3745-42-03 Requirements for applications and engineering plans.

 

 

 

Rule Summary and Fiscal Analysis (Part A)

 

Ohio Environmental Protection Agency

Agency Name

 

Division of Surface Water (DSW)                     Bob Heitzman

Division                                                                  Contact

 

Lazarus Government Center 122 S. Front St. Columbus OH 43215-1099

614-644-2001        614-644-2745

Agency Mailing Address (Plus Zip)                                       Phone                     Fax

3745-42-03

Rule Number

AMENDMENT

TYPE of rule filing

Rule Title/Tag Line              Requirements for applications and engineering plans.

RULE SUMMARY

1.  Is the rule being filed consistent with the requirements of the RC 119.032 review? No

2.  Are you proposing this rule as a result of recent legislation? No

3.  Statute prescribing the procedure in accordance with the agency is required to adopt the rule: 119.03

4.  Statute(s) authorizing agency to adopt the rule: 6111.03

5.  Statute(s) the rule, as filed, amplifies or implements: 6111.03, 6111.44, 6111.45, 6111.46

6.  State the reason(s) for proposing (i.e., why are you filing,) this rule:

Many Agency policies have been rescinded in accordance with ORC 3745.30. This rule is intended to replace a rescinded policy.

7.  If the rule is an AMENDMENT, then summarize the changes and the content of the proposed rule; If the rule type is RESCISSION, NEW or NO CHANGE, then summarize the content of the rule:

This rule is proposed to be amended to incorporate a detailed description of the

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information required to be submitted to the Agency during the Permit To Install application process.

8.  If the rule incorporates a text or other material by reference and the agency claims the incorporation by reference is exempt from compliance with sections

121.71 to 121.74 of the Revised Code because the text or other material is generally available to persons who reasonably can be expected to be affected by the rule, provide an explanation of how the text or other material is generally available to those persons:

This rule contains references to the Ohio Administrative Code (OAC) and Ohio Revised Code (ORC). While copies of these rules and statutes are generally available to the public through libraries and on-line sources, including the Ohio EPA Web site, ORC section 121.76(A) exempts such references from the provisions of ORC sections 121.71 through 121.75.

9.  If the rule incorporates a text or other material by reference, and it was infeasible for the agency to file the text or other material electronically, provide an explanation of why filing the text or other material electronically was infeasible:

Not Applicable.

10.  If the rule is being rescinded and incorporates a text or other material by reference, and it was infeasible for the agency to file the text or other material, provide an explanation of why filing the text or other material was infeasible:

Not Applicable.

11.  If revising or refiling this rule, identify changes made from the previously filed version of this rule; if none, please state so:

Based on the comments Ohio EPA received during the public comment period, the following changes were made to this rule: The rule was expanded to allow detailed plans to be submitted on 22-inch by 34-inch size plan sheets; The requirement for 1-inch margins on detailed plan sheets was deleted; The rule now allows for the submittal of project specifications on the detailed plans or in a contract specification book; and The permit to install requirements for industrial waste treatment works were more clearly defined.

12. 119.032 Rule Review Date: 10/17/2008

(If the rule is not exempt and you answered NO to question No. 1, provide the

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scheduled review date. If you answered YES to No. 1, the review date for this rule is the filing date.)

NOTE: If the rule is not exempt at the time of final filing, two dates are required: the current review date plus a date not to exceed 5 years from the effective date for Amended rules or a date not to exceed 5 years from the review date for No Change rules.

FISCAL ANALYSIS

13.  Estimate the total amount by which this proposed rule would increase / decrease either revenues / expenditures for the agency during the current biennium (in dollars): Explain the net impact of the proposed changes to the budget of your agency/department.

This will have no impact on revenues or expenditures.

$0

Not Applicable.

14.  Identify the appropriation (by line item etc.) that authorizes each expenditure necessitated by the proposed rule:

Not Applicable.

15.  Provide a summary of the estimated cost of compliance with the rule to all directly affected persons. When appropriate, please include the source for your information/estimated costs, e.g. industry, CFR, internal/agency:

The rule amendments are not expected to significantly increase the cost of compliance. The details required in a permit application have been recommended through Agency guidance for many years. An estimated 95% of permit applications are already in compliance with the rule requirements and the remaining 5% are in compliance with most parts of the rule. The few items they are not in compliance with would not necessarily require more expenditure to come into compliance because, if an engineer is hired to design a facility and prepare detailed plans, adding information to those plans may not significantly change the cost of the plan or permit application preparation. It should be noted that, relative to the old Agency guidance, there are some items in the rule that allow less costly options for application submittal (e.g., the use of a smaller paper size).

16.  Does this rule have a fiscal effect on school districts, counties, townships, or municipal corporations? Yes

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You must complete Part B of the Rule Summary and Fiscal Analysis in order to comply with Am. Sub. S.B. 33 of the 120th General Assembly.

17.  Does this rule deal with environmental protection or contain a component dealing with environmental protection as defined in R. C. 121.39? Yes

You must complete the Environmental rule Adoption/Amendment Form in order to comply with Am. Sub. 106 of the 121st General Assembly.

                                                                                                                                             

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Rule Summary and Fiscal Analysis (Part B)

1.  Does the Proposed rule have a fiscal effect on any of the following?

(a)  School Districts

(b)    Counties                                 (c) Townships           (d) Municipal

Corporations

Yes                              Yes                              Yes                              Yes

2.  Please provide an estimate in dollars of the cost of compliance with the proposed rule for school districts, counties, townships, or municipal corporations. If you are unable to provide an estimate in dollars, please provide a written explanation of why it is not possible to provide such an estimate.

