EXTRA STRENGTH CHARGE PROGRAM ADMINISTRATIVE RULES
Administrative Rules Adopted by Bureau of Environmental Services Pursuant to Rule-Making Authority
TABLE OF CONTENTS
4. Regulatory Authority
5. Billing Methodologies
6. New and Redevelopment Control Requirements
8. Variance Requests
9. Enforcement on Fraud and False Statements
10. Confidential Information
11. Administrative Review and Appeals
A. Explanatory Information
B. Class Average Table
C. Sampling Manhole Schematic
These are administrative rules of the Bureau of Environmental Services (BES) for the Extra Strength Charge program. See the Explanatory Information in Appendix A for applicable code citations, policies, and other information relating to these rules.
Sanitary sewer ratepayers or their tenants who discharge or have the potential to discharge wastewater with high pollutant concentrations of Biological Oxygen Demand (BOD) or Total Suspended Solids (TSS) must comply with these rules.
The purpose of the Extra Strength Charge (ESC) program is to recover the cost of high-strength wastewater treatment from users who discharge into the City’s sanitary sewer systems, which include the separate sanitary and combined sewer. Billing high-strength dischargers on the City water and sewer bill provides rate equity and prevents the costs of treatment for high-strength wastewater from being passed on to the other ratepayers. High-strength wastewater discharges are those with BOD or TSS in excess of those concentrations that occur as part of the City’s base sewer user charge.
These rules use the same definitions found in Portland City Code (PCC) Section 17.36, 17.34 and the Fats, Oils and Grease (FOG) program administrative rules (ENB-4.26). The definitions below are unique to these rules:
A. "Batch Discharge" means a controlled, discrete, intermittent, and contained volume of discharge.
B. "Class Average" means the average discharge concentration thresholds of BOD and TSS for a particular business type with and without approved best management practices in place. Class average concentration thresholds are identified in the Class Average Table in Appendix B of these rules.
C. "Class Average ESC Method" means an ESC billing method based on a ratepayer’s business type and its assumed average discharge concentration per the Class Average Table in Appendix B of these rules.
D. "Composite Sample" means a series of individual and discrete samples taken at selected intervals based on either an increment of flow or time. The samples are mixed together to approximate the average composition of the discharge to the public sewer system, A composite for one day must consist of a pool of samples collected over the period of expected discharge during the production day.
E. "Food Grinder" means any mechanical device designed to grind or pulverize solid materials for the purpose of making the material suitable for disposal to the sanitary sewer system.
F. "High-Strength Wastewater" means wastewater which has a BOD concentration in excess of 300 mg/L or a TSS concentration in excess of 350 mg/L.
G. "Measured ESC Method" means an ESC billing method based on rolling average sampling and analysis of individual businesses wastewater discharge volume and pollutant loading to the City’s sanitary sewer system.
H. "Non-routine Discharge" means a discharge that is an explainable, uncontrolled release or spill to the City sewer system that is not representative of the normal or expected characteristics of a facility’s wastewater discharge and may include discharges defined as slugloads.
I. "Permitted Ratepayer" means a ratepayer that discharges wastewater to the sanitary sewer system under an industrial wastewater discharge permit issued by the City of Portland.
J. "Sampling Manhole" means a manhole in a ratepayer’s branch sewer or other monitoring access acceptable to BES that allows for observation, sampling or measurement of all wastes being discharged into the City’s sanitary sewer system.
4. Regulatory Authority
The City of Portland, as an operator of a publicly-owned treatment works (POTW), must use a rate structure that fairly distributes the cost of its operation to ratepayers, including contributors of high-strength wastewater [Part 35 of 40 Code of Federal Regulations (CFR) Appendix B to Subpart E]. The City has established PCC Chapters 17.34 and 17.36 to regulate, and charge for, high-strength wastewater discharges to the City’s combined or separate sanitary sewer system.
5. Billing Methodology
Ratepayers with high-strength wastewater discharges shall be assessed ESCs using one of the following two methodologies at the discretion of BES:
A. Class Average ESC Method. Ratepayers billed using the Class Average ESC Method are assessed surcharges based on the average discharge concentrations of BOD and TSS for their business class. Ratepayers who employ one or more of the best management practices (BMPs) listed in the Class Average Table may be eligible for a rate reduction.
