Negotiating a Good Permit

1. Negotiating a Good Permit (Or, all permits are not created equal) Katie Fendel, P.E. Leonard Rice Engineers, Inc. 303-455-9589

2. Basic Componentsof an NPDES Permit • Terms and Conditions • Monitoring Requirements • Additional Monitoring Requirements • Reporting • Management Requirements/Responsibilities • Additional Conditions • Part III (Appendices)

3. Terms & Conditions • Service Area • Design Capacity • Expansion Requirements • Facilities Operation • Effluent Limitations • Percentage Removal Requirements • Compliance Schedules • Industrial Waste Management • Biosolids Limitations & Management Reqmts.

4. Owner/operator contact info Location, quantity, quality of discharge Effluent limitations, standards, & conditions Monitoring, record-keeping, & reporting requirements Notification requirements Compliance schedule if applicable Submission of pertinent plans & specs in accordance w/ CS Emergency powers Inspection & entry Transfer of permits Planned alterations/additions Duty to properly operate & maintain at all times/take steps to minimize violations Domestic WWTP requirements (80/95%, pretreatment, flow measuring, contracts) Bypass provisions Upset provisions Need to halt not a defense Sludge disposal requirements 307 toxic effluent standards Compliance schedule (if applies) Duty to reapply Extension if timely reapply Information requests BMP requirements Signatory requirements Requirement to keep records 3 yrs Other conditions Division requires 5 year maximum duration (10 years if not subject to federal requirements) Permit modification, suspension, revocation, reissuance, termination Stormwater, as applicable Regulatory Requirements in Permits

5. How Effluent Limits Are Calculated • Technology-Based Limits • Reg. No. 62,Regulations for Effluent Limitations • Water Quality-Based Limits (WQBELs) • Mass balance equation • February 2003 “Determination of the Requirement to Include Water Quality Standards-Based Limits in CDPS Permits Based on Reasonable Potential” • Antidegradation-Based Limits (ADBELs) • Reg. 31,Basic Standards and Methodologies (Section 31.8) • Antidegradation Significance Determination for New or Increased Water Quality Impacts Procedural Guidance, December 2001, updated April 2002

6. Technology-Based Limits • “Level the playing field” • From Effluent Limitations Regulation • BOD • TSS • BOD & TSS Removal Percentages • Oil & Grease • pH • Total Residual Chlorine • Only use if the most stringent

7. Water Quality-BasedEffluent Limits • Where needed to meet water quality standards • Based on mass balance equation: M2 = [(M3)(Q3) – (M1)(Q1)] / Q2 Q1 = Upstream low flow (1E3 or 30E3) Q2 = Average daily effluent flow (design capacity) Q3 = Downstream flow (Q1 + Q2) M1 = In-stream background pollutant concentrations at the existing quality M2 = Calculated maximum allowable effluent pollutant concentration M3 = Maximum allowable in-stream pollutant concentration (water quality standards)

8. WQBELs • Upstream background (M1) will vary based on regulatory definition of existing ambient water quality. • 85th percentile for most pollutants • 50th percentile for metals in total recoverable form • Geometric mean for pathogens such as fecal coliform • Mass balance equation not applicable for nonconservative pollutants, including ammonia • Do use for fecal coliform/e. coli, chlorine, nitrate, TIN • For ammonia, use new AMTOX model • Calculations incorporate nearby facilities & sources (dirty or clean) • Data needs and how to handle if inadequate data

9. Antidegradation-BasedEffluent Limits • Why do we do this? • 3 parts to WQS: • Beneficial uses • Criteria to protect BUs • Antidegradation (3 categories) • Subject to antidegradation requirements if: • Designated “outstanding waters” or • Undesignated • Don’t need to do antidegradation review if: • Designated “use-protected” • If undesignated, antidegradation review required if new or increased impacts are found to occur

10. Calculating ADBELs • 1st establish baseline water quality (BWQ) • BWQ = water quality as of 09/30/2000 • At fully-mixed site downstream of discharge • 2nd calculate Significant Concentration Threshold (SCT) • SCT = additional amount of pollutant that will not cause “significant” degradation • SCT = 0.15 × (WQS-BWQ) + BWQ • Insignificant impacts include: • New loads that use < 15% of remaining assimilative capacity (10% for bioaccumulative pollutants) • When > 100:1 dilution at low flow (not applicable for bioaccumulative pollutants) • Temporary impacts (not applicable for bioaccumulative pollutants)

11. ADBELs • 3rd, calculate ADBAC (antidegradation-based average concentration) • ADBAC = [(SCT)(Q3) – (M1)(Q1)] / Q2 • This is just the mass balance equation using the SCT in place of the water quality standard (M3)…allows you to “use up” the 15% allowable increment (with no “significant degradation”) • ADBELs are applied as a 2-year running average limit

