered wastewater ] Transportation only included where wastewater generated from and/or these activities is commingled with other all others transportation covered waters equipment cleaning only included where wastewater generated from Landfills these activities to commingled with other all others covered waters Grease those which contain animal trap/interceptor those which contain petroleum based oils or vegetable fats/oils wastes Marine generated off-loaded and subsequently sent to a CWT wastes facility at a separate location and commingled all others with other covered wastewater not covered if the wastewater is accepted for Waste,wastewater or those activities not listed in the next column or use in place of potable water used material re-use excluded elsewhere or if materials are accepted in place of virgin treatment chemicals. Treatability,research only included where wastewater generated from and development,or theft activities is commingled with other all others analytical activities covered waters 4-3 (This Page Left Intentionally Blank) CHAPTER 5 DETERMINING THE APPLICABLE SUBCATEGORIES � ��''��11his chapter provides guidance on determining the applicable CWT subcategories for wastes accepted CWT facilities accept a wide variety at a CWT facility. EPA developed this chapter to of materials,such as oils and acids. Although many of these materials provide guidance to CWT classifyties. EPA is aware are processed and reused,for that marry CWT facilities may classify their wastes purposes of this guidance and the differently. The CWT rule does not require CWT rule,the material is collectively facilities,control authorities,or permitting authorities to referred to as'waste.' use this subcategoriution process. EPA has provided it only as guidance. 5A Waste Acceptance Procedures In absence of the CWT rule, CWT facilities have already established waste acceptance procedures. The CWT rule does not establish waste acceptance procedures. However,in EPA's view, these procedures are critical in determining the applicable CWT subcategories and in conducting adequate treatment or recovery, and in ensuring the wastes accepted conform to a facilly's discharge permit or control mechanism. Certainly, all CWT facilities should, at a minimum,collectadequate information fromthe generator onthe type of waste received since this is the minimum information required by CWT facilities to effectively treat off-site wastes. Consequently,EPA has included information on waste acceptance procedures as the first step in its guidance for determining subcategories. The following paragraphs describe the waste acceptance procedures generally performed at most CWT facilities. Before a CWT facility accepts a wastestream for treatment the CWT facility typically performs a pre-approval review of the proposed wastestream. This pre-approval process may include screening the waste for treatability and compatibilitywith both other wastes being treated and the treatment system. The waste generator initially furnishes the CWT facility information concerning the level of pollutants in the wastestream. Bench-scale treatability tests are typically performed to determine what treatment is necessary foreffective removal. At this point,the CWT facility decides whether to approve the wastestream for acceptance. If the wastestream is approved,each load received by the CWT facility is typically sampled to ensure thatitis consistent with the initially approvedwastestream. If the sample is similar,the shipmentof waste is accepted for treatment If the sample is dissimilar,butfalls within an allowable range as determined by the CWT facility, the CWT facility will reevaluate acceptance. This reevaluation may include additional testing. Once the reevaluation is completed the generator is contacted to discuss the discrepancy and reach a resolution. Please note that the level of screening is based on the source of the waste and the processes used. Figure 5-1 below is an example of a waste profile form. 5-1 DETERMINING THE APPLICABLE SUBCATEGORIES CWT SMALL ENTITY COMPLIANCE GUIDE ANYFIRM GENERATOR'S WASTE PROFILE NUMBER ANYTOWN,USA MATERIAL PROFILE SHEET (555)555.1212 _ NEW _AMENDMENT GENERATOR BROKER OR SALESPERSON Name Name Address Address Technical Contact Phorn Contact Phone Shipping Contact Phone TRANSPORTER Business Contact Phone Name EPA ID a Address Contact Phone EPA ID a WASTE DESCRIPTION Applicable Manufacturing Category(If any): CHEMICAL S PHYSICAL STATE _ Uquid. _ Mulplayered Odor Semi-liquid _ Bilayered TSS _ Solid _ Single Phase Color H Flash Point _ • 2 _ &10 %Bottoms Sediment _ 24 _ 10-12 %Debris /-8 •12 %Ash N/A Specific Gravity PROCESS DESCRIPTION (Describe Process generating wsale abeam. Include a list of virgin materials and their Material Safety Data Sheets.) CHEMICAL CONSTITUENTS METALS PPM Petroleum Phase Aoueous Phase Arsenic Magnesium Cadmium Mercury Chromium Nickel Co r Tin Lead Zinc OTHER CONSTITUENTS SHIPPING INFORMATION %0il(or Ppm 011) RCRA Code Shipping Method Volume allons Figure 5-1 Sample Waste Acceptance Form 5-2 DETERMINING THE APPLICABLESUBCATEGORIES CWT SMALL ENTITY COMPLIANCE GUIDE Furthermore, CWT facilities and waste generators complete extensive amounts of paperwork during the waste acceptance process. The amount of paperwork necessary for accepting a waste stream emphasizes the difficulty of operating CWT facilities. Finally,EPA emphasizes that while the CWT rule does notrequire waste segregation CWT facilities should encourage The CWT rule does not their waste generators to segregate their wastestreams (i.e., require waste segregation. EPA recognizes that keep metal bearing wastes separate from organic-bearing commingling wastes can be wastes). This will help CWT facilities comply with the CWT beneficial in certain cases. rule and more effectively utilize their treatment technologies. 5.2 Initial Subcategory Determination for Existing CWT Facilities Based oninformationprovidedbyCWC facilities duringthe developmentof the CWT rule, EPA has developed guidance for determining subcategorization. This guidance,which consists of three basic steps,is illustrated in Figure 5-2 below. For many CWT facilities,however,steps 1 and 2 will be sufficientto determine into which subcategory the wastes treated atits facility should be classified. Step 3 would only be necessary if the first two steps are inconclusive. This guidance will help facilities classify their incoming wastes into the metals,oils,or organics subcategory. A facility that accepts waste in more than one of these subcategories may also be classified as "mixed". This is detailed in Chapter 7. Incoming Waste Compare Waste For waste receipts that are Remipt Data Collection unknown or not listed in the Receipt Information -mBected when each � to Waste Receipt � table,receipt classification shipment is received at table,the facility should the facility. Classification Table. consult the numerical criteria. Figure 5.2 Subcategory Determination Procedure 5.2.1 Step 1:Waste Receipt Data Collection The first step in EPA's recommended subcategory determination procedure is to collect information on the incoming waste receipts. This data is usually collected at the point where the shipment is received by the CWT facility. Most(if not all)CWT facilities are already performing this step. EPA believes that the paperwork and analyses currently performed at CWT facilities as part of their waste acceptance procedures provide CWT facilities with sufficient information to complete this step. Figure 5-1 shows an example of a waste acceptance form typical of those used at existing CWT facilities. 5.2.2 Step 2: Compare Waste Receipt Information to Waste Receipt Classification Table In Step 2,the CWT facility should review data collected from its waste receipts for a period of one year.The CWT facility should use common senseto determine which subcategorythe waste falls into. To assist the CWT facility,it may use the waste classification table(Table 5-1)to classify 5-3 DETERMINING THE APPLICABLESUBCATEGORIES CWT SMALL ENTITY COMPLIANCE GUIDE each of its waste receipts for that one year period into Subcategory A (Metals), B (Oils), or C (Organics). If the CWT facility receives the wastes listed in the waste classification table, the subcategory determination may be made solely from this information. For purposes of this rule, the CWT facility need not determine the percentage of each type of waste within a subcategory or between subcategories. The CWT facility only need to determine what subcategory the wastes fall into:one ormultiple subcategories. When subcategory determinatlonis complete,the facility may refer to Chapter 6 for implementing the rule if only one subcategory applies or Chapter 7 if more than one subcategory applies. Table 5-1 Waste Receipt Classification Metals Subcategory -spent electroplating baths and/or sludges -metal finishing rinse water and sludges -chromate wastes -air pollution control blow down water and sludges -spent anodizing solutions -incineration wastewaters -waste liquid mercury -cyanide-containing wastes -waste acids and bases with or without metals -cleaning,rinsing.and surface preparation solutions from electroplating or phosphating operations -vibratory deburring wastewater -alkaline and add solutions used to clean metal parts or equipment Oils Subcategory -used oils -oil-water emulsions or mixtures -lubricants -coolants -contaminated groundwater clean-up from petroleum sources -used petroleum products -oil spill dean-up -bilge water -rinse/wash waters from petroleum sources -interceptor wastes -off-specification fuels -underground storage remediation waste -tank dean-out from petroleum or oily sources -non-contact used glycols -aqueous and oil mixtures from parts cleaning operations -wastewater from oil bearing paint washes Organics -landfill leachate Subcategory -contaminated groundwater clean-up from non-petroleum sources -solvent-bearing wastes -off-specification organic product -still bottoms -byproduct waste glycol -wastewater from paint washes -wastewater from adhesives and/or epoxies formulation -wastewater from organic chemical product operations -tank clean-out from organic,non-petroleum sources 5-4 DETERMINING THE APPLICABLESUBCATEGORIES CWT SMALL ENTITY COMPLIANCE GUIDE This classification is not inclusive of all possible wastestreams. It is simply a guidance of the typical wastestreams in each subcategory. 5.2.3 Step 3:Waste Characterization Using Numerical Criteria For wastestreams that are from non-specific sources or not listed in the waste receipt classification table,the facility should additionally complete Step 3. In Step 3,the facility should use data collected during the waste acceptance procedures to classify the waste into the appropriate subcategory. EPA recommends the CWT facility apply the following hierarchy: 1). If the waste receipt contains oil and grease at or in excess of 100 mg/L,the waste receipt should be classified in the oils subcategory; 2). If the waste receipt contains oil and grease <100 mg/L, and has any of the pollutants listed below in concentrations in excess of the values listed below, the waste receipt should be classified in the metals subcategory. Cadmium 0.2mg/L chromium 8.9mg/L copper 4.9 mg/L nickel 37.5 mg/L 3). If the waste receipt contains oil and grease < 100 mg/L and does not have concentrations of cadmium,chromium,copper,or nickel above any of the values listed above,the waste receipt should be classified in the organics subcategory. Atthis point the CWT facility has determined the applicablesubcategories and shouldrefer to Chapter 6 for implementing the rule if only one subcategory applies or Chapter 7 if more than one subcategory applies. 5.3 Follow-Up Subcategory Determination Procedures Once the CWT facility's initial subcategory determination(oils,metals,organics,or mixed) has been made, the facility will not need to repeat this determination process where its wastestreams remain consistent This includes accepting a new wastestream that is within the CWT facility's current subcategory. However,ifa CWT facility alters its operationto acceptwastes from a subcategoryoutside its permit(or to no longer acceptwaste from a subcategory),the facility should notify the appropriate permitting or control authority and the subcategory determination should be re-visited. EPA notes that current permit and pretreatment regulations require notification to the permitting or control authority when significant changes occur. EPA also recommends that a facility revisit its subcategory determination whenever the permit or control mechanism is re-issued,though this would not necessarily require complete characterization of a subsequent year's waste receipts if there is no indication that the make-up of the CWT facility's receipts had significantly changed. 5-5 DETERMINING THE APPLICABLE SUBCATEGORIES CWT SMALL ENTITY COMPLIANCE GUIDE 5.4 Subcategory Determination Procedures for New CWT Facilities New CWT facilities should estimate the percentage of waste receipts expected in each subcategory. Alternatively,the facility could compare the treatment technologies being installed to the treatment technologies selected as the basis for the limitations or standards for each subcategory. After the initial year of operation, the permit writer or control authority should reassess the facility's subcategory determination and follow the procedure outlined for the initial determination for existing facilities. Because of the variable nature of waste receipts at CWT facilities,EPA recommends issuance of short-term permits or control mechanisms for new CWT facilities. 5.5 On-Site Wastewater Subcategory Determination The sections above explain how an entity might approach classifying its off-site wastestreams. For other on-site generated wastewater sources such as those described in Chapter 4 (for example, contaminated stormwater, emulsion breaking wastewater, solubilization wastewater),wastewater generated in support of,or as the result of,activities associated with each subcategory should be classified in that subcategory. For facilities that are classified in a single subcategory,this step is unnecessary as the facilities should generally classify on-site wastewater in that subcategory. For facilities that are classified in more than one subcategory,and do not elect to comply with the multiple wastestream subcategory limits, the facilities should apportion the on-site generated wastewater to the appropriate subcategory. Certain waste streams may be associated with more than one subcategory such as stormwater, equipment/area washdown,air pollution control 'wastewater, etc. For these wastewater sources, the volume generated should be apportioned to each associated subcategory. For example, for contaminated stormwater, the volume can be apportioned based on the proportion of the surface area associated with operations in each subcategory. Equipment/area washdown may be assigned to a subcategory based on the volume of waste treated in each subcategory. Alternatively,permitting or control authorities may assign the on-site wastestreams to a subcategory based on the appropriateness of the selected subcategory treatment technologies. EPA notes that this is only necessary for multiple subcategory facilities which elect not to comply with the Multiple Wastestream Subcategory limitations or standards. 5-6 DETERMINING THE APPLICABLE SUBCATEGORIES CWT SMALL ENTITY COMPLIANCE GUIDE 5.6 Examples 5.6.1 Example A CINT facility has been operating for ten years and services 30 customers. Thus facility is located around auto manufacturers and mainly accepts metal finishing rinsewaters. Over the past two years the facilityhas also accepted used oils for recovery. It also accepts wastewaters from some customers that are unknown in origin, but which usually have oil and grease levels about 100 mg/L. This facility generates emulsion breaking/gravity separation wastewater and equipment cleaningwastewater. Italso collects and discharges rainwater collected on its property, but all of the CWT facility's activities occur inside a building. This facility may wish to review first all of its incoming waste receipts from the past year to ensure that the wastes listed above are the only wastes accepted for treatment. It may then compare its wastestreams to the waste receipt classification table. The waste classification table indicates that the metal finishing rinsewaters are classified in the metals subcategory and the used oils are classified in the oils subcategory. The wastes of non-specific origin can not be classified using the waste classification table, so this facility should utilize Step 3 for these wastes. The facility notes that these wastes usually have oil and grease levels in excess of100 mg/L. Therefore, based on thehierarchy established for Step 3,these non-specific wastes are also classified in the oils subcategory. Therefore,this facility is both a metals and an oils subcategory facility. This facilityalso discharges on-site generated wastewaters-emulsionbreakingwastewater and stormwater.The facilitymustdetermine if the discharge of these on-sitewastewaters is subject to the CWT rule (that is, defined as "CWT process wastewaters"). As described in Chapter 3, emulsion breaking wastewaters are subject to this rule. Stormwater,however,mayor may notbe subject to this rule. Based on the information provided,since the stormwater is collected outside the building,and there are no operations whatsoever outside,this stormwater is most likely non- contact stormwater and not a CWT process wastewater subject to this rule. Necessarily,if the non- contact stormwater is introduced prior to the monitoring location, the limits would be adjusted using the combined wastestream formula or building block approach to account for the stormwater. If the facility maintains a waste handling was outside the building and this stormwater comes in contact with this waste handling area, it is contact stormwater and is CWT process wastewater subject to this rule. If this facility elects to comply with the mixed waste subcategory,it does not need to classify these on-site CWT process wastewaters. If, however, the Facility elects to Non-contact stormwater is not CWT process wastewater and comply with the limitations or standards for the metals and oils subcategory separately,it will be additionally required does not need o y into a subcategory.. classified to classify the on-site CWT process wastewaters into the metals or oils subcategory. Clearly,the emulsion breaking wastewater and any wastewater associated with cleaning the treatment equipment for these wastewaters will be classified in the oils subcategory. Likewise,any wastewater associated with cleaning the treatmentequipment for the metals subcategory wastes will be classified in the metals subcategory. If the stormwater is contact stormwater and the facility collects the contact stormwater from dedicated areas of the facility for each subcategory,then these wastewaters would be classified accordingly. If these contact stormwaters are not collected from dedicated areas,the 5-7 DETERMINING EHE APPLICABLE SUBCATEGORIES _ _ CWT SMALL ENTITY COMPLIANCE GUIDE facility could sample the wastewater to determine the level of oil and grease. If these levels exceed 100 mg/L,then these wastewaters will be classified in the oils subcategory.The facility may use other methods as long as they can demonstrate to the pennittingorcontrol authority thatthese on- site wastewaters receive adequate treatment 5.6.2 Example I The following is a waste receipt log for a single day for a CWTfacility. Table 5-2 Sample Waste Receipt Log Customer Waste Type oil and grease Chromium nickel Volatile Organic Compounds (mg/L) (mg/L) (mg/L) (VOCs) (ug/L) 1 used ail 40,000 10 15 40 2 lubricants 50,000 2 50 non-detect 3 oily wastewater 250 non-detect non- 20 detect 4 leachate 20 12 39 100 5 metal finishing waste 15 200 1500 non-detect 6 bilge water 99 5 7 25 7 electroplating waste 150 100 3000 non-detect This facility would only need to complete Step 2 to determine the waste receipt classification for this day's waste receipts. All of the waste types are listed in the waste classification table. Used oils, lubricants, oily wastewater, and bilge water are all in the oils subcategory.Leachateisin the organics subcategory,and metal finishing and electroplatingwastes are fn the metals subcategory. This facility would notcomplete Step 3 since the waste receipt table generally takes precedence over the numerical criteria hierarchy. Notice, however, that if the wastewater from customer 6 was an unknown waste type,this facility would need to complete Step 3. Using this step,the wastewater from customer6 would be classified in theorganics subcategory. This is a different subcategory than was established using Step 2. 5-8 CHAPTER 6 SINGLE SUBCATEGORY FACILITIES hapter 6 provides guidance to aid small entities in determining what CWT subcategories may apply to their CWT discharges. Many CWT facilities are subject to discharge limits for a single subcategory only. This chapter describes how CWT facilities thataccept waste in only one CWT subcategory may comply with the CWT rule. 6.1 How Will the Permitting or Control Authority Establish My Limitations or Standards? An adequate waste management program is an important ingredient of a successful wastewatertrmtmentsystematCWTfacilities.The permitting orcontrol authority shouldconfirm the CWT facility's single subcategory determination by looking at a sampling of the waste receipts at the CWT facility. The permitting or control authority will than establish the appropriate discharge limitations or standards. Available guidance in calculating NPDES categorical limitations for direct discharge facilities can be found in the U.S. EPA NPDES Permit Writers' Manuel(December 1996,EPA-833-B-96-003). Sources of information used for calculating Federal pretreatment standards for indirect discharge facilities include 40 CFR Part 403.6, the Guidance Manuel for the Use of Production-Based Pretreatment Standards and the Combined Waste Stream Formula (September 1985) (CWF Guidance), and EPA's Industrial User Permitting Guidance Manual(September 1989). 6.2 What Compliance Options Do Facilities That Accept Wastes in a Single Subcategory Have? CWT facilities that are subject to effluent limitations and standards for more than one subcategory have a choice of either complying with limitations or standards determined for each applicable subcategory or complying with a single set of limitations and standards for multiple wastestreams.A single subcategory facility does not have a similar option and must comply with the limitations or pretreatment standards for the applicable subcategory(i.e.a metals subcategory must comply with the limitations(or standards)for the metals subcategory,etc.) 6.3 How Will the Permitting or Control Authority Incorporate the Cyanide Limit in the Metals Subcategory? Whenever a CWT facility accepts a waste stream that contains more than 136 mg/L of total cyanide, the CWT regulation requires that the CWT facility monitor for cyanide when the wastewater exits the cyanide destruction process rather than after mixing with other process wastewater. Alternatively,under the regulations, the facility may monitor for compliance after mixing if the permitting or control authority adjusts the cyanide limitations(or standards)using the "building block approach" or "combined waste stream formula;' assuming the cyanide 6-1 limitations do not fall below the minimum analytical detection limit For further information on the "building block approach" or "combined waste stream formula', see Section 14 of Develoument Document for Effluent Limitations Guidelines and Standards for the Centralized Waste Treatment]ndustry-Final. (EPA 821-R-00-020,referred to herein as TDD) and the CWF Guidance referred to in 6.1 above. 6-2 CHAPTER 7 MULTIPLE SUBCATEGORY FACILITIES PA estimates that many facilities in the CWT industry accept wastes in two or more subcategories(a combination of wastes in Subcategory A,B or C). This chapter describes how CWT facilities that accept wastes in more than one subcategory A multiple subcategory facility accepts wastes in may comply with the CWT rule. more than one CWT subcategory. It is different from the case in which metal-bearing waste streams may 7.1 What Steps Should I Take To Help include low-level organic pollutants or that oily wastes may include low level metal pollutants due to Ensure Compliance with My the origin of the waste stream accepted for treatment. Limitations or Standards? - An adequate waste management program is an important ingredient of a successful wastewater treatment system at CWT facilities. The firststep in such a systemis identification and segregation of wastestreams. By identifying and segregating waste streams in different subcategories to the extentpossible,a CWTfacility is more likely to ensure obtaining optimal mass removals of pollutants from industrial wastes. Next,the CWT facility should employ treatment technologies designed and operated to optimally treat all off-site wastes received,as appropriate. For example,biological treatment is inefficientfor treating concentrated metals waste streams like those found in the metals subcategory or wastestreams with oil and grease compositions and concentrations like those found in the oils subcategory. In fact,concentrated metals streams and high levels of oil and grease compromise the ability of biological treatment systems to function. Likewise, emulsion breaking/gravity separation, and/or dissolved air flotation is typically insufficient for treating concentrated metals wastewaters or wastewaters containing organic pollutants which solubiliu readily in water. Finally,chemical precipitation is insufficient for treating organic wastes and waste streams with high oil and grease concentrations. This step is only required for facilities that elect to make an equivalent treatment determination. Once the CWT facility is segregating its wastestreams and has appropriate treatment technologies in place for all off-site wastes received,as appropriate,the CWT facility should make sure it is operating its treatment technologies optimally. Finally,simply employing appropriate technologies may not ensure compliance with the regulations. It is equally important that the CWT facility operate these treatment technologies effectively. 