ARIZONA STATE SENATE
Phoenix, Arizona
REVISED
environment; NPDES program
(NOW: environment; water
quality; AZPDES)
Establishes the Arizona Pollutant Discharge Elimination System (AZPDES) program to be administered by the Arizona Department of Environmental Quality (ADEQ) and requires ADEQ to seek state primacy for the federal National Pollutant Discharge Elimination System permit program.
The federal Clean Water Act
(CWA) requires the permitting of all point sources that directly discharge
pollutants to navigable waters of the United States under a National Pollutant
Discharge Elimination System (NPDES) permit.
Entities that discharge, such as mines, utilities and governmental
jurisdictions, must apply for an NPDES permit from the United States
Environmental Protection Agency (EPA).
The EPA currently administers this permitting program in states that do
not have primacy for this permitting program. NPDES permitting, compliance and enforcement decisions in Arizona
are currently made in the EPA Region 9 office based in San Francisco,
California.
All but six states currently
have primacy for the NPDES program (Alaska. Arizona, Idaho, Massachusetts, New
Hampshire and New Mexico). In order for
a state to be granted primacy for the NPDES program, the state must demonstrate
its administering and enforcing agency has appropriate statutory authority. Additionally, the state must enter into a
Memorandum of Understanding with the EPA to assume primacy. The federal
requirements are contained in section 402 (b) of the CWA.
Under the NPDES program, the
EPA does not assess permitting fees on the permittees. H.B. 2426 prohibits ADEQ from charging any
permit fees for the AZPDES program.
ADEQ estimates that implementing and enforcing the AZPDES program as
established by H.B. 2426 will require nine new FTEs and will require funding of
$472,400 in the first year (FY 2001-2002) and $432,500 in year two (FY 2002-2003). There is no funding for the AZPDES program
provided in H.B. 2426, however, full funding for FY 2001-2002 and FY 2002-2003
is currently included in the budget adopted by the Legislature, subject to
enactment (S.B. 1578/H.B. 2631).
AZPDES
(Arizona Pollutant Discharge Elimination Program)
1. Requires the Director of ADEQ to adopt rules to establish an AZPDES program consistent with requirements of the CWA relating to state permit programs and municipal and industrial stormwater discharges. The program shall include requirements to ensure compliance with the toxic and pretreatment effluent standards of the CWA and requirements for the control of discharges consistent with CWA requirements relating to aquaculture and the disposal and use of sewage sludge. (Section 49-255.01)
2. Requires the AZPDES rules, except for procedural rules, to be consistent with, but no more stringent than the requirements of, the CWA and to provide for: (Sections 49-203 and 49-255.01)
3. Allows the Director to adopt either the federal NPDES rules by incorporation by reference, or rules that reflect local environmental conditions as long as they are consistent with and no more stringent than the CWA and this act. (Section 49-255.01)
4. Provides that existing ADEQ rules relating to the NPDES program remain in effect until the AZPDES rules are adopted. (Section 49-255.01)
5. Prohibits ADEQ from charging any fees to issue, deny, modify, suspend or revoke a permit or to process permit applications. (Section 49-255.01)
6. Specifies that an “upset” is an affirmative defense to any criminal, civil or administrative enforcement action brought for noncompliance with technology-based permit discharge limitations if the permittee proves by a preponderance of the evidence that the upset condition occurred and properly signs logs or other relevant evidence that: (Section 49-255.01)
7. Defines an “upset” to mean 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, lack of preventative maintenance or improper care. (Section 49-255)
8. Prohibits an AZPDES permit from being combined with an aquifer protection permit. (Section 49-255.01)
9. Specifies that a decision of the Director to issue or modify a permit takes 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, a permit decision by the Director takes effect 30 days after the decision is served on the permit applicant unless an appeal is filed with the Water Quality Appeals Board within the 30-day period. (Section 49-255.01)
10. Provides that compliance with an AZPDES permit shall be deemed compliance with: (Section 49-255.01)
11. Allows ADEQ to require AZPDES permittees to maintain records and to sample and monitor for discharges or sewage sludge use or disposal. (Section 49-203)
12. Requires additional permit information to be made available to the public under the AZPDES program, including information required in a permit application, the frequency, temperature and pH of the discharge, as well as other water quality characteristics required to be reported under the permit. (Section 49-205)
13. Requires the Director to adopt rules for a pretreatment program that is consistent with the toxic and pretreatment effluent standards and reporting and inspection requirements of the CWA, as well as Section 402 of the CWA. The rules must address:
14. Specifies that the rules must ensure that any industrial user of publicly owned treatment works will comply with the toxic and pretreatment effluent standards and reporting and inspection requirements of the CWA.
