DAR File No. 37961
This rule was published in the September 15, 2013, issue (Vol. 2013, No. 18) of the Utah State Bulletin.
Environmental Quality, Water Quality
Notice of Proposed Rule
DAR File No.: 37961
Filed: 09/03/2013 04:29:46 PM
Purpose of the rule or reason for the change:
The purpose of this amendment is to allow the Director of the Division of Water Quality discretion on length of comment period for public notice of ground water permits.
Summary of the rule or change:
In Subsection R317-6-6(6.5), insert "at least" before 30 days and "but no more than 60 days" in order to establish a minimum and maximum comment period and allow flexibility under certain situations.
State statutory or constitutional authorization for this rule:
- Title 19, Chapter 5
Anticipated cost or savings to:
the state budget:
There is no cost or savings to the state budget since the amendment does not require additional action by the state or agency. Advertising cost for the public notice is not dependent on the length of time for the comment period.
This change does not apply to local government, but only to the length of time allowed for comments to be submitted to the Division of Water Quality for ground water permits.
Some small businesses who may be seeking a permit may be affected, but costs are difficult to determine and depend on the project. Additional costs would be associated with delaying a project or construction. However, affected persons build public comment into their process and construction time frames.
persons other than small businesses, businesses, or local governmental entities:
Some persons other than small businesses, businesses, or local government entities, who may be seeking a permit, may be affected, but costs are difficult to determine and depend on the project. Additional costs would be associated with delaying a project or construction. However, affected persons build public comment into their process and construction time frames.
Compliance costs for affected persons:
Compliance costs are difficult to determine and depend on the project. Additional costs would be associated with delaying a project or construction. However, affected persons build public comment into their process and construction time frames.
Comments by the department head on the fiscal impact the rule may have on businesses:
As businesses begin the permit application process, they know that there is a time allotment needed for review, comment, and action on the application. The change in this rule is to help the department, the public, and the business have adequate time to review the proposed permit, comment on it, and take appropriate action. The proposed change will help to prevent the permit from possibly going into a legal appeal process which might cost much more than having the extra time to review, comment, and evaluate prior to taking action at the division level.
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:
- Judy Etherington at the above address, by phone at 801-536-4344, by FAX at 801-536-4301, or by Internet E-mail at email@example.com
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:
This rule may become effective on:
Walter Baker, Director
R317. Environmental Quality, Water Quality.
R317-6. Ground Water Quality Protection.
6.1 DUTY TO APPLY FOR A GROUND WATER DISCHARGE PERMIT
A. No person may construct, install, or operate any new facility or modify an existing or new facility, not permitted by rule under R317-6-6.2, which discharges or would probably result in a discharge of pollutants that may move directly or indirectly into ground water, including, but not limited to land application of wastes; waste storage pits; waste storage piles; landfills and dumps; large feedlots; mining, milling and metallurgical operations, including heap leach facilities; and pits, ponds, and lagoons whether lined or not, without a ground water discharge permit from the Director. A ground water discharge permit application should be submitted at least 180 days before the permit is needed.
B. All persons who constructed, modified, installed, or operated any existing facility, not permitted by rule under R317-6-6.2, which discharges or would probably result in a discharge of pollutants that may move directly or indirectly into ground water, including, but not limited to: land application of wastes; waste storage pits; waste storage piles; landfills and dumps; large feedlots; mining, milling and metallurgical operations, including heap leach facilities; and pits, ponds, and lagoons whether lined or not, must have submitted a notification of the nature and location of the discharge to the division before February 10, 1990 and must submit an application for a ground water discharge permit within one year after receipt of written notice from the division that a ground water discharge permit is required.
C. No person may construct, install, or operate any new liquid waste storage facility or modify an existing or new liquid waste storage facility for a large animal feeding operation not permitted by rule under R317-6-6.2A.17, which discharges or would probably result in a discharge of pollutants that may move directly or indirectly into ground water, without a ground water discharge permit from the Director. A ground water discharge permit application should be submitted at least 180 days before the permit is needed and the applicant must comply with the requirements of R317-1-2 for submitting plans and specifications and obtaining a construction permit.
