ARSD Article 74:52 — SURFACE WATER DISCHARGE PERMITS

AGRICULTURE & NATURAL RESOURCES AGRICULTURE & NATURAL RESOURCES

Chapter 74:52:01 General provisions

ARSD 74:52:01:01 Definitions

Terms not defined in this section have the meaning given by the Clean Water Act (CWA). When a term defined in the CWA appears in a definition in this section, the defined term is sometimes placed in quotation marks as an aid to readers. The terms used in chapters 74:52:01 to 74:52:11, inclusive, are defined as follows:

(1) "Act," chapter 34A-2 of the South Dakota Codified Laws;

(2) "Administrator," the administrator of the United States Environmental Protection Agency or an authorized representative;

(3) "Applicable standards and limitations," all local, state, interstate, and federal standards and limitations to which a "discharge," a "sewage sludge use or disposal practice," or a related activity is subject under the CWA, including "effluent limitations," water quality standards, standards of performance, toxic effluent standards or prohibitions, "best management practices," pretreatment standards, and "standards for sewage sludge use or disposal" under sections 301, 302, 303, 304, 306, 307, 308, 403, and 405 of the CWA;

(4) "Average monthly discharge limitation," the highest allowable average of "daily discharges" over a calendar month, calculated as the sum of all "daily discharges" measured during a calendar month divided by the number of "daily discharges" measured during that month;

(5) "Average weekly discharge limitation," the highest allowable average of "daily discharges" over a calendar week, calculated as the sum of all "daily discharges" measured during a calendar week divided by the number of "daily discharges" measured during that week;

(6) "Best management practices," "BMPs," schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the discharge of pollutants to "waters of the state." BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage;

(7) "Biosolids," any sewage sludge or material derived from sewage sludge that can be beneficially recycled for its plant nutrient content or soil amending characteristics, or both;

(8) "Board," Board of Water Management;

(9) "Bypass," the intentional diversion of waste streams from any portion of a treatment facility;

(10) "Class I sludge management facility," a POTW identified in chapter 74:52:11 as required to have an approved pretreatment program, including those with state-run programs;

(11) "Continuous discharge," a "discharge" which occurs without interruption throughout the operating hours of the facility, except for infrequent shutdowns for maintenance, process changes, or similar activities;

(12) "Clean Water Act," "CWA," (formerly referred to as the Federal Water Pollution Control Act or Federal Water Pollution Control Act Amendments of 1972) Pub. L. No. 92-500, as amended by Pub. L. No. 95-217, Pub. L. No. 95-576, Pub. L. No. 96-483, Pub. L. No. 97-117, and Pub. L. No. 100-4, 33 U.S.C. § 1251 et seq.;

(13) "Daily discharge," the "discharge" measured during a calendar day or any 24-hour period that represents the calendar day for purposes of sampling. For pollutants with limitations expressed in units of mass, the "daily discharge" is calculated as the total mass of the pollutant discharged over the day. For pollutants with limitations expressed in other units of measurement, the "daily discharge" is calculated as the average measurement of the pollutant over the day;

(14) "Department," the South Dakota Department of Agriculture and Natural Resources except at:

(a) 40 C.F.R. § 403.5(e) the definition of"EPA";

(15) "Discharge," an addition of any "pollutant" or combination of pollutants to "surface waters of the state" from any "point source";

(16) "Discharge monitoring report," "DMR," the form provided by the secretary for the reporting of self-monitoring results by SWD and PIU permittees;

(17) "Effluent limitations," restrictions imposed by a permit on quantities, discharge rates, and concentrations of "pollutants";

(18) "Effluent limitations guidelines," regulations published by the administrator under § 304(b) of the CWA to adopt or review "effluent limitations";

(19) "EPA," the United States Environmental Protection Agency;

(20) "Facility," a SWD permit "point source" or any other facility or activity, including land or appurtenances, that is subject to SWD permit regulations;

(21) "General permit," a SWD permit issued by the secretary in accordance with SDCL 34A-2-112 under § 74:52:02:46 authorizing a category of discharges within a geographical area;

(22) "Hazardous substance," a substance designated under 40 C.F.R. Part 116 (July 1, 2016), pursuant to § 311 of the CWA;

(23) "Incorporated place," a municipality, township, or village that is incorporated under SDCL chapter 9-3;

(24) "Indirect discharger," a nondomestic discharger introducing "pollutants" to a "publicly owned treatment works";

(25) "Large municipal separate storm sewer system," a municipal separate storm sewer system, designated by the administrator, located in an incorporated place which serves a population of 250,000 or more or that is located in one or more counties with unincorporated urbanized populations serving 250,000 or more. Population served is determined by the 1990 census by the Bureau of Census;

(26) "Major facility," a permittee classified as major by the administrator in conjunction with the secretary;

(27) "Medium municipal separate storm sewer system," a municipal separate storm sewer system, designated by the administrator, and located in an incorporated place which serves a population of greater than 100,000 but less than 250,000 or that is located in one or more counties with unincorporated urbanized populations serving more than 100,000 but less than 250,000. Population served is determined by the 1990 census by the Bureau of Census;

(28) "Municipality," a city, town, county, district, sanitary district, or other public body created by or under state law with jurisdiction over the disposal of sewage, industrial wastes, or other wastes;

(29) "National pollutant discharge elimination system," "NPDES," the national program for issuing, modifying, revoking and reissuing, terminating, monitoring, and enforcing permits and imposing and enforcing pretreatment requirements under §§ 307, 318, 402, and 405 of the CWA;

(30) "New source," a building, structure, facility, or installation from which there is or may be a "discharge" whose construction commenced after promulgation of standards of performance under § 306 of the CWA which are applicable to the source or after proposal of standards of performance in accordance with § 306 of the CWA which are applicable to the source, but only if the standards are promulgated in accordance with § 306 within 120 days after their proposal;

(31) "Owner or operator," a person who owns, leases, operates, controls, or supervises a "facility";

(32) "Permit," a written authorization issued by the "secretary" to implement the requirements of the permit regulations, Part 123 of the CWA, and the Act;

(33) "PIU permit," South Dakota pretreatment industrial user permit;

(34) "Privately owned treatment works," a device or system which is used to treat wastes from a facility whose operator is not the operator of the treatment works; is not a "POTW";

(35) "Process wastewater," water which, during manufacturing or processing, comes into direct contact with or results from the production or use of a raw material, intermediate product, finished product, by-product, or waste product;

(36) "Proposed permit," a document to be publicly noticed which is prepared under chapters 74:52:01 to 74:52:11, inclusive, and indicates the secretary's decision to issue or deny, modify, revoke, terminate, or reissue a permit;

(37) "Schedule of compliance," a schedule of remedial measures included in a "permit," including an enforceable sequence of interim requirements leading to compliance with the CWA and regulations and the "Act";

(38) "Secretary," the secretary of the South Dakota Department of Agriculture and Natural Resources except at:

(a) 40 C.F.R. Part 122, the definition of "State Director" or "Director";

(b) 40 C.F.R. Part 123, the definition of "State Director" or "Director";

(d) 40 C.F.R. Part 129, the definition of "State Director" or "Director";

(e) 40 C.F.R. Part 136, the definition of "State Director" or "Director";

(f) 40 C.F.R. Part 403, the definition of "Approval Authority" or "Director";

(g) 40 C.F.R. Subchapter N, the definition of "State Director", "Director", or "Approval Authority"; and

(h) 40 C.F.R. Part 503 the definition of "Permitting Authority";

(39) "Septage," the liquid and solid material pumped from a septic tank, cesspool, or similar domestic sewage treatment system or from a holding tank when the system is cleaned or maintained;

(40) "Severe property damage," substantial physical damage to property, damage to the treatment facilities which causes them to become inoperable, or substantial and permanent loss of natural resources which can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production;

(41) "Sewage sludge," any solid, semisolid, or liquid residue removed during the treatment of municipal wastewater or domestic sewage. Sewage sludge includes solids removed during primary, secondary, or advanced wastewater treatment, scum, septage, portable toilet pumpings, and sewage sludge products. Sewage sludge does not include grit, screenings, or ash generated during the incineration of sewage sludge;

(42) "Sewage sludge use or disposal practice," the collection, storage, treatment, transportation, processing, monitoring, use, or disposal of sewage sludge;

(43) "Site," the land or water area where a "facility" is physically located, including land used in connection with the facility;

(44) "Small municipal separate storm sewer system," separate storm sewer system that is: owned or operated by a federal, state, city, town, county, association, district, sanitary district, or other public body with jurisdiction over the disposal of sewage, industrial wastes, or other wastes; and is located in an incorporated place which serves a population of less than 100,000 or that is located in one or more counties with unincorporated urbanized populations serving less than 100,000. This term includes systems similar to separate storm sewer systems in municipalities, such as systems at military bases, large hospital or prison complexes, and highways and other thoroughfares. The term does not include separate storm sewers in very discrete areas, such as individual buildings. Population served is determined by the 2000 census by the Bureau of Census;

(45) "State," the state of South Dakota, except at:

(a) 40 C.F.R. Part 122, the definition of "State", "Authorized State", "Approved State", "Approved Program", and "United States";

(b) 40 C.F.R. Part 123, the definition of "State", "Authorized State", "Approved State", "Approved Program", and "United States";

(c) 40 C.F.R. Part 125, the definition of "State", "Authorized State", "Approved State", "Approved Program", and "United States";

(d) 40 C.F.R. Part 129, the definition of "State", "Authorized State", "Approved State", "Approved Program", and "United States";

(e) 40 C.F.R. Part 403, the definition of "State", "Authorized State", "Approved State", "Approved Program", and "United States"; and

(f) 40 C.F.R. Subchapter N, the definition of "State", "Authorized state", "Approved State", "Approved Program". and "United States";

(46) "Storm water discharge associated with industrial activity," storm water runoff, snow melt runoff, or surface runoff and drainage from industrial activities as defined in 40 C.F.R. § 122.26 (July 1, 2016);

(47) "Storm water discharges associated with small construction activity," storm water runoff, snow melt runoff, or surface runoff and drainage from small construction activities as defined in 40 C.F.R. § 122.26 (July 1, 2016);

(48) "Surface waters of the state," lakes, ponds, streams, rivers, wetlands, and any other body or accumulation of water on the land surface that is considered to be waters of the state, but not waste treatment systems, including treatment ponds, lagoons, leachate collection ponds, artificial cooling ponds, or stormwater retention ponds designed to meet the requirements of the CWA;

