1、Interim Permitting Manual Navigating NPDES Permit Issues on Impaired WatersRegulatory Analysis and Scientific Affairs PUBLICATION NUMBER 4756 NOVEMBER 2006Interim Permitting Manual Navigating NPDES Permit Issues on Impaired Waters Prepared for API by: Barnes and Thornburg LLP Suite 4400 One North Wa
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12、d should be submitted to the Director of Regulatory Analysis and Scientific Affairs, API, 1220 L Street, NW, Washington, DC 20005. ACKNOWLEDGMENTS THE FOLLOWING PEOPLE ARE RECOGNIZED FOR THEIR CONTRIBUTION OF TIME AND EXPERTISE DURING THIS STUDY AND IN THE PREPARATION OF THIS REPORT: API STAFF CONTA
13、CT Roger Claff, Regulatory Analysis and Scientific Affairs MEMBERS OF THE CLEAN WATER ISSUES TASK FORCE John Cruze, Chairman, ConocoPhillips Peter Dahling, Vice Chairman, Chevron Corporation Jeffrey Adams, BP America Incorporated Louis Brzuzy, Shell Oil Products US Mickey Carter, ConocoPhillips Davi
14、d Daly, Marathon Karen Christensen, ExxonMobil Biomedical Sciences Gary Kizior, BP Rees Madsen, BP Refining Shared Services Gary Morris, ExxonMobil David Pierce, Chevron Corporation Energy Technology Company Ileana Rhodes, Shell Global Solutions US Lynn Sanguedolce, ExxonMobil Refining and Supply Co
15、mpany Timothy Weisenberger, BP Jenny Yang, Marathon Oil Company Table of Contents Abstract 1 Executive Summary 1 PART 1: STANDARDS AND LISTING . 1 Water Quality Standards. 2 Designated Uses . 2 Existing Uses . 4 Use Attainability Analyses (UAAs) 4 Criteria to Support Designated Uses 6 The Listing Pr
16、ocess. 10 Assessing Water Quality. 10 Identifying Impaired Waters 11 Integrated Water Quality Monitoring and Assessment Reports 15 EPA Approval 15 TMDL Development 15 Listing Issues . 16 Narrative Listings . 16 Fish Consumption Advisories . 17 “Expected To Meet”. 17 Challenging a Listing Determinati
17、on. 18 PART 2: PERMITTING . 18 The Permitting Process. 18 Water Quality-Based Effluent Limitations. 19 Fact Sheets 19 Permitting Issues . 21 Timing. 21 Watershed Permitting Approach. 22 Verification of Impairment Determination . 23 Other Controls 23 Reasonable Potential Calculations. 23 When Reducti
18、ons in Your Discharge Are Required 24 Antidegradation Issues on Impaired Waters 28 Backsliding (and Antidegradation) Issues 30 Stormwater Permits. 32 Relief from Permit Limits . 32 Variances . 32 Site-Specific Criteria 33 Use Attainability Analyses (UAAs) 33 Page 1 Abstract Many facilities in the pe
19、trochemical industry discharge to impaired waters, or waters not meeting water quality standards. These facilities confront difficult issues when obtaining wastewater discharge permits during the “interim” periodbefore a total maximum daily load (TMDL) is developedincluding significantly stricter ef
20、fluent limitations, limits on facility modification or expansion, and even discharge prohibitions. This manual will assist affected facilities as they face these and other interim permitting issues. This manual is intended for use by plant and corporate compliance and permitting staff as they negoti
21、ate the terms of wastewater discharge permits under the National Pollutant Discharge Elimination System (NPDES) program. However, this manual is not intended to provide legal advice. Users should consult their own legal counsel regarding compliance with appropriate laws and regulations. Executive Su
22、mmary The first part of this manual will discuss water quality standards and the listing process, in order to provide a basic understanding of how a water becomes labeled as “impaired.” Water quality standards, which serve as the basis for comparison to actual water quality, include the designated u
23、ses for all waters, and the narrative and numeric water quality criteria necessary to support those uses. This manual addresses many water quality standards issues that facilities may encounter, including existing uses, use attainability analyses (UAAs) to revise designated uses, fish consumption ad
24、visories, whole effluent toxicity (WET) criteria, and sediment criteria. In addition, the first part will describe the listing process, through which impairment determinations are made, including state listing methodologies, assessment of waters, identification of impaired waters, and submission of
25、reports to the U.S. Environmental Protection Agency (EPA) for approval. The manual will provide guidance on a number of listing issues, including listings due to violations of narrative criteria and fish consumption advisories, delisting, listing waters that are impaired but do not need a TMDL becau
26、se they are expected to meet standards through other means, and challenging an erroneous listing determination. The second part of this manual will discuss permitting discharges to impaired waters during the interim period before TMDLs are developed. The manual will describe the development of water
27、 quality-based effluent limitations on impaired waters, and will also discuss a number of issues for affected facilities to consider during the permitting process, including timing (when the permit should be issued), watershed permitting, verifying the impairment determination before the permit is i
28、ssued, other controls available to bring the water into attainment, reasonable potential calculations, voluntary reduction measures, non-numeric effluent limitations, and calculating numeric effluent limitations. The manual will also briefly discuss antidegradation and backsliding issues, as well as
29、 stormwater permits. Finally, the manual will discuss some options for obtaining relief from permit limits, including variances, site-specific criteria, and UAAs. PART 1: STANDARDS AND LISTING So youre discharging to an impaired water. What exactly does that mean? Impaired waters are defined in comp