6.2 GROUND WATER DISCHARGE PERMIT BY RULE
A. Except as provided in R317-6-6.2.C, the following facilities are considered to be permitted by rule and are not required to obtain a discharge permit under R317-6-6.1 or comply with R317-6-6.3 through R317-6-6.7, R317-6-6.9 through R317-6-6.11, R317-6-6.13, R317-6-6.16, R317-6-6.17 and R317-6-6.18:
1. facilities with effluent or leachate which has been demonstrated to the satisfaction of the Director to conform and will not deviate from the applicable class TDS limits, ground water quality standards, protection levels or other permit limits and which does not contain any contaminant that may present a threat to human health, the environment or its potential beneficial uses of the ground water. The Director may require samples to be analyzed for the presence of contaminants before the effluent or leachate discharges directly or indirectly into ground water. If the discharge is by seepage through natural or altered natural materials, the Director may require samples of the solution be analyzed for the presence of pollutants before or after seepage;
2. water used for watering of lawns, gardens, or shrubs or for irrigation for the revegetation of a disturbed land area except for the direct land application of wastewater;
3. application of agricultural chemicals including fertilizers, herbicides and pesticides including but not limited to, insecticides fungicides, rodenticides and fumigants when used in accordance with current scientifically based manufacturer's recommendations for the crop, soil, and climate and in accordance with state and federal statutes, regulations, rules, permits, and orders adopted to avoid ground water pollution;
4. water used for irrigated agriculture except for the direct land application of wastewater from municipal, industrial or mining facilities;
5. flood control systems including detention basins, catch basins and wetland treatment facilities used for collecting or conveying storm water runoff;
6. natural ground water seeping or flowing into conventional mine workings which re-enters the ground by natural gravity flow prior to pumping or transporting out of the mine and without being used in any mining or metallurgical process;
7. leachate which results entirely from the direct natural infiltration of precipitation through undisturbed materials;
8. wells and facilities regulated under the underground injection control (UIC) program;
9. land application of livestock wastes, within expected crop nitrogen uptake;
10. individual subsurface wastewater disposal systems approved by local health departments or large subsurface wastewater disposal systems approved by the Director;
11. produced water pits, and other oil field waste treatment, storage, and disposal facilities regulated by the Division of Oil, Gas, and Mining in accordance with Section 40-6-5(3)(d) and R649-9, Disposal of Produced Water;
12. reserve pits regulated by the Division of Oil, Gas and Mining in accordance with Section 40-6-5(3)(a) and R649-3-7, Drilling and Operating Practices;
13. storage tanks installed or operated under rules adopted by the Utah Solid and Hazardous Waste Control Board;
14. coal mining operations or facilities regulated under the Coal Mining and Reclamation Act by the Utah Division of Oil, Gas, and Mining (DOGM). The submission of an application for ground water discharge permit under R317-6-6.2.C may be required only if the Director, after consideration of recommendations, if any, by DOGM, determines that the discharge violates applicable ground water quality standards, applicable Class TDS limits, or is interfering with a reasonable foreseeable beneficial use of the ground water. DOGM is not required to establish any administrative or regulatory requirements which are in addition to the rules of DOGM for coal mining operations or facilities to implement these ground water rules;
15. hazardous waste or solid waste management units managed or undergoing corrective action under R315-1 through R315-14;
16. solid waste landfills permitted under the requirements of R315-303;
17. animal feeding operations, as defined in UAC R317-8-3.5(2) that use liquid waste handling systems, which are not located within Zone 1 (100 feet) for wells in a confined aquifer or Zone 2 (250 day time of travel) for wells and springs in unconfined aquifers, in accordance with the Public Drinking Water Regulations UAC R309-600, and which meet either of the following criteria:
a) operations constructed prior to the effective date of this rule which incorporated liquid waste handling systems and which are either less than 4 million gallons capacity or serve fewer than 1000 animal units, or
b. operations with fewer than the following numbers of confined animals:
i. 1,500 slaughter and feeder cattle,
ii. 1,050 mature dairy cattle, whether milked or dry cows,
iii. 3,750 swine each weighing over 25 kilograms (approximately 55 pounds),
iv. 18,750 swine each weighing 25 kilograms or less (approximately 55 pounds),
v. 750 horses,
vi. 15,000 sheep or lambs,
vii. 82,500 turkeys,
viii. 150,000 laying hens or broilers that use continuous overflow watering but dry handle wastes,
ix. 45,000 hens or broilers,
x. 7,500 ducks, or
xi. 1,500 animal units
18. animal feeding operations, as defined in UAC R317-8-3.5(2), which do not utilize liquid waste handling systems;
19. mining, processing or milling facilities handling less than 10 tons per day of metallic and/or nonmetallic ore and waste rock, not to exceed 2500 tons/year in aggregate unless the processing or milling uses chemical leaching;
20. pipelines and above-ground storage tanks;
21. drilling operations for metallic minerals, nonmetallic minerals, water, hydrocarbons, or geothermal energy sources when done in conformance with applicable rules of the Utah Division of Oil, Gas, and Mining or the Utah Division of Water Rights;
22. land application of municipal sewage sludge for beneficial use, at or below the agronomic rate and in compliance with the requirements of 40 CFR 503, July 1, 2000 edition;
23. land application of municipal sewage sludge for mine-reclamation at a rate higher than the agronomic rate and in compliance with 40 CFR 503, July 1, 2000 edition;
24. municipal wastewater treatment lagoons receiving no wastewater from a significant industrial discharger as defined in R317-8-8.2(12); and
25. facilities and modifications thereto which the Director determines after a review of the application will have a de minimis actual or potential effect on ground water quality.
B. No facility permitted by rule under R317-6-6.2.A may cause ground water to exceed ground water quality standards or the applicable class TDS limits in R317-6-3.1 to R317-6-3.7. If the background concentration for affected ground water exceeds the ground water quality standard, the facility may not cause an increase over background. This section, R317-6-6.2B. does not apply to facilities undergoing corrective action under R317-6-6.15A.3.
