Negotiating a Good Permit

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Negotiating a Good Permit

• (Or, all permits are not created equal)
• Katie Fendel, P.E.
• Leonard Rice Engineers, Inc.
• 303-455-9589

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Basic Componentsof an NPDES Permit

• Terms and Conditions
• Monitoring Requirements
• Additional Monitoring Requirements
• Reporting
• Management Requirements/Responsibilities
• Additional Conditions
• Part III (Appendices)

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Terms Conditions

• Service Area
• Design Capacity
• Expansion Requirements
• Facilities Operation
• Effluent Limitations
• Percentage Removal Requirements
• Compliance Schedules
• Industrial Waste Management
• Biosolids Limitations Management Reqmts.

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Regulatory Requirements in Permits

• Bypass provisions
• Upset provisions
• Need to halt not a defense
• Sludge disposal requirements
• 307 toxic effluent standards
• Compliance schedule (if applies)
• Duty to reapply
• Extension if timely reapply
• Information requests
• BMP requirements
• Signatory requirements
• Requirement to keep records 3 yrs
• Other conditions Division requires
• 5 year maximum duration (10 years if not subject
  to federal requirements)
• Permit modification, suspension, revocation,
  reissuance, termination
• Stormwater, as applicable

• Owner/operator contact info
• Location, quantity, quality of discharge
• Effluent limitations, standards, conditions
• Monitoring, record-keeping, reporting
  requirements
• Notification requirements
• Compliance schedule if applicable
• Submission of pertinent plans specs in
  accordance w/ CS
• Emergency powers
• Inspection entry
• Transfer of permits
• Planned alterations/additions
• Duty to properly operate maintain at all
  times/take steps to minimize violations
• Domestic WWTP requirements (80/95, pretreatment,
  flow measuring, contracts)

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How Effluent Limits Are Calculated

• Technology-Based Limits
• Reg. No. 62, Regulations for Effluent Limitations
• Water Quality-Based Limits (WQBELs)
• Mass balance equation
• February 2003 Determination of the Requirement
  to Include Water Quality Standards-Based Limits
  in CDPS Permits Based on Reasonable Potential
• Antidegradation-Based Limits (ADBELs)
• Reg. 31, Basic Standards and Methodologies
  (Section 31.8)
• Antidegradation Significance Determination for
  New or Increased Water Quality Impacts Procedural
  Guidance, December 2001, updated April 2002

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Technology-Based Limits

• Level the playing field
• From Effluent Limitations Regulation
• BOD
• TSS
• BOD TSS Removal Percentages
• Oil Grease
• pH
• Total Residual Chlorine
• Only use if the most stringent

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Water Quality-BasedEffluent Limits

• Where needed to meet water quality standards
• Based on mass balance equation
• M2 (M3)(Q3) (M1)(Q1) / Q2
• Q1 Upstream low flow (1E3 or 30E3)
• Q2 Average daily effluent flow (design
  capacity)
• Q3 Downstream flow (Q1 Q2)
• M1 In-stream background pollutant
  concentrations at the existing quality
• M2 Calculated maximum allowable effluent
  pollutant concentration
• M3 Maximum allowable in-stream pollutant
  concentration (water quality standards)

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WQBELs

• Upstream background (M1) will vary based on
  regulatory definition of existing ambient water
  quality.
• 85th percentile for most pollutants
• 50th percentile for metals in total recoverable
  form
• Geometric mean for pathogens such as fecal
  coliform
• Mass balance equation not applicable for
  nonconservative pollutants, including ammonia
• Do use for fecal coliform/e. coli, chlorine,
  nitrate, TIN
• For ammonia, use new AMTOX model
• Calculations incorporate nearby facilities
  sources (dirty or clean)
• Data needs and how to handle if inadequate data

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Antidegradation-BasedEffluent Limits

