250 R.I. Code R. 250-RICR-150-10-1.16

Current through December 26, 2024

Section 250-RICR-150-10-1.16 - Establishing Limitations, Standards and Other Permit Conditions

A. Each permit shall include conditions meeting the following requirements when applicable:

1. Technology-based effluent limitations and standards based on effluent limitations and standards promulgated under 33 U.S.C. § 1311 (Section 301 of the Clean Water Act) or new source performance standards promulgated under 33 U.S.C. § 1316 (Section 306 of the Clean Water Act); or case-by-case effluent limitations determined under 33 U.S.C. § 1342(a)(1) (Section 402(a)(1) of the Clean Water Act), or on a combination of the two, in accordance with 40 C.F.R. § 125.3, incorporated above at § 1.3(B) of this Part.

2. Monitoring waivers for certain guideline-listed pollutants.

a. The Department may authorize a discharger subject to technology-based effluent limitations guidelines and standards in an RIPDES permit to forego sampling of a pollutant found at 40 C.F.R. Chapter I, Subchapter N, incorporated above at § 1.3(B) of this Part 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 any increase in the pollutant due to activities of the discharger.

b. This waiver is good only for the term of the permit and is not available during the term of the first permit issued to a discharger.

c. Any request for this 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.

d. Any grant of the monitoring waiver must be included in the permit as an express permit condition and the reasons supporting the grant must be documented in the permit's fact sheet or statement of basis.

e. This provision does not supersede certification processes and requirements already established in existing effluent limitations guidelines and standards.

3. Other effluent limitations and standards under 33 U.S.C. §§ 1311, 1312, 1313, 1317, 1328 and 1345 (Sections 301, 302, 303, 307, 318 and 405 of the Clean Water Act), and 40 C.F.R. §§ 125, 129, 133, and Chapter I, Subchapter N, incorporated above at § 1.3(B) of this Part. If any applicable toxic effluent standard or prohibition (including any schedule of compliance specified in such effluent standards or prohibition) is promulgated under 33 U.S.C. § 1317(a) (Section 307(a) of the Clean Water Act) for a toxic pollutant and that standard or prohibition is more stringent that any limitation on the pollutant in the permit, the Department shall institute proceedings under these regulations to modify or revoke and reissue the permit to conform to the toxic effluent standard or prohibition.

4. Reopener clause: for any discharge within a primary industry category (see § 1.69 of this Part), requirements under 33 U.S.C. § 1317(a)(2) (Section 307(a)(2) of the Clean Water Act) as follows:

a. Any permit issued shall include effluent limitations and a compliance schedule to meet the requirements of 33 U.S.C. § 1311(b)(2)(A),(C),(D),(E) and (F) (Sections 301(b)(2)(A),(C),(D),(E) and (F) of the Clean Water Act) whether or not applicable effluent limitation guidelines have been promulgated or approved. Such permits shall contain a provision that, if an applicable standard limitation is promulgated under 33 U.S.C. §§ 1311(b)(2)(C) and (D), 1314(b)(2), and 1317(a)(2) (Section 301(b)(2)(C) and (D), 304(b)(2), and 307(a)(2) of the Clean Water Act), and that effluent standard or limitations is more stringent than any effluent limitation in the permit, or controls a pollutant not limited in the permit, the permit shall be promptly modified or revoked and reissued to conform to the effluent standard or limitation.

b. The Department shall promptly modify or revoke and reissue any permit to incorporate an applicable effluent standard or limitation under 33 U.S.C. §§ 1311(b)(2)(C) and (D), 1314(b)(2) and 1317(a)(2) (Sections 301(b)(2)(C) and (D), 304(b)(2) and 307(a)(2) of the Clean Water Act) which is promulgated or approved after the permit is issued if that effluent standard or limitation is more stringent than any effluent limitation in the permit, or controls a pollutant not limited in the permit.

