Section 327IAC5-2-17. New sources and new dischargers

   (a) A new source determination shall be made that construction of a new source has commenced if the owner or operator has:

(1) begun, or caused to begin as part of a continuous on-site construction program:

(A) any placement, assembly, or installation of facilities or equipment; or

(B) significant site preparation work including clearing, excavation, or removal of existing buildings, structures, or facilities which is necessary for the placement, assembly, or installation of new source facilities or equipment; or

(2) entered a binding contractual obligation for the purchase of facilities or equipment which are intended to be used in its operation within a reasonable time. Options to purchase or contracts which can be terminated or modified without substantial loss, and contracts for feasibility, engineering, and design studies do not constitute a contractual obligation under this subsection.

  (b) Effect of compliance with new source performance standards shall be as follows:

(1) Except as provided in subdivision (2), any new source which meets the applicable promulgated new source performance standards from the commencement of discharge, shall not be subject to any more stringent new source performance standards, or to any more stringent technology-based standards under Section 301(b)(2) of the Clean Water Act (33 U.S.C. 1311(b)(2)) for the shortest of the following periods:

(A) Ten (10) years from the date that construction is completed.

(B) ten (10) years from the date the source begins to discharge process wastewater or other wastewater not related to construction.

(C) The period of depreciation or amortization of the facility for the purposes of Sections 167 and 169 of the Internal Revenue Code (26 U.S.C. 167; 26 U.S.C. 169).

(2) The protection from more stringent standards of performance afforded by subdivision (1) does not apply to:

(A) additional or more stringent permit conditions which are not technology-based, e.g., conditions based on water quality standards, or effluent standards or prohibitions under Section 307(a) of the Clean Water Act (33 U.S.C. 1317(a)); and

(B) additional technology-based permit conditions established under 327 IAC 5-5-2(b) to control pollutants listed as toxic under Section 307(a) of the Clean Water Act (33 U.S.C. 1317(a)) or as hazardous substances under Section 311 of the Clean Water Act (33 U.S.C. 1321) and which are not controlled by new source performance standards. This includes permit conditions controlling pollutants other than those identified as toxic or hazardous where control of those other pollutants has been specifically identified as the method to control the toxic or hazardous pollutant.

(3) Where an NPDES permit issued to a source enjoying a "protection period" under subdivision (1) will expire on or after the expiration of the protection period, such permit shall require the owner or operator of the source to be in compliance with the requirements of Section 301 of the Clean Water Act (33 U.S.C. 1311) and any other then applicable requirements of the Clean Water Act immediately upon the expiration of the protection period. No additional period for achieving compliance with these requirements shall be allowed.

(4) The owner or operator of a new source, a new discharger, a source recommencing discharge after terminating operations, or a source which had been an indirect discharger which commences discharging into navigable waters shall install and have in operating condition, and shall "start-up" all pollution control equipment required to meet the terms and conditions of its permit before beginning to discharge. Within the shortest feasible time (not to exceed ninety (90) days), the owner or operator must meet all permit terms and conditions.

(5) After the effective date of new source performance standards, it shall be unlawful for any owner or operator of any new source to operate such source in violation of those standards applicable to such source.

(Water Pollution Control Division; 327 IAC 5-2-17; filed Sep 24, 1987, 3:00 p.m.: 11 IR 631; filed Oct 9, 2015, 4:07 p.m.: 20151104-IR-327100659FRA; errata filed Dec 30, 2015, 12:37 p.m.: 20160113-IR-327150453ACA)