(49) "SWD permit," South Dakota surface water discharge permit except at:

(a) 40 C.F.R. Part 122, the definition of "National Pollutant Discharge Elimination System permit" or "NPDES permit";

(b) 40 C.F.R. Part 123, the definition of "National Pollutant Discharge Elimination System permit" or "NPDES permit";

(d) 40 C.F.R. Part 129, the definition of "National Pollutant Discharge Elimination System permit" or "NPDES permit";

(e) 40 C.F.R. Part 403, the definition of "National Pollutant Discharge Elimination System permit" or "NPDES permit";

(f) 40 C.F.R. Subchapter N, the definition of "National Pollutant Discharge Elimination System permit" or "NPDES permit": and

(g) 40 C.F.R. Part 503, the definition of "National Pollutant Discharge Elimination System permit" or "NPDES permit";

(50) "Toxic pollutant," any pollutant listed as toxic under § 307(a)(1) of the CWA or, in the case of sludge use or disposal practices, any pollutant identified in regulations implementing § 405(d) of the CWA;

(51) "Treatment works treating domestic sewage," a POTW or any other sewage sludge or wastewater treatment devices or systems, regardless of ownership (including federal facilities), used in the storage, treatment, recycling, and reclamation of municipal or domestic sewage, including land dedicated for the disposal of sewage sludge. This definition does not include septic tanks or similar devices. For purposes of this definition, "domestic sewage" includes waste and wastewater from humans or household operations that are discharged or otherwise enter a treatment works;

(52) "Upset" is an exceptional incident in which there is unintentional and temporary noncompliance with technology-based permit effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include noncompliance caused by operational error, improperly designed treatment facilities, inadequate treatment facilities. lack of preventive maintenance, or careless or improper operation. An upset constitutes an affirmative defense to an action brought for noncompliance with technology-based permit effluent limitations; and

(53) "Whole effluent toxicity," the aggregate toxic effect of an effluent as measured directly by a toxicity test.

Reference: 1990 Population Characteristics From PL 94-171 Files , State Data Center, University of South Dakota, 414 E. Clark Street, Vermillion, South Dakota 57069-2390. The cost is $5.00.

Collateral Reference: Natural Resource Defense Council et al. v. Train, 8 E.R.C. 2120 (D.D.C. 1976), modified 12 E.R.C. 1883 (D.D.C. 1979).

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:17:01, July 1, 1996; 23 SDR 180, effective April 30, 1997; 28 SDR 157, effective May 16, 2002; subdvision (52) transferred from § 74:52:01:03, 44 SDR 98, effective December 11, 2017; SL 2021, ch 1, §§ 8, 19, effective April 19, 2021.
General Authority: SDCL 34A-2-28, 34A-2-93.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:01:02 Definition of new discharger

A "new discharger" is any building, structure, facility, or installation:

(1) From which there is or may be a "discharge of pollutants";

(2) That did not commence the "discharge" at a particular "site" prior to August 13, 1979;

(3) Which is not a "new source"; and

(4) Which has never received a finally effective NPDES permit or SWD permit for discharge at that "site".

This definition includes any "indirect discharger" which commenced discharging after August 12, 1979. It also includes any existing mobile point source, such as an aggregate plant, which begins discharging at a "site" for which it does not have a permit.

History

Source: 19 SDR 122, effective February 21, 1993; transferred from § 74:03:17:01.01, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:01:02.01 Criteria for new source determination

74 : 52 : 01 : 02.01 . Criteria for new source determination. Except as otherwise provided in an applicable new source performance standard, a source is a "new source" if it meets the definition of "new source" in subdivision 74:52:01:01(30), and:

(1) It is constructed at a site at which no other source is located;

(2) It totally replaces the process or production equipment that causes the discharge of pollutants at an existing source; or

(3) Its processes are substantially independent of an existing source at the same site. In determining whether these processes are substantially independent, the secretary shall consider such factors as the extent to which the new facility is integrated with the existing plant; and the extent to which the new facility is engaged in the same general type of activity as the existing source.

A source meeting the requirements of (1) through (3) of this section is a new source only if a new source performance standard is independently applicable to it. If there is no such independently applicable standard, the source is a new discharger.

History

Source: 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-36, 34A-2-36.2.

ARSD 74:52:01:02.02 Construction and new source determination

74 : 52 : 01 : 02.02 . Construction and new source determination. Construction on a site at which an existing source is located results in a modification subject to chapter 75:52:04 rather than a new source (or a new discharger) if the construction does not create a new building, structure, facility. or installation meeting the criteria of (1) through (3) of § 74:52:01:02.01 but otherwise alters, replaces, or adds to existing process or production equipment.

Construction of a new source has commenced if the owner or operator has:

(l) Begun, or caused to begin as part of a continuous on-site construction program:

(a) Any placement, assembly, or installation of facilities or equipment; or

(b) Significant site preparation work including clearing, excavation or removal of existing buildings, structures, or facilities which is necessary for the placement, assembly, or installation of new source facilities or equipment; or

(2) Entered into a binding contractual obligation for the purchase of facilities or equipment which are intended to be used in its operation with a reasonable time. Options to purchase or contracts which can be terminated or modified without substantial loss and contracts for feasibility engineering and design studies do not constitute a contractual obligation under the paragraph.

History

Source: 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-36, 34A-2-36.2.

ARSD 74:52:01:02.03 Effect of compliance with new source performance standards

74 : 52 : 01 : 02.03 . Effect of compliance with new source performance standards. Any new discharger, the construction of which commenced after October 18, 1972, or new source which meets the applicable promulgated new source performance standards before the commencement of discharge, may not be subject to any more stringent new source performance standards or to any more stringent technology-based standards under chapter 74:52:07 for the soonest ending of the following periods:

(1) Ten years from the date that construction is completed;

(2) Ten years from the date the source begins to discharge process or other nonconstruction related wastewater: or

(3) The period of depreciation or amortization of the facility for the purposes of section 167 or 169 (or both) of the Internal Revenue Code of 1954 (January 1, 2002).

When a surface water discharge permit issued to a source with a "protection period" under this section will expire on or after the expiration of the protection period, that permit shall require the owner or operator of the source to comply with the requirements of Chapter 74:52:07 immediately upon the expiration of the protection period. No additional period for achieving compliance with these requirements may be allowed except when necessary to achieve compliance with requirements promulgated less than three years before the expiration of the protection period.

The owner or operator of a new source, a new discharger which commenced discharge after August 13, 1979, or a recommencing discharger shall install and have in operating condition, and shall "start-up" all pollution control equipment required to meet the conditions of its permits before beginning to discharge. Within the shortest feasible time (not to exceed 90 days), the owner or operator must meet all permit conditions. The requirements of this paragraph do not apply if the owner or operator is issued a permit containing a compliance schedule under § 74:52:03:22.

After the effective date of new source performance standards, it shall be unlawful for any owner or operator of any new source to operate the source in violation of those standards applicable to the source.

History

Source: 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-36, 34A-2-36.2.

ARSD 74:52:01:03 Transferred

Transferred to § 74:52:01:01(52)** .

ARSD 74:52:01:04 SWD permit required for discharge

A person may not directly discharge pollutants from any point source into surface waters of the state without a valid SWD permit.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:17:02, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:01:05 Point sources that require SWD permits

The following point sources require SWD permits:

(1) Concentrated animal feeding operations as defined in 40 C.F.R. § 122.23 (January 1, 2007);

(2) Concentrated aquatic animal production facilities as defined in §§ 74:52:02:31, 74:52:02:32, and 74:52:02:35;

(3) Discharges into aquaculture projects;

(4) Storm water discharges as designated in § 74:52:02:36;

(5) Silvicultural point sources;

(6) Publicly owned treatment works;

(7) Industrial discharges;

(8) Privately owned treatment works;

(9) Federal facilities, except those located on Indian reservations;

(10) Treatment works treating domestic sewage, whether or not the treatment works is otherwise required to obtain a SWD permit; and

(11) Other point sources as determined by the secretary.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:17:03, July 1, 1996; 23 SDR 180, effective April 30, 1997; 28 SDR 157, effective May 16, 2002; 29 SDR 176, effective July 1, 2003; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-28, 34A-2-93.
Law Implemented: SDCL 34A-2-36, 34A-2-36.2.

ARSD 74:52:01:05.01 State only surface water discharge permits

74 : 52 : 01 : 05.01 . State only surface water discharge permits. The secretary may issue surface water discharge permits outside of the National Pollutant Discharge Elimination System authority granted the State of South Dakota by the U.S. Environmental Protection Agency on December 30, 1993, to concentrated animal feeding operations not required by Federal Regulations to have a National Pollutant Discharge Elimination System Permit. Concentrated animal feeding operations issued coverage under this permit shall meet all requirements of Article 74:52 except the requirements of 40 C.F.R. §§ 122.23(h) and 122.42(e)(4) in § 74:52:02:22 shall be those of February 12, 2003.

History

Source: 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-36, 34A-2-36.2q.

ARSD 74:52:01:06 Exclusions

The following activities do not require SWD permits:

(1) The introduction of sewage, industrial wastes, or other pollutants into publicly owned treatment works by indirect dischargers. This exclusion does not apply to the introduction of pollutants to privately owned treatment works or to other discharges through pipes, sewers, or other conveyances owned by a state, municipality, or other party not leading to treatment works;

(2) A discharge in compliance with the instructions of an on-scene coordinator pursuant to 40 C.F.R. Part 300 (July 1, 1991) (the national oil and hazardous substances pollution plan) or 33 C.F.R. § 153.10(e) (pollution by oil and hazardous substances) (July 1, 1991);

(3) The introduction of pollutants from non-point source agricultural activities, including runoff from orchards, cultivated crops, pastures, range lands, and forest lands;

(4) Return flows from irrigated agriculture;

(5) Discharges of dredged or fill materials into waters of the United States which are regulated under § 404 of the CWA;

(6) Storm water runoff from oil and gas exploration, production, processing or treatment operations or transmission facilities, composed entirely of flows which are from conveyances, including pipes, conduits, ditches, and channels, used for collecting and conveying precipitation runoff and which does not come into contact with any overburden, raw material, intermediate products, finished products, by-products, or waste products located on the site of such operations;

(7) Storm water runoff from industrial facilities that have completed and submitted a certification statement in accordance with 40 C.F.R § 122.26(g) (July 1, 2001) identifying the facility to have no exposure to storm water runoff; and

(8) Storm water runoff from a small municipal separate storm sewer system that serves a population of less than 1,000 persons within an urbanized area as determined by the 2000 census by the Bureau of Census.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:17:08, 19 SDR 122, effective February 21, 1993; transferred from § 74:03:17:03.01, July 1, 1996; 28 SDR 157, effective May 16, 2002.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:01:07 Approval of plans and specifications

Approval of plans and specifications from the secretary is required for the following activities which may result in a discharge:

(1) The construction, installation, modification, or operation of a disposal system or part of a disposal system;

(2) The increase in volume or strength of wastes in excess of the limit specified in an existing SWD permit; or

(3) The construction or use of a new outlet for the discharge of waters into waters of the state.