The rule amendments are not expected to significantly increase the cost of compliance. The details required in a permit application have been recommended through Agency guidance for many years. An estimated 95% of permit applications are already in compliance with the rule requirements and the remaining 5% are in compliance with most parts of the rule. The few items they are not in compliance with would not necessarily require more expenditure to come into compliance because, if an engineer is hired to design a facility and prepare detailed plans, adding information to those plans may not significantly change the cost of the plan or permit application preparation.

It should be noted that, relative to the old Agency guidance, there are some items in the rule that allow less costly options for application submittal (e.g., the use of a smaller paper size).

3.  If the proposed rule is the result of a federal requirement, does the proposed rule exceed the scope and intent of the federal requirement? No

4.  If the proposed rule exceeds the minimum necessary federal requirement, please provide an estimate of, and justification for, the excess costs that exceed the cost of the federal requirement. In particular, please provide an estimate of the excess costs that exceed the cost of the federal requirement for (a) school districts, (b) counties, (c) townships, and (d) municipal corporations.

Not Applicable.

5.  Please provide a comprehensive cost estimate for the proposed rule that includes the procedure and method used for calculating the cost of compliance. This comprehensive cost estimate should identify all of the

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major cost categories including, but not limited to, (a) personnel costs, (b) new equipment or other capital costs, (c) operating costs, and (d) any indirect central service costs.

See the response to question 2.

(a)  Personnel Costs

See the response to question 2.

(b)  New Equipment or Other Capital Costs

See the response to question 2.

(c)  Operating Costs

See the response to question 2.

(d)  Any Indirect Central Service Costs

See the response to question 2.

(e)  Other Costs

See the response to question 2.

6.  Please provide a written explanation of the agency's and the local government's ability to pay for the new requirements imposed by the proposed rule.

See the response to question 2.

7.  Please provide a statement on the proposed rule's impact on economic development.

See the response to question 2.

                                                                                                                                             

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Environmental Rule Adoption/Amendment Form

Pursuant to Am. Sub. H.B. 106 of the 121st General Assembly, prior to adopting a rule or an amendment to a rule dealing with environmental protection, or containing a component dealing with environmental protection, a state agency shall:

(1)    Consult with organizations that represent political subdivisions, environmental interests, business interests, and other persons affected by the proposed rule or amendment.

(2)   Consider documentation relevant to the need for, the environmental benefits or consequences of, other benefits of, and the technological feasibility of the proposed rule or rule amendment.

(3)  Specifically identify whether the proposed rule or rule amendment is being adopted or amended to enable the state to obtain or maintain approval to administer and enforce a federal environmental law or to participate in a federal environmental program, whether the proposed rule or rule amendment is more stringent than its federal counterpart, and, if the proposed rule or rule amendment is more stringent, the rationale for not incorporating its federal counterpart.

(4)   Include with the proposed rule or rule amendment and rule summary and fiscal analysis required to be filed with the Joint Committee on Agency Rule Review information relevant to the previously listed requirements.

(A)  Were organizations that represent political subdivisions, environmental interests, business interests, and other persons affected by the proposed rule or amendment consulted ? Yes

Please list each contact.

The list is available upon request.

(B)  Was documentation that is relevant to the need for, the environmental benefits or consequences of, other benefits of, and the technological feasibility of the proposed rule or amendment considered ? Yes

Please list the information provided and attach a copy of each piece of documentation to this form. (A SUMMARY OR INDEX MAY BE ATTACHED IN LIEU OF THE ACTUAL DOCUMENTATION.)

Ohio Revised Code Chapter 6111 (Water Pollution Control) Recommended Standards for Wastewater Facilities, 1997 Edition, Great

Lakes-Upper Mississippi River Board of State and Provincial Public Health and

Environmental Managers

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Sewage: Collection, Treatment & Disposal Where Public Sewers Are Not Available, 1993, Ohio EPA

Rescinded Ohio EPA Division of Surface Water policies Input from interested parties

(C)  Is the proposed rule or rule amendment being adopted or amended to enable the state to obtain or maintain approval to administer and enforce a federal environmental law or to participate in a federal environmental program ? No

Is the proposed rule or rule amendment more stringent than its federal counterpart ? No

(D)  If this is a rule amendment that is being adopted under a state statute that establishes standards with which the amendment is to comply, is the proposed rule amendment more stringent than the rule that it is proposing to amend? No

Not Applicable

                                                                                                                                             

June 23, 2005

Ohio EPA Responsiveness Summary to Comments on Proposed Ohio Administrative Code Rules:

3745-42-01

3745-42-03

3745-42-06

3745-42-08

3745-42-09

3745-42-11

Introduction

The public comment period for the above referenced rules ended April 29, 2005 and on this date Ohio EPA received five comment letters.  In follow-up to these comments, Ohio EPA has proposed revisions to the above rules. The following responsiveness summary includes an Ohio EPA response to each comment received, as well as an explanation of the minor administrative changes made to the rule to provide for consistency and clarity.

Administrative Changes

The following represents the minor administrative rule changes made to provide for consistency and clarity within the rules.

·   The definition for "Person" was deleted, as this definition already exists in Chapter 6111 of the Ohio Revised Code.

·   The definition for "Holding Tank" was modified to address comments we received and to provide for clarity.

·   The definition for "Industrial Waste" was added.  Two definitions exist in Chapter 6111 of the Ohio Revised Code and we wanted provide clarification regarding which form of the definition pertained to this rule.

Page 1

·   The criteria in Section 3745-42-03 (A) (1) was organized into a list format, to provide for clarity.

