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HomeMy WebLinkAbout1994 Joint Sewer Agreement Background DocPeter J. Walsh Sally T. True R James Miller John Moss Hinchcliff Norma Weatheriy Schwab Susan Hajda Brock Elena Salerno Flash Rosanne Mayer Hilary T. Fraser TRUE, WALSH & MILLER Attorneys at Law The Commons 101 North Tioga Street, Suite 205 Ithaca. New York 14850 FINAL Fred Weinstein Constance E Cook Stephen Yalc-Loehr Telephone; (607)273-4200 Telecopier (607)272-^694 January 13, 1994 Gary Gleason, Chief Operator Ithaca Area Wastewater Treatment Plant 525 Third Street Ithaca, New York 14850 R®s Joint Sewer Agreement Dear Gary: As we have discussed, the U.S. Environmental Protection Agency has provided us with comments on the adequacy of the Joint Sewer Agreement. This letter outlines the history of the Agreement, discusses EPA*s comments, and sets forth proposed changes to the Agreement. I. History: The Joint Sewer Agreement was approved by EPA in 1984 as part of the POTW's pretreatment program. It has not been revised since that time. The actual implementation of the pretreatment program has departed in some ways from what was contemplated in the Agreement. While Section 9 states that "All the parties to this^ Agreement shall be named as permitees on the SPDES Permit for the Ithaca Area Wastewater Treatment Plant," only the City of Ithaca is named on the permit. DEC refused a request by the municipalities last year to add the two Towns as co-permittees. Another departure from what was contemplated in the Agreement is found in the monitoring and enforcement areas. While Section 13(9)(b) states that the City and Towns have the primary responsibility for monitoring and enforcement, in practice the POTW has done all monitoring and enforcement to date. The new pretreatment laws enacted by the municipalities and submitted to EPA last year reflect actual practice rather than the provisions in the existing Joint Sewer Agreement. The POTW is authorized to undertake all inspections and sampling, as well as lower—level enforcement activities (notices of violation, compliance orders, etc.). In recognition of the fact that only the City is named on the Gary Gleason, Chief Operator Page 2 January 13, 1994 SPDES permit, the Town of Ithaca has also given the City the authority to revoke and suspend wastewater discharge permits and bring judicial enforcement actions against users located in the Town. This authority will terminate if all three municipalities are named on the SPDES permit in the future. The Town of Dryden's new pretreatment law likewise gives the POTW the authority to inspect, sample, and undertake lower-level enforcement actions. . But Dryden was not willing to give the City the authority to revoke or suspend wastewater discharge pemits or bring judicial enforcement actions against industrial users located within the Town. The City and Town tried> but failed, to reach agreement on a compromise position where the City would undertake certain enforcement activities against Dryden's industrial users only 'th.e Town had first been notified of the violations and had failed to initiate appropriate enforcement activities. At the time negotiations between the City and Dryden were going on, EPA representatives told me on the telephone that they did not think the enforcement scheme in Dryden' s law would^ be sufficient. As the City is named on the SPDES permit, it has the legal responsibility to enforce the pretreatment program against all industrial users, no matter where they are located. EPA told me that Dryden could have the authority in the first instance to enforce the pretreatment law, but that the City needed the ability to do so If Dryden's efforts were inadequate. But despite my repeated requests, EPA did not send me a letter stating these objections to Dryden's law. Dryden was hot willing to revise the Joint Sewer Agreement to give the City the specified enforcement authority based only on oral representations by EPA. It was finally agreed that the three municipalities' laws and existing Joint Sewer Agreement would be submitted to EPA and we would await EPA's written response. . EPA's Response: EPA has now provided us with a writtenreview of the proposed pretreatment laws, the Joint Sewer Agreement,^ and the Enforcement Response Plan. The portion dealing with the Joint Sewer Agreement is attached to this letter as Attachment 1. One of the deficiencies identified by EPA is that the Agreement does not give the City the right to impose and enforce ^ pretreatment standards directly against noncomplying industrial users if the .Towns are unwilling or unable to do so. ^ EPA states that the Agreement must be revised to specifically set out this remedy. EPA thus has finally given us the written statement which Dryden had wanted before it would consider revising its pretreatment law and the Joint Sewer Agreement. Gary Gleason, Chief Operator Page 3 January 13, 1994 EPA has also made a number of other comments about needed changes to the Joint Sewer Agreement which are fairly self-ej^lanatory. After EPA approved the Agreement in 1984, it revised the minimum elements needed for an acceptable intermunicipal agreement. Some of the new requirements make a great deal of sense (such as the need for a provision requiring the Towns' sewer use laws to contain the same local