Section 327IAC5-2-10. Applicable limitations, standards, and conditions

   (a) Each NPDES permit shall provide for and ensure compliance with all applicable requirements of the Clean Water Act (CWA), regulations promulgated under the CWA, and state law. For the purposes of this section, an applicable requirement is a statutory or regulatory requirement that takes effect under state law before final administrative disposition of a permit. In addition to the requirements of sections 6, 8, 9, and 12 of this rule, permits shall contain terms and conditions that ensure compliance with the following requirements as applicable:

(1) Effluent limitations and standards under Sections 301, 304, 307(a), 318, and 405 of the CWA.

(2) Standards of performance for new sources under Section 306 of the CWA and 40 CFR 122.44(a).

(3) In the case of a POTW, which primarily is designed and utilized for the treatment of wastewater from an industry of a particular class or category, the effluent limitations or standards that would apply under Section 301, 304, 306, 307, 318, or 405 of the CWA to the industry if it were a direct discharger. If the POTW receives sewage from domestic sources as well as industrial wastewater, the permit shall include composite (or hybrid) effluent limitations comprising the effluent:

(A) limitations or standards applicable to the industrial wastewater, as specified in this subdivision; and

(B) limitations applicable to the domestic sewage under Sections 301 and 304 of the CWA.

Such composite limitations will be cumulative for mass limitations and weighted in proportion to respective flows for concentration limitations.

(4) Water quality standard based and other more stringent requirements. Any effluent limitations or other requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards under Sections 301, 304, 306, 307, 318, and 405 of the CWA where necessary to do the following:

(A) Achieve water quality standards established by the water pollution control board or by EPA in accordance with Sections 118 and 303 of the CWA. Numeric water quality-based effluent limitations shall be established in accordance with sections 11.1 and 11.3 through 11.6 of this rule.

(B) Attain or maintain a specified water quality through water quality related effluent limits established under Section 302 of the CWA.

(C) Incorporate, in accordance with Section 301(b)(1)(C) of the CWA, any more stringent limitations, treatment standards, or schedules of compliance requirements established under federal or state law or regulations (including those adopted under interstate agreements or compacts such as the Ohio River Valley Water Sanitation Commission (ORSANCO)).

(D) Ensure consistency with the requirements of a water quality management plan approved by EPA under Section 208(b) of the CWA.

(E) Incorporate alternative effluent limitations or standards where warranted by fundamentally different factors under 327 IAC 5-6.

(5) The following requirements for toxic pollutant limitations:

(A) Limitations established under subdivision (1), (2), (3), or (4) to control pollutants meeting the criteria listed in clause (B). Such limitations shall be established in accordance with clause (C).

(B) Limitations must control all toxic pollutants that the:

(i) commissioner determines (based on information reported in a permit application or in a notification under section 9 of this rule or on other information) are or may be discharged at a level greater than the level that is allowed under the technology-based effluent limitations applicable to the permittee under the CWA (see 327 IAC 5-5-2(c)); or

(ii) discharger does or may use or manufacture as an intermediate or final product or byproduct; however, limitations are not required under this subdivision merely because the discharger does or may use or manufacture a toxic pollutant under research or laboratory conditions.

(C) The requirement that the limitations control the pollutants meeting the criteria of clause (B) shall be satisfied by limitations on:

(i) those pollutants; or

(ii) other pollutants that, in the judgment of the commissioner, will ensure treatment of the pollutants specified under clause (B) to the levels required by the CWA.

(D) As used in this subdivision, "toxic pollutant" means:

(i) a pollutant listed as toxic under Section 307(a)(1) of the CWA; or

(ii) a pollutant or a combination of pollutants determined by the commissioner to have significant toxic characteristics when discharged into the waters of the state for organisms reasonably expected to be exposed to the pollutant or pollutants.

(6) Permits issued before the promulgation by the administrator of applicable effluent limitations and standards (including best management practices) under Sections 301, 304, 307, 318, and 405 of the CWA shall contain such limitations and other conditions as the commissioner determines to be necessary to carry out those provisions of the CWA under 327 IAC 5-5-2(b) and Section 402(a)(1) of the CWA.