30、arison to water quality standardsthat is, waters must be listed as impaired if they are not meeting water quality standards. Ultimately, TMDLs must be developed for most impaired waters. Before those TMDLs are developed, however, an impairment determination may result in more stringent permit limits
31、 for your facility. In order to help you understand how those determinations are made, the first part of this manual describes water quality standards generally, how waters are evaluated for compliance with those standards, how waters not in compliance with those standards become listed as impaired,
32、 and how you can deal with issues that arise during the listing process to be sure that your water is accurately listed before your permit is affected. Page 2 Water Quality Standards Water quality standards serve as the foundation of the listing process for impaired waters (also called the 303(d) pr
33、ocess), because waters can only be listed if they are not meeting the states water quality standards. If the standards applicable to your receiving water are not appropriate, the basis of any impairment determination will be flawed. The Clean Water Act (CWA) sets forth the components of water qualit
34、y standards as follows: Such revised or new water quality standard shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses. 1Water quality standards therefore include designated uses and specific water quality criteria
35、 necessary to protect those uses. As discussed in more detail below, criteria may be numeric or narrative (e.g., “no toxics in toxic amounts”). In addition, the states antidegradation policy is considered to be part of its water quality standards.2States are required to adopt water quality standards
36、 applicable to waters within their jurisdictions, and to evaluate those waters to determine whether the standards are being met. As discussed in more detail below, waters that are not meeting standards will be considered impaired, and generally will be scheduled for TMDL development. Designated Uses
37、 The CWA includes goals for the nations water quality: that all waters should provide for the protection and propagation of fish, shellfish, and wildlife, and recreation in and on the water.3These goals are often interpreted as a requirement that all waters be “fishable” and “swimmable.” The CWA spe
38、cifies that states must take the fishable/swimmable goalsand several other usesinto consideration when establishing their water quality standards: Such standards shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of this chapter. Such standa
39、rds shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation.4In addition, the state m
40、ust account for any downstream water quality standards in designating uses for its waters: In designating uses of a water body and the appropriate criteria for those uses, the State shall take into consideration the water quality standards of the downstream waters and shall ensure that its water qua
41、lity standards provide for the attainment and maintenance of the water quality standards of downstream waters.5States may also designate their waters for uses not listed in the statute. The only prohibited uses are waste transport and waste assimilation.6Many states and tribes have adopted other des
42、ignated uses, including for coral reef protection and tribal ceremonies, among other things. Further, states may adopt subcategories of designated uses: 1CWA 303(c)(2)(A); 33 USC 1313(c)(2)(A); see also 40 CFR 131.3(i). 240 CFR 131.6(d). 3CWA 101(a)(2); 33 USC 1251(a)(2). 4CWA 303(c)(2)(A); 33 USC 1
43、313(c)(2)(A). Similar requirements are contained in 40 CFR 131.10(a). 540 CFR 131.10(b). 640 CFR 131.10(a). Page 3 States may adopt sub-categories of a use and set the appropriate criteria to reflect varying needs of such sub-categories of uses, for instance, to differentiate between cold water and
44、warm water fisheries.7Examples of subcategorization also include secondary contact recreation. Finally, states may adopt seasonal uses: States may adopt seasonal uses as an alternative to reclassifying a water body or segment thereof to uses requiring less stringent water quality criteria. If season
45、al uses are adopted, water quality criteria should be adjusted to reflect the seasonal uses, however, such criteria shall not preclude the attainment and maintenance of a more protective use in another season.8Examples of seasonal uses include recreational uses such as full body contact recreation,
46、which may be applicable only during summer months. Waters canand frequently dohave multiple designated uses. For example, a waterbody may be designated for all of the following uses: warm water fishery, primary contact recreation, public water supply, industrial water supply, and agriculture. Be sur
47、e you identify all the uses designated for your receiving water, so you can better understand how your waterbody was assessed. You should be able to obtain this information by looking at the state water statutes or regulations, which are generally available on your state environmental agencys water
48、website. You may also find useful information concerning your states water quality standards on EPAs Water Science web page.9When you are evaluating the uses designated for your receiving water, remember that a water can be designated for a use even if it is not currently attainingor has never attai
49、nedthat particular use: Designated uses are those uses specified in water quality standards for each water body or segment whether or not they are being attained.10Accordingly, many states have assigned a core set of designated uses to all of their waters, regardless of whether all waters are capable of actually attaining those uses. EPA particularly encourages states to designate all waters for the fishable and swimmable uses that serve as a key goal of the CWA: It is the national goal that wherever attainable, an interim goal of water quality which provides for
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