1. Class Average Table. The Class Average Table (Appendix B) establishes:
a. The average discharge concentration for BOD and TSS for each business type; and
b. The pollutant load discount from the average concentration to which a ratepayer is entitled based on the use of approved BMPs, as verified by city staff.
2. Class Identification. Any ratepayer identified by the Class Average Table who believes they are part of a definable sub-class can request the creation of a sub-class through the variance process (Section 8). Such requests must reasonably demonstrate that their sub-class’s average discharge concentration is substantially different from the listed class-average concentration. Any sampling and monitoring associated with a sub-class request must comply with the conditions of Section 5.B. A ratepayer may be assigned an average discharge rate if:
a. The ratepayer is not a member of one of the classes on the Class Average Table, but their discharges are similar to those of a Measured ESC method ratepayer; and
b. They have no suitable sampling location.
3. Flow Apportionment and Estimation. In cases where a sewer account serves multiple tenants or multiple business classes, it may be necessary to apportion the total TSS and BOD loading and flow amongst several different business class averages. Tenants shall be apportioned a percentage of the overall flow and assigned a discharge concentration based on the Class Average Table by BES staff.
a. BES staff will determine the appropriate flow estimation or apportionment percentages to apply to the account based on any of the following methods that quantify water use:
i. Information from private meters and historical tenant water use from the sewer account holder;
ii. Restaurant seat counts to estimate flow or relative size of the tenant;
iii. Plumbing fixture counts to estimate flow or relative size of the tenant; or
iv. Comparison to similar facilities where the City, tenant, or sewer account holder has calculated or measured the amount of water use; or
v. Data from the ratepayer related to food sales or numbers of meals prepared.
b. Sewer account holders must notify the City of any change in tenant occupancy that may alter the accuracy of established flow percentage apportionments. Sewer account holders may receive retroactive credits for up to three billing periods for late reporting of an occupancy change.
c. Sewer account holders may participate in the Submeter Program to obtain precise measurement and apportionment of ESCs to individual tenants based on private water meters and self-submitted reads. There is an administrative charge for each meter added to an account. Ratepayers that fail to regularly report their meter reads will be dropped from the Submeter Program and generalized ESCs will be restored based on the criteria of Section 5.A.3.a.
4. Approved BMPs for Rate Reduction. Ratepayers subject to the Class Average ESC Method may be eligible for the rate discounts in Appendix B for using approved BMPs:
a. Food Grinder Removal. Ratepayers must allow BES staff inspection and verification that food grinders have been removed or are not present.
i. Ratepayers may also receive additional rate discounts by diverting their food waste to a verifiable food composting or charitable food donation program.
b. Grease-Management Devices. To qualify, ratepayers must do all of the following:
i. Allow BES staff to inspect the device to determine the type of grease-management device and ensure it is properly sized and installed.
ii. Plumb the facility’s FOG fixtures to a grease-management device. If only a portion of a facility’s FOG fixtures are connected to a grease-management device, the rate reduction will be prorated accordingly.
iii. Maintain grease-management devices and participate in the Preferred Pumper Program which provides BES with maintenance records. If the records show that the frequency of maintenance is inadequate, the rate reduction for ESC may be revoked and the default higher Class Average discharge volume and the higher ESC rate imposed.
(1) Ratepayers shall be disqualified from receiving this rate discount if they are found to be using any FOG-emulsifying agents (products that clean grease-management devices and upstream or downstream sewer lines)
c. Combined BMP Discount. After January 1, 2014, a ratepayer can apply for an additional 5% reduction in their strength concentration as listed in the Class Average Table if their facility:
i. Has no food grinders;
ii. Participates in food composting and/or food donation that manages all solid food waste;
iii. Has all required fixtures in the kitchens or food processing areas plumbed to adequately sized and maintained grease removal devices;
iv. Has an established and approved grease removal device maintenance frequency;
v. Has not been shown to cause a grease blockage of, and has not been identified as contributing to grease buildup in, the sewer system within the previous 12 months;
vi. Is using a preferred hauler or the ratepayer has submitted all required self cleaning records on time to the BES within the previous 12 months; and
vii. Has not had any violations of the PCC or any sewer use-related rules within the previous 12 months.
d. Other BMP Rate Reductions. Ratepayers may request rate reductions based on BMPs other than those applicable to their business class through the variance process (Section 8). Ratepayers must provide documentation that BMPs meet both the following:
i. Result in an immediate and measurable reduction of BOD and/or TSS; and
ii. Continue to produce reductions of TSS and BOD in a verifiable, practical and efficient manner.