12. Calculating Reasonable Potential • Only get a limit if there is “reasonable potential” to violate • First determine Multiplier • Multiplier based on coefficient of variation and number of samples (table) • Need minimum of 10 data points over 1 year • Calculate “Maximum Expected Pollutant Concentration” (multiply highest concentration in data by the Multiplier) • For acute, use daily maximum data set • For chronic, use monthly average data set • Compare MEPC to Maximum Allowable Pollutant Concentration (MAPC) • MAPC equals WQBEL

13. Monitoring or Permit Limits? • If MEPC > MAPC (or actual data value(s) > MAPC): Permit limit needed • If 50% MAPC < MEPC < MAPC: Only monitoring needed (no permit limit) • If MEPC < 50% MAPC (and all data values < 50% MAPC): No permit limit or monitoring needed

14. So which limit do I get? • Technology-based limit is highest limit you can get • If WQBELs apply, must take WQBEL if it is lower than current permitted load • When WQBEL is greater than current permitted load*: • If antidegradation review was not required, can have WQBEL • If antidegradation applies, then may have either: • ADBEL (2-year running average limit), along with WQBEL (as maximum limit), or • NIL (non-impact limit), which is a limit based on current permitted load and proposed design flow (NIL = current limit if no change in design flow) * For those pollutants for which permit limits have not yet been established, an implicit load allocation is determined and an implicit permit limit is established.

15. So which limit do I get? • Can avoid ADBELs by accepting NILs (non-impact limits), which are limits based on current permitted load and proposed design flow. (If accept NILs, facility is not subject to antidegradation review: there is no new or increased load.) • Can also avoid ADBELs by conducting an alternatives analysis per Section 31.8(3)(d), which could result in alternative antidegradation-based limits • No limit if no reasonable potential • However, always get fecal coliform, total residual chlorine limits (& TIN & ammonia if needed for WQS) • May currently be meeting these limits, based on treatment processes; absent limits, use of treatment may be discontinued • State finds this is “reasonable potential”

16. Limits Selection Example

17. WET Requirements • Colorado WQCD Biomonitoring Guidance Document, July 1, 1993 (revised 06/01/02, 09/27/04, 05/01/06) • At application, must submit acute WET test results if: • ≥ 1 MGD design flow • Have/required to have approved pretreatment program • Industrial majors • Other considerations (certain effluent characteristics, TMDLs, facility history/compliance record) • Must submit chronic WET results if: • If stream low flow : effluent design flow < 10:1 and receiving stream is Class 1 aquatic life or Class 2 aquatic life with all appropriate aquatic life numeric standards

18. WET Limits: Acute or Chronic? • Acute conditions apply if: • Chronic IWC ≥9.1*OR • Stream segment is not classified as Class 1 Aquatic Life or Class 2 Aquatic Life use with all of the appropriate aquatic life numeric standards *(same as stream chronic low flow : facility flow ≥10:1) • Chronic conditions apply if: • Chronic IWC ≤9.1**AND • Stream segment is classified as Class 1 Aquatic Life or Class 2 Aquatic Life use with all of the appropriate aquatic life numeric standards **(same as stream chronic low flow : facility flow ≤10:1) Chronic Instream Waste Concentration (IWC) = [Facility Flow (FF)/(Stream Chronic Low Flow (annual) + FF)] X 100%

19. Monitoring or WET Limits? • No monitoring/no limit if no demonstrated WET and no known pollutants of significance • Monitoring if no demonstrated WET, but are some pollutants of significance (or variable effluent quality) • WET monitoring and limits if WET demonstrated or factors that show “reasonable potential” for WET • Limits effective ≤ 3 years for existing facilities; ≤ 90 days for new facilities

20. Acute Conditions • Shall be no LC50 at effluent concentrations ≤ 100% effluent (if no instantaneous mixing is provided)

21. Chronic Conditions • 2 Chronic Lethality WET Limits: • Shall not be any statistically significant difference in toxicity between control & any effluent concentrations ≤ IWC • IC25 (inhibition concentration) shall be ≤ IWC • Both look at full range of toxicity (lethality, growth and reproduction) • If statistically significant difference in lethality (95% confidence) between the control and any effluent conc. ≤ IWC and if lethality IC25 < the IWC, permittee required to follow automatic compliance schedule if the observed toxicity is due to organism lethality • If toxicity due to differences in growth of the fathead minnows or the reproduction of the Ceriodaphnia, no immediate action required • May form the basis for reopening permit and including additional chronic toxicity WET limits or other requirements