7-1 MULTIPLE SUBCATEGORY FACILITIES CWT SMALL ENTITY COMPLIANCE GUIDE 7.2 What Compliance Options Do Facilities Have if they Accept Wastes from More Than One Subcategory? Multiple subcategory facilities may comply with this rule in one of two ways. Facilities may: 1. elect to comply with the effluent limitations or standards for each applicable subcategory directly following treatment(before commingling with different subcategory wastes);or 2. certify equivalent treatment and comply with one of the four sets of limitations or standards for the mixed waste subcategory (Subcategory D). Each of these options is discussed further below. The choice of compliance is up to the CWT facility. The percentage of waste in a particular subcategory is irrelevant to the compliance method selected by the CWT facility. 7.2.7 Comply with Limitations or Standards for Subcategory A,B or C If a multi-subcategory CWT facility elects to comply with each applicable subcategories limitations or standards individually, the CWT facility must monitor for compliance with each subcategory's effluent limitations or standards prior to commingling wastestreams from different subcategories. For example,a CWT facility may accept metal finishing rinsewaters and used oils for treatment and recovery, hi this case,the CWT facility must treat/recover the metal finishing rinsewaters and monitor for compliance with the metals subcategory limitations(or standards)and treat/recovery the used oil and monitor for compliance with the oils subcategory limitations (or standards). In other words,the examplefacility mustmonitor in two separate locations for the two different sets of subcategory limitations(or standards). This option can be beneficial in the case of CWT facilities that have separate treatment systems for their incoming waste receipts,for facilities that only accept a small amount of waste in one subcategory,or facilities that do not want to complete the paperwork required to demonstrate Multiple subcategory CWT facilities equivalent treatment. However, compliance that comply with each subcategory's monitoring costs for this option will be more limitations separately do not have to expensive since it requires monitoring at more than demonstrate equivalent treatment. one sample point. Figure 7-1 and the example 7-1 below illustrate this option. 7-2 MULTIPLE SUBCATEGORY FACILITIES CWT SMALL ENTITY COMPLIANCE GUIDE Example 7-1 Facility A accepts wastes in all three CWP subcategories with separate subcategory treatment systems and has elected to comply with each set of pretreatment standards separately. Thisfacility treats 20,000 4/day ofinetal-bearing wastes,10,00011day of oily wastes,and 45,000, L/day of organic wastes and discharges to its local POTW. Metals Waste Oils Waste Organics Waste 20,000 L/day 10,000nyL/day 45,000�nyL/day V V Metel6 Oil6 FT -gill V V Sample Point 1 .Sample Point 2 Sample Point 3 Figure 7-1 Facility Accepting Waste in All Three Subcategories With Treatment in Each For this example, the control authority establishes monitoring points 1, 2, and 3. The control authority requires that the facility complywith the metals subcategorypretreatme It standards at Sample Point 1,the oils subcategory pretreatment standards at Sample Point 2,and the organics subcategory pretreatment standards at Sample Point 3. Note that the specific analytes requiring compliance monitoring vary at each sampling point since the pollutants regulated vary among subcategories. 7.2.2 Comply with Limitations or Standardsfor SubcategoryD If a multi-subcategory CWT facility elects to comply with the limitations or standards for Subcategory D,then the permitting or control authority will establish a single monitoring point prior to discharge and apply the appropriate set of limitations or standards from Subcategory D. This option can be beneficial in the case of existing CWT facilities that have sequential treatment systems or to facilities that want to monitor at a single point. For example, if a CWT facility accepts wastes in both the metals and oils subcategory, the permitting or control authority establishes limits or standards for Subcategory D facilities that commingle wastes from Subcategories A and B. Examples 6.2 and 6-3 illustrate this approach. EPA notes that under this approach,thepermftdng or control authoritymustallow amulti-subcategoryfaciEty tocommingle wastestreams prior to discharge. Also, facilities that select this compliance method must first establish equivalent treatment as detailed in Chapter S. 7-3 MULTIPLE SUBCATEGORY FACILITIES CWT SMALL ENTITY COMPLIANCE GUIDE Example 7-2 Facility B accepts wastes in all three CbVT subcategories with separate subcategory treatment systems and has elected to comply with Subcategory D pretreatment standards at a combined outfall. This facility treats 20,000 L/day of metal-bearing wastes, 10,000 1/day of oily wastes,and 45,00011day of organic wastes and discharges to its local POTW. Metals Waste Oils Waste Organics Waste 20,000J\�7/L/day 10,000 L/day 45,000 L/day V nQClals' C]I]6 T.=:t ring Pooint V D scharge 75,000 L/day Figure 7-2 Facility Accepting Waste in All Three Subcategories With Treatment in Each and Combined Outfall First, the CWT facility must demonstrate equivalent treatment far all three subcategories. The control authority then establishes a Facilitiea may only single monitoring point. The control authority requires the facility use this approach if to comply with Subcategory D pretreatment standards for facilities they eatabliah which commingle wastea from Subcategory A, B,and C. . equivalent treatment. 7-4 MULTIPLE SUBCATEGORY FACILITIES CWT SMALL ENTITY COMPLIANCE GUIDE Example 7-3 Facility Caccepts waste in the oils and metals subcategory. The total volume ofwastewater discharged to the local POTW is 100,000 liters per day. The facility segregates oils and metals waste receipts and first treats the oils waste receipts using two stage emulsion breaking/gravity separation and dissolved air flotation. The facility then commingles this wastewater with metal subcategory waste receipts and treats the combined wastestreams using primary and secondary chemical precipitation and solid/liquid separation followed by multimedia filtration. Metals Waste Oils Waste Discharge Oils Metals Monitormg Treamreat b I reatmen1C===>- point b Figure 7.3 Facility Accepting Wastes in Multiple Subcategories and Treating Separately First, the CWT facility must demonstrate equivalent treatment for the metals and the oils subcategory. Like example 7-2, the control authority then establishes a single monitoring point. This monitoring point follows the metals treatment. The control authority requires the facility to comply with Subcategory D pretreatment standards for facilities which commingle wastes from Subcategories A and B. 7.3 How Will the Permitting or Control Authority Incorporate the Cyanide Limit in the Metals Subcategory? Whenever a CWT facility that is a small entity accepts a waste receipt that contains more than 136 mg/L of total cyanide,the CWT facility must monitor for cyanide when the wastewater exits the cyanide destruction process rather than after mixing with other process wastewater. Alternatively, the facility may monitor for compliance after mixing if permitting or control authority adjusts the cyanide limitations using the"building block approach"or"combined waste stream formula," assuming the cyanide limitations do not fall below the minimum analytical detection limit. For further information on the"building block approach" or"combined waste stream formula",see Section 14 of the TDD. Example 7.4 illustrates this approach. 7-5 MULTIPLE SUBCATEGORY FACILITIES CWT SMALL ENTITY COMPLIANCE.GUIDE Example 7-4 Facility C in example 7-3 also accepts concentrated cyanide baths. Metals Waste with Cyanide MCy&nide Oils Waste j 4 Discharge Oils V Metals Discharge Treatment c Treatment C� Monitoring Point Figure 74 Facility Accepting Multiple Subcategory Wastes(including Cyanide)and Treating Separately In addition to monitoring for compliance with the multiple wastestream subcategory pretreatment standards for a combination of metals and oils wastes, this facility would be required to monitorfor compliance with cyanide pretreatment standards. Alternatively,the control authority may allow the facility to monitor for compliance with the cyanide pretreatment standards at the monitoring point at the point of discharge if the control authority adjusts the limit appropriately and that limit does not fall below the minimum analytical detection limit. 7-6 CHAPTER 8 EQUIVALENT TREATMENT DETERMINATION s described in Chapter 7, a CWT facility that accepts wastes in mom than one CWT subcategory may elect to comply with the appropriate set of limitations or standards for Subcategory D. A facility, however,may only elect to comply with the Subcategory D limitations or standards if it has established that it is providing"equivalent treatment" Providing equivalent treatment means that the facility is providing treatment for its mixed wastewater that is designed to ensure pollutant removal that are essentially the same as would be obtained from separate treatment of the different subcategory wastestreams. If a facility cannot establish equivalent treatment then it must comply with each applicable subcategory's limitations or standards individually. This chapter provides guidance to CWT facilities on how to establish equivalent treatment. 8.1 Introduction Before a multi-subcategory CWT facility may elect to comply with effluent limitations or standards from Subcategory D,it must first demonstrate equivalent treatment for each applicable subcategory.The CWT rule defines equivalent treatment as"a wastewater treatment system that achieves comparable pollutant removals to the applicable treatment technology selected as the basis for the limits and standards." The permitting or control authority makes the equivalent treatment determination. The CWT facility needs to provide its permitting or control authority with the information and data needed to make this determination. The CWT rule defines three things a CWT facility must do to demonstrate equivalent treatment. The facility must: 1. submit an initial certification statement; 2. submit periodic certification statements;and 3. maintain on-site compliance paperwork. Each of these requirements are discussed in more detail below. 8.2 Initial Certification Statement 8.2.I What is an Initial Certification Statement? The initial certification statement is a written submission from a CWT facility to the appropriate The initial certification permitting authority certifying that its treatment train statement should be signed by includes all applicable equivalent treatment systems. It the same person who signs the must be signed by the responsible corporate officer as compliance status reports. s-I EouyALENT TREATMENT DETERMINATION CWT SMALL ENTITY COMPLIANCE GUIDE defined in 40 CFR 403.120)or 40 CFR 122.22. It should also be kept on file at the CWT facility as part of the required on-site compliance paperwork. 8.2.2 When Does the Facility Have to Submit the Initial Certification Statement? The CWT facility must notify its permitting or control authority of its desire to be subject to Subcategory D limitations or standards by submitting an initial EPA suggests that an indirect CWT facility planning to certification statement Table 8-1 comply with the multiple wastestmam subcategory outlines when CWT facilities must standards notify its control authority of this intent and submit an initial certification statement also state,based on its BMR submission,whether it can or cannot comply with the standards currently. Table 8-1 Initial Certification Dates Type of CWT Facility Required Initial Certification Statement Date Submission Must Be Made to: Existing Direct Discharger at the time of permit renewal or modification NPDES permit writer Existing Indirect Discharger prior to December 22,2003' control authority New Direct Discharger at the time of submitting its application for NPDES permit write permit New Indirect Discharger at the time of submitting its application for an control authority individual control mechanism 8.2.3 What Does a CWT Facility Have to Include in an Initial Certification Statement? The CWT rule requires the initial certification to include three items: 1. A list and description of the subcategories of wastes accepted for treatment at the CWT facility; 2. A Hat and description of the treatmentsystems atthe CWT facility and the conditions under which the treatment systems are operated for the subcategories of wastes accepted for treatment and 3. Information and supporting data establishing that these treatment systems will achieve equivalent treatment. The following sections provide guidance to small entities that are CWT facilities on how EPA envisions these materials should be submitted. 'Facilities need to submit the initial certification to their control authorities well in advance of this date to ensure multiple wastestream pretreatment standards are in effect by t1r s date. 8-2 EQUIVALENT TREATMENT DETERMINATION CWT SMALL ENTITY COMPLIANCE GUIDE I turn 1:List and description of the subcategories of wastes accepted for treatment at the facility While not required,CWT facilities may use the guidance provided in Chapter 5 to aid in determining whatsubcategories of wastes are accepted for treatment/recovery atthe facility. The list of wastes accepted for treatment at the facility may be general(i.e.,landfill leachate,used oil, metal finishing wastewater)or may be more specific(i.e.,broken down by RCRA codes or waste codes). Based on information collected by EPA during development of this rule,CWT facilities already collect this type of information as part of their waste acceptance procedures. Table&2 is an example of the type of information EPA envisions facilities submitting to document the wastes accepted for treatment at the facility. Table 8-2 Types of Wastes Accepted at Acme CWT oils subcategory metals subcategory used oil spent electroplating sludges lubricants metal finishing rinse waters coolants waste adds or bases with metals oil-water emulsions non-contact used glycols Item 2: A list and description of the treatment systems at the facility and the conditions under which the treatment systems are operated for the subcategories of wastes accepted for treatment The facility should provide information on the treatment systems for each subcategory identified in Step 1 above. This should include a listing of each treatment technology step that will be used(not which is present at the facility)to treat the wastestreams. In EPA's view,this should include a flow diagram of each treatment system as well as a written discussion. This written discussion should include pertinent information on the operation of each treatment step such as the type of treatmentchemicals included in a chemical precipitation step. Figure 8-1 is an example of the level of detail envisioned by EPA. 3-3 EQUIVALENT TREATMENT DETERMINATION CWT SMALL ENTITY COMPLIANCE GUIDE MEMORANDUM July 1,20xx FROM: Jane Doe,Plant Supervisor,Acme CWT 91!5� TO: Pretreatment Coordinator,City POTW SUBTACT: Equivalent Treatment Determination for CWT Regulation The Acme CWT facility treats both oils and metals subcategory wastes. As illustrated below, some oily wastewater is sent directly to oil/water separation tanks where gravity oil/water separation occurs. Others do not separate efficiently using gravity alone and are truvferred to the emulsion breaking tank where heat and/or treatment chemicals may be added W break the emulsions. The temperature and treatment chemicals vary depending on the emulsion being treated. Treatment chemicals may include polymer,sulfuric add,and/or alum. The resulting wastewater from the ofl/water separation phase is than treated by dissolved air flotation. The DAF system consists of a 3,000 gallon slow-mix tank,a DAF unit,chemical mix tanks,metering pumps for each chemical,and in-line mixers. The treatment chemicals added to the DAF vary depending on the wastewater being treated and may include polymer or caustic. The total detention time of the DAF system is 50 to 100 minutes. Wastewater from the DAF is than commingled with treated metals subcategory wastewater for Mal discharge. Metals subcategory wastewaters are treated in a system which consists of primary and secondary metals precipitation. Primary precipitation treatment occurs in the primary treatment tanks where lime is added. The precipitation is carried out at ambient temperatures with pH ranging from 8 to 9.5. Caustic or waste sulfuric acid may also be added W maintain pH. Other chemicals such as sodium sulfide or potassium permanganate may also be added. The resulting wastewater is then sent to a clarifier. Following clarification,the wastewater is processed through a second precipitation step. Once again the precipitation is carried out at ambient temperatures and the pH varies depending on the specific metals being removed from the wastewater. Treatment chemicals may include caustic,sulfuric acid,lime,or ferric chloride. The resulting wastewater is then clarified and commingled with treated oils subcategory wastewater. Non-Emulsified Oils Waste Emulsified Oils Waste Emulsion Gravity Dissolved Breaking j Separation Air Flotation Metals Waste Primary Secondary Chemical Clarification Chemical Clarification Precipitation Precipitation Figure 8.1 Sample Memorandum for Equivalent Treatment Determinations 8-4 EQUIVALENT TREATMENT DETERMINATION CWT SMALL ENTITY COMPLIANCE GUIDE Item 3:Information and supporting data establishing that these treatment systems will achieve equivalent treatment. The CWT rule defines equivalent treatment as a "wastewater treatment system that achieves comparable pollutant removals to the applicable technology selected as the basis for the limitations and pretreatment standards. Comparable removals may be demonstrated through references in technical and engineering treatises,journals or other literature, treatability tests,or self-monitoring data." The most common measurement of pollutant removals is percent removal which measures the amountofcontaminantremoved from the wastestream. Calculatlonofpercent removals is discussed in more detail in Chapter 7 of the technical development document and is: (MASSim..- MASSeffl.)/MASSyN,.., EPA calculated the percentremovals for each regulated pollutantusing The treatment technologies selected the data included for developing the limitations and as the basis for the limitations and standards in each subcategory. Tables 8.3 and 8-4 show pretreatment standards are listed in these pollutant removals. CWT facilities can use the Table 3-1 in Chapter 3. information in these tables to compare the pollutant removals achieved by their selected technologies to EPA's technology basis. Table 8-3 Removal Efficiencies for Indirect Discharging CWT Treatment Systems Oils Subcategory Oils Subcat. Oft Subcat. Metals Subcategory Metals Submit. Organics Subcategory Organim Subcat, Pollutant Parameter Existing New Pollutant Parameter Existing 8 New Pollutant Parameter Existing 8 Source Source Source New Source Removal M Removal % Removal % Removal % CLAssn ALs CIASSIMS CLASSICALS Toler Cyanide 64.38 64.38 Hexavaient Chromium 98.01 Total Cyanide 33.46 Total Cyanide 9S30 METALS METALS METALS Antimony 87.99 87.99 Antimony 94.30 Antimony 33.27 Arsenic 57.64 57.64 Arsenic 91.74 Cobalt 17.31 Barium 91.91 91.91 Cadmium 99A7 Copper 38.04 Cadmium 88.07 88.07 Chromium 99.91 Molybdenum 57.10 Chromium 80.54 86.24 Cobalt 98.47 Silicon 4.71 Cobalt 52.20 52.20 Copper 99.91 Strontium 59.51 Copper 91.09 90.02 Iridium 99.69 Zinc 60.51 Lead 92.64 88.26 Lead 99.95 Mercury 77.43 77.43 LHhium 66.63 ORGANICS Molybdenum 53.73 53.73 Mercury 98.38 2butanone 69.20 Nickel 41.24 41.24 Molybdenum 26.40 2-propanone 68.57 Selenium 36.94 38,94 Nickel 99.59 2,3-0Itl6oroaniline 80.45 Sitoon 54.16 54.16 Selenium 57.54 2,4,fi4richbroDhend 45,16 8-5 EQUIVALENT TREATMENT DETERMINATION CWT SMALL ENTITY COMPLIANCE GUIDE Table 8-3 Removal Efficiencies for Indirect Discharging CWT Treatment Systems Oils Subcategory 011s Subcat. Oils Submit Metals Subcategory Metals Subcat. Organics Subcategory Organics Subcat Pollutant Parameter Existing New Pollutant Parameter Existing&New Pollutant Parameter Existing& Source Source Source New Source Removal Removal Removal % Removal % Stw1lum 50.68 50.68 Silicon 98.58 Aostophenone 92.44 Tin 90.77 90.77 Silver 99,62 Aniline 92.88 Titanium 89.99 89.99 Strantum 95.89 Benzoic Acid 94.29 Zinc 80.33 83.48 Tin 99,94 n,n. 89.26 Dimethylformamide Titanium 99.94 oCrcacl 98.39 OR NICS Vanadlum 99.46 p-Cresol 85.38 2-Butanooe 15A1 15.41 Ytlrlum 95.39 Pentaollarophenoi 23.19 4chloro-3-mebhylphend' - 27.48 Zinc 99.93 Phenol 87.08 Acenaptheoe 96.75 96.75 Zimonlum 42.13 Pyridine 61.69 - Alpha-terpineol 94.77 94.77 Anthracene 97.07 96.67 0RGANics Berm(a)anthracene 94.38 95,69 2-Butanone 74,72 Benmic add 6.54 19.32 2-Propmone 65.62 Bhs(2- 93.22 93.66 Benmio i0 82,99 Butyl benzyt phthalate 92.19 .92.19 n,n. 54.81 Oimethytlormamlde Carbazole 81.09 81.09 Pyddlw 48.49 Chrysene 9&93 97.22 Diethyl phthalate 77.01 63.97 Fluoranthene 96.24 95.21 Fluorine 95.32 92.86 n-Decane 97.36 94S8 n-Owmane 97.25 96.87 n-Dodecane 94.14 96.50 nnZcosane 95.88 95.54 n-11madecane 97.38 96.53 n-Octadecane 97.32 97.20 n-Tanadecane 97.26 96.85 ocrcsd• - 21.08 peresol` - 34.88 Phenol 53.68 14.8E Pyrene 97.10 97.83 Pyridine 21.45 21A5 Not applicable for E)dstirsg Sources 8-6 EQUIVALENT TREATMENT DETERMINATION CWT SMALL ENTITY COMPLIANCE GUIDE Table 8-4 Removal Efficiencies for Direct Discharging CWT Treatment Systems Ole Subca"ory Oft Subcet. Halals Subcategory Melels Subcat. Metals Subcategory Metaa Subcet. Organic Organics Suboat Pollutant Panamanian Existing& Pollutant Pentameter Existing Source Pollutant Parameter New Source Subcategory Existing& New Source Removal(%) Rem"(%) Pollutant Paannam New Swrc Rar l % Removal % CusscaLs CLASSICAL L$ Total Cyanide 64.38 Hexavelenl Chromium 98.01 TSS 99.97 ToW Cyanlda 33,46 Totel Cyanide 99.30 METAS METALS METALS Antimony 99.76 METALS Antimony 87.99 Anthony 94.30 Arsenic 99.87 Antimony 33.27 Antonio 57.64 Anenk 91.74 Cadmium 99.98 Cobalt 17.31 Barium 91.91 Cadmium 99.97 ChmmNm 99.98 Copper 38.04 Cadmium 88,07 Chramlum 99.91 Cobalt 99.76 Moybdenum 57.10 Chmmlum 86.24 Cobalt 98.47 Copper 100.00 Silicon 4.71 Cobalt Ell Copper 99.91 Lead 99.79 Sbanaum 59.51 Capper 90.02 I6dlum 99.69 Marory 99.89 Zinc 60.51 Lead 88.26 Lod 99.95 Molybdenum 40.11 Mercury 77.43 UPlum 66.83 Mckal 99.86 onal Molybdenum 53.73 Mercury 98.38 Selenium 94.33 2�auhnone 69.20 Nickel 41.24 Molybdenum 26.40 Slim 99.61 2-pmpanone 68.57 Selenium 36.94 Mckel 99.59 Tin 99.89 2,3Ehalorcmiline 80.45 Silicon 54.16 Selenium 57.54 Titanium 99.78 2,4,64rkhlogihend 45.16 Stronfium 50.68 Silicon 98.68 Vanadium 98.95 ACMphemmne 92.44 Tin 9071 SINer 99.62 Zinc 99.99 Anllha 92.88 Titanium 69.99 StranBum 95.89 Beal 94.29 Zinc $3.48 Tin 99.94 Nn- 59.26 Dimetylkomamke Titanlum 99.84 mcr 98.39 ORGuNICS Vanadium 99.46 "rod 65.38 2-BuRnone 16A1 Ybdum 95.39 Penlechkrophend 23.19 4-chll 27.48 Zinc 99.93 Phemd 87.08 malhylphend' Acemepthens 9675 ziconlum 42.13 Poll 61.69 Alpha-unpined 94.77 Anihracene 96.67 ORm cs Ban(a)antmacoe 95,69 2-Butenona 74.72 Benrdc add 19.32 24'ropemone 65.62 13*2a ylhexyl) 93.66 Bprcdc Ante 82.99 phhelale Butyl bandy)phthelaW 92.19 iLn-0Imelhytiormamlde 54.81 Oarberde 81.09 Primal 48.49 Chryeena 97.22 troll plithalat, 63.27 Fluaenthene 95.21 Fluorwe 92,86 mOscene 94,98 mDocoome 96.87 n-Dodecane 98,50 n-Eicossma 95,54 mHexedncene 96.53 n-0dedecane 97.20 n-Teredecane 96,85 ocreed' 21.09 8-7 EQUIVALENT TREATMENT DETERMINATION CWT SMALL ENTITY COMPLIANCE GUIDE Table S4 Removal Efficiencies for Direct Discharging CWT Treatment Systems Ob Subcetagory Ole Subat Motels subcategory Metals Subrat. Metals Subctegory Metals Subcal. Drgania Organks Subcat Pollulent Parameter Erdtlng6 Pollutent Patemear ExIdng Source Pdlutant Parameter New Same Subcategory Exatnga New Saw Removal(%) Removal(%) Pollutent Parameter New Source Removal % Removal % Pbrosd' 34.68 PMnol 14.88 Pyrma 97.63 Pyddlre 21.45 For the Acme CWT facility described in Figure& T above, the facility could simply state that it uses the An evaluation of equivalent selected as the basis for the treatment should focus On same technologiestreatment effective treatment of each limitations and standards for the oils and metals subcategory's wastes in the subcategory,and has therefore demonstrated equivalent treatment train. The goal is not to treatment. However,a CWT facility does not need to evaluate combined wastestreams use the treatment systems selected as the basis of the from different subcategories. limitations and EPA included this standards to demonstrate equivalent treatment. As defined, requirement so that pollutant equivalent treatment may be demonstrated through reductions would be through literature studies,treatability