• Why do we do this?
• 3 parts to WQS
• Beneficial uses
• Criteria to protect BUs
• Antidegradation (3 categories)
• Subject to antidegradation requirements if
• Designated outstanding waters or
• Undesignated
• Dont need to do antidegradation review if
• Designated use-protected
• If undesignated, antidegradation review required
  if new or increased impacts are found to occur

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Calculating ADBELs

• 1st establish baseline water quality (BWQ)
• BWQ water quality as of 09/30/2000
• At fully-mixed site downstream of discharge
• 2nd calculate Significant Concentration Threshold
  (SCT)
• SCT additional amount of pollutant that will
  not cause significant degradation
• SCT 0.15 (WQS-BWQ) BWQ
• Insignificant impacts include
• New loads that use lt 15 of remaining
  assimilative capacity (10 for bioaccumulative
  pollutants)
• When gt 1001 dilution at low flow (not applicable
  for bioaccumulative pollutants)
• Temporary impacts (not applicable for
  bioaccumulative pollutants)

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ADBELs

• 3rd, calculate ADBAC (antidegradation-based
  average concentration)
• ADBAC (SCT)(Q3) (M1)(Q1) / Q2
• This is just the mass balance equation using the
  SCT in place of the water quality standard
  (M3)allows you to use up the 15 allowable
  increment (with no significant degradation)
• ADBELs are applied as a 2-year running average
  limit

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Calculating Reasonable Potential

• Only get a limit if there is reasonable
  potential to violate
• First determine Multiplier
• Multiplier based on coefficient of variation and
  number of samples (table)
• Need minimum of 10 data points over 1 year
• Calculate Maximum Expected Pollutant
  Concentration
• (multiply highest concentration in data by the
  Multiplier)
• For acute, use daily maximum data set
• For chronic, use monthly average data set
• Compare MEPC to Maximum Allowable Pollutant
  Concentration (MAPC)
• MAPC equals WQBEL

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Monitoring or Permit Limits?

• If MEPC gt MAPC
• (or actual data value(s) gt MAPC)
• Permit limit needed
• If 50 MAPC lt MEPC lt MAPC
• Only monitoring needed (no permit limit)
• If MEPC lt 50 MAPC
• (and all data values lt 50 MAPC)
• No permit limit or monitoring needed

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So which limit do I get?

• Technology-based limit is highest limit you can
  get
• If WQBELs apply, must take WQBEL if it is lower
  than current permitted load
• When WQBEL is greater than current permitted
  load
• If antidegradation review was not required, can
  have WQBEL
• If antidegradation applies, then may have either
• ADBEL (2-year running average limit), along with
  WQBEL (as maximum limit), or
• NIL (non-impact limit), which is a limit based on
  current permitted load and proposed design flow
• (NIL current limit if no change in design
  flow)
• For those pollutants for which permit limits
  have not yet been established, an implicit load
  allocation is determined and an implicit permit
  limit is established.

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So which limit do I get?

• Can avoid ADBELs by accepting NILs (non-impact
  limits), which are limits based on current
  permitted load and proposed design flow. (If
  accept NILs, facility is not subject to
  antidegradation review there is no new or
  increased load.)
• Can also avoid ADBELs by conducting an
  alternatives analysis per Section 31.8(3)(d),
  which could result in alternative
  antidegradation-based limits
• No limit if no reasonable potential
• However, always get fecal coliform, total
  residual chlorine limits ( TIN ammonia if
  needed for WQS)
• May currently be meeting these limits, based on
  treatment processes absent limits, use of
  treatment may be discontinued
• State finds this is reasonable potential

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Limits Selection Example
Pollutant Current Permit Limit ( NIL) (ug/l) Current Permitted Load (lb/day) New WQBEL (ug/l) New WQBEL Load (lb/day) ADBEL (ug/l)
As, TR 11.0 0.39 205 7.4 39
Cu, diss 46 1.6 69 2.5 27
NH3, tot (March) 2.7 97 4.4 158 3.6
CN, free 6.0 0.22 5.0 0.18 5.0
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WET Requirements