15. Requires the Director to adopt rules for a sewage sludge program consistent with the requirements of the CWA relating to the disposal or use of sewage sludge. Defines sewage sludge to mean solid and/or liquid residue and includes materials removed in the treatment processes. It does not include ash from a sludge incinerator. (Sections 49-255 and 49-255.03)
16. Establishes criminal penalties for specified offenses under the sludge program that are to be enforced by the Attorney General. The following criminally negligent violations of the following are subject to a class 1 misdemeanor: (Section 49-263.02)
17. Specifies that each day of violation constitutes a separate offense.
18. Allows the Director of ADEQ to issue compliance orders for violations of AZPDES laws, rules, permit conditions or discharge limitations, or, if a person is creating an imminent and substantial endangerment to the public health or environment.
Injunctive
Relief and Civil Penalties (Section 49-262)
19. Specifies that violations of the AZPDES program are subject to injunctive relief and civil penalties under the existing state water quality law. These violations include violations of program laws, rules, permit requirements, discharge limitations or when a person is creating an actual or potential endangerment to public health or the environment. Civil penalties are not to exceed $25,000 per day per violation.
20. Requires the court to consider the following factors in determining the amount of civil penalties relating to violations of the APP or AZPDES program:
21. Specifies that a single operational upset that leads to simultaneous violations of more than one pollutant limitation in a permit issued or authorized pursuant the rules and standards of the AZPDES program, constitutes a single violation for purposes of any penalty calculation.
22. Stipulates that 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.
23. Establishes the following reckless violations as class 6 felonies under the AZPDES program (“knowing” violations are class 5 felonies):
24. Establishes as class 1 misdemeanors for criminally negligent violations of permit conditions, standards, limits, and filing or reporting requirements.
25. Establishes a class 5 felony for a person who knowingly introduces pollutants or hazardous substances into a sewer system or treatment works if the person knew personal injury or property could be caused or if it causes a violation of a discharge limitation or permit condition.
26. Establishes a class 5 felony for a person who knowingly violates a state, local or federal pretreatment standard or requirement that is required under the AZPDES program.
27. Specifies that a person who knowingly or recklessly manifests extreme indifference for human life in performing acts that are subject to prosecution under the AZPDES program is subject to a class 2 felony. Specifies criteria for determining if a person is subject to prosecution for a class 2 felony and establishes an affirmative defense to prosecution that can be met by a preponderance of the evidence.
28. Specifies that for all criminal violations under the AZPDES program, each day of violation constitutes a separate offense