·   Throughout the rule, several synonymous terms were used.  In order to provide for clarity, revisions were made to the rule so that one version of the "term" was used throughout the rule.  As an example, "liquid industrial waste" was replaced with the term "industrial waste".

·   In Section 3745-42-09 (B)(2), the filter sand specification requirements were organized into a table, to provide for clarity.

Changes Responsive to Comments Received During the Public Comment Period

The following comments and Ohio EPA responses are organized by rule section. In some cases, more than one comment was received regarding a particular section of rule.  When that occurred, each comment was listed individually and an Ohio EPA response was repeated, if necessary.                             The following represents the complete list of comments that Ohio EPA received during the public comment period for the above referenced rules.

3745-42 General Comments

Comment 1: Throughout these regulations there are references to future action by the Director which may result in circumvention of the rulemaking process. In particular, we note the following proposed paragraphs:

C    3745-42-03, paragraph (F)(4) C    3745-42-06, paragraph (A)(6) C     3745-42-08, paragraph (B)

C     3745-42-09, paragraph (A)(2)(d)

Response 1:  The above referenced paragraphs are necessary to accommodate for evaluation of new and possibly better technologies, the approval of permits where the permits must be issued prior to funding procurement and to allow for future electronic plan submittals.

Comment 2:  Ohio EPA's fact sheet of March 2005 regarding General PTI states that they will be based on a concept similar to the NPDES program. BCDES is supportive of General PTI and requests that OEPA consider developing General Permits for sewer extensions projects that meet certain criteria, for example those that are small in nature, have no stream crossings or do not exceed a total of three (3) crossings per stream mile per stream. Ohio EPA PTI General Permits could be established with protections and

conditions similar to those of the Army Corps of Engineers (ACOE) General Permits that have anti-degradation protections and conditions built into them. Over the course of an average year, BCDES prepares and submits approximately 100 PTI requests, the majority of which are small in nature and have few or no stream crossings.

Response 2:  The Ohio EPA is working on subsequent rule packages for general permit issuance.  General permits will cover smaller projects that meet predefined design standards and result in no or minimal environmental impact.

3745-42-01 Definitions

Comment 3: We believe that defining individual ASTM tests is unnecessary and will lead to future problems in trying to keep the regulations up to date as testing methods are revised.

Response 3:  The ASTM references were purposefully located under a single rule to allow for ease in updates.

Comment 4: As you are aware, "disposal system" is defined as:

a system for disposing of sewage, industrial waste or other liquid wastes, and includes sewerage systems and treatment works.

Since a sewerage system is only a means of transport, not disposal, we conclude that a

Adisposal system@ must include both a sewerage system and a treatment works. However, as it is used in these regulations, it frequently refers to sewerage systems and/or treatment works.  This is confusing and should be clarified.

Response 4:  The rule will be revised to provide for clarity and refer to definitions concurrent with the definitions provided in Chapter 6111. of the Ohio Revised Code.

Comment 5: There are a number of terms used in these regulations which are not defined and their context does not preclude a multitude of meanings. These include:

domestic sewage commercial sewage liquid industrial waste general permit to install

alternative general permit to install detailed plans

rapid sand filters

similar treatment facilities sewer system extensions

Response 5:  The rule will be revised to provide for clarity.  The definitions for sewage and industrial waste can be found in Ohio Revised Code Chapter 6111.  The rule will be revised to incorporate these definitions.  The reference to "rapid sand filter" will be eliminated.  Rapid sand filters are more commonly used for water treatment and are a multi media filter.  As for the remaining definitions, it is our belief that these are commonly used and do not need to be defined.

Comment 6: The definition of Aholding tank@ must be intent based, rather than attempting to define its physical characteristics. For instance, while a leaching bed is being replaced, the existing septic tank becomes a holding tank under the proposed definition, and is therefore subject to H20 loadings, remote telemetry requirements, etc. Many tanks in treatment facilities fit the definition as proposed. Therefore, we suggest the following definition:

AHolding tank@ means a tank or container intended to replace a treatment works or a connection to a treatment works by storing sewage until it is removed for treatment off-site. It does not include facilities which are auxiliary to treatment works or temporary facilities intended to facilitate construction of treatment works or sewerage systems.

Response 6:  The definition of "holding tank" will be revised to provide for clarity.  The rule will not provide an exemption for temporary facilities.  The rule covers temporary facilities, which are operated for not more than one occurrence, of not more than 20 consecutive days in a calendar year.

3745-42-03 Requirements for applications and engineering plans

3745-42-03 (E) and (F)

Comment 7:  Proposed new paragraphs (E) and (F) in rule 3745-42-03 add a large number of new requirements for the content of permit applications.  Many of these requirements will frequently be irrelevant to a particular project.  It is essential, therefore, to retain in the rule the provisions in each paragraph allowing the requirements to be waived.

Response 7:  The phrase "as applicable" will be added to paragraphs (E)(3) and (F).

Comment 8: The proposed additions in paragraph 3745-42-03 (E)(3)(a) are overly prescriptive and some are contrary to industry practice. In particular, we offer the following issues.

Paragraph (E)(3)(a) states:

All detailed plan sheets shall be submitted on engineering paper either eleven inches by seventeen inches or twenty-four inches by thirty-six inches. Each sheet shall have a one-inch margin and complete title blocks.

·         We are pleased that 11" x 17" sheets are included; however, the specification of exact sizes is a problem. Industry standards are expanding to include 22" x 34" since this is an even multiple of 11" x 17". We have adopted this size as a standard, and expect that many others will to ease production of half size drawings.