tests,or self-monitoring data, treatment rather than dilution. or a combination of these. Each of these are discussed further below. Demonstrate equivalent treatment through literature Effective treatment technologies can be identified through a variety of sources including The National Risk Management technical literature, treatability databases, and Research Laboratory's(NRMRL) treatment vendors. Treatability testing can similar Treatability Database can be accessed wastewaters may provide clues on how to effectively on-line: www.epa.gov/tdbn:mrl treat a particular wastewater. Treatment technology vendors should have information on the capabilities of their treatment systems. A CWT facility may use information from any of these sources, if available, to demonstrate that a particular treatmentsystemwill achievecomparable removals to EPA's model technologies.Thisoptionmay be particularly useful if a facility has actual removal data for a particular technology for some regulated pollutants and not others, but can demonstrate through literature sources that the pollutants should be treated in a similar manner. Demonstrate equivalent treatment through treatability tests Literature sources are a good method for evaluating various treatment technologies,but treatability tests may also be required to demonstrate that a particular technology has comparable removals to the-model technologies selected as the basis for the Wile.For example,a facility may have literature information that carbon adsorption is effective for the removal of n-dodecane,but s-8 EQUIVALENT TREATMENT DETERMINATION CWT SMALL ENTITY COMPLIANCE GUIDE does not have information on n-decane. Because these chemicals have similar structures, one would expect them to behave similarly. However, a treatability test would provide the CWT facility with the additional data which confirm the equivalent treatment demonstration. Many CWT facilities already perform treatability tests to obtain optimum pollutant removals and identify alternative treatment schemes. A treatability test may also allow a facility to identify surrogate parameters that may be used on an on-going basis to demonstrate equivalent treatment. When conducting a treatability test,facilities may only test the individual treatment unit operations. However,if a facility intends to implement an entire treatment traky testing the entire train may reveal important information about how the wastewater characteristics change with each treatment step. Testing the wastewater through the entire treatment train can help troubleshoot the system and determine whether pretreatment steps are adequate to preventmalfunctioning of other unit operations in the treatment train. It is not always necessary to treat a large volume of wastewater in treatability tests, and often valuable information can be acquired from smaller scale tests. Treatability tests are typically categorized based on size as bench-,pilot and full-scale test. A bench scale test is typically used to screen treatment technologies or determine initial design and operating parameters, and is typically conducted on one gallon or less of wastewater. Bench scale tests use laboratory equipment(for example,beakers,hotplates,and stirring rods)andmay be conducted on synthetic wastewater(thatis,distilled water spiked with a known concentration of contaminants). A bench scale test requires less cost and effort because of the smaller volume of wastewater tested and the basic equipment used. In addition,a bench scale treatability test may involve less sophisticated sampling and analysis,and may use indicator parameters or visual appearance of the wastewater instead of laboratory analysis to gauge test results. A pilot scale test is conducted on actual wastewater, and is typically used to optimize design and operating parameters and to troubleshoot treatment problems before constructing a full-scaletreatmentsystem. Actual wastewatermay contain surfactants,chelates,orimpurities that may interfere with treatment. The test is generally intermediate in size. Pilot scale tests typically use smaller and simpler equipment than wouldbe found in a full scale system,suchas buckets and drums instead of treatment tanks. These systems may also use temporary equipment that can be disposed of after the test instead of permanently installed. A full scale treatability testisconducted on actual wastewater using the actual size and type of equipment to be used for routine treatment. If a CWT facility elects to demonstrate equivalent treatment through treatability tests, it needs to submit a detailed description of its treatability tests as well as the results. The detailed description should include the type of treatability test and the parameters used for evaluation. Operating parameters and information on the wastes treated should also be submitted. Figure B-2 is an example of a treatment test summary that may be submitted as part of an equivalent treatment demonstration. The example shows treatability tests using oils subcategory wastes. 8-9 EQUIVALENT TREATMENT DETERMINATION CWT SMALL ENTITY COMPLIANCE GUIDE Facility: Location: a Data: Prepared by: Insert vour Optimal treatment train and operating mameters In the svace reovided below: Sulfuric Acid Caustic and and Polymer Lime Addition n PH adjustment Addition CIIVI�Y Emulsion Chemical Carbon Brealdn8Y Precipitation Adsorption Emulsified &Settling Treated Oils Wait Effluent pH-2 PH-8 PH-7 T-60degC T-25 degC T-25 dog 24 hour settling time I hour detention time flmo rate-87 mhfmin empty bed residence time-15 min Technology Pollutant pH Temp, Treat Constituent Test CWT deg.C Time Concentration % BAT Influent Effluent Rem % m /L L Rem n-decane 2 60 24 hr. 1,000 700 30.0 Emulsion cmbazole 2 60 24 hr. 2500 2000 20.0 breaking fluoranthene 2 60 24 hr. 3,000 2,000 33.3 chromium 2 60 24 hr. 230 150 34.8 Single stage chromium 9 25 1 hour 150 1 99.3 precipitation n-decane 7 25 15 min 700 10 98.6 Carbon carbazole 7 25 15 min 2000 20 99.0 fluoranthene 7 25 15 min 2000 40 98.6 Figure 8-2 Sample Treatment Test Summary For the parameters listed,this information indicates that the treatment systems evaluated achieve comparable removals to the treatment systems selected as the basis for the C W T limitations and pretreatment standards. Alternatively,if a treatment technology only removes 30 percent of a parameter,but that parameter is removed to below its detection limit or to the required discharge limits or standards,this would also demonstrate comparable removals. 8-10 EQUIVALENT TREATMENT DETERMINATION CWT SMALL ENTITY COMPLIANCE GUIDE Self Monitoring Data The CWT facility may also provide the permitting or control authority with self-monitoring data to establish equivalent treatment. This is essentially the same as conducting a full-scale treatability test discussed above. It is important to remember that this self-monitoring data must demonstrate equivalent treatment for each individual subcategory and should not include commingled wastewater from different subcategories or non-CWT wastewater such as stormwater. The information submitted should be similar to that submitted for treatability tests and should include a summary table similar to Table 8-3. Self-monitoring data from the treatment system as employed on actual waste receipts is the most fool-proof method for demonstrating equivalent treatment. 8.3 Periodic Certification Statement 6.3.1 What Is a Periodic Certification Statement? The periodic certification statement is a written submission to the permitting or control authority that certifies the facility is operating its treatment systems to provide equivalent treatment as set forth in its initial certification. In the event that the facility has modified its treatment systems,it must also include a justification to allow modification of the practices listed in its initial certification. The rule provides that the statement must be signed by the appropriate manager in charge of overall operations at the site to ensure that information provided is true, accurate,and complete to the best of his/her knowledge. Again,this manager should be the same person who signs compliance status reports required by 40 CFR 403.12(l) or 40 CFR 122.22. The periodic certification statements should also be kept on file at the facility as part of the required on- site compliance paperwork. 8.3.2 When Does a CWT Facility Have to File the Periodic Certification Statement? The CWT rule requires the CWT facility to submit a periodic certification statement once per year. The permit writer or control authority should determine the required month of submissionof the periodiccertification statementand includethis in thefacility's discharge permit or control mechanism. 6.3.3 What Information Should Be Included in the Periodic Certification Statement? If the information contained in the initial certification statement is still applicable,including Information on the subcategory type for wastes accepted for treatment a facility shall simply state that in a letter to the permit writer or control authority,and the letter shall constitute the periodic statement. However,if the facility has modified its treatment system or the subcategories of wastes accepted for treatment,it shall submit the revised information in a manner similar to the initial certification. In EPA's view,a modification is a change in treatment technology or a major change in operation. A CWT facility accepting different types of wastes within the same subcategory previously identified is not a major modification.EPA understands that CWT facilities may change operating parameters as needed depending on the waste being treated. In EPA's view,a major change in operating parameters (such as pH, temperature, etc.) is one that is not listed in the original certification that may reduce the effectiveness of the treatment. Similarly,a change in the treatment technology is any significant technology change thatmay reduce the effectiveness of the overall treatment system. For example,itwould not include the addition of a mixer to an existing 8-11 EQUIVALENT TREATMENT DETERMINATION CWT SMALL ENTITY COMPLIANCE GUIDE technology,but would include removing/charging an entire treatment step in a treatment train. An example of a periodic certification statement in shown in Figure 8-3. ACME CWT 1234 Main Street Anytown,VA 12345 March I,20XX Anytown POTW 1 Main Street Anytuwn,VA 12345 Dear Sir/Madam: Please be advised that our facility located at 1234 Main Street still accepts wastes in both the CWT oils and metals subcategories. The information in our original certification remains the same except that we now occasionally add a polymer to the DAP system. This has not reduced the effectiveness of the system. Please feel free to contact me at(703)5555555 if you have any questions or comments about this additional treatment chemical. Sincerely, O" John Doe President Figure 8.3 Sample Periodic Certification Statement 8-12 EQUIVALENT TREATMENT DETERMINATION CWT SMALL ENTITY COMPLIANCE GUIDE 8.4 On-Site Compliance Paperwork 8.4.1 What Materials Must Be Included with the On-site paperwork? The CWT rule requires the following materials be included as part of the on-site paperwork: 1. A general list and description of the subcategory wastes being accepted for treatment/recovery at the facility; 2. A list and description of the treatment systems at the facility and the conditions under which the treatment systems are operated for the subcategories of wastes accepted for treatment; 3. Information and supporting data establishing that these treatment systems will achieve equivalent treatment. 4. A description of the procedures it follows to ensure that its treatment systems are well operated and maintained;and 5. An explanation of why the procedures it has adopted will ensure its treatment system are well-operated and maintained. The first three items are included in the initial certification and periodic certification statements. Therefore,the CWT facility should keep these certifications on file. Items 4 and 5 are discussed in more detail below. Treatment System Operation and Maintenance CWT facilities that comply with Subcategory D limitations or standards must also choose a method to demonstrate that their treatment system(s)are well operated and maintained. This method should be stated and the rationale for choosing it should be discussed in the on-site compliance paperwork,such as an environmental management system(EMS). Proper operation and maintenance of a system includes a qualified person to operate the system,use of correct treatment chemicals in appropriate quantities,and operation of the system within stated design parameters (for example, temperature and pressure). Basically, the CWT facility should keep records of its operating parameters for its treatment systems. Based on information EPA collected during the development of this rule, most CWT facilities already maintain these records on-site.For example,the CWT facility should keep records on the amount and type of chemicals added to each step of its treatment systems. The facility should also document flow rates and recycle rates on a regular basis (or whenever possible). Additionally, facilities operating systems that require periodf c maintenance(such as multimedia filters or carbon adsorption systems) should keep records on this aspect of treatment system operation. Alternatively,a facility could also monitor for specific parameters or a surrogate parameter. For example, a facility may operate dissolved air flotation. The method for demonstrating that the dissolved air flotation system is well operated can be as simple as maintaining records on the temperature and pH,the chemicals added(including quantity),the duration of treatment,recycle ratio, and physical characteristics of the wastewater before and after dissolved air flotation. Conversely,the facility could monitor for selected parameters for the purpose of demonstrating effective treatment. This could include any pollutant or a combination of pollutants. A CWT 8-13 EQUIVALENT TREATMENT DETERMINATION CWT SMALL ENTITY COMPLIANCE GUIDE facility should work with its permitting or control authority to determine whether its current EMS or alternative method for demonstrating that its treatment system(s) are well operated and maintained EPA notes that permitting or control authorities may inspect the CWT facility at any time to confirm that the listed practices are being employed,that the treatment system is well operated and maintained, and that the necessary paperwork provides sufficient justification for any modifications. 8.5 Additional Considerations Permitting and Control Authorities May Use in Confirming Equivalent Treatment Determinations Permitting and control authorities will evaluate and review certification statements and on-site compliance paperwork from CWT facilities for conformity with the rule requirements. Factors that may influence their decisions include previous experience with the CWT facility,the CWT facility management's commitment to program implementation,and the thoroughness and accuracy of the supporting documentation. One area subject to interpretation is the determination of treatment system equivalency. When reviewing treatment system performance data,the permitting or control authority will likely review the source of data, the time period during which it was collected, and the type of data collected. 8-14 CHAPTER 9 COMPLIANCE ASSURANCE PROCESS This chapter explains how EPA will determine compliance with the CWTrule,what happens if you or EPA discovers noncompliance,and the legal status of this guide. 9.1 How Will EPA Determine Compliance With the CWT Rule EPA uses several approaches to monitor compliance with its environmental regulations, including methods initiated by EPA and by facilities. A. Compliance Monitoring- Each discharge permit or individual control mechanism includes compliance monitoringrequirements. These requirements typically specify the frequency of monitoring required as well as the individual parameters to be monitored and their respective discharge limits. Most permits (or control mechanisms)include limits for the daily maximum and the monthly average. The compliance monitoring must demonstrate that the discharge complies with both. B. Reporting- The permitting or control authority will monitor reports submitted by the facility including discharge monitoring reports and periodic certification statements. These are the key means by which your compliance will be evaluated. C. Inspections- Permitting authorities, control authorities, or EPA may conduct periodic inspections at facilities subject to this regulation. Inspections may be initiated by disclosures,random selection,or a variety of other targeting methods. Inspections may be used to evaluate operations,records,or other information at the facility. This will be animportantcomponent in assuring equivalent treatment at facilities which have elected this option. D. Self Disclosure- The CWT facility has the primary responsibility for ensuring that its wastewater discharge complies continuously with its numerical discharge requirements and, if applicable, its equivalent treatment demonstration. EPA encourages CWT facilities to take advantage of EPXs self disclosure policies or small business polity. 9-1 COMPLIANCE ASSURANCE PROCESS CWT SMALL ENTITY COMPLIANCE Gum 9.2 If I Discover a Violation,How Can I Work with EPA to Correct It? EPA encourages self-disclosure of violations andhasimplemented two policies tomeetthis goal. These policies meet the objectives of Section 223 of the Small Business Regulatory Enforcement Fairness Act of 1996(SBREFA),which provides for the reduction,and under some appropriate circumstances, the complete waiver of civil penalties for certain environmental violations. The policies we: i Small Business Policy- The "Policy on Compliance Incentives for Small Businesses" applies to companies with 100 or fewer employees and provides penalty waivers or penalty reductions as incentives to participate in an on-site compliance assistance program and to conduct self-audits to discover and correct violations. i Audit Policy- The"Incentives for Self-Policing:Disclosure,Correction,and Prevention of Violations" policy applies to businesses of all sizes that meet the applicability criteria and promptly disclose and correct violations. 9.3 If EPA Discovers a Violation,What Might EPA's Response Be? To maximize compliance,EPA implements a balanced program of compliance assistance, compliance incentives,and traditional law enforcement EPA knows that CWT facilities owned by small businesses that must comply with Complicated new statutes or rules often want to do the rightthing,butmaylack the requisite resources. Compliance assistance information and technical advise helps small businesses to understand and meet their environmental obligations. Compliance incentives, such as our Small Buiiness Policy, encourage persons to voluntarily discover,disclose,and Correctviolattonsbefore they'reidentifiedbythe government.EPA's strong law enforcement program protects all of us by targeting persons who neither comply nor cooperate to address their problems. EPA uses a variety of methods to determine whether businesses are complying,including inspecting facilities,reviewing records and reports,and responding to citizen complaints. If we learn a person is violating the law, EPA (or State, if the program is delegated) may file an enforcement action seeking penalties of up to$27,500 per violation,per day.Theproposed penalty in a given case will depend on many factors,including the number, length, and severity of the violations,the economic benefit obtained by the violator,and its ability to pay. EPA has policies in place to ensure penalties are calculated fairly. These policies are available to the public. In addition,any company with a violation has the right to contest EPA's allegations and proposed penalty before an impartial judge or jury. In summary, EPA recognizes that we can achieve the greatest possible protection by encouraging small businesses to work with us to discover,disclose,and correct violations. That's why we ve issued self-disclosure, small business, and small community policies to eliminate or reduce penalties for small and large entities which cooperate with EPA to address compliance problems, hi addition, we've established compliance assistance centers to serve over a million 9-2 COMPLIANCE ASSURANCE PROCESS CWi$MALL ENTITY COMPLIANCE GUIDE small businesses. For more information on these and other EPA programs for small business, please contact EPA's Small Business Ombudsman, Karen Brown, at(202) 260-1390 or e-mail at brown.karen®epa.gov. 9A What is the Legal Status of This Guide? A judge may review a compliance or implementation guide in determining what penalty is appropriate and reasonable,although the content of the guide cannot otherwise by reviewed by the court. In this Compliance Guide,we have tried to make clear what you must do to comply with the applicable law and regulation. This is the minimum required by SBREFA. You ll notice, however,that here and there we have also included suggestions for alternative approaches that may make compliance easier and possibly even reduce costs. We hope you find this presentation of regulatory requirements useful and the additional information helpful in reaching and maintaining compliance. 9-3 (This Page Left Intentionally Blank) CI-IAPTER 10 QUESTIONS AND ANSWERS his chapter provides questions commonly asked duringdevelopmentof thisrule and EPA's responses This information may serve to answer many questions which small entities may have about the CWT rule. 10.1 General Ql. How many facilities are covered under the scope of this rule? How many discharge wastewater? Al. EPA estimates there are 223 centralized waste treatment facilities in the U.S.,165 of which discharge wastewater. Q2. My facility is a CWT,but it does not discharge wastewater. All wastewaters are shipped off-site to another CWT. Do I need to meet the CWT discharge requirements prior to shipping the wastewater off-site? A2. The CWT rule applies to CWT facilities that discharge wastewater to surface waters or to POTWs. This facility does neither and is not required to meet the CWT discharge requirements before shipping the wastewater to another CWT. Q3. Does the CWT rule include a de minimis exemption? A3. No,the CWT rule does not include a de minirnis exemption. 10.2 Applicability Ql. My facility accepts wastes from off-site,butwe arenota treatment facility. RCRAclassifies us as a recycling facility. Are we subject to the CWT rule? Al. The CWT rule is not limited to facilities that perform treatment only. In general, wastewater discharges from facilities that accept wastes from off-site for recycling are subject to the CWT rule. However, wastewater discharges from some specific recycling activities(such as solvent recovery)are not subject to the rule. Therefore,a recycler should consult the applicability section of the rule for more information on its specific recycling activity. If information is not included on its specific recycling activity,then its discharges associated with these acetifies are subject to this Wile. 10-1 QUESTIONS AND ANSWERS CWT SMALL ENTITY COMPLIANCE GUIoc Q2. My facility only treats and discharges non-hazardous wastes. Is itsubject to the CWT rule? A2. The CWT rule applies to both hazardous and non-hazardous wastes. It does not differentiate based on the RCRA status of the wastes accepted for treatment. Q3. My facility discharges wastewaters generated inthe treatmentof solid wastes received from off-site. Since the off-site wastes are not liquid,is the wastewater generated subject to the CWT rule? A3. The CWT rule applies to wastewater discharges associated with the treatment and/or recovery of solid wastes,wastewater and used materials received from off-site. Q4. My local POTW is my biggest competitor. Are POTWs subject to the CWT rule? A4. POTWs are not CWT facilities and are not subject to the CWT rule. However,wastes that are hauled,piped or shipped by rail to POTWs must comply with applicable pretreatment standards and requirements,including categorical standards. Q5. I only accept non-industrial wastes (that is,sanitary wastes) from off-site. Am I a CWT facility? A5. No, the CWT rule only applies to discharges of industrial wastewaters. EPA does not consider sanitary wastewater to be industrial. Q6. Are scrap metal yards and municipal waste transfer stations considered CWT facilities? A6. No,scrap metal yards and municipal waste transfer stations are not subject to the CWT rule. Q7. Is there a SIC Code which identifies the CWT industry? A7. There is no SIC Code for the CWT industry. However,manyCWT facilities have identified themselves with the SIC code for"Refuse systems," 4953. 