Code of Massachusetts Regulations
314 CMR - DIVISION OF WATER POLLUTION CONTROL
Title 314 CMR 3.00 - Surface Water Discharge Permit Program
Section 3.11 - Permit Conditions

Universal Citation: 314 MA Code of Regs 314.3

Current through Register 1531, September 27, 2024

(1) Standard Conditions. The conditions in 314 CMR 3.19 apply to every permit issued under 314 CMR 3.00, whether or not expressly incorporated into the permit.

(2) Special Conditions.

(a) In addition to conditions applicable to all permits [ 314 CMR 3.11(1) and 3.19 ], the Department shall establish special conditions, as required on a case-by-case basis, to provide for and assure compliance with all applicable requirements of the Massachusetts Clean Waters Act, M.G.L. c. 21, §§ 26 through 53 and the Clean Water Act, 33 U.S.C. 1251 et seq, and the NPDES regulations at 40 CFR Part 122.

The Department's authority under 314 CMR 3.11(2) includes, but is not limited to, establishing special conditions in an individual or general permit in the following areas:

1. effluent and/or pollutant loading limitations and standards, including as applied to nutrients;

2. conditions to ensure compliance with any TMDL established by the Department for receiving waters;

3. limitations on the amount of flow authorized to be discharged under the permit;

4. the development, implementation and enforcement of BMPs and other control measures;

5. monitoring requirements and other means of verifying the compliance of the discharge with a permit;

6. requirements to conduct pollutant loading and/or water quality analyses, comprehensive wastewater management planning, or other technical evaluations during the term of one or more permits;

7. financial security requirements to fund the operation, maintenance, and the immediate and/or long-term repair or replacement of permitted facilities or activities;

8. the duration of the permit;

9. recordkeeping and reporting requirements;

10. where applicable, schedules of compliance; and

11. in any given calendar year where the average annual flow of a permitted facility exceeds 80% of the facility's average design flow, that facility shall submit a report to the Department describing what steps the permittee will take in order to remain in compliance with the limitations and conditions in its permit, including in particular, limitations on the amount of flow authorized to be discharged under the permit.

(b) In establishing effluent limitations, the Department shall apply the more stringent of the following:
1. Water quality based effluent limitations under 314 CMR 3.11(3) and (7); or

2. Technology based effluent limitations under 314 CMR 3.11(4), (5), (6) and (7).

(3) Water quality based effluent limitations. As a minimum, all permits shall contain limitations which are adequate to assure the attainment and maintenance of the water quality standards of the receiving waters as assigned in the Massachusetts Surface Water Quality Standards, 314 CMR 4.00. In establishing water quality based effluent limitations, the Department shall consider natural background conditions, existing discharges, the protection of existing downstream uses, and the attainment and maintenance of beneficial uses in downstream waters. Toward this end, the Department may provide a reasonable margin of safety to account for any lack of knowledge concerning the relationship between the pollutants being discharged and their impact on the quality of the receiving waters. Water quality based limits may be established on a seasonal basis at the discretion of the Department.

(4) Technology based effluent limitations. Limitations more stringent than those necessary to satisfy water quality standards shall be applied in accordance with the applicable provisions of 314 CMR 3.11(5) and (6).

(5) Technology based effluent limitations for POTWs. Except as provided in 314 CMR 3.11(12)(a), technology based limitations for discharges from POTWs shall be the more stringent of the criteria in 314 CMR 3.11(5)(a) and (b), or, if applicable, based on the criteria in 314 CMR 3.11(5)(c):

(a) Secondary treatment, defined as that process or group of process capable of removing from untreated wastewater a minimum of 85% of the five day biochemical oxygen demand and suspended solids, and virtually all floating and settleable solids, followed by disinfection. Disinfection of treated effluent may be discontinued at the discretion of the Department. Limitations defining secondary treatment may be expressed in terms of concentration as well as mass.

(b) Applicable limitations and standards promulgated by EPA pursuant to 33 U.S.C. 1251 § 304(d)(1) to comply with the requirements of 33 U.S.C. 1251 § 301(b)(1).

(c) The Department may establish technology based effluent limitations for nutrients such as nitrogen and phosphorus based on relevant EPA technology guidelines or a Department determination of the highest and best practicable treatment technology necessary to ensure compliance with 314 CMR 4.04(5) and 4.05(5)(c).

(6) Technology based effluent limitations for non-POTWs. Except as provided in 314 CMR 3.11(12)(b), technology based limitations for discharges from non-POTWs shall be the most stringent of the criteria in 314 CMR 3.11(6)(a) and (b), or, if applicable, based on the criteria in 314 CMR 3.11(6)(c):

(a) Applicable limitations and standards promulgated by EPA pursuant to 33 U.S.C. 1251 §§ 304, 306, 307, 316, 318, and 405 to comply with the requirements of 33 U.S.C. 1251 § 301.

