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May 13, 2015
overview of non-standard NPDES regulatory tools to help meet state water quality standards, get appropriate permits issued, and stay in compliance
Midwest Environment Compliance ConferenceOverland Park, KS
May 2015
May 13, 2015
“non-standard” regulatory tools
graphic from EPA Water Quality Standards Academy Presentation, May 6, 2013, Washington DC
May 13, 2015
compliance schedule
Graphic from EPA Water Quality Standards Academy Presentation, May 6, 2013, Washington DC
May 13, 2015
compliance schedule
• a “discharger grace period”• a tool that allows additional time to take specific
actions to meet a permit limit, when it is known what specific actions can be taken and how long those actions will take
• generally spelled out in the NPDES permit• not allowed solely for the development of a TMDL
or a WQS (including a UAA or SSS)• not allowed for permit limits based upon
standards adopted prior to July 1, 1977
May 13, 2015
compliance schedule must be “appropriate” and achieved “as soon as possible”
• “appropriate” will be determined by:– how much time the discharger had under prior permits– discharger’s good faith effort– need for physical alterations to treatment system and
time needed• “as soon as possible” will be determined by:– steps needed to make modifications and time needed
for those steps– interim goals are typically included if the compliance
schedule is longer than one year
May 13, 2015
use removal via use attainability analysis
Graphic from EPA Water Quality Standards Academy Presentation, May 6, 2013, Washington DC
May 13, 2015
removal of a designated use
• the WQS regulation recognizes that specific situations may exist where a designated use may not be attainable
• different requirements for fishable, swimmable uses vs. non-fishable swimmable uses
May 13, 2015
removal of fishable, swimmable uses via a use attainability analysis (UAA)
• “A UAA is a structured scientific assessment of the factors affecting the attainment of the use that may include physical, chemical, biological, and economic factors as described in 40 CFR §131.10(g).”
• a UAA in accordance with 40 CFR 131.10(g) is only required for uses specified in section 101(a)(2) of the CWA—in other words, a UAA is required for the “fishable, swimmable” uses.
May 13, 2015
The six 131.10(g) factors
1. naturally occurring pollutant 2. natural, ephemeral, intermittent or low flow
conditions3. human caused conditions or sources of pollution4. dams, diversions, or other types of hydrologic
modifications5. natural physical conditions related to the natural
features of the water 6. controls…would result in substantial and widespread
economic and social impact.
October 31, 2014
UAA process for non-fishable, swimmable uses
• “[a]nd while states and authorized tribes are not required by regulation to conduct a UAA using factors at § 131.10(g) when designating and removing a use not specified in 101(a)(2), the EPA recognizes that UAAs may provide valuable information to a state or authorized tribe when deciding how to manage their waters and demonstrate consideration of a water’s ‘use and value.’”
October 31, 2014
UAAs—overview
• designated uses are an important component of water quality standards
• designated uses are not always attainable• fishable, swimmable uses are presumed attainable unless
state demonstrates otherwise through a UAA• states have more discretion when designating and
changing non-fishable, swimmable uses• EPA encourages use refinements to reflect more specific
uses• existing uses may never be removed• there is nothing wrong with revising or removing a
designated use after a credible UAA
May 13, 2015
variance
Graphic from EPA Water Quality Standards Academy Presentation, May 6, 2013, Washington DC
May 13, 2015
variance
• a tool that allows additional time to determine how to the meet the WQSs
• variances are on the optional “general policies” allowed by 40 CFR 131.13 and thus states’ rule must address its use (if it is to be used in that state)
• a variance creates a time-limited use and/or criteria and requires state and EPA approval
May 13, 2015
when is a variance an appropriate tool?
• when additional time is needed to meet WQSs–when a designated use is not attainable in the
short-term but might be in the long-term–when needed actions are unknown or the time
needed is uncertain• the time allowed may be used to:– conduct additional studies– implement controls to make feasible progress– recognize that limiting conditions may change (e.g.,
technology may improve and become feasible)
May 13, 2015
EPA’s expectations for a variance
• variance is included in state WQSs• variance is subject to public notice and
comment• for fishable, swimmable uses and WQSs, the
state demonstrates that the standard is unattainable based upon one of the 131.10(g) factors (e.g., “substantial and widespread economic impact”)
October 31, 2014
variance conditions—time limitations
• only allowed for specific time• need to ensure reasonable progress is made• need to ensure that upon expiration, original
use is protected and WQS is achieved• “Although the EPA is proposing to establish a
maximum single variance term of no more than 10 years, it recognizes that there may be circumstances in which a renewal of a variance is both necessary and appropriate.”
variance—scope limitations
• specify the sources and pollutants addressed (traditionally limited to single discharger, single pollutant)
• specify geography (single location or whole water body)
• ensure existing criterion is binding on discharges not covered by the variance
• ensure all other applicable water quality standards not specifically modified by the variance remain applicable
May 13, 2015
May 13, 2015
variance is protective of water quality
• existing uses must be protected• technology based effluent limits must be met• highest attainable level of quality, short of
achieving WQS is secured• demonstrates that advanced treatment and
alternative effluent control technologies have been considered
May 13, 2015
site specific criteria or standards
Graphic from EPA Water Quality Standards Academy Presentation, May 6, 2013, Washington DC
May 13, 2015
site specific criteria
• a tool to tailor criteria to local conditions• adjusts the criteria to something that is
protective of the designated use but that is specific to the site
• does not allow for additional time to meet standard; it is applicable immediately
• are WQSs, so must be submitted to EPA for approval and must go through public comment
May 13, 2015
site specific criteria development for fishable, swimmable uses
• Water-Effect Ratio (WER) • Recalculation Procedure• Resident Species • Reference Water Body Approach• Biotic Ligand Model• Metals Translator Study*
*Not a modification of water quality standards
May 13, 2015
summary of non-standard permitting tools
tool descriptioncompliance schedule a tool that allows additional time to take
specific actions to meet a permit limituse removal (UAA) a UAA is a structured scientific
assessment of the factors affecting the attainment of a use
variance a tool that allows additional time to determine how to meet the WQSs
site-specific criteria a tool to tailor standards to local conditions
May 13, 2015
staying in compliance with your permit
read the permit conditions
reportingcompliance reminders
sampling
reporting
• notification of changes to the discharge– toxic substances – ensure toxic substance discharge does
not exceed water quality criteria (notification threshold/concentration)• numeric criteria• general criteria
– example: additive to cooling tower water to prevent scaling or biofouling
• bypasses (planned/unplanned)/SSOs– timeframes/information
May 13, 2015
reporting
• discharge monitoring reports (DMRs)– sampling/measurement frequency– reporting frequency (e.g.monthly/quarterly)– concentration vs. mass
• sampling at the outfall (Report All Results!)
May 13, 2015
sampling
• analytical methods– reporting limits vs. effluent limits– EPA’s Sufficiently Sensitive Methods Rule
(August 2014)http://water.epa.gov/polwaste/npdes/basics/upload/Public-Fact-Sheet-Sufficiently-Sensitive-Methods-Rule-8-18-14-Final.pdf– approved in 40 CFR Part 136
• quality assurance/quality control– qa/qc plan– audits - internal and external
May 13, 2015
Questions, Thanks & Contact Info
Rob Morrison, P.E.Barr Engineering Co.
1001 Diamond Ridge, Suite 1100Jefferson City, MO
May 13, 2015