Ÿ  Industry standards do not include Acomplete title blocks@ on all sheets. In particular, they are almost never included on title pages and frequently omitted from the table of contents page.

Ÿ  A one inch margin is excessive, particularly in the case of 11" x 17" drawings.

Response 8: The rule will be revised to allow for the submission of 22-inch by 34-inch plan sheets. In addition, the rule will be revised to delete the reference to "engineering paper" and the 1-inch margins. The rule will be revised to require margins sufficient for proper binding and title block information.

Comment 9:  Revise OAC 3745-42-03 (E)(3)(a) to:

All detail plan sheets shall be submitted on engineering paper either eleven inches by seventeen inches, twenty-two inches by thirty-four inches, or twenty-four inches by thirty-six inches.  Each sheet shall have a margin and complete title block.

The two full size formats are both in use.  Allowing the twenty-two inches by thirty-four inches, makes the eleven inches by seventeen inches a true half size.  Furthermore, the margin requirement varies from Client to Client, and it is also desirable to allow for more margin at the left side of the plans to facilitate stapling without covering the text.  It seems like an unnecessary burden to require PTI submittal plans to use different requirements than what may be required for the plans submitted to the Client.

Response 9:  The rule will be revised to allow for the submission of 22-inch by 34-inch

plan sheets. In addition, the rule will be revised to delete the reference to "engineering paper" and the 1-inch margins. The rule will be revised to require margins sufficient for proper binding and title block information.

Comment 10:  In paragraph 3745-42-03 (E)(3)(b)(iii), please clarify that this is required only for the cover sheet.

Response 10:  The rules will be revised to indicate that the signature and stamp requirements are solely required on the title sheet of the detailed plans.

Comment 11: Regarding paragraph (E)(3)(b)(iii), we are not clear what Aan electronic signature@ is on a plan sheet. Since general practice is for the engineer to sign the master set, frequently a transparency, and then duplicate that, we suggest that the specifications for the signature be dropped:

Contain the name of the engineer preparing the plans, the signature of the engineer, etc.

Response 11:  Ohio EPA has received many requests to allow for an electronic signature.  In addition, the rules governing professional engineers and surveys allow this in lieu of a hand written signature for electronic submissions.  Therefore, the rule will allow for electronic signatures.

Comment 12: Major projects include a variety of documents, such as detailed plans, O&M manuals, general contract and procurement specifications, detailed specifications and basis of design. A number of requirements included in section (E)(3) attempt to crowd all of this information onto the detailed plans.

·         For large construction jobs, this will amount to requiring that an entirely separate set of plans be prepared just for Ohio EPA review. Aside from the cost involved, it is impossible to guarantee that set will entirely coincide with the bid set.

·         The requirements will reduce the legibility of the detailed plans.

·         Paragraph (E)(3)(b)(vii): With the multiple pipe runs and various and/or alternative constructions and jointing techniques in larger construction projects, putting AASTM designation of piping and joints@ on plans is frequently infeasible while maintaining clarity of the plans. Therefore, industry practice is to        deal with these details in the accompanying specifications.

Response 12: The rule will be revised to allow project specifications to be

included on the detailed plans or in a separate contract specification book.

Comment 13:  Revise section 3745-42-03 (E)(3)(b)(viii) to:

" Contain a hydraulic profile of the flow of water through the unit processes that indicates points of chemical addition, control instrumentation, alarm levels, and monitoring equipment, unless the points of chemical addition, control instrumentation, alarm levels, and monitoring equipment are shown elsewhere."

Typically this information is shown on P&IDs and/or process plans. If shown at multiple locations on the drawings and there is a change during the design process, it is difficult to make sure they all get changed.

Response 13: This paragraph of the rules will remain unchanged. It is Ohio EPA's position that a hydraulic profile of the complete waste stream through the treatment works is necessary.

Comment 14: Paragraph (E)(3)(b)(ix): On any but the smallest projects, this requirement is not practicable

Ÿ  For instance, a blower may be a piece of equipment. However, for large units, it may be necessary to specify motor, coupling, vibration isolators and the blower itself separately.

Ÿ  On any publicly bid job, manufacturer and model number are not known at the time plans are prepared.

Ÿ  This requirement will either vastly increase the cost of producing as-built drawings or reduce the utility of the plans for maintenance purposes by misleading future generations of operators.

Response 14: The rule will be revised to require the submittal of the product or equipment specifications, in lieu of the requirement for model numbers and manufacturer names.

Comment 15: In regards to 3745-42-03 (E)(3)(b)(ix), many manufacturers' equipment (and various models of the same manufacturer) may be applicable to process the wastewater.  To provide a basis for competitive bidding, we do not see the purpose of asking for this information. Typically, the engineer reviews several manufacturers' equipment, and does not base the design on one particular manufacturer.

Response 15: The rule will be revised to require the submittal of the product or

equipment specifications, in lieu of the requirement for model numbers and manufacturer names.

Comment 16: Paragraph (E)(3)(b)(xi): Identifying Aeach component=s capacity, size, and intended operation@ on a drawing sheet is clearly not possible.

AIntended operation@ alone may take many pages of explanation.

Response 16: The rule will be revised to allow project specifications to be included on the detailed plans or in a separate contract specification book.

Comment 17: Paragraph (E)(3)(c)(i): This paragraph is suitable for plant construction. However, it is only suitable for a few sewer projects. Sewer construction and rehabilitation in urban areas and sewers in tunnels do not require this level of detail, except in specific circumstances such as pump stations and access shafts. Therefore, this requirement would significantly increase the cost   of design for these projects.

Response 17: The rule will be revised to incorporate an "as applicable" statement regarding the plan submittal requirements.

