Environmental Quality, Water Quality

Rule R317-8

Utah Pollutant Discharge Elimination System (UPDES)

Notice of Proposed Rule

(Amendment)

DAR File No.: 35238
Filed: 09/15/2011 03:40:30 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The proposed amendment is required to administer a new program to permit the application of pesticides in Utah under the Utah Pollutant Discharge Elimination System (UPDES). This is a new permit, mandated by the EPA as a result of a court ruling that found that certain classes of pesticide operators must obtain a UPDES permit prior to applying pesticides for control of: Mosquito and Other Insect Pests; Weed and Algae Control; Aquatic Nuisance Animal Control; and Forest Canopy Pest Control.

Summary of the rule or change:

The rule outlines the requirements needed for a pesticide operator to obtain coverage under a Pesticide General Permit (PGP) under the state UPDES program. The rule outlines four classes of pesticide operators which are required to file a Notice of Intent (NOI) under the new rule. The rule also outlines treatment area thresholds which dictate whether or not an NOI for certain classes of operators is required to obtain coverage under the PGP.

State statutory or constitutional authorization for this rule:

• Section 19-5-105

Anticipated cost or savings to:

the state budget:

No cost impacts are anticipated. The proposed rule amendment will be administered with existing resources.

local governments:

Any government agency that is primarily engaged in pesticide applications, or applies pesticides as a significant part of the agency uses, i.e., Mosquito Abatement Districts, the BLM (cricket control), DNR and the USFS (primarily for undesirable fish species). The Central Utah Project and maybe a few others may also need to obtain a permit for aquatic weed control. These entities will need to file a two-page application, and prepare a pesticide discharge management plan, and keep annual reports on file on visual monitoring and any adverse affects caused by the discharge. Estimated costs are assumed to be accrued on an hourly basis and the estimate is 40 to 60 hours depending on the number of discharges. The people filing the applications, preparing the plan, and keeping records would be managers. Estimated costs would be $1,750 per entity annually. Additionally, the Division of Water Quality will be seeking approval during the 2012 General Session to levy permit fees for pesticide NOIs. If approved, the costs would range from about $200 (small), $650 (medium), $1,000 (large) per operator, annually for PGP coverage.

small businesses:

Very few small businesses will be affected by the proposed rule because they will not trigger the area thresholds that require filing an NOI (e.g., individual homeowners, wholesale or retail nursery outlets). Pesticide applicators and operators that are required to file a NOI under the proposed rule will need to file a two-page application, prepare a pesticide discharge management plan, and keep annual reports on file that detail visual monitoring and any adverse affects caused by the discharge. Estimated costs would be accrued by the hour and the estimate is 40 to 60 hours depending on the number of discharges. The people filing the applications, preparing the plan, and keeping records would be managers. Estimated costs would be $1,750 per entity annually. Additionally, the Division of Water Quality will be seeking approval during the 2012 General Session to levy permit fees for pesticide NOIs. If approved, the costs would range from about $200 (small), $650 (medium), $1,000 (large) per applicator, annually.

persons other than small businesses, businesses, or local governmental entities:

Water Quality does not anticipate that the proposed rule will impact persons other than small businesses, businesses, or local governmental entities. Therefore, no fiscal impacts are anticipated.

Compliance costs for affected persons:

Pesticide operators that are required to file a NOI under the proposed rule will need to file a two-page application, prepare a pesticide discharge management plan, and keep annual reports on file that detail visual monitoring for any adverse affects caused by the discharge. Estimated costs would be by the hour and the estimate is 40 to 60 hours depending on the number of discharges. The people filing the applications, preparing the plan, and keeping records would be managers. Estimated costs would be $1,750 per entity annually. Additionally, the Division of Water Quality will be seeking approval during the 2012 General Session to levy permit fees for pesticide NOIs. If approved, the costs would range from about $200 (small), $650 (medium), $1,000 (large) per applicator, annually.

Comments by the department head on the fiscal impact the rule may have on businesses:

Businesses that are required to file a NOI under the proposed rule will need to file a two-page application, prepare a pesticide discharge management plan, and keep annual reports on file that detail visual monitoring for any adverse affects caused by the discharge. Estimated costs would be by the hour and the estimate is 40 to 60 hours depending on the number of discharges. The people filing the applications, preparing the plan, and keeping records would be managers. Estimated costs would be $1,750 per entity annually. Additionally, the Division of Water Quality will be seeking approval during the 2012 General Session to levy permit fees for pesticide NOIs. If approved, the costs would range from about $200 (small), $650 (medium), $1,000 (large) per applicator, annually.

