Current through Register Vol. 46, No. 39, September 25, 2024
(a)
Scope.
(1) This section applies only if there
are no permits, other than a SPDES permit, subject to an adjudicatory
proceeding under subdivision
624.2(a) of this
Title.
(2) Subdivisions (a) through
(o) of this section apply only to SPDES permits where a request for an
adjudicatory proceeding has been made pursuant to sections
621.10,
621.11 or
621.13 and subdivision
624.2(a) of this
Title.
(3) Persons affected by a
SPDES general permit may not file a request for an adjudicatory proceeding
under subdivision
624.2(a) of this
Title or otherwise challenge the conditions of a SPDES general permit in
further department proceedings. Instead, they may challenge the SPDES general
permit by filing an action in court.
(4) This section does not apply for the SPDES
permit issued to a new facility, new source, new discharger, or a recommencing
discharger. Where such SPDES permit is subject to an adjudicatory proceeding
under subdivision
624.2(a) of this
Title, the applicant shall be without a permit and is not authorized to
discharge, pending final agency action on such SPDES
permit.
(b) Whenever used
in this section, the following terms will have the meanings set forth below:
(1) 'Original SPDES permit' means the SPDES
permit that was in effect before the new SPDES permit.
(2) 'New SPDES permit' means a SPDES permit
that is issued pursuant to sections
621.10,
621.11 or
621.13 of this
Title.
(c) Requests for
an adjudicatory proceeding that involve new SPDES permits must:
(1) clearly identify the contested conditions
in the new SPDES permit;
(2)
clearly identify the conditions in the new SPDES permit that are inseverable
from the contested conditions in the new SPDES permit and an explanation of why
those conditions are inseverable from the contested conditions in the new SPDES
permit;
(3) demonstrate, by
providing specific citation to the administrative record, including the
document name and page number, that issues associated with the contested
conditions in the new SPDES permit were raised during the public comment period
(including any public hearing) to the extent required by subparagraph
621.7(b)(6)(iv) of this Title;
(4)
for any issue that was not raised during the public comment period, explain why
the issues associated with the contested conditions(s) in the new SPDES permit
were not required to be raised during the public comment period (including any
public hearing) to the extent required by subparagraph 621.7(b)(6)(iv) of this
Title;
(5) if the request for an
adjudicatory proceeding raises an issue that the department addressed in the
response to comments issued pursuant to subdivision
621.10(e) of this
Title, provide a citation to the relevant comment and response and explain why
the department's response to the comment was clearly erroneous or otherwise
warrants review;
(6) clearly set
forth, with legal and factual support, the permittee's contentions for why the
conditions of the new SPDES permit should be stayed. The request for a stay
must demonstrate that each contested condition of the new SPDES permit is based
on:
(i) a finding of fact or conclusion of law
that is clearly erroneous; or
(ii)
an exercise of discretion or an important policy consideration that the
commissioner should, in the commissioner's discretion, review;
(7)
(i) if the disputed water quality based
effluent limitation is currently authorized to be discharged under the original
SPDES permit, propose temporary structural or non-structural measures which
would partially meet the contested or inseverable water quality based effluent
limitations of the new SPDES permit;
(ii) if the disputed water quality based
effluent limitation is not currently authorized to be discharged under the
original SPDES permit:
('a') identify the
discharge concentrations authorized by subparagraphs 750-1.2(a)(29)(iv-v) of
this Title;
('b') propose temporary
structural or non-structural measures which would partially meet the contested
or inseverable water quality based effluent limitations of the new SPDES
permit; and
('c') propose a
representative monitoring frequency that considers effluent variability
pursuant to paragraph 750-1.13(c) of this Title; and
(8) confirm that there are no
other permits subject to an adjudicatory proceeding under subdivision
624.2(a) of this
Title.
(d) Information
required by subdivision (c) of this section must be sent to the Director for
the Division of Water at the same time, and in the same manner, as the request
for an adjudicatory proceeding required by sections
621.10,
621.11 or
621.13 and subdivision
624.2(b) of this
Title. The Director for the Division of Water may deny a request to stay
contested or inseverable conditions of the new SPDES permit if there are
deficiencies in the information required by subdivision (c) of this
section.