29. Requires the Attorney General to enforce the criminal violations of the AZPDES program.
30. Modifies the existing limitation on membership in the WQAB that prohibits persons from being members if they who have been employed by entities that are subject to state water quality permits during the two years prior to their appointment. Further restricts the existing exemption from this employment disqualifier for public employees to allow only employees of state agencies to serve on the Board. (Section 49-322)
31. Requires the Board to hold a hearing if questions of material fact are at issue in the appeal. (Section 49-323)
32. Modifies the standard under which a person may appeal a decision by ADEQ under the APP or AZPDES programs to allow appeals by any person who will be adversely affected by the action or may with reasonable probability be adversely affected by the decision. The person must have also exercised the person’s right to comment on the action. (Section 49-323)
33. Provides that notwithstanding the provisions of the Administrative Procedures Act 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. (Section 49-324)
34. Stipulates that any uncontested permit provisions that are severable from the contested provisions are effective and enforceable 30 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. (Section 49-324)
35. Defines terms relating to the AZPDES program. (Section 49-255)
36. Authorizes ADEQ, upon presentation of credentials, to enter property where sludge is disposed or applied where AZPDES-regulated treatments occur and where records relating to a discharge or records required to be maintained by state water quality laws are kept. (Section 49-203)
37. Exempts the AZPDES program from the requirement that new programs established by the Legislature must have an expiration date of not more than ten years. (Section 49-255.01)
38. Limits any permit condition concerning threatened or endangered species to only those conditions required by the federal Endangered Species Act. (Section 49-255.01)
39. Provides that beginning on the date of approval by the EPA, ADEQ shall process all requests to modify or renew an existing NPDES permit or issue a new AZPDES permit. If the application was submitted to EPA before the approval, the applicant may choose to continue the application with the EPA or ADEQ. (Section 13, session law)
40. Requires ADEQ to provide at least 30 days for written public comment before submitting the Memorandum of Agreement to the EPA, which is required as a condition of obtaining state primacy. The Governor’s Regulatory Review Council shall hold a hearing to evaluate whether the memorandum is consistent with legislative intent and ADEQ's statutory authority. (Section 14, session law)
41. Stipulates that if the EPA approves the AZPDES program, the appropriate committee of reference (COR) on environmental matters shall hold at least one public hearing within five years of the date of that approval to evaluate the effectiveness of the program and to evaluate whether it is being implemented in a manner consistent with legislative intent. The COR shall also recommend any necessary changes to improve the program in its report to the Joint Legislative Audit Committee and to ADEQ . (Section 15, session law)
42. Allows the COR to request specified information from ADEQ for the evaluation including information on number of permits issued, the number of permit appeals and their disposition, the number of permits assumed by the EPA and the number of enforcement actions taken by ADEQ or the EPA and their resolution.
43. Specifies that while all EPA regulatory documents under the NPDES program have no force of law in Arizona once the AZPDES program is established, EPA documents may be used by ADEQ and regulated entities in negotiating permit conditions and interpretations of program requirements. (Section 16, session law)
44. Provides a legislative intent clause. (Section 17, session law)
45. Makes other technical and conforming changes.
46. Provides for a general effective date.
Amendments Adopted by NRAE Committee
1.
Authorizes ADEQ to
have access to any property where sewage sludge is being disposed or is being
subject to land application, or any property where any AZPDES regulated
treatment is taking place.
2.
Clarifies that
information required to be submitted for an AZPDES permit must be made
available to the public.
3.
Specifies that rules
adopted by ADEQ for the pretreatment program relating to local pretreatment
programs for publicly owned treatment works, address requirements of the CWA or
state law to prevent the use or disposal of sewage sludge in violation of
Section 405 of the CWA or the state sewage sludge program.
4.
Specifies that for
purposes of calculating a civil penalty for simultaneous violations of more
than one pollutant limitation in a permit resulting from a single operational
upset, this event is determined to be a single violation.
5.
Specifies that the
criminal penalties apply to only those persons subject to the AZPDES program
and the pretreatment program.
6.
Provides criteria to
be used in determining whether a person who is subject to prosecution for a
class 2 felony, knowingly or recklessly manifested an extreme indifference for
human life. Establishes an affirmative
defense for prosecution for a class 2 felony and allows such defense to be
established by a preponderance of the evidence.
7.
Establishes a class 5
felony for a person who knowingly introduces pollutants or hazardous substances
into a sewer system or treatment works if the person knew personal injury or
property could be caused or if it causes a violation of a discharge limitation
or permit condition.
8.
Establishes a class 5
felony for a person who knowingly violates a state, local or federal
pretreatment standard or requirement that is required under the AZPDES program.
9.
Establishes an
additional criminal penalty under the sewage sludge program (class 5 felony for
a knowing violation or class 1 misdemeanor for criminal negligence) for
discharging without an AZPDES permit or appropriate authority under the AZPDES
program.
10.
Modifies the standard
under which a person may appeal a decision by ADEQ under the APP or AZPDES
programs to allow appeals by any person who may with reasonable probability be
adversely affected by the decision. The
person must have also exercised their right to comment on the action.
11.
Makes several
technical and clarifying changes.
House Action Senate Action
ENV 2/13/01 DPA/SE 7-1-1-1 NRAE 4/5/01 DPA 7-1-0-0
CM 3/6/01 DPA/SE 7-2-1-0 APPROP 4/10/01 DP 12-0-0-0
3rd Read 3/19/01 31-25-4-0
Prepared by Senate Staff
April 16, 2001