(b) Limitations developed on a case-by-case basis which, in the Department's best professional judgment, define the appropriate level of control set forth in the The Clean Water Act, 33 U.S.C. 1251 et seq, for the category of discharger or class of pollutants discharged. In defining the appropriate level of control hereunder, the Department will consider any draft or promulgated EPA effluent limitation guidelines, draft or proposed EPA development documents or guidance, any available state guidance, or any technology or process which has been demonstrated to be achievable in the experience of the Department for the class or category of discharger.

(c) The Department may establish technology based effluent limitations for non-POTWs that are not classified as industrial by EPA or the Department for nutrients such as nitrogen and phosphorus based on relevant EPA technology guidelines or a Department determination of the highest and best practicable treatment technology necessary to ensure compliance with 314 CMR 4.04(5) and 4.05(5)(c).

(d) In the case of reissued permits, limitations which are at least as stringent as those of the previous permit, unless the effluent limitations imposed by the previously issued permit are more stringent than subsequently promulgated effluent guidelines and one or more of the following conditions applies:
1. The discharger has installed the treatment facilities required to meet the effluent limitations in the previous permit and has properly operated and maintained the facilities but has nevertheless been unable to achieve the previous effluent limitations. In this case the limitations in the renewed or reissued permit may reflect the level of pollutant control actually achieved (but shall not be less stringent than required by the subsequently promulgated effluent limitation guidelines).

2. The circumstances on which the previous permit was based have materially and substantially changed since the time the permit was issued and would constitute cause for permit modification or revocation and reissuance under 314 CMR 3.13.

(7) Calculating Permit Conditions.

(a) The Department may express effluent limitations and/or other pollutant loading limitations established under 314 CMR 3.11 by means of any combination of physical, chemical, or biological terms (including bioassay), control measures, BMPs, and other actions, which, in the judgment of the Department, properly define the level of control applicable to the discharge. Pollutants may be limited directly or through limitations on other indicator pollutants which, in the judgment of the Department, will provide the required level of control.

(b) In order to ensure that dilution will not be used as a substitute for treatment, limitations will be based on mass wherever feasible. Pollutants limited in terms of mass may be limited additionally in terms of other units, and the permit shall require the permittee to comply with both limitations.

(c) Effluent limitations may be imposed on internal waste streams before mixing with other waste streams or cooling water streams when effluent limitations imposed at the point of discharge are impractical or infeasible. Limits on internal waste streams will be imposed only when the fact sheet under 314 CMR 2.05 sets forth the exceptional circumstances which make such limitations necessary, such as when the final discharge point is inaccessible, the wastes at the point of discharge are so diluted as to make monitoring impractical, or the interferences among pollutants at the point of discharge would make detection or analysis impractical.

(8) Duration of Permits. Permits shall be effective for a fixed term not to exceed five years. The Department may issue any permit for a lesser duration.

(9) Monitoring, Recordkeeping and Reporting Requirements.

(a) Each permit shall contain monitoring requirements to assure compliance with permit limitations and conditions. The type, intervals, and frequency of monitoring shall be sufficient to yield data which are representative of the monitored activity including, when appropriate, continuous monitoring. Monitoring requirements may include the mass (or other measurement specified in the permit) for each pollutant limited in the permit, the volume of effluent discharged from each out fall, and other measurements as appropriate (including biological monitoring methods when appropriate). Monitoring shall be conducted in accordance with the provisions of 314 CMR 3.19(4) and (10). Permittees shall maintain records of all monitoring activities in accordance with 314 CMR 3.19(11).

(b) Each permit shall contain requirements to report monitoring results with a frequency dependent on the nature and effect of the discharge, but in no case less than once a year. Pollutants for which the permittee must report violations of maximum daily discharge limitations under 314 CMR 3.19(20)(e) shall be listed in the permit.

(10) Schedule of Compliance.

(a) A permit may, when appropriate, specify a schedule leading to compliance with the Massachusetts Clean Waters Act, M.G.L. c. 21, §§ 26 through 53 and The Clean Water Act, 33 U.S.C. 1251 et seq, and the NPDES regulations at 40 CFR Part 122. Any such schedule shall require compliance as soon as possible, but not later than the applicable statutory deadline under 33 U.S.C. 1251 § 301(b), unless modified in accordance with the provisions of 33 U.S.C. 1251 § 301(i) or (k).

Each schedule shall set forth dates to accomplish interim requirements leading toward compliance. Beginning with the date of permit issuance, the time between interim dates shall not exceed one year. If the time necessary for completion of any interim requirement is more than one year and is not readily divisible into stages for completion, the permit shall specify interim dates for the submission of reports of progress toward completion of the interim requirements and indicate a projected completion date.

(b) The first permit issued for a new source shall not contain a schedule of compliance. No new source or new or recommencing discharge shall begin operations or discharge prior to installation and operation of all treatment works necessary to comply with the effluent limitations established in the permit.