History

Source: 19 SDR 122, effective February 21, 1993; transferred from § 74:03:17:04.01, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-27.

ARSD 74:52:01:08 Permit application forms

Applicants for SWD permits must submit their applications on state permit application forms.

Cross-Reference: Information requirements, § 74:52:02:08.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:17:06, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:01:09 Technical regulations

Technical regulations for the SWD permit program used by the state to determine what requirements are to be placed in the permit are contained in 40 C.F.R. Part 125, criteria and standards for the national pollutant discharge elimination system (July 1, 2016); 40 C.F.R. Part 129 (July 1, 2016), toxic pollutant effluent standards and prohibitions; 40 C.F.R. Subchapter N, effluent guidelines and standards (July 1, 2016); and 40 C.F.R. Part 403, general pretreatment regulations, for existing and new sources of pollution (July 1, 2016). These regulations apply to chapters 74:52:07 to 74:52:11, inclusive.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:17:07, July 1, 1996; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-13, 34A-2-27.

ARSD 74:52:01:10 Prohibitions

A permit may not be issued under the following circumstances:

(1) If the conditions of the permit do not provide for compliance with the applicable requirements of the CWA or regulations promulgated under the CWA;

(2) If the applicant is required to obtain a state or other certification under § 74:51:01:63 and that certification has not been obtained or waived;

(3) If the regional administrator has objected to issuance of the permit;

(4) If the imposition of conditions cannot ensure compliance with the applicable water quality standards of South Dakota and affected states;

(5) If, in the judgment of the secretary of the army, anchorage and navigation in or on any of the waters of the United States would be substantially impaired by the discharge;

(6) For the discharge of any radiological, chemical, or biological warfare agent or high-level radioactive waste;

(7) For a discharge inconsistent with a plan or plan amendment approved under § 208(b) of the CWA; or

(8) To a new source or a new discharger if the discharge from its construction or operation will cause or contribute to the violation of water quality standards. The owner or operator of a new source or a new discharger proposing to discharge into a water segment which does not meet applicable water quality standards or is not expected to meet those standards even after the application of the effluent limitations required by § 301(b)(1)(A) and § 301(b)(1)(B) of the CWA, and for which the state has performed a wasteload allocation for the pollutant to be discharged, must demonstrate, before the close of the public comment period, that:

(a) There are sufficient remaining wasteload allocations to allow for the discharge; and

(b) That the existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards.

Cross-Reference: Surface water quality standards, ch 74:51:01.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:17:09, July 1, 1996; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-6, 34A-2-33.

ARSD 74:52:01:11 Effect of permit

The following describe the effect of a SWD permit:

(1) Except for any toxic effluent standards and prohibitions imposed under section 307 of the CWA, compliance with a permit constitutes compliance with sections 301, 302, 306, 307, 318, 403, and 405 of CWA. It also constitutes compliance with the Act with regard to surface water discharges only;

(2) The issuance of a permit does not convey property rights of any sort or any exclusive privilege;

(3) The issuance of a permit does not authorize injury to persons or property or invasion of other private rights or infringement of state or local law or regulations.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:17:10, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:01:12 Continuation of expiring permits

The conditions of an expired permit continue in force until the effective date of a new permit if the permittee has submitted a timely application for a new permit under chapter 74:52:02 which is complete and the secretary, through no fault of the permittee, does not issue a new permit that is effective by the expiration date of the previous permit.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:17:11, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-36, 34A-2-49.

Chapter 74:52:02 Application requirements

ARSD 74:52:02:01 Applicability

A person who discharges or proposes to discharge pollutants to surface waters of the state and who does not have an effective SWD permit must submit a complete, signed application for an SWD permit to the secretary. The following are exceptions to the application requirements:

(1) Persons covered by general permits under § 74:52:02:46;

(2) Discharges excluded under § 74:52:01:06; and

(3) Users of a privately owned treatment works.

When a facility or activity is owned by one person but is operated by another person, the operator must obtain the permit.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:01, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:02:02 Correlation between state and EPA permits

On the date of SWD permit program approval by EPA, all persons who do not have a SWD permit but are permitted or authorized under the NPDES program shall be considered to hold a SWD permit, including those expired permits which EPA has continued in effect according to 40 C.F.R. § 122.6 (July 24, 1992), continuation of expiring permits.

On the date of sludge management program approval by EPA, all persons who do not have a SWD permit but are permitted or authorized under the NPDES sludge management program shall be considered to hold a SWD permit, including those expired permits which EPA has continued in effect according to 40 C.F.R. § 122.6 (July 24, 1992), continuation of expiring permits.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:03, July 1, 1996; 23 SDR 180, effective April 30, 1997.
General Authority: SDCL 34A-2-28, 34A-2-93.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:02:03 Time to apply for new facilities

Except as provided in §§ 74:52:02:04 and 74:52:02:36, a person proposing a surface water discharge or the use or disposal of sewage sludge from treatment works treating domestic sewage shall submit a complete application for a SWD permit at least 180 days before the date on which the discharge is to commence unless permission for a later date has been granted by the secretary.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:04, July 1, 1996; 23 SDR 180, effective April 30, 1997.
General Authority: SDCL 34A-2-30, 34A-2-93.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:02:04 Time to reapply for dischargers with currently effective EPA-issued NPDES permits

A facility with a currently effective EPA-issued NPDES permit must submit a new application for an SWD permit at least 180 days before the expiration date of the existing permit, unless permission for a later date has been granted by the secretary. The secretary may grant permission to submit an application later than the deadline but in no case may the application be submitted later than the expiration date of the existing permit.

Cross-Reference: National Pollution Discharge Elimination System, 40 C.F.R. Part 125.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:18:05, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:02:05 SWD permit renewals

All owners or operators of SWD permits must reapply for a permit at least 180 days before the expiration date of the existing permit.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:06, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:02:06 Continuation of expired permits

The conditions of an expired permit remain effective and enforceable until the effective date of a new permit if the permittee has submitted a complete and timely application for a new permit under §§ 74:52:02:04 and 74:52:02:05 and the secretary, through no fault of the permittee, does not issue a new permit that is effective by the expiration date of the previous permit.

If the permittee is not in compliance with the conditions of the expiring or expired permit, the secretary may choose to do one or more of the following:

(1) Initiate enforcement action based on the permit which has been continued;

(2) Issue a notice of intent to deny the new permit under § 74:52:05:04;

(3) Issue a new permit under § 74:52:04:03 with appropriate conditions; or

(4) Take other action authorized by the SWD permit regulations in chapters 74:52:01 to 74:52:11, inclusive.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:07, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:02:07 Review of applications

The secretary may not begin processing a SWD permit before receiving a complete application, except for general permits. A permit application is complete when the secretary receives a signed application form with supplemental information which is determined to be complete.

Cross-Reference: General permits, § 74:52:02:46.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:08, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:02:08 Information requirements

All applicants for SWD permits must provide the following information to the secretary, using the application form provided by the secretary:

(1) The activities being conducted which require the applicant to obtain a SWD permit;

(2) The name, mailing address, and location of the facility for which the application is submitted;

(3) From one to four Standard Industrial Classification (SIC) codes which best reflect the principal products or services provided by the facility;

(4) The operator's name, address, telephone number, ownership status, and federal, state, private, public, or other entity status;

(5) Whether the facility is located on Indian lands;

(6) A list of all other relevant environmental permits or construction approvals received or required by state or federal law;

(7) A topographic map, or other map if a topographic map is unavailable, extending one mile beyond the property boundaries of the source, depicting the facility and each of its intake and discharge facilities; each of its hazardous waste treatment, storage, or disposal facilities; each well where fluids from the facility are injected underground; and those wells, springs, other surface water bodies, and drinking water wells and surface water intake structures listed in public records or otherwise known to the applicant in the map area;

(8) A brief description of the nature of the business;

(9) Any other information required by the secretary to determine any significant adverse environmental effects of the discharge;

(10) The signature of the certifying official under § 74:52:02:18;

(11) Whether the applicant, any officer, director, partner, or resident general manager making the application meets any of the criteria contained in SDCL 1-40-27; and

(12) Whether the application substantially duplicates an application by the same applicant which was denied by the secretary within the past five years and which has not been reversed by a court of competent jurisdiction.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:09, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-36, 1-40-27, 1-40-28.

