Idaho Admin. Code r. 58.01.25.201

Current through September 2, 2024

Section 58.01.25.201 - MODIFICATION, OR REVOCATION AND REISSUANCE OF IPDES PERMITS

01.Procedures to Modify, or Revoke and Reissue Permits.

a. Permits may be modified, or revoked and reissued, at the request of an interested person (including the permittee) or upon the Department's initiative. Permits may only be modified, or revoked and reissued, for reasons in Subsection 201.02. Requests must be in writing and contain facts or reasons supporting the request.

b. If the Department tentatively decides to modify, or revoke and reissue, a permit, the Department will prepare a draft permit under Section 108, incorporating the proposed changes.

i. The Department may request additional information, and for a modified permit, may require submittal of an updated application. If the tentative decision is to revoke and reissue a permit, the Department will require submittal of a new application.

ii. In a permit modification, only those conditions to be modified will be reopened when a new draft permit is prepared. All other aspects of the existing permit remain in effect for the duration of the unmodified permit.

iii. When a permit is revoked and reissued, the entire permit is reopened as if the permit had expired and is being reissued. During a revocation and reissuance proceeding, the permittee must comply with the conditions of the existing permit until a new final permit is reissued.

iv. Minor modifications, defined in Subsection 201.03, do not require development of a draft permit, and fact sheet, and are not subject to public notification and comment.

02.Causes to Modify, or Revoke and Reissue Permits. When the Department receives pertinent information (e.g., facility inspection, information submitted as required by the permit, a request for modification or revocation and reissuance under Subsection 201.01, or permit file review), the Department may determine whether one (1) or more of the causes listed in Subsections 201.02.c. and 201.02.d. for modification or revocation and reissuance or both exist.

a. If cause exists, the Department may modify or revoke and reissue the permit, subject to the limits of Subsection 201.01.b., and may request a new or updated application, if necessary.

b. If cause does not exist, the Department will not modify or revoke and reissue the permit.

c. The following are causes for modification but not revocation and reissuance of permits except when the permittee requests or agrees:

i. Material and substantial alterations or additions to the permitted facility or activity (including a change in the permittee's sludge use or disposal practice) occurred after permit issuance and justify permit conditions that are different or absent in the existing permit.

ii. The Department has received new information. Permits may be modified during their terms for this cause only if the information was not available at the time of permit issuance (other than revised regulations, guidance, or test methods) and justifies the application of different permit conditions at the time of issuance:

(1) For IPDES general permits (Section 130), cause includes information indicating that cumulative effects on the environment are unacceptable; and

(2) For new source or new discharger IPDES permits (Section 120), cause includes significant information derived from effluent testing required under Subsection 105.08 or 105.16 after issuance of the permit.

iii. The standards or regulations on which the permit was based have been changed by promulgation of amended standards or regulations or by judicial decision after the permit was issued. Permits may be modified during their terms for this cause only:

(1) For promulgation of amended standards or regulations, when:

(a) The requested modification was based on a promulgated ELG, EPA approved or promulgated water quality standards, or the Secondary Treatment Regulations under 40 CFR Part 133 ;

(b) The EPA revised, withdrew, or modified that portion of the regulation or ELG on which the permit condition was based, or approved a state action for a water quality standard on which the permit condition was based; and

(c) A permittee requests modification under Subsection 201.01 or 203.01 within ninety (90) days after notice of the action on which the request is based.

(2) For judicial decisions, a court of competent jurisdiction remanded and stayed EPA or Idaho promulgated regulations or ELGs, if the remand and stay concerns that portion of the regulations or guidelines on which the permit condition was based, and a request is filed by the permittee under Subsection 201.01 or 203.01 within ninety (90) days of judicial remand.

iv. The Department determines good cause exists for modifying a compliance schedule, such as an act of God, strike, flood, or materials shortage or other events that the permittee has little or no control and no reasonably available remedy exists. A compliance schedule must not be modified to extend beyond the CWA statutory deadline.

v. When the permittee has filed a request for a variance under CWA Sections 301(c), 301(g), 301(i), 301(k), or 316(a) or for fundamentally different factors within the time specified in Section 310.

vi. When required to incorporate an a CWA Section 307(a) toxic effluent standard or prohibition, under Subsection 302.04.

vii. When required by the reopener conditions in a permit, established in the permit under Subsection 302.05 or 40 CFR 403.18(e) (Pretreatment Standards).