• Colorado WQCD Biomonitoring Guidance Document,
  July 1, 1993 (revised 06/01/02, 09/27/04,
  05/01/06)
• At application, must submit acute WET test
  results if
• 1 MGD design flow
• Have/required to have approved pretreatment
  program
• Industrial majors
• Other considerations (certain effluent
  characteristics, TMDLs, facility
  history/compliance record)
• Must submit chronic WET results if
• If stream low flow effluent design flow lt 101
  and receiving stream is Class 1 aquatic life or
  Class 2 aquatic life with all appropriate aquatic
  life numeric standards

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WET Limits Acute or Chronic?

• Acute conditions apply if
• Chronic IWC 9.1 OR
• Stream segment is not classified as Class 1
  Aquatic Life or Class 2 Aquatic Life use with all
  of the appropriate aquatic life numeric standards
• (same as stream chronic low flow facility
  flow 101)
• Chronic conditions apply if
• Chronic IWC 9.1 AND
• Stream segment is classified as Class 1 Aquatic
  Life or Class 2 Aquatic Life use with all of the
  appropriate aquatic life numeric standards
• (same as stream chronic low flow facility
  flow 101)
• Chronic Instream Waste Concentration (IWC)
• Facility Flow (FF)/(Stream Chronic Low Flow
  (annual) FF) X 100

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Monitoring or WET Limits?

• No monitoring/no limit if no demonstrated WET and
  no known pollutants of significance
• Monitoring if no demonstrated WET, but are some
  pollutants of significance (or variable effluent
  quality)
• WET monitoring and limits if WET demonstrated or
  factors that show reasonable potential for WET
  
• Limits effective 3 years for existing
  facilities
• 90 days for new facilities

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Acute Conditions

• Shall be no LC50 at effluent concentrations
  100 effluent
• (if no instantaneous mixing is provided)

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Chronic Conditions

• 2 Chronic Lethality WET Limits
• Shall not be any statistically significant
  difference in toxicity between control any
  effluent concentrations IWC
• IC25 (inhibition concentration) shall be IWC
• Both look at full range of toxicity (lethality,
  growth and reproduction)
• If statistically significant difference in
  lethality (95 confidence) between the control
  and any effluent conc. IWC and if lethality
  IC25 lt the IWC, permittee required to follow
  automatic compliance schedule if the observed
  toxicity is due to organism lethality
• If toxicity due to differences in growth of the
  fathead minnows or the reproduction of the
  Ceriodaphnia, no immediate action required
• May form the basis for reopening permit and
  including additional chronic toxicity WET limits
  or other requirements

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WET Testing Relief

• After 1 year of testing during which no toxicity
  demonstrated, permittee may request relief on
  future monitoring
• Divisions call
• Requires permit modification
• For acute testing, may request use of 6 organisms
  allowed by EPA
• For chronic testing, only allowable species are
  Ceriodaphnia dubia and fathead minnows

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Basic Pretreatment Requirements

• Minor POTWs
• Responsibility to protect POTW
• General discharge prohibitions
• Industrial categorical limitations
• Notification requirements (new introductions)
• Reopener
• State/EPA direct enforcement ability for IUs
• Majors Without Pretreatment Programs
• Same as above PLUS
• Annual sampling for metals/cyanide/phenols

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Basic Pretreatment Requirements

• DWTWs With Approved Pretreatment Programs
• Pretreatment influent/effluent monitoring
  (including toxics screen biosolids screen)
• Operate full pretreatment program (including
  legal authorities, general prohibitions/local/cate
  gorical limits, IU permits/control mechanisms,
  sampling, inspections, enforcement program, ERP,
  staffing/financial support, SIU violators annual
  publication, IU updates, spill/slug control
  evaluations, RCRA notification responsibilities,
  and others identified on last slide)

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Recent/Upcoming Changes Potential Effects on
Permits