(7) Best management practices to control or abate the discharge of pollutants where:

(A) required under Section 304(e) of the CWA for the control of toxic and hazardous pollutants from ancillary industrial activities;

(B) numeric effluent limitations are infeasible; or

(C) the practices are reasonably necessary to achieve effluent limitations and standards or to carry out the purposes and intent of the CWA.

Examples of best management practices that may be appropriate under clause (B) include proper operation and maintenance criteria and sludge-handling requirements. Examples of best management practices that may be appropriate under clause (C) include the construction of sheds over material storage piles to prevent rainfall from leaching materials from these piles and creating a source of pollution, ditching and diversion of rainfall run-off to minimize or prevent contamination from a discharger's manufacturing operations, and the use of solid, absorbent materials for cleaning up leaks and drips as opposed to washing these materials down a floor drain creating additional sources of pollution.

(8) Twenty-four (24) hour reporting. Pollutants for which the permittee must report violations of maximum daily discharge limitations under section 8(10)(C)(iii) of this rule (twenty-four (24) hour reporting) shall be listed as such in the permit. This list shall include any:

(A) toxic pollutant or hazardous substance; or

(B) pollutant specifically identified as the method to control a toxic pollutant or hazardous substance.

(9) Any conditions that the Secretary of the Army considers necessary to ensure that navigation and anchorage will not be substantially impaired in accordance with 327 IAC 5-3-10(a).

(10) Additional conditions applicable to POTWs shall be as follows:

(A) Any conditions imposed in grants made by the administrator to POTWs under Sections 201 and 204 of the CWA that are reasonably necessary for the achievement of effluent limitations required under Section 301 of the CWA.

(B) Requirements under Section 405 of the CWA governing the disposal of sewage sludge from POTWs or any other treatment works treating domestic sewage for any use for which rules have been established in accordance with any applicable rules.

(C) All POTWs shall identify, in terms of character and volume of pollutants, any significant indirect discharges into the POTW that are subject to pretreatment standards under Section 307(b) and 307(c) of the CWA.

(D) All POTWs must provide adequate notice to the commissioner of the following:

(i) Any new introduction of pollutants into the POTW from an indirect discharger that would be subject to Section 301 or 306 of the CWA if it were directly discharging those pollutants.

(ii) Any substantial change in the volume or character of pollutants being introduced into that POTW by any source where the change would:

(AA) render the source subject to pretreatment standards under Section 307(b) or 307(c) of the CWA; or

(BB) result in a modified application of the standards.

As used in this clause, "adequate notice" includes information on the quality and quantity of effluent introduced into the POTW and any anticipated impact of the change on the quantity or quality of effluent to be discharged from the POTW.

(E) POTWs must develop and submit to the commissioner a POTW pretreatment program when required by 40 CFR 403 and 327 IAC 5-13-1 in order to assure compliance by industrial users of the POTW with applicable pretreatment standards established under Sections 307(b) and 307(c) of the CWA. The pretreatment program shall:

(i) meet the criteria of 327 IAC 5-13-2(f); and

(ii) once approved, be incorporated into the POTW's permit.

(11) Antibacksliding requirements shall be as follows:

(A) In the case of effluent limitations established on the basis of Section 402(a)(1)(B) of the CWA, a permit may not be renewed, reissued, or modified on the basis of effluent guidelines promulgated under Section 304(b) of the CWA subsequent to the original issuance of the permit to contain effluent limitations that are less stringent than the comparable effluent limitations in the previous permit. In the case of effluent limitations established on the basis of Section 301(b)(1)(C), 303(d), or 303(e) of the CWA, a permit may not be renewed, reissued, or modified to contain effluent limitations that are less stringent than the comparable effluent limitations in the previous permit except in compliance with Section 303(d)(4) of the CWA.