5. Water quality standards and State requirements: any requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards under 33 U.S.C. §§ 1311, 1314, 1316, 1317, 1328, and 1345 (Sections 301, 304, 306, 307, 318, and 405 of the Clean Water Act) necessary to:

a. Achieve water quality standards; established under 33 U.S.C. § 1313 (Section 303 of the Clean Water Act);

b. Limitations must control all pollutants or pollutant parameters (either conventional, nonconventional, or toxic pollutants) which the Department determines are or may be discharged at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any State water quality standard, including State narrative criteria for water quality.

c. When determining 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 State water quality standard, the permitting authority shall use procedures which account for existing controls on point and nonpoint sources of pollution, the variability of the pollutant or pollutant parameter in the effluent, the sensitivity of the species to toxicity testing (when evaluating whole effluent toxicity), and where appropriate, the dilution of the effluent in the receiving water.

d. When the permitting authority determines, using the procedures in this section, 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.

e. When the permitting authority determines, using the procedures in this section, that a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above the numeric criterion for whole effluent toxicity, the permit must contain effluent limits for whole effluent toxicity.

f. Except as provided in this subparagraph, when the permitting authority determines, using the procedures in this section, 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 State water quality standard, the permit must contain effluent limits for whole effluent toxicity. Limits on whole effluent toxicity are not necessary where the permitting authority demonstrates in the fact sheet or statement of basis of the RIPDES permit, using the procedures in this section, that chemical-specific limits for the effluent are sufficient to attain and maintain applicable numeric and narrative State water quality standards.

g. Where the State has not established a 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 permitting authority must establish effluent limits using one or more of the following options:

(1) Establish effluent limits using a calculated numeric water quality criterion for the pollutant which the permitting authority demonstrates will attain and maintain applicable narrative water quality criteria and will fully protect the designated use. Such a criterion may be derived using a proposed State criterion, or an explicit State policy or regulation interpreting its narrative water quality criterion, supplemented with other relevant information which may include: EPA's Water Quality Standards Handbook, risk assessment data, exposure data, information about the pollutant from the Food and Drug Administration, and current EPA criteria documents; or

(2) Establish effluent limits on a case-by-case basis, using EPA's water quality criteria, published under 33 U.S.C. § 1314(a) (Section 304(a) of the Clean Water Act), supplemented where necessary by other relevant information; or

(3) Establish effluent limitations on an indicator parameter for the pollutant of concern, provided:

(AA) The permit identifies which pollutants are intended to be controlled by the use of the effluent limitation;

(BB) The fact sheet sets forth 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 which are sufficient to attain and maintain applicable water quality standards;

(CC) The 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

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

h. When developing water quality-based effluent limits under this paragraph the permitting authority shall ensure that:

(1) The level of water quality to be achieved by limits on point sources established under this paragraph is derived from, and complies with all 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 any available wasteload allocation for the discharge prepared by the State and approved by EPA pursuant to 40 C.F.R. § 130.7.

(3) Attain or maintain a specified water quality through water quality-related effluent limits established under 33 U.S.C. § 1312 (Section 302 of the Clean Water Act);

(4) Conform to applicable water quality requirements under 33 U.S.C. § 1341(a)(2) (Section 401(a)(2) of the Clean Water Act) when the discharge affects a state other than the certifying State;

(5) Incorporate any more stringent limitations, treatment standards, or schedule of compliance requirements established under Federal or State law or regulations in accordance with 33 U.S.C. § 1311(b)(1)(C) (Section 301(b)(1)(C) of the Clean Water Act) or R.I. Gen. Laws Chapter 46-12;

(6) Ensure consistency with the requirements of a Water Quality Management plan approved by EPA and the Governor of Rhode Island under 33 U.S.C. § 1288(b) (Section 208(b) of the Clean Water Act);

(7) Incorporate Section 403(c) criteria under 40 C.F.R. § 125 Subpart M, incorporated above at § 1.3(B) of this Part for ocean discharges;

(8) Incorporate alternative effluent limitations or standards where warranted by "fundamentally different factors", under 40 C.F.R. § 125 Subpart D, incorporated above at § 1.3(B) of this Part.

