Section 327IAC5-2-8. Conditions applicable to all permits

   The following conditions apply to all NPDES permits and shall be incorporated into the permits either expressly or by reference:

(1) The permittee must comply with all terms and conditions of the permit. Any permit noncompliance constitutes a violation of the Clean Water Act and the environmental management laws and is grounds for:

(A) enforcement action;

(B) permit termination, revocation and reissuance, or modification; or

(C) denial of a permit renewal application.

A permittee may claim an affirmative defense to a permit violation if the circumstances of the noncompliance meet the criteria of an upset as defined in subdivision (13).

(2) If the permittee wishes to continue an activity regulated by a permit after the expiration date of this permit, the permittee must apply for and obtain a new permit.

(3) The permittee shall take all reasonable steps to minimize or correct any adverse impact on the environment resulting from noncompliance with the permit.

(4) The following permit actions:

(A) Permits may be modified, revoked and reissued, or terminated for cause.

(B) Any information that the permittee knows or has reason to believe would constitute cause for modification or revocation and reissuance of the permit, such as plans for physical alterations or additions to the permitted facility that:

(i) could significantly change the nature of, or increase the quantity of, pollutants discharged; or

(ii) the commissioner may request to evaluate whether such cause exists;

shall be submitted for the commissioner's evaluation at the earliest time such information becomes available.

(C) The filing by the permittee of:

(i) a request for a permit modification, revocation and reissuance, or termination; or

(ii) information specified in clause (B);

does not stay or suspend any permit term or condition.

(D) The permit may not be transferred to any person except in accordance with section 6(c) of this rule.

(5) If any applicable effluent standard or prohibition (including any schedule of compliance specified in such effluent standard or prohibition) is established under Section 307(a) of the Clean Water Act (33 U.S.C. 1317(a)) for a toxic pollutant injurious to human health and that standard or prohibition is more stringent than any limitation upon such pollutant in the permit, the commissioner shall institute proceedings to modify or revoke and reissue the permit to conform to the toxic effluent standard or prohibition. Effluent standards or prohibitions established under Section 307(a) of the Clean Water Act (33 U.S.C. 1317(a)) for toxic pollutants injurious to human health are effective and must be complied with, if applicable to the permittee, within the time provided in the implementing regulations, even absent permit modification.

(6) The permit does not convey any property rights of any sort or any exclusive privilege.

(7) The permittee shall furnish to the commissioner, within a reasonable time, any information that the commissioner may request to determine whether cause exists for modifying, revoking and reissuing, or terminating the permit or to determine compliance with the permit. The permittee shall also furnish to the commissioner, upon request, copies of records required to be kept by the permit and 40 CFR 122.41(h).

(8) The permittee shall allow the commissioner, or an authorized representative (including an authorized contractor acting as a representative of the commissioner), upon the presentation of credentials and such other documents as may be required by law to:

(A) enter upon the permittee's premises where a regulated facility or activity is located or where any records must be kept under the terms and conditions of the permit;

(B) have access to and copy at reasonable times any records that must be kept under the terms and conditions of the permit;

(C) inspect, at reasonable times:

(i) any monitoring equipment or method;

(ii) any collection, treatment, pollution management, or discharge facilities; or

(iii) practices required or otherwise regulated under the permit; and

(D) sample or monitor, at reasonable times, any discharge of pollutants or internal wastestream (where necessary to ascertain the nature of a discharge of pollutants) for the purpose of evaluating compliance with the permit or as otherwise authorized.

(9) The permittee shall at all times maintain in good working order and efficiently operate all facilities and systems (and related appurtenances) for collection and treatment that are:

(A) installed or used by the permittee; and

(B) necessary for achieving compliance with the terms and conditions of the permit.

This subdivision does not act as an independent source of authority to set effluent limitations. Such limitations will be based on the design removal rates of installed treatment facilities only as required under this article. Nor should this subdivision be construed to require the operation of installed treatment facilities that are unessential for achieving compliance with the terms and conditions of the permit.

(10) The permittee shall comply with monitoring, recording, and reporting requirements established in accordance with sections 13 through 15 of this rule. Penalties include the following:

(A) Section 309(c)(4) of the Clean Water Act (33 U.S.C. 1319(c)(4)) provides that any person who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained under a permit shall, upon conviction, be punished by a fine of not more than ten thousand dollars ($10,000) per violation, or by imprisonment for not more than one hundred eighty (180) days per violation, or by both.

(B) IC 13-30-10-1 provides that a person who knowingly or intentionally renders inaccurate or inoperative a recording device or a monitoring device required to be maintained by a permit issued by the department commits a class B misdemeanor.

(11) The following are reporting requirements:

(A) Reports of compliance or noncompliance with, or any progress reports on, interim and final requirements contained in any compliance schedule of this permit shall be submitted no later than fourteen (14) days following each schedule date.

(B) The permittee shall give advance notice to the commissioner of any planned changes in the permitted facility, any activity, or other circumstances that the permittee has reason to believe may result in noncompliance with permit requirements.

