Idaho Admin. Code r. 58.01.25.302

Current through September 2, 2024

Section 58.01.25.302 - ESTABLISHING PERMIT PROVISIONS

The Department will establish conditions, as required on a case-by-case basis, to provide for and ensure compliance with applicable requirements of the CWA and state rules, including conditions under Section 101, Section 305, Section 304, and electronic reporting requirements identified under 40 CFR Part 127 . An IPDES permit will include conditions meeting the following requirements, when applicable.

01.Incorporation. Permit conditions will be incorporated expressly or by reference. If incorporated by reference, a specific citation to the applicable regulations or requirements will be given in the permit.

02.Applicable Requirements. The Department will establish conditions, as required on a case-by-case basis, to provide for and ensure compliance with applicable requirements of the CWA and Section 101, and Subsections 304.01, and 305.01. Applicable requirements include:

a. All statutory or regulatory requirements that take effect before final administrative disposition of the permit.

b. Any requirement that takes effect before the modification or revocation and reissuance of a permit under Section 201.

c. New or reissued permits, and to the extent allowed under Section 201 for modified or revoked and reissued permits, will incorporate each of the applicable requirements referenced in Sections 200 (Renewal of IPDES Permits), and 302 (Establishing Permit Provisions) through 304 (Monitoring and Reporting Requirements).

03.Technology-Based Effluent Limits and Standards.

a. Technology-based effluent limits and standards shall be based on:

i. Effluent limits and standards promulgated under CWA Section 301;

ii. New source performance standards promulgated under CWA Section 306;

iii. Effluent limits determined on a case-by-case basis under CWA Section 402(a)(1); or

iv. Combination of the three (3), in accordance with 40 CFR 125.3.

b. For new sources or new dischargers, these technology-based limits and standards are subject to the provisions of 40 CFR 122.29(d).

c. The Department may authorize a discharger, subject to technology-based ELGs and standards in an IPDES permit, to forgo sampling of a pollutant found at 40 CFR Parts 401 through 471, if the discharger has demonstrated through sampling and other technical factors that the pollutant is not present in the discharge or is present only at background levels from intake water and without an increase in the pollutant due to activities of the discharger.

i. The waiver is good only for the term of the permit and is not available during the term of the first NPDES or IPDES permit issued to a discharger.

ii. A request for the waiver must be submitted when applying for a reissued permit or modification of a reissued permit. The request must demonstrate through sampling or other technical information, including information generated during an earlier permit term that the pollutant is not present in the discharge or is present only at background levels from intake water and without any increase in the pollutant due to activities of the discharger.

iii. A monitoring waiver approval will be included in the permit as an express permit condition and the reasons supporting the approval will be documented in the permit's fact sheet.

iv. This provision does not supersede certification processes and requirements already established in existing ELGs and standards.

04.Other Effluent Limits and Standards.

a. If toxic effluent limit and standards under CWA Section 301, 302, 303, 307, 318, and 405 or prohibition (including schedules of compliance specified in effluent standard or prohibition) are promulgated under CWA Section 307(a) for a toxic pollutant and that standard or prohibition is more stringent than any limitation on the pollutant in the permit, the Department will initiate proceedings under Section 201 to modify or revoke and reissue the permit to conform to the more stringent toxic effluent standard or prohibition (Subsection 300.01).

b. Standards for sewage sludge use or disposal under CWA Section 405(d), Section 380 of these rules, and IDAPA 58.01.16.650, "Wastewater Rules," will be applied, unless those standards have been included in a permit issued under the appropriate provisions of:

i. Subtitle C of the Solid Waste Disposal Act;

ii. Part C of Safe Drinking Water Act;

iii. The Clean Air Act; or

iv. State permit programs approved by the EPA.

c. When no applicable standards exist for sewage sludge use or disposal, the permit may include requirements developed on a case-by-case basis to protect public health and the environment from any adverse effects that may occur from toxic pollutants in sewage sludge.

d. If an applicable standard for sewage sludge use or disposal is promulgated under CWA Section 405(d), Section 380 (Sewage Sludge) of these rules, and IDAPA 58.01.16.650, "Wastewater Rules," and that standard is more stringent than a limit on the pollutant or practice in the permit, the Department may initiate proceedings under these regulations to modify or revoke and reissue the permit to comply with Section 201, to conform to the standard for sewage sludge use or disposal.

e. Include requirements applicable to cooling water intake structures under CWA Section 316(b), in accordance with 40 CFR 125.80 through 125.99.

05.Reopener Clause. For a permit issued to a TWTDS (including sludge-only facilities), the Department will include a reopener clause to incorporate applicable standards for sewage sludge use or disposal promulgated under CWA Section 405(d). The Department may promptly modify or revoke and reissue a permit containing the reopener clause required by this subsection if the standard for sewage sludge use or disposal:

a. Is more stringent than the requirements for sludge use or disposal in the permit, or

b. Controls a pollutant or practice not limited in the permit.