Comment 18:  Ohio Administrative Code Section 3745-42-03, (E)(3)(d).  You may wish to include in the vicinity map both publicly and privately owned parks, natural areas, and recreation areas. Existing land use and vegetative cover might also be useful map features.

Response 18:  The requirements set forth in the proposed rule are minimum requirements.  For example, although existing land use and vegetative cover may be applicable to permits to install for such technologies as land application sites, these map features are most likely not a relevant characteristics for permits to install for sanitary sewers. The need for these map features will be evaluated on a case by case basis.

Comment 19:  Ohio Administrative Code Section 3745-42-03, (E)(4).   This section authorizes the director to waive paragraphs (E)(1) to (E)(3).  It might be clearer if the rule simply referred individually to each paragraph that may be waived, i.e. paragraphs "(E)(1) and (E)(2)."

Response 19:    Paragraph (E)(4) in the proposed rule allows the requirements in paragraphs (E)(1), (E)(2) and (E)(3) to be waived, which is the intent of the rule.

Comment 20: We request that you consider adding specific language in this section of the proposed rule revision that would clearly satisfy the need for some

types of projects to obtain PTI approval prior to completion of the final detailed engineering design.

Response 20: The rule will expand upon the term "specific technologies" to include industrial projects that require a permit to install prior to funding procurement.

Comment 21: Paragraphs 3745-42-03 (F) and (F)(1) exclude Asanitary sewer extensions@ from obtaining Aapproval from the sewer authority that will be responsible for treating the wastewater.@ The party ultimately responsible for the discharge must be informed of potentially significant changes in the collection system.

We would like to note that this issue is not covered by paragraph (E)(3)(b)(iv), since a number of sewer extensions are not intended to be publicly owned and very few subdivisions are publicly owned until after construction is complete.

Response 21:   The rule will be revised to incorporate the phrase "as applicable" in paragraph (E)(3) and in paragraph (F).

Comment 22:  Proposed paragraph 3745-42-03 (F) (1) states:

"Written approval from the sewer authority that will be responsible for treating the wastewater. "

In the case of a direct discharge to the waters of the state (as indicated in Item 3745-42- 03 (F)), who is the sewer authority?  Paragraph 3745-42-03 (F) sounds like it applies to pre-treatment works.  In this case, suggest the words "or are tributary" in this Paragraph be changed to "via".

Response 22:  Paragraph (F) of rule 3745-42-03 will be revised to provide for an "as applicable" statement.  In addition, paragraph OAC 3745-42-03 (F) governs pretreatment systems and industrial direct dischargers and does not cover publicly owned treatment works.  Paragraph (F) will be revised to provide for clarity.

Comment 23: NEORSD's experience with pretreatment system implementation indicates that requiring approval of local sewer owners may delay improvements necessary to comply with Federal and local pretreatment requirements.                                      This section does not adequately address improvements to existing facilities.

Therefore, we request that the last sentence of paragraph (F)(1) be revised to read:

If the applicant is proposing to connect to, or to construct or modify an existing system tributary to, a sanitary sewer that is not owned or operated by the sewer authority responsible for treating the wastewater, then the connection must be through an approved sewer tap to the local sewer system.

Response 23:  The last sentence of paragraph (F)(1) will be revised as proposed in Comment 23.

Comment 24: Paragraph (F)(2)(b) would appear to require that each household in a community be identified. In general, this paragraph does not appear to be applicable to municipal projects, and even refers to the project as a pretreatment facility.

Response 24: This paragraph is solely intended to cover industrial direct dischargers and pretreatment systems and is not intended to cover publicly owned treatment works. Paragraph (F) will be revised to provide for clarify.

Comment 25: Paragraphs 3745-42-03 (F)(3)(b), (i) and (ii) have little meaning in the context of POTWs and should be deleted. In addition, paragraph (iii) requests more detail than normally available for a POTW project and again refers to pretreatment facilities.

Response 25: This paragraph is solely intended to cover industrial direct dischargers and pretreatment systems and is not intended to cover publicly owned treatment works. Paragraph (F) will be revised to provide for clarify.

Comment 26:  Paragraph 3745-42-03 (F)(3)(b)(iii) appears to deal with pre-treatment facilities (although no statement has been made that this section deals with pre- treatment facilities only), and not publicly owned treatment works (POTW).  If it applies to POTW, it appears that an unnecessarily expensive and time-consuming waste characterization effort of the sewage is requested.

Response 26: This paragraph is solely intended to cover industrial direct dischargers and pretreatment systems and is not intended to cover publicly owned treatment works. Paragraph (F) will be revised to provide for clarify.

Comment 27: Section (F)(3)(c) appears to be written with pretreatment projects in mind and would be overly burdensome for a POTW without a corresponding environmental benefit.

Response 27: This paragraph is solely intended to cover industrial direct dischargers and pretreatment systems and is not intended to cover publicly owned treatment works. Paragraph (F) will be revised to provide for clarify.

Comment 28: Ohio Administrative Code Section 3745-42-03, (F)(3)(c).  You may wish to include a description of safety and security systems in this section for the prevention of spills and unauthorized releases from the facility.

Response 28:  The requirements set forth in the proposed rule are minimum requirements.  Although a description of safety and security systems may be applicable to permits to install for treatment works, this information is most likely not relevant to permits to install for sanitary sewer extensions.  Requiring these characteristics for permits to install will be evaluated on a case by case basis.

Comment 29: Need to define in paragraph 3745-42-03 (F)(4) that the process involved in learning if a particular technology or project type would qualify

Response 29:  This will be addressed in the technology specific rules.