(C) The permittee shall orally report information on any of the following types of noncompliance within twenty-four (24) hours from the time the permittee becomes aware of such noncompliance:

(i) Any unanticipated bypass that exceeds any effluent limitation in the permit.

(ii) Violation of a maximum daily discharge limitation for any of the pollutants listed by the commissioner in the permit to be reported within twenty-four (24) hours.

(iii) Any noncompliance that may pose a significant danger to human health or the environment. Reports under this item shall be made as soon as the permittee becomes aware of the noncomplying circumstances to [phone].

(iv) Any upset that exceeds any effluent limitation in the permit.

A written submission shall also be provided within five (5) days of the time the permittee becomes aware of the circumstances. The written submission shall contain a description of the noncompliance and its cause; the period of noncompliance, including exact dates and times, and if the noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent recurrence of the noncompliance. The commissioner may waive the written report on a case-by-case basis if the oral report has been received within twenty-four (24) hours.

(D) The permittee shall also report all instances of noncompliance not reported under clauses (A) through (C), at the time discharge monitoring reports (DMRs) are submitted. The reports shall contain the information listed in clause (C).

(E) Where the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the commissioner, it shall promptly submit such facts or corrected information.

(F) The permittee shall give notice to the commissioner as soon as possible of any planned physical alterations or additions to the permitted facility. (As used in this clause, "permitted facility" refers to a point source discharge, not a wastewater treatment facility. See IC 13-18-7-1.) Notice is required only when either of the following applies:

(i) The alteration or addition to a permitted facility may meet one (1) of the criteria for determining whether a facility is a new source.

(ii) The alteration or addition could significantly change the nature of, or increase the quantity of, pollutants discharged. This notification applies to pollutants that are subject neither to effluent limitations in the permit nor to notification requirements under section 9 of this rule.

(12) The following are requirements for bypass:

(A) The following definitions:

(i) "Bypass" means the intentional diversion of a waste stream from any portion of a treatment facility.

(ii) "Severe property damage" means substantial physical damage to property, damage to the treatment facilities which would cause them to become inoperable, or substantial and permanent loss of natural resources which can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production.

(B) The permittee may allow any bypass to occur that does not exceed any effluent limitations contained in the NPDES permit, but only if it also is for essential maintenance to assure efficient operation. These bypasses are not subject to clauses (C) and (D).

(C) The permittee must provide the commissioner with the following notice:

(i) If the permittee knows or should have known in advance of the need for a bypass (anticipated bypass), it shall submit prior written notice. If possible, such notice shall be provided at least ten (10) days before the date of the bypass for approval by the commissioner.

(ii) The permittee shall submit notice of an unanticipated bypass as required by subdivision (11)(C).

(D) The following provisions are applicable to bypasses:

(i) Bypass is prohibited, and the commissioner may take enforcement action against a permittee for bypass unless the following occur:

(AA) Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage.

(BB) There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment down time. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass that occurred during normal periods of equipment down time or preventive maintenance.

(CC) The permittee submitted notices as required under clause (C).

(ii) The commissioner may approve an anticipated bypass, after considering its adverse effects if the commissioner determines that the anticipated bypass will meet the three (3) conditions listed in item (i). The commissioner may impose any conditions determined to be necessary to minimize any adverse effects.

(13) The following are requirements for upset:

(A) "Upset" means an exceptional incident in which there is unintentional and temporary noncompliance with technology-based permit effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.

(B) An upset shall constitute an affirmative defense to an action brought for noncompliance with such technology-based permit effluent limitations if the requirements of clause (C) are met.

(C) A permittee who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs or other relevant evidence, that:

(i) an upset occurred and the permittee has identified the specific cause of the upset;

(ii) the permitted facility was at the time being operated in compliance with proper operation and maintenance procedures;

(iii) the permittee complied with any remedial measures required under subdivision (3); and

(iv) the permittee submitted notice of the upset as required in subdivision (11)(C).

(14) It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of the permit.

(15) All applications, reports, or other information submitted to the commissioner shall be signed and certified as described under section 22 of this rule. Penalties include the following:

(A) Section 309(c)(4) of the Clean Water Act (U.S.C. 1319(c)(4)) provides that any person who knowingly makes any false statement, representation, or certification in any record or other document submitted or required to be maintained under this permit, including monitoring reports or reports of compliance or noncompliance shall, upon conviction, be punished by a fine of not more than ten thousand dollars ($10,000) per violation, or by imprisonment for not more than one hundred eighty (180) days per violation, or by both.

(B) IC 13-30-10-1 provides that a person who knowingly or intentionally renders inaccurate or inoperative a recording device or a monitoring device required to be maintained by a permit issued by the department commits a class B misdemeanor.

(Water Pollution Control Division; 327 IAC 5-2-8; filed Sep 24, 1987, 3:00 p.m.: 11 IR 620; filed Feb 26, 1993, 5:00 p.m.: 16 IR 1741; filed Jan 14, 1997, 12:00 p.m.: 20 IR 1423; filed Oct 9, 2015, 4:07 p.m.: 20151104-IR-327100659FRA; errata filed Dec 30, 2015, 12:37 p.m.: 20160113-IR-327150453ACA)