6. Toxic pollutants: limitations established under §§ 1.16(A)(1), 1.16(A)(3) and 1.16(A)(5) of this Part to control pollutants meeting the criteria listed in § 1.16(A)(6)(a) of this Part, shall be established in accordance with § 1.16(A)(6)(b) of this Part. An explanation of the development of these limitations shall be included in the fact sheet under § 1.40 of this Part.

a. Limitations must control all toxic pollutants which:

(1) The Department determines (based on information reported in a permit application under § 1.11 of this Part or in a notification under § 1.17(A) of this Part or on other information) are or may be discharged at a level greater than the level which can be achieved by the technology-based treatment requirements appropriate to the permittee under 40 C.F.R. § 125.3(c), incorporated above at § 1.3(B) of this Part; or

(2) The discharger does or may use or manufacture as an intermediate or final product or byproduct.

b. The requirement that the limitations control the pollutants meeting the criteria of § 1.16(A)(6)(a) of this Part will be satisfied by:

(1) Limitations on those pollutants; or

(2) Limitations on other pollutants which, in the judgement of the Department, will provide treatment of the pollutants under § 1.16(A)(6)(a) of this Part to the levels required by 40 C.F.R. § 125.3(c), incorporated above at § 1.3(B) of this Part.

7. Maximum Daily Discharge Limitations. The requirement that the permit contain a list of all pollutants for which a permittee must report violations of maximum daily discharge limitations. This list shall include any toxic pollutant or hazardous substance, or any pollutant specifically identified as the method to control a toxic pollutant or hazardous substance.

8. Best Management Practices: Adopt best management practices to control or abate the discharge of pollutants when:

a. Authorized under 33 U.S.C. § 1314(e) (Section 304(e) of the Clean Water Act) for the control of toxic pollutants and hazardous substances from ancillary activities;

b. Authorized under 33 U.S.C. § 1342(p) (Section 402(p) of Clean Water Act) for the control of storm water discharges;

c. Numeric effluent limitations are infeasible, or

d. The practices are reasonably necessary to achieve effluent limitations and standards or to carry out the purposes and intent of the State and Federal Acts.

9. Notification Level: The requirement that the permit contain a "notification level" which may not exceed those levels provided in § 1.17(A) of this Part or the level which can be achieved by the technology-based treatment requirements appropriate to the permittee under 40 C.F.R. § 125.3(c), incorporated above at § 1.3(B) of this Part.

10. Qualifying State, or local programs. A qualifying local program is a local or State storm water management program that the Department determines, at a minimum, the relevant requirements in § 1.32(E)(3)(b) of this Part are imposed. Where a qualifying State, or local program does not include one or more of the elements as conditions in the permit, the operator of the MS4 is required to include the missing elements in the storm water management program.

a. For storm water discharges associated with small construction activity identified in § 1.4 of this Part, the Department may include permit conditions that incorporate qualifying State, or local erosion and sediment control program requirements by reference. A qualifying State, or local erosion and sediment control program is one that includes:

(1) Requirements for construction site operators to implement appropriate erosion and sediment control best management practices;

(2) Requirements for construction site operators to 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;

(3) Requirements for construction site operators to develop and implement a storm water pollution prevention plan. (A storm water pollution prevention plan includes site descriptions, description of appropriate control measures, copies of approved State or local requirements, maintenance procedures, inspection procedures, and identification of non-storm water discharges); and

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

b. For storm water discharges from construction activity identified in § 1.4 of this Part, the Department may include permit conditions that incorporate qualifying State, or local erosion and sediment control program requirements by reference. A qualifying State, or local erosion and sediment control program is one that includes the elements listed in § 1.16(A)(10)(a) of this Part and any additional requirements necessary to achieve the applicable technology-based standards of "best available technology" and "best conventional technology" based on the best professional judgement of the permit writer.

250 R.I. Code R. 250-RICR-150-10-1.16