limits as the City's). Others can be incorporated easily, although they do not seem as compelling (such as the requirement for the Agreement itself to spell out details about access to records, even though the pretreatment laws deal with that issue). Proposed Changes to Joint Sewer Agreement: Attached-to this letter as Attachment 2 are the following proposed changes, which address EPA's comments. Current Section 13 deals with all of the powers of the SJS. Section 13(9) currently describes both how the SJS will arrange for the enforcement of sewer use laws and sets forth the municipalities' responsibilities for monitoring and enforcement. This provision should be revised so that only the responsibilities of the SJS are listed (reviewing the effectiveness of the sewer use law and acting as a liaison to the municipalities). Enforcement of the pretreatment program, which is primarily the responsibility of the municipalities (especially of the City through the Chief Operator's actions), should be described in a separate, new section. (See Attachment 2.) The proposed new section on pretreatment requires the Towns' sewer use laws to be as stringent as and contain the substantive requirements found in the City's sewer use laws. The City is identified as having the primary responsibility for issuing wastewater discharge permits and monitoring, sampling, inspecting, and updating the industrial waste survey of all industrial users. The City is also given primary responsibility for most enforcement against industrial users located in the City or Towns. Each municipality reserves the authority to suspend or revoke wastewater discharge permits in non-emergency situations, assess penalties' administratively, and bring judicial actions against users within their respective jurisdictions. if the City is the only named permittee on the_SPDES permit, then the City may also undertake those actions in the Towns. (This scheme tracks that in the laws enacted by the City and Town of Ithaca.) To address Dryden's concerns, certain conditions must be met before these higher- level types of enforcement actions may be taken against users in the Town of Dryden. Gary Gleason, Chief Operator Paae 4 January 13, 1994 While EPA recoitunends that the Agreement specifically state the municipalities could sue each other for breach of the Agreement, such a statement is not legally necessary. (They have the ability to sue each other, regardless of Agreement says so.) EPA also recommendsthat the Agreement state what remedy a municipality can get for a breach. One remedy is listed in paragraph G of the proposed pretreatment section, and tracks language requested the City during an earlier round of negotiations on the Agreement. I have not specified other remedies in Attachment 2, because such decisions seem to be political decisions which^ should be made by the municipalities. The les likewise may wish to consider changes to existing Section 11, which apportions liability for claims arising out of the operation of the treatment plant. Finally, my April 20, 1992, letter to you suggested a number of changes to the Joint Sewer Agreement. While many of those suggestions are incorporated in Attachment 2, that letter also enclosed a marked-up copy of the Agreement suggesting revisions to other sections of the Agreement not dealt with here. You may wish to review that marked-up version if the entire Agreement is being revised by the SJS. Please let me know if you need another copy, or if vou have any questions. Sincerely, Susan Hajda Brock SHB/vlw •D/247F/DrV834/REGION2/ITHACA/ITHACA.PR mcludmg nondischarge violations (such as failure to submit a required report or failure to allow inspectors access to an industrial facility.) 2.3 COMMENTS ON THE CITY'S INTERJURISDICTIONAL PRETREATMENT AGREEMENT As stated above, the City and the Towns of Ithaca and Diyden have entered into an agreement entitled •Joint Sewer Agreement." A review of this agreement is included below. It should be noted that, at the time the agreement was entered into, it was anticipated that the City and both Towns would be named as co-pemuttees on the SPDES permit. However, only the City is named on the SPDES permit. To have adequate legal authority under the General Pretreatment Regulations, the City must be able to enforce pretreatment standards and requirements against all lUs dischargmg to the POTW. The City's authority to enforce its pretreatment program against extrajurisdictional lUs located in the Towns is dependent on both the provisions in the Towns' local laws and the content of the Joint Sewer Agreement. Several aspects of the City's authority to enforce pretreatment program standards and requirements are addressed in the Towns' sewer laws. The local laws of both Towns authorize the City to undertake lower level enforcement actions against lUs located within the Towns' jurisdiction. The Town of Ithaca's laws give the City the right to bring formal enforcement actions against users in the Town's jurisdiction, and also give the City the right to suspend or revoke wastewater discharge permits. However, the Town of Diyden's laws do not allow the City to suspend or revoke wastewater discharge permits or bring formal enforcement actions agamst lUs located within the Town of Dryden. The laws of the both Towns allow the Chief Operator, a City