ALJDEC

99A-C158-DEQ · Department of Environmental Quality · 1999-09-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 20, 1999 APPEARANCES: Ted Miotke, CEO on behalf of Specialty Textile Services a Limited Liability Company (STS) Nancy Stone Jamison, Assistant Attorney General, on behalf of the Arizona Department of Environmental Quality (Department) ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings Of Fact 1. STS is a commercial laundry and linen service which began operations in Phoenix Arizona, in approximately September, 1996. Initially STS did not require a Wastewater Discharge Permit (Permit) from the City of Phoenix (City). 2. In July 1997, STS obtained a Class A Permit from the City. The Permit is required by businesses which are defined as Significant Industrial Users under certain City environmental ordinances which are derived from the Code of Federal Regulations (CFR). 3. STS was determined to be a Significant Industrial User based on the discharge of 25,000 gallons or more of wastewater in a day, to the City Publicly Owned Treatment Works (POTW). 4. STS has been issued a Permit by the City since 1997. 5. The City is required to submit a list of current permittees to the Department under A.R.S. §49-209(B). 6. The City submitted its 1999 list of permittees to the Department which in turn assessed STS an annual fee of $250.00 pursuant to A.R.S. §49-209. 7. STS appealed from the assessment bringing this case on for the instant hearing. Conclusions Of Law A.R.S. §49-209 (A) provides: “A. Each person that is required to obtain a permit for discharges into a community sewer system under federal categorical industrial pretreatment regulations and standards shall register each year with the director and pay an annual registration fee of two hundred fifty dollars.”

According to 40 CFR 403.3(t)(i), subject to an exception not applicable to this case, and to the extent relevant in this case, a Significant Industrial User means: “(i) All industrial users subject to Categorical Pretreatment Standards under 40 CFR 403.6 and 40 CFR chapter I subchapter N; and ii) Any other industrial user that: discharges an average of 25,000 gallons or more per day of process wastewater to the POTW treatment plant(excluding sanitary, non contact cooling and boiler blowdown wastewater);…”

1. There are no factual disputes in this case and the only issue in this hearing is whether STS, as a Significant Industrial User under the CFR (and the City ordinance), is a person required to obtain a permit for discharges “…under federal categorical industrial pretreatment regulations and standards…” so as to make STS subject to the statutory assessed fee of $250.00. Stated another way, does the statutory language of A.R.S. §49-209 “…obtain a permit under… federal categorical industrial pretreatment regulations and standards…”, include or exclude a Significant Industrial User which is not in a specified category under Categorical Pretreatment Standards but is subject to all “…applicable pretreatment standards and requirements as set forth in this part “ (40 CFR Part 403).? The conclusion is dependent on a determination of what the Arizona Legislature meant by “federal categorical industrial pretreatment regulations and standards”. If it is concluded that the term applied only to those industries specified under the Categorical Pretreatment Standards, then STS is not required to pay under the statute. If it is determined that term applies to Significant Industrial Users generally as part of the pretreatment program requirements, then STS is within the statute and is required to pay. 2. 40 CFR Part 403 is titled ”General Pretreatment Regulations For Existing And New Sources Of Pollution”. 3. The objective of the general pretreatment regulations is to limit pollutants introduced and passing through POTWs (40 CFR 403.2) . 4. Part 403 includes §403.5 which addresses National Pretreatment Standards: Prohibited Discharges and §403.6 National Pretreatment Standards: Categorical Standards. The term “Categorical Standards” means national pretreatment standards which specify quantities or concentrations of pollutants which may be discharged to a POTW by Industrial Users (as defined in the CFR), in specific industrial subcategories. These standards “…shall be in addition to all applicable pretreatment standards and requirements set forth in this part.”. Numerous specific industrial subcategories are listed in subsequent parts of 40 CFR §§405 -471. It is concluded that the term “Categorical Pretreatment Standards” as used in 40 CFR 403.6 and 40 CFR chapter I subchapter N, means standards which apply to the identified industries which have been placed in specific subcategories and are therefore covered by the CFR standards specifying quantity and concentration of pollutants. Being so categorized, results in an Industrial User being a Significant Industrial User. Other Industrial Users which have not been so categorized and to which the Categorical Pretreatment Standards therefore do not apply, but which meet certain conditions (in the case of STS, 25,000 plus gallons a day), are also defined as Significant Industrial Users. In view of this, an entity which is a Significant Industrial User because it falls into a specified category under Categorical Pretreatment Standards, has different requirements and is treated differently than, a Significant Industrial User which is such for some reason other than being in a specified category. However both types of Significant Industrial Users are subject to Pretreatment Program Requirements. 5. 40 CFR 403.8, Pretreatment Program Requirements: Development and Implementation by POTW, under (f)(1)(iii), requires that the legal authority for a POTW to operate, shall at a minimum enable the POTW to: “(iii) Control through permit, order, or similar means, the contribution to the POTW by each Industrial User to ensure compliance with the applicable Pretreatment Standards and Requirements. In the case of Industrial Users identified as significant, under 40 CFR 403.3(t), this control shall be achieved through permits or equivalent individual control mechanisms issued to each such user. Such control mechanisms must be enforceable and contain at a minimum, the following conditions: … (C) Effluent limits based on applicable general pretreatment standards in part 403 of this chapter, categorical pretreatment standards, local limits and State and local law:”

