49-243

49-243. Information and criteria for issuing
individual permit; definition

A. The director shall consider, and the applicant for an individual permit may be
required to furnish with the application, the following information:

1. The design of the discharge facility. When formal as-built submittals are
unavailable, the applicant shall provide sufficient documentation to allow evaluation of
those elements of the facility affecting discharge pursuant to the demonstration required
in subsection B, paragraph 1 of this section.

2. A description of how the facility will be operated.

3. Existing and proposed pollutant control measures.

4. A hydrogeologic study defining and characterizing the discharge impact area,
including the vadose zone.

5. The use of water from aquifers in the discharge impact area.

6. The existing quality of the water in the aquifers in the discharge impact area.

7. The characteristics of the pollutants discharged by the facility.

8. Closure strategy.

9. Any other relevant federal or state permits issued to the applicant.

10. Any other relevant information the director may require.

B. The director shall issue a permit to a person for a facility other than water
storage at a storage facility pursuant to title 45, chapter 3.1 if the person
demonstrates that either paragraphs 1 and 2 or paragraphs 1 and 3 of this subsection will
be met:

1. That the facility will be so designed, constructed and operated as to ensure the
greatest degree of discharge reduction achievable through application of the best
available demonstrated control technology, processes, operating methods or other
alternatives, including, where practicable, a technology permitting no discharge of
pollutants. In determining best available demonstrated control technology, processes,
operating methods or other alternatives, the director shall take into account any
treatment process contributing to the discharge, site specific hydrologic and geologic
characteristics and other environmental factors, the opportunity for water conservation
or augmentation and economic impacts of the use of alternative technologies, processes or
operating methods on an industry-wide basis. A discharge reduction to an aquifer
achievable solely by means of site specific characteristics does not, in itself,
constitute compliance with this paragraph. The requirements of this paragraph for
wetlands designed and constructed to treat municipal and domestic wastewater for
underground storage pursuant to section 49-241, subsection B may be met by including
seepage through the bottom of the facility if it is demonstrated that site
characteristics can act to achieve performance levels established as the best available
demonstrated control technology by the director. In addition, the director shall consider
the following factors for existing facilities:

(a) Toxicity, concentrations and quantities of discharge likely to reach an aquifer
from various types of control technologies.

(b) The total costs of the application of the technology in relation to the
discharge reduction to be achieved from such application.

(c) The age of equipment and facilities involved.

(d) The industrial and control process employed.

(e) The engineering aspects of the application of various types of control
techniques.

(f) Process changes.

(g) Non-water quality environmental impacts.

(h) The extent to which water available for beneficial uses will be conserved by a
particular type of control technology.

2. That pollutants discharged will in no event cause or contribute to a violation
of aquifer water quality standards at the applicable point of compliance for the
facility.

3. That no pollutants discharged will further degrade at the applicable point of
compliance the quality of any aquifer that at the time of the issuance of the permit
violates the aquifer quality standard for that pollutant.

C. An applicant shall satisfy the requirements of subsection B, paragraph 1 of this
section either by making a demonstration that the facility will meet the criteria of that
paragraph or by agreeing to utilize the appropriate presumptive controls adopted by the
director pursuant to section 49-243.01, subsection A.

D. In assessing technology, processes, operating methods and other alternatives for
the purposes of this section, "practicable" means able to be reasonably done from the
standpoint of technical practicality and, except for pollutants addressed in subsection I
of this section, economically achievable on an industry-wide basis.

E. The determination of economic impact on an industry-wide basis for purposes of
subsection B, paragraph 1 of this section shall take into account differences in industry
sectors, the type and size of the operation and the reasonableness of applying controls
in an arid or semiarid setting.

F. Control measures designed to further reduce discharge may not be required if the
director determines that site specific conditions, in conjunction with technology,
processes, operating methods or other alternatives are sufficient to meet the
requirements of subsection B, paragraph 1 of this section.

G. A discharging facility at an open pit mining operation shall be deemed to
satisfy the requirements of subsection B, paragraph 1 of this section if the director
determines that both of the following conditions are satisfied:

1. The mine pit creates a passive containment that is sufficient to capture the
pollutants discharged and that is hydrologically isolated to the extent that it does not
allow pollutant migration from the capture zone. For the purposes of this paragraph,
"passive containment" means natural or engineered topographical, geological or
hydrological control measures that can operate without continuous
maintenance. Monitoring and inspections to confirm performance of the passive
containment do not constitute maintenance.

2. The discharging facility employs additional processes, operating methods or
other alternatives to minimize discharge.

H. The director shall issue a permit to a person for water storage at a storage
facility proposed under title 45, chapter 3.1 if the person demonstrates that the
facility will be so designed, constructed and operated as to ensure that the project will
not cause or contribute to the violation of any standard adopted pursuant to section
49-223 at the applicable point of compliance for the facility.

I. With respect to the following pollutants, the permit applicant for a new
facility must meet the criteria of subsection B, paragraph 1 of this section to limit
discharges to the maximum extent practicable regardless of cost:

1. Any organic substance listed by the secretary of the department of health and
human services pursuant to 42 United States Code section 241(b)(4), as known to be
carcinogens or reasonably anticipated to be carcinogens.