10.3 Pollutants Selected for Regulation Q1. My facility's permit does not currently limit all of the pollutants regulated in this rule. How did you select the regulated pollutants? Al. EPA did not restrict its list of pollutants considered for regulation to the list of pollutants limited in current permits.EPA examined data from influentwastewater samples collected at many CWT facilities to determine the list ofpollutants considered for regulation.Chapter 6 of the technical development document provides information on the methodology EPA used to establish the pollutants considered for regulation and Chapter 7 of the technical 10-2 QUESTIONS AND ANSWERS CWT SMALL ENTITY COMPLIANCE GUIDE developmentdocument details EPA's decisions onwhich of these pollutants were selected for regulation. Q2. I discharge to a POTW and the regulated pollutants donotcause problems with my POTW. Why do I have to monitor for these pollutants? A2. The objective of the Clean Water Actis to"restore and maintain the chemical,physical,and biological integrity of the Nation's waters." In order to achieve this objective, the CWA establishes as a national goal the elimination of the discharge of all pollutants into the nations waters. Congress mandated EPA to establish pretreatment standards that are equivalent to standards for direct dischargers. These limitations for direct dischargers we based on effluent reductions that can be achieved by best available technology economically achievable(BAT)). However,Congress further mandated that EPA consider and recognize the treatment capability and performance of the POTW in controlling discharges for indirect dischargers. Consequently, EPA evaluated which pollutants to regulate for indirect dischargers by comparing removals of the pollutants regulated for direct dischargers with POTW removals to determine whether they"pass through" the POTW to surface waters. Allpollutants regulated for indirectdischargers were determined to pass-through in EPA's assessment. This pass-through assessment is detailed further in Chapter 7 of the final technical development document and in the preamble to the final rule. 10.4 Subcategorization Procedure Ql. Who is responsible for determining the proper subcategories? The CWT facility or the permit writer or control authority? Al. EPA believes the CWT facility is in the best position to classify waste receipts into the proper subcategory. For indirect dischargers, this responsibility is even clearer, as categorical standards are self-implementing and do not depend necessarily on issuance of a permit Q2. My facility mainly accepts used oils. Occasionally,we also accept landfill leachate. The leachate represents no more than 5% of the volume of waste discharged when present. Based on your recommended subcategorization procedure,our facility would be classified as an oils and organics facility. However, since the leachate is only periodic and such a small percent of the wastewater discharged,can we simply classify ourselves as an oils facility? A2. No,your facility is both an oils and an organics facility. During development of this rule, EPA considered an option for facilities that accept waste from different subcategories to round to the nearest five percent. The final rule did not include this option. EPA clearly 10-3 QUESTIONS AND ANSWERS CWT SMALL ENTITY COMPLIANCE GUIDE intends thatthe facility accuratelyaccountfor all off-site wastes accepted-even if these off- site wastes are small in volume or represent a small percent of the wastewater discharged. Q3. Are we required to use the subcategorization procedure outlined by EPA? For example, our facility accepts a waste that has high levels of zinc,low levels of other metals,and low levels of oil and grease. Using EPA's hierarchy,itwould fall into the organics subcategory, but we believe it clearly belongs in the metals subcategory. Why do I have to classify it in the organics subcategory? AS. First, EPA streams that the criteria and information on subcategory determination are provided as guidance to permit writers,control authorities,and CWT facilities in properly classifying their wastes by subcategory. EPA expects thatfacilities will also apply common sense when using our suggested guides. Clearly, the waste described is a metals subcategory waste and should be classified as such. If it is notexplicitly listed in the waste receipt classification table in Chapter 5, and the numerical hierarchy would otherwise classify this unusual waste as an organics waste, despite the high concentration of zinc, then thefacility'sjudgmentcould override the classificationprocedure's outputandclassify this particular waste as needed. Q4. We accept lubricants that sometimes contain nickel in concentrations in excess of the 37.5 mg/L listed in the waste hierarchy. Should this be classified as an oils waste, a metals waste or both? A4. Using EPA's recommended subcategorization procedure,this waste would be classified in the oils subcategory. Lubricants are included in the waste receipt classification table as an oils subcategory waste. The subcategorization hierarchy(numerical criteria)should only be consulted if the waste is not listed in the waste receipt classification table in Chapter 5. Q5. Does the CWT rule require documentation for determining the proper classification of wastes? AS. The CWT rule does notrequire any documentation for determining the proper classification of wastes. However,permitting or control authorities may require such documentation. In EPA's view, however, most CWT facilities already collect and maintain sufficient information during their waste acceptance procedures to classify their waste receipts properly. In EPA's view,permitting or control authorities should only request additional documentation if a facility's waste acceptance procedures are inadequate. Inadequate support for classification could conceivably prevent a permitting or control authority from confirming which subcategories apply,at which point the permitting or Control authority could choose to not issue a discharge permit. 10-4 QUESTIONS AND ANSWERS CWT SMALL ENTITY COMPLIANCE GUIDE Q6. I have been accepting used oils and coolants. I am now accepting bilge water. Do I need to repeat the determination? A6. No,since bilge wateris classified as an oils subcategory waste(see Table 5.1,Waste Receipt Classification),a new round of subcategorization is unnecessary. 10.5 Treatment Ql. Does the CWT rule require facilities to use the model technologies? Al. No,CWT facilities are not required to use the model technologies. Q2. I installed the model technologies and still can't meet the required limits? What am I doing wrong? A2. Installation of the model technology does not guarantee that you will be able to meet the discharge requirements. You must also optimize the operationof your system. Inaddition, many facilities improperly target the design and operation of their treatment systems to actual numerical limits. This does notensure thatthe facility will be incompliance. Rather, a facility should target the design and operation of its system to the long-term averages. The long-term average for each limit is included in Appendix A. Unless there is a major upset of the system,this should ensure compliance with the discharge requirements. Q3. How does this rule prevent the commingling of different types of wastestreams prior to receipt at the CWT. For example,waste is represented as oily waste,but metals have been mixed in during transport. A3. As discussed in Chapter 5,waste generators initially furnish a CWT facility with a sample of the wastestream to be treated. The CWT analyzes this sample to characterize the level of pollutants in the sample and to determinewhattreatmentis necessary. Then,generally, for each truck load of waste received for treatment from the generator,the CWT facility collects a sample and conducts"fingerprint' analysis to confirm it is similar to the initial sample tested. In this manner,the CWT facility should be aware if the waste generator is . misrepresenting the wastestream characteristics. In the case of the example provided,the facility could decline to accept the wastestream(if it is unable to treat it effectively or if the wastestream is from a subcategory which would violate the facility's discharge permit). 10.6 Monitoring for Compliance Ql. What monitoring frequency is required by the CWT rule? Al. The CWT rule does notestablish nationally-applicablemonitoringfrequency requirements, but rather,leaves the decision up to the permitting authority. The permitting or control authorityfs in the bestposition to gauge the facilities potential for violations and establish 10-5 QUESTIONS AND ANSWERS CWT SMALL ENTITY COMPLIANCE GUIDE monitoring frequencies accordingly. Permitting and control authorities generally use factors such as raw waste variability, wastewater flow volume, type of treatment, and compliance history,as well as self-developed IPPs to determine appropriate monitoring frequencies. Section 403.12(e) of the pretreatment regulations requires IUs subject to categorical pretreatmentstandards such"the CWT regulations to self-monitor and report at least twice per year. Q2. Can a permitting or control authority reduce or waive sampling requirements for a particular pollutant after a history of sampling shows the pollutant to be absent? A2. EPA hasnotestablished methods to waive sampling requirements for particular pollutants under the CWT rule. In general,EPA does not believe sampling requirements for specific pollutants should be waived entirely for the CWT industry because this industry accepts a wide variety of wastestreams that can vary considerably from one batch to the next. However,direct dischargers (those with NPDES permits) that demonstrate their discharge is continually well within the limitations may have their monitoring frequency reduced. The requirements and procedures for this are described in detail in the EPA publication"Interim Guidance for Performance-Based Reduction of NPDES Permit Monitoring Frequencies" (EPA-833-B-96-001, April, 1996). In general,at least two years of monitoring data are needed and the modifications are made during the re-issuance of the permit. The modifications are made on a pollutant-by-pollutant basis. For indirect dischargers,EPA has proposed regulatory and administrative changes that may reduce the burden on entities regulated under the National Pretreatment Program. These proposed changes are referred to as the Pretreatment Streamlining Proposal. One of the proposed changes is to allow control authorities to waive industrial user(fU)sampling for pollutants that have been determined not to be present. Q3. Does a CWT facility (electing to comply with the multiple wastestream limitations or standards)that accepts cyanide have to monitor for cyanide immediately following cyanide pretreatment? A3. The CWT rule requires a facility that accepts wastes containing cyanide in excess of 136 mg/L to monitor for cyanide after cyanide treatment and before commingling with other waste streams. However, the permitting or control authority may allow the facility to monitor after commingling with other waste streams if the permitting or control authority . adjusts the limit (or standard) using the building block approach (or combined waste stream formula) and the adjusted limit(or standard) does not fall below the analytical minimum level. 10-6 QUESTIONS AND ANSWERS CWT SMALL ENTITY COMPLIANCE GUIDE Q4. Whatif a wastewater matrix causes interference with the analytical method(andtherefore the detection limit is higher than the discharge limit)? A4. Theprocedures outhnedinEPA's Guidance on Evaluation,Resolution and Documentation of Analytical Problems Associated with Compliance Monitoring (EPA 821-E-93-001) explain how to eliminate matrix or other interference with analysis. 10.7 Multiple Wastestream Subcategory Ql. Can permitting or pretreatment authorities use the building block approach or combined waste stream formula to determine the discharge requirements for a facility in lieu of the multiple wastestream subcategory pretreatment standards? Al. No,the building block approach and combined waste stream formula cannot be used to establish discharge requirements for facilities subject to more than one CWT subcategory. The facility must comply with each applicable subcategory's limitations or standards separately or with the applicable set of multiple wastestream subcategory limitations or standards. Q2. Does a CWT facility need to know the percentage of wastes that would be in each of the subcategories if itelects to comply with the multiple wastestream subcategory limitations? A2. No,the CWT facility need not know the percentage of wastes that would fall into each of the subcategories if it chooses to comply with the multiple wastestream subcategory limitations.The multiple wastestream subcategory limitations consistof the mostshingent of the limitations from each subcategory for each pollutant. 10.8 Initial Certification Paperwork for Equivalent Treatment Ql. Who receives the initial certification? Al. The permitting or control authority receives the certification from CWT facilities that wish to comply with multiple wastestream limitations or standards. Q2. Does a CWT facility have to use the model technology to establish equivalent treatment? A2. No,facilities electing to comply with the multiple wastestream subcategory limitations or standards may use the model technology or any technology they can demonstrate will achieve comparable removals. Q3. What data requirements are necessary to establish equivalent treatment? For example,to establish that my system achieves zinc removals equivalent to the model technology,how many samples must I collect? A3. The final CWT rule defines equivalent treatment but gives CWT facilities the latitude to 10-7 QUESTIONS AND ANSWERS CWT SMALL ENTITY COMPLIANCE GUIDE determine the appropriate manner in which to establish it The rule does not specify a particular"number'of samples that mustbe collected and submitted. In fact,the final rule does not require CWT facilities to collect any samples. CWT facilities should work with their respective permit writer or control authority to determine an appropriate and reasonable manner to establish equivalent treatment for their particular circumstances. QC When does the initial certification paperwork have to be completed? A4. For existing indirect dischargers,the initial certification paperwork must be completed by or before the compliance deadline. For existing direct dischargers,new direct dischargers and new indirect dischargers, the initial certification must be completed by the time of permit or control mechanism issuance, re-issuance or renewal. EPA suggests that an indirect discharging CWT facility that plans to comply with the multiple wastestream subcategorypretreatmentstandards notify its controlauthority of this intentand also state, in their BMR submission,whether itcan or cannotcomply with theses standards currently. Q5. Does the systemhave to be fully tested and operational at the time of the initial certification statement is submitted? A5. No,the treatment system may be tested after the initial certification statementis submitted, but the system must be fully operational by the required date of compliance. Q6. Do treatability tests require elaborate QA/QC procedures? A6. No, the level of QA/QC conducted during EPA sampling is not necessary for facility treatability testing. 10.9 Periodic Certification Statement for Equivalent Treatment Certification Ql. When is the periodic certification required? Al. The periodic certification requirement begins after the facility has submitted its initial certification and is required once peryear. The timing of submittalcanbe coordinated with the submittal of compliance paperwork required by the General Pretreatment Regulations or the NPDE5 regulations. Q2. Does afacilityneed to monitor for theregulated pollutants when developing a relationship for surrogate parameters used to demonstrate thata treatmentsystem is well-operated and maintained? A2. The CWT rule does not require monitoring or the establishment of a surrogate parameter to demonstrate that a system is well-operated and maintained. However, if a facility chooses to use a surrogate parameter to demonstrate that a treatment system is well 10-B QUESTIONS AND ANSWERS CWT SMALL ENTITY COMPLIANCE GUIDE operated and maintained, it should monitor for the specific regulated pollutant(s) to establish the relationship between the surrogate and the regulated pollutants. Q3. In the periodic certification statement the CWT rule requires the facility to provide information if it has modified its treatment system.What does EPA mean? A3. In EPA's view, a modification is any significant change in the equipment, treatment chemicals,oroperatingprocedures thatcouldnegatively affectthe demonstrated removals. Forexample,ifafacility has demonstrated equivalenttreatmentwitha system thatincludes chemical'precipitation and dissolved air flotation,and decides to eliminate the chemical precipitation step, this would be a modification that would require a re-demonstration assuming the applicable subcategories have not changed. However,switching chemical companies is an insignificant change. Q4. Are CWT facilities required to submit monitoring data to the permitting or control authority that they collect to demonstrate that a treatment system is well-operated and maintained? A4. No,such data should be kept with the facility's on-site compliance paperwork and must be available to the permitting or control authority as well as enforcement officials. 10.10 On-Site Compliance Paperwork for Equivalent Treatment Certification Ql. For on-site compliance paperwork, may a facility cross-reference other records at the facility,or does a separate copy of those records need to exist in its CWT compliance file? Al. Facilities may cross-reference records in other parts of the facility, but must be able to produce those records when requested by their permitting or control authority. Q2. How is confidential business information (CBI) that is included as part of compliance paperwork(either initial or periodic certification or other on-site compliance paperwork) handled? What can a facility claim as CBI? A2. The permitting or control authority is authorized to view CBI, but they must have procedures inplace to protectCBI from unauthorizedpublic access. Permitting and control authorities have to allow access to the public at least to the extent that the EPA confidentiality regulations allow public access. A facility cannot claim any effluent data or data associated with the"point of compliance"as confidential: 10.11 Costs Ql. Is there any guidance on how much CWT facilities should spend on treatment of CWT wastewater? 10-9 QUESTIONS AND ANSWERS CWT SMALL ENTITY COMPLIANCE GUIDE Al. There is no guidance on the amount of money a facility should spend on wastewater treatment,it depends on a number of factors that the facility should consider in making a final compliance decision. These factors include the amount of wastewater treated, the characteristics of the wastewater being treated,treatment in place currently at the facility, the financial stability of the facility, and the market for waste treatment. For example, a facility may be able to treat a wastewater adequately using available technologies. However,if the amount of wastewater treated is very small,it may not be profitable for a facility to treat and discharge this wastewater to comply with this rule. Q2. My facility cannot currently afford the upgrades to our treatment system that will be required to comply with this rule. Can we get a waiver of the requirements or an extension on the date of compliance? A2. No,a CWT facility cannot obtain a waiver(or FDF)based on financial constraints. If the facility is unable to comply with the regulation by the required date due to financial considerations,it should cease discharge by the compliance date. Q3. Can EPA, make any recommendations on financing additional wastewater treatment technologies for small businesses to comply with this rule? A3. EPA has compiled a variety of sources to assist small businesses in applying for loans for pollution control. Seehttp://www.epa.gov/smallbusiness/money.htm. 10.12 Baseline Monitoring Report Ql. When is the baseline monitoring report due and to whom must it be submitted? Al. For existing indirect dischargers,the baseline monitoring report is due on July 21,2001. It is submitted to the control authority. Q2. How many samples are required for the BMR? A2. 40 CPR 403.12(b)(5)(iv) states, "The User shall take a minimum of one representative sample to compile the data necessary to comply with the requirements of this paragraph." The type of sample will depend on the nature of the pollutant as described in 40 CFR 403.12(b)(5)(iii),which states"a minimum of four(4) grab samples must be used for pH, cyanide, total phenols, oil and grease, sulfide, and volatile organics. For all other pollutants, 24-hour composite samples must be obtained through flow-proportional composite sampling techniques where feasible. The Control Authority may waive flow- proportional composite sampling for any Industrial User that demonstrates that flow- proportional sampling is infeasible. In such cases,samples may be obtained through time- proportional composite sampling techniques or through a minimum of four(4) grab samples where the User demonstrates that this will provide a representative sample of the 10-10 QUESTIONS AND ANSWERS CWT SMALL ENTITY COMPLIANCE GUIDE effluent being discharged." If the process produces a discharge that is a homogeneous batch,one grab sample may be taken. 10.13 RCRA permits Ql. Our facility has a Federal RCRA permit because we accept hazardous wastes. We cannot obtain a RCRA permit modification to alter our treatment system to meet the required pretreatment standards by the required date of compliance. How canwe get an extension? Al. Many CWT facilities with Federal RCRA permits are under the impression that if they modify their existing treatment system to comply with this regulation they will have to obtain a RCRA permit modification. This is incorrect. RCRA contains a wastewater treatment unit exemption from RCRA permit modification requirements for wastewater treatment units that are subject to NPD&q or pretreatmentrequirements established under the CWA. Thus,CWT facilities with RCRA permits will not need to modify their RCRA permits as a result of this rule. 10-i1 (This Page Left Intentionally Blank) CHAPTER 1 l WHERE TO GET ADDITIONAL HELP his chapter presents additional sources of information,as well as EPA contacts, that may help small entities obtain additional information related to implementation of the CWT effluent guidelineslinvtations and standards fornewand existing sources. Specifically,this chapter presents a list of selected federal programs. These lists also include information on how to reach EPA program personnel and how to access periodicals and directories. I1.1 Where Can I Get Copies of Document Related to the CWT Rule? Copies of documents directly related to the CWT effluent guidelines and standards,such as the Technical DevelopmantDocument(EPA-821-R-00-020),the Economic Analysis(EPA-821-R- 00-024),the CostEffectiveness Analysis(EPA-821-R-00-023),the Detailed CostingDocument(PPA- 821-R-00-021),and the Environmental Assessment Document(EPA-821-R-00-022)may beobtained from our web site at www.epa.gov/ost/guide/cwtLhtml. You may also obtain copies of these documents by contacting the Office of Water Resource Center at(202) 260-7786 or by e-mail at: waterpubs@epamail.epa.gov or fax:(202)260-0386. 11.2 Who Can Help Meat EPA with Specific Questions About the CWT Rule? Questions specifically related to the effluent limitations guidelines and standards for the CWT industry should be directed to: A. Ms.Jan Matuszko(technical questions) Engineering and Analysis Division Washington,DC Tel: (202)260-9126 Pax: (202)260-7185 e-mail:matuszko.jan®epa.gov B. Mr.Timothy Connor(technical questions) Engineering and Analysis Division Washington, DC Tel: (202)260-3164 Pax: (202)260-7185 11-1 WHERE TO GET ADDITIONAL HELP CWT SMALL ENTITY COMPLIANCE GUIDE e-mail:connontimothy®epa.gov C. Dr.,William Wheeler(economic questions) Engineering and Analysis Division Washington,DC Tel: (202)260-7905 Fax(202)260-7185 e-mail:wheeler.william®epa.gov 11.3 General Information There are a number of web site resources for obtaining general information about the CWT rule,related programs,and general EPA policies. The following table identifies some of the main resources you may find helpful. Table 11.1 General Resources Information Resource Web Address Description EPA web site www.epa.gov EPA's web site includes press releases, proposed and final EPA rules and regulations,and updates to this manual. Engineering and Analysis www.epa.gov/ost/guide Federal Register notices of proposed and Division website final effluent limitations guidelines and standard rules, supplemental notices, pre-proposal documents,background information,draft industry questionnaires,public meeting notices, development documents and other supporting documents,updates to this manual,and related documents. Federal Register Online via www.access.gpo.gov/ Official Federal Register documents, GPO Access su._docs/aces/ including the published CWT regulation aces140.htm1 (December 22,2000) EPA Small Business www.epa.gov/tin/sbap State and local SBAP contacts,SBAP Assistance Program(SBAP) materials,related web sites,meetings and conferences EPA Office of Enforcement w.epa.gov/ceca/ Applicability of EPA's policy to promote and Compliance Assurance: smbusi.html environmental compliance among small Policy on Compliance businesses. Criteria for civil penalty Incentives for Small Business mitigation 11-2 WHERE TO GET ADDITIONAL HELP CWT SMALL ENTITY COMPLIANCE GUIDE Table 11-1 General Resources hiformation Resource Web Address Descriptlon EPA Office of Enforcement es.epa.gov/oem/ Applicability of EPA's policy to enhance and Compliance Assurance: auditpol.html protection of human health and the Audit Policy:Incentives for envuonment by encouraging regulated Self-Policing entities to voluntarily discover,and disclose and correct,violations of environmental requirements. 