C. The submission of an application for a ground water discharge permit may be required by the Director for any discharge permitted by rule under R317-6-6.2 if it is determined that the discharge may be causing or is likely to cause increases above the ground water quality standards or applicable class TDS limits under R317-6-3 or otherwise is interfering or may interfere with probable future beneficial use of the ground water.
6.3 APPLICATION REQUIREMENTS FOR A GROUND WATER DISCHARGE PERMIT
Unless otherwise determined by the Director, the application for a permit to discharge wastes or pollutants to ground water shall include the following complete information:
A. The name and address of the applicant and the name and address of the owner of the facility if different than the applicant. A corporate application must be signed by an officer of the corporation. The name and address of the contact, if different than above, and telephone numbers for all listed names shall be included.
B. The legal location of the facility by county, quarter-quarter section, township, and range.
C. The name of the facility and the type of facility, including the expected facility life.
D. A plat map showing all water wells, including the status and use of each well, Drinking Water source protection zones, topography, springs, water bodies, drainages, and man-made structures within a one-mile radius of the discharge. The plat map must also show the location and depth of existing or proposed wells to be used for monitoring ground water quality. Identify any applicable Drinking Water source protection ordinances and their impacts on the proposed permit.
E. Geologic, hydrologic, and agricultural description of the geographic area within a one-mile radius of the point of discharge, including soil types, aquifers, ground water flow direction, ground water quality, aquifer material, and well logs.
F. The type, source, and chemical, physical, radiological, and toxic characteristics of the effluent or leachate to be discharged; the average and maximum daily amount of effluent or leachate discharged (gpd), the discharge rate (gpm), and the expected concentrations of any pollutant (mg/l) in each discharge or combination of discharges. If more than one discharge point is used, information for each point must be given separately.
G. Information which shows that the discharge can be controlled and will not migrate into or adversely affect the quality of any other waters of the state, including the applicable surface water quality standards, that the discharge is compatible with the receiving ground water, and that the discharge will comply with the applicable class TDS limits, ground water quality standards, class protection levels or an alternate concentration limit proposed by the facility.
H. For areas where the ground water has not been classified by the Board, information on the quality of the receiving ground water sufficient to determine the applicable protection levels.
I. A proposed sampling and analysis monitoring plan which conforms to EPA Guidance for Quality Assurance Project Plans, EPA QA/G-5 (EPA/600/R-98/018, February 1998) and includes a description, where appropriate, of the following:
1. ground water monitoring to determine ground water flow direction and gradient, background quality at the site, and the quality of ground water at the compliance monitoring point;
2. installation, use and maintenance of monitoring devices;
3. description of the compliance monitoring area defined by the compliance monitoring points including the dimensions and hydrologic and geologic data used to determine the dimensions;
4. monitoring of the vadose zone;
5. measures to prevent ground water contamination after the cessation of operation, including post-operational monitoring;
6. monitoring well construction and ground water sampling which conform where applicable to the Handbook of Suggested Practices for Design and Installation of Ground-Water Monitoring Wells (EPA/600/4-89/034, March 1991), ASTM Standards on Ground Water and Vadose Investigations (1996), Practical Guide for Ground Water Sampling EPA/600/2-85/104, (November 1985) and RCRA Ground Water Monitoring Technical Enforcement Guidance Document (1986), unless otherwise specified by the Director;
7. description and justification of parameters to be monitored;
8. quality assurance and control provisions for monitoring data.
J. The plans and specifications relating to construction, modification, and operation of discharge systems.
K. The description of the ground water most likely to be affected by the discharge, including water quality information of the receiving ground water prior to discharge, a description of the aquifer in which the ground water occurs, the depth to the ground water, the saturated thickness, flow direction, porosity, hydraulic conductivity, and flow systems characteristics.
L. The compliance sampling plan which in addition to the information specified in the above item I includes, where appropriate, provisions for sampling of effluent and for flow monitoring in order to determine the volume and chemistry of the discharge onto or below the surface of the ground and a plan for sampling compliance monitoring points and appropriate nearby water wells. Sampling and analytical methods proposed in the application must conform with the most appropriate methods specified in the following references unless otherwise specified by the Director:
1. Standard Methods for the Examination of Water and Wastewater, twentieth edition, 1998; Library of Congress catalogue number: ISBN: 0-87553-235-7.
2. E.P.A. Methods, Methods for Chemical Analysis of Water and Wastes, 1983; Stock Number EPA-600/4-79-020.
3. Techniques of Water Resource Investigations of the U.S. Geological Survey, (1998); Book 9.
4. Monitoring requirements in 40 CFR parts 141 and 142, 2000 ed., Primary Drinking Water Regulations and 40 CFR parts 264 and 270, 2000 ed.
5. National Handbook of Recommended Methods for Water-Data Acquisition, GSA-GS edition; Book 85 AD-2777, U.S. Government Printing Office Stock Number 024-001-03489-1.
M. A description of the flooding potential of the discharge site, including the 100-year flood plain, and any applicable flood protection measures.