If a BMP is determined to be inappropriate for inclusion in the Class Average Table based on the above criteria, a ratepayer may still request, and qualify for, a custom rate via the self-monitoring procedure (Section 5.A.5).
5. Custom Rates. As an alternative to the Class Average Rate Method, a ratepayer may provide a monitoring study to show that the business class average they are assigned does not accurately characterize their wastewater discharges. The ratepayer must submit analytical results for a minimum of five consecutive days of sampling collected during hours of operation. The Custom Rate Method differs from the Measured ESC Method (Section 5.B) in that there is no ongoing scheduled sampling or rolling-average assessments. In order to establish a custom rate, ratepayers must do all of the following:
a. Notice. Ratepayers must inform BES in writing of their intention to conduct self-monitoring for the purpose of creating a custom ESC rate. Ratepayers must receive BES approval prior to conducting sampling in support of a custom rate.
b. Sample Collection. Samples must be collected from a BES-approved sampling location which allows representative samples of the facility’s wastewater. The sampling location must be available for sampling by BES staff.
i. The ratepayer must notify BES before sampling so that staff can inspect the sampling setup.
ii. Samples must be composite samples collected at intervals no greater than thirty minutes during the hours of operations of the facility.
iii. A ratepayer can request that BES perform sampling and analysis for the purpose of developing a custom rate by making a written request. The ratepayer will be charged the ESC sampling rate for this service. If BES collects samples from the approved sample location, its data may be combined with any of the ratepayer’s own sampling data to set the custom rate.
iv. Samples must be collected during periods of dry weather
c. Reports. The ratepayer must submit copies of all laboratory analytical reports including the Quality Assurance and Quality Control (QA/QC) information and the Chain of Custody (CoC) form used by the laboratory. Reports without this information or data from laboratories that are not in accordance with the holding times and QA/QC requirements of 40 CFR 136 will not be accepted.
i. The ratepayer may be required to provide production numbers and work schedules that demonstrate that the sampling period is representative of normal business operations.
d. Rate Duration. Custom rates will remain valid only until updated with new monitoring data or the expiration of a four-year period, whichever comes first. After that, a ratepayer may re-sample their wastewater for the creation of a new custom rate or revert back to the standard Class Average rate. If any significant changes in process, business, or occupancy occur, BES may void the custom rate.
B. Measured ESC Method.
1. Measured ESC Method Eligibility. Ratepayers will be assessed ESCs under the measured ESC method based on any the following criteria:
a. The ratepayer’s business type is not included in the Class Average Table;
b. The ratepayer’s discharge has the potential for significant extra strength pollutant loads if BMPs or wastewater treatment were discontinued;
c. Average monthly ESC revenue from the ratepayer is greater than the Extra Strength Re-sample Rate listed on the annual BES rate ordinance; or
d. The ratepayer has variable wastewater characteristics that make the class average ESC method inappropriate; and
e. The ratepayer has a secure and accessible sampling location that is representative of the discharge from the facility.
2. Rolling Average. A ratepayer using the Measured ESC Method is billed based on a monthly average of BOD and/or TSS analyze during the ten most recent months of monitoring data from their facility. Ratepayers billed using the Measured ESC Method are sampled by BES staff on a scheduled basis with new data refreshing the rolling average. Ratepayers will be notified of each update of the rolling average when it occurs.
a. Rolling Average Start. A rolling average starts with the collection of five composite samples collected on different days from the ratepayer’s facility. From then on, BES monitoring will be scheduled at the appropriate frequency to refresh the rolling average.
b. Reset. Resets of the rolling average start date are approved only for valid reasons that make historical monitoring data no longer representative of the ratepayer’s ongoing discharge.
i. A ratepayer is eligible for a reset if facility modifications have fundamentally changed the characteristics of its wastewater, such as changing a production line or installing new equipment. Improved equipment maintenance or behavioral BMPs are examples of changes that would not warrant the approval of a reset.
ii. A reset is not an acceptable method of removing monitoring data with high results that do not qualify for removal under the non-routine discharge criteria of Section 5.B.8.
iii. A reset requires the removal of all existing data from the rolling average and the start of a new average using a five day sample set as outlined in Section 5.B.2.a. Rolling average resets may be initiated by BES at the City’s expense or by the ratepayer's request and expense.
