House of Representatives

HB 2426

environment; NPDES program

Sponsors: Rep. Huffman, Blendu, Graf et al

DPA S/E	Committee on Environment
DPA S/E	Committee on Counties and Municipalities
X	Caucus and COW
	As Passed the House

Proposed strike-everything amendment (Environment Committee dated 02/09/01 at 2:30 PM)

HB 2426 adds a new article in Title 49 giving DEQ state primacy for the National Pollutant Discharge Elimination System (NPDES).

History

NPDES permits were established under the federal Clean Water Act (CWA). EPA requires that all point sources that directly discharge pollutants to waters in the U.S. apply for a NPDES permit. NPDES permitting, compliance and enforcement decisions within Arizona are currently made in the EPA regional office. Currently, most states have primacy for the NPDES program. DEQ must demonstrate it has appropriate statutory authority and craft a Memorandum of Understanding with EPA to assume primacy in Arizona. The federal statutory requirements are outlined in section 402 (b) of CWA. The state executive budget request includes $472,400 and 9 FTE in FY 2002, and an associated one-time decrease of ($39,900) in FY 2003 to enable DEQ to acquire primacy.

Provisions

AZPDES (Arizona Pollutant Discharge Elimination Program)

· The director of DEQ shall adopt rules to establish an AZPDES program that is consistent, but not more stringent than NPDES and the requirements of sections 402 (b) (state permit programs) and 402 (p) (municipal and industrial stormwater discharges) of the CWA. The program shall include requirements consistent with section 307(b) (toxic and pretreatment effluent standards) and requirements for the control of discharges consistent with sections 318 (aquaculture) and 405 (a) (disposal and use of sewage sludge). (ARS 49-255.01 B.)

· The rules adopted by the director shall provide for (ARS 49-255.01 C.):

a) Issuing, authorizing, denying, modifying, suspending or revoking permits.

b) The establishment of permit conditions and discharge limitations.

c) Other provisions necessary for maintaining primacy under section 402(b) of CWA.

d) Enforcement as authorized under state law.

· DEQ shall not charge a fee to issue, deny, modify, suspend or revoke a permit or to process permit applications. (ARS 49-255.01 J.)

· An upset (an exceptional incident in which there is unintentional and temporary noncompliance with technology based permit effluent limitations that are beyond the reasonable control of the permittee) is an affirmative defense to any criminal or civil enforcement action brought for noncompliance with technology based permit effluent limitations if the permittee complies with all the following: (ARS 49-255.01 E)

1. Properly signed logs or other relevant evidence that:

a) An upset occurred and the permittee can identify the cause of the upset.

b) The permitted facility was being properly operated at the time of the upset.

c) DEQ was notified within twenty-four hours of an upset in which discharge exceeded any effluent limitation.

d) Proper remedial measures have been taken to minimize the effects on human health or the environment.

2. In any criminal or civil enforcement action, the permittee seeking to establish the occurrence of an upset has the burden of proof.

· An AZPDES permit cannot be combined with an aquifer protection permit. (ARS 49-255.01 G)

· The decision of the director to issue, deny, modify, suspend or revoke a permit shall take effect on issuance if there were no changes requested to the draft permit. If changes were requested, the decision of the director shall take place thirty days after the decision is served on the permit applicant, unless either of the following applies: (ARS 49-255.01 H)

a) Within the thirty-day period, an appeal is filed with the Water Quality Appeals Board.

b) A later effective date is specified in the decision.

Pretreatment Program

· The director shall adopt rules for a pretreatment program that is consistent with sections 307 (toxic and pretreatment effluent standards), 308 (records and reports, inspections) and 402 of the CWA. (ARS 49-255.02) The rules shall provide for all of the following:

a) Development or modification of local pretreatment programs.

b) Approval by the director of new or modified local pretreatment programs or site specific modifications to pretreatment standards.

c) Oversight of local program implementation.

d) Initiation of enforcement actions by the director against non-compliant publicly owned treatment works (a treatment works that discharges and is owned by the state or a municipality) or industrial users (a source of indirect discharge).

Sludge Program

· The director shall adopt rules for a sludge program consistent with sections 402 and 405 (disposal or use of sewage sludge) of the CWA. The sludge rules adopted by the director shall provide for the regulation of all sewage sludge management practices used in the state. (ARS 49-255.03)

Injunctive relief; civil penalties

· Violations of the AZPDES program are covered by existing state water quality law (ARS 49-262):

· endangerment to public health or the environment: restraining order, injunctions (director initiated actions for actual or potential endangerment to public health or the environment; director, attorney general or county attorney initiated actions for imminent and substantial endangerment)

· civil penalty of not to exceed $25,000 per day per violation

· The following applies in determining the amount of a civil penalty for an AZPDES violation: (ARS 49-262 G)

a) A single operational upset that leads to simultaneous violations of more that one pollutant limitation constitutes a violation.

b) The court shall consider the following factors:

· The seriousness of the violation(s).