6. The above shows that the permitting requirements apply to Industrial Users and that special requirements (individual control mechanisms), apply to Significant Industrial Users whether or not subject to Categorical Pretreatment Standards. 7. The precise language “Categorical Pretreatment Standards”, is not used in A.R.S.§49-209. The Appellant’s argument is that because the statute uses the words “categorical” “pretreatment” and “standards” in the phrase “federal categorical industrial pretreatment regulations and standards”, the statute only includes those persons which fall within a specified category under the Categorical Pretreatment Standards. The argument merits consideration but is not dispositive. This is because the language used by the legislature is not identical to the language used in the CFR. Presumably, if the legislature had intended to limit the statute to the specific industries that were categorized under the Categorical Pretreatment Standards, it could have used the identical language as in the CFR. Such intent could have been more clearly stated by: “A. Each person that is required to obtain a permit for discharges into a community sewer system and is subject to federal categorical pretreatment standards under 40 CFR 403.6…” .

8. The fact is that the term “Pretreatment Regulations” is used in 40 CFR 403.2, “National Pretreatment Standards” is used in 40 CFR 403.5 (Prohibited Discharges) and 403.6 (Categorical Standards). The language in the Arizona statute appears to encompass or consist of a blending of sections of 40 CFR other than those sections solely concerned with Categorical Pretreatment Standards. The statute relates to pretreatment standards generally rather than the categorical standards specifically. 9. The ambiguity in the statute creates the potential for confusion. In such cases the rules of statutory construction and interpretation apply. The conclusions of this Recommended Order, though independently reached, recapitulate a good portion of the State’s memorandum on the issue. It is the intent of the applicable sections of the CFR to control pollutants through a permitting or similar scheme which applies to Industrial Users generally and Significant Industrial Users specifically. There is no convincing argument that the Arizona legislature intended to create separate permitting categories for Significant Industrial Users under A.R.S. §49-209. Furthermore, as pointed out in the State’s memorandum, the provisions of subsection B, of the statute which requires that an annual list of current permittees be submitted for the collection of prescribed fees, also supports the conclusion that the fee applies to all permittees. The State’s memorandum is a part of the hearing record and the additional arguments and reasoning presented therein have been reviewed and are adopted by this Administrative Law Judge as part of the conclusions of this Recommended Order. Recommended Order In view of the foregoing it is recommended that the appeal of Specialty Textile Services be denied and the assessment of the annual registration fee under A.R.S.§49-209 by the Arizona Department of Environmental Quality, be affirmed.

Done this day, September 27, 1999

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

Department of Environmental Quality Jacqueline E. Schafer, Director 3033 North Central Avenue ATTN: Lavonne Watkins Phoenix, AZ 85012

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826