N. Contingency plan for regaining and maintaining compliance with the permit limits and for reestablishing best available technology as defined in the permit.
O. Methods and procedures for inspections of the facility operations and for detecting failure of the system.
P. For any existing facility, a corrective action plan or identification of other response measures to be taken to remedy any violation of applicable ground water quality standards, class TDS limits or permit limit established under R317-6-6.4E. which has resulted from discharges occurring prior to issuance of a ground water discharge permit.
Q. Other information required by the Director.
R. All applications for a groundwater discharge permit must be performed under the direction, and bear the seal, of a professional engineer or professional geologist.
S. A closure and post closure management plan demonstrating measures to prevent ground water contamination during the closure and post closure phases of an operation.
6.4 ISSUANCE OF DISCHARGE PERMIT
A. The Director may issue a ground water discharge permit for a new facility if the Director determines, after reviewing the information provided under R317-6-6.3, that:
1. the applicant demonstrates that the applicable class TDS limits, ground water quality standards protection levels, and permit limits established under R317-6-6.4E will be met;
2. the monitoring plan, sampling and reporting requirements are adequate to determine compliance with applicable requirements;
3. the applicant is using best available technology to minimize the discharge of any pollutant; and
4. there is no impairment of present and future beneficial uses of the ground water.
B. The Director may approve an alternate concentration limit for a new facility if:
1. The applicant submits a petition for an alternate concentration limit showing the extent to which the discharge will exceed the applicable class TDS limits, ground water standards or applicable protection levels and demonstrates that:
a. the facility is to be located in an area of Class III ground water;
b. the discharge plan incorporates the use of best available technology;
c. the alternate concentration limit is justified based on substantial overriding social and economic benefits; and,
d. the discharge would pose no threat to human health and the environment.
2. One or more public hearings have been held by the Director in nearby communities to solicit comment.
C. The Director may issue a ground water discharge permit for an existing facility provided:
1. the applicant demonstrates that the applicable class TDS limits, ground water quality standards and protection levels will be met;
2. the monitoring plan, sampling and reporting requirements are adequate to determine compliance with applicable requirements;
3. the applicant utilizes treatment and discharge minimization technology commensurate with plant process design capability and similar or equivalent to that utilized by facilities that produce similar products or services with similar production process technology; and,
4. there is no current or anticipated impairment of present and future beneficial uses of the ground water.
D. The Director may approve an alternate concentration limit for a pollutant in ground water at an existing facility or facility permitted by rule under R317-6-6.2 if the applicant for a ground water discharge permit shows the extent the discharge exceeds the applicable class TDS limits, ground water quality standards and applicable protection levels that correspond to the otherwise applicable ground water quality standards and demonstrates that:
1. steps are being taken to correct the source of contamination, including a program and timetable for completion;
2. the pollution poses no threat to human health and the environment; and
3. the alternate concentration limit is justified based on overriding social and economic benefits.
E. An alternate concentration limit, once adopted by the Director under R317-6-6.4B or R317-6-6.4D, shall be the pertinent permit limit.
F. A facility permitted under this provision shall meet applicable class TDS limits, ground water quality standards, protection levels and permit limits.
G. The Director may modify a permit for a new facility to reflect standards adopted as part of corrective action.
6.5 NOTICE OF INTENT TO ISSUE A GROUND WATER DISCHARGE PERMIT
The Director shall publish a notice of
intent to approve in a newspaper in the affected area and shall
in which interested persons
may comment to the Director. Final action will be taken by the
Director following the[
30-day] comment period.
6.6 PERMIT TERM
A. The ground water discharge permit term will run for 5 years from the date of issuance. Permits may be renewed for 5-year periods or extended for a period to be determined by the Director but not to exceed 5 years.
B. In the event that new ground water quality standards are adopted by the Board, permits may be reopened to extend the terms of the permit or to include pollutants covered by new standards. The holder of a permit may apply for a variance under the conditions outlined in R317-6-6.4.D.
6.7 GROUND WATER DISCHARGE PERMIT RENEWAL
The permittee for a facility with a ground water discharge permit must apply for a renewal or extension for a ground water discharge permit at least 180 days prior to the expiration of the existing permit. If a permit expires before an application for renewal or extension is acted upon by the Director, the permit will continue in effect until it is renewed, extended or denied. Permit renewals with significant changes to the original permit must be performed under the direction, and bear the seal, of a professional engineer or professional geologist.
6.8 TERMINATION OF A GROUND WATER DISCHARGE PERMIT BY THE DIRECTOR
A ground water discharge permit may be terminated or a renewal denied by the Director if one of the following applies:
A. noncompliance by the permittee with any condition of the permit where the permittee has failed to take appropriate action in a timely manner to remedy the permit violation;
B. the permittee's failure in the application or during the permit approval process to disclose fully all significant relevant facts at any time;
C. a determination that the permitted facility endangers human health or the environment and can only be regulated to acceptable levels by plan modification or termination; or
D. the permittee requests termination of the permit.
6.9 PERMIT COMPLIANCE MONITORING
A. Ground Water Monitoring
The Director may include in a ground water discharge permit requirements for ground water monitoring, and may specify compliance monitoring points where the applicable class TDS limits, ground water quality standards, protection levels or other permit limits are to be met.