                                     General permit to install requirements

3745-42-06 (A)

Comment 30:  Add statement regarding fee structure.

Response 30:  The fee structure will be pursuant to Section 3745.11 of the Ohio Administrative Code.

Comment 31: We believe that Aany other type of system in which the director determines, etc.@ is far too open.                       Introduction of additional system types should be subject to formal rule making procedures rather than simply permit issuance.

Response 31:  Each general permit is appealable and each will be public noticed.

Comment 32: We find it difficult to envision how this process will insure that Athe treatment works or disposal systems authorized by the permit will have only minimal adverse effects on the environment.@ Likewise, asserting before the fact that authorized construction will meet Athe criteria specified in rule 3745-42-04 of the Administrative Code@ is questionable.

Response 32: Each general permit will include specific permit conditions to

ensure minimal adverse effects on the environment.

Comment 33:  Need to define the process involved in learning if for a particular project, this would be the case or not.

Response 33:  The rule currently provides several examples of projects that may fall under general permit coverage.  Projects not listed will be evaluated on a case by case basis.

3745-42-06 (C)

Comment 34:  3745-42-06, (C)(4)(c).  You may wish to more closely define the format of the latitude and longitude information requested of the applicant.  This would assure that all such locations are in the same format/geographic coordinate system.  This       makes the information useable without further conversion or confusion.  The request for this information implies a GIS system, and the work of the person inputting the latitude and longitude information will be much easier if the latitude/longitude format on applications is strictly defined.

Response 34:   We avoid mandating by rule that data, which is not generally available, to be submitted.  In addition, data formatting is being evaluated agency wide as we work to provide for standardization.  At this point we are not ready to expand on such standardization.  However, if there is a good technical reason why this data must be formatted in a certain way, paragraph (C.)(4)(h) allows the director to require any other information, as deemed necessary in each general permit.  The rule will be revised to require latitude and longitude data to be to the nearest 5 seconds.

Comment 35: Paragraph (C)(4)(c) requests that the coordinates Aof the approximate center of the facility@ be included in the NOI. We believe that, for sewer extensions, the location of the connection to existing sewers would be more meaningful.

Response 35: The rule will be changed to provide clarification regarding sewer extensions. We would agree that for sewer extensions, the location of the connection to existing sewers would be more meaningful.

Comment 36: We presume that appropriate requirements for notifying those accepting the wastes, and their approval, will be included in the general permits when issued.

Response 36: A certification statement from the permitted facility accepting the

waste will be required.

Comment 37: 3745-42-06, (C)(4)(f).  Latitude/longitude information similar to that in paragraph (C)(4)(c) should be required for outfalls too, indeed it may be important for this information to be accurate to within a few feet.  The exact locations of discharge points would seem very important to future water quality monitoring studies.

Response 37:  The latitude and longitude of any outfall is very relevant to water quality monitoring studies, and this information is currently requested as part of an NPDES permit.                For instances in which this information is relevant, paragraph (C.)(4)(h) allows the director to require any other information, as deemed necessary in each general permit.

3745-42-06 (I)

Comment 38:  Ohio Administrative Code Section 3745-42-06, (I)(3).  Perhaps this paragraph would better read ".environmentally sensitive areas and endangered and threatened species."

Response 38: The evaluation of endangered and threatened species is likely to be a factor when determining an environmentally sensitive area.  However, this evaluation would be better addressed through the inter-office coordination between Ohio EPA and the US Fish and Wildlife Service, on a case by case basis.

Comment 39:  Proposed OAC 3745-42-06(I)(5) would authorize the Director to deny coverage under a general permit and require the applicant to file an individual permit application instead if the applicant "has a history of significant noncompliance with environmental laws, rules, or permit requirements within five years previous to the receipt of the application."

The phrase "significant noncompliance" is not defined and is so vague as to make the meaning of the rule indeterminate.  Also, extending the scope of this provision to all "environmental laws, rules, or permit requirements" is overbroad given the vast number of rules, permits or other requirements that could be read to fall within the ambit of this phrase.

More broadly, however, OEUI has difficulty discerning the purpose of this provision. Presumably, the agency does not propose to use the greater burdens associated with an individual permit as a part of the "punishment" imposed on applicants who have had compliance problems.  Yet, that is the only obvious result of denying such applicants the right to seek coverage under general permits.

In general, OEUI believes that coverage under a general permit should be denied only

when there are unique aspects to a particular project that make the requirements of the general permit inappropriate or inadequate. Since a history of noncompliance is irrelevant to the adequacy of the general permit requirements, OEUI suggest that this subparagraph be eliminated.

However, if compliance history is to be considered at all, three changes and clarifications are needed:

·         The phrase "significant noncompliance" should be defined;

·         The compliance evaluation should be limited to other general permits issued by the division of Surface Water (i.e. compliance problems with individual surface water permits or with, say, air pollution control rules and permits, should not make a permittee ineligible for a general permit under the surface water program); and

·         The rule should make clear that the evaluation of compliance history will be limited to the particular facility covered by the application and not extended to other facilities that may be owned by the same company or subsidiaries.

Response 39:    The rule will be revised to limit the scope of the noncompliance evaluation to projects that are specific to surface water or ground water permits.

3745-42-08

Comment 40:   Proposed OAC 3745-42-08 provides, somewhat baldly, that: "The director may increase the isolation distances set forth in paragraph (A) of this rule at his discretion."  While we understand that exercises of discretion by the Director are always subject to an implicit requirement of reasonableness, it is not appropriate for any rule to make any decision purely discretionary.  At a minimum, the rule should specify the criteria the director will use in making his decision.