• Basic Standards Changes
• Ammonia
• Temperature criteria
• Metals criteria
• New effluent-dependent/effluent-dominated
  definitions
• Decoupling antidegradation requirements
• Others
• Nutrient standards
• Growth related sub-lethal WET

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Ammonia Criteria

• Adopted EPAs 1999 Ammonia Update
• For cold water (salmonids present, ELSP all
  year), generally relaxed standards
• For warm water (salmonids absent, ELSP April 1
  August 31), generally more stringent standards
• Hearing 03/07 to consider changing standards for
  all basins
• SOBP also discusses adoption of temporary
  modifications to provide reasonable adequate
  time for municipalities to address planning,
  financing, construction

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Temperature Criteria

• WQCC adopted new temperature criteria in 2005,
  effective 12/31/07
• Rulemaking hearing scheduled for 01/08/07 to
  reconsider temperature criteria based on input
  from panel of experts

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Metals Criteria

• Metals criteria (table value standards) changed
  for
• Aluminum
• Antimony
• Arsenic
• Cadmium
• Uranium
• Zinc
• On a site-specific basis, could significantly
  affect future permit limits for
• Arsenic
• Cadmium
• Uranium
• Zinc

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New Definitions

• Effluent-dependent stream would be ephemeral
  without the presence of wastewater effluent, but
  has continuous or periodic flows for all or a
  portion of its reach as the result of the
  discharge
• Effluent-dominated stream would be intermittent
  or perennial without the presence of wastewater
  effluent whose flow for the majority of the time
  is primarily attributable to the discharge of
  treated water (i.e., gt 50 of the flow consists
  of treated wastewater for at least 183 days
  annually, for 8 out of 10 years)

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Decoupling

• Automatic decoupling of Cold Water Aquatic Life
  Class 2 and Use Protected
• Opportunity to decouple Warm Water Aquatic Life
  Class 2 and Use Protected
• Couples Effluent-Dominated and Effluent-Dependent
  with Use Protected

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Permitting Process(What do I get to see when?)

• May request pre-application conference/
• site inspection
• 60 days to apply once notified
• 45 days for completeness determination
• Pre-public notice draft review (WQA, Rationale)
• Public notice of draft permit
• 30 day comment period (unless public meeting)

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Basics

• Permit required for any point source discharge of
  pollutants to a water of the State (or U.S.)
• State waters any and all surface and
  subsurface waters which are contained in or flow
  through this State does not include waters in
  sewage systems, waters in treatment works of
  disposal systems, waters in potable water
  distribution systems, and all water withdrawn for
  use until use and treatment have been completed

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State Exemptions

• Activities such as diversion, carriage, and
  exchange of water from or into streams, lakes,
  reservoirs, or conveyance structures or storage
  of water in or release of water from lakes,
  reservoirs, or conveyance structures, in the
  exercise of water rights shall not be considered
  to be point source discharges of pollution
• Nothing, however, exempts any point source
  discharger which generates wastewater effluent
  from the requirement of obtaining a permit.
• Cannot require permit for flow or return flow of
  irrigation water (except as required by Federal
  or State Acts)

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Discharges to Ditches/Other Man-Made Conveyance
Structures

• Permit for discharge to ditch shall include
  provisions to
• Protect beneficial uses made of water (decreed or
  in existence prior to inception)
• Comply with any applicable WQS that may be
  affected by discharge (including downstream)

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Recent Court Decisions/Rules

• South Florida Water Management District v.
  Miccosukee Tribe of Indians et al.
• (March 23, 2004 U.S. Supreme Court Decision)
• Agency Interpretation on Applicability of Section
  402 to Water Transfers
• (August 5, 2005 EPA memorandum)
• National Pollutant Discharge Elimination System
  (NPDES) Water Transfers Proposed Rule
• (June 7, 2005 Federal Register Notice)

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Thank You!Katie Fendel, P.E.Project
ManagerLeonard Rice Engineers, Inc.