11-3 (This Page Left Intentionally Blank) APPENDIX A FINAL EFFLUENT LIMITATIONS AND STANDARDS FOR THE CWT INDUSTRY Thisappendix presents the final effluentlimitations and standards fortheCWT industry.The limitations and standards are presented in tables starting on the next page. The limits are accompanied by the long-term averages that CWT facilities ought to use as the basis for design of their treatment systems. Note that the metals,oils,organics,and multiple wastestream subcategories are labeled Subcategories A,B,C,and D,respectively. Note also that the multiple wastestream effluent limitations and standards are presented for all possible subcategory combinations. Appendix A-1 Table Appendix A-1.CWT design targets and BPT limitations by subcategory(mg/L) Metes-Subcategory A Cils-So target;cry B Organics-SubcmepOryC CAS Lmg-Term Limitations Lag-Term Limitations Long-Tmm Limitations Pollutant Paramelere Registry Average MonO1y Average Monthly Average Monthly Numbs Dssgn pally Deign pally Design Daily Torms; minimum Average Tmgels minimum Avarag° Tageb Minimum Average Msrimum Mmdmum Minimum CONvaxlcxeL P4MAEfFae• BOOS C-003 41.0 163. 63.0 Oil&Greene C-007 34.3 206. 60.2 28.3 127. 38.0 TSS Call 16.8 60.0 31.0 25.5 74.1 MIS 45.0 216. 61.3 METeLAMLYTE6 Antimony 744036-0 0.120 0.249 0.206 0.103 0.07 0.141 0.569 0.928 0.679 Arsenic 744038-2 0.0839 0.162 0.104 0.789 2.95 1.33 Barium 1440493 0.221 DA27 0.281 Cilium 7440-439 0.0580 OA24 0.0962 0.00246 0.0122 0.0102 Chromium 7440-473 1.67 15b 3.07 0.183 0.746 0.323 Cobalt 7440-484 0.115 0.192 0.124 7.42 56A 18.8 Copper 7440-6H 0.744 4.14 1.06 0.157 0.500 0242 0.704 0.865 0.767 Cyanide(implant) 136 500. - 178 Lend 743992-0 0.127 1.32 0.283 0.0986 0.350 0.160 Mercury 7439-979 0.000560 0.00234 0.000239 0.00.309 0.0172 0.00647 Molybdenum 7439-96-7 1.54 3.50 2.09 0.943 1.01 0.965 Nickel 7440424 1.16 3.95 1.45 Selenium 7782d94 0.280 1.M 0.408 Silver 7440-224 0.0264 0.12D 0.0351 Tin 7440-315 0.0898 0.409 0.120 0.107 D.335 0.165 Titanium MUM 0.0569 0.0947 0.0618 0.0212 0.0510 0.0299 Vanadlum 7440162-2 0.0500 0.218 0.0662 Zinc 744096" OA13 28y O.641 3.14 826 4.50 0.382 0.497 DAM - OamncANeLMS Acetone 67941 2.06 30.2 7.97 Acetophenone 98-86-2 0.0359 0.114 0.056E Aniline 62633 0.0105 0.0333 0.0164 Bis(2-othylhmyl)pitiable 11131-7 0.0629 0215 0.101 Itchiness 78.933 0.878 4.81 1.85 Butylbemyl phthalate 85L8-1 0.0550 D.188 0.0887 Cerbaeole 86.14-8 0.151 0.598 0.226 o-Cresol 95484 0.185 1.92 0.561 µCresol 10644-5 0.0682 0.698 0205 n-Decane 124-1" 0.235 0.946 0.437 2.3-Dichloromiline 6062g-5 0.0230 0.0731 0.0361 Fluor°nthena 20644-0 0.0173 0.0537 0.0268 irOctadecane 593453 0.203 0.589 0.302 Phenol 108-952 0.362 3.65 1.08 Pyridine 110964 0.116 0.370 0.182 *-The promulgated performance bounds for pH are 5-9 in standard units. Appendix A-2 Table Appendix A-2.C6VT design targets and BPT limitations for Subcategory D mixed wastestream combinations(mg/L) e, nm e, a Was.,Glass. nann CAB Lo Tam Limitations Uq-Tam, Llm&a0om Lon9Tmm LlmiMmna Lora➢1m Llnllalbno Pollutant Paamdem R Itry Arena Avaape Avvpe Ares®e NumOa Haan OtlIY Mon1Ary Nsgn OeBY .Mpn Dngn OnY MonNIY NtlAn OMIy Monaly Timm Maamum AMaon Ta9el5 BlexmNm A= Tayea Maximum Avaapa Taryels Ma5lmum rfNnT ICWPABAMEIEmi- BON OM 41.0 163 SBA 41.0 In 510 41.0 1m m.0 011&Omra OUR 2&3 IV, 3110 20.3 la. 3110 N3 a& Bar a3 IN. 31.a T60 Oam 5.5 74.1 m.B 25.5 74.1 00.6 1&0 a.0 314 253 74.1 30.6 IsmiAmme Antimony 744 5 aim am B.141 Alm am Bill aim D219 0.2m Aim 0.23] 0.141 Ample mla3B2 am aim 0,104 am aim AIM am RN? 0.104 0.7a 2% 1.33 Baaun 7Maa9 But 0AP] am Aa1 OA2] 0.281 001 A42Y 0.281 Damon 7410459 O.m746 0.01]2 OA1m BOOM O.m]2 Way Mao A474 ON62 M746 0.mm 0.0102 mromlum ]4b1]3 0.103 0.7416 am aim 0.746 0323 La i&5 307 Alm 0.746 0323 Ikbtlt 7N0164 0.115 aim BIN 0,115 aim D.IN R115 aim 0.124 7A2 5&4 1&0 Copp, 744a500 0.157 am am 0.15] am D.91 U04 09a 03m 0.157 am aim CYsndaDn-Plant) im NO in 1N Sm 170 IN 50 1m Land 743992-1 am an aim OWN am 0.1m 0.172 l.m am am am 0.160 Mercury ]13B&]4 Am35m 0002% OWN amen 0.00234 O.0i 04M 0=31 0aa1739 am", OAmn OM647 I4olY00num 7IJ9567 0.943 1.0 010 1.5A an 2m am 1.0 am 0.8m - 1.0 0.965 Minkel 744 O 1.16 am 1.0 1.16 an 1A5 1.16 an In Batenlum ]YB2AB2 02m IN am Alm 1.01 OAm am 1.64 OAm sit. TnaU4 0A1114 aim awl Oman aim 0.01 O.Otm 0.1m awl Tln 7NAS14 am am 03m am am aim Ba80 BAN aim Ala any 0.165 Thamlun 744RM Oa217 Onto am 0.0217 M10 Dam am Oa47 arms am17 0.m 0.0299 Vammun 7N00h2 am Qa0 am 0.000 0218 am am 0.218 am Zino 7N 03m BAN 0.4a O.A13 2m Deal am 0.49] BAN am 1,497 0.410 Am n. lNlnE9 Aoebna fly�lWNQ 2m 303 MI 2m 30A ].9r 2m m2 ].9] Aniline Irene BBa62 am a.11/ amm &aim a 0.0.562 am Bill 0.0164 BISEZe m333 am m15 A01m Amm 0.03m OMm am BOB 0.a164 ammonia M1avY9 pM1IM1IW 11-034 ohm a21fi 0.101 O.ma 0.215 0.1m 051 4615 1.101 ammonia ]6933 09a Lm IN Ohm /81 ta5 am 401 0.09 Bublaenr34 pM1Nelela 8556] D.ma a m OaOB] 0.155D OlinWent 0.0 6 aim aim O.OBm CmOame K 7 almaim 1.9 am 0.151 O.mB 0.216 aim 1.92 0376 aQmaal 96A6] a m l.m On a m am an Alm a 0.561 .Creed 1xi" QNS 0a0 O.BLB am 0.aB an 0AWDIM Ban 0.2m nOmne 121-105 DRI 0A10 0.13] 0.2a 0.940 0437 a am0 0.4P Fluommlonanlllre mt 0.02m am am61 Am3p Qm31 Oa%I M73 am 0.0361 Pluonn&mm a5A49 am am a m am am O.mm am]3 am m.mxa Plasol ne 593A55 a m am In 02m Oak 0.362 am 3.0 1.3ax PAanol - tO8d62 O.m2 365 t.m 0.3a 0.0 In 0.m2 J.m B Pylon. If0561 0.118 0.Jm Atm Otte 0.310 O.Im 0.118 aim D.Im "-The promulgated performance bounds for pH are 6-9 in standard units. Appendix A-3 Table Appendix A-3.CVVT design targets and NSPS standards by subcategory(mg/L) Metals-Subcategory A als-SubcategoryB Organics,-Subcategory CAS Long-Term Standards Long-Term Standard. Isng-Term Standards Pollutant Parameters Registry Average Monthly Average Monthly Average Monthly Number Design Daily Design DNIY Design Deily Tamale Minimum Average Targets Maximum Average Targets Maximum Average Max m lm.m Minimum CONVENTIONAL FWMETERB' BOO. C-003 41.0 163. 53.0 0115 Grease C-007 34.3 205. 50.E 28.3 127. 36.0 TSS C-009 9.25 29.6 11.3 25.5 74.1 MA 45.0 216, 61.3 METALANAtyres Antimony 744038.0 0.D213 0.111 0.0312 0.103 0.237 D.141 0.569 0.928 0.679 Arsenle MOW 0.0112 0.0993 0.0199 0.789 235 1.33 Barium 7440393 0,221 0.427 0.281 Sodium 744043.9 D.OB19 0.782 0.163 0.00746 0.0172 0.0102 Chromium 7440473 D.0398 0,167 0.0522 0.183 0.746 0.323 Cobalt 7440484 D.0574 0.182 0.0703 7.42 BOA 18.8 Copper 744HO-8 0.169 0.659 0.216 0,157 0400 0,242 0.704 0.865 0,757 Cyanide(in-plant) 136 500 178 Lead 743992-1 D.177 1.32 0.283 0.0986 0,350 0.160 Memury 7439.974 0.000201 0.000641 0.000246 0.00309 0.0172 0.00647 Molybdenum 7439-91 1.54 3.50 2.09 0.943 1.01 0.965 Nickel 7440-02-0 0,255 0.794 0.309 Selenium 77B249.2 0.0563 0.176 0,0698 Silver 7440.231 0.0100 0.0310 0.0122 Tin 7440313 0,0300 0,0955 0.0367 0.107 0.335 0.165 Titanium 744032-6 0.00500 0.0159 0DN12 0.0217 0.0510 0.0299 Vanadium 7440-02-2 0.0500 0.0628 0.0518 21nc 7440-063 0.206 0.657 0,252 3.14 8.26 4.50 0.382 0.497 0.420 GRGNICAMLxmE6 Acetone 67-64-1 2.06 30.2 7.97 Acetophenone 98-86.2 0.D359 0.114 0.0562 Aniline 62433 0.0106 0.0333 0.0164 Ble(2ethylhacyl)phthalate 117-81-7 0.D629 0,215 0.101 Butenone 78.933 0.878 4.81 IN Bulylbenryl phthalate BM8-7 0.0550 0.188 0.0887 Carbamle 66-743 D,151 0.598 0.276 o-Cresol 9548-7 0,185 1.92 0.561 iiCresol 106-44-5 O.O682 OAH 0.205 n-Dacene 124-183 0.238 0,940 0.437 23-Dichloroanilina 609-273 0,0230 0.0731 0.0361 Flumanthene 206440 0.0173 0.0537 0.0268 nCmadeeane 593d53 0.203 0.589 0.302 Phenol 108-954 0.362 3.65 1.08 Pyridine 11086-1 0.116 0.370 0.192 216-Tilchlon henol 88-06-2 0.0858 0.155 0AD6 -The promulgated performance bounds for pH are 6-9 in standard units. Appendix A-4 Table Appendix A-4.CW C design targets and NSPS standards for Subcategory D nwced aastentream combinations(mg/L) Metals.Oils,Organics ,B,&C) usual.,Oil.(A&B) Metals,Orgaricei(A&C) Oils,Organics(B&C) CAS Lng-Term Standards Long-Term Standards Long-Term Standards Lang-Tam Standards Pollutant Parameters Registry Average Monthly Average Monthly Average Monthly Average Monthly Numbs Design Deily Design Daly Design Daily Design Deily Targets Mmrimum Average Temela Minimum Average gargela Marlmum Average Targels Maximum Average M Imum Minimum Maximum Maximum CONYENIDnL3 PASAMErEas' BON C-003 41.0 163. 53.0 41.0 163. 63.0 41.0 163. 53.0 Oil&Oreass C-007 25.3 127. 38.0 28.3 127. 38.0 34.3 205. 50.2 28.3 127. 38.0 TSS C-009 9.25 29.6 11.3 9.25 29.6 11.3 9.25 29.6 11.3 3.5 74.1 30.6 METAL AN4LYIE3 Antimony 744036-0 0.0213 0.111 0.0312 0.0213 0.111 0.0312 0.0213 0.111 0.0312 0.103 0.237 0.141 Amnlc 744048-2 0.0112 0.0993 0.0199 0.0112 0.0993 0.0109 0.0112 0.0993 0.0109 0.789 2.05 1.33 Barium 7440398 0.221 0.427 0.281 0.221 DA27 0261 D.221 0.427 0.281 Cadlum 74404M 0.00746 0.01n 0.0102 0.0070 0.0172 0.0102 0.0819 0.782 0.163 0.0074 0.0172 0.0102 Chromium 7440-473 0.0398 0.107 0.0522 0.0398 0.167 0.0622 0.0398 0.167 0.0522 0.183 0.746 0.3n Cobalt 7440484 USTI 0.182 0.0703 0,0574 0,182 DOM3 BAN 0.182 0.0703 7A2 56A 18.8 Capp" 744n606 0.169 0.659 0.216 0.169 0..650 0.216 0.169 0.659 0.216 0.157 0.500 0.242 Cyanide(mylant) 136 500 178 500 178 Soo 178 Land 7439.92-1 0.0986 0.350 0.160 D.NN 0.350 0.160 DIT7 1.32 0.283 0.0986 0.350 0.160 Mercury 7439-976 0.000201 0.000641 0,000246 0.000201 0.000641 0.000246 0.000201 0.000641 0.000246 0.00309 0.0172 0.00647 Molybdenum 7439-90-7 0.943 1.01 0.965 1.54 3S0 2.09 0.943 1.01 0.965 0.943 1.01 0.965 Nickel 7440-02-0 0.255 0.794 0.300 0.255 0.794 0.309 0.255 0394 0.309 Selenium 778249-2 0.0563 0.176 0.0698 0.0563 0.176 0.0698 0.0563 0.176 0.0698 Silver 7440324 00100 OM18 0.0122 0.0100 0.0318 0.0122 0.0100 0.0318 0.0122 Tin 7440616 0.0300 0.0955 0.0367 0.0300 0.0955 0.0367 0.0300 0.0965 0.0367 0.107 03w 0.165 Titanium 7440d26 0.00500 0.0159 0.00612 0.00500 0.0159 0.00612 0.00500 0.0159 0.00612 0.0217 0.0510 0.0299 Vanadium 744062-2 0.0500 0.0628 0.0518 0.0500 0.0628 0.0518 0,0500 0.0628 0.0518 Zinc 7440666 0.206 0.657 0.252 0,206 0.657 0.252 D2D6 0.657 D.252 0,382 0.497 0420 ORGAWAN,u. l Acetone 6764-1 206 30.2 7.97 2.06 30.2 7.97 2.00 302 707 Aeetophnone 9866-2 0.0359 0.114 0.0562 0.0359 0,114 0.0562 0.M 0.114 0.0562 Aniline 62533 0.0105 0.0333 0.0164 0.0105 0.0333 0.0164 0.0105 0.D333 0.0164 Bis(2sMylhexyl)pMhalste 117-81-7 0.0629 0.215 0.101 0.0629 0.215 0.101 0.0629 0.215 DA01 Butanone 78-933 0.878 4.81 1.85 0.878 4.81 1.85 0.878 4.81 1.85 Butylbenryl phthelme 85684 0.0550 0.188 0.0887 0.0550 0.188 0,0887 0.0550 0.188 0.0887 Carbanle 05-74-8 0.151 0.598 0276 0.151 0.596 0.276 0.151 0.598 0,276 o-Cresol 954V 0.185 1.92 0,561 0.185 1.02 0.561 0.185 1.92 0.561 Kreaol 106 4 5 0.0662 0.698 0.205 0.0682 0.698 0.205 0.0682 0.698 0.205 n4)ecan0 124-185 0.235 0.948 DAB? 0.238 0.948 0.437 0.235 0.90 0,437 2,3-OichismaniNne 600476 0.0230 0,0731 0.0361 0.0230 0.0731 0.0301 0.0230 0.0731 0.0361 B7uararthene 20644-D 0.0173 0.0537 0.0208 0.0173 0.0537 0.0268 0.0173 0.0537 0.0268 n-Octedecne 593453 0.203 0.589 0.302 0.203 0.589 0.302 0.2)3 0.589 0.302 Phenol 108-05-2 0,362 3.65 1.00 0.362 3.65 1.08 0,362 3.65 1.08 Pyridine 110681 0.116 0.370 0.182 0.116 0.370 0.182 0.116 0.370 0.182 246-Tdchloro hnol au-0 0.0058 BASS 0.106 1 1 0.0&58 0.155 0.106 1 O.OBSB 0. 55 0.106 '-The promulgated performance bounds for pH are 6-9 in standard units., Appendix A-5 Table Appendix A-5.CVVT design targets and PSES standards by subcategory(mg/L) Metals-SubcategoryA ie-Subcategory 6 Organoe-Subcategory CAS tong-Tenn Standards Ling-Term Standards Long-Term Standards Pollutant Paromelme Registry Average Awrwa Average Number Design Daily Monthly Oesgn Deily Monthly Owgn Deily Monthly Targets M9xlmuM Average Targets Mmdmam Average Tunnels Maxlmum Average Maximum Maximum Maxim m METAL AmtvlFs Antimony 744036-0 0,170 0.249 0.206 0.103 0.237 0.141 Annie 7440384 0.0839 0.162 0.104 Barium 7440393 0.221 DA27 0.281 Callum 7440439 0.0500 0.474 0,0962 Chromium 7440473 117 15.6 3.07 0.323 0.947 0.487 Cobalt 7440484 0.115 0.192 0.124 7.42 66.4 18.8 Copper 744MM 0.744 4.14 US 0.257 0.405 0.301 Cyanide(I.-plant) 136 500 178 Lead 7439-02-1 0.177 1.32 0,263 0,149 0.222 0.172 Mercury 743947.6 0.000560 0.00234 0.000739 Molybdenum 7439.989 1.54 3.50 2.09 0.943 1.01 0,965 Nickel 7""2-0 1.16 3.96 1.46 Selenium R82AN 0.280 1.64 OAOB Silver ]40.224 0.0264 0.120 0,0351 Tin 744031E 0.0896 0.409 0.120 0.107 0.249 0.148 Titanium 744032E 0.0569 0.0947 00618 Vanadium 744082-2 0,0500 0.218 0.0662 Map 744046E 0.413 2.87 0641 3.45 6.95 4.46 OBGANICAuxi- S Ble(2c4hylhaxyl)phthaleto 117-81-7 0.116 0.267 0.156 Carbamia 86-74.8 0.151 0.392 0133 s-Crwol 9548.7 0.185 1.92 0.561 p-Crmsol 1084E 0.0682 0.698 0.205 n-Dwane 12448E 2.37 5.79 3.31 2,3-Dlchloroanilins 008-27-5 0.0230 011731 0.0301 Fluorenthene 2064.0 0,253 0.787 0.393 n-Octadacane 593453 0793 1.22 0.925 248-Trichlwo hencl BB-0&2 O.OB58 0.165 0.106 Appendix A-6 Table Appendix A-6.CWT design targets and PS13S standards for Subcategory D mixed wastratreanitombinations(mg/L) Metals,O111,Organics ,a C) a,Oils B) Models,Organics Oils, ama CAS Long-Term Standards Long-Term Standards Long-Term Standards Long-Term Standards Pollutnl Paremetas Registry A.W. Monthly Average Monthly Average h7cnmlY Average Monthly Number Design Deily Design Dalty Decign Daily - Design Daily Average Average AveM"Inge Average Tamelc Maximum Maximum Targets Minimum Maxi Temetr Maximum Targets Maximum Mosl um MITALAca,Tes Antimony 7440-360 0.103 0.237 0.141 0.103 0.237 0.141 D170 0.249 0,206 0.103 0.237 0.141 Arcenlc 744D5&2 0.0839 0.162 0.104 0.0939 0.162 0,104 0,0839 0.162 0.104 Barium 7440595 0.221 0.427 0.281 0,221 0.427 0,201 0.221 0,427 0.281 Cadium 744043-9 0.0580 0,474 0.0962 0.0580 0.474 0.0962 0.0560 0.474 0.0982 Uncoadum 744057-3 0.323 0.947 0.487 0.323 0.947 0.467 1.67 15.5 3.07 0.323 0,947 0.487 Cobalt 7440484 0.115 0.192 0.724 0.115 0.102 0.124 0,115 0.192 0.124 7.42 56.4 18.8 Copper 744D50-0 0.257 0.405 0.301 0.257 0.405 0.301 0.744 4.14 1.06 0.257 0.406 0.301 Cyenlda Qnylant) 136 500 178 130 Soo 178 136 Soo 178 Load 7439-92-1 0,149 0.222 0.172 0.149 0.222 0.172 0.177 1,32 0.283 0.149 0.222 0.172 Mercury 7439-975 0.000560 0.00234 OA00739 0.000560 0D0234 0.000739 0.000560 0,00234 0.000739 Molybdenum 7439-98-7 0.943 1.01 0.065 1.54 3.50 2.09 0.943 1.01 0.965 0.943 1.01 0.965 Nickel 7440-02-0 1.16 3.95 1.45 1.16 3.95 1.45 1.16 3.95 1.45 Smanlum 778249-2 0.280 1.64 0ADS 0.280 1.64 SAW 0.280 1.64 0.408 Silver 7440-2D4 0.0264 0.120 0.0351 0,0264 0.120 04361 0.0264 0.120 0.0351 Tin 7440-315 O0898 0.409 DAN 0.0598 0.409 0.120 0.0898 0.409 0.120 0.107 0.249 0.146 Titanium 7440-32-6 0.0569 0.0947 0.0618 0.0569 0.0947 0.0618 OD569 0.0947 0.0018 Vanadium 744052-2 0.0500 0.218 0.0662 0.0500 0.218 0.0662 0.0500 0,218 0.0662 Zinc 7440568 0.413 2.87 0.641 0.413 2.87 0.641 0.413 2.07 0.641 3.45 6.95 4.46 ORDURc ANALms Bis(2amylhexypphthelale 11741-7 0.116 0.267 0.758 0.116 0.267 0.150 0.116 0.287 0.158 Carbanle 86-745 0.151 0.392 D.233 SAM 0.392 D.233 D.151 0.392 0P33 0-Crecol 95A&7 0,186 1.92 0.561 0.185 1.92 Ulli 0.185 1.92 0,661 p-Cresol 106415 0.0662 0.608 0,205 0.0682 0.698 0.205 0,0682 0,698 0.205 n-0acane 124-185 131 5.79 3.31 2.37 5.79 3.31 2.37 5.79 3.31 2,3-Dichioromlline 60&275 0.0230 0.0731 0,0361 0.0230 0,0731 0.0361 0.0230 0,0731 0.0361 Fludianthene 206440 0.253 0.787 0.393 0.253 0.787 D.393 0.253 0.787 0.393 n-Octednne 593453 0.793 1.22 0.925 0.793 1.22 D.925 0.793 1.22 0.925 218.Trichloro henol 08-06.2 0.0858 D.155 0.708 0.0858 0.755 0.f06 0.0858 0.155 0.106 Appendix A-7 Table Appendix A-7.C4WT design tar gels and PSNS standards by subcategory(mg/L) etas-Subcategory s-Subcategory B Organics- u elegoryC CAS 1-en9-Term Standards Long-Term Standards Long-Term Standards Pollutant Pmemetere Registry Average Monthly Average Monthly Average Monthly Number Damien Daily Design Ally Damon Daily Average Average Damon Target Mmlmum Mmi um Targets Mexlmum Maimum Targets Maximum I um M6TAl ANai. 1 Antlmony 744036-0 0.170 0.249 0.206 0.103 0237 0.141 Arsenic 744038.2 0.0639 0.162 0.104 Barium 74404M 0.221 0.427 0281 Cadium 7440439 0.0580 0.474 0.0962 Chromium 744Dd73 1.67 15.6 3.07 0.183 0.746 0.323 Cobsll 7440484 0.115 0.192 0.124 7.42 56A 18.8 Capper 7440403 0.744 4.14 1.06 0.157 0.500 0.242 Cyanide(in-plant) 136 Boo 178 Lead 7439.92-1 0.177 1.32 0.283 0.0986 0.350 0.160 Mercury 7439-97-6 0.000560 0.00234 0,000739 Molybdenum 70948-7 1.54 3.50 t0o 0.943 1.D7 0.965 Nickel 7440-02.0 1.16 3.95 IIAS Selenium 778249-2 0.280 1.64 0.408 Silver 7440.224 0.0264 0.120 0.0361 Tin 7440.314 0.0898 0.409 0.120 0.107 Dw 0.165 Titanium 7440326 OA569 0.0947 0.0618 Vanadium 7440Q-2 0.0500 0.218 0.0662 Zinc 7440-ON 0.413 2.87 0.641 3.14 8.26 4.60 OmaeMc Ami.y gis(2-othylharyl)phthalale 117-81-7 0.0620 0.215 0.101 Carbmale W74-8 0.151 0.598 0276 a-Cresol 95i8.7 0.185 1.92 0.561 p-Cresol 1064" 0.0682 0.698 0.205 n-Decene 124-184 0.238 0.948 0.437 2.3-Dichloroenlline 606-275 0.0230 0.0731 0.0361 Fluomnthene 20644-0 0.0173 0.0537 0.0258 - n-Ocladxene 593453 0.203 0.589 0.302 2/6-TTlchloro henol BU6.2 0.0858 0.155 0.106 Appendix A-8 Table Appendix A4.CWT design targets and PSNS standards for Subcategory D mixed wastestream combinations(mg/L) Metals,Oils,O7ganlce B, Metals,Oils 0 Metals,Others(A&C) O'Is,Organce(S&C) CAS Long-Term Standards Long-Term Standards Lmg-Term Standards Ling-Term Standards Pollutant Parameters Registry Average Monthly Average Monthly Average Monthly Awe Monthly Number Design Daily Oeelgn Only Design Dally Desgn Deily Targets Mal Average Targets Me mum Average Targets Maximum Average Tergels Mal Average M um Maximum Maximum Maximum Wk Aml.m Antimony 744036-0 0.103 0,237 D.141 0.103 0.237 0,141 0,170 D249 O206 0,103 0,237 0.141 Arsenic 7440-38-2 O.D839 0.162 D.104 0-0839 0.162 0,104 0.0639 D.162 0.104 Barium 7440-394 0,221 0.427 0281 0221 DA27 0,281 0.221 0.427 0281 Cadlum 744043E D.080 OA74 0.0962 0.0580 0.474 0.0962 0.0580 0.474 0.0962 Chromium 744047-3 0,183 0.146 0.323 0.183 0.746 0.323 1.67 1" 3.07 0.163 0,746 0.323 Cobdl 7440484 0.115 0.192 0.124 0,115 0.192 0.124 0.115 D.192 0.124 7.42 56.4 18.8 Copper 744050E 0.157 0.500 0.242 0,167 0,500 0.242 0.744 4.14 1.06 0.167 0.500 0,242 Cyanlde(In-plano 136 500 178 136 500 178 136 500 178 Lend 7439.92-1 0.0986 0.350 0.160 0.0966 0.350 0.160 0.177 1,32 0.283 0.0986 0.350 0.100 Mercury 7439V-6 0.000560 0,00234 0,000739 0.000560 0.00234 0.000739 0.000560 0.00234 OA00739 Molybdenum 7439-988 0.943 1.01 0.99 1.54 3.50 2.09 0.943 1.01 0.965 0.943 1.01 0.965 Nickel 744002-0 1.16 3.95 1.45 1.16 3.95 1.45 1.16 3.95 1.45 Sell lum T78249-2 0.280 1.64 0.408 0.280 1.64 0.4D8 0.280 1.64 OA08 Silver 7440,224 0.0264 0.120 0.0351 0,0264 0.120 0,0351 0.0264 0.120 0.0351 Tin 744"15 S0598 0.409 0.120 0.0898 0.409 D.120 0.0898 0,409 0.120 0.107 0.336 OA85 Titanium 744032-6 0.0669 0.0947 0.0618 0.0569 0.0947 0.0618 0.0569 0.0947 0.0618 termal 744082-2 0.0500 0218 0.D662 0.0500 0.21ll 0.0662 0,0500 0.218 0,0662 Lnc 7440-GM 0.413 2.87 0.641 0.413 2.87 0.641 OA13 2.87 0.641 3.14 8.26 4.50 ORCONICA LviES Bis(2athylhexyl)phlhalata 117-81-7 0.0629 0.215 D.1DI 0.0629 0215 0.101 0.06n 0215 0,101 Carbemle 80-7" 0.151 0.598 0.276 0.151 0398 0,276 0.151 0,598 0276 o-Cresol 9548.7 0.185 1.92 0.561 0.186 1.92 0.661 0.195 1.92 0.661 p-Cresol 1D8445 0.002 0.698 0205 0.0682 0.698 0205 0,0682 SAN 0205 n-Deane 124-185 0.238 0.948 0.437 0.238 0.948 0.437 0,238 0,948 0.437 2,3-Cichtor.an!line M8474 D.0230 0.0731 0.0361 0.0230 D.0731 poll 0.0230 0.0731 O.D361 Fluoranthme 2064" D.D173 0.0537 0.0268 0.0173 0.D537 0.0268 0.0173 0.0637, 0.0268 n-Ocladecane 593455 0.203 0.559 03D2 0.203 0.589 0.302 0.203 0.589 0.302 2,9B-Trichlaro henol 8NO-2 0.0956 0.155 D.106 0.0858 (l 0.106 D.0858 0.155 0.106 Appendix A-9 I PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 I am employed in the County of Los Angeles. I am over the age of eighteen years and not a party to the within entitled action. My business address is 515 South Flower Street, Forty Second Floor 4 Los Angeles, CA 90071. 5 On January 8, 2015, 1 served the foregoing document(s)described as DECLARATION OF MATTHEW I.KAPLAN IN SUPPORT OF RESPONDENTS' APPEAL TO THE BOARD OF 6 DIRECTORS OF THE ORANGE COUNTY SANITATION DISTRICT PURSUANT TO GOVERNMENT CODE §54740.5(b)AND REQUEST FOR HEARING BEFORE BOARD OF 7 DIRECTORS' STEERING COMMITTEE PURSUANT TO SECTION 618 OF WASTEWATER DISCHARGE REGULATIONS ORDINANCE NO. OCSD-39 on the interested party(ies)in this 8 action as follows: 9 [See Attached Service List.] 10 (X) BY MAIL: By placing a true copy thereof enclosed in a sealed envelope(s) addressed as above, LL 11 and placing each for collection and mailing on that date following ordinary business practices. I - am readily familiar with this business's practice for collecting and processing correspondence for 12 mailing. On the same day that correspondence is placed for collection and mailing, it is w = deposited in the ordinary course of business with the U.S. Postal Service in Los Angeles, aj ¢ 13 California, in a sealed envelope with postage fully prepaid. 14 O BY OVERNIGHT DELIVERY: I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed as noted below. I placed the envelope or package Y o 15 for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. E 16 ( ) BY FACSIMILE: Based on agreement of the parties to accept service by fax transmission, I 17 faxed the documents to the persons at the fax numbers listed below. The telephone number of the sending fax machine was 213.430.3409. The sending facsimile machine issued a 18 transmission report confirming the transmission was complete and without error. A copy of that U report is attached. 19 ( ) BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement 20 of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses listed below. I did not receive,within a reasonable 21 time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 22 (X) STATE: I declare under penalty of perjury under the laws of the State of California that the 23 foregoing is true and correct. 24 25 Executed on January 8,2015,at Los Angeles, California. 26 27 28 nna M is Dukesl PROOF OF SERVICE Lalmanage\014100\000001\1047618.1 I SERVICE LIST 2 In the matter of. Klean Waters, Inc. Tim Miller, and Shaun Miller 3 Industrial Wastewater Discharge, Permit No. 41-1-841 4 Bradley R. Hogin Attorneys for Orange County Sanitation bho in ,wss-law.com District 5 Rica R. Hager rhager@wss-law.com 6 Woodruff, Spradlin& Smart 555 Anton Boulevard, Suite 1200 7 Costa Mesa, CA 92626-7670 Tel: (714) 558-7000 8 Fax: (714) 835-7787 9 & 10 � 11 12 13 14 15 � 16 17 8 & 18 U 19 20 21 22 23 24 25 26 27 28 3 PROOF OF SERVICE Lalmmage\014100\000001\1047618.1 p,FCE1\i'-U I TUCKER ELLIS LLP CARMEN A. TRUTANICH(State Bar No. 86629) 2p15 JhN _g pM 4 30 2 carmen.trutanich@tuckerellis.com MATTHEW I. KAPLAN(State Bar No. 177242) 3 matthew.kaplan@tuckerellis.com �)CSU WILLIAM H. DANCE(State Bar No. 230041) �eCeQ iorlist 4 william.dance@tuckerellis.com 5I S South Flower Street 5 Forty-Second Floor Los Angeles, CA 90071-2223 6 Telephone: 213.430.3400 Facsimile: 213.430.3409 7 8 Attorneys for Respondents KLEAN WATERS, INC., SHAUN MILLER 9 and TIM MILLER 10 ORANGE COUNTY SANITATION DISTRICT I I In the Matter of: n 12 KLEAN WATERS RESPONDENTS' APPEAL TO THE BOARD OF , INC., TIM MILLER DIRECTORS OF THE ORANGE COUNTY 13 AND SHAUN MILLER, SANITATION DISTRICT PURSUANT TO H e GOVERNMENT CODE § 54740.5(b)AND Industrial Wastewater Discharge Permit No. REQUEST FOR HEARING BEFORE BOARD OF 1 j u 14 52.1.841. DIRECTORS' STEERING COMMITTEE s = PURSUANT TO SECTION 618 OF Y g 15 WASTEWATER DISCHARGE REGULATIONS a ORDINANCE NO. OCSD-39 'e 16 u° 17 18 U 19 20 21 22 23 24 25 26 27 28 RESPONDENTS' APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.OCSD-39 Lalmmage\0 14 1 00\00000 1\1 045711.1 1 TABLE OF CONTENTS 2 I. INTRODUCTION.............................................................................................1 3 II. BACKGROUND FACTS....................................................................................2 4 III. ARGUMENT...................................................................................................8 5 A. This Appeal of Permit Revocation and Penalties Is Timely....................................8 6 B. The Report and Order Fail To Consider The Required Statutory 7 Elements for Taking Enforcement Action; The Government Code Does Not Authorize the Penalties Imposed.......................................................9 8 C. The Portion of the Order Based on Count III of the Administrative Complaint- 9 Acceptance of Waste Outside OCSD's Service Area—Should Be Overturned............I I 10 1. The Ordinance Provision Relied On By OCSD Staff Does Not Authorize Imposition of the Permit Condition on Class I Dischargers.........................I I 11 h 2. The Express Language of Permit No. 52-1-841 Does Not Require n 12 Prior Approval By OCSD of Out of Area Wastes. ....................................12 13 3. The Permit Condition for Out of Areas Wastes Is Unenforceable 14 Because It Was Not Issued In Accordance with Ordinance Section 302.4.D.....14 15 4. Klean Waters Complied With the New Permit Condition Regarding Outof Area Wastes...........................................................................................15 F E 16 D. Klean Waters Pretreated In Compliance With Its Permit and The Clean • 17 Water Act and the Portion of the Order Based on Count 2 Should Be Overturned........18 18 1. Klean Waters Installed and Used The Batch Treatment With 19 Chemical Dosing Treatment System It Applied For and Certified........................19 20 2. The Method Used To Add Treatment Chemicals Has No Impact On a Batch Treatment System...................................................................21 21 3. The Penalty Imposed By The Order Is Unwarranted.............................................26 22 E. Klean Waters Should Not Be Penalized For Denial of Access.........................................28 23 IV. CONCLUSION..............................................................................................................................28 24 25 26 27 28 i RESPONDENTS'APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE § 54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.OCSD-39 Lalmmage\014100\000001\1045711.1 1 V. INTRODUCTION 2 Respondents Klean Waters,Inc., Tim Miller and Shaun Miller(together, "Klean Waters")appeal 3 the December 11, 2014 Permit Revocation and Penalty Assessment Order issued by General Manager 4 James D. Herberg (the "Order")and the December 8, 2014 Order of Hearing Officer Roberta L. Larson 5 (the"Report")upon which the Order is based pursuant to Government Code section 54740.5(b), and 6 sections 615.D.8 and 618 of Orange County Sanitation District("OCSD'� Ordinance No. OCSD-39 (the 7 "Ordinance").' Klean Waters appeals both aspects of the Order: the portion revoking Industrial 8 Wastewater Discharge Permit No. 52-1-841, and the portion assessing administrative civil penalties in 9 the amount of$1,190,000? 