3. Sampling Frequency. A ratepayer’s sampling frequency will be set by BES so that the annual sampling and analysis costs incurred by BES shall not exceed one fifth (1/5th) of the annual ESC revenue paid by the ratepayer. Where a ratepayer’s discharge characteristics have been shown to be consistent over time, a reduction in sampling frequency may be implemented by BES. Only in special circumstances shall the sampling frequency exceed the 1/5th rule or be greater than once per month.
4. Sampling Manholes and Access.
a. Except as provided in Section 5.B.4.b below, a ratepayer must provide a sampling manhole that:
i. Allows for the collection of a composite sample of the discrete total discharge from their facility;
ii. Is constructed in accordance with plans approved by BES;
iii. Is secure and able to accommodate BES sampling equipment and monitors; and
iv. Is available to BES representatives at all times; and
v. The location is not within or does not require access through food processing, handling, or storage areas.
b. An alternative to a sampling manhole may be acceptable if:
i. The location is safe for BES personnel to access;
ii. Access can be granted to BES sampling personnel without delay;
iii. The location enables composite sampling of the high-strength wastewater discharge from the facility; and
iv. The location is secure and prevents tampering with BES equipment or monitors.
5. Self Monitoring. Ratepayers may submit self-monitoring results for inclusion in their rolling average. Results meeting all of the following conditions shall be weighted equally with data collected and analyzed by BES:
a. Samples must be collected from an approved sample location that provides access to wastewater representative of the total discharge from the ratepayer's facility. Samples must be composites of the ratepayer’s discharge collected during hours of normal production or business operations.
b. Samples must be analyzed for both BOD and TSS using methods and procedures outlined in 40 CFR 136 and results submitted to the City must include a completed CoC and QA/QC documentation. Any analytical results that have not met hold times or QA/QC standards of Section 5.A.5.c. may not be included in the rolling average.
c. Samples must be collected during production hours, on randomly chosen production days and across all production seasons.
d. Ratepayers must submit results for all samples collected and are prohibited from selectively withholding results.
6. Split Samples. A ratepayer may request in writing to have splits of samples collected by BES staff. The request must include contact names and phone numbers of at least two employees who can meet with the BES personnel and take custody of the split samples within 15 minutes of collection. It is the responsibility of the ratepayer to provide clean sample bottles and CoC forms. BES will only provide a split sample to the ratepayer if there is sufficient sample volume.
i. Analytical results of split samples need to meet the same requirements as self monitoring samples as those listed in Section 5.A.5. Results accepted by BES will be averaged with the BES results and then included in the rolling average.
7. Private Meters. Ratepayers may participate in the Submeter Program to receive credit against sewer charges based on discharge meter results or proof that incoming water flows such as city water, well water or collected stormwater are not discharged to the city sewer system. Ratepayers must provide, install, maintain and calibrate any private meter used for this purpose and submit meter reads as determined by the City. An administrative charge will be added to the ratepayer’s bill for each private meter in use.
8. Non-routine discharge. A ratepayer may request removal of a sampling result from their rolling average by demonstrating that the result was unrepresentative due to a non-routine discharge.
a. When sample results are impacted by an identified and definable spill at a facility, all of the following conditions must be met for BES to approve a non-routine discharge determination:
i. The discharge is not representative of the industrial discharge, as determined by BES;
ii. The ratepayer became aware of the discharge and documented it within 72 hours of the start of the incident that caused it; and
iii. The non-routine discharge was reported to BES within 24 hours of the ratepayer becoming aware of it.
b. When there is a process upset at a facility that is identified by sampling results, all of the following conditions must be met for BES to approve a non-routine discharge determination:
i. The discharge is not representative of the industrial discharge;
ii. The non-routine discharge was reported to BES within 24 hours of the ratepayer becoming aware of it;
iii. The cause of the discharge was identified and corrected;
iv. The sample result from the discharge exceeded the rolling average monitoring result mean plus three times the established standard deviation; and
v. Additional sampling was performed at the expense of the ratepayer and demonstrated that the discharge has returned to normal.