(11) Other Conditions. In addition to the conditions established under 314 CMR 3.11(1) through (10), a permit may include special conditions as follows:

(a) Any requirements established under a state or other appropriate certification under 33 U.S.C. 1251 § 401.

(b) Requirements for POTWs to comply with pretreatment provisions under 314 CMR 12.00 including:
1. The identification, in terms of character and volume of pollutants, of any significant indirect discharge into the POTW subject to the prohibitions and standards of 314 CMR 12.08;

2. The establishment of a POTW pretreatment program in accordance with 314 CMR 12.10, including any necessary schedule of compliance for adoption of the program;

3. The incorporation of an approved POTW pretreatment program in the permit; and

4. The submittal by a POTW of the reports required by 314 CMR 12.10(3).

(c) Requirements to control or abate the discharge of pollutants through the application of best management practices when:
1. Authorized under of the Clean Water Act, 33 U.S.C. 1251 et seq, § 304(e) for the control of toxic pollutants and hazardous substances from ancillary industrial activities;

2. Numerical effluent limitations are infeasible; or

3. The practices are reasonably necessary to achieve effluent limitations and standards or to carry out the purposes and intent of The Massachusetts Clean Waters Act, M.G.L. c. 21, §§ 26 through 53 or The Clean Water Act, 33 U.S.C. 1251 et seq.

(d) Requirements applicable to the management of hazardous wastes for treatment works subject to the provisions of 314 CMR 8.00.

(e) Requirements to monitor, record and report the quality of receiving waters.

(f) Requirements to prepare and submit monthly operating reports under 314 CMR 12.07.

(g) Requirements imposed in grants made by EPA or the Department to POTWs under 33 U.S.C. 1251 §§ 201 and 204 or M.G.L. c. 21 §§ 30A and 33 which are reasonably necessary for the achievement of effluent limitations established pursuant to 314 CMR 3.11(2)(b).

(h) Requirements governing the disposal of sludge from treatment works.

(i) A requirement to comply with applicable regulations of the United States Coast Guard at 33 CFR Part 159, when a permit is issued to a facility that may operate at certain times as a means of transportation over water.

(j) Requirements that the Secretary of the Army considers necessary to ensure that navigation and anchorage will not be substantially impaired.

(k) Requirements for the periodic submission of reports regarding sewer connections authorized for the discharge of fewer than 15,000 gallons per day of sewage to a treatment works.

(12) Determination of Variance. The Department shall evaluate variances from technology based effluent limitations as follows:

(a) For POTWs:
1. If a POTW discharging to coastal waters obtains a waiver from secondary treatment from EPA under 33 U.S.C. 1251 § 301(h), the permit shall contain, at a minimum, effluent limitations based on primary treatment with disinfection.

2. Treatment works which receive flows from combined sewers may not be capable of meeting the percentage removal requirements of 314 CMR 3.11(5) during wet weather. For such treatment works, the Department shall decide on a case-by-case basis whether any attainable percentage removal level can be defined, and if so, what that level should be.

3. Concentrations of five day biochemical oxygen demand and suspended solids established under 314 CMR 3.11(5) may be increased where there is a major industrial discharger to the POTW, provided that:
a. The permitted discharge of such pollutants, attributable to the industrial category, would not be greater than that which would be permitted under 33 U.S.C. 1251 § 301(b)(1)(a)(i) or 306 if such industrial category were to discharge directly to waters of the Commonwealth; and

b. The flow or loading of such pollutants introduced by the industrial category exceeds ten percent of the design flow or loading of the publicly owned treatment works. When such an adjustment is made, the values for biochemical oxygen demand or suspended solids shall be adjusted proportionally.

(b) For Other Dischargers:
1. Requests for variances based on the presence of fundamentally different factors from those on which effluent limitations guidelines were based will be reviewed by the Department and forwarded to the Regional Administrator of EPA with a written concurrence, submitted to EPA without a recommendation, or denied. If approved by EPA, the Department may incorporate the variance in a draft permit.

2. In accordance with 33 U.S.C. 1251 § 316(a), thermal discharge effluent limitations may be less stringent than those required by applicable technology based standards and limitations if the discharger demonstrates to the satisfaction of the Department that such effluent limitations are more stringent than necessary to assure the protection and propagation of a balanced, indigenous community of shellfish, fish and wildlife in and on the body of water into which the discharge is made. Alternative effluent limitations may be established for the thermal discharge in accordance with the provisions of 314 CMR 3.12. In no event shall established thermal effluent limitations be less stringent than those necessary to meet the applicable water quality standards under 314 CMR 4.00.

3. Requests for variances for non-conventional pollutants under 33 U.S.C. 1251 § 301(g) will be reviewed by the Department and forwarded to the Regional Administrator of EPA with a written concurrence, submitted to EPA without a recommendation, or denied. If approved by EPA, the Department may incorporate the variance in a draft permit.

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