The appropriate criteria for these purposes are actually set out in the immediately following paragraph, OAC 3745-42-08(C), which governs the Director's action on requests to reduce the otherwise required isolation distances.  That paragraph reads as follows:

·         "The director may reduce any minimum isolation distance in paragraph (A) of this rule if:

·         The applicant can demonstrate, by taking into account prevailing wind directions, screening, or other means of noise and odor control, that the

disposal system will not negatively impact the neighboring occupied buildings; and

·         The applicant can demonstrate technical or financial hardship in implementing the minimum isolation distances."

As indicated by this paragraph, the purpose of the isolation distance requirements is to reduce the potential for adverse impacts of odor and noise on neighboring occupied buildings.  As such, the director should not be free to require larger isolation distances in particular cases unless there is a sound basis for concluding (a) that the normal isolation distances are inadequate to these purposes and (b) that increasing the isolation distance requirements will not impose a technical or financial hardship on the applicant.

OEUI recommends that paragraph (B) of rule 3745-42-08 be revised to read as follows:

The director may increase the isolation distances set forth in paragraph (A) of this rule at hisif, and to the extent that:

·         The director can demonstrate, by taking into account prevailing wind directions, screening, or other means of noise and odor control, that the disposal system will negatively impact the neighboring occupied buildings; and

·         The director demonstrates that greater isolation distances will not impose a technical or financial hardship on the applicant.

Response 40:   The rule will be revised to incorporate the review criteria utilized in paragraphs 3745-42-08 (C.)(1) and (C.)(2), when evaluating whether to increase isolation distances.

Comment 41:  For proposed rule 3745-42-08 (A) (1) BCDES requests that Ohio EPA define or develop guidance as to where the minimum isolation distance should be measured.  For example: should the isolation distance be measured from the point of discharge, closest building or from the property line?

Response 41:  Paragraph 3745-42-08 (A)(1) though (A)(6) are included in this rule to minimize odor and noise impacts from treatment works.                     Each paragraph specifies where the measurement shall be taken.  In the case of any reference to a building, the measurement shall always be taken from the outside wall of the building.  In the case of any reference to a treatment works, a component of a treatment works or a pump station, the measurement shall be taken from the closest point on the perimeter of the treatment works, the component of the treatment works or the pump station.  A

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comment will be added to the rule to provide additional explanation.

Comment 42:  proposed rule 3745-42-08 (A) (2) uses the term "earthen impoundment", BCDES requests Ohio EPA include the term "earthen impoundment" in the definitions section to establish clarification and to exclude earthen berms that are used for visual, sound or other aesthetic screening.

Response 42:  Based on the definition of "impound" (to save or collect a liquid), the term impoundment would not include earthen berms that are used for visual, sound or other aesthetic screening unless they are utilized for retention.

Comment 43:  Ohio Administrative Rule 3745-42-08, (C).  We notice a concern for the finances of the applicant in this section, but none for the owner of a neighboring occupied building. The neighbor's property value and quality of life may be adversely affected by the director's decision.  At the very least this rule should afford the neighbor an opportunity to protest.  Odor is a highly subjective quality and the state should err on the side of the resident neighbor.  A decision based on prevailing wind still leaves the neighbor subject to odors part of the time. All of the required demonstrations on the part of the applicant in this section are highly subjective too.  Perhaps the rights of the owner of neighboring affected property should be made part of the rule.

Response 43:  The rule is designed to provide minimum isolation distances, while giving the director the authority to increase the isolation distance or decrease the isolation distance requirement, based on site specific criteria.                   The rule currently requires that impacts to neighboring buildings be evaluated. In addition, each permit is appealable.

                                     Filter sand testing and specifications

Comment 44: This rule does not have sufficient provision for varying technologies. For instance, it could be readily deduced that a Arapid sand filter@ is any sand filter which has a loading rate over 17 gpd/sq.ft. This would include mixed media filters and pressure filters. However, the required media specifications are not appropriate for mixed media filters. Therefore, there must be a provision for filters whose design criteria do not match the types of filters intended.

Response 44: We will eliminate "rapid sand filter" from the technology list, as the rule is not meant to cover mixed media filters. The rule will be revised to provide for clarity.

Comment 45: As mentioned under definitions above, Arapid sand filter@ is not

defined, rendering the regulation vague and overly broad.

Response 45: We will eliminate "rapid sand filter" from the technology list. This sand filter is a multimedia filter and is more commonly used for water treatment.

Comment 46: Introducing Aother similar treatment facilities@ at a later date without notice or rule making is inappropriate.

Response 46: This paragraph will allow the director to consider newer and potentially better technologies that are currently unknown.

OAC 3745-42-11 Holding tanks

Comment 47: There are a number of general issues here:

Ÿ  Under the broad definition proposed for holding tanks, the Northeast Ohio Regional Sewer District uses holding tanks for a variety of purposes in its facilities. Assuming that these fall under Adomestic or commercial sewage,@ compliance with paragraph (A)(1) becomes problematic.

Ÿ  As noted under ADefinitions@ above, a number of the terms used in this regulation are ambiguous.

Ÿ  Without a clear showing of environmental damage from vessels in industrial settings that will suddenly be declared holding tanks and subject to regulation that is based on precepts unrelated to their operation, we are not convinced of the Director=s authority to intrude in these areas.

Response 47:  Statutory authority under Ohio Revised Code Chapter 6111 has always covered sewage and industrial waste.  As such, these rules cover holding tanks containing sewage or industrial waste.  The rules will be revised to provide for clarity.