c. The sampling results from a discharge approved by BES as a non-routine discharge will only be used to bill for that event's discharge volume and will not be included in the ten-month rolling average. The non-routine discharge will still be assessed ESCs for the discharge volume related to the actual event as follows:
i. Spills will be assessed ESCs on the strength of the discharge:
(A) The volume of the material actually spilled; or
(B) The metered waste stream measurements for the duration of the spill event.
ii. Process upset volumes will be calculated from the date of the initial sampling event that indicated the upset until the date of the sampling event that indicated a return to normal discharge conditions.
d. To address an inexplicably high sample result, up to 5 additional samples can be collected within 25-days of the high result, and averaged with the high result for inclusion in the rolling average. The ratepayer may request that BES collect additional samples at the ratepayer’s expense or the ratepayer may perform self-monitoring per Section 5.B.5.
6. New Development and Redevelopment Control Requirements
A. Applicability. Businesses are required to install a sampling manhole at the time of development if:
1. The business or facility is engaged in heavy industry, light manufacturing, food processing, beverage manufacturing, industrial waste treating, chemical manufacturing; or
2. The business, business park or other facility will house tenants that may generate high-strength waste water. If such facilities are not identified in the Class Average Table, they may be required to provide sampling manholes regardless of volume discharged by individual tenants.
3. Single Class Average Business Exemption. While businesses identified on the Class Average table are not required to install sampling manholes, they are encouraged to do so for potential rate reduction reasons. Any business that does not have an approved sampling location will be prohibited from requesting a custom rate.
Ratepayers are required to allow entry to BES staff to determine compliance with these rules. Inspection includes access to all parts of a facility that discharges to or has the potential to discharge to the sanitary sewer system. Inspection may include sampling or other verification that BMPs are present and operational. BES staff shall comply with all business safety requirements as provided by the ratepayer at time of entry but shall not be required to sign a release as a condition of entry. Inspections may occur at any time without warning. Denial of access may require BES to seek an administrative warrant to obtain access to a business for inspection or sampling.
8. Variance Requests.
Any ratepayer can request the use of alternative measures such as sampling waivers, alternative rate-reduction BMPs or other measures or a variance from the requirements of these rules using the process outlined in this section.
A. Alternative Methods.
1. Class Average ESC Method Ratepayers may request alternative methods to those specified in these rules for:
a. Sub Metering under Section 5.A.3.
b. Creating of BMP Rate Reduction under Section 5.A.4.c.
c. Self-monitoring and Custom Rates under Section 5.A.5.
2. Measured ESC Method Ratepayers may request alternative methods to those specified in these rules for:
1. Self Monitoring under Section 5.B.5.
2. Split Samples under Section 5.B.6.
3. Private Meters under Section 5.B.7.
B. Variance Requests. A ratepayer may request exclusion from the general requirements of these rules if:
1. The ratepayer has no applicable wastewater discharges:
a. The ratepayer’s wastewater discharge is comprised solely of domestic water from uses such as restrooms and hand washing, and
b. The ratepayer’s facility has no infrastructure capable of generating wastewater containing elevated levels of BOD, TSS or FOG. Such facilities typically serve prepackaged foods that only require heating in a microwave or counter-top oven and are served with disposable wares. These facilities do not have commercial kitchen fixtures that require Type 1 hoods or have food grinders.
2. Variances for Class Average ESC Method ratepayers will apply to the Class Identification requirements of Section 5.A.2.
3. Variances for Measured ESC Method ratepayers will apply to either:
a. The Rolling Average Reset under Section 5.B.2.b., or
b. The Non-routine Discharge under Section 5.B.8.
C. Submittal. Alternative methods and variance requests shall be submitted with associated documentation to:
ESC Program Manager
City of Portland Bureau of Environmental Services
6543 N Burlington Ave.
Portland, OR 97203-5452.
D. Evaluation of Alternative Method and Variance Requests. BES will review variance requests against the following criteria:
1. Proper Billing Method Used. Requests to use alternative methods for billing will be judged against the criteria presented in Section 5 of these rules.
2. Self Monitoring Data Submission. Self-monitoring reports submitted by ratepayers for use in a rolling average or custom rate will be reviewed against all of the following criteria:
a. Complete CoC forms.
b. QA/QC reports indicating the analysis was accurately performed within specifications.
c. Samples must be collected from a sampling location that is representative of the total flow from the facility. Plumbing plans and diagrams should be used to document sampling locations.
