Section 327IAC5-2-16. Permit modification, revocation and reissuance, and termination

   (a) An issued permit may be modified, in whole or in part, revoked and reissued, or terminated during its term for cause as specified in this section. Such action may be taken at the commissioner's own initiative or upon the request of any interested person. If the commissioner determines that cause exists for modification or revocation and reissuance of a permit, an updated application or a pertinent portion of an application may be requested if needed to provide sufficient information to prepare the draft permit.

  (b) Causes for modification, revocation and reissuance, or termination of a permit include the following:

(1) Violation of any term or condition of the permit.

(2) Failure of the permittee to disclose fully all relevant facts or misrepresentation of any relevant facts by the permittee in the application or during the permit issuance process.

(3) A change in any condition that requires either a temporary or a permanent reduction or elimination of any discharge controlled by the permit, e.g., plant closure, termination of discharge by connection to a POTW, a change in state law that requires the reduction or elimination of the discharge, or information indicating that the permitted discharge poses a substantial threat to human health or welfare.

  (c) In addition to the provisions of subsection (b), causes for modification, or revocation and reissuance, but not termination, of a permit include the following:

(1) A change in ownership or control of a source which has a permit, where required by the commissioner under section 6(c) of this rule.

(2) Promulgation of an applicable toxic effluent standard or prohibition under section 307(a)(2) of the CWA for a toxic pollutant which is injurious to human health if that standard or prohibition is more stringent than any limitation in the permit on the toxic pollutant.

(3) The occurrence of circumstances which meet the conditions for invoking a reopener clause contained in the permit, such as the reopener clause specified under section 8(b)(1)(A) of this rule for primary industrial dischargers.

  (d) In addition to the provisions of subsections (b) and (c), a permit may be modified for any of the following causes:

(1) Material and substantial alterations or additions to the discharger's operation which were not covered in the effective permit, e.g., production changes, relocation or combination of discharge points, changes in the nature or mix of products produced, provided that such alterations do not constitute total replacement of the process or production equipment causing the discharge which converts it into a new source.

(2) The existence of a factor or factors which, if properly and timely brought to the attention of the commissioner, would have justified the application of limitations, standards, or other requirements different from those imposed by the NPDES permit but only if the requester shows that such factor or factors arose after the permit was issued or could not reasonably have been known by the requestor prior to issuance of the permit.

(3) Suspension, withdrawal, or revision of a regulation (including an interim final regulation), promulgated by EPA or the board, establishing effluent limitation guidelines, effluent standards, water quality standards, or treatment requirements, but only when such suspension, withdrawal, or revision affects that portion of the regulation which is the basis for the permit term or condition that is requested to be modified or revoked.

(4) Judicial remand and stay of a promulgated effluent limitations guideline, effluent standard, or water quality standard, if the remand concerns that portion of the guideline or standard on which the permit term or condition was based.

(5) The granting by the commissioner of a permittee's request for a modification of, or variance from, effluent limitations as specifically authorized by the CWA, e.g., section 301(c), 301(g), 301(i), or 301(k) or for a fundamentally different factors variance under 327 IAC 5-6.

(6) Failure of the commissioner to notify another state whose waters may be affected by the discharge as required by section 402(b)(3) of the CWA.

(7) Upon request of a permittee who qualifies for effluent limitations on a net basis under section 11(f) of this rule, or upon a determination by the commissioner that a permittee is no longer eligible for net effluent limitations.

(8) When the level of discharge of any toxic pollutant which is not limited in the permit exceeds the level which can be achieved by the technology-based treatment requirements appropriate to the permittee under the CWA (see 327 IAC 5-5-2).

(9) When the permittee begins or expects to begin to use or manufacture as an intermediate or final product or byproduct any toxic pollutant which was not reported in the permit application under 40 CFR 122.53(d)(9), except that this subdivision shall not apply to such a use or manufacture of a toxic pollutant solely under research or laboratory conditions.

(10) A determination by the commissioner that a notification level should be established under section 9(a) of this rule.

(11) A determination by the commissioner that a POTW shall be required to develop a POTW pretreatment program, under one (1) of the circumstances specified in 327 IAC 5-13-2(d) or the approval by the commissioner of:

(A) a POTW pretreatment program; or

(B) an application by the POTW for authority to revise, on the basis of consistent removal of a toxic pollutant by the POTW, discharge limits otherwise applicable to that pollutant under a categorical pretreatment standard.

(12) When otherwise authorized under this rule.

(13) The promulgation by EPA of an effluent limitation guideline that is applicable to the permittee and is less stringent than corresponding technology-based effluent limitations in the permit which were imposed under section 402(a)(1) of the CWA.

  (e) The following permit modifications shall not require public notice and opportunity for hearing under 327 IAC 5-3 unless they would render the applicable standards and limitations in the permit less stringent, or unless contested by the permittee:

(1) Correction of typographical errors.

(2) A change requiring more frequent monitoring or reporting by the permittee.

(3) A change in an interim compliance date, but not more than one hundred twenty (120) days beyond the date previously established and not where the change would interfere with the attainment of a final compliance date.

(4) A change in ownership or control of a source which has a permit where no other change in the permit is necessary and where transfer is accomplished under section 6(c) of this rule.

(5) A change in the construction schedule for a discharger which is a new source. No such change shall affect a discharger's obligation to have all pollution control equipment installed and in operation prior to discharge under section 17 of this rule.

(6) Deletion of a point source outfall, where the discharge from that outfall is terminated and does not result in discharge of pollutants from other outfalls except in accordance with permit limits.

(Water Pollution Control Division; 327 IAC 5-2-16; filed Sep 24, 1987, 3:00 p.m.: 11 IR 630; filed Feb 26, 1993, 5:00 p.m.: 16 IR 1754)