Amanda Smith, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Environmental Quality
Water QualityRoom DEQ, Third Floor
195 N 1950 W
SALT LAKE CITY, UT 84116

Direct questions regarding this rule to:

• John Kennington at the above address, by phone at 801-536-4380, by FAX at 801-536-4301, or by Internet E-mail at jkennington@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

11/01/2011

This rule may become effective on:

11/08/2011

Authorized by:

Walter Baker, Director

R317. Environmental Quality, Water Quality.

R317-8. Utah Pollutant Discharge Elimination System (UPDES).

R317-8-2. Scope and Applicability.

2.1 APPLICABILITY OF THE UPDES REQUIREMENTS. The UPDES program requires permits for the discharge of pollutants from any point source into waters of the State. The program also applies to owners or operators of any treatment works treating domestic sewage, whether or not the treatment works is otherwise required to obtain a UPDES permit in accordance with R317-8-8. Prior to promulgation of State rules for sewage sludge use and disposal, the Executive Secretary shall impose interim conditions in permits issued for publicly owned treatment works or take such other measures as the Executive Secretary deems appropriate to protect public health and the environment from any adverse affects which may occur from toxic pollutants in sewage sludge.

(1) Specific inclusions. The following are examples of specific categories of point sources requiring UPDES permits for discharges. These terms are further defined in R317-8-3.5 through R317-8-[8.10]9.2.

(a) Concentrated animal feeding operations;

(b) Concentrated aquatic animal production facilities;

(c) Discharges into aquaculture projects;

(d) Storm water discharges;[ and]

(e) Silvicultural point sources[.]; and

(f) Pesticide discharges.

(2) Specific exclusions. The following discharges do not require UPDES permits:

(a) Any discharge of sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes, or any other discharge incidental to the normal operation of a vessel. This exclusion does not apply to rubbish, trash, garbage, or other such materials discharged overboard; nor to other discharges when the vessel is operating in a capacity other than as a means of transportation such as when used as an energy or mining facility, a storage facility or a seafood processing facility, or when secured to storage facility or a seafood processing facility, or when secured in waters of the state for the purpose of mineral or oil exploration or development.

(b) Discharges of dredged or fill material into waters of the State which are regulated under Section 404 of CWA.

(c) The introduction of sewage, industrial wastes, or other pollutants into publicly owned treatment works by indirect dischargers. Plans or agreements to switch to this method of disposal in the future do not relieve dischargers of the obligation to have and comply with permits until all discharges of pollutants to waters of the State are eliminated. This exclusion does not apply to the introduction of pollutants to privately owned treatment works or to other discharges through pipes, sewers, or other conveyances owned by the State, a municipality, or other party not leading to treatment works.

(d) Any discharge in compliance with the instructions of an on-scene coordinator pursuant to 40 CFR 300 (The National Oil and Hazardous Substances Pollution Contingency Plan) or 33 CFR 153.10(e) (Pollution by Oil and Hazardous Substances).

(e) Any introduction of pollutants from non-point source agricultural and silvicultural activities, including storm water runoff from orchards, cultivated crops, pastures, rangelands, and forest lands, but not discharges from concentrated animal feeding operations as defined in 40 CFR 122.23, discharges from concentrated aquatic animal production facilities as defined in R317-8-3.7, discharges to aquaculture projects as defined in R317-8-3.8, and discharges from silvicultural point sources as defined in R317-8-3.10.

(f) Return flows from irrigated agriculture.

(g) Discharges into a privately owned treatment works, except as the Executive Secretary may otherwise require under R317-8-4.2(12).

(h) Authorizations by permit or by rule which are prepared to assure that underground injection will not endanger drinking water supplies, and which are issued under the state's Underground Injection Control program; and underground injections and disposal wells which are permitted by the Utah Water Quality Board pursuant to Part VII of the Utah Wastewater Disposal Regulations or the Board of Oil, Gas and Mining, Class II.

(i) Discharges which are not regulated by the U.S. EPA under Section 402 of the Clean Water Act.

(3) Requirements for permits on a case-by-case basis.

(a) Various sections of R317-8 allow the Executive Secretary to determine, on a case-by-case basis, that certain concentrated animal feeding operations, concentrated aquatic animal production facilities, separate storm sewers and certain other facilities covered by general permits that do not generally require an individual permit may be required to obtain an individual permit because of their contributions to water pollution.

(b) Whenever the Executive Secretary decides that an individual permit is required as specified in R317-8-2.1(3)(a), the Executive Secretary shall notify the discharger in writing of that decision and the reasons for it, and shall send an application form with the notice. The discharger shall apply for a permit within 60 days of receipt of notice, unless permission for a later date is granted by the Executive Secretary. The question whether the determination was proper will remain open for consideration during the public comment period and in any subsequent adjudicative proceeding.