· The economic benefit, if any that results from the violation.

· Any history of similar violations.

· Any good faith efforts to comply with the applicable requirements.

· The economic impact of the penalty on the violator.

Water Quality Appeals Board (WQAB)

· Members of the WQAB (three members appointed by the governor for 3 year terms) cannot have been employed by persons subject to individual permits or enforcement orders under the state water quality program within 2 years before or 2 years after their appointment to the board. Members from "public" agencies were excluded from that criteria; the bill changes the exclusion to "state" agency employment. (ARS 49-322) The board shall hold a hearing if questions of material fact are at issue in the appeal. (ARS 49-323)

· Notwithstanding the Administrative Procedures Act statute relating to actions on licenses and opportunities for hearing, if an AZPDES permit is appealed, the permit provisions that are specifically identified in the notice of appeal as being contested and those other permit provisions that cannot be severed from the contested provisions are automatically stayed while the appeal is pending. Uncontested permit provisions that are severable from the contested provisions are effective and enforceable thirty days after the director serves notice on an applicant, the WQAB, and any party who commented on the proposed action of the conditions that are uncontested and severable. (ARS 49-324)

Other

· Additional permit information made available to the public under AZPDES includes the frequency, temperature and pH of the discharge, as well as other water quality characteristics required to be reported under the permit. (ARS 49-205 C)

· DEQ is given the authority, upon presentation of credentials, to enter property where records relating to a discharge or records required to be maintained by state water quality laws are kept. Also, DEQ may allow other reasonable methods to collect samples to determine the absence or presence and nature of discharges. (ARS 49-203 B)

Session Law

· Beginning on the date of delegation from EPA to DEQ, DEQ shall process all requests to modify or renew an existing NPDES permit or issue a new permit. If the application was submitted to EPA before the delegation authority has been issued, the applicant may choose to continue the application with EPA or DEQ. (section 11)

· DEQ shall provide at least thirty days for written public comment before submitting the memorandum of understanding to EPA. GRCC shall hold a hearing to evaluate whether the memorandum is consistent with legislative intent and DEQ's statutory authority. (section 12)

· If DEQ is delegated primacy to administer NPDES, the committee of reference shall hold at least one public hearing within five years of the date of delegation to evaluate the effectiveness of the program, whether it is being implemented in a manner consistent with legislative intent and recommend any necessary changes to improve the program. (section 13)

The strike-everything amendment to HB 2426 was adopted in the Environment committee with the following additional amendment:

· The director may adopt: (1) federal rules by incorporation by reference or (2) rules that reflect local environmental conditions as long as they are consistent with and no more stringent than the CWA and this act.

· The director shall allow for modifications and variances as prescribed by CWA in establishing permit conditions and discharge limitations.

· The committee of reference may request the following information from DEQ for its evaluation:

a) The number of permits issued and the average time to process a permit.

b) The cost of issuing a permit.

c) The number of permit appeals and the disposition.

d) The number of permits that were assumed by EPA and the reasons for that assumption.

e) The number of enforcement actions taken by DEQ or EPA and the resolution of those enforcement actions.

Proposed strike-everything amendment (Counties & Municipalities Committee dated 03/02/01 at 2:30 PM)

HB 2426 adds a new article (3.1) in Title 49 giving DEQ state primacy for the National Pollutant Discharge Elimination System (NPDES). The legislative intent statement contains the following: "This act shall be interpreted and applied in a manner consistent with but not more stringent than the Clean Water Act." (session law section 17)

History

NPDES permits were established under the federal Clean Water Act (CWA). EPA requires that all point sources that directly discharge pollutants to waters in the U.S. apply for a NPDES permit. NPDES permitting, compliance and enforcement decisions within Arizona are currently made in the EPA regional office. Currently, most states have primacy for the NPDES program. DEQ must demonstrate it has appropriate statutory authority and craft a Memorandum of Agreement with EPA to assume primacy in Arizona. The federal statutory requirements are outlined in section 402 (b) of CWA. The state executive budget request includes $472,400 and 9 FTE in FY 2002, and an associated one-time decrease of ($39,900) in FY 2003 to enable DEQ to acquire primacy.