viii. Upon request of a permittee who qualifies for effluent limits on a net basis, or when a discharger is no longer eligible for net limits, as provided in Subsection 303.07.

ix. As necessary under 40 CFR 403.8(e) (Pretreatment Program Requirements: Development and Implementation by POTW).

x. Upon failure of an approved state to notify, as required by CWA Section 402(b)(3), another state whose waters may be affected by a discharge from the approved state.

xi. When the level of discharge of pollutants not limited in the permit exceeds the level that can be achieved by the technology-based treatment requirements appropriate to the permittee under 40 CFR 125.3(c).

xii. To establish a notification level as provided in Subsection 302.08.

xiii. To modify a compliance schedule to reflect the time lost during construction of an innovative or alternative facility, for a POTW that received a loan under IDAPA 58.01.12, "Rules for Administration of Water Pollution Control Loans." The compliance schedule must not be modified to extend beyond the CWA statutory deadline.

xiv. For a small MS4, to include an effluent limit requiring implementation of minimum control measures as specified in 40 CFR 122.34(b) when:

(1) The permit does not include measure(s) based upon the determination that another entity was responsible for implementing the requirement, and

(2) The other entity fails to implement measure that satisfy the requirement.

xv. To correct technical errors in calculation, or mistaken interpretations of law made in determining permit conditions.

xvi. When the discharger has installed the treatment technology considered by the permit writer in setting effluent limits imposed under CWA Section 402(a)(1) and has properly operated and maintained the facilities but has not achieved those effluent limits. The limits in the modified permit may reflect the level of pollutant control achieved (but must not be less stringent than required by a subsequently promulgated ELG).

xvii. The incorporation of the terms of a CAFO's nutrient management plan into the terms and conditions of a general permit when a CAFO obtains coverage under a general permit in accordance with 40 CFR 122.23(h), and Section 130 is not a cause for modification under the requirements of this section.

xviii. When required by a permit condition to incorporate a land application or sludge disposal plan for beneficial reuse of sewage sludge, to revise an existing land application or sludge disposal plan, or to add a land application or sludge disposal plan as required by IDAPA 58.01.16.650, "Wastewater Rules," and Section 380.

d. The following are causes to modify or revoke and reissue a permit:

i. Cause exists for termination under Subsection 203.03, and the Department determines that modification or revocation and reissuance is appropriate;

ii. The Department has received notification, as required in the permit, of a proposed transfer of the permit; or

iii. A permit also may be modified to reflect a transfer after the effective date of an automatic transfer (Subsection 202.02) but will not be revoked and reissued after the effective date of the transfer except upon the request of the new permittee.

03.Minor Modifications of Permits. Upon the consent of the permittee, the Department may modify a permit to correct or allow for changes in the permitted activity listed in this subsection without following the procedures of Sections 108 (Draft Permit and Fact Sheet), 109 (Public Notification and Comment), and Subsection 201.01. A permit modification not processed as a minor modification under this subsection must be made for cause and meet the requirements of Section 108 and Section 109. Minor modifications may:

a. Correct typographical errors;

b. Require more frequent or not less frequent monitoring or reporting by the permittee;

c. Change an interim compliance date in a compliance schedule, provided the new date is not more than one hundred twenty (120) days after the date specified in the existing permit and does not interfere with attaining the final compliance date requirement;

d. Allow for a change in ownership or operational control of a facility where the Department determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittee has been submitted to the Department;

e. Change the construction schedule for a discharger that is a new source. No change affects a discharger's obligation to have pollution control equipment installed and in operation before discharge under Section 120, and 40 CFR 122.29(d);

f. Delete a point source outfall when the discharge from that outfall is terminated and does not result in discharge of pollutants from other outfalls except under permit limits;

g. Incorporate conditions of a POTW pretreatment program approved in accordance with 40 CFR 403.11 or a modification approved in accordance with 40 CFR 403.18 as enforceable conditions of the POTW's permits;

h. Incorporate changes to the terms of a CAFO's nutrient management plan that were revised in accordance with 40 CFR 122.42(e)(6); or

i. Require electronic reporting requirements (to replace paper reporting requirements) specified in 40 CFR Part 127 (NPDES Electronic Reporting).

Idaho Admin. Code r. 58.01.25.201

Effective July 1, 2024