ARSD 74:52:02:09 Application requirements for new sources and new discharges

In addition to the information required by § 74:52:02:08, new manufacturing, commercial, mining, and silvicultural dischargers applying for SWD permits must provide the following information to the secretary, using application forms provided by the secretary:

(1) The location of the outfalls, including the latitude and longitude to the nearest 15 seconds, and the name of the receiving water;

(2) The expected date of commencement of discharge;

(3) The flows, sources of pollution, and treatment technologies, including the following:

(a) A description of the treatment that the wastewater will receive, along with all operations contributing wastewater to the effluent, average flow contributed by each operation, and the ultimate disposal of any solid or liquid wastes not discharged. The average flow of point sources composed of storm water may be estimated. The basis for the rainfall event and the method of estimation must be indicated;

(b) A line drawing of the water flow through the facility with a water balance, showing operations contributing wastewater to the effluent and treatment units. Similar processes, operations, or production areas may be indicated as a single unit, labeled to correspond to the more detailed identification under subdivision (c) of this section. The water balance shall show approximate average flows at intake and discharge points and between units, including treatment units. If a water balance cannot be determined, the applicant may provide a pictorial description of the nature and amount of any sources of water and any collection and treatment measures; and

(c) If any of the expected discharges will be intermittent or seasonal, a description of the frequency, duration, and maximum daily flow rate of each discharge occurrence, except for storm water runoff, spillage, or leaks;

(4) If a new source performance standard promulgated under § 306 of the CWA (40 C.F.R. Parts 405 to 699, July 1, 1991) or an effluent limitation guideline applies to the applicant and is expressed in terms of production or another measure of operation, a reasonable measure of the applicant's expected actual production reported in the units used in the applicable effluent guideline or new source performance standard for each of the first three years. Alternative estimates may also be submitted if production is likely to vary;

(5) Estimates of pollutants expected to be present in a discharge. The applicant shall indicate if the pollutant is present solely due to the intake water. All levels, except for discharge flow, temperature, and pH, must be estimated as concentration and as total mass. Applicants must report the following:

(a) Estimated daily maximum, daily average, and the source of information for each outfall for the following pollutants or parameters. The secretary may waive the reporting requirements of any of these pollutants and parameters if the applicant submits a request for such a waiver before or with the application which demonstrates that information adequate to support issuance of the permit can be obtained through less stringent reporting requirements:

(i) Biochemical oxygen demand (BOD);

(ii)Chemical oxygen demand (COD);

(iii) Total organic carbon (TOC);

(iv) Total suspended solids (TSS);

(v) Flow;

(vi) Ammonia (as N);

(vii) Temperature (winter and summer); and

(viii) pH;

(b) Estimated daily maximum, daily average, and the source of information for each outfall for the pollutants in § 74:52:02:43 if the applicant knows or has reason to believe they will be present or if they are limited by an effluent limitation guideline or new source performance standard either directly or indirectly through limitations on an indicator pollutant;

(c) Estimated daily maximum, daily average, and source of information for the following pollutants if the applicant knows or has reason to believe that they will be present in the discharges from any outfall:

(i) The toxic metals, cyanide, and total phenols listed in § 74:52:02:42;

(ii)The organic toxic pollutants in § 74:52:02:41 by GC/MS fraction and as required by the industrial categories in § 74:52:02:39;

(d) That 2, 3, 7, 8 tetrachlorodibenzo-p-dioxin (TCDD) may be discharged if the applicant uses or manufactures one of the following compounds or if the applicant knows or has reason to believe that TCDD will or may be present in an effluent:

(i) 2,4,5-trichlorophenoxy acetic acid (2,4,5-T) {Chemical Abstract Services (CAS) #93-76-5};

(ii)2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5-TP) (CAS #93-72-1);

(iii) 2-(2,4,5-trichlorophenoxy) ethyl 2,2-dichloropropionate (Erbon) (CAS #136-25-4);

(iv) 0,0-dimethyl 0-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel) (CAS #299-84-3);

(v) 2,4,5-trichlorophenol (TCP) (CAS #95-95-4); or

(vi) Hexachlorophene (HCP) (CAS #70-80-4);

(e) Any hazardous substances listed in § 74:52:02:44 if the applicant believes they will be present in any outfall. No quantitative estimates are required unless they are already available;

(f) No later than two years after the commencement of a discharge from the proposed facility, the applicant must complete and submit items V and VI of the SWD permit application form. However, the applicant need not complete those portions of item V requiring tests which the applicant has already performed and reported under the discharge monitoring requirements of the applicant's SWD permit;

(6) The existence of any technical evaluation concerning the applicant's wastewater treatment, along with the name and location of similar plants of which the applicant has knowledge; and

(7) Any optional information the applicant wishes to have considered.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:18:12, 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:09.01, July 1, 1996; 28 SDR 157, effective May 16, 2002.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:02:10 Application requirements for existing manufacturing, commercial, mining, and silvicultural dischargers

In addition to the information required by § 74:52:02:08, existing manufacturing, commercial, mining, and silvicultural dischargers applying for SWD permits must provide the following information to the secretary, using application forms provided by the secretary:

(1) The location of the outfalls, including the latitude and longitude to the nearest 15 seconds and the name of the receiving water;

(2) A line drawing of the water flow through the facility with a water balance, showing operations contributing wastewater to the effluent and treatment units. Similar processes, operations, or production areas may be indicated as a single unit, labeled to correspond to the more detailed identification under subdivision (3) of this section. The water balance must show approximate average flows at intake and discharge points and between units, including treatment units. If a water balance cannot be determined, the applicant may provide a pictorial description of the nature and amount of any sources of water and any collection and treatment measures;

(3) A narrative identification of each type of process, operation, or production area which contributes wastewater to the effluent for each outfall, including process wastewater, cooling water, and storm water runoff; the average flow which each process contributes; and a description of the treatment the wastewater receives, including the ultimate disposal of any solid or fluid wastes other than by discharge. For a privately owned treatment works, this information must include the identity of each user of the treatment works. The average flow of point sources composed of storm water may be estimated. The basis for the rainfall event and the method of estimation must be indicated;

(4) If any of the discharges described in subdivision (3) of this section are intermittent or seasonal, a description of the frequency, duration, and flow rate of each discharge occurrence, except for storm water runoff, spillage, or leaks;

(5) If an EPA effluent guideline incorporated by reference in § 74:52:10:01 applies to the applicant and is expressed in terms of production or other measure of operation, a reasonable measure of the applicant's actual production reported in the units used in the applicable effluent guideline. The reported measure must reflect the actual production of the facility as required by § 74:52:03:15;

(6) If the applicant is subject to any present requirements or compliance schedules for construction, upgrading, or operation of waste treatment equipment, an identification of the abatement requirement, a description of the abatement project, and a listing of the required and projected final compliance dates;

(7) When quantitative data for a pollutant is required in this subdivision, the applicant must collect a sample of effluent as set forth in 40 C.F.R. 122.21(g)(7) (July 24, 1992) and analyze it for the pollutant in accordance with analytical methods approved under 40 C.F.R. Part 136 (July 1, 1996). The secretary may allow the applicant to test only one outfall and report that the quantitative data also applies to the substantially identical outfalls. The requirements in subsections (b) and (c) of this subdivision that require that an applicant provide quantitative data for certain pollutants known or believed to be present do not apply to pollutants present in a discharge solely as the result of their presence in intake water; however, an applicant must report such pollutants as present. Grab samples must be used for pH, temperature, cyanide, total phenols, residual chlorine, oil and grease, and fecal coliform. For all other pollutants, 24-hour composite samples must be used. However, a minimum of one grab sample may be taken for effluents from holding ponds or other impoundments with a retention period greater than 24 hours and a minimum of one to four grab samples may be taken for storm water discharges depending on the duration of the discharge. One grab sample must be taken in the first hour or less of discharge with one additional grab sample taken in each succeeding hour of discharge up to a minimum of four grab samples for discharges lasting four or more hours. In addition, the secretary may waive composite sampling for any outfall for which the applicant demonstrates that the use of an automatic sampler is not feasible and that the minimum of four grab samples will be a representative sample of the effluent being discharged. An applicant is expected to know or have reason to believe that a pollutant is present in an effluent based on an evaluation of the expected use, production, or storage of the pollutant or on any previous analyses for the pollutant. Applicants must report the following:

(a) Quantitative data for each outfall for the following pollutants:

(i) Biochemical oxygen demand (BOD);

(ii)Chemical oxygen demand (COD);

(iii) Total organic carbon (TOC);

(iv) Total suspended solids (TSS);

(v) Ammonia (as N);

(vi) Temperature (both winter and summer); and

(vii) pH.

(b) If the applicant has processes in one or more primary industry categories listed in § 74:52:02:39 which contribute to a discharge, quantitative data for the following pollutants in each outfall containing process wastewater:

(i) The organic toxic pollutants in the fractions designated in § 74:52:02:41 for the applicant's industrial category or categories. The fractions for each toxic pollutant result from the sample preparation required by the analytical procedure which uses gas chromatography/mass spectrometry (GC/MS). A determination that an applicant falls within a particular industrial category for the purposes of selecting fractions for testing applies to testing only; and

(ii)The toxic metals, cyanide, and total phenols listed in § 74:52:02:42;

(c) Whether the applicant knows or has reason to believe that any of the conventional and nonconventional pollutants in § 74:52:02:43 is discharged from each outfall. If an applicable effluent limitation guideline either directly limits the pollutant or, by its expressed terms, indirectly limits the pollutant through limitation on an indicator, the applicant must report quantitative data. For each pollutant discharged which is not so limited in an effluent limitation guideline, the applicant must either report quantitative data or briefly describe the reasons the pollutant is expected to be discharged;

(d) Whether the applicant knows or has reason to believe that any of the toxic pollutants and total phenols listed in §§ 74:52:02:41 and 74:52:02:42, for which quantitative data are not otherwise required under subsection (a) of this subdivision, is discharged from each outfall. For each pollutant expected to be discharged in concentrations of 10 parts per billion (ppb) or greater, the applicant must report quantitative data. If acrolein, acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4,6 dinitrophenol are expected to be discharged in concentrations of 100 ppb or greater, the applicant must report quantitative data. For each pollutant expected to be discharged in concentrations less than 10 ppb, or in the case of acrolein, acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4,6 dinitrophenol, in concentrations less than 100 ppb, the applicant must either submit quantitative data or briefly describe the reasons the pollutant is expected to be discharged;

(e) Whether the applicant knows or has reason to believe that any of the hazardous substances and asbestos in § 74:52:02:44 are discharged from each outfall. For each pollutant expected to be discharged, the applicant must briefly describe the reasons the pollutant is expected to be discharged and report any quantitative data for the pollutant;

(f) Qualitative data, generated using a screening procedure not calibrated with analytical standards, for 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) if it meets one of the following requirements:

(i) Uses or manufactures 2,4,5-trichlorophenoxy acetic acid (2,4,5-T); 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5-TP); 2-(2,4,5-trichlorophenoxy) ethyl 2,2-dichloroproprionate (Erbon); 0,0-dimethyl 0-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel); 2,4,5-trichloropheno (TCP); or hexachlorophene (HCP); or

(ii)Knows or has reason to believe that TCDD is or may be present in an effluent;

(8) A listing of any toxic pollutant which the applicant currently uses or manufactures as an intermediate or final product or by-product. The secretary may waive or modify this requirement for an applicant if the applicant demonstrates that it would be unduly burdensome to identify each toxic pollutant and the secretary has adequate information to issue the permit;

(9) Any biological toxicity tests which the applicant knows or has reason to believe have been made within the last three years on any of the applicant's discharges or on a receiving water in relation to a discharge;

(10) If a contract laboratory or consulting firm performed any of the analyses required by this section, the identity of each laboratory or firm and the analyses performed; and