The Director will determine the location of the compliance monitoring point based upon the hydrology, type of pollutants, and other factors that may affect the ground water quality. The distance to the compliance monitoring points must be as close as practicable to the point of discharge. The compliance monitoring point shall not be beyond the property boundaries of the permitted facility without written agreement of the affected property owners and approval by the Director.
B. Performance Monitoring
The Director may include in a ground water discharge permit requirements for monitoring performance of best available technology standards.
6.10 BACKGROUND WATER QUALITY DETERMINATION
A. Background water quality contaminant concentrations shall be determined and specified in the ground water discharge permit. The determination of background concentration shall take into account any degradation.
B. Background water quality contaminant concentrations may be determined from existing information or from data collected by the permit applicant. Existing information shall be used, if the permit applicant demonstrates that the quality of the information and its means of collection are adequate to determine background water quality. If existing information is not adequate to determine background water quality, the permit applicant shall submit a plan to determine background water quality to the Director for approval prior to data collection. One or more up-gradient, lateral hydraulically equivalent point, or other monitoring wells as approved by the Director may be required for each potential discharge site.
C. After a permit has been issued, permittee shall continue to monitor background water quality contaminant concentrations in order to determine natural fluctuations in concentrations. Applicable up-gradient, and on-site ground water monitoring data shall be included in the ground water quality permit monitoring report.
6.11 NOTICE OF COMMENCEMENT AND DISCONTINUANCE OF GROUND WATER DISCHARGE OPERATIONS
A. The permittee shall notify the Division of Water Quality immediately upon commencement of the ground water discharge and submit a written notice within 30 days of the commencement of the discharge.
B. The permittee shall notify the Division of Water Quality of the date and reason for discontinuance of ground water discharge within 30 days.
6.12 SUBMISSION OF DATA
A. Laboratory Analyses
All laboratory analysis of samples collected to determine compliance with these rules shall be performed in accordance with standard procedures by the Utah Division of Laboratory Services or by a laboratory certified by the Utah Department of Health.
B. Field Analyses
All field analyses to determine compliance with these rules shall be conducted in accordance with standard procedures specified in R317-6-6.3.L.
C. Periodic Submission of Monitoring Reports
Results obtained pursuant to any monitoring requirements in the discharge permit and the methods used to obtain these results shall be periodically reported to the Director according to the schedule specified in the ground water discharge permit.
6.13 REPORTING OF MECHANICAL PROBLEMS OR DISCHARGE SYSTEM FAILURES
The permittee shall notify the Director within 24 hours of the discovery of any mechanical or discharge system failures that could affect the chemical characteristics or volume of the discharge. A written statement confirming the oral report shall be submitted to the Director within five days of the failure.
6.14 CORRECTION OF ADVERSE EFFECTS REQUIRED
A. If monitoring or testing indicates that the permit conditions may be or are being violated by ground water discharge operations or the facility is otherwise in an out-of-compliance status, the permittee shall promptly make corrections to the system to correct all violations of the discharge permit.
B. The permittee, operator, or owner may be required to take corrective action as described in R317-6-6.15 if a pollutant concentration has exceeded a permit limit.
6.15 CORRECTIVE ACTION
It is the intent of the Board that the provisions of these rules should be considered when making decisions under any state or federal superfund action; however, the protection levels are not intended to be considered as applicable, relevant or appropriate clean-up standards under such other regulatory programs.
A. Application of R317-6-6.15
1. Generally - R317-6-6.15 shall apply to any person who discharges pollutants into ground water in violation of Section 19-5-107, or who places or causes to be placed any wastes in a location where there is probable cause to believe they will cause pollution of ground water in violation of Section 19-5-107.
2. Corrective Action shall include, except as otherwise provided in R317-6-6.15, preparation of a Contamination Investigation and preparation and implementation of a Corrective Action Plan.
3. The procedural provisions of R-317-6-6.15 shall not apply to any facility where a corrective or remedial action for ground water contamination, that the Director determines meets the substantive standards of this rule, has been initiated under any other state or federal program. Corrective or remedial action undertaken under the programs specified in Table 2 are considered to meet the substantive standards of this rule unless otherwise determined by the Director.
Leaking Underground Storage Tank, Sections 19-6-401, et seq. Federal Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Sections 9601, et seq. Hazardous Waste Mitigation Act, Sections 19-6-301 et seq. Utah Solid and Hazardous Waste Act, Sections 19-6-101 et seq.
B. Notification and Interim Action
1. Notification - A person who spills or discharges any petroleum hydrocarbon or other substance which may cause pollution of ground waters in violation of Section 19-5-107 shall notify the Director within 24 hours of the spill or discharge. A written notification shall be submitted to the Director within five days after the spill or discharge.