10 The Order and Report are unsupported by the evidence and fail to consider the statutorily a 11 required factors in assessing penalties or determining whether to revoke a permit. The penalties and the a 12 revocation of the permit are grossly disproportionate to actions taken by OCSD against other permittees a � Z 13 for much more serious conduct. Over the past fourteen years,the most significant penalty imposed by w14 OCSD was a$110,000 fine and suspension of a permit,which was against a permittee with actual Y 15 discharge violations who was on OCSD's list of Significantly Noncompliant Dischargers("SNC'� three 16 3 17 I The Order and Report can be found in the multi-volume Errata Appendices filed on January 6,2015, all of which are incorporated by reference, and specifically Volume I. The Ordinance also can be found 18 in Volume I, attached to Respondents' Request for Judicial Notice. a This appeal is in addition to the Request for Hearing Before Steering Committee Pursuant to Section 19 618 of Wastewater Discharge Regulations Ordinance No. OCSD-39, Appealing the General Manager's 20 Order Revoking Klean Waters' Permit and Imposing Administrative Civil Penalties Based on Order of Hearing Officer Roberta L. Larson filed on December 26, 2015 ("Request for Hearing"). As noted in 21 the Request for Hearing and discussed below,the filing deadline established by OCSD for appealing a permit revocation is invalid because it conflicts with and is preempted by Government Code section 22 54740.5(b). The issues and arguments raised in this appeal both supplement those raised in the Request 23 for Hearing, and constitute Respondents' independent appeal under Government Code section 54740.5. An Errata Request for Hearing correcting typographical errors and providing tables of contents and Y4 authorities was filed on January 6, 2014. References in this appeal to the Request for Hearing are to the Request for Hearing Errata. 25 Also, while the Request for Hearing was actually delivered to the OCSD on Monday, December 29, 26 2014, it was technically filed on December 26 because the OCSD closed early for the Christmas holiday and was not open when Respondents Vied to file the Request. Under Ordinance No. OCSD-39 section 27 605.C.4, OCSD was to be open until 5:00 p.m. to receive the Request for Hearing. OCSD's General Counsel confirmed in correspondence that delivery on December 29 was deemed a timely filing. 28 I RESPONDENTS' APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.OCSD-39 Lelmmage\014100\000001\1045711.1 I separate times. Another pennittee who was on the SNC list eight of the past ten years and had discharge 2 violations was fined three separate times for a total of$81,000. 3 In contrast,there have been no discharge violations at the Klean Waters facility other than an 4 insignificant monthly monitoring violation for copper from Klean Waters' first month of operation—a 5 permit exceedance that was not even the subject of the Administrative Complaint or hearing. Klean 6 Waters has never been on the SNC list either, at least not until after the Administrative Complaint was 7 filed when,as documents produced by OCSD after the hearing disclosed, OCSD created a new category 8 in order to put them on the list to—in the words of OCSD staff—"'hang' them." Yet the 9 Administrative Complaint sought, and the Order and Report imposed, penalties that will put Klean 10 Waters out of business (permit revocation) and fined them more than a million dollars (and more than 11 ten times more than the previously highest fine imposed). 12 Klean Waters undertook great efforts to work with OCSD employees and comply with their 13 requests, yet senior management refused to even meet with Klean Waters to try and workout 14 disagreements that arose due to personality conflicts between Klean Waters and an OCSD supervisor. Yg 15 Worse, senior management actually agreed to meet with Klean Waters but then did not come to the U 1 16 scheduled meeting, leaving Klean Waters to meet with the same individuals with whom they could not 17 reach any understandings. There is no evidence of harm to the sewer system from Klean Waters' 18 operations, OCSD's equipment or the environment, and no evidence of any economic benefit from O 19 Klean Waters' conduct. The Steering Committee of the OCSD Board of Directors should grant a 20 hearing on this appeal and overtum the Order. 21 22 VI. BACKGROUND FACTS 23 After almost twenty years of successful and award winning operation of centralized wastewater 24 treatment plants ("C WTs") in the mid-west, in roughly 2010, Tim Miller and his son Shaun moved to 25 Southern California. (November 5, 2014 declaration of Tim Miller("T. Miller Dec. I"),¶12-5; October 26 27 28 2 RESPONDENTS' APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO,OCSD-39 Lalmmage\014100\00000B1045711.1 I 20,2104 declaration of Shaun Miller("S. Miller Dec. I",¶2).)3 The Millers kept their Chicago-area 2 Klean Waters CWT (which they still operate today in Griffith, Indiana), but decided to build a similar 3 facility in Southern California. (Id.;see also, OCSD Exhibit No. 6.)4 In 2012,the Millers decided to 4 open their business in the OCSD service area and, from the very beginning, have done their best to work 5 cooperatively and professionally with OCSD personnel in setting up and operating their CWT plant, 6 which is located at 314 West Freedom Avenue, Orange, California. (T. Miller Dec. I,¶¶5-6.) 7 OCSD had not worked with CWT plants extensively prior to this time and was unfamiliar with 8 many aspects of their operations and the governing regulations. (See e.g., Hearing Testimony Martin 9 Holl ("Holl Testimony"),256:11-257:1, 272:3-10.)5 But the Millers worked cooperatively with their 10 OCSD permit writer(Mr.Holl) and inspector(David Yager) as the plant was built in the fall of 2012 11 and into 2013, and as Klean Waters began operations in May 2013. (See e.g.,Holl Testimony, 263:5- 12 20;T. Miller Dec. I, ¶¶ 11-23.) Klean Waters submitted their permit application in September 2012 and 13 began construction of their facility. (T. Miller Dec. I,¶¶6.11; OCSD Ex. 2.) While the plant was being N ^p W 14 built it was inspected by Mr. Holl. (Holl Testimony,260:2-13.) As the plant was nearing completion, x Y15 Tim Miller called Mr. Holl and asked him to inspect the facility and see if he could open for business. 16 (T. Miller Dec. I,¶ 11.) 17 Mr. Holl inspected the facility on or about January 21 along with Mr. Yager, and they concluded 18 that the facility was ready for business,and handed Mr. Miller his permit to operate. (Holl Testimony, c 19 260:14-261:10; T. Miller Dec. I,¶¶10-12; OCSD Ex. 4.) The permit was effective January 1,2013 and, 20 as of that date, authorized Klean Waters to discharge industrial wastewater to the OCSD sewer system. 21 (OCSD Ex. 4; see also, Hearing Testimony of OCSD Employee James Colston("Colston Testimony"), 22 189:18-191:13; Holl Testimony,262:13-16.) At the time Klean Waters was given their permit and, 23 therefore,authorization to begin discharging wastes to the OCSD sewer system,the construction of the 24 3 Documents and evidence referenced in this appeal are contained in the multi-volume Errata 25 Appendices filed on January 6, 2015. The Miller declarations are in Errata Appendix Vol. II. 26 4 OCSD's Exhibits Filed in Support of Opening Brief are found in Errata Appendix Vol. III. 27 5 Copies of the transcripts from the November 13 and 14,2014 Hearing on Administrative Complaint are located in Errata Appendix Vol. VI. 28 3 RESPONDENTS' APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 619 OF ORDINANCE NO.OCSD-39 Lalmamge\014100\000001\1045711.1 I plant was incomplete and the planned hard-piped mechanical chemical feed system had not been 2 installed. (See e.g., T. Miller Dec. I., ¶ 11.) 3 As Klean Waters' operations picked up, OCSD was learning more about CWT's and their 4 operations and, over time, began imposing additional requirements on Klean Waters both formally, 5 through modifications to Klean Waters' permit(which, as discussed below, were not properly issued in 6 accordance with Ordinance § 302.4.D),and informally through demands made during phone 7 conversations and at various meetings. (See e.g., T. Miller Dec. I,¶¶ 17-19,29, 41-47,49;Holl 8 Testimony, 307:8-311:10;OCSD Exs. 8, 19.) 9 Klean Waters made every effort to comply with OCSD's various demands and engage in 10 conversations to (1) get a clear understanding of what OCSD wanted(which OCSD itself did not know 11 because CWTs were new to it and new policies were being implemented piecemeal), and(2)explain 12 why various demands were unnecessary or unworkable. (See e.g.,Holl Testimony,276:13-278:21, a � '-\ 13 280:8-17, 309:7-311:10; T. Miller Dec. I,IN 20-23,25-28,41-43.) Klean Waters worked with Mr. Holl w 14 to obtain clarification of OCSD's demands, in particular new permit terms related to receipt of 15 wastewater from outside of OCSD's service area that Klean Waters contested yet tried to comply with. I-. 16 (Id.) Klean Waters submitted the specific information Mr. Holl asked for and waited for further 17 guidance while OCSD itself decided how to implement its new policy regarding out of area wastewater. a18 (Id.;see also,¶32.) 19 Despite the positive working relationship with Mr. Holl,Mr. Yager and other front line OCSD 20 employees,Klean Waters became a high level focus of concern with OCSD supervisory staff and 21 management,particularly Engineering Supervisor Roya Sohanaki. Klean Waters"got on the radar 22 screen"of management in early 2014 when OCSD issued an Notice of Violation("NOV")on January 3 23 related to an alleged violation in October 2013 of Klean Waters' maximum monthly average limit for 24 Copper. (T. Miller Dec. I,¶39.) OCSD subsequently apologized to Klean Waters for issuing this NOV 25 in error. (Id, and Ex. K.) On January 20,2014, OCSD issued a second NOV to Klean Waters involving 26 an alleged monthly average Copper violation, this one related to Klean Waters' first full month of 27 discharges(July 2013). (T. Miller Dec. I,¶40.) The NOV was based on monitoring reports showing a 28 4 RESPONDENTS' APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE § 54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.OCSD-39 Lalrraaage\014100\000001\1045711.1 I Copper discharge at .28 mg/L, barely above the .242 mg/L permitted monthly average limit and far 2 below the .500 mg/L daily maximum,but OCSD still invited Klean Waters to attend a"compliance 3 meeting" which took place on February 11, 2104, (1d.,141; October 13, 2014 Declaration of Roya 4 Sohanaki,¶3.)4 In other words, Klean Waters was invited to a compliance meeting with senior 5 management despite having only one NOV over its first six months of operations, and with that 6 violation occurring only during its first month of operation. 7 The February 11, 2014 compliance meeting did not go well, as Tim Miller and Ms. Sohanaki did 8 not get along at all. (See e.g.,T. Miller Dec. I,IT 41-43; Holl Testimony, 312:17-313:24.) Ms. 9 Sohanaki demanded Klean Waters install equipment to treat waste streams it did not even accept and 10 equipment that would not work. (See e.g., T. Miller Dec. 1,¶¶41-42; Holl Testimony, 309:7-311:22.) 11 Mr. Miller insulted and swore at Ms. Sohanaki(e.g., Holl Testimony, 312:17-313:9)because he was S a. n 12 frustrated by the illogical and unreasonable demands to install unneeded equipment and perform a 13 expensive, unneeded certified lab testing of incoming wastewater. In fact, Mr. Holl told Ms. Sohanaki w 14 that the carbon filtration equipment she demanded be installed was not needed because Klean Waters s: w 15 did not accept wastes requiring that form of treatment. (Holl Testimony, 309:7-311:22.) And Mr. 16 Colston too testified at the hearing that carbon filtration equipment is not needed at facilities that do not 17 accept wastes requiring such treatment and that the Klean Waters permit did not require installation of 18 carbon filtration equipment. (Colston Testimony, 186:20-189:8.) But Ms. Sohanaki pushed forward 19 with demands for the installation of carbon filtration equipment and other requirements not in the 20 permit. (See e.g.,T. Miller Dec. I.,¶¶41-43, 46-47,49-50; Holl Testimony, 307:8-22, 313:10-24; 21 Sohanaki Dec.,¶3.) 22 Following Mr. Miller's initial run-ins with Ms. Sohanaki, OCSD turned up the heat on Klean 23 Waters, refused to work with Klean Waters cooperatively and moved forward with further enforcement 24 actions. Klean Waters submitted additional information to OCSD as requested and continued to ask for 25 guidance from Mr. Holl and others as to how to comply with certain OCSD expectations,particularly 26 those related to out of area wastewater. (See e.g., Holl Testimony, 276:13-280:17; T. Miller, Testimony 27 6 Ms. Sohanaki's declaration is in Errata Appendix Vol. IV. 28 5 RESPONDENTS' APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE § 54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.OCSD-39 Lalmanage\014100\000001\1045711.1 l 455:18-457:10; Colston Testimony, 170:5-173:15.) But, as noted, OCSD employees needed guidance 2 from Ms. Sohanaki and other OCSD managers and that guidance was not forthcoming. (See e.g., 3 Colston Testimony, 170:5-173:15;Holl Testimony,276:13-278:21, 280:8.17; T. Miller Dec. I,IT 20-23, 4 25-28.) 5 Tim Miller recognized that personality issues were interfering with the communications between 6 the parties and he not only tried to work with Mr. Holl,Mr. Yager and the other front line employees 7 with whom he got along,he went so far as to hire an environmental consultant and former regulator with 8 the California Regional Water Quality Control Board,Dr. Athar Khan,to meet with OCSD and work 9 through the issues. (See e.g.,T. Miller Dec. 1,1148-49, 59, 63-64; October 21,2014 Declaration of 10 Athar Khan,IT 2-15.)7 But OCSD management, and Ms. Sohanaki in particular, remained unwilling (or 11 unable)to address any of Klean Waters' legitimate concerns such as installation of unneeded equipment 12 or the length of time it would take OCSD to respond to requests that it approve Klean Waters' 13 acceptance of specific out of area wastes. As an example,it took roughly two months for OCSD to y B 14 evaluate wastes from two potential Klean Waters customers, Molycorp. and the City of Coachella, Y 15 delays which lead to the loss of the City of Coachella business. (See e.g., T. Miller Dec. L,IN 15-18, 32; E 16 Colston Testimony, 173:16.175:9; Holl Testimony, 267:8-268:4, 300:4-305: 5.) 17 Klean Waters along with Dr. Khan attended a settlement meeting on April 8, 2014,which was s 18 run by Ms. Sohanaki. (See e.g., T. Miller Dec. 1,¶49;Khan Dec.,¶9.) At that meeting, OCSD staff U 19 demanded a$40,000 settlement payment along with the facility and operating changes Ms. Sohanaki 20 had previously demanded and were not required by the permit(e.g., activated carbon treatment). (T. 21 Miller Dec. I, ¶50.) But the parties could not reach a settlement at that time. Thereafter, OCSD staff 22 contacted Klean Waters' customers, and their customers' customers, and made various statements that 23 caused a substantial drop in Klean Waters' business, with outflows of wastewater dropping 48% in two 24 months. (See e.g., S. Miller Dec. 1,116-17 and Ex. K;T. Miller Dec. 1,161 and Ex. Q.) 25 OCSD staff then went forward with this administrative enforcement action. Because of the 26 personality conflicts involved, OCSD has pursued the harshest possible remedies, far beyond those 27 Dr. Khan's declaration is in Errata Appendix Vol. I. 28 6 RESPONDENTS' APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 619 OF ORDINANCE NO.OCSD-39 Lalmanage\014100\000001\1045711.1 I reasonably appropriate or previously imposed by the OCSD (in the prior fourteen years combined 2 OCSD has assessed only $1,315,387 in combined penalties and noncompliance fees).' For each of 3 Klean Waters' alleged violations, OCSD staff sought to put Klean Waters out of business by revoking 4 its permit and to impose the maximum $5,000 per day penalties on the company and the Millers for a 5 total of$2,055.000 in penalties. After filing the Administrative Complaint, OCSD staff went out of its 6 way to create for Klean Waters a new category for identifying permittees as Significantly Noncompliant 7 Dischargers in order to publish its name as an SNC,knowing full-well the negative ramifications that 8 would follow and exchanging emails encouraging each other to"get" Klean Waters and"`hang' them 9 for all their wilfull (sic)violations, disrespectfulness, and intentional disregard for OCSD's 10 authority. C.i9 (See Exhibit E to Declaration of William Dance in Support of Brief to OCSD Board of 11 Directors ("Dance Dec."), at page 005368.) g 12 Following the hearing, the Report recommended and the Order adopted extreme penalties that 13 are wholly unwarranted (permit revocation plus $1,190,000 in penalties). The Report has no discussion 14 of(1)conflicting evidence, (2) the failure of OCSD staff to provide consistent and clear directions to 15 Klean Waters, or(3) the reasons for Klean Waters' actions, (4)the absence of any evidence of harm to n `e 16 the OCSD sewer system or environment (shockingly termed"immaterial" in the Report), or(5)the other a 17 statutorily required penalty factors. The Steering Committee should hear this matter and reinstate Klean 18 Waters' permit and revoke all penalties, recognizing that the hundreds of thousands of dollars spent G 19 8 Figures are from OCSD Source Control Annual Reports available on the Internet. A summary table of 20 these violations is attached as Exhibit A to the Declaration of William Dance. As can be seen on that table, over the past ten years the highest fine imposed by OCSD was $100,000 for a chronic SNC who 21 had actual discharge violations(Electron Plating). It also shows numerous discharges that repeatedly have been on the SNC list, including for repeated illegal discharges,yet none of those pemrittees have 22 had their permits suspended(let alone revoked) or had fines imposed anywhere near those sought 23 against Klean Waters. For example, Air Industries has been fined three separate times but only for a total of$81,000 and has been on the SNC list eight of the past ten years. Nevertheless,OCSD's General 24 Counsel called Klean Waters"the most egregious case[] of noncompliance in the Orange County Sanitation District has ever witnessed." (Transcript, 9:15-17.) 25 s This email and thousands of pages of other documents were produced by OCSD staff to Klean Waters 26 only after the Hearing, despite the fact that Klean Waters submitted Public Records Act requests for this information long before the hearing and despite the fact that Klean Waters asked that the Hearing be 27 continued so it could obtain evidence from OCSD's files to use in its defense. (See Declaration of Matthew I. Kaplan submitted concurrently with this appeal,1124 and Ex. A.) 28 7 RESPONDENTS' APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.OCSD-39 Lalmwage\014100\000001\1045711.1 I trying to obtain justice in this matter and workable permit terms in a compliance program that protects 2 OCSD's sewer system and the ability of business to operate in its service area is penalty enough for 3 Respondents. 4 5 VII. ARGUMENT 6 A. This Appeal of Permit Revocation and Penalties Is Timely 7 Government Code section 54740.5 gives any"person dissatisfied with the decision of the hearing 8 officer"on an administrative complaint brought by a local agency operating a sewer system the right to 9 "appeal to the governing board of the local agency within 30 days of notice of the hearing officer's 10 decision." (Gov. Code sec. 54740.5(b).) Subdivision(a)of this statute sets forth the circumstances 11 under which a local agency such as the OCSD may issue an administrative complaint,which is"to any 12 person who violates any requirement adopted or ordered by a local agency pursuant to paragraph(1) or o. — a 13 (2) of subdivision(a) of Section 54739." (Gov. Code sec. 54740.5(a).) The Administrative Complaint ua 14 filed against Klean Waters and the permit revocation and civil penalties sought are based on alleged u � ]5 violations of OCSD's pretreatment ordinance and the regulations and the requirements imposed on 11 16 industrial wastewater users by those regulations and permits issued under those regulations. These are 17 the very standards OCSD is authorized to adopt under paragraph(1) or(2) of subdivision(a) of 18 Government Code section 54739: c 19 (a)Any local agency listed in Section 54725 may require any of the 20 following: 21 (1) Pretreatment of any industrial waste which the local agency determines 22 is necessary in order to meet standards established by the federal or 23 California state government or other regulatory agencies or which the 24 local agency determines is necessary in order to protect its treatment 25 works or the proper and efficient operation thereof or the health or safety 26 of its employees or the environment. 27 (2)The prevention of the entry of such industrial waste into the collection 28 8 RESPONDENTS'APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.OCSD-39 Lalmwaga\014100\000001\1045711.1 I. system and treatment works. 2 (Gov. Code sec. 54739(a)(1)and(2).) 3 To be sure, Ordinance section 605.C.4 states that a permit revocation must be appealed within 15 4 days,but that provision conflicts with, and is therefore preempted by,Government Code section 5 54740.5(b). An otherwise valid local ordinance is preempted by state law when it contradicts state law. 6 Marehart v. County of Santa Barbara(1994) 7 Cal.4th 725, 747. See also Water QualityAss'n v. 7 County of Santa Barbara(1996)44 Cal.App.4th 732, 741 (holding that a local sanitation district could 8 not enact an ordinance prohibiting water softeners when water softeners were permitted under state law). 9 Thus, local legislation in conflict with state law is void. People ex rel. Deukmejian v. County of 10 Mendocino (1986) 36 Cal.3d 476, 484. 11 Here, the Report was served by mail on December 9, 2014. Therefore, Respondents have until 12 January 8, 2015 to appeal the Report,and this appeal is timely filed. a - 13 [u 14 B. The Report and Order Fail To Consider The Required Statutory Elements for x15 Taking Enforcement Action; The Government Code Does Not Authorize the V H 16 Penalties Imposed. 17 The ability to impose penalties on permittees is strictly limited to the specific statutory bases E 18 authorized by the Legislature in the Government Code. Specifically, Government Code section 19 54740.5(c) allows penalties to be imposed only, "[i]f after the hearing, or appeal, if any, it is found that 20 the person has violated reporting or discharge requirements,the hearing officer or board may assess a 21 civil penalty against that person." Civil penalties can only be imposed for"reporting"or"discharge" 22 violations—not for any other conduct related to operations of a permitted facility. 23 Further support for this conclusion is found in subdivision (d) of Government Code section 24 54740.5, where the Legislature set forth the amount of penalties that could be imposed and the specific 25 circumstances under which they could be imposed: 26 (d) Civil penalties may be imposed by the local agency as follows: 27 (1) In an amount which shall not exceed two thousand dollars ($2,000) for 28 9 RESPONDENTS' APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.OCSD-39 Lelmmage\014100\000001\1045711.1 1 each day for failing or refusing to furnish technical or monitoring reports. 2 (2) In an amount which shall not exceed three thousand dollars ($3,000) 3 for each day forfailing or refusing to timely comply with any compliance 4 schedule established by the local agency. 5 (3) In an amount which shall not exceed five thousand dollars($5,000)per 6 violation for each day for discharges in violation of any waste discharge 7 limitation,permit condition, or requirement issued, reissued, or adopted 8 by the local agency. 9 (4) In an amount which does not exceed ten dollars ($10)per gallon for 10 discharges in violation of any suspension, cease and desist order or other 11 orders, or prohibition Issued, reissued, or adopted by a local agency. 