(11) In addition to the information reported on the application form, other information requested by the secretary that may reasonably be needed to assess the discharges of the facility and to determine whether to issue a SWD permit. The additional information may include additional quantitative data and bioassays to assess the relative toxicity of discharges to aquatic life and requirements to determine the cause of the toxicity.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:18:18, 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:09.02, July 1, 1996; 23 SDR 180, effective April 30, 1997.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:02:11 Application requirements for manufacturing, commercial, mining, and silvicultural facilities which discharge only nonprocess wastewater

In addition to the information required by § 74:52:02:08, all manufacturing, commercial, mining, and silvicultural dischargers applying for SWD permits which discharge only nonprocess wastewater, excluding storm water, and not regulated by chapter 74:52:10, must provide the following information to the secretary, using application forms provided by the secretary:

(1) The location of the outfalls, including the latitude and longitude to the nearest 15 seconds and the name of the receiving water;

(2) The date of expected commencement of discharge;

(3) An identification of the general type of waste discharged, or expected to be discharged upon commencement of operations, including sanitary wastes, restaurant or cafeteria wastes, or noncontact cooling water. An identification of cooling water additives, if any, that are used or expected to be used upon commencement of operations, along with their composition if existing composition is available;

(4) Quantitative data for pollutants or parameters listed below, unless testing is waived by the secretary. The quantitative data may be data collected over the past 365 days, if they remain representative of current operations, and must include maximum daily value, average daily value, and the number of measurements taken. The applicant must collect as set forth in 40 C.F.R. 122.21(g)(7) (July 24, 1992) and analyze samples in accordance with 40 C.F.R. Part 136 (July 1, 1996). New dischargers must include estimates for the pollutants and parameters listed below instead of actual sampling data, along with the source of each estimate. All levels must be reported or estimated as concentration and as total mass, except for flow, pH, and temperature:

(i) Biochemical oxygen demand (BOD);

(ii)Total suspended solids (TSS);

(iii) Fecal coliform, if believed to be present or if sanitary waste is or will be discharged;

(iv) Total residual chlorine, if chlorine is used;

(v) Oil and grease;

(vi) Chemical oxygen demand (COD), if noncontact cooling water is or will be discharged;

(vii) Total organic carbon (TOC), if noncontact cooling water is or will be discharged;

(viii) Ammonia (as N);

(ix Discharge flow;

(x) pH; and

(xi) Temperature (both winter and summer).

History

Source: 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:09.03, July 1, 1996; 23 SDR 180, effective April 30, 1997.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:02:12 Additional requirements for new dischargers

The secretary may waive the reporting requirements for one or more of the pollutants listed in this subsection if the applicant has demonstrated that the waiver is appropriate because information adequate to support issuance of a permit can be obtained with less stringent requirements. If the applicant is a new discharger, the applicant must submit quantitative data on the parameters listed in this subdivision within two years after commencement of discharge. However, the applicant need not submit quantitative data which has already been performed and reported under the discharge monitoring requirements of the SWD permit. The requirements of this subdivision do not apply to pollutants present in a discharge solely as a result of their presence in intake water. The required parameters are as follows:

(1) A description of the frequency of flow and duration of any seasonal or intermittent discharge, except for storm water or spills;

(2) A brief description of any system used or to be used; and

(3) Any additional information the applicant wishes to be considered.

History

Source: 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:09.04, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:02:13 Application requirements for whole effluent biological toxicity testing by POTWs

In addition to the information required by § 74:52:02:08, POTWs with design influent flow equal to or greater than one million gallons a day and POTWs with approved pretreatment programs or POTWs required to develop a pretreatment program shall provide the results of valid whole effluent toxicity testing to the secretary.

In addition, the secretary may require other POTWs to submit the results of toxicity tests with their permit application, based on consideration of the following factors:

(1) The variability of the pollutants or pollutant parameters in the POTW effluent, based on chemical-specific information, the type of treatment facility, and types of industrial contributors;

(2) The dilution of the effluent in the receiving water (ratio of effluent flow to receiving stream flow);

(3) Existing controls on point or nonpoint sources, including total maximum daily load calculations for the waterbody segment and the relative contribution of the POTW;

(4) Receiving stream characteristics, including possible or known water quality impairment, and whether the POTW discharges to an outstanding natural resource water; and

(5) Other considerations, including the history of toxic impact and compliance problems at the POTW, which the secretary determines could cause or contribute to adverse water quality impacts.

POTWs required in this section to conduct toxicity testing shall use EPA methods or other established protocols which are scientifically defensible and sufficiently sensitive to detect aquatic toxicity. Such testing must have been conducted since the last SWD permit reissuance or permit modification under chapter 74:52:04, whichever occurred later.

References:

Short-Term Methods for Estimating the Chronic Toxicity of Effluents and Receiving Waters to Freshwater Organisms , Stock Number EPA/600/4-89/001, March, 1989, U.S. Environmental Protection Agency, Office of Research and Development. Copies are available from the National Technical Information Service, U.S. Department of Commerce, Springfield, Virginia 22161. The cost is $18.95.

Methods for Measuring the Acute Toxicity of Effluents and Receiving Waters to Freshwater Organisms , (fourth edition), Stock Number EPA/600/4-90/027, September, 1991, U.S. Environmental Protection Agency, Office of Research and Development. Copies are available from the National Technical Information Service, U.S. Department of Commerce, Springfield, Virginia 22161. The cost is $24.95.

Cross-Reference: Outstanding state resource waters, § 74:51:01:39.

History

Source: 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:09.05, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:02:14 Application requirements for POTWs with approved pretreatment programs

In addition to the application requirements in § 74:52:02:08, POTWs with approved local pretreatment programs shall provide the secretary a written technical evaluation of the need to revise local limits as defined by § 74:52:11:01.

History

Source: 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:09.06, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:02:14.01 Application requirements for treatment works treating domestic sewage

In addition to the application requirements in § 74:52:02:08, treatment works treating domestic sewage shall provide:

(1) A topographic map, or other map if a topographic map is unavailable, that extends one mile beyond the property boundaries of the treatment works treating domestic sewage and depicts the location of the sludge management facilities (including disposal sites), the location of all water bodies, and the location of wells used for drinking water within one-quarter mile of the property boundaries that are listed in the public records or otherwise known to the applicant;

(2) Any sludge monitoring data the applicant may have for landfills or land application sites, including available groundwater monitoring data, with a description of the well locations and approximate depth to groundwater;

(3) A description of the applicant's sludge use and disposal practices, including, as applicable, the location of any sites where the applicant transfers sludge for treatment or disposal or both; the name of the applicator or other contractor who applies the sludge to land if different from the applicant; and the name of any distributors, if different from the applicant, if the sludge will be disposed of through distribution and marketing;

(4) For each land application site the applicant will use during the life of the permit, the applicant must supply information necessary to determine if the site is appropriate for land application and a description of how the site is or will be managed. Applicants intending to apply sludge to land application sites not identified at the time of application must submit a land application plan which at a minimum:

(a) Describes the geographical area covered by the plan;

(b) Identifies site selection criteria;

(d) Provides a 30-day advance notice to the secretary of specific land application sites, allowing the secretary to object before sludge application;

(5) Annual sludge production volume estimates;

(6) Provides any information required to determine the applicable standards for permitting under 40 C.F.R. Part 503 (October 25, 1995); and

(7) Provides any other information the secretary requires to assess the sludge use and disposal practices, to determine whether to issue a permit, or to ascertain applicable permit requirements.

History

Source: 23 SDR 180, effective April 30, 1997.
General Authority: SDCL 34A-2-30, 34A-2-93.
Law Implemented: SDCL 1-40-27, 1-40-28, 34A-2-123.

ARSD 74:52:02:15 Recordkeeping

Applicants must keep records of all data used to complete permit applications and any supplemental information submitted under this chapter for a period of at least three years from the date the application is signed.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:18:10, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40.

ARSD 74:52:02:16 Service of process

Each applicant shall provide the secretary with an address for receipt of any legal paper for service of process. The last address provided to the secretary pursuant to this provision must be the address at which the secretary may tender any legal notice, including service of process in connection with an enforcement action. Service is complete upon tender of the notice, process, or order and shall not be considered incomplete because of the refusal to accept it or because the addressee is not found.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:18:11, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-44.

ARSD 74:52:02:17 Confidentiality of information

Certain information submitted to the secretary pursuant to chapters 74:52:01 to 74:52:11, inclusive, may be claimed as confidential by the applicant under SDCL 34A-2-94. The claim must be asserted at the time of submission of the application form or, in the case of other submissions, by stamping the words "confidential business information" on each page containing such information. If no claim is made at the time of submission, the secretary may make the information available to the public without further notice.

Information which includes effluent data and records required by SWD application forms provided by the secretary may not be claimed as confidential.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:13, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40, 34A-2-44, 34A-2-94.

ARSD 74:52:02:18 Signatory requirements for permit applications

All permit applications must be signed as follows:

(1) For a corporation: by a responsible corporate officer. For the purpose of this subdivision, a responsible corporate officer means one of the following:

(a) A president, secretary, treasurer, or vice-president of the corporation in charge of a principal business or function or any other person who performs similar policy or decision-making functions for the corporation; or

(b) The manager of one or more manufacturing, production, or operating facilities employing more than 250 persons or having gross annual sales or expenditures exceeding $25 million, if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures;

(2) For a partnership or sole proprietorship: by a general partner or the proprietor, respectively; or

(3) For a municipality, state, federal, or other public agency: by either a principal executive officer or ranking elected official. For the purpose of this subdivision a principal executive officer of a federal agency is the chief executive officer who has responsibility for the overall operations of a principal geographic unit of the agency.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:14, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40.

ARSD 74:52:02:19 Signatory requirements for reports

All reports required by permits and other information requested by the secretary must be signed by a person described in § 74:52:02:18 or by an authorized representative of that person. A person is a duly authorized representative only under the following circumstances:

(1) The authorization is made in writing by a person described in § 74:52:02:18;

(2) The authorization specifies either an individual or a position with responsibility for the overall operation of the regulated facility or activity, such as the position of plant manager, operator of a well or a well field, superintendent, or a position of equivalent responsibility or an individual or position with overall responsibility for environmental matters for the company; and

(3) The written authorization is submitted to the secretary.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:18:15, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:02:20 Changes to signatory authorization

If an authorization under § 74:52:02:19 is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of § 74:52:02:18 must be submitted to the secretary prior to or together with any reports, information, or applications to be signed by an authorized representative.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:18:16, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:02:21 Certification of documents

A person signing a document under this chapter must make the following certification:

"I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations."