Provisions

AZPDES (Arizona Pollutant Discharge Elimination Program)

· The director of DEQ shall adopt rules to establish an AZPDES program that is consistent with the requirements of sections 402 (b) (state permit programs) and 402 (p) (municipal and industrial stormwater discharges) of the CWA. The program shall include requirements to ensure compliance with section 307(b) (toxic and pretreatment effluent standards) and requirements for the control of discharges consistent with sections 318 (aquaculture) and 405 (a) (disposal and use of sewage sludge). (ARS 49-255.01 B.)

· The rules adopted by the director shall provide for (ARS 49-255.01 C.):

e) Issuing, authorizing, denying, modifying, suspending or revoking permits.

f) The establishment of permit conditions and discharge limitations.

g) Other provisions necessary for maintaining primacy under section 402(b) of CWA.

h) Modifications and variances as allowed by the CWA.

· The director may adopt: (1.) federal rules by incorporation by reference or (2) rules that reflect local environmental conditions as long as they are consistent with and no more stringent than the CWA and this act. (ARS 49-255.01 B.)

· DEQ shall not charge a fee to issue, deny, modify, suspend or revoke a permit or to process permit applications. (ARS 49-255.01 J.)

· An upset (an exceptional incident in which there is unintentional and temporary noncompliance with technology based permit discharge limitations because of factors that are beyond the reasonable control of the permittee and does not include noncompliance to the extent it is caused by operational error, improper facility design or inadequate facilities, ARS 49-255 (8)) is an affirmative defense to any criminal, civil or administrative enforcement action brought for noncompliance with technology based permit discharge limitations if the permittee complies with all the following: (ARS 49-255.01 E)

3. Properly signed logs or other relevant evidence that:

e) An upset occurred and the permittee can identify the cause of the upset.

f) The permitted facility was being properly operated at the time of the upset.

g) DEQ was notified within twenty-four hours of an upset in which discharge exceeded any discharge limitation.

h) Proper remedial measures have been taken to minimize the effects on human health or the environment.

4. In any criminal, civil or administrative enforcement action, the permittee seeking to establish the occurrence of an upset has the burden of proof by a preponderance of evidence.

· An AZPDES permit cannot be combined with an aquifer protection permit. (ARS 49-255.01 G)

· The decision of the director to issue or modify a permit shall take effect on issuance if there were no changes requested to the draft permit unless a later date is specified in the decision. In all other cases, the decision of the director to issue, modify, deny, suspend or revoke shall take effect thirty days after the decision is served on the permit applicant, unless either of the following applies: (ARS 49-255.01 H)

c) Within the thirty-day period, an appeal is filed with the Water Quality Appeals Board.

d) A later effective date is specified in the decision.

· Compliance with an AZPDES permit shall be deemed compliance with:

1. All requirements of CWA section 301 (effluent limitations), 302 (water quality related effluent limitations), 306 (national standards of performance), and 307 (toxic and pretreatment effluent standards), except for any standard under section 307 that is injurious to human health.

2. Limitations for pollutants in state aquifer water quality standards and water quality standards for navigable waters provided the discharge is specifically limited in an AZPDES permit or the pollutant was specifically identified as present or potentially present in facility discharges during the permit application process. (ARS 49-255.01 F.)

Pretreatment Program (ARS 49-255.02)

· The director shall adopt rules for a pretreatment program that is consistent with section 307 (toxic and pretreatment effluent standards), 308 (records and reports, inspections) and 402 of the CWA. The rules shall provide for all of the following:

e) Development or modification of local pretreatment programs.

f) Approval by the director of new or modified local pretreatment programs or site specific modifications to pretreatment standards.

g) Oversight of local program implementation.

d) Initiation of enforcement actions by the director against non compliant publicly (state or municipal) owned treatment works (municipal sewage or industrial wastes of a liquid nature) or industrial users (definitions in ARS 49-255)

Sludge Program (ARS 49-255.03)

· The director shall adopt rules for a sludge program consistent with sections 402 and 405 (disposal or use of sewage sludge) of the CWA. The sludge rules adopted by the director shall provide for the regulation of all sewage sludge use or disposal practices used in the state. (Sewage sludge is solid and/or liquid residue and includes materials removed in the treatment processes; it does not include ash from a sludge incinerator, ARS 49-255 (6))

· Criminal violations (each day is a separate offense) (ARS 49-263.02)

--Application in violation of rules- class 1 misdemeanor (1M) for criminal negligence

--Violation of standards or limitations- 1M for criminal negligence

--Violation of permit conditions or other authorizations- 1M for criminal negligence

-- Fail to comply with filing or reporting requirements- 1M for criminal negligence

-- Alter, modify or destroy monitoring devices- 1M for criminal negligence; class 5 felony for knowing

-- Fail to install, maintain, operate or repair monitoring devices- 1M for criminal negligence; class 5 felony for knowing