2. Interim Actions - A person is encouraged to take immediate, interim action without following the steps outlined in R317-6-6.15 if such action is required to control a source of pollutants. Interim action is also encouraged if required to protect public safety, public health and welfare and the environment, or to prevent further contamination that would result in costlier clean-up. Such interim actions should include source abatement and control, neutralization, or other actions as appropriate. A person that has taken these actions shall remain subject to R317-6-6.15 after the interim actions are completed unless he demonstrates that:
a. no pollutants have been discharged into ground water in violation of 19-5-107; and
b. no wastes remain in a location where there is probable cause to believe they will cause pollution of ground water in violation of 19-5-107, unless, in the case of diesel fuel and oil releases over 25 gallons, the responsible person demonstrates that the pollutant will not affect ground water quality by complying with the following:
(1) remove contaminated soil to the extent possible, or to established background levels, or 500 mg/kg total petroleum hydrocarbons for sensitive areas, or 5000 mg/kg total petroleum hydrocarbons for non sensitive areas as defined by R317-6-1;
(2) collect soil samples at locations and depths sufficient to document that cleanup has been achieved or as directed by the local health department;
(3) treat or dispose contaminated soil at a location approved by the local health department;
(4) submit an interim action report as defined by R317-6-1.23 or as directed by the local health department.
C. Contamination Investigation and Corrective Action Plan - General
1. The Director may require a person that is subject to R317-6-6.15 to submit for the Director's approval a Contamination Investigation and Corrective Action Plan, and may require implementation of an approved Corrective Action Plan. A person subject to this rule who has been notified that the Director is exercising his or her authority under R317-6-6.15 to require submission of a Contamination Investigation and Corrective Action Plan, shall, within 30 days of that notification, submit to the Director a proposed schedule for those submissions, which may include different deadlines for different elements of the Investigation and Plan. The Director may accept, reject, or modify the proposed schedule.
2. The Contamination Investigation or the Corrective Action Plan may, in order to meet the requirements of this Part, incorporate by reference information already provided to the Director in the Contingency Plan or other document.
3. The requirements for a Contamination Investigation and a Corrective Action Plan specified in R317-6-6.15.D are comprehensive. The requirements are intended to be applied with flexibility, and persons subject to this rule are encouraged to contact the Director's staff to assure its efficient application on a site-specific basis.
4. The Director may waive any or all Contamination Investigation and Corrective Action Plan requirements where the person subject to this rule demonstrates that the information that would otherwise be required is not necessary to the Director's evaluation of the Contamination Investigation or Corrective Action Plan. Requests for waiver shall be submitted to the Director as part of the Contamination Investigation or Corrective Action Plan, or may be submitted in advance of those reports.
D. Contamination Investigation and Corrective Action Plan - Requirements
1. Contamination Investigation - The contamination investigation shall include a characterization of pollution, a characterization of the facility, a data report, and, if the Corrective Action Plan proposes standards under R317-6-6.15.F.2. or Alternate Corrective Action Concentration Limits higher than the ground water quality standards, an endangerment assessment.
a. The characterization of pollution shall include a description of:
(1) The amount, form, concentration, toxicity, environmental fate and transport, and other significant characteristics of substances present, for both ground water contaminants and any contributing surficial contaminants;
(2) The areal and vertical extent of the contaminant concentration, distribution and chemical make-up; and
(3) The extent to which contaminant substances have migrated and are expected to migrate.
b. The characterization of the facility shall include descriptions of:
(1) Contaminant substance mixtures present and media of occurrence;
(2) Hydrogeologic conditions underlying and, upgradient and downgradient of the facility;
(3) Surface waters in the area;
(4) Climatologic and meteorologic conditions in the area of the facility; and
(5) Type, location and description of possible sources of the pollution at the facility;
(6) Groundwater withdrawals, pumpage rates, and usage within a 2-mile radius.
c. The report of data used and data gaps shall include:
(1) Data packages including quality assurance and quality control reports;
(2) A description of the data used in the report; and
(3) A description of any data gaps encountered, how those gaps affect the analysis and any plans to fill those gaps.
d. The endangerment assessment shall include descriptions of any risk evaluation necessary to support a proposal for a standard under R317-6-6.15.F.2 or for an Alternate Corrective Action Concentration Limit.
e. The Contamination Investigation shall include such other information as the Director requires.
2. Proposed Corrective Action Plan
The proposed Corrective Action Plan shall include an explanation of the construction and operation of the proposed Corrective Action, addressing the factors to be considered by the Director as specified in R317-6-6.15.E. and shall include such other information as the Director requires. It shall also include a proposed schedule for completion.
3. The Contaminant Investigation and Corrective Action Plan must be performed under the direction, and bear the seal, of a professional engineer or professional geologist.
E. Approval of the Corrective Action Plan
After public notice in a newspaper in the affected area and a 30-day period for opportunity for public review and comment, the Director shall issue an order approving, disapproving, or modifying the proposed Corrective Action Plan. The Director shall consider the following factors and criteria in making that decision:
1. Completeness and Accuracy of Corrective Action Plan.
The Director shall consider the completeness and accuracy of the Corrective Action Plan and of the information upon which it relies.