06.Water Quality Standards and Requirements. Requirements in addition to or more stringent than promulgated ELGs or standards under CWA Sections 301, 304, 306, 307, 318 and 405 will be included in a permit if they are necessary to:

a. Achieve water quality standards established in IDAPA 58.01.02, "Water Quality Standards," including narrative criteria for water quality and antidegradation provisions.

i. Effluent limits in a permit will control all pollutants or pollutant parameters (either conventional, nonconventional, or toxic pollutants) the Department determines are or may be discharged at a level that will cause, have the reasonable potential to cause, or contribute to an excursion above water quality standards, including narrative criteria for water quality.

ii. When the Department determines whether a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above a narrative or numeric criteria within a water quality standard, the Department will use procedures to account for:

(1) Existing controls on point and nonpoint sources of pollution;

(2) Variability of the pollutant or pollutant parameter in the effluent;

(3) Sensitivity of the species to toxicity testing (when evaluating WET); and where appropriate,

(4) Dilution of the effluent in the receiving water;

iii. When the Department determines, using the procedures in Subsection 302.06.a.ii., that a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above the allowable ambient concentration of a state numeric criteria within a state water quality standard for an individual pollutant, the permit must contain effluent limits for that pollutant.

iv. When the Department determines, using the procedures in Subsection 302.06.a.ii., that a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above the numeric criterion for WET, the permit must contain effluent limits for WET.

v. Except as provided in this subsection, when the Department determines, using the procedures in Subsection 302.06.a.ii., toxicity testing data, or other information, that a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above a narrative criterion within an applicable water quality standard, the permit must contain effluent limits for WET. Limits on WET are not necessary where the Department demonstrates in the IPDES permit fact sheet, using the procedures in Subsection 302.06.a.ii., that chemical-specific limits for the effluent are sufficient to attain and maintain applicable numeric and narrative state water quality standards.

vi. When the state has not established a numeric water quality criterion for a specific chemical pollutant that is present in an effluent at a concentration that causes, has the reasonable potential to cause, or contributes to an excursion above a narrative criterion within an applicable state water quality standard, the Department will establish effluent limits using one (1) or more of the following options:

(1) A calculated numeric water quality target or concentration value for the pollutant that the Department demonstrates will attain and maintain applicable narrative water quality criteria and will fully protect the designated use. A target or concentration value may be derived:

(a) Using a proposed criterion, or an explicit policy or regulation interpreting its narrative water quality criterion, and

(b) Supplemented with other relevant information that may include EPA's current Water Quality Standards Handbook, risk assessment data, exposure data, information about the pollutant from the Food and Drug Administration (FDA), and current EPA criteria documents;

(2) EPA's water quality recommended criteria, published under CWA Section 304(a), supplemented where necessary by other relevant information; or

(3) Indicator parameter for the pollutant of concern, provided the:

(a) Permit identifies the pollutants intended to be controlled by using the effluent limit;

(b) Required fact sheet states the basis for the limit, including a finding that compliance with the effluent limit on the indicator parameter will result in controls on the pollutant of concern that are sufficient to attain and maintain applicable water quality standards;

(c) Permit requires all effluent and ambient monitoring necessary to show that during the term of the permit the limit on the indicator parameter continues to attain and maintain applicable water quality standards; and

(d) Permit contains a reopener clause allowing the Department to modify or revoke and reissue the permit if the limits on the indicator parameter no longer attain and maintain applicable water quality standards.

vii. When developing water quality-based effluent limits under this subsection, the Department will ensure that the:

(1) Level of water quality to be achieved by limits on point sources established under this subsection is derived from, and complies with applicable water quality standards; and

(2) Effluent limits developed to protect a narrative water quality criterion, a numeric water quality criterion, or both, are consistent with the assumptions and requirements of available wasteload allocations for the discharge prepared by the state and approved by EPA under 40 CFR 130.7;

b. Attain or maintain a specified water quality through water quality related effluent limits established under CWA Section 302;

c. Conform to applicable water quality requirements under CWA Section 402(b)(5) when the discharge affects a state other than Idaho;

d. Incorporate more stringent limits, treatment standards, or schedules of compliance requirements established under federal or state law or regulations in accordance with CWA Section 301(b)(1)(C);

e. Ensure consistency with the requirements of a Water Quality Management plan approved by EPA under CWA Section 208(b); or

f. Incorporate alternative effluent limits or standards when warranted by fundamentally different factors, under 40 CFR 125.30 through 125.32.

07.Technology-Based Controls for Toxic Pollutants.

a. In determining whether to include limits on toxic pollutants in a permit under this section, the Department will establish limits in accordance with Subsections 302.03, 302.04, and 302.06 and in a notification under Section 301, or other relevant information. The fact sheet must explain the development of limits included in the permit.

b. An IPDES permit will include limits to control all toxic pollutants the Department determines (based on information reported in a permit application under Subsection 105.07 and 301.01.a., or on other information) are or may be discharged at a level greater than the level that can be achieved by the technology-based treatment requirements appropriate to the permittee under 40 CFR 125.3(c).

c. The requirement that the limits control pollutants meeting the criteria of Subsection 302.07.b. will be satisfied by:

i. Limits on those toxic pollutants; or

ii. Limits on other pollutants that, in the judgment of the Department, will treat the pollutants under Subsection 302.07.b. to the levels required by 40 CFR 125.3(c).