22. WET Testing Relief • After 1 year of testing during which no toxicity demonstrated, permittee may request relief on future monitoring • Division’s call • Requires permit modification • For acute testing, may request use of 6 organisms allowed by EPA • For chronic testing, only allowable species are Ceriodaphnia dubia and fathead minnows

23. Basic Pretreatment Requirements • Minor POTWs • Responsibility to protect POTW • General discharge prohibitions • Industrial categorical limitations • Notification requirements (new introductions) • Reopener • State/EPA direct enforcement ability for IUs • Majors Without Pretreatment Programs • Same as above PLUS • Annual sampling for metals/cyanide/phenols

24. Basic Pretreatment Requirements • DWTWs With Approved Pretreatment Programs • Pretreatment influent/effluent monitoring (including toxics screen & biosolids screen) • Operate full pretreatment program (including legal authorities, general prohibitions/local/categorical limits, IU permits/control mechanisms, sampling, inspections, enforcement program, ERP, staffing/financial support, SIU violators annual publication, IU updates, spill/slug control evaluations, RCRA notification responsibilities, and others identified on last slide)

25. Recent/Upcoming Changes & Potential Effects on Permits • Basic Standards Changes • Ammonia • Temperature criteria • Metals criteria • New effluent-dependent/effluent-dominated definitions • Decoupling & antidegradation requirements • Others • Nutrient standards • Growth related sub-lethal WET

26. Ammonia Criteria • Adopted EPA’s 1999 Ammonia Update • For cold water (salmonids present, ELSP all year), generally relaxed standards • For warm water (salmonids absent, ELSP April 1 – August 31), generally more stringent standards • Hearing 03/07 to consider changing standards for all basins • SOBP also discusses adoption of temporary modifications to provide reasonable & adequate time for municipalities to address planning, financing, & construction

27. Temperature Criteria • WQCC adopted new temperature criteria in 2005, effective 12/31/07 • Rulemaking hearing scheduled for 01/08/07 to reconsider temperature criteria based on input from panel of experts

28. Metals Criteria • Metals criteria (table value standards) changed for: • Aluminum • Antimony • Arsenic • Cadmium • Uranium • Zinc • On a site-specific basis, could significantly affect future permit limits for: • Arsenic • Cadmium • Uranium • Zinc

29. New Definitions • Effluent-dependent stream: would be ephemeral without the presence of wastewater effluent, but has continuous or periodic flows for all or a portion of its reach as the result of the discharge • Effluent-dominated stream: would be intermittent or perennial without the presence of wastewater effluent whose flow for the majority of the time is primarily attributable to the discharge of treated water (i.e., > 50% of the flow consists of treated wastewater for at least 183 days annually, for 8 out of 10 years)

30. Decoupling • Automatic decoupling of Cold Water Aquatic Life Class 2 and Use Protected • Opportunity to decouple Warm Water Aquatic Life Class 2 and Use Protected • Couples Effluent-Dominated and Effluent-Dependent with Use Protected

31. Permitting Process(What do I get to see when?) • May request pre-application conference/ site inspection • 60 days to apply once notified • 45 days for completeness determination • Pre-public notice draft review (WQA, Rationale) • Public notice of draft permit • 30 day comment period (unless public meeting)

32. Basics • Permit required for any point source discharge of pollutants to a water of the State (or U.S.) • “State waters” = any and all surface and subsurface waters which are contained in or flow through this State; does not include waters in sewage systems, waters in treatment works of disposal systems, waters in potable water distribution systems, and all water withdrawn for use until use and treatment have been completed

33. State Exemptions • “Activities such as diversion, carriage, and exchange of water from or into streams, lakes, reservoirs, or conveyance structures or storage of water in or release of water from lakes, reservoirs, or conveyance structures, in the exercise of water rights shall not be considered to be point source discharges of pollution” • Nothing, however, exempts any point source discharger which generates wastewater effluent from the requirement of obtaining a permit. • Cannot require permit for flow or return flow of irrigation water (except as required by Federal or State Acts)

34. Discharges to Ditches/Other Man-Made Conveyance Structures • Permit for discharge to ditch shall include provisions to: • Protect beneficial uses made of water (decreed or in existence prior to inception) • Comply with any applicable WQS that may be affected by discharge (including downstream)

35. Recent Court Decisions/Rules • South Florida Water Management District v. Miccosukee Tribe of Indians et al. (March 23, 2004 U.S. Supreme Court Decision) • Agency Interpretation on Applicability of Section 402 to Water Transfers (August 5, 2005 EPA memorandum) • National Pollutant Discharge Elimination System (NPDES) Water Transfers Proposed Rule (June 7, 2005 Federal Register Notice)

36. Thank You!Katie Fendel, P.E.Project ManagerLeonard Rice Engineers, Inc.