employee, to perform inspections and sampling and issue Notices of Violation (NOVs) and compliance orders for lUs located withm the Towns. Other elements of the program implementation and enforcement authority of the City in the Towns are outlined in the Joint Sewer Agreement discussed below. A- Minimum Elements of an Interiurisdictional Aprp^mf.nf An effective inteijunsdictional pretreatment agreement should address the following elements: Sewer Use Ordinance - The contributing jurisdictions should agree to adopt laws that are no less stnngent than the Control Authority's law. • Limits - The contributing jurisdictions should also agree to adopt local limits for industrial discharges to its collection system that cover at least the same parameters and are at least as stringent as the Control Authority's local limits. Collect mdustnal User Information - The agreement should indicate whether the contributing junsdictions or the Control Authority is responsible for routinely updating the Industrial Waste Survey (IWS) to ensure current information on all lUs. 2-7- D/247F/DrV834/REGION2/n'HACA/ITHACA.PR Enforcement - The agreement should indicate whether the contributing jurisdictions or the Control Authority has the primary responsibility for enforcing pretreatment standards and requirements against lUs located in the contributing jurisdictions. Permitting - The agreement should Indicate whether the contributing jurisdiction or the control Authority is responsible for permitting lUs located within the contributing jurisdiction. If joint permits are to be used, the agreement should indicate which jurisdiction is responsible for preparing draft permits. Right of Entrv/Inspection and Sampling - The agreement should indicate whether the contributing jurisdiction or the Control Authority will have the primary duty to inspect lU facilities. The contributing jurisdictions should also acknowledge the Control Authority's ability to enter the facilities of lUs periodically to verify compliance with applicable pretreatment requirements. Records Transference - The contributing jurisdictions should agree to provide the Control Authority with access to all records compiled as part of the contributing jurisdictions' pretreatment program activities. Remedies for Breach - Where the contributing jurisdictions have primary responsibility for permitting, compliance monitoring, and/or enforcement, they should agree that the Control Authority has the right to take legal action, as necessary, to enforce specifically the terms of the agreement and/or impose and enforce pretreatment standards and requirements directly against noncompliant lUs in the event the contributing jurisdiction is unable or unwilling to do so. The agreement should also provide for remedies available against the noncomplying party (the Control Authority or the contributing jurisdiction). B. Analysis of Agreement Sewer Use Ordinance - Section 13(9)(a) of the agreement states that a Special Joint Subcommittee (SJS) is responsible for reviewing the effectiveness of the sewer use laws and their enforcement. However, no provision in the agreement requires the Towns of Ithaca and Dryden to adopt sewer use laws that are at least as stringent as the City's. Although the Towns have similar laws at this time, it is recommended that the agreement be revised to require the Towns to adopt laws that are at least as stringent as the City's. Local Limits - No provision in the agreement requires the Towns to adopt local limits that will be protective of the collection system, WWTF, receiving stream, and WWTF sludge. At the time of this review, the Towns' sewer use laws contain the same local limits as the City's. However, to ensure that the Towns continue to adopt local limits that are protective of the collection system, WWTF, receiving stream, and WWTF sludge, the agreement should be revised to require this. Collect lU Information - The agreement does not indicate whether the City or the Towns will be responsible for routinely updating the IWS in the Towns and should be revised to do so. Enforcement - Section I3(9)(b) of the agreement stales that the City and the Towns have primary responsibility for enforcement within their own jurisdiction. This provision also states that the City's Sewer Superintendent has the authority to enforce the sewer use law and pretreatment program and regulations in collaboration with the Towns' municipal of^cials. Based on the City's submission, it appears that the City will initiate nonjudicial enforcement actions, while judicial enforcement actions will be taken in collaboration with the Towns. If this is the case, the agreement should be revised to clarify whether the City or the Towns will be responsible for initiating judicial and nonjudicial enforcement actions. All of the above should reflect what enforcement authorities the City has under the Towns' local laws, as discussed in the introduction to this section. 