(B) A permit, with respect to which clause (A) applies, may be renewed, reissued, or modified to contain less stringent effluent limitations applicable to a pollutant if:

(i) material and substantial alterations or additions to the permitted facility occurred after permit issuance that justify the application of a less stringent effluent limitation;

(ii) information is available that:

(AA) was not available at the time of permit issuance (other than revised regulations, guidance, or test methods); and

(BB) would have justified the application of a less stringent effluent limitation at the time of permit issuance;

or the commissioner determines that technical mistakes or mistaken interpretations of law were made in issuing the permit under Section 402(a)(1)(B) of the CWA;

(iii) a less stringent effluent limitation is necessary because of events:

(AA) over which the permittee has no control; and

(BB) for which there is no reasonably available remedy;

(iv) the permittee has received a permit modification under Section 301(c), 301(g) through 301(i), 301(k), 301(n), or 316(a) of the CWA; or

(v) the permittee has installed the treatment facilities required to meet the effluent limitations in the previous permit and has properly operated and maintained the facilities, but has nevertheless been unable to achieve the previous effluent limitations, in which case the limitations in the reviewed, reissued, or modified permit may reflect the level of pollutant control actually achieved (but shall not be less stringent than required by effluent guidelines in effect at the time of permit renewal, reissuance, or modification).

Item (ii) shall not apply to any revised waste load allocations or any alternative grounds for translating water quality standards into effluent limitations, except where the cumulative effect of the revised allocations results in a decrease in the amount of pollutants discharged into the concerned waters, and the revised allocations are not the result of a discharger eliminating or substantially reducing its discharge of pollutants due to complying with the requirements of the CWA or for reasons otherwise unrelated to water quality.

(C) In no event may a permit with respect to which clause (A) applies be renewed, reissued, or modified to contain an effluent limitation that is less stringent than required by effluent guidelines in effect at the time the permit is renewed, reissued, or modified. In no event may such a permit to discharge into waters be renewed, reissued, or modified to contain a less stringent effluent limitation if the implementation of the limitation would result in a violation of a water quality standard under Section 303 of the CWA, 327 IAC 2-1, or 327 IAC 2-1.5 applicable to the waters.

(12) For a POTW, any conditions expressly applicable to any user, as a limited co-permittee, that may be necessary in the permit issued to the treatment works to ensure compliance with applicable requirements under this subdivision. Alternatively, the commissioner may issue separate permits to the treatment works and to its users or may require a separate permit application from any user. The commissioner's decision to:

(A) issue a permit with no conditions applicable to any user;

(B) impose conditions on one (1) or more users;

(C) issue separate permits; or

(D) require separate applications;

and the basis for that decision, shall be stated in the fact sheet for the draft permit for the treatment works.

  (b) Notwithstanding the requirements of this section, where appropriate, NPDES permits for communities with approved LTCPs that are consistent with the federal CSO policy shall contain schedules of compliance for meeting final water quality-based effluent limitations for CSOs, provided any such permit:

(1) requires compliance with applicable standards and water quality-based effluent limitations as soon as possible in accordance with 40 CFR 122.47(a)(1) and in no event beyond the period specified in the approved LTCP for implementation of the LTCP;

(2) contains interim requirements, milestones, and final water quality-based effluent limitations and dates certain by which those requirements, milestones, and limitations will be met, even if these dates are beyond the term of the permit;

(3) complies in all other respects with the requirements of 40 CFR 122.47; and

(4) requires implementation of the approved LTCP.

  (c) The department shall, where appropriate, and upon the request of the permittee, incorporate into the NPDES permit that contains water quality-based effluent limitations associated with CSOs a schedule of compliance provided that all the conditions in subsection (b) are met. (Water Pollution Control Division; 327 IAC 5-2-10; filed Sep 24, 1987, 3:00 p.m.: 11 IR 623; filed Feb 26, 1993, 5:00 p.m.: 16 IR 1743; filed Jan 14, 1997, 12:00 p.m.: 20 IR 1426; errata filed Aug 11, 1997, 4:15 p.m.: 20 IR 3378; filed Sep 6, 2007, 12:25 p.m.: 20071003-IR-327050218FRA)