Injunctive relief; civil penalties

· The DEQ director may issue compliance orders for violations of AZPDES statutory, regulatory or permit conditions/discharge limitations, or, if a person is creating an imminent and substantial endangerment to the public health or environment (ARS 49-261)

· Violations of the AZPDES program are covered by existing state water quality law (ARS 49-262):

· endangerment to public health or the environment: restraining order, injunctions (director initiated actions for actual or potential endangerment to public health or the environment; director, attorney general or county attorney initiated actions for imminent and substantial endangerment)

· civil penalty of not to exceed $25,000 per day per violation

· The following applies to civil penalties:

c) AZPDES: A single operational upset (not limited to the statutory definition) that leads to simultaneous violations of more that one pollutant limitation constitutes a single violation. (ARS 49-262 H.)

d) The court shall consider the following factors for a violation of an APP or AZPDES (ARS 49-262 G.):

· The seriousness of the violation(s).

· The economic benefit, if any that results from the violation.

· Any history of similar violations.

· Any good faith efforts to comply with the applicable requirements.

· The economic impact of the penalty on the violator.

· The extent to which the violation was caused by a third party.

· If a permittee holds an APP and AZPDES and violates a similar provision in both permits simultaneously, the agency cannot recover penalties for violations of both permits based on the same act (ARS 49-262 I.)

· AZPDES criminal violations (ARS 49-263.01); each day of violation constitutes a separate offense:

Class 6 felony for reckless/class 5 felony for knowing:

- discharge without a permit

- fail to monitor, sample or report discharges

- violate permit discharge limitations or standards

- render monitoring devices or sampling methods inaccurate

- fail to install, maintain and operate monitoring devices

- bypass waste streams from treatment works resulting in an unpermitted discharge

- violate compliance orders

Class 1 misdemeanor for criminal negligence:

- violate permit conditions except those listed above

- violate standards, limits, filing or reporting requirements except those listed above

Class 2 felony for knowingly or recklessly:

- manifests extreme indifference for human life in performing an act prohibited above

Water Quality Appeals Board (WQAB)

· Members of the WQAB (three members appointed by the governor for 3 year terms) cannot have been employed by persons subject to individual permits or enforcement orders under the state water quality program within 2 years before or 2 years after their appointment to the board. Members from "public" agencies were excluded from that criteria; the bill changes the exclusion to "state" agency employment. (ARS 49-322) The board shall hold a hearing if questions of material fact are at issue in the appeal. (ARS 49-323)

· Notwithstanding the Administrative Procedures Act statute relating to actions on licenses and opportunities for hearing, if an AZPDES permit is appealed, the permit provisions that are specifically identified in the notice of appeal as being contested and those other permit provisions that cannot be severed from the contested provisions are automatically stayed while the appeal is pending. Uncontested permit provisions that are severable from the contested provisions are effective and enforceable thirty days after the director serves notice on an applicant, the WQAB, and any party who commented on the proposed action of the conditions that are uncontested and severable. (ARS 49-324)

Other

· Additional permit information made available to the public under AZPDES includes the frequency, temperature and pH of the discharge, as well as other water quality characteristics required to be reported under the permit. (ARS 49-205 C)

· DEQ is given the authority, upon presentation of credentials, to enter property where records relating to a discharge or records required to be maintained by state water quality laws are kept. (ARS 49-203 B)

· Any permit condition concerning threatened or endangered species shall be limited to those required by the Endangered Species Act. (ARS 49-255.01 K.)

Session Law

· Beginning on the date of approval by EPA, DEQ shall process all requests to modify or renew an existing NPDES permit or issue a new AZPDES. If the application was submitted to EPA before the approval, the applicant may choose to continue the application with EPA or DEQ. (section 13)

· DEQ shall provide at least thirty days for written public comment before submitting the memorandum of agreement to EPA. GRCC shall hold a hearing to evaluate whether the memorandum is consistent with legislative intent and DEQ's statutory authority. (section 14)

· If EPA approves AZPDES, the committee of reference shall hold at least one public hearing within five years of the date of that approval to evaluate the effectiveness of the program, whether it is being implemented in a manner consistent with legislative intent and recommend any necessary changes to improve the program. (section 15) The committee of reference may request the following information from DEQ for the evaluation:

1. Number of permits issued and the average time to process

2. Cost of issuing permits

3. Number of permit appeals and their disposition

4. Number of permits assumed by EPA and the reasons for the assumption

5. Number of enforcement actions taken by DEQ or EPA and their resolution

· Contains other technical and conforming changes.

The strike-everything amendment was adopted in the Counties & Municipalities Committee.

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45th Legislature

First Regular Session 11 March 12, 2001

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