2-8 D/247F/DIV834/REGION2m-HACAm-HACA.PR • Permitting - The agreement does not indicate whether the City or the Towns are responsible for pennittmg lUs located within the Towns' jurisdictions. The City's and the Towns' proposed local laws appear to indicate that the Chief Operator is responsible for permitting lUs located both in the City and the Towns. Since the Chief Operator is a City employee, it appears that the City is responsible for permitting all lUs. However, the agreement should be revised to clearly indicate whether the City or the Towns are responsible for permitting users located within the Towns' jurisdictions. * K'^ht of Entry/Inspection and Sampling - Section 13(9)(b) of the agreement states that the City andTo^s have the primary responsibility for monitoring industrial wastewater within their own jurisdictions. This provision also states that the City's Sewer Superintendent has the authority to sample and monitor industrial discharges throughout the service area in collaboration with the Towns' municipal engineers. These provisions appear to indicate that the Towns will be responsible for conducting monitoring activities. However, the Towns' proposed local laws grant the Chief Operator legal authority to conduct inspections and sampling. Based on these provisions, it appears that the City will be primarily responsible for conducting monitoring activities in the Towns. Thus, the agreement should be revised to clarify that the City has the primary responsibility for conducting monitoring activities, if applicable. * Records Transference - The agreement does not include a provision that requires the Towns to provide the City with access to all records compiled as part of its pretreatment program activities. Therefore, the agreement should be revised to include such a provision. • Remedies for Breach - The agreement does not include a provision that gives the City the right to take legal action to enforce the terms of the agreement and to impose and enforce pretreatment standards and requirements directly against noncomplying lUs if the Towns are unwilling or unable to do so. As indicated in the submission letter from the City's attorney, the City could sue the Towns for breach of contract if the Towns failed to undertake enforcement actions as required by the agreement. However, it is recommended that the agreement be revised to specifically set out this remedy. 2-9 -12- Revised Vll/84 Budget estimates; for the joint WPCP cperation will be sutndtted by the Superintendent-bf Public Works to the SJS by July 1, preceding each fiscal yearii By September 1, the SJS will, submit a recamended budget' to tJie Board of Public Works. I 'I One marber of the .§JS or another person so designated by the SJS shall serve as • Secretary for the purpose of providing noting • * I notices, recording, and distributing minutes of the meetings, and other administrative duties. Each itEinber shall have the right to present agenda itetis for discussion and arbitration, n • : . I The SJS shall havevthe follcwing authority, power and duties: . '."i n i (1)- Establish the administrative procedures for administration of the Agreeient and for the billing of charges, to the nunicipalities. (2) Discuss audit tdie billings prior to submission for payment, I ji" • S , (3) Discuss and negotiate any matters of nutual interest in relation.io the ownership Agreement, ; (4) From tiite''to time, rrake recarmendations to the municipalities regarding the Agreement, (5) Adninistfer the Reserve Capacity set-aside. n' ' :(6) Negotiate.;eguitable charges for services rendered to each other or jointly. (7) Review applications for new service connections as appropriate to assure accaiplishment of the prinary objective^ of the Pretreatn^t Program. (8) Monitor ^ster £1cm meters. (9) ^uiuJigL figiW Uoa bmra .It shall be the responsibility of the SJS to n ^review the effectiveness of the Sewer Use Law I;-and Regulations and the Pretreatment Program . i ' •. jjand their enforcement by the duly authorized = f.i: -13- ' Revised 4/11/84 n r , ;■ ' nunicipal officixds. It shall report I * *■ V periodically on the foregoing nutters to the - }. City's Board of Public Works and to the -■jl respective Town Boards of the Towns of Ithaca ■; and Dryden and shall furnish such information - yand data as may be required by the Board of 1*■ Public Works or the Town Boards. (b)::;.The City and ^he Itowns havefthe priitary "Irresponsibility Vor monitorjing industr^l AVastewater and enforcing fo licable laws and VJitV>v)eK/ \ /iCcKon ov* j ! ^regulations within the j^isdictioh of eachsuch municipality! withifi their respective ;i areas. In order ti pr^ide an orderly, . j effective monitoriiL ^d enforcement program, •.. the City' s Sever Smerintendent of the Joint ■.•'Ij'v If•; -j .Sewer Treatment PlanH FaciUty or his duly . ^authorized representative shall have the .jauthority (1) to s^le and monitor industrial ■.discharge throughout txe sewer service area in collaboration with/theCity Superintendent of Public Works (in iJiose ^ses where the '.-discharge into thJ sewericollector .system .■■'originates in thJcity) aM the itunicipal ■ ri.engineer of the fe spectivdTowns vhere such -^-discharge origiJates; and \(2) to enforce the ..Sewer Use Law ^ the PretrWtment.'progrdm and regulations irf oollaboratioi! with the nunicipal • •''<! / II j'"; provided in tdie preceding • • [. '.subparagraph 1(1), "I I(c);' l.The status of all violations Aall be I ;... iiimediately Reported to the Sjl, which shall ■ • I prcnptly reJaimend whatever fuAher action nuy :;ibe requiredlto correct or stop iy violation, . -.!