2. Action Protective of Public Health and the Environment
a. The Corrective Action shall be protective of the public health and the environment.
b. Impacts as a result of any off-site activities shall be considered under this criterion (e.g., the transport and disposition of contaminated materials at an off-site facility).
3. Action Meets Concentration Limits
The Corrective Action shall meet Corrective Action Concentration Limits specified in R317-6-6.15.F, except as provided in R317-6-6.15.G.
4. Action Produces a Permanent Effect
a. The Corrective Action shall produce a permanent effect.
b. If the Corrective Action Plan provides that any potential sources of pollutants are to be controlled in place, any cap or other method of source control shall be designed so that the discharge from the source following corrective action achieves ground water quality standards or, if approved by the Director, alternate corrective action concentration limits (ACACLs). For purposes of this paragraph, sources of pollutants are controlled "in place" even though they are moved within the facility boundaries provided that they are not moved to areas with unaffected ground water.
5. Action May Use Other Additional Measures
The Director may consider whether additional measures should be included in the Plan to better assure that the criteria and factors specified in R317-6-6.15.E are met. Such measures may include:
a. Requiring long-term ground water or other monitoring;
b. Providing environmental hazard notices or other security measures;
c. Capping of sources of ground water contamination to avoid infiltration of precipitation;
d. Requiring long-term operation and maintenance of all portions of the Corrective Action; and
e. Periodic review to determine whether the Corrective Action is protective of public health and the environment.
F. Corrective Action Concentration Limits
1. Contaminants with specified levels
Corrective Actions shall achieve ground water quality standards or, where applicable, alternate corrective action concentration limits (ACACLs).
2. Contaminants without specified levels
For contaminants for which no ground water quality standard has been established, the proposed Corrective Action Plan shall include proposed Corrective Action Concentration Limits. These levels shall be approved, disapproved or modified by the Director after considering U.S. Environmental Protection Agency maximum contaminant level goals, health advisories, risk-based contaminant levels or standards established by other regulatory agencies and other relevant information.
G. Alternate Corrective Action Concentration Limits
An Alternate Corrective Action Concentration Limit that is higher or lower than the Corrective Action Concentration Limits specified in R317-6-6.15.F may be required as provided in the following:
1. Higher Alternate Corrective Action Concentration Limits
A person submitting a proposed Corrective Action Plan may request approval by the Director of an Alternate Corrective Action Concentration Limit higher than the Corrective Action Concentration Limit specified in R317-6-6.15.F. The proposed limit shall be protective of human health, and the environment, and shall utilize best available technology. The Corrective Action Plan shall include the following information in support of this request:
a. The potential for release and migration of any contaminant substances or treatment residuals that might remain after Corrective Action in concentrations higher than Corrective Action Concentration Limits;
b. An evaluation of residual risks, in terms of amounts and concentrations of contaminant substances remaining following implementation of the Corrective Action options evaluated, including consideration of the persistence, toxicity, mobility, and propensity to bioaccumulate such contaminants substances and their constituents; and
c. Any other information necessary to determine whether the conditions of R317-6-6.15.G have been met.
2. Lower Alternate Corrective Action Concentration Limits
The Director may require use of an Alternate Corrective Action Concentration Limit that is lower than the Corrective Action Concentration Limit specified in R317-6-6.15.F if necessary to protect human health or the environment. Any person requesting that the Director consider requiring a lower Alternate Corrective Action Concentration Limit shall provide supporting information as described in R317-6-6.15.G.3.
3. Protective of human health and the environment
The Alternate Corrective Action Concentration Limit must be protective of human health and the environment. In making this determination, the Director may consider:
a. Information presented in the Contamination Investigation;
b. Other relevant cleanup or health standards, criteria, or guidance;
c. Relevant and reasonably available scientific information;
d. Any additional information relevant to the protectiveness of a Corrective Action; and
e. The impact of additional proposed measures, such as those described in R317-6-6.15.E.5.
4. Good cause
An Alternate Corrective Action Concentration Limit shall not be granted without good cause.
a. The Director may consider the factors specified in R317-6-6.15.E in determining whether there is good cause.
b. The Director may also consider whether the proposed remedy is cost-effective in determining whether there is good cause. Costs that may be considered include but are not limited to:
(1) Capital costs;
(2) Operation and maintenance costs;
(3) Costs of periodic reviews, where required;
(4) Net present value of capital and operation and maintenance costs;
(5) Potential future remedial action costs; and
(6) Loss of resource value.
An Alternate Corrective Action Concentration Limit that is higher than the Corrective Action Concentration Limits specified in R317-6-6.15.F must be conservative. The Director may consider the concentration level that can be achieved using best available technology if attainment of the Corrective Action Concentration Limit is not technologically achievable.
6. Relation to background and existing conditions
a. The Director may consider the relationship between the Corrective Action Concentration Limits and background concentration limits in considering whether an Alternate Corrective Action Concentration Limit is appropriate.
b. No Alternate Corrective Action Concentration Limit higher than existing ground water contamination levels or ground water contamination levels projected to result from existing conditions will be granted.