12 (Emphasis added.) These very same limitations on the penalties that can be imposed are set forth and o. g 13 mirrored in the Ordinance itself. (See,Ordinance section 615.D.7.) N w14 Here, OCSD has not sought any penalties for violation of any reporting requirements or g 15 discharge violations. Indeed, the Report itself stated that"the District does not seek administrative civil 16 penalties for violations of the facility effluent limitations." (Report,p. 8, fn. 3.) OCSD does not seek 17 penalties for the failure to submit reports or for Klean Waters' failing or refusing to timely comply with 18 any compliance schedule. Indeed, OCSD never even sought a compliance schedule against Klean 19 Waters as part of its graduated enforcement regimen. There is no statutory authorization to impose any 20 penalties against Klean Waters for the charges in the Administrative Complaint. Count 1 was for 21 "Denial of Inspection and Sampling." Count 2 was for"Failure to Provide Pretreatment," although it 22 did not seek penalties for discharge violations. And Count 3 was for"Acceptance of Waste from 23 Outside of the District's Service Area." Penalties cannot be imposed for these charges. 24 To the extent that any penalties can be imposed under Government Code section 54740.5(c),the 25 law requires consideration of"all relevant circumstances,including,but not limited to, the extent of 26 harm caused by the violation, the economic benefit derived through any noncompliance, the nature and 27 persistence of the violation,the length of time over which the violation occurs and corrective action, if 28 10 RESPONDENTS'APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.OCSD-39 Lalmmage\01 4100\000001\1 045711.1 I any, attempted or taken by the discharger." As set forth in detail below, the Order and Report failed to 2 take these factors into account. In particular,the Report failed to evaluate why Klean Waters took the 3 actions that it did, including but not limited to the fact that(1) OCSD gave Klean Waters its permit, 4 legally authorizing it to begin discharging wastes, after inspecting the facility and seeing that the 5 uninstalled equipment it justifies permit revocation and penalties on was not installed at the time it 6 authorized discharges, (2)that OCSD mistakenly issued the Klean Waters permit without following 7 federal guidelines and that Klean Waters' submission of"certification"documents occurred after the 8 fact and only because OCSD employees required they be submitted, (3)Klean Waters was following the 9 directions of OCSD employees about the information to submit about out of area waste and OCSD never g 10 got back to Mean Waters with the promised further direction based on this newly developing and fluid „E9 11 policy,(4) OCSD employees' disparate treatment of other OCSD permittees; and (5) senior 12 management's agreement to meet with Klean Waters to address compliance and personality conflicts 13 and then his last minute failure to show up at the meeting. N W14 The penalties are excessive,unsupported by law and should be overturned and Klean Waters' Y15 permit should be reinstituted. U 16 a' 17 C. The Portion of the Order Based on Count III of the Administrative Complaint- 18 Acceptance of Waste Outside OCSD's Service Area—Should Be Overturned. 19 4. The Ordinance Provision Relied On By OCSD Staff Does Not Authorize 20 Imposition of the Permit Condition on Class I Dischargers. 21 In the "revised"permit issued to Klean Waters on June 28, 2013, OCSD imposed a new term in 22 the Special Conditions of Part 4 of the permit(the fifth bullet point)which required: "Sampling data 23 and customer profiles for all sources from outside of the OCSD's service area shall be submitted for 24 review prior to acceptance,treatment, and discharge of wastewater from that source." (OCSD Exhibit 25 No. 8.) In Paragraph 80 of the Complaint, OCSD alleges that Ordinance Section 208.D grants it the 26 authority to impose this term. It does not. 27 Section 208 addresses the conduct of wastehaulers, not wastewater treatment plants. Section 28 11 RESPONDENTS'APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§ 54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.00SD-39 Lalmmage\014100\000001\1045711.1 1 208 is titled "Prohibition and Requirements for Wastehauler Discharges to the OCSD Sewerage System 2 and Wastehauler Station." The Ordinance defines "wastehauler" in Section 102.89 as "any person 3 carrying on or engaging in vehicular transport of waste as part of, or incidental to, any business for the 4 purpose of discharging said waste into the OCSD's system." That description does not fit Klean Waters. 5 Mr. Colston acknowledged the language of the Ordinance applies only to wastehaulers, although he did 6 say OCSD interprets that language differently than the plain meaning of the words. (Colston Testimony, 7 160:15-164:14.) It is unfair and inappropriate to hold Klean Waters or any other permittee responsible 8 for alleged violations that are inconsistent with clear statutory language. OCSD staffs internal 9 interpretation of that language that is not part of the Ordinance cannot form the basis of any penalty or 10 the revocation of a permit. (See e.g., S. Cal. Edison Co. v. Public Utilities Comm'n (2000) 85 11 Cal.App.4th 1086, 1105 ("[A]n agency's interpretation of a regulation or statute does not control if an ` 12 alternative reading is compelled by the plain language of the provision").) Section 208.13 does not apply 13 to Klean Waters and it cannot support imposition of a condition requiring prior approval of out of area w14 wastes on Klean Waters. 15 Further,of note,the wastehauler provisions in the Ordinance require wastehaulers themselves to n 16 provide OCSD all the information OCSD sought from Klean Waters through this Special Condition. 17 (See, Section 208.F.) Rather than seek the information they wanted through this channel (or work with 18 Klean Waters to devise a system that would not disrupt its business), OCSD staff pursued, and the Order 19 imposed, the harshest possible penalties against Klean Waters related to this allegation—putting it out of 20 business by revoking its permit plus$120,000 in fines. 21 5. The Express Language of Permit No. 52-1-841 Does Not Require Prior 22 Approval By OCSD of Out of Area Wastes. 23 The language of the Special Condition does not require OCSD's prior approval of out of area 24 wastes. It merely requires the submission, "prior to acceptance,treatment, and discharge of wastewater" 25 of"[s]ampling data and customer profiles for all sources from outside of the OCSD's service area." 26 Nowhere in this language is there any requirement for prior approval by OCSD. OCSD's employees 27 testified at the Hearing that the permit language did not require prior approval. (See, Colston 28 12 RESPONDENTS'APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§ 54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.00SD-39 Lalmwage\014100\000001\1045711.1 I Testimony, 166:4-14; Holl Testimony,276:3-11.) Nevertheless, the Administrative Complaint charges 2 prior approval is required and seeks revocation of Klean Waters' permit for not getting prior 3 authorization to receive wastewater. (Admin. Comp.,1183, 86.) The Report also concludes that prior 4 approval is required,which is a finding that cannot be sustained because it conflicts with the plain 5 language of the permit. 6 The Report cites the permit language quoted above from the fifth bullet point in Part 4 and also 7 the eighth bullet point,by which"OCSD reserve[d] the right to refuse any wastewater that will cause 8 violation of its NPDES permit conditions,upset the treatment process,or adversely affect its ability to 9 dispose of biosolids." The Report concludes that, reading the two bullet points together, "the right to 10 refuse waste would be rendered a nullity" if pre-approval was not required. The language of these 11 provisions contemplate,however, submission of information and OCSD's right to notify Klean Waters W 12 that it may not discharge wastewater into the sewer; i.e., the permit only reserves OCSD's right to refuse a 13 acceptance of the wastewater. Indeed,that is reflected by the language of the eighth bullet point, which 14 requires OCSD to establish that the discharge"will cause violation of[OCDS's] NPDES permit 15 conditions,upset the treatment process, or adversely affect its ability to dispose of biosolids"before 16 refusing to accept the wastewater in question. Without such a determination, OCSD cannot refuse to c9 17 accept the wastewater. Neither in the Orders to Cease Noncompliant Discharges it issued nor at the 18 Hearing did OCSD provide any evidence to establish that any wastewater Klean Waters planned to,or u 19 did, discharge would result in a violation or upset the treatment process. 20 Moreover, there is nothing in the Ordinance that authorizes OCSD to prohibit Klean Waters from 21 accepting any wastewater whatsoever. Klean Waters could,theoretically,accept and treat wastewaters 22 and then ship them off-site for disposal,or it could act as a holding station for water. OCSD has no 23 jurisdiction to take any action against Klean Waters if this is what it was doing; its authority relates only 24 to discharges to its sewer system. Indeed,the express language of the fifth bullet point recognizes this 25 limitation, because it only requires submission of sampling data and customer profiles"prior to 26 acceptance, treatment, and discharge of wastewater." The language is in the conjunctive, not the 27 disjunctive. The word"and"was chosen over the word"or"for a purpose, which is to respect the scope 28 13 RESPONDENTS' APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.00SD-39 Lslmanage\014100\000001\1045711.1 I of authority granted to OCSD under the Clean Water Act, 2 6. The Permit Condition for Out of Areas Wastes Is Unenforceable Because It 3 Was Not Issued In Accordance with Ordinance Section 302.4.D. 4 Under the Ordinance, if OCSD wants to modify a permit it must follow strict procedures 5 designed to give permittees notice of any changes. Section 302.4.D of the Ordinance states: 6 Permttee shall be informed of any change in the permit limitations, 7 conditions, or requirements at least forty-five(45) days prior to the 8 effective date of change. Any changes or new conditions in the permit 9 shall include a reasonable time schedule for compliance. 10 � It is undisputed that Klean Waters was not afforded the protections provided by Section 302.4.D. The 11 "revised"permit was issued by OCSD staff without notice to Klean Waters and was delivered by • 12 a n Certified Mail. (See, OCSD Ex. No. 8; T. Miller. Dec. L,¶ 19; Holl Testimony, 273:22-274:6.) Klean 13 Waters was not given the 45 days required to address the proposed permit changes. See e. Holl B Y 4 P P P 8 ( g•� 14 i Testimony,274:5-275:9.) 15 cYi The Report on page 6 argues that Klean Waters was notified by the transmittal cover letter of the 16 � "revised"permit that it could challenge new terms and that it did not object to this new term until the 17 � Hearing. Both contentions are false. The transmittal letter states: "If there are any discrepancies with is the information described on the permit,please notify OCSD in writing." (See, OCSD Ex.No. 8,page 19 2.) The"discrepancies"referred to are between the description of the permit changes in the cover letter 20 and the language in the actual permit itself;nothing in this transmittal letter tells Klean Waters about 21 Ordinance Section 302.4.1),or that it could object to new permit terms and that it was required to do so 22 in writing or forever waive its right to challenge terms in the revised permit.70 (Id.) Further,Klean 23 Waters repeatedly objected to this permit condition. (See e.g.,Holl Testimony 276:3-277:8; OCSD Exs. 24 22, 28, 30.) It is unfair and a due process violation to impose penalties based on a permit term that was 25 26 10 The Report cites a case out of the Federal Courts in New Jersey for the proposition that Klean Waters has waived its right to object to the permit term. That case,Pub. Interest Research Group ofN.J, Inc., 27 v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 78 (3d Cit. 1990),was a citizen suit enforcement of the Clean Water Act, it was not a California case dealing with government enforcement. 28 14 RESPONDENTS' APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§ 54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.00SD-39 Lalmwage\0 14 1 00\00000 I\1045711.1 I not instituted in compliance with the law." 2 And,while OCSD does not need to justify imposition of a permit modification issued in full 3 compliance with the Ordinance, OCSD provides no explanation for why it imposed this term at all as a 4 modification,particularly where it knew prior to issuance of the initial permit that Klean Waters planned 5 on taking waste from outside the OCSD service area. (See, Holl Testimony, 254:11-255:9.) Indeed, 6 there is no qualitative difference between in-county or out-of-county wastewater, and no additional risk 7 for wastewater where each load is tested to insure compliance with the discharge permit prior to release 8 to the sewer system. (S. Miller Dec. I,¶¶4-9; S. Miller Testimony,480:17-481:4.) 9 7. Klean Waters Complied With the New Permit Condition Regarding Out of g 10 Area Wastes. I l The requirement for submission of information about out of area wastes was a brand new policy 12 developed and implemented by OCSD for the first time with Klean Waters. OCSD staff admitted that it a — '-� 13 had no policy or procedures in place regarding the information it wanted to receive or would require 14 from permittees. (See e.g., Colston Testimony, 172:16-24; Holl Testimony, 278:2-21.) Klean Waters Y m g 15 tried complying with OCSD's expectations when, for example, it contacted OCSD about wastewater 16 from the City of Coachella, but OCSD took almost two months to respond and Klean Waters lost that 17 business. (See e.g., T. Miller Dec. I.,¶32; Colston Testimony, 173:16-175:9; Holl Testimony, 300:4- 18 303:22.) Klean Waters actually followed the instructions of its permit writer, Mr. Holl,about submitting 19 a customer list as the initial information while he sought management's guidance on what else to submit 20 under this evolving new requirement. (See, T. Miller Dec. I,¶¶22-28; Holl Testimony,278:2-21.) 21 Then, on April 28,2014, OCSD issued an Order to Cease related to submission of information about out 22 of area wastes even though OCSD had never responded to Klean Waters' request for further guidance on 23 what was required. (See, Holl Testimony, 278:12-21;Colston Testimony, 170:17-172:15; T. Miller 24 Dec. I,¶¶22-28.) 25 " OCSD alleged other permittees comply with this same permit condition and the Report accepted this 26 as true. (Report,p. 5.) The only evidence presented at the hearing about this was the existence of a March 31, 2014 permit issued to a Klean Waters competitor. (OCSD Reply Exhibits, Ex. 35 (Errata 27 Appendix Vol. V).) No evidence at all was presented about whether this competitor sought permission from OCSD to accept out of area waste,what OCSD's response was or how long that response took. 28 15 RESPONDENTS'APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.00SD-39 Lalmanage\014100\000001\1045711.1 I Thereafter, Klean Waters still tried to comply with this condition(and all other requests of 2 OCSD staff) as demonstrated by their hiring Dr. Khan,their efforts to meet with OCSD management, 3 and through the summer working with their new permit writer. (See e.g., T. Miller Dec. I., ¶¶48-49, 63- 4 64;Khan Declaration,¶¶2-15; Shaun Miller Hearing Testimony, 478:6480:16; Harold T. Gerber 5 Hearing Testimony("Gerber Testimony"),494:16-495:1,495:14-25.) In addition, Klean Waters tried to 6 work around the personality conflicts that arose with Ms. Sohanaki and asked to meet with her 7 supervisor,Jim Colston. Klean Waters succeeded in getting a meeting setup for May 28,2014; 8 however, Mr. Colston stood Klean Waters up and did not even appear at the meeting. (See e.g., T. 9 Miller Dec. I,IN 63-64; Khan Dec.,¶¶ 8, 13-14; Holl Testimony, 315:5-316:6.) 8 10 Despite this effort at compliance with an undefined new permit condition and the refusal of 11 OCSD upper management to help resolve the scope of information needed, OCSD staff sought permit 5 n 12 revocation and maximum penalties based on thirty-two alleged instances of accepting out of area waste. 13 (Administrative Complaint,¶82.) In fact, it was Mr. Colston and Ms. Sohanaki who decided to seek 5 14 permit revocation, regardless of whether or not OCSD's General Counsel thought such an extreme step m 15 was appropriate: "Roya and I are going to recommend that we revoke the Klean Waters permit, in a 16 addition to whatever penalties that General Counsel's office believes are appropriate." (Colston May S 17 29,2014 email,attached at Ex. E to Dance Declaration,p. 2594.) And Mr. Colston reached this 18 conclusion despite his never having spoken with anyone from Klean Waters,never having visited the u 19 facility and having decided to stand them up at their meeting. (Colston Testimony, 124:1-126:6.) 20 The Order and Report concluded there were 32 violations, imposed$3,750 penalties for each 21 violation andjustified permit revocation in part on the acceptance of out of area wastes without prior 22 approval from OCSD. The Report's basis for coming up with this figure is inconsistent with the 23 evidence and statements within the Report about what the facts showed, in addition to being wildly 24 excessive in severity. On page 10, the Report concluded`that the specifics of the required submittals 25 may not have been fully understood by Klean Waters and clearly communicated by District staff until 26 March 24, 2014." (Report,p. 10.) OCSD's evidence supporting the thirty-two alleged instances was 27 submitted as OCSD Exhibit No. 33,but that Exhibit contains information on only thirteen instances of 28 16 RESPONDENTS' APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.00SD-39 Lalmmagc\014100\00000IU045711.1 I out of area wastewater after March 24, 2014,and only 31 in total.12 If there were only thirteen instances 2 of acceptance of out of area waste for which Klean Waters could potentially be viewed as culpable,then 3 the Order amounts to a fine of$9,230.77 per violation, far in excess of the $5,000 maximum authorized 4 under the law. 5 The justification of revocation of Klean Waters' permit based on acceptance of out of area waste 6 and imposition of severe fines is wholly unwarranted in this case. Such enforcement action reflects a 7 drastic departure from the traditional penalties imposed by OCSD, and an abandonment of the graduated 8 enforcement regime set forth in the Ordinance. OCSD did not seek a probation order under Section 9 602.1, did not seek an enforcement compliance schedule order under section 602.2(or try to negotiate 10 one with Dr. Khan),did not seek a permit suspension, but instead went straight to revocation and 5 I 1 maximum penalties. Neither the Report nor Order considered the lesser options available under the 12 graduated enforcement regime. Nor did they consider the harm, or lack thereof,to the facility or "1 13 environment. There was no evidence of any discharges by Klean Waters in violation of its permit limit. 14 The only evidence of any such discharge was from downstream monitoring samples taken from a sewer Y 15 manhole that had results below OCSD's own local limits. (See, OCSD Ex. 16.) And the validity of 16 these samples was hotly contested at the hearing due to evidence of cross-contamination from the sewer 6 17 and disruption of the sampling equipment. See e. November 5, 2014 Declaration of Carla Ka el, P P n8 ( 8•� 8 5 18 Carla Kagel Hearing Testimony,398::2-411:18,413:7434:22.) U 19 The Report outrageously concluded that these"sampling results are not material" (page 8, fn. 3), 20 but they are extremely material and must be considered as part of the evaluation of the appropriate 21 penalty. (Government Code § 54740.5(c).) There is no evidence of discharges that harmed the sewer 22 system,disrupted OCSD's treatment plants or risked violations of OCSD's own NPDES permit. The 23 only discharges at issue are shown to be below OCSD's local limits. This must be considered when 24 evaluating the penalties and preclude any finding that a permit revocation is warranted or penalties 25 beyond those typically imposed in past cases by the OCSD (i.e., something in the tens of thousands of 26 27 72 For the convenience of the Steering Committee, a summary table of the evidence in Exhibit 33 is attached as Exhibit D to the Dance Declaration. 28 17 RESPONDENTS' APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.00SD-39 Lalmanage\014100\000001\104571 LI l dollars).1s 2 3 D. Klean Waters Pretreated In Compliance With Its Permit and The Clean Water Act 4 and the Portion of the Order Based on Count 2 Should Be Overturned. 5 The vast majority of the fine imposed($1,000,000)relates to Count 2 and the allegation that 6 Klean Waters failed to provide pretreatment. This entire allegation is one based on semantics. And it is 7 not true. It is undisputed that Klean Waters pretreated all wastewater requiring treatment,and that the 8 treatment performed by Klean Waters was identical to that OCSD claims was not performed. OCSD's 9 own employees and hired expert agree the treatment provided was identical to that called for. In 10 essence,the Order revokes a permit and imposes a million dollar fine on what amounts to a mere 11 paperwork violation. This is unfair and inappropriate, especially in light of the graduated enforcement W n 12 regime set forth in the Ordinance and the penalties previously imposed by OCSD on others for much a13 more serious misconduct. N w14 OCSD alleged that Klean Waters violated its permit because it"failed and refused to install and z Y � 15 make operational the pretreatment system depicted in Klean Waters' [permit] application." U „ F E 16 (Administrative Complaint,174.) It further alleged that it detected"four major violations of the c3 17 discharge limits established in the Permit"based on the alleged failure to install the pretreatment system. s 18 (Id.,¶75.) u 19 At the Hearing,however, OCSD charged—not that Klean Waters failed to treat the wastewater it 20 processed—but that the certification document OCSD asked Klean Waters to provide at the time OCSD 21 was revising the Mean Waters permit was false because Klean Waters had not yet completed installation 22 of the plastic tubing, mechanical pumps and chemical tanks it planned to use to deliver treatment 23 chemicals to individual batch tanks requiring treatment. (See e.g.,OCSD Opening Argument,Transcript 24 17 25 Additional sampling was conducted in the sewers by OCSD in September 2014 in an effort to find additional violations. What the evidence showed about these samples,however, is that Klean Waters 26 had no discharge when 26 of the 30 alleged additional violations were collected. (See e.g., October 21, 2014 declaration of Dwight Hoenig,¶¶ 10-11.) The samples collected when Klean Waters was not 27 discharging showed results as high as 12,993.9%above discharge limits,proving there is another source in the area that OCSD staff is not pursuing. 28 18 RESPONDENTS'APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.OCSD-39 Lalmmage\014100\000001\1045711.1 1 10:18-11:8; Closing Argument, 524:9-13.) OCSD, its expert witnesses,the Report and Order all fail to 2 evaluate what,under the governing law,constitutes a"treatment system." They also ignore the fact that 3 this certification document(OCSD Ex. 6)was provided five months after OCSD gave Klean Waters a 4 permit to discharge wastewater(OCSD Ex. 4), and eight months after Klean Waters submitted its permit 5 application with the drawing showing the mechanical pump chemical delivery equipment and at a time 6 when OCSD, through its own inspection of the Klean Waters facility, knew the mechanical pump 7 equipment had not been installed. 8 The Report concluded $1 million in penalties and permit revocation was warranted because 9 "Klean Waters did not construct and operate the pretreatment system depicted in its permit application 10 and initial certification until September 2014,"and"Klean Waters realized an economic benefit by 11 delaying installation of the system." (Report, pp. 7, 10.) Outrageously,the Report asserts that whether n12 or not evidence of discharges in violation of the permit limits occurred as alleged by OCSD is"not a t 13 material." (Report, p. 8, in. 3.) And further asserts that whether the treatment actually provided by w14 Klean Waters complied with the permit and discharge standards was "not a matter to be determined by z 15 the hearing officer." (Report, p. 7.) And the Report cited no evidence whatsoever as to the amount, if U [� 16 any, of economic benefit realized by Klean Waters. Whether Klean Waters treated its wastewaters, 17 whether discharge violations occurred,and whether the batch treatment system used by Klean Waters �a s 18 changed at all by the installation of hard-piped plumbing and mechanical pumps are the central u 19 questions to be decided. 20 1. Klean Waters Installed and Used The Batch Treatment With Chemical 21 Dosing Treatment System It Applied For and Certified. 22 The treatment system at the Klean Waters facility is a batch treatment with chemical addition 23 system. This is undisputed. OCSD's former United States Environmental Protection Agency("EPA") 24 employee expert witness, Greg Arthur, testified that the treatment system was batch treatment with 25 chemical dosing: 26 Q. ... My question is that the treatment system used by Klean Waters is 27 batch treatment with chemical dosing? 28 19 RESPONDENTS'APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO,OCSD•39 Lalmwage\014100\00000I\1045711.1 I A. Yes. 2 (Arthur Testimony, 242:23-243:1.) Permit writer Martin Holl testified that the treatment system is batch 3 treatment with chemical addition: 4 Q. Okay. And what's the treatment system out there? 5 A. It's a batch treatment system. 6 Q. Batch treatment with chemical addition; right? 7 A. Yes. 8 (Holl Testimony, 264:16-20.) 