• to the Mayct or the Itown Supervilor of the ; /.municipali^ in which the violatAri occurred. Ravisdd 4/11/84 n If legal actW is required^^ie natter shall ' be praiptly raerred to tKe attorney of the ' municipality in^hictwJhe violation occurred/ or to such other attorney duly authorised to 1 1. take such action'^^e municipal attorney n V ."concerned shalJ^iave the authority .to Initiate , _ proceedings wen ijnnedi\e action is reguired. (10) Submit'periodic and annual reports to the municipaliaes. (11) Notify the governing bodies in relation to any claims/ demandS/,.:-disputes/ differences/ controversies and misunderstondings which cannot be resolved by arbitration and negotiation, ; ,;i(12) Negotiate" an agreement with Otinpldns County on the financii^;of the capital oost of the septage facility and tlie methods of the recovery of the capital and operating and maint^ance costs for same. (13) Frcm timai to time hold public heariigs as necessary. (14) Fran to tiire review the Operating and Maintenance Manual, .'i (15) It shall adopt, subject to the approval of the governing municipalities which are parties to this Instri^t regulations to implement any of the foregoing pcwers" and duties, ^ 1 i Sectioi 14. Acprovala . . Ohis Agreement ^lall be effective ipon approval by the governing bodies of each nuniiipality, subject to required provisions of law. Upon approval o£-tl}is Agreanent, each municipality shall proceed to arrange procedures for financing the construction of this Agreensnt. It is i^derstood that no bid for cbnstruction shall be advertised and no .contract for the construction shall be awarded until all bonding; and financing resolutions have been finally approved and aut^i^rized and all required procedures have been ccnplied with, ; Section . Pretreatment A. The Towns' sewer use laws, including laws containing local limits, shall at all times be as stringent as and contain the substantive requirements found in the City's sewer use laws. B. The City shall have the primary responsibility for issuing industrial wastewater discharge permits and monitoring, sampling, inspecting, and routinely updating the Industrial Waste Survey of industrial users throughout the entire sewer service area. The Towns delegate to the City 3^u.thority to enter the facilities of industrial users within their respective jurisdictions for the purposes of carrying out the above-mentioned activities. C. The Towns shall provide the City reasonable access to all records they may compile as a result of pretreatment program activities. D. Except as specified below, the Towns delegate to the City their authority to enforce their respective sewer use laws, and the City shall have the primary responsibility for enforcing the pretreatment program and each municipality's sewer use laws. E. The municipality in which each respective industrial user is located shall have the responsibility for revoking or suspending wastewater discharge permits in non-emergency situations, and assessing administrative penalties and instituting judicial actions against the industrial users located within that municipality. Each of the municipalities has such responsibility if the industrial user is located outside the municipalities which own the POTW. F. Unless and until all of the municipalities which own the POTW are named on the POTW's SPDES permit, the city shall also have the power to revoke and suspend wastewater discharge permits in non-emergency situations, and assess penalties and institute judicial actions against industrial users located within the Town of Ithaca or Town of Dryden. The City»s power to undertake these specific activities against industrial users located within the Town of Dryden may not be exercised, however, unless all of the following events first occur; i. The Town of Dryden receives written notification from POTW or City officials that an industrial user located within the Town is believed to have violated, or be in current violation of, any of the Town*s sewer use laws. ii- The Town fails to initiate appropriate enforcement activities within thirty (30) days of receipt of this notification, or fails to diligently pursue said activities once they have been initiated. Appropriateness of the Town's enforcement response shall be determined by comparing the Town's response to the response recommended by the POTW's Enforcement Response Plan, which has been developed by the POTW pursuant to federal regulations. iii. During the thirty (30) day period described above. City officials make themselves available to meet with the Town to discuss potential enforcement responses against the industrial user. G. If the City as sole permittee is fined by the U.S. Environmental Protection Agency or New York Department of Environmental Conservation for violations which are the result of the Town of Dryden's failure to undertake appropriate enforcement activities, the Town of Dryden agrees to indemnify the City for such fines or penalties, and attendant costs. H. [If desired, spell out other remedies one municipality can get against another for a breach of this Section.] I. Each municipality shall consult with and keep officials in the other municipalities reasonably informed of the pretreatment program implementation and enforcement activities it is undertaking. J. All enforcement of the municipalities' sewer use laws and the pretreatment program shall be undertaken pursuant to the POTW's Enforcement Response Plan.