(c) Prior to a case-by-case determination that an individual permit is required for a storm water discharge, the Executive Secretary may require the discharger to submit a permit application or other information regarding the discharge. In requiring such information, the Executive Secretary shall notify the discharger in writing and shall send an application form with the notice. The discharger must apply for a permit within 60 days of notice, unless permission for a later date is granted by the Executive Secretary. The question whether the determination was proper will remain open for consideration during the public comment period and in any subsequent adjudicative proceeding.

2.2 PROHIBITIONS. No permit may be issued by the Executive Secretary:

(1) When the conditions of the permit do not provide for compliance with the applicable requirements of the Utah Water Quality Act, as amended, or rules promulgated pursuant thereto;

(2) When the Regional Administrator has objected to issuance of the permit in writing under the procedures specified in 40 CFR 123.44;

(3) When the imposition of conditions cannot ensure compliance with the applicable water quality requirements of Utah and all affected states;

(4) When, in the judgment of the Secretary of the U.S. Army, acting through the Chief of Engineers, anchorage and navigation in or on any of the waters of the United States would be substantially impaired by the discharge;

(5) For the discharge of any radiological, chemical, or biological warfare agent or high-level radioactive waste;

(6) For any discharge inconsistent with a plan or plan amendment approved under Section 208(b) of CWA.

(7) To a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards. The owner or operator of a new source or new discharger proposing to discharge into a water segment which does not meet Utah water quality standards or is not expected to meet those standards even after the application of the effluent limitations required by the UPDES regulations and for which the Executive Secretary has performed a wasteload allocation for the pollutants to be discharged, must demonstrate, before the close of the public comment period, that:

(a) There are sufficient remaining wasteload allocations to allow for the discharge; and

(b) The existing dischargers into the segment are subject to schedules of compliance designed to bring the segment into compliance with Utah Water Quality Standards. (See R317-2.)

2.3 VARIANCE REQUESTS BY NON-POTW'S. A discharger which is not a publicly owned treatment works (POTW) may request a variance from otherwise applicable effluent limitations under any of the following statutory or regulatory provisions within the time period specified in this section:

(1) Fundamentally different factors.

(a) A request for a variance based on the presence of "fundamentally different factors" from those on which the effluent limitations guideline was based shall be filed as follows:

1. For a request for a variance from best practicable control technology currently available (BPT) by the close of the public comment period under R317-8-6.5.

2. For a request for a variance from best available technology economically achievable (BAT) and/or best conventional pollutant control technology (BCT) by no later than:

a. July 3, 1989, for a request on an effluent limitation guideline promulgated before February 4, 1987, to the extent July 3, 1989 is not later than that provided under previously promulgated regulations: or

b. 180 days after the date on which an effluent limitation guideline is published in the Federal Register for a request based on an effluent limitation guideline promulgated on or after February 4, 1987.

3. Requests should be filed with the Executive Secretary. A request filed with EPA shall be considered to be a request filed under the UPDES program.

(b) The request shall explain how the requirements of the applicable regulatory and statutory criteria have been met.

(2) Non-conventional pollutants. A request for a variance from the BAT requirements for CWA section 301(b)(2)(F) pollutants (commonly called "non-conventional" pollutants) pursuant to Section 301(c) of CWA because of the economic capability of the owner or operator, or pursuant to section 301(g) of the CWA (provided, however, that 301(g) variance may only be requested for ammonia; chlorine; color; iron; total phenols (4AAP) (when determined by the Executive Secretary to be a pollutant covered by section 301(b)(2)(F)) and any other pollutant listed by the Administrator under Section 301((g)(4) of the CWA) must be filed as follows:

(a) For those requests for a variance from an effluent limitation based upon an effluent limitation guideline by:

1. Filing an initial request with the Executive Secretary stating the name of the discharger, the permit number, the outfall number(s), the applicable effluent guideline, and the nature of the modification being requested. This request must have been filed not later than:

a. September 25, 1978, for a pollutant which is controlled by a BAT effluent limitation guideline promulgated before December 27, 1977: or

b. 270 days after promulgation of an applicable effluent limitation guideline for guidelines promulgated after December 27, 1977: and

2. Submitting a completed request no later than the close of the public comment period under R317-8-6.5 demonstrating that the requirements of R317-8-6.8 and the applicable requirements of R317-8-8.8 have been met. Notwithstanding this provision, the complete application for a request shall be filed 180 days before the Executive Secretary must make a decision (unless the Executive Secretary establishes a shorter or longer period). For those requests for a variance from effluent limitations not based on effluent limitation guidelines, the request need only comply with R317-8-2.3(2)(a)(2) and need not be preceded by an initial request under R317-8-2.3(2)(a)(2).

3. Requests should be filed with the Executive Secretary. A request filed with EPA shall be considered to be a request filed under the UPDES program.

