WASTEWATER AND STORMWATER

Wastewater regulation affects small industrial shops discharging to the local sanitary sewer, as well as larger industrial facilities which may discharge to the sewer or directly to a local stream.  There are also regulations covering local publicly owned sewage treatment works (POTW) including the treatment of both sewage and industrial user wastewater.  Pursuant to the federal Clean Water Act and state regulations and enforcement programs, direct dischargers and POTWs obtain permits from the state agencies, which require compliance with effluent discharge concentration limits via biological, mechanical, and chemical treatment. POTWs issue “pretreatment” permits to industrial users to assure that targeted pollutants neither interfere with POTW treatment nor “pass through” with insufficient treatment.    

Effluent limits are a combination of EPA national technology- based requirements applicable to specific industrial processes, and water quality based limits intended to allow maintenance of state ambient water quality standards. 

As technology and water quality needs evolve,  effluent limits often become more stringent, resulting in the need for significant capital expenditures by industrial facilities (as well as POTWs) to meet effluent limits at the time of permit renewal.  POTWs receiving effluent limit revisions often revise pretreatment standards in order to distribute the increased   public capital costs. Negotiation of revised permit limits, and administrative appeal where necessary, are important components of the legal work required for both public and private permitees,  along with defense of enforcement actions which may seek both penalties and commitments for upgraded wastewater treatment facilities.  

Stormwater regulations for industrial facilities generally address site management practices that minimize stormwater contact with process materials.  At construction sites, stormwater regulations and permits impose detailed requirements for“best management practices” (BMPs) to minimize erosion and sedimentation (E&S)  during construction as well as during post-construction property use.  These regulations aim  to protect streams from particulates and pollutants which can harm the ecosystem of such waters. Owners, construction contractors  and construction counsel can benefit from Environmental Counsel tasked to manage the inevitable E&S Plan infractions.  Environmental counsel also provides  oversight of the process of completing installation of the required post construction storm water management plan in accordance with the storm water permit and overall construction deadline expectations.

Construction impact on wetland areas adjacent to surface waters is also part of the scope of water protection regulation and permitting.  In many instances, the need to build in or near surface streams, tributaries, flood plains, or adjacent high water table areas triggers requirements to obtain a permit from the U.S. Army Corps of Engineers as well as detailed review from the state environmental agency.  Delay in obtaining necessary permits can materially impact project construction schedules, as can Army Corps or state agency enforcement actions.  

• Representation of industrial users in response to POTW or EPA enforcement actions alleging violation of effluent limits or limits on wastewater volume; 

• Appeal of renewed POTW permit imposing unreasonable effluent limits based on TMDL study and stream contaminant dispersion model.  Worked out settlement allowing revised limits and deferred compliance schedule.

• Representation of contract operator of POTW in response to EPA compliance order requiring significant capital investment to limit combined sewer overflows (CSO) of raw sewage;

• Defense of large property owner in federal citizen suit against owner and contractors alleging property damage and violation of construction stormwater permit; Negotiation of consent decree including post- construction stormwater management plan;

• Representation of homeowners in claims against developer for non-compliant stormwater control facility;

• Representation of industrial facility in resolving threatened citizen suit for alleged stormwater permit violations;

AIR PERMITS/ENFORCEMENT

The regulation of air emissions covers issues ranging from specific industrial toxic air pollutants, small particulates, nitrogen oxides, volatile organics and Carbon Monoxide, to the concentration of sulfur or toxic contaminants in coal or waste oil burned for energy. The complexity of required permitting is largely a function of the annual tonnage of particular pollutants predicted to be emitted from an industrial facility.  Applicable emission limits may also be a function of the extent of progress made in a particular region toward attainment of air quality goals. 

Applicable limits often become more stringent upon implementation of a “major modification” of a facility or construction of a new facility.   Installation, operation, and replacement of pollution control systems can be very expensive.  Thus, the applicability of air emission limits and “full” permitting ( often referred to as Title V permits) can be an important legal issue related to industrial facility plans for operation, expansion and capital budgeting.  Advice and representation in the permitting necessary for new facilities can be especially important, in order to avoid start up delays resulting from late or inadequately prepared permit applications or failure to incorporate control equipment installation and testing into construction timetables. 