(e) Within 15 business
days after receiving the information, pursuant to subdivision (d) of this
section, the Director for the Division of Water shall notify, in writing, the
Chief administrative law judge of the Office of Hearings and Mediation
Services, the permittee, and all others who submitted comments on the draft
SPDES permit of:
(1) the uncontested or
severable conditions of the new SPDES permit; and
(2) denial or approval of the stay of
contested or inseverable conditions of the new SPDES permit, and the reasons
for denial pursuant to subdivision (d) of this section, if
applicable;
(3) for contested or
inseverable conditions of the new SPDES permit, approved pursuant to paragraph
(2) of subdivision (e) of this section:
(i)
the temporary structural and non-structural measures (paragraph (7) of
subdivision (c) of this section); or
(ii) the pollutants that are not authorized
to be discharged as there are no conditions of the original SPDES permit, that
correspond to the contested or inseverable conditions of the new SPDES permit,
approved pursuant to paragraph (2) of subdivision (e) of this
section.
(f)
Uncontested conditions shall include preliminary design and engineering studies
or other requirements necessary to achieve the conditions of the new SPDES
permit which do not entail substantial expenditures.
(g)
(1) The
uncontested or severable conditions of the new SPDES permit shall become fully
effective enforceable conditions of the new SPDES permit 30 calendar days after
the date of the notification required in subdivision (e) of this
section.
(2) The contested or
inseverable conditions of the new SPDES permit, denied pursuant to paragraph
(2) of subdivision (e) this section, shall become fully effective enforceable
conditions of the new SPDES permit 30 calendar days after the date of the
notification required in subdivision (e) of this section.
(h) The effect of the contested or
inseverable conditions of the new SPDES permit, approved pursuant to paragraph
(2) of subdivision (e) this section, shall be stayed pending final agency
action on the contested or inseverable conditions of the new SPDES permit in
accordance with Part 624 of this Title.
(i) During any proceeding under Part 624 of
this Title:
(1) The conditions of the original
SPDES permit, that correspond to the contested or inseverable conditions of the
new SPDES permit, approved pursuant to paragraph (2) of subdivision (e) of this
section, will remain in effect.
(2)
If applicable, the temporary structural and non-structural measures, specified
in subparagraph (i) of paragraph (3) of subdivision (e) of this section, will
become fully effective enforceable 30 calendar days after the date of the
notification required in subdivision (e) of this section.
(j) A request for an adjudicatory proceeding
pursuant to sections
621.10,
621.11 or
621.13 and subdivision
624.2(a) of this
Title is a prerequisite to seeking judicial review of the final agency action
on the contested or inseverable conditions of the new SPDES permit.
(k) For purposes of judicial review of the
contested or inseverable conditions of the new SPDES permit, approved pursuant
to paragraph (2) of subdivision (e) of this section, and where a request for an
adjudicatory proceeding has been made pursuant to sections
621.10,
621.11 or
621.13 and subdivision
624.2(a) of this
Title, final agency action for those conditions of the new SPDES permit occurs
when department review procedures under Part 624 of this Title are exhausted
and:
(1) the commissioner subsequently issues
a final decision on the new SPDES permit under Part 624 of this Title;
and
(2) department staff effectuate
all directives of the commissioner's final decision on the new SPDES permit,
where applicable.
(l) For
purposes of judicial review of the contested or inseverable conditions of the
new SPDES permit, denied pursuant to paragraph (2) of subdivision (e) of this
section, and where a request for an adjudicatory proceeding has been made
pursuant to sections
621.10,
621.11 or
621.13 and subdivision
624.2(a) of this
Title, final agency action for those conditions of the new SPDES permit occurs
upon notification in subdivision (e) of this section.
(m) For purposes of judicial review of the
uncontested or severable conditions of the new SPDES permit, where a request
for an adjudicatory proceeding has been made pursuant to sections
621.10,
621.11 or
621.13 and subdivision
624.2(a) of this
Title, final agency action for those conditions of the new SPDES permit occurs
upon notification in subdivision (e) of this section.
(n) The issues conference, in paragraph
624.4(b)(1) of this Title, will only include the contested or inseverable
conditions of the new SPDES permit, approved pursuant to paragraph (2) of
subdivision (e) of this section.
(o) Disclosure, related to this section, is
limited to what is afforded under Part 616 of this Title (Access to
Records).