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:18:17, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40.

ARSD 74:52:02:22 Additional requirements for concentrated animal feeding operations

In addition to the requirements in chapters 74:52:01 to 74:52:11, inclusive, requirements for concentrated animal feeding operations are contained in 40 C.F.R. §§ 122.23, 122.28(b)(2)(vii), and 122.42(e) (July 30, 2012).

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:18:20, July 1, 1996; 29 SDR 176, effective July 1, 2003; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-30, 34A-2-93(9).
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:02:23 Repealed

Definitions applicable to concentrated animal feeding operations.** Repealed.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:21, July 1, 1996; repealed, 29 SDR 176, effective July 1, 2003.

ARSD 74:52:02:24 Repealed

Two or more concentrated animal feeding operations may be permitted as one operation.** Repealed.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:18:22, July 1, 1996; repealed, 29 SDR 176, effective July 1, 2003.

ARSD 74:52:02:25 Repealed

Designation of animal feeding operation as concentrated animal feeding operation.** Repealed.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:18:23, July 1, 1996; repealed, 29 SDR 176, effective July 1, 2003.

ARSD 74:52:02:26 Repealed

Small feeding operations not subject to SWD regulations unless they discharge pollutants.** Repealed.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:18:24, July 1, 1996; repealed, 29 SDR 176, effective July 1, 2003.

ARSD 74:52:02:27 Repealed

Inspection of small feeding operations required before subjecting to SWD regulations.** Repealed.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:25, July 1, 1996; repealed, 29 SDR 176, effective July 1, 2003.

ARSD 74:52:02:28 Application requirements for new and existing concentrated animal feeding operations

New and existing concentrated animal feeding operations shall provide the following information, using the application form provided by the secretary:

(1) The name of the owner or operator;

(2) The facility location and mailing address;

(3) Latitude and longitude of the entrance to the production area;

(4) A topographic map, or other map if a topographic map is unavailable, extending one mile beyond the property boundaries of the operation and showing the specific location of the production area;

(5) Specific information about the number and type of animals, whether in open confinement or housed under roof, including beef cattle, broilers, layers, swine weighing 55 pounds or more, swine weighing less than 55 pounds, mature dairy cows, dairy heifers, veal calves, sheep and lambs, horses, ducks, turkeys, and other;

(6) The type of containment and storage, such as anaerobic lagoon, roofed storage shed, storage ponds, underfloor pits, above ground storage tanks, below ground storage tanks, concrete pad, impervious soil pad, other and total capacity for manure, litter, and process wastewater storage in tons or gallons;

(7) The total number of acres under control of the applicant available for land application of manure, litter, or process wastewater;

(8) Estimated amounts of manure, litter, and process wastewater generated per year in tons or gallons;

(9) Estimated amounts of manure, litter, and process wastewater transferred to other persons per year in tons or gallons;

(10) For CAFOs that must seek coverage under a permit after December 31, 2006, a nutrient management plan that will be implemented upon the date of permit coverage;

(11) The activities being conducted which require the applicant to obtain a SWD permit;

(12) From one to four Standard Industrial Classification (SIC) codes which best reflect the principal products or services provided by the facility;

(13) The operator's address, telephone number, ownership status, and federal, state, private, public, or other entity status;

(14) Whether the facility is located on Indian lands;

(15) A list of all other relevant environmental permits or construction approvals received or required by state or federal law;

(16) Manure management system plans and specifications for review and approval in accordance with chapter 74:53:04;

(17) A brief description of the nature of the business;

(18) Any other information required by the secretary to determine any significant adverse environmental effects of the discharge;

(19) The signature of the certifying official under § 74:52:02:18;

(20) Whether the applicant, any officer, director, partner, or resident general manager making the application meets any of the criteria contained in SDCL 1-40-27; and

(21) Whether the application substantially duplicates an application by the same applicant which was denied by the secretary within the past five years and which has not been reversed by a court of competent jurisdiction.

Subdivisions (1) to (10), inclusive, of this section must also be included in any notice of intent for coverage under a general permit for concentrated animal feeding operations.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:26, July 1, 1996; 29 SDR 176, effective July 1, 2003.
General Authority: SDCL 34A-2-30; 34A-2-93.
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:02:29 Repealed

Criteria for concentrated animal feeding operation.** Repealed.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:18:27, July 1, 1996; repealed, 29 SDR 176, effective July 1 , 2003.

ARSD 74:52:02:30 Permit requirements for the land application of manure, litter, and process wastewater

Any permit for a concentrated animal feeding operation must include technical standards for nutrient management established by the secretary to minimize nitrogen and phosphorous transport from land application fields to surface waters of the state.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:18:28, July 1, 1996; 29 SDR 176, effective July 1, 2003.
General Authority: SDCL 34A-2-30, 34A-2-93.
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:02:31 Definitions applicable to concentrated aquatic animal production facilities

The following definitions are applicable to concentrated aquatic animal production facilities:

(1) "Cold water aquatic animals," cold water fish or other animals that thrive in cold water including the Salmonidae family of fish; for example, trout and salmon;

(2) "Concentrated aquatic animal production facility," a hatchery, fish farm, or other facility which meets the criteria of § 74:52:02:35 or which the secretary designates under § 74:52:02:32; and

(3) "Warm water aquatic animals," warm water fish or other animals that thrive in warm water including the Ameiuride, Centrachidae, and Cyprinidae families of fish; for example, catfish, sunfish, and minnows, respectively.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:30, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:02:32 Designation of small aquatic animal production facility as concentrated aquatic animal production facility

The secretary may designate any warm or cold water aquatic animal production facility as a concentrated aquatic animal production facility upon determining that it is a significant contributor of pollution to the surface waters of the state. In making this designation the secretary shall consider the following factors:

(1) The location and quality of the receiving waters of the state;

(2) The holding, feeding, and production capacities of the facility;

(3) The quantity and nature of the pollutants reaching surface waters of the state; and

(4) Other relevant factors.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:31, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:02:33 Inspection of small aquatic animal production facilities required before subjecting to SWD regulations

A permit application is not required from a concentrated aquatic animal production facility designated under § 74:52:02:32 until the secretary has conducted an on-site inspection of the facility and has determined that the facility could and should be covered by chapters 74:52:01 to 74:52:11, inclusive.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:32, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:02:34 Application requirements for new and existing concentrated aquatic animal production facilities

In addition to the requirements in § 74:52:02:08, new and existing concentrated aquatic animal production facilities shall provide the following information using the application form provided by the secretary:

(1) The maximum daily and average monthly flow from each outfall;

(2) The number of ponds, raceways, and similar structures;

(3) The name of the receiving water and the source of intake water;

(4) For each species of aquatic animals, the total yearly and maximum harvestable weight; and

(5) The calendar month of maximum feeding and the total mass of food fed during that month.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:33, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:02:35 Criteria for concentrated aquatic animal production facility

A hatchery, fish farm, or other facility is a concentrated aquatic animal production facility for purposes of this chapter if it contains, grows, or holds aquatic animals in either of the following categories:

(1) Cold water fish species or other cold water aquatic animals, as defined in § 74:52:02:31, in ponds, raceways, or similar structures which discharge at least 30 days a year but not facilities which produce less than 9,090 harvest weight kilograms (approximately 20,000 pounds) of aquatic animals a year and facilities which feed less than 2,272 kilograms (approximately 5,000 pounds) of food during the calendar month of maximum feeding.

(2) Warm water fish species or other warm water aquatic animals, as defined in § 74:52:02:31, in ponds, raceways, or similar structures which discharge at least 30 days a year, but not closed ponds which discharge only during periods of excess runoff or facilities which produce less than 45,454 harvest weight kilograms (approximately 100,000 pounds) of aquatic animals a year.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:34, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:02:36 Storm water discharges subject to SWD permit regulations

The following discharges are subject to the SWD permit regulations, as defined in this chapter and in 40 C.F.R. § 122 and § 123 (July 1, 2001):

(1) A storm water discharge associated with industrial activity;

(2) A storm water discharge from a large or medium municipal separate storm sewer system;

(3) A storm water discharge from a small municipal separate storm sewer system located in an urbanized area as determined by the 2000 census by the Bureau of Census;

(4) A storm water discharge from a small municipal separate storm sewer system serving a population greater than or equal to 10,000 persons;

(5) A storm water discharge associated with small construction activity; and

(6) A storm water discharge which the secretary determines to contribute to a violation of a water quality standard; to be a significant contributor of pollutants to the waters of the state; or to have the potential to contribute significant pollutants to waters of the state.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:35, July 1, 1996; 28 SDR 157, effective May 16, 2002.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:02:37 Application requirements for storm water discharges

South Dakota surface water discharge storm water permit application requirements and deadlines are those in 40 C.F.R. § 122 (July 1, 2001).

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:38, July 1, 1996; 28 SDR 157, effective May 16, 2002.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:02:38 Definitions applicable to silvicultural activities

The following definitions are applicable to silvicultural activities:

(1) "Silvicultural point source," any discernible, confined, and discrete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the state. The term does not include non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff;

(2) "Rock crushing and gravel washing facilities," facilities which process crushed and broken stone, gravel, and riprap as defined in 40 C.F.R. Part 436 Subpart B (July 1, 1991);

(3) "Log sorting and log storage facilities," facilities whose discharges result from the holding of unprocessed wood as defined in 40 C.F.R. Part 436 Subpart I (July 1, 1991).

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:40, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:02:39 Primary industry categories

A SWD permit issued to dischargers in the following primary industry categories must include effluent limitations, and if necessary, a compliance schedule to meet the requirements of chapters 74:52:01 to 74:52:11, inclusive, and requirements of §§ 301(b)(2)(A),(C),(D),(E), and (F) of the CWA, whether or not applicable effluent limitations guidelines have been promulgated:

(1) Adhesives and sealants;

(2) Aluminum forming;

(3) Auto and other laundries;

(4) Battery manufacturing;

(5) Coal mining;

(6) Coil coating;

(7) Copper forming;

(8) Electrical and electronic components;

(9) Electroplating;

(10) Explosives manufacturing;

(11) Foundries;

(12) Gum and wood chemicals;

(13) Inorganic chemicals manufacturing;

(14) Iron and steel manufacturing;

(15) Leather tanning and finishing;

(16) Mechanical products manufacturing;

(17) Nonferrous metals manufacturing;

(18) Ore mining;

(19) Organic chemicals manufacturing;

(20) Paint and ink formulation;

(21) Pesticides;

(22) Petroleum refining;

(23) Pharmaceutical preparations;

(24) Photographic equipment and supplies;

(25) Plastic processing;

(26) Plastic and synthetic materials manufacturing;

(27) Porcelain enameling;

(28) Printing and publishing;

(29) Pulp and paper mills;

(30) Rubber processing;

(31) Soap and detergent manufacturing;

(32) Steam electric power plants;

(33) Textile mills; and

(34) Timber products processing.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:41, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-37, 34A-2-39.