(3) Delay in construction of POTW. An extension of the Federal statutory deadlines based on delay in completion of a POTW into which the source is to discharge must have been requested on or before June 26, 1978 or 180 days after the relevant POTW requested an extension under R317-8-2.7, whichever is later, but in no event may this date have been later than January 30, 1988. The request shall explain how the requirements of 40 CFR Part 125, Subpart J have been met.

(4) Innovative technology. An extension from the Federal statutory deadline for best available technology, or for best conventional pollutant control technology, based on the use of innovative technology may be requested no later than the close of the public comment period under Section R317-8-6.5 for the discharger's initial permit requiring compliance with best available technology or best conventional pollutant control technology. The request shall demonstrate that the requirements of Section R317-8-6.8 and 8-5.6 have been met.

(5) Thermal discharges. A variance for the thermal component of any discharge must be filed with a timely application for a permit under R317-8-3 except that if thermal effluent limitations are established by EPA or are based on water quality standards the request for a variance may be filed by the close of the public comment period under R317-8-6.5.

(6) Water Quality Related Effluent Limitations. A modification of requirements for achieving water quality-related effluent limitations may be requested no later than the close of the public comment period under R317-8-6.5 on the permit from which the modification is sought.

2.4 EXPEDITED VARIANCE PROCEDURES AND TIME EXTENSIONS. Notwithstanding the time requirements in R317-8-2.3, the Executive Secretary may notify a permit applicant before a draft permit is issued under R317-8-6.3 that the draft permit will likely contain limitations which are eligible for variances.

(1) In the notice the Executive Secretary may require that the applicant, as a condition of consideration of any potential variance request, submit a request explaining how the requirements of R317-8-7 applicable to the variance have been met. The Executive Secretary may require the submittal within a specified reasonable time after receipt of the notice. The notice may be sent before the permit application has been submitted. The draft or final permit may contain the alternative limitations which may become effective upon final grant of the variance.

(2) A discharger who cannot file a timely complete request required under R317-8-2.3(2) may request an extension. The extension may be granted or denied at the discretion of the Executive Secretary. Extensions will be no more than six months in duration.

2.5 GENERAL PERMITS

(1) Coverage. The Executive Secretary may issue a general permit in accordance with the following:

(a) Area. The general permit will be written to cover a category of discharges or sludge use or disposal practices or facilities described in the permit under paragraph (b) of this subsection, except those covered by individual permits, within a geographic area. The area will correspond to existing geographic or political boundaries, such as:

1. Designated planning areas under Sections 208 and 303 of CWA;

2. City, county, or state political boundaries;

3. State highway systems;

4. Standard metropolitan statistical areas as defined by the U.S. Office of Management and Budget;

5. Urbanized areas as designated by the U.S. Bureau of the Census, consistent with the U.S. Office of Management and Budget;

6. Any other appropriate division or combination of boundaries as determined by the Executive Secretary.

(b) Sources. The general permit will be written to regulate, within the area described in R317-8-2.5(a), either;

1. Storm water point sources; or

2. A category of point sources other than storm water point sources, or a category of treatment works, treating domestic sewage, if the sources or treatment works treating domestic sewage all:

a. Involve the same or substantially similar types of operations;

b. Discharge the same types of wastes or engage in the same types of sludge use or disposal practices.

c. Require the same effluent limitations, operating conditions, or standards for sludge use or disposal;

d. Require the same or similar monitoring; and

e. In the opinion of the Executive Secretary, are more appropriately controlled under a general permit than under individual permits.

(2) Administration.

(a) General permits may be issued, modified, revoked and reissued, or terminated in accordance with applicable requirements of R317-8-6.

(b) Authorization to discharge, or authorization to engage in sludge use and disposal practices.

1. Except as provided in paragraphs (2)(b)5. and (2)(b)6. of this section, discharges (or treatment works treating domestic sewage) seeking coverage under a general permit shall submit to the Executive Secretary a written notice of intent to be covered by the general permit. A discharger (or treatment works treating domestic sewage) who fails to submit a notice of intent in accordance with the terms of the permit is not authorized to discharge, (or in the case of sludge use or disposal practice), under the terms of the general permit unless the general permit, in accordance with paragraph (2)(b)5. of this section, contains a provision that a notice of intent is not required or the Executive Secretary notifies a discharger (or treatment works treating domestic sewage) that it is covered by a general permit in accordance with paragraph (2)(b)6. of this section. A complete and timely, notice of intent (NOI), to be covered in accordance with general permit requirements, fulfills the requirements for permit applications for purposes of R-317-8-3.