6.16 OUT-OF-COMPLIANCE STATUS
A. Accelerated Monitoring for Probable Out-of-Compliance Status
If the value of a single analysis of any compliance parameter in any compliance monitoring sample exceeds an applicable permit limit, the facility shall:
1. Notify the Director in writing within 30 days of receipt of data;
2. Immediately initiate monthly sampling if the value exceeds both the background concentration of the pollutant by two standard deviations and an applicable permit limit, unless the Director determines that other periodic sampling is appropriate, for a period of two months or until the compliance status of the facility can be determined.
B. Violation of Permit Limits
Out-of-compliance status exists when:
1. The value for two consecutive samples from a compliance monitoring point exceeds:
a. one or more permit limits; and
b. the background concentration for that pollutant by two standard deviations (the standard deviation and background (mean) being calculated using values for the ground water pollutant at that compliance monitoring point) unless the existing permit limit was derived from the background pollutant concentration plus two standard deviations; or
2. the concentration value of any pollutant in two or more consecutive samples is statistically significantly higher than the applicable permit limit. The statistical significance shall be determined using the statistical methods described in Statistical Methods for Evaluating Ground Water Monitoring Data from Hazardous Waste Facilities, Vol. 53, No. 196 of the Federal Register, Oct. 11, 1988 and supplemental guidance in Guidance For Data Quality Assessment (EPA/600/R-96/084 January 1998).
C. Failure to Maintain Best Available Technology Required by Permit
1. Permittee to Provide Information
In the event that the permittee fails to maintain best available technology or otherwise fails to meet best available technology standards as required by the permit, the permittee shall submit to the Director a notification and description of the failure according to R317-6-6.13. Notification shall be given orally within 24 hours of the permittee's discovery of the failure of best available technology, and shall be followed up by written notification, including the information necessary to make a determination under R317-6-6.16.C.2, within five days of the permittee's discovery of the failure of best available technology.
The Director shall use the information provided under R317-6-6.16.C.1 and any additional information provided by the permittee to determine whether to initiate a compliance action against the permittee for violation of permit conditions. The Director shall not initiate a compliance action if the Director determines that the permittee has met the standards for an affirmative defense, as specified in R317-6-6.16.C.3.
3. Affirmative Defense
In the event a compliance action is initiated against the permittee for violation of permit conditions relating to best available technology, the permittee may affirmatively defend against that action by demonstrating the following:
a. The permittee submitted notification according to R317-6-6.13;
b. The failure was not intentional or caused by the permittee's negligence, either in action or in failure to act;
c. The permittee has taken adequate measures to meet permit conditions in a timely manner or has submitted to the Director, for the Director's approval, an adequate plan and schedule for meeting permit conditions; and
d. The provisions of 19-5-107 have not been violated.
6.17 PROCEDURE WHEN A FACILITY IS OUT-OF-COMPLIANCE
A. If a facility is out of compliance the following is required:
1. The permittee shall notify the Director of the out of compliance status within 24 hours after detection of that status, followed by a written notice within 5 days of the detection.
2. The permittee shall initiate monthly sampling, unless the Director determines that other periodic sampling is appropriate, until the facility is brought into compliance.
3. The permittee shall prepare and submit within 30 days to the Director a plan and time schedule for assessment of the source, extent and potential dispersion of the contamination, and an evaluation of potential remedial action to restore and maintain ground water quality and insure that permit limits will not be exceeded at the compliance monitoring point and best available technology will be reestablished.
4. The Director may require immediate implementation of the contingency plan submitted with the original ground water discharge permit in order to regain and maintain compliance with the permit limit standards at the compliance monitoring point or to reestablish best available technology as defined in the permit.
5. Where it is infeasible to re-establish BAT as defined in the permit, the permittee may propose an alternative BAT for approval by the Director.
6.18 GROUND WATER DISCHARGE PERMIT TRANSFER
A. The permittee shall give written notice to the Director of any transfer of the ground water discharge permit, within 30 days of the transfer.
B. The notice shall include a written agreement between the existing and new permittee establishing a specific date for transfer of permit responsibility, coverage and liability.
These rules are subject to enforcement under Section 19-5-115 of the Utah Water Quality Act.
KEY: water quality, ground water, cleanup standards, petroleum hydrocarbons
Date of Enactment or Last Substantive Amendment: [
January 23, 2007]
Notice of Continuation: July 26, 2012
Authorizing, and Implemented or Interpreted Law: 19-5
The Portable Document Format (PDF) version of the Bulletin is the official version. The PDF version of this issue is available at https://rules.utah.gov/publicat/bull-pdf/2013/b20130915.pdf. The HTML edition of the Bulletin is a convenience copy. Any discrepancy between the PDF version and HTML version is resolved in favor of the PDF version.
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For questions regarding the content or application of this rule, please contact Judy Etherington at the above address, by phone at 801-536-4344, by FAX at 801-536-4301, or by Internet E-mail at firstname.lastname@example.org.