ARSD 74:52:02:40 SWD permit application testing requirements

As required by §§ 74:52:02:09 and 74:52:02:10, new and existing manufacturing, commercial, mining, and silvicultural dischargers with processes in one or more primary industrial categories contributing to a discharge must report quantitative data for the gas chromatography/mass spectroscopy (GC/MS) fraction for organic toxic pollutants as applicable in 40 C.F.R. Part 122, Appendix D, Table I (July 1, 201).

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:42, July 1, 1996; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:02:41 Organic toxic pollutants in GC/MS fractions

If quantitative data for organic toxic pollutants is required to be reported according to §§ 74:52:02:09 and 74:52:02:10 and testing requirements according to the GC/MS fraction are identified in the table in § 74:52:02:40, the quantitative data for the specific pollutant listed under the respective GC/MS fraction in 40 C.F.R. Part 122, Appendix D, Table II (July 1, 2016) must be reported.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:43, July 1, 1996; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-37, 34A-2-43.

ARSD 74:52:02:42 Application requirements for testing other toxic pollutants -- Metals, cyanide, and total phenols

As required by §§ 74:52:02:09 and 74:52:02:10, new and existing manufacturing, commercial, mining, and silvicultural activities must report quantitative data on the following pollutants if there is reason to believe they are present:

(1) Antimony, total;

(2) Arsenic, total;

(3) Beryllium, total;

(4) Cadmium, total;

(5) Chromium, total;

(6) Copper, total;

(7) Cyanide, weak acid dissociable;

(8) Lead, total;

(9) Mercury, total;

(10) Molybdenum, total;

(11) Nickel, total;

(12) Selenium, total;

(13) Silver, total;

(14) Thallium, total;

(15) Zinc, total;

(16) Cyanide, total; and

(17) Phenols, total.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:44, July 1, 1996; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-37, 34A-2-43.

ARSD 74:52:02:43 Application requirements for testing conventional and nonconventional pollutants

Applicants for new sources, new dischargers, and discharges from existing manufacturing, commercial, mining, and silvicultural activities must report according to §§ 74:52:02:09 and 74:52:02:10 quantitative data on the pollutants listed in 40 C.F.R. Part 122, Apendix D, Table IV (July 1, 2016) if they have reason to believe that they are present.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:45, July 1, 1996; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-37, 34A-2-43.

ARSD 74:52:02:44 Application requirements for identifying toxic pollutants and hazardous substances

Applicants for new sources, new discharges, and discharges from existing manufacturing, commercial, mining, and silvicultural activities must report according to §§ 74:52:02:09 and 74:52:02:10 any pollutant in 40 C.F.R. Part 122, Appendix D, Table V (July 1, 2016) if it is believed to be present.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:46, July 1, 1996; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-37, 34A-2-43.

ARSD 74:52:02:45 Certain application requirements suspended for some categories and subcategories of primary industries

Certain** application requirements suspended for some categories and subcategories of primary industries. The application requirements of subsection 74:52:02:10(7)(b)(i) are suspended for the following categories and subcategories of the primary industries listed in § 74:52:02:39:

(1) Coal mines;

(2) Testing and reporting for all four organic fractions in the griege mills subcategory of the textile mills industry and testing and reporting for the pesticide fraction in all other subcategories of this industrial category;

(3) Testing and reporting for the volatile, base/neutral, and pesticide fractions in the base and precious metals subcategory of the ore mining and dressing industry and testing and reporting for all four fractions in all other subcategories of this industrial category;

(4) Testing and reporting for all four GC/MS fractions in the porcelain enameling industry;

(5) Testing and reporting for the pesticide fraction in the tall oil resin subcategory and rosin-based derivatives subcategory of the gum and wood chemicals industry and testing and reporting for the pesticide and base/neutral fractions in all other subcategories of this industrial category;

(6) Testing and reporting for the pesticide fraction in the leather tanning and finishing, paint and ink formulation, and photographic supplies industrial categories;

(7) Testing and reporting for the acid, base/neutral, and pesticide fractions in the petroleum refining industrial category;

(8) Testing and reporting for the pesticide fraction in the papergrade sulfite subcategories of the pulp and paper industry; testing and reporting for the base/neutral and pesticide fractions in the following subcategories: deink dissolving kraft and paperboard from waste paper; testing and reporting for the volatile, base/neutral, and pesticide fractions in the following subcategories: BCT bleached kraft, semichemical and nonintegrated fine papers; and testing and reporting for the acid, base/neutral, and pesticide fractions in the following subcategories: fine bleached kraft, dissolving sulfite pulp, groundwood-fine papers, market bleached kraft, tissue from wastepaper, and nonintegrated-tissue papers;

(9) Testing and reporting for the base/neutral fraction in the once-through cooling water, fly ash, and bottom ash transport water process wastestreams of the steam electric power plant industrial category.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:18:47, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:02:46 General permits

The secretary may issue a general permit in accordance with the following:

(1) The general permit shall be written to cover a category of discharges described in the permit under subdivision (2) of this section, except those covered by individual permits, within a geographic area;

(2) The general permit may be written to regulate, within the area described in subdivision (1) of this section, either:

(a) Storm water point sources; or

(b) A category of point sources or industrial users if the sources all meet the following requirements:

(i) Involve the same or substantially similar types of operations;

(ii) Discharge the same types of wastes;

(iii) Require the same effluent limitations, operating conditions, or standards for sewage sludge use or disposal;

(iv) Require the same or similar monitoring; and

(v) In the opinion of the secretary, are more appropriately controlled under a general permit.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:18:48, July 1, 1996; 23 SDR 180, effective April 30, 1997; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:02:47 Secretary may require individual permits

The secretary may require any person authorized by a general permit to apply for and obtain an individual SWD permit. Any interested person may petition the secretary to take action under this section. Cases for which an individual SWD permit may be required include the following:

(1) The discharge is a significant contributor of pollution to waters of the state or it presents a health hazard;

(2) The discharger or treatment works treating domestic sewage is not in compliance with the conditions of the SWD general permit;

(3) A change has occurred in the availability of demonstrated technology or practices for the control or abatement of pollutants applicable to the point source;

(4) Effluent limitation guidelines are promulgated for point sources covered by the SWD general permit;

(5) A water quality management plan containing requirements applicable to such point sources is approved.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:18:49, July 1, 1996; 23 SDR 180, effective April 30, 1997.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-36.

Chapter 74:52:03 Permit conditions

ARSD 74:52:03:01 Conditions applicable to all SWD permits

The conditions established in §§ 74:52:03:02 to 74:52:03:10, inclusive, are applicable to all SWD permits.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:19:01, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-39 to 34A-2-42, 34A-2-44.

ARSD 74:52:03:02 Standard conditions

The standard SWD permit conditions are as follows:

(1) The permittee must comply with all conditions of the SWD permit. Any permit noncompliance constitutes grounds for enforcement action pursuant to the Act, permit termination, revocation and reissuance, modification, or denial of a permit renewal application;

(2) If the permittee wishes to continue an activity regulated by the permit after the expiration date of the permit, the permittee must apply for and obtain a new permit;

(3) A permittee may not use as a defense in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of the permit;

(4) The permittee must take all reasonable steps to minimize or prevent any discharge in violation of the permit which has a reasonable likelihood of adversely affecting human health or the environment;

(5) The permittee shall at all times operate and maintain all facilities and systems of treatment and control and related appurtenances which are installed or used by the permittee in a manner to achieve compliance with the conditions of the permit. Operation and maintenance includes laboratory controls and quality assurance procedures. This subdivision requires the operation of backup or auxiliary facilities or similar systems which are installed by a permittee only if the operation is necessary to achieve compliance with the conditions of the permit;

(6) The permit may be modified, revoked and reissued, or terminated for cause. The filing of a request by the permittee for permit modification, revocation and reissuance, or termination or the filing of notification of planned changes or anticipated noncompliance does not relieve the permittee of any permit condition;

(7) The permit does not convey property rights of any sort or any exclusive privilege;

(8) The permittee shall furnish the secretary, within 30 days, any information which the secretary may request to determine whether cause exists for modifying, revoking and reissuing, or terminating the permit or to determine compliance with the permit. The permittee must furnish the secretary upon request, copies of records required to be kept by the permit;

(9) All applications and reports on information submitted to the secretary must be signed and certified; and

(10) If the permittee becomes aware that the permittee failed to submit any relevant facts in a permit application or submitted incorrect information in a permit application or any report to the secretary, the permittee must promptly submit such facts or information.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:02, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-39 to 34A-2-42, 34A-2-44.

ARSD 74:52:03:03 Right of entry

Upon the presentation of credentials and other necessary legal documents, the permittee must allow the secretary to do the following:

(1) Enter upon the permittee's premises where a regulated facility or activity is located or conducted or where records must be kept under the conditions of the permit;

(2) Have access to and copy any records that must be kept under the conditions of the permit;

(3) Inspect any facilities, equipment including monitoring and control equipment, practices, or operations regulated or required under the permit; and

(4) For the purposes of assuring permit compliance or as otherwise authorized by the CWA, any substances or parameters at any location.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:03, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-39 to 34A-2-42, 34A-2-44.

ARSD 74:52:03:04 Record keeping

The permittee must retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings and continuous monitoring instrumentation, copies of all reports required by the permit, and records of all data used to complete the application for the permit for a period of at least three years from the date of the sample, measurement, report, or application. The period may be extended by request of the secretary at any time.

Records of monitoring information must include the following:

(1) The date, exact place, and time of sampling or measurements;

(2) The individuals who performed the sampling or measurements;

(3) The dates analyses were performed;

(4) The individuals who performed the analyses;

(5) The analytical techniques or methods used; and

(6) The results of the analyses.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:04, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-39 to 34A-2-42, 34A-2-44.