08.Notification Level. An IPDES permit will require a notification level that exceeds the notification level of Subsection 301.01.a., upon a petition from the permittee or on the Department's initiative. This new notification level may not exceed the level that can be achieved by the technology-based treatment requirements appropriate to the permittee under 40 CFR 125.3(c).

09.Twenty-Four (24) Hour Reporting. A permit will list pollutants a permittee is required to report violations of maximum daily discharge limits within twenty-four (24) hours under Subsection 300.12.f.iii(3), including toxic pollutants or hazardous substances, or pollutants identified as the method to control a toxic pollutant or hazardous substance.

10.Permit Durations. Permits must include permit durations under Subsection 101.01.

11.Monitoring Requirements. Permits will include monitoring requirements under Section 304.

12.Pretreatment Program for POTWs. A POTW permit will include pretreatment program conditions requiring the permittee to:

a. Identify the character and volume of pollutants of Significant Industrial Users discharging into the POTW subject to Pretreatment Standards under CWA Section 307(b) and 40 CFR Part 403 ;

b. Submit a local program when required by 40 CFR Part 403, to ensure compliance with pretreatment standards to the extent applicable under CWA Section 307(b):

i. Incorporate the local program into the permit as described in 40 CFR Part 403, and

ii. Require indirect dischargers to the POTW to comply with the reporting requirements of 40 CFR Part 403 ;

c. Provide written technical evaluation of the need to revise local limits under 40 CFR 403.5(c)(1), following permit issuance or reissuance; and

d. POTWs that are sludge-only facilities, must develop a pretreatment program under 40 CFR Part 403, when the Department determines that a pretreatment program is necessary to ensure compliance with CWA Section 405(d).

13.Best Management Practices. An IPDES permit will include BMPs to control or abate the discharge of pollutants when:

a. Authorized under CWA Section 304(e) to control toxic pollutants and hazardous substances from ancillary industrial activities;

b. Authorized under CWA Section 402(p) to control storm water discharges;

c. Numeric effluent limits are infeasible; or

d. Practices are necessary to achieve effluent limits and standards or to carry out the CWA.

14.Reissued Permits. When a permit is renewed or reissued, it will include provisions under Section 200.

15.Privately-Owned Treatment Works. For a privately owned treatment works, conditions expressly applicable to users, as a limited co-permittee, may be necessary in the permit issued to the treatment works to ensure compliance with applicable requirements under this section.

a. Alternatively, the Department may issue separate permits to the treatment works and to its users or may require a separate permit application from a user.

b. The Department's decision to issue a permit with no conditions applicable to users, to impose conditions on one (1) or more users, to issue separate permits, or to require separate applications, and the basis for that decision, will be stated in the fact sheet for the draft permit for the treatment works.

16.Grants. An IPDES permit will include conditions imposed in grants made by the EPA to POTWs under CWA Sections 201 and 204, that are reasonably necessary to achieve effluent limits under CWA Section 301.

17.Sewage Sludge. An IPDES permit will include requirements under CWA Section 405 governing the disposal of sewage sludge from POTWs or other TWTDS for uses where regulations have been established.

18.Navigation. An IPDES permit will include conditions the Secretary of the Army considers necessary to ensure navigation and anchorage will not be substantially impaired, in accordance with Subsection 103.04 and 109.02.

19.Qualifying State or Local Programs.

a. For storm water discharges associated with small construction activity disturbing one (1) acre or more, but less than five (5) acres as specified in 40 CFR 122.26(b)(15), the Department may include permit conditions that incorporate by reference qualifying state or local erosion and sediment control program requirements. Where a qualifying state or local program does not include one (1) or more of the elements in this subsection, then the Department must include those elements as conditions in the permit.

b. A qualifying state or local erosion and sediment control program includes requirements for construction site operators to:

i. Implement appropriate erosion and sediment control BMPs;

ii. Control waste such as discarded building materials, concrete truck washout, chemicals, litter, and sanitary waste at the construction site that may cause adverse impacts to water quality;

iii. Develop and implement a storm water pollution prevention plan, including:

(1) Site descriptions;

(2) Descriptions of appropriate control measures;

(3) Copies of approved state or local requirements;

(4) Maintenance procedures;

(5) Inspection procedures;

(6) Identification of non-storm water discharges; and

iv. Requirements to submit a site plan for review that incorporates consideration of potential water quality impacts.

c. For storm water discharges from a construction activity disturbing five (5) acres or more, including activities that disturb less than acres (5) acres but are part of a larger common plan of development or sale that will ultimately disturb five (5) acres or more, as specified in 40 CFR 122.26(b)(14)(x), the Department may include permit conditions that incorporate by reference qualifying state or local erosion and sediment control program requirements. A qualifying state or local erosion and sediment control program includes the elements listed in Subsections 302.19.a. and b. and additional requirements necessary to achieve the technology-based standards of best available technology and best conventional technology based on the best professional judgment of the permit writer.

Idaho Admin. Code r. 58.01.25.302

Effective July 1, 2024