2. The contents of the notice of intent shall be specified in the general permit and shall require the submission of information necessary for adequate program implementation, including at a minimum, the legal name and address of the owner or operator, the facility name and address, type of facility of discharges, and the receiving stream(s). General permits for storm water discharges associated with industrial activity from inactive mining, inactive oil and gas operations, or inactive landfill occurring on Federal lands where an operator cannot be identified may contain alternative notice of intent requirements. Notices of intent for coverage under a general permit for concentrated animal feeding operations must include the information specified in R317-8-3.6(2), including a topographic map. All notices of intent shall be signed in accordance with R317-8-3.3.

3. General permits shall specify the deadlines for submitting notices of intent to be covered and the date(s) when a discharger is authorized to discharge under the permit;

4. General permits shall specify whether a discharger (or treatment works treating domestic sewage) that has submitted a complete and timely notice of intent to be covered in accordance with the general permit and that is eligible for coverage under the permit, is authorized to discharge, (or in the case of a sludge disposal permit, to engage in a sludge use for disposal practice), in accordance with the permit either upon receipt of the notice of intent by the Executive Secretary, after a waiting period specified in the general permit, on a date specified in the general permit, or upon receipt of notification of inclusion by the Executive Secretary. Coverage may be terminated or revoked in accordance with paragraph (2)(c) of this section.

5. Discharges other than discharges from publicly owned treatment works, combined sewer overflows, municipal separate storm sewer systems, primary industrial facilities, and storm water discharges associated with industrial activity, may, at the discretion of the Executive Secretary, be authorized to discharge under a general permit without submitting a notice of intent where the Executive Secretary finds that a notice of intent requirement would be inappropriate. In making such a finding, the Executive Secretary shall consider: the type of discharge; the potential for toxic and conventional pollutants in the discharges; the expected volume of the discharges covered by the permit; and the estimated number of discharges to be covered by the permit. The Executive Secretary shall provide in the public notice of the general permit the reasons for not requiring a notice of intent.

6. The Executive Secretary may notify a discharger (or treatment works treating domestic sewage) that it is covered by a general permit, even if the discharger (or treatment works treating domestic sewage) has not submitted a notice of intent to be covered. A discharger (or treatment works treating domestic sewage) so notified may request an individual permit under paragraph R317-8-2.5(2)(c).

(c) Requiring an individual permit.

1. The Executive Secretary may require any person authorized by a general permit to apply for and obtain an individual UPDES permit. Any interested person may petition the Executive Secretary to take action under R317-8-2.4. Cases where an individual UPDES permit may be required include the following:

a. The discharge(s) is a significant contributor of pollutants. In making this determination, the Executive Secretary may consider the following factors:

i. The location of the discharge with respect to waters of the State;

ii. The size of the discharge;

iii. The quantity and nature of the pollutants discharged to waters of the State; and

iv. Other relevant factors;

b. The discharger or treatment works treating domestic sewage is not in compliance with the conditions of the general UPDES permit;

c. A change has occurred in the availability of demonstrated technology or practices for the control or abatement of pollutants applicable to the point source or treatment works treating domestic sewage;

d. Effluent limitation guidelines are promulgated for point sources covered by the general UPDES permit;

e. A Utah Water Quality Management Plan containing requirements applicable to such point sources is approved;

f. Standards for sewage sludge use or disposal have been promulgated for the sludge use and disposal practices covered by the general UPDES permit; or

2. Any owner or operator authorized by a general permit may request to be excluded from the coverage of the general permit by applying for an individual permit. The owner or operator shall submit an application under R317-8-3.1 to the Executive Secretary with reasons supporting the request. The request shall be submitted no later than ninety (90) days after the notice by the Executive Secretary in accordance with R317-8-6.5. If the reasons cited by the owner or operator are adequate to support the request, the Executive Secretary may issue an individual permit.

3. When an individual UPDES permit is issued to an owner or operator otherwise subject to a general UPDES permit, the applicability of the general permit to the individual UPDES permittee is automatically terminated on the effective date of the individual permit.

4. A source excluded from a general permit solely because he already has an individual permit may request that the individual permit be revoked. The permittee shall then request to be covered by the general permit. Upon revocation of the individual permit, the general permit shall apply to the source.

2.6 DISPOSAL OF POLLUTANTS INTO WELLS, INTO POTWS OR BY LAND APPLICATION.

(1) The Executive Secretary may issue UPDES permits to control the disposal of pollutants into wells when necessary to protect the public health and welfare, and to prevent the pollution of ground and surface waters.

(2) When part of a discharger's process wastewater is not being discharged into waters of the State (including groundwater) because it is disposed of into a well, into a POTW, or by land application, thereby reducing the flow or level of pollutants being discharged into waters of the State, applicable effluent standards and limitations for the discharge in a UPDES permit shall be adjusted to reflect the reduced raw waste resulting from such disposal. Effluent limitations and standards in the permit shall be calculated by one of the following methods:

(a) If none of the waste from a particular process is discharged into waters of the State and effluent limitations guidelines provide separate allocation for wastes from that process, all allocations for the process shall be eliminated from calculation of permit effluent limitations or standards.

