15A NCAC 02H .1206       WATER QUALITY SPECIAL ORDERS BY CONSENT

(a)  Requests for Water Quality Special Orders by Consent:

(1)           Requests by permittees must be made in triplicate on forms supplied by the Division of Environmental Management along with a nonrefundable four hundred dollars ($400.00) fee and all other required information.

(2)           Requests found to be incomplete will be returned to the permittee with an explanation of deficiencies.

(3)           Requests must be signed as follows:

(A)          in the case of corporations, by a principal executive officer of at least the level of vice-president, or his duly authorized representative, if such representative is responsible for the overall operation of the facility for which the Order is being requested;

(B)          in the case of a partnership, by a general partner and in the case of a limited partnership, by a general partner;

(C)          in the case of a sole proprietorship, by the proprietor;

(D)          in the case of a municipal, state, or other public entity by either a principal executive officer, ranking elected official or other duly authorized employee.

(b)  Evaluation of the requests:

(1)           Requests will not be evaluated unless it is demonstrated by the permittee to the satisfaction of the Director that noncompliance is not due to failure by the permittee to properly operate, manage and maintain the wastewater treatment system and that the existing wastewater treatment system is being operated in such a way as to attain the highest degree of treatment possible under the existing conditions.  The demonstration must also evaluate all reasonably available low-capital-cost interim improvements, even though they may not be directly related to the final treatment option.  This demonstration must be made in the form of a report prepared by an independent consultant (a professional with expertise in wastewater treatment).

(2)           Requests will not be evaluated unless the permittee can demonstrate to the satisfaction of the Director that:

(A)          funds needed to meet the requirements of the proposed order are available or will be available to meet the compliance schedule and any interim effluent limitations; or

(B)          that the permittee can adopt specific alternative steps to achieve compliance where the permittee cannot assure total financing of needed facilities.

(c)  Development of the Special Order:

(1)           The compliance schedule in the order must be sufficiently detailed to insure that the permittee is constantly progressing toward final compliance.  This schedule will normally include, but not be limited to, activities such as submission of plans and specifications, starting of construction, completion of construction and achievement of final compliance.

(2)           The interim effluent limitations must be based on the optimum expected efficiency of the existing treatment system.  In cases of phased construction or expected interim treatment facility improvements, the interim limitations shall reflect these expected improvements.  Likewise, if treatment units must be taken off line due to construction, the interim limitations may be modified during the period of actual outage.

(3)           To insure compliance with all schedules dates and interim effluent limitations, all orders must contain stipulated penalties for violations of specified requirements.  Also a monetary settlement will normally be included in the order to settle previous violations.

(4)           The order must contain a condition that advises the permittee that it is responsible for funding the treatment system improvements and that lack of funds will not be a defense in contesting stipulated penalties.

(d)  Acceptance of additional wastewater into a wastewater treatment system owned or operated by a unit of government, in accordance with G.S. 143-215.67(b).

(1)           Additional flows will only be allowed as part of a consent Order when the following demonstrations can be made:

(A)          New or improved wastewater treatment facilities will be constructed in the near future that will adequately treat the existing and additional waste or the permittee can adopt specific alternative steps to offset the adverse effects of the additional waste.

(B)          The flows are needed to provide minimum reasonable service to identified new residential, commercial and industrial sources or equivalent substitutions for those sources as approved by the Director.

(C)          The nature of the additional flows is such that the waste characteristics do not exceed those generally associated with domestic waste or are pretreated to domestic strengths.  Waste of greater than normal domestic strength may be accepted if the parameter(s) are not those for which interim limitations have been developed and it can be demonstrated to the satisfaction of the Director that the additional waste will not adversely affect the treatment efficiency of the treatment system for any modified parameter or result in the violation of any other permit limitation.

(D)          All new and proposed industrial waste tributary to the system must be controlled using all needed mechanisms including but not limited to adoption and implementation of industrial waste control and pretreatment ordinances.

(E)           The cumulative impacts of wastewater allowed under the order will not result in any significant degradation in the quality of the waters ultimately receiving the wastewater during flow conditions between and including the 7-day, 10-year minimum flow (7Q10) and the average flow.  The division must consider any special or protected waters such as but not limited to, High Quality Waters, Water Supply Waters, Trout Waters and Shellfish Waters in conducting this evaluation.  Significant degradation shall be defined to include but not be limited to the following:

(i)            A predictive decrease in dissolved oxygen of 0.5 mg/l or greater at the point of maximum dissolved oxygen sag.  In cases where existing (prior to adding the requested wastewater) dissolved oxygen conditions are above 3.0 mg/l at or above 7Q10 conditions, the amount of wastewater added will not be allowed to depress oxygen levels below 3.0 mg/l at the corresponding stream flow levels.  No additional wastewater will be allowed if measured or predicted dissolved oxygen levels at any stream flow at or above 7Q10 are less than 3.0 mg/l unless specific approval is granted by the Environmental Management Commission.  In making this decision, the Commission will consider criteria such as but not limited to naturally occurring background dissolved oxygen levels, projected duration of impacts and stream miles impacted.  In cases when adequate models do not exist to allow the prediction of instream dissolved oxygen impacts, no additional wastewater will be allowed into the system; or

(ii)           A predictive increase in the length of the affected segment (that segment in which the predicted dissolved oxygen is less than dissolved oxygen standards) of 0.5 miles or greater; or

(iii)          An increase in coliform bacteria density predicted to exceed applicable water quality standards; or

(iv)          Increases in the coliform density, decreases in dissolved oxygen, or changes in any other water quality parameters which are predicted to result in mortality of fish or other aquatic life, closing of swimming areas or significant impact on other water uses, regardless of compliance with conditions Subparts (d)(1)(E)(i)-(iii) of this Rule;

(v)           The proposed addition of toxic pollutants in quantities not generally associated with domestic wastewater characteristics, unless the acceptance of the additional wastewater can be supported through appropriate analyses acceptable to the Director.

(2)           Approvals of additional wastewater flows may be immediately rescinded by the Director for any schedule or condition violation, or limit violations in two consecutive months, or any other violation he considers sufficiently severe to warrant such action.  In determining violations to be sufficiently severe, the Director will consider factors such as but not limited to the parameter(s) being violated, the magnitude of the violation(s), the projected duration of the violation(s), the waters being impacted or projected to be impacted and the reasons for the violation(s).  In the notification to the permittee that the flow has been rescinded, the Director will identify the factor(s) that made the decision necessary.

 

History Note:        Authority G.S. 143-215.2; 143-215.3(a)(1);

Eff. August 3, 1992.