9. Enforcement on Fraud and False Statements
Ratepayers may be subject to enforcement under City Code 17.34.110 or 17.36.100, for any violation of these rules. Fraud or false statements made by the ratepayer in the submission of results, reports, or other documentation required by BES, may violate other local and state laws and regulations, potentially resulting in civil penalties, cost recovery, or referral for criminal investigation.
10. Confidential Information
Businesses may choose to provide financial information including food sales and numbers of meals prepared in order to assist the City in apportioning and estimating flow volumes for ESC rates. Although this financial information will become part of the public record, businesses may request that BES consider it exempt from disclosure under the Oregon Public Records Law by citing specific exemption(s) to the law and providing supporting arguments. The assigned ESC rate, resulting average flow volume and percent water use on the account will not be considered confidential.
11. Administrative Review and Appeals
Ratepayers will have two opportunities at the City level to challenge decision making related to the ESC program: an internal BES Administrative Review and a formal appeal before the City Code Hearings Officer.
A. Allowable Review and Appeal Items. Ratepayers may appeal BES regulations and decisions on any of the following matters:
1. Incorrect classification of the ratepayer’s business according to the Class-Average Table.
2. Inaccurate characterization of specific site wastewater characteristics.
3. Revocation or denial of a BMP rate reduction request.
4. Denial of a request to establish a custom rate.
5. Accuracy of flow estimates, allocations and apportionments.
6. Denial of high-strength monitoring data removal based on non-routine conditions.
7. Accuracy of a rolling-average methodology.
8. Refusal of a Sampling Manhole Waiver under as described in Section 6.A.1.
B. Non-Appealable Items. Ratepayers may not request a BES Administrative Review or appeal to the City Code Hearings Officer regarding the City’s designation of:
1. Extra strength charge rates.
2. The amount of discount for a BMP.
C. Administrative Review Submittal to BES. Ratepayer requests for BES Administrative Review shall be submitted to the Extra Strength Program Manager and must include all of the following items:
1. The name and contact information of the facility or property owner filing the request and the date of submittal; and
2. The address of the business that is the subject of the request;
3. The specific issue requested to be reviewed from the allowable list in Section 10.A; and
4. Substantive documentation to support an assertion that BES erred in evaluating one or more of the review criteria (see Section 10.D below). Review requests shall specifically identify and address each issue of concern incorrectly evaluated by BES staff.
D. BES Administrative Review Evaluation. The BES Pollution Prevention Group manager or their designee will use all of the following criteria to make a final determination regarding the issues raised in the administrative review request:
1. The type of business use triggering these rules.
2. The actual facility TSS and BOD loadings based on specific facility data, if applicable.
3. The likelihood that the City will receive fair compensation for all identified past, present, and future high-strength wastewater discharges.
4. The availability of data or other evidence to determine definitively the amount of ESCs owed.
E. BES Final Determination. BES will make a final determination within 14 days based on the applicability of the review criteria to the written documentation provided by the ratepayer. Extensions of this timeline are allowed if agreed to by all parties. BES shall send a written notice of final determination to the ratepayer after the decision is made. The notice will provide a detailed description of the final determination and information about filing an appeal to be heard to the City Code Hearings Officer.
F. Appeals to the City Code Hearings Officer. Ratepayers may appeal BES decisions to the City Code Hearings Officer. Requests for appeal shall include a $250 charge for processing. BES staff will forward requests to the Code Hearings Officer within 15 days of receipt of the ratepayer request. The City Code Hearings Officer shall then schedule and hold a hearing to review the appeal request.
Review of the final order of a Code Hearings Officer by any aggrieved party, including the City of Portland, shall be by writ of review to the Circuit Court of Multnomah County, Oregon, as provided in ORS 34.010‑34.100.
Link to Appendix A - Explanatory Information (PDF Document, 28 kb)
Link to Appendix B - Class Average Table (PDF Document, 64 kb)
Link to Appendix C - Sampling Manhole Schematic (PDF Document, 76 kb)
Adopted by Director of Bureau of Environmental Services December 27, 2011.
Filed for inclusion in PPD December 27, 2011.
Amended by Director of Bureau of Environmental Services February 26, 2013.