(b) In all cases other than those described in R317-8-2.6(2)(a), effluent limitations shall be adjusted by multiplying the effluent limitation derived by applying effluent limitation guidelines to the total waste stream by the amount of wastewater to be treated and discharged into waters of the State and dividing the result by the total wastewater flow. Effluent limitations and standards so calculated may be further adjusted under R317-8-7.3 to make them more or less stringent if discharges to wells, publicly owned treatment works, or by land application change the character or treatability of the pollutants being discharged to receiving waters.

This method may be algebraically expressed as: P = E x N/T

Where P is the permit effluent limitation, E is the limitation derived by applying effluent guidelines to the total waste stream, N is the wastewater flow to be treated and discharged to waters of the State and T is the total wastewater flow.

(3) R317-8-2.6(2) shall not apply to the extent that promulgated effluent limitations guidelines:

(a) Control concentrations of pollutants discharged but not mass; or

(b) Specify a different specific technique for adjusting effluent limitations to account for well injection, land application, or disposal into POTWs.

(4) R317-8-2.6(2) does not alter a dischargers obligation to meet any more stringent requirements established under R317-8-4.

2.7 VARIANCE REQUESTS BY POTWS. A discharger which is a publicly owned treatment works (POTW) may request a variance from otherwise applicable effluent limitations under the following provision:

(1) Water Quality Based Effluent Limitation. A permit modification of the requirements for achieving water quality based effluent limitations shall be requested no later than the close of the public comment period under R317-8-6.5 on the permit for which the modification is sought.

(2) Delay in construction. An extension of a Federal statutory deadline based on delay in the construction of the POTW must have been requested on or before August 3, 1987.

2.8 DECISION ON VARIANCES

(1) The Executive Secretary may deny or forward to the Administrator (or his delegate) with a written concurrence, a completed request for:

(a) Extensions under CWA section 301(i) based on delay in completion of a publicly owned treatment works;

(b) After consultation with the Regional Administrator, extensions based on the use of innovative technology; or

(c) Variances under R317-8-2.3(4) for thermal pollution.

(2) The Executive Secretary may deny or forward to the Regional Administrator with a written concurrence, or submit to EPA without recommendation a completed request for:

(a) A variance based on the presence of "fundamentally different factors" from those on which an effluent limitations guideline was based;

(b) A variance based on the economic capability of the applicant;

(c) A variance based upon certain water quality factors (See CWA section 301(g)); or

(d) A variance based on water quality related effluent limitations.

(e) Except for information required by R317-8-3.1(4)(c) which shall be retained for a period of at least five years from the date the application is signed, applicants shall keep records of all data used to complete permit applications and any supplemental information for a period of at least three years from the date the application is signed.

 

R317-8-9. Pesticide Discharge Permit.

9.1 APPLICABILITY.

(1) This section applies to qualified groups of operators who discharge on or near surface waters of the State from the application of (1) biological pesticides or (2) chemical pesticides (hereinafter collectively "pesticides"), when the pesticide application is for one of the following pesticide use patterns:

(a) Mosquito and Other Insect Pests - to control public health/nuisance and other insect pests that may be present on or near standing or flowing surface water. Public health/nuisance and other insect pests in this use category include but are not limited to mosquitoes and black flies.

(b) Weed and Algae Control - to control invasive or other nuisance weeds and algae in water and at water's edge, including irrigation ditches and/or irrigation canals.

(c) Aquatic Nuisance Animal Control - to control invasive or other nuisance animals in water and at water's edge. Aquatic nuisance animals in this use category include, but are not limited to fish, lampreys, and mollusks.

(d) Forest Canopy Pest Control - application of a pesticide to a forest canopy to control the population of a pest species (e.g., insect or pathogen) where to target the pests effectively a portion of the pesticide unavoidably will be applied over and deposited to water.

(2) Qualified Operator Groups. Certain types of entities (operators), engaged in the above pesticide use patterns, will be required to submit a NOI and obtain coverage under a Pesticide General Permit (PGP) as detailed below:

Operator Group 1 - All Operators involved with any discharges to Category 1 (R317-2-12) waters of the State. All operators involved in the discharge of pesticides on or near surface waters of State, which have been determined by the Water Quality Board to be Category 1 waters of the State must submit a NOI to obtain coverage under the PGP. The NOI must detail each area and watershed where a discharge is to occur. Only p esticide applications which are made to restore or maintain water quality or to protect public health or the environment would be covered under the PGP for discharges on or near Category 1 surface waters of the State.