2. Any organic substance listed in 40 Code of Federal Regulations section
261.33(e), regardless of whether the substance is a waste subject to regulation under the
resource conservation recovery act (P.L. 94-580; 90 Stat. 2795).

3. Any organic toxic pollutant that the director lists by rule after determining
that minute amounts of that pollutant in drinking water will present a substantial
short-term or long-term human health threat.

J. The director, by rule, may prescribe requirements for issuing a single permit
applicable to all similar facilities under common ownership and located in a contiguous
geographic area in lieu of an individual permit for each facility.

K. The director shall consider and may prescribe in the permit the following terms
and conditions as necessary to ensure compliance with this article:

1. Monitoring requirements.

2. Record keeping and reporting requirements.

3. Contingency plan requirements.

4. Discharge limitations.

5. Compliance schedule requirements.

6. Closure requirements and, for a facility that cannot achieve clean closure,
postclosure monitoring and maintenance requirements.

7. Alert levels that, when exceeded, may require adjustments of permit conditions
or appropriate actions as are required by the contingency plans.

8. Such other terms and conditions as the director deems necessary to ensure
compliance with this article.

L. The director may include in an aquifer protection permit for an existing
facility the requirement that the owner or operator of the facility undertake a remedial
action, as defined in section 49-281, to prevent, minimize or mitigate damage to the
public health or welfare or to the waters of the state resulting from a discharge that
occurred before August 13, 1986, if the following conditions are met:

1. The selection of remedial action, including the level and extent of cleanup, was
determined according to the criteria in section 49-282.06 and the rules adopted pursuant
to that section.

2. The pollutant that was discharged constituted a hazardous substance.

M. The director may include in an aquifer protection permit as a condition the
mitigation measures described in an order issued under section 49-286.

N. The director may deny a permit for a facility if the director determines that
the applicant is incapable of fully carrying out the terms and conditions of the permit,
including any conditions that require monitoring or installing and maintaining discharge
control measures. The director may require the applicant to furnish information, such as
past performance, including compliance with or violations of similar laws or rules, and
technical and financial competence, relevant to its capability to comply with the permit
terms and conditions. For the purposes of evaluating an applicant's financial competence
for closure, the director may consider a closure strategy and cost estimate rather than a
detailed closure plan. A demonstration of financial responsibility made for a facility as
prescribed by section 49-770 shall suffice, in whole or in part, for any demonstration of
financial responsibility prescribed by this section. A demonstration of financial
assurance or competence required under this section or section 49-770 for a facility
shall not be required before completion of construction but shall be required before the
department issues approval to operate. Financial information required to be supplied
under this subsection is confidential.

O. The director shall require an applicant for an individual permit to submit
evidence that the discharging facility complies with applicable municipal or county
zoning ordinances and regulations. The director shall not issue the permit unless it
appears from the evidence submitted by the applicant that the facility complies with the
applicable zoning ordinances and regulations.

P. The director may issue a single area-wide permit applicable to facilities under
common ownership and located in a contiguous geographic area in lieu of an individual
permit for each facility. In issuing an area-wide permit, the demonstration required
under subsection B, paragraphs 2 and 3 of this section may be considered collectively for
all facilities included in the permit. The director may evaluate discharge reduction
collectively for existing facilities in the pollutant management area by considering any
one or all of the factors set forth in subsection B, paragraph 1 of this section. The
director may consolidate those permit conditions listed in subsection K of this section
that have general applicability to the facilities included in the area-wide permit. An
area-wide permit shall specify all of the following:

1. A description of the pollutant management area and point or points of
compliance.

2. Those facilities that have been evaluated individually for meeting the criteria
in subsection B, paragraph 1 of this section and that are included in the area-wide
permit.

3. For multiple facilities within the pollutant management area that are
substantially similar in nature and, considered alone, would have a small discharge
impact area compared to other facilities in the area, narrative permit conditions may be
used to define the best available demonstrated control technology, processes, operating
methods or other alternatives consistent with subsection B, paragraph 1 of this section
replacing the need for an individual technical review.

4. A compliance schedule for submittal and evaluation of information regarding
design and discharge for existing facilities within the pollutant management area that,
because of the small size, quantity or quality of discharge, or physical location with
regard to the point or points of compliance, the director has determined that review for
the purposes of subsection B, paragraph 1 of this section shall be conducted in the
future. In determining the requirements and length of a compliance schedule for an
area-wide permit, the director shall consider the character and impact of the discharge,
the nature of the activities necessary to prepare appropriate technical submittals, the
number of persons potentially affected by the discharge, the current state of treatment
technology, and the age of the facility.

Q. The director may expedite processing of an aquifer protection permit application
by a permit applicant who proposes a new facility to discharge liquids that do not
contain any pollutant in a concentration that exceeds a numeric aquifer water quality
standard. The director shall not require the applicant to complete a hydrogeologic study
in order to obtain the permit unless the permit applicant is relying on site specific
characteristics to meet the requirements of subsection B, paragraph 1 of this section or
unless the study is necessary to demonstrate compliance with narrative aquifer water
quality standards. Applications made pursuant to this subsection shall have precedence
and be considered by the department before all other aquifer protection permit
applications.