9 Consistent with these descriptions, the certification provided by Tim Miller states: "As per our 10 plans and specifications, we are a batch treatment facility where each load of wastewater is segregated 11 for individual treatment to meet effluent limits." (OCSD Ex. 6 (emphasis added).) Nothing in this a n12 certification states Klean Waters is going to install any specific equipment whatsoever, whether pipes, a. — _5 13 mechanical pumps,chemical tanks,etc. It merely states,as required by Federal Regulations,the type of 14 treatment system being used—i.e.,batch treatment whereby each load of wastewater is treated u � 15 separately by chemical addition. And,in fact, batch treatment is what is shown on the plans and 16 specifications submitted to OCSD eight months earlier as part of Klean Waters' permit application. 17 (See, OCSD Ex. 2,Drawings 2 and 4.) 18 Turning to the governing Federal Regulations,C WTs operating under Subpart D regulations for 19 combined discharges out of one discharge point have to submit an initial certification statement that 20 "must: (1) List and describe the subcategories of wastes accepted for treatment at the facility; (2) List 21 and describe the treatment systems in-place at the facility and conditions under which the treatment 22 systems are operated for the subcategories of wastes accepted for treatment at the facility;(3)Include 23 information and supporting data establishing that these treatment systems will achieve equivalent 24 treatment." (40 C.F.R. § 437.41(a)(1)emphasis added.) This regulation does not discuss equipment at a 25 facility. This regulation discusses only"treatment systems." Klean Waters' certification and all the 26 27 28 20 RESPONDENTS'APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.OCSD-39 Lalmmage\01 41 00\000001\1 045711.1 I testimony at the hearing establish that the treatment system is batch treatment with chemical addition,14 2 Of note, the only reason Klean Waters submitted a certification at all is that Mr. Holl issued the 3 wrong permit to begin with and realized that the certification was required after reading the relevant 4 federal regulations, so he asked Klean Waters to provide the certification to presumably get the OCSD 5 into compliance with its NPDES permit through proper operation of the pretreatment program. (Holl 6 Testimony, 272:3-15.) Months after issuing the first permit to Klean Waters, Mr. Holl realized that Tim 7 Miller had a better understanding of the categorical batch treatment requirements than he, or apparently 8 anyone else at OCSD, did, something that is shown by Mr. Holl's April 23, 2013 e-mail to Mr. Yager in 9 which he remarked, g 10 I spent Friday researching all the development documents for CWT. 11 Brian's argument(it's not waste acid or base,because its pH-neutral) isn't 12 going to fly. They are definitely the "Metals" category. However: the 3 '-I a 13 different categories are NOT supposed to be mixed into one sample point, o 14 so Tim Miller is right about that. Don't know what we're going to do o 15 about that..... helluva mess, all the other CWT [permits] will have to be 16 changed too. I've got a draft email going,will add to it when The Brains 4 17 up here figure out what to do. 18 (Dance Declaration,Ex. E at 4214.) The reference here is to the fact that Klean Waters tried applying u 19 for a permit that would allow it to independently process wastewater categories without providing any 20 certification at all (Subpart A, B, and C permit). Mr. Holl confirmed this at the Hearing. (Holl 21 Testimony,257:5-15.) The permit Klean Waters wanted was the same type of permit OCSD previously 22 gave to its only Orange County competitor(Storrs Water Online), but OCSD refused to give Mr. Miller 23 24 14 Nothing in the permit authorizing immediate discharge of wastewater—given to Klean Waters by 25 OCSD before the hard-piped pump equipment was installed—or in the revised permit—also given before the equipment was installed(and after Klean Waters had started discharging)—specifies use of 26 any treatment equipment (or even any system);they merely set discharge limits. (See OCSD Exs. 4, 8.) This is because, as OCSD's expert testified,neither the permit nor any governing regulations require 27 installation of any specific equipment. (See, Arthur Testimony, 219:7-12; see also,Bracewell Declaration,¶ 14.) 28 21 RESPONDENTS' APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE § 54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 619 OF ORDINANCE NO.OCSD-39 Lalm.ege\0 14 I W000001\1045711.1 I the same type of permit when he first applied and told him it was OCSD policy to require combined 2 waste stream permits for CWT facilities." (Holl Testimony,256:16-257:15.) It was only after Mr. Holt 3 realized his mistake months later that he asked Klean Waters to submit the certification. And, consistent 4 with the cooperative approach taken all along, Tim Miller raised no objection and provided the 5 certification to OCSD so it could properly implement the Subpart D permit it issued and prove to its 6 regulators that it was properly administering the pretreatment program. 7 The Report's conclusion that Klean Waters"did not construct and operate the pretreatment 8 system described in its permit application and initial certification until September 2014"simply is not 9 supported by the evidence. To the extent it relies on Greg Arthur's testimony, it simply lacks any 10 foundation whatsoever. Mr. Arthur testified that he had no knowledge about the timing of when Klean 11 Waters provided the Certification, and no knowledge about the fact that OCSD knew construction of the g 12 mechanical pumping equipment was not complete when it issued the permit or asked for the a — a ° 13 Certification;rather he just testified that the words of the regulations implied an expectation that the w 14 equipment would be built. (Arthur Testimony, 245:4-248:23.) Mr. Arthur, and apparently the Report as 15 well, deemed it irrelevant that OCSD knew the equipment was not installed when it asked for the U 16 Certification and when it gave Klean Waters its permits. That is simply wrong. Had OCSD wanted to 17 keep Klean Waters from operating and discharging until all the equipment was installed all OCSD had 18 to do was not give Klean Waters its discharge permit(or take action to suspend the permit once it u 19 realized it needed a Certification). Giving a permit to discharge and then, after the fact, seeking to 20 penalize a person for discharges that comply with that permit is unfair and inappropriate. 21 The Administrative Complaint,Report and Order all seek to destroy Klean Waters and the 22 Millers based on what is, at most, a paperwork error brought on by OCSD's own lack of familiarity with 23 the CWT regulations and its disparate treatment of Klean Waters and its competitor. OCSD asked for 24 the Certification and issued the revised permit after having authorized Klean Waters to discharge 25 wastewater and after having seen the facility operating without the mechanical piping equipment 26 27 �e Of course, only the Board of Directors of OCSD can set District Policy and it has never issued a 28 policy preventing CWTs from obtaining Subpart A, B and C permits authorized by 40 C.F.R.part 437. 22 RESPONDENTS' APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.00SD-39 Lalmmage\0141 00\000001\104571 1.1 I installed. The Certification itself is accurate and truthful because the treatment system installed and 2 used has always been batch treatment with chemical addition. There is no basis to conclude that Klean 3 Waters failed to install and provide pretreatment of the wastewater it processed. The manner in which 4 the chemicals are added to the treatment tanks is wholly,as discussed below, irrelevant and completely 5 immaterial. 6 2. The Method Used To Add Treatment Chemicals Has No Impact On a Batch 7 Treatment System. 8 It is also undisputed that Klean Waters' method of introducing treatment chemicals to 9 wastewater batches by manually measuring out the amount of required chemical in a bucket and then 10 pouring the chemical into the treatment tank is identical treatment to adding that same chemical to the I 1 treatment tank through plumbed plastic pipes attached to mechanical pumps. In the words of OCSD's 12 former EPA employee expert witness,"[t]he chemical reaction is the chemical reaction." (Arthur 13 Testimony, 223:8-9.) Mr. Holl agreed: w14 Q: Is there any difference between chemical addition that's manually Y 15 done through a bucket in terms of the treatment quality versus manual 16 addition of chemicals that's done through manually operating a pump? 17 A: No. 18 Q: You get the same results with your treatment? 19 A: Yes. 20 (Holl Testimony 264:21-265:3.) (See also, October 21, 2014 Declaration of Dr. Lloyd Bracewell,¶ 21 14(b) "it must be emphasized that batch treatment performance doesn't distinguish between chemicals 22 that are pumped into the process tank or added manually. The batch treatment system is the simplest 23 and most effective that exists regardless of the manner used for the introduction of the treatment 24 chemicals and missing of the wastewater.")" 25 Consistent with the testimony that chemical addition by bucket or mechanical pumps and pipes is 26 identical, EPA regulations recognize that Subpart D CWT operators will make changes to their 27 16 Dr. Bracewell's declaration is in Errata Appendix Vol. I. 28 23 RESPONDENTS'APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.OCSD-39 La[manage\014100\000001\1045711.1 I operations about which local agency publicly owned treatment works will be unaware and which are 2 insignificant from a regulatory perspective so long as no discharges above permitted levels occur. Thus, 3 the regulation defining the content of the Periodic Certification Statement required under Subpart D 4 states, "[i]n the event that the facility has modified Its treatment systems, the facility should submit a 5 description of the modified systems and information and supporting data to establish that the modified 6 system will achieve equivalent treatment." (40 C.F.R. §437.41(b)emphasis added.) That the regulation 7 requires notification of past changes to the local agency through the Periodic Certification Statement 8 proves that EPA anticipates changes to equipment and treatment systems will occur that are simply 9 immaterial to compliance issues. A perspective that is consistent with the permit terms themselves, § 10 which only require that discharges of effluent have constituent concentrations(or mass)below 11 designated levels. a 12 Even though OCSD staff and their expert acknowledge the treatment results are identical, OCSD 'a 13 and the Report conclude Klean Waters failed to pretreat based on their contention that use of a bucket to w14 provide the chemical treatment dose violates the Certification and,therefore,the permit. The Report z Y � 15 undertakes no reasoning on this point—it just states that"Klean Waters must comply with the permit it t-- 16 applied for and received until such time as the permit is modified by the District,"(Report 8:1-2)—while 17 failing to address the core issue of whether appropriate treatment occurred or acknowledge the testimony L dr 18 from OCSD's own witnesses that it not only could have been, but was equivalent treatment. The Report u 19 similarly deems"immaterial"the question of whether or not there were any discharges from the Klean 20 Waters facility that exceeded the permit limits. (Report, p. 8, fn. 3.) 21 EPA actually explains its thinking in a formally published compliance guide for use by local 22 agency regulators and industry. In the SMALL ENTITY COMPLIANCE GUIDE:CENTRALIZED WASTE 23 TREATMENT EFFLUENT LIMITATIONS GUIDELINES AND PRETREATMENT STANDARDS (40 CFR 437), 24 Federal Government Publication No.: EPA 821-B-01-003 (June 2001), 25 EPA understands that CWT facilities may change operating parameters as 26 needed depending on the waste being treated. In EPA's view, a major 27 change in operating parameters(such as pH,temperature,etc.) is one that 28 24 RESPONDENTS' APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.00SD-39 Lalmwage\01 41 00\000001\104571 1.1 I is not listed in the original certification that may reduce the effectiveness 2 of the treatment. Similarly, a change in the treatment technology is any 3 significant technology change that may reduce the effectiveness of the 4 overall treatment system. For example, it would not include the addition 5 of a mixer to an existing technology,but would include 6 removing/changing an entire treatment step in a treatment train. 7 (SMALL ENTITY COMPLIANCE GUIDE, pp. 8-11 to 8-12.)17 8 Put simply,using a bucket to add the treatment chemical to wastewater batches in a batch 9 treatment with chemical addition facility is no different than using a mechanical pump attached to hard ¢$ 10 plastic pipe, or a mechanical pump attached to a hose, or a hand pump attached to piping,or any other LL 11 method of addition. The difference is wholly immaterial. Indeed, OCSD acknowledged in its reply 12 brief before the Hearing Officer that"small changes would not trigger this requirement"although a 13 `removing or changing an entire treatment"would. (OCSD Reply Brief 8:26-28.) w14 That EPA does not consider Klean Waters' use of buckets for treatment an issue of concern is z � 15 reflected in the fact that its contracted inspector, I-Hsin Lee of Tetra Tech, Inc., while performing her t= 16 audit of OCSD's NPDES compliance, performed an inspection of the Klean Waters facility on February 17 19, 2014 and made no negative commentary about Klean Waters' operations in her report. (See, T. 18 Miller Dec. I., Ex. F Pretreatment Compliance Report,at pages 21-22,and attachment pages 7-9.) As 19 pointed out by Klean Waters' expert Dr. Lloyd Bracewell, "Since [EPA's] auditors found no problems 20 at Klean Waters during their inspection,Klean Waters was quite justified in believing their pretreatment 21 system, as they had explained how it was being operated to the inspector during the inspection, was in 22 compliance." 23 But OCSD Supervisor Roya Sohanaki could not accept the fact that Klean Waters ran a good 24 facility, even if that conclusion came from a disinterested expert like EPA's contractors. Thus, Ms. 25 Sohanaki sent Ms. I-Hsin's supervisor, Chuck Durham,an e-mail proposing changes to the report that 26 Ms. I-Hsin could not support. (Dance Declaration, Ex. E at pp. 2263-2264.) Mr. Durham expressed his 27 17 A copy of the SMALL ENTITY COMPLIANCE GUIDE is attached as Exhibit B to the Kaplan Declaration. 28 25 RESPONDENTS'APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§ 54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.00SD-39 Lalmmage\01 41 00\000001\104571 1.1 I concern"that we can't really report something that I-Hsin did not witness"but nevertheless agreed to 2 make some of the changes Ms. Sohanaki wanted. (Id.) Ms. Sohanaki's efforts to convince the EPA 3 contractors to change the content of their report fortunately were not wholly successful,since the final 4 report remained positive and did not identify Klean Waters' bucket treatment as any sort of failing. But 5 it demonstrates the lengths OCSD went to in order to destroy Klean Waters' operations. 6 Indeed, there was additional evidence at the Hearing of Klean Waters being treated differently by 7 OCSD staff than other permittees. Mr. Holl testified that he was aware of at least one other OCSD 8 permittee that had hard-piped mechanical pump chemical delivery equipment that did not use that 9 equipment but instead used the bucket addition method. (Holt Testimony, 329:2-15.) He testified that 10 the failure of this and other facilities to use installed hard-piped mechanical pump chemical delivery 11 equipment was discussed with Ms. Sohanaki and others at OCSD,yet he also testified that he did not 9 12 cite that facility for violating its permit or the Ordinance. (Id.) Similar to the granting of Storm Water a. a 13 Online a separate Subpart A, B and C permit,this illustrates the unfairness and unequal treatment of 14 Klean Waters through fact that OCSD staff is trying to revoke Klean Waters' permit and impose huge 15 fines on its principals,yet ignoring other permitted operators who engage in exactly the same conduct. H 16 3. The Penalty Imposed By The Order Is Unwarranted. 17 As noted, Government Code section 547450.5(c),(d) do not authorize imposition of penalties for s 18 the failure to install specific equipment or the submission of a certification, so no penalties should be D 19 imposed. 20 The Report imposes a$1,000,000 penalty based on 200 days of operation starting February 11, 21 2014 to September 2014 at the maximum$5,000 per day. (Report,p. 10.) But there is no evidence to 22 support a finding that there were this many days' worth of discharge without pretreatment. First, 23 according to documents prepared by OCSD employee Ted Gerber,Klean Waters' mechanical pump 24 chemical delivery system was operational on August 20, 2014. (OCSD Ex. 31.). Second,the actual 25 readings from Klean Waters' daily discharge flowmeter showed that Mean Waters either closed or open 26 without any discharge for 96 of the renaming 191 days in the period. Thus, at most, Klean Waters 27 discharged on only 95 days, so even with a maximum$5,000 penalty,the total could only be $475,000. 28 26 RESPONDENTS' APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.00SD-39 Lalrnwage\014100\00000 1\104571 1.1 1 Still,the Report bases such a high penalty on its attempt to recapture the economic benefit 2 realized through the noncompliance. When this occurs,a regulator must make a reasonable 3 approximation of the economic benefit realized when calculating a Clean Water Act penalty. (See U.S. 4 ex rel. Administrator of E.P.A. v. CITGO Petroleum Corp., 723 F. 3d 547 (5th Cir.2013).) Here, 5 however,the Report makes no attempt to determine the true economic benefit that may have resulted 6 from the delayed installation of the pipes and pumps. Instead, it assesses the maximum penalty per day 7 for the entire period prior to installation without citing any evidence in support. The Report does not 8 conclude, and the evidence does not support,that Klean Waters derived significant economic benefit, let 9 alone anywhere close to $1,000,000, from the delayed installation of its chemical feed system. Expert 10 testimony would be appropriate to support such a finding, but none was offered. In fact,there has been 11 no allegation whatsoever in any of the briefing that Klean Waters derived a specific or substantial 12 economic benefit from the alleged failure to install this equipment. In truth, as shown in the December 1a - 13 26, 2014 Declaration of Tim Miller in Support of Brief to OCSD Board of Directors, Klean Waters t14 spent only $24,127.03 on the piping, pumps and electronic measuring system. Using even the most Y 15 aggressive estimates of the time value of money for delayed compliance for a seven month period V g 'e 16 would, at best, result in a penalty of less than$30,000. A$1,000,000 penalty based on"economic 17 benefit"is unsupported, and unsupportable. y 18 The Report ignores the clear weight of the evidence that Klean Waters' method of adding its u 19 chemicals produced the same result as the system it eventually installed. It is legally unsound and 20 should be overturned. There is no reason justification for putting Klean Waters out of business by 21 revoking its permit and fining it$1,000,000 for operating a batch treatment with chemical addition C WT 22 facility for which there is no discharge violation above permit levels, no harm to the environment or 23 OCSD sewer system, and no risk of harm either. This fine is grossly disproportionate to any other 24 penalties imposed by OCSD, particular where other permittees were repeat offenders who showed up 25 multiple times on the SNC list and who had actual discharge violations. 26 27 28 27 RESPONDENTS'APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.00SD-39 Lelmenage\014100\000001\1045711.1 I E. Klean Waters Should Not Be Penalized For Denial of Access 2 As noted, Government Code section 547450.5(c), (d) do not authorize imposition of penalties for 3 refusal of access, so no penalties should be imposed. 4 To the extent penalties should be imposed for this conduct,consideration of all the facts and 5 circumstances related to the access denial do not warrant the penalties imposed. The Order and Report 6 imposed the $5,000 maximum penalty for fourteen alleged violations of the permit for a total of 7 $70,000. However, the access denial occurred only after OCSD employees had begun contacting Klean 8 Waters' customers and falsely telling them Klean Waters was operating illegally. (See e.g., S. Miller 9 Dec. I,116-17 and Ex. K; T. Miller Dec. I, 161 and Ex. Q.) The access denials continued after Mr. g 10 Colston failed to show up at the meeting with Klean Waters like he promised. While these are not 11 excuses,they do provide context which justifies a downward reduction in the penalties. a 12 Further,there is no evidence of fourteen access denials, at most there were nine. OCSD charges ,.3 13 Klean Waters denying access on May 23, 2014 and September 3, 2014. (Administrative Complaint,¶ y w14 66.) But there is no evidence in the record whatsoever of any attempt to inspect on these days. Y15 Also, on May 14, 2014,there was only one inspection yet OCSD charges Klean Waters with U iF 16 three separate denials. This is inappropriate. Therefore, there were only nine violations,not fourteen, 6 17 for a maximum penalty of$45,000—a maximum that should not, and legally cannot,be imposed. s 18 U 19 VIII. CONCLUSION 20 This Appeal is timely under Government Code section 54740.5(b). The Order revokes Klean 21 Waters' permit and imposes inappropriate and excessive fines, far out of proportion to the way other 22 permittees, including ones with much worse conduct, have been treated by OCSD in the past. Indeed, 23 the law does not even authorize penalties for the specific wrongdoing alleged. The record establishes 24 great effort by Mean Waters to work with OCSD employees and comply with their requests,yet senior 25 management refused to even meet with Klean Waters. Worse,they agreed to meet and then blew-off the 26 meeting. There is no evidence of harm to the sewer system, OCSD's equipment or the environment, and 27 no evidence of any economic benefit from Klean Waters' conduct. The Steering Committee should 28 28 RESPONDENTS' APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.00SD-39 Lalrnwage\0 14 1 00\00000 1\1 045711.1 1 grant a hearing and overturn the Order in all respects. 2 DATED: January 8, 2015 TUCKER ELLIS LLP 3 4 BY Matthew I Kaplan 5 Attorneys for Respondents KLEAN WATERS, INC., SHAUN MILLER 6 and TIM MILLER 7 8 9 10 a 11 12 a. v a < 13 wv 14 Y o 15 E 16 17 18 U 19 20 21 22 23 24 25 26 27 28 29 RESPONDENTS'APPEAL TO THE BOARD PURSUANT TO GOVERNMENT CODE§54740.5(b)AND REQUEST FOR HEARING BEFORE STEERING COMMITTEE PURSUANT TO SECTION 618 OF ORDINANCE NO.OCSD-39 Lalmanage\014100\000001\1045711.1 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 I am employed in the County of Los Angeles. I am over the age of eighteen years and not a party to the within entitled action. My business address is 515 South Flower Street,Forty Second Floor 4 Los Angeles, CA 90071. 5 On January 8,2015, I served the foregoing documents) described as RESPONDENTS' APPEAL TO THE BOARD OF DIRECTORS OF THE ORANGE COUNTY SANITATION 6 DISTRICT PURSUANT TO GOVERNMENT CODE §54740.5(B)AND REQUEST FOR HEARING BEFORE BOARD OF DIRECTORS' STEERING COMMITTEE PURSUANT TO 7 SECTION 618 OF WASTEWATER DISCHARGE REGULATIONS ORDINANCE NO. 00SD- 39 on the interested party(ies)in this action as follows: 8 9 [See Attached Service List] (X) BY MAIL: By placing a true copy thereof enclosed in a sealed envelope(s)addressed as above, g 10 and placing each for collection and mailing on that date following ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for 11 mailing. On the same day that correspondence is placed for collection and mailing, it is y deposited in the ordinary course of business with the U.S. Postal Service in Los Angeles, • 12 California,in a sealed envelope with postage fully prepaid. a ¢ 13 O BY OVERNIGHT DELIVERY: I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed as noted below. I placed the envelope or package 14 for collection and overnight delivery at an office or a regularly utilized drop box of the overnight 8 delivery carrier. a 15 ( ) BY FACSIMILE: Based on agreement of the parties to accept service by fax transmission,I [-• E 16 faxed the documents to the persons at the fax numbers listed below. The telephone number of the sending fax machine was 213.430.3409. The sending facsimile machine issued a 17 transmission report confirming the transmission was complete and without error. A copy of that 9 report is attached. a 18 O BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement 19 of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses listed below. I did not receive,within a reasonable 20 time after the transmission,any electronic message or other indication that the transmission was unsuccessful. 21 (X) STATE: I declare under penalty of perjury under the laws of the State of California that the 22 foregoing is true and correct. 23 24 Executed on January 8,2015, at Los Angeles, California. 25 26 Anna Maria Dukesla 27 28 PROOF OF SERVICE 1037007.1 I SERVICE LIST 2 Bradley R. Hogin, Esq. 3 WOODRUFF, SPRADLIN & SMART 555 Anton Boulevard, Suite 1200 4 Costa Mesa, CA 92626 Tel: (714)415-1006 5 Fax: (714) 415-1106 6 e-mail: bhogin@wss-law.com 7 8 9 $g 10 C 11 12 a � a � 13 14 15 16 17 6 "s 18 G 19 20 21 22 23 24 25 26 27 28 2 PROOF OF SERVICE 1037007.1