Operator Group 2 - All Government or Quasi-Governmental Agencies or Special Service Districts. All government agency operators (federal, state, county or local agencies and special service districts) involved in the discharge of pesticides under the conditions described above, as a primary purpose or as a significant activity in their operations, must submit a NOI describing each area and watershed where a discharge is to occur to obtain PGP coverage regardless of the size of the area to be treated.

Operator Group 3 - Other Operators. Other operators engaged in the discharge of pesticides for the conditions described above as a primary purpose or as a significant activity in their operations, like private pest control companies, water supply or canal companies or other large operators whose discharges exceed the treatment area thresholds detailed in Table 2 below must apply for a NOI to obtain coverage under the PGP as detailed in Table 1 below.

Operator Group 4 - Operators involved in a "Declared Pest Emergency Situation". All operators that otherwise aren't required to obtain a NOI, but become involved in a "declared pest emergency situation", as defined below, and will exceed any of the treatment area thresholds in Table 2 must submit a NOI to obtain PGP coverage as detailed in Table 1 below.

9.2 DEFINITIONS. The following definitions specifically pertain to aspects of pesticide discharge permitting in the UPDES program and should be used in conjunction with the definitions shown in R317-1-1 and R317-8-1.5.

(1) "BiologicalPesticides" (also called biopesticides) means microbial pesticides, biochemical pesticides and plant-incorporated protectants (PIP). Microbial pesticide means a microbial agent intended for preventing, destroying, repelling, or mitigating any pest, or intended for use as a plant regulator, defoliant, or dessicant, that (a) is a eucaryotic microorganism including, but not limited to, protozoa, algae, and fungi; (b) is a procaryotic microorganism, including, but not limited to, Eubacteria and Archaebacteria; or (c) is a parasitically replicating microscopic element, including but not limited to, viruses (40 CFR 158.2100(b)).

(2) "Biochemical pesticide"means a pesticide that (a) is a naturally-occurring substance or structurally-similar and functionally identical to a naturally-occurring substance; (b) has a history of exposure to humans and the environment demonstrating minimal toxicity, or in the case of a synthetically-derived biochemical pesticide, is equivalent to a naturally-occurring substance that has such a history; and (c) Has a non-toxic mode of action to the target pest(s)(40 CFR 158.2000(a)(1)). Plant-incorporated protectant means a pesticidal substance that is intended to be produced and used in a living plant, or in the production thereof, and the genetic material necessary for production of such a pesticidal substance. It also includes any inert ingredient contained in the plant, or production thereof (40 CFR 174.3).

(3) "ChemicalPesticides" means all pesticides not otherwise classified as biological pesticides.

(4) " Declared Pest Emergency Situation" means an event defined by a public declaration by a federal agency, state, or local government of a pest problem determined to require control through application of a pesticide beginning less than ten days after identification of the need for pest control. This public declaration may be based on a; significant risk to human health; significant economic loss; or significant risk to Endangered species, Threatened species, Beneficial organisms, or, the environment .

(5) "NOI" means "Notice of Intent", the formal document submitted by an operator to the Division of Water Quality (DWQ) to request coverage under the Pesticide General Permit.

(6) "Operator" means any entity involved in the application of a pesticide which may result in a discharge to waters of the State that meets either or both of the following two criteria:

(a) The entity has control over the financing for, or the decision to perform pesticide applications that result in discharges, including the ability to modify those decisions or;

(b) The entity has day-to-day control of, or performs activities that are necessary to ensure compliance with the permit (e.g., they are authorized to direct workers to carry out activities required by the permit or perform such activities themselves).

(7) "surface waters of the State" means waterbodies, waterways, streams, lakes or rivers that contain standing or flowing water at the time of pesticide application.

(8) "Treatment Area" means the entire area, whether over land or water, where the pesticide application is intended to provide pesticidal benefits or may have an environmental impact. In some instances, the treatment area will be larger than the area where pesticides are actually applied.

9.3 ADMINISTRATIVE REQUIREMENTS.

(1) All operators who are included in the use patterns specified in R317-8-9.1, and discharge to active surface waters of the State as a result of the application of a pesticide must be covered by a UPDES permit, beginning October 31, 2011, by submitting a NOI to obtain coverage under the Pesticide General Permit (PGP). In the event that a discharge occurs prior to submitting a NOI, you must comply with all other requirements of the PGP immediately. All operators will automatically be covered under the PGP for the first five-year permit term of October 31, 2011 to October 30, 2016 if they submit a NOI by February 15, 2012. To obtain PGP coverage for the second and all succeeding PGP five-year terms, all operators must submit a NOI prior to the expiration date (October 30) of the PGP every five years. Each NOI submission will secure permit coverage for the full five-year term of the PGP.