Comment 48:  The scope of the requirements related to holding tanks is confusing.  The proposed definition of "holding tank" limits that term to tanks holding wastewater for off- site treatment.  However, proposed language in OAC 3745-42-11(A)(2) then refers to holding tanks "that will contain liquid industrial waste" and provides that a permit for such a tank will not be issued unless:

(a)          The proposed holding tank will be used exclusively to collect, hold or store liquid industrial waste generated on-site or off-site; and

(b)          The liquid industrial waste in the holding tank will be transported directly to an off-site facility for recycling, treatment or disposal of the liquid industrial waste; and

(c)          The liquid industrial waste in the holding tank is not hazardous waste, as defined by rule 3745-51-03 of the Administrative Code.

The term "industrial waste" is defined by Ohio Revised Code Chapter 6111.01(C) and is broader in scope than the term "wastewater" that is used in the definition of "holding tank".  As such, the text of the rule seems to imply that tanks holding non-wastewater industrial wastes (e.g. waste oil, spent acid or caustic, etc.) might be covered by the rule even though the definition of holding tank makes clear that the rule is intended only to cover wastewater holding tanks.  To correct this ambiguity and to make the rule consistent with the definition, therefore, the phrase "industrial wastewater" needs to be substituted for the phrase "liquid industrial waste" in OAC 3745-42-11(A)(2).

However, once this is done, another problem becomes obvious.  As revised OAC 3745- 42-11(A)(2) would read as follows:

(2)          For a holding tank that will contain industrial wastewater, all of the following must be met:

(a)         The proposed holding tank will be used exclusively to collect, hold or store industrial wastewater generated on-site or off- site; and

(b)          The industrial wastewater in the holding tank will be transported directly to an off-site facility for recycling, treatment or disposal of the liquid industrial waste; and

(c)          The industrial wastewater in the holding tank is not

hazardous waste, as defined by rule 3745-51-03 of the Administrative Code.

The first of these requirements is a tautology: all wastewater is generated either on-site or off-site, and the tank at issue does not meet the definition of "holding tank" unless it will collect store and hold wastewater.  Similarly, the second requirement of the rule is redundant with the definition of holding tank, since a tank is not a "holding tank" unless the wastewater being stored is being stored for off-site treatment.  In short, it appears that only the third requirement - that the wastewater not be hazardous - adds anything to the definition of holding tank itself.  Yet, the requirement that the wastewater be non- hazardous would appear to be more appropriately placed in the definition of "holding tank" since the permitting of tanks storing hazardous wastewater would presumably be governed by RCRA rules.

It seems clear that the primary focus of this rule appears to be sewage holding tanks, and OEUI suggests that the scope of the rule be limited to those by:

(a)  deleting subparagraph (2) in OAC 3745-42-11(A);

(b)  changing the term of art from "holding tank" to "sewage holding tank", and

(c)  revising the definition in proposed OAC 3745-42-01(M) to read as follows:

"Sewage Hholding tank" means any device used to accumulate or store wastewater sewage prior to off-site recycling, treatment or disposal of the wastewater at a location other than where the wastewater sewage was placed into the tank. Sewage hHolding tank does not include such a device in a fixed location that is connected by pipe or hose to the facility, also in a fixed location, where the wastewater sewage will be recycled, treated or disposed.

Response 48:  This rule, pursuant to Ohio Revised Code Chapter 6111, covers holding tanks for sewage or holding tanks for industrial waste.

Comment 49: Paragraph (B)(4), by limiting the exclusion to 500 gallons, will include many portable toilet pumpers during the summer festival season, sewer vacuum cleaners during high demand periods, airliners, and sludge and grease hauling trailers under some circumstances. We suggest that the regulation be based on the intended and/or actual usage of the tank, rather than an arbitrary size.

Response 49: This paragraph of the rule does not govern haulers. The rule states "Portable units for wastewater storage that are dropped off and picked up". If we based the rule on usage, generators would have to keep records, which in many cases is not possible. Typically, portable units for wastewater storage do not include any means to measure usage on an hourly or daily basis.

OAC 3745-42-11 (D)

Comment 50: The requirement for an arbitrary H20 load rating (paragraph (D)(1)(c)), without regard to the actual circumstances of installation, is overly specific.

Response 50: This paragraph is intended to ensure the structural stability of these tanks and to prevent a structural failure from equipment, trucks and other vehicles that could drive overtop of the tanks.                                          The H20 load rating is not arbitrary and is defined in section 3745-42-01 of this rule.

Comment 51:  The flow and size criteria at (D)(1)(j) and (D)(2)(f) are not consistent with many plant applications.

Response 51: This rule does not cover tanks, which are part of a larger disposal system.

Comment 52: The requirement for an >autodialer@ (paragraphs (D)(1)(f)(i) and (D)(2)(b)(i)) is not appropriate in a plant setting.

Response 52: The rule will be revised to allow a high water audio/visual alarm located above ground at the tank's location. This rule does not cover tanks, which are part of a larger disposal system.

Comment 53: The schedule required at paragraphs (D)(1)(i)(i) and (D)(2)(e)(i) will not be practical in many plant environment applications.

Response 53: This rule does not cover tanks, which are part of a larger disposal system.

Comment 54: Paragraph (D)(3) requires secondary containment. However, we note that, under the definition specified for Aholding tank,@ some secondary containment systems will qualify as holding tanks, which would then require secondary containment.

Response 54: The secondary containment structure is not considered a holding tank. The secondary containment structure will act as a mitigative measure to prevent ground water contamination and is not designed to "hold" wastes on a regular basis. The secondary containment structure is only intended to prevent contaminants from reaching the ground water.