• Advised manufacturer in negotiation of Title V air permit conditions;

• Advised manufacturer on preparation and submittal of a permit application for a new location with substantially modified process; 

• Defended manufacturer and negotiated settlement of EPA administrative assessment of a civil penalty; 

• Represented waste oil distributor against contractual indemnity claims by customer facing enforcement action for failure to meet regulatory boiler combustion specifications.

SOLID WASTE AND RECYCLING

Solid waste regulations address the collection and disposal of municipal waste as well as the non-hazardous component of waste from industrial facilities and construction sites. Recycling of solid waste materials for reuse or energy production is a substantial and growing industry.  

State waste regulations ostensibly encourage recycling by providing limited streamlining of regulatory requirements. However, cutting a path through this maze can be complicated and time consuming.   Siting approval can also be challenging, particularly when area residents are convinced that a facility will create a nuisance and affect property value. The role of environmental counsel includes navigation of both the regulatory process and the public relations issues associated with permitting and siting. 

• Representation of local business owners group opposing the siting of a solid waste transfer station in their area;

• Advised client regarding strategy for beneficial use permit to recover foundry sand at shuttered foundry facility;

• Defended manufacturer before PA Environmental Hearing Board for solid   waste storage citations; Contested PADEP presumption that useful drummed material was subject to regulation as waste.   

OSHA ASBESTOS REGULATION

OSHA regulations require periodic monitoring of indoor air to assure compliance with air quality standards for asbestos fibers.  Workplaces are required to identify the locations of ACM, maintain such materials to minimize airborne dust, and to remediate such dust and/or the source as necessary.  There are also both OSHA and EPA regulations applicable to building renovations and demolitions where ACM is present.  Philadelphia is among the local governments which have promulgated substantial requirements applicable to renovation and demolition of buildings containing ACM.  Environmental counsel facilitates regulatory compliance and defends enforcement actions seeking civil penalties.  Counsel is also instrumental in management of asbestos situations when discovered, to address potential private party tort claims by contractors and others.  

• Advised client on OSHA and Philadelphia regulatory compliance and employee exposure issues after discovery of asbestos material during building renovation;

• Advised client on OSHA asbestos remediation requirements and obligations to tenants after significant fire damage; 

PCB REGULATIONS

PCBS are regulated primarily by EPA, under the Toxic Substances Control Act (TSCA) and the regulations at 40 CFR Part 761 et seq.  For the most part, introduction of new PCB product and use of products and equipment containing PCB are banned by the regulations.  However, the continued use of many old transformers and capacitors is allowed, subject to storage regulations.  These regulations require periodic inspections for leaks and condition of equipment.    EPA regulations also include stringent requirements for the remediation of historic PCB contamination in building surfaces and soils. 

Unduly narrow interpretation of EPA PCB regulations can result in prohibitively expensive remedial actions   associated with building demolition and redevelopment.   Appropriate regulatory advice by counsel, coupled with EPA negotiation where necessary, can prevent these regulations from creating infeasible construction performance standards.  

• Representation of site owner in remediation of historic PCB contamination in accordance with applicable EPA TSCA regulations

• Representation of manufacturer in EPA penalty assessment   following inspection of transformers containing PCBS;

• Advised construction contractor on regulatory and contract obligations for disposal of PCB transformers at Brownfield redevelopment site;

EPA TSCA RULES—LEAD PAINT DISCLOSURE

EPA TSCA regulations require landlords of older buildings to disclose specific information to tenants regarding known or potential presence of lead based paint in rented units. The regulations do NOT require removal of such paint.

SELECTED EXPERIENCE

Represented apartment building owner in EPA administrative enforcement action alleging failure to disclose presence of lead paint; negotiated civil penalty;