(2) New, qualified operators, who require PGP coverage after February 15, 2012 must submit a NOI in accordance with Table 1 below. The NOI will secure PGP coverage for the remainder of the five-year term of the PGP in effect at that time. For continued PGP coverage during the next five-year permit cycle, a new NOI must be submitted before the expiration of the present PGP, as detailed above.

 

Table 1. Discharge Authorization Date (a/)

 

          Category             NOI Submittal       Discharge Authorization 

                               Deadline            Date 

          

          Operators who know   At least 10 days    No earlier than 10 days 

          or should have rea-  prior to            after the complete and 

          sonably known, prior commencement of     accurate NOI is 

          to commencement of   discharge           mailed and  

          discharge, that they                     postmarked. 

          will exceed an annual 

          treatment area thre- 

          shold identified in 

          R317-8-9.3 (4). 

          

          Operators who do not At least 10 days   Original authorization 

          know or would have   prior to exceed-   terminates when annual 

          reasonably not known ing an annual      treatment area thresh- 

          until after commen-  treatment area     hold is exceeded. Op- 

          cement of discharge, threshold.         erator is reauthor- 

          that they will ex-                      ized no earlier th- 

          ceed an annual tr-                      an 10 days after 

          eatment area thr-                       complete and accurate 

          eshold identified                       NOI is mailed 

          in R317-8-9.3(4).                       and postmarked. 

          

          Operators commenc-   No later than 30   Immediately, for 

          ing discharge in     days after com-    activities cond- 

          response to a dec-   mencement of       ucted in response 

          lared pest emerg-    discharge.         to a declared pest 

          ency situation.                         emergency situation. 

          

          a/ In the event that a discharge occurs prior to your 

          submitting a NOI,
          you must comply with all other requirements 

          of the PGP immediately. 

 

(3) PGP Coverage Termination. PGP coverage may be terminated by non-submission of a NOI at the end of the present PGP five-year term, or by submission of a signed Notice of Termination (NOT) form to the DWQ.

(4) Annual Treatment Area Thresholds.

 

Table 2. Annual Treatment Area Thresholds

 

          Rule       Pesticide Use Class       Annual Threshold 

          Section 

          

          R317-8-    Mosquitoes and Other      6,400 acres of 

          9.1(1)(a)  Insect Pests              Treatment Area 

          

          R317-8-    Weed and Algae Control 

          9.1(1)(b)  -In Water                 80 acres of treatment area a/ 

                     -At Water's Edge          100 linear miles of treatment 

                                               area at water's edge b/ 

          

          R317-8-    Aquatic Nuisance Animal Control 

          9.1(1)(c)  -In Water                 80 acres of treatment area a/ 

                     -At Water's Edge          100 linear miles of treatment 

                                               area at water's edge b/ 

          

          R317-8-    Forest Canopy Pest        6,400 acres of treatment area 

          9.1(1)(d)  Control 

          

          a/ Calculations should include the area of the applications 

          made to active surface waters of the State at the time of 

          pesticide application.  For calculating annual treatment area 

          totals, count each pesticide application activity as a separate 

          activity.  For example, applying pesticides twice a year to a 

          ten acre site should be counted as twenty acres of treatment 

          area. 

          

          b/ Calculations should include the linear extent of the 

          application made at water's edge adjacent to active surface 

          waters of the State and at the time of pesticide application. 

          For calculating annual treatment totals, count each pesticide 

          application activity and each side of a linear water body as a 

          separate activity or area.  For example, treating both sides 

          of a ten mile ditch is equal to twenty miles of water treatment 

          area. 

 

(5) All applicators or operators, whether or not falling into the use categories, or required to obtain PGP coverage, or whether or not meeting the minimum annual treatment area thresholds shown in R317-8-9.3(4) must conform to the Technology Based Effluent limitations in the PGP and to all applicable rules and regulations of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The permittee is expected to familiarize himself with the PGP and conform to its requirements, if he discharges any pesticides prior to obtaining a NOI. After February 15, 2012 the permittee is authorized to discharge under the terms and conditions of the PGP only with submission of a completed electronic NOI in accordance with Table 1 above.

(6) Based on a review of the NOI or other information, the DWQ may delay authorization to discharge under the PGP or may determine that additional technology-based and/or water quality-based effluent limitations are necessary; or may deny coverage under this PGP and require submission of an application for an individual UPDES permit in accordance with this rule. If the Executive Secretary determines an individual UPDES permit is required, that permitting process will proceed independently.

 

KEY: water pollution, discharge permits

Date of Enactment or Last Substantive Amendment: [April 7, 2009]2011

Notice of Continuation: October 4, 2007

Authorizing, and Implemented or Interpreted Law: 19-5; 19-5-104; 40 CFR 503