ARSD 74:52:03:05 Reporting changes of operation

The following items must be reported to the secretary:

(1) The permittee must give notice to the secretary as soon as possible of any planned physical alterations or additions to the permitted facility. Notice is required only when the alteration or addition to a permitted facility meets the definition in § 74:52:01:01 of a new source or a new discharger or the alteration or addition could significantly change the nature or increase the quantity of any pollutants discharged;

(2) The permittee must give advance notice to the secretary of any planned changes in the permitted facility or activity which may result in noncompliance with permit requirements; and

(3) The permittee must notify the secretary if the permit is to be transferred to another person. The secretary may require modification or revocation and reissuance of the permit to change the name of the permittee and incorporate other necessary requirements.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:05, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-39 to 34A-2-42, 34A-2-44.

ARSD 74:52:03:06 Monitoring requirements

Monitoring requirements are as follows:

(1) Monitoring results must be reported at the intervals specified in the permit;

(2) Monitoring results must be reported on a discharge monitoring report (DMR);

(3) If the permittee monitors any pollutant more frequently than required by the permit, using test procedures approved in 40 C.F.R. Part 136 (July 1, 2016); in the case of sludge use or disposal, approved under 40 C.F.R. Part 136 (July 1, 2016) unless otherwise specified in 40 C.F.R. Part 503 (July 1, 2016); or as specified in the permit, the results of the monitoring must be included in the calculation and reporting of the data submitted in the DMR;

(4) Calculations for all limitations which require the average of several measurements must use an arithmetic mean unless otherwise specified by the secretary in the permit;

(5) Samples and measurements taken for the purpose of monitoring must be representative of the monitored activity; and

(6) Unless other test procedures are specified in the permit, samples must be conducted according to test procedures approved in 40 C.F.R. Part 136 (July 1, 2016), guidelines for establishing test procedures for the analysis of pollutants, or, in the case of sludge use or disposal, approved under 40 C.F.R. Part 136 (July 1, 2016) unless otherwise specified in 40 C.F.R. Part 503 (July 1, 2016).

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:06, July 1, 1996; 23 SDR 180, effective April 30, 1997; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-39 to 34A-2-42, 34A-2-44.

ARSD 74:52:03:07 Reporting compliance and noncompliance

Reporting compliance and noncompliance must be done as follows:

(1) The permittee must report any noncompliance which may endanger public health or the environment. The following information must be provided orally to the secretary within 24 hours from the time the permittee becomes aware of the circumstances:

(a) A unanticipated bypass which exceeds an effluent limitation in the permit;

(b) A upset which exceeds an effluent limitation in the permit;

(2) A written report must be provided to the secretary within five days after the time the permittee becomes aware of the circumstances. The written report must contain a description of the noncompliance and its cause; the period of noncompliance, including exact dates and times, and, if the noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent reoccurrence of the noncompliance;

(3) The secretary may waive the written report on a case-by-case basis for reports under subdivision (1) of this section if the oral report has been received within 24 hours; and

(4) The permittee must report all instances of noncompliance not reported under subdivision (1) of this section at the time monitoring reports are submitted. The reports shall contain the information listed in subdivision (2) of this section.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:07, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-39 to 34A-2-42, 34A-2-44.

ARSD 74:52:03:08 Anticipated bypass allowed

An anticipated bypass which causes the effluent limitations to be exceeded is prohibited, and the secretary may take enforcement action against a permittee for a bypass, unless the secretary approves the anticipated bypass after considering its adverse effects and determines that it will meet the following conditions:

(1) The bypass was unavoidable to prevent loss of life, threat to public health, personal injury, or severe property damage;

(2) There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate backup equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance; and

(3) The permittee notified the secretary at least ten days before the anticipated bypass.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:08, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-39 to 34A-2-42, 34A-2-44.

ARSD 74:52:03:09 Unanticipated bypass reporting

An unanticipated bypass must be reported to the secretary as soon as possible, but no later than 24 hours after the permittee first became aware of the circumstances. A written submission must also be provided within five days after the permittee becomes aware of the unanticipated bypass. The written submission shall contain:

(1) A description of the bypass and its cause;

(2) The period of bypass, including exact dates and times;

(3) The estimated time the bypass is expected to continue if it has not been corrected; and

(4) Steps taken or planned to reduce, eliminate, and prevent recurrence of a bypass.

The secretary may waive the written report on a case-by-case basis if the oral report was received within 24 hours.

History

Source: 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:08.01, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-39 to 34A-2-42, 34A-2-44.

ARSD 74:52:03:10 Upsets

A permittee who wishes to establish the affirmative defense of an upset must demonstrate, through signed, contemporaneous operating logs or other relevant evidence that the following happened:

(1) An upset occurred and the permittee can identify the cause or causes of the upset;

(2) The permitted facility was at the time being properly operated;

(3) The permittee gave 24-hour notice of the upset; and

(4) The permittee took remedial measures to minimize or prevent a discharge in violation of the permit.

In any enforcement proceeding, the permittee seeking to establish the occurrence of an upset has the burden of proof.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:09, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-39 to 34A-2-42, 34A-2-44.

ARSD 74:52:03:11 Additional reporting conditions applicable to existing manufacturing, commercial, mining, and silvicultural dischargers

Existing manufacturing, commercial, mining, and silvicultural dischargers must notify the secretary as soon as they know or have reason to believe that an activity has occurred or will occur which would result in the discharge of a toxic pollutant, as defined in § 74:52:01:01, which is not limited in the permit and the discharge will exceed the highest of the following notification levels:

(1) One hundred micrograms per liter (100 ug/L);

(2) Two hundred micrograms per liter (200 ug/L) for acrolein and acrolonitrile;

(3) Five hundred micrograms per liter (500 ug/L) for 2,4-dinitrophenol and for 2-methyl-4,6-dinitrophenol;

(4) One milligram per liter (1 mg/L) for antimony; or

(5) Five times the maximum concentration value reported for that pollutant in the permit application.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:10, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-43.

ARSD 74:52:03:12 Additional reporting conditions applicable to publicly owned treatment works

All POTWs must provide notice to the secretary of any new introduction of pollutants into the POTW from an indirect discharger which would be subject to § 301 or 306 of the CWA if it were directly discharging those pollutants. A notice is also required for any substantial change in the volume or character of pollutants being introduced into that POTW by a source.

For purposes of this section, adequate notice includes information on the quality and quantity of pollutants introduced into the POTW and any anticipated impact of the change on the quantity or quality of effluent to be discharged from the POTW.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:11, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-41.

ARSD 74:52:03:13 Additional permit conditions

In addition to the conditions required under §§ 74:52:03:01 to 74:52:03:12, inclusive, in all permits, the secretary shall establish conditions case-by-case to provide for and assure compliance with all applicable requirements of the CWA and state laws and rules. These conditions shall include the following when applicable:

(1) Technology-based effluent limitations and standards based on effluent limitations and standards promulgated under § 301 of the CWA or new source performance standards promulgated under § 306 of the CWA, on case-by-case limitations determined under § 402(a)(1) of the CWA, or on a combination of the two;

(2) For any discharger within a primary industry category as listed in § 74:52:02:39, prompt modification or revocation of a permit by the secretary to incorporate an applicable effluent standard or limitation under §§ 301(b)(2)(C) and (D), 304(b)(2), and 307(a)(2) of the CWA which is promulgated or approved after the permit is issued if that effluent standard or limitation is more stringent than any effluent limitation in the permit or controls a pollutant not limited in the permit;

(3) Other effluent limitations and standards in §§ 301, 302, 303, 307, 318, and 405 of the CWA. If an applicable toxic effluent standard or prohibition, including any schedule of compliance specified in the effluent standard or prohibition is promulgated under § 307(a) of the CWA for a toxic pollutant is more stringent than a limitation on the pollutant in the permit, the secretary shall institute proceedings under chapter 74:52:04 to modify or revoke and reissue the permit to conform to the toxic effluent standard or prohibition;

(4) Standards for sewage sludge use or disposal under § 405(d) of the CWA. If an applicable standard for sewage sludge use or disposal is promulgated under § 405(d) of the CWA and that standard is more stringent than any limit on the pollutant or practice in the permit, the secretary may initiate proceedings under chapter 74:52:04 to modify or revoke and reissue the permit to conform to the standard for sewage sludge use or disposal;

(5) Any requirements in addition to, or more stringent than, promulgated effluent limitations, guidelines, or standards under §§ 301, 304, 306, 307, 318 and 405 of the CWA necessary to do the following:

(a) Achieve water quality standards established by chapters 74:51:01, 74:51:02, and 74:51:03;

(b) Attain or maintain a specified water quality through water quality-related effluent limits established under § 302 of the CWA;

(c) Conform to applicable water quality requirements in § 401(a)(2) of the CWA when the discharge affects a state other than South Dakota;

(d) Incorporate any more stringent limitations, treatment standards, standards for sewage sludge use or disposal, or schedule of compliance requirements established under federal and state law or rules;

(e) Ensure consistency with the requirements of a water quality management plan approved by EPA under § 208(b) of the CWA; and

(f) Incorporate alternative effluent limitations or standards where warranted by fundamentally different factors in chapter 74:52:07;

(6) Toxic pollutant limits to control toxic pollutants which are or may be discharged at a level greater than the level which can be achieved by the technology-based treatment requirements;

(7) A notification level which exceeds the notification level of subdivision 74:52:03:11(1), (2), (3), (4), or (5) upon a petition from the permittee or on the secretary's initiative. This new notification level may not exceed the level which can be achieved by the technology-based treatment requirements appropriate to the permittee;

(8) A list of pollutants for which the permittee must report violations of maximum daily discharge limits within 24 hours. This list shall include any toxic pollutant or hazardous substance or any pollutant specifically identified as the method to control a toxic pollutant or hazardous substance;

(9) Durations for permits, as set forth in § 74:52:03:21;

(10) Monitoring requirements in addition to § 74:52:03:26, as follows:

(a) To assure compliance with permit limitations, measurements, and test procedures as follows:

(i) The mass, or any other measurement specified in the permit for each pollutant, including whole effluent toxicity, limited in the permit;

(ii) The volume of effluent discharged from each outfall;

(iii) Other measurements as applicable, including pollutants in internal waste streams under § 74:52:03:20; frequency and rate of discharge for noncontinuous discharges under § 74:52:03:18; pollutants subject to notification requirements under § 74:52:03:11; and pollutants in sewage sludge or other monitoring as specified in 40 C.F.R. Part 503 (July 1, 2016) or as determined to be necessary on a case-by-case basis pursuant to 405(d)(4) of the CWA; and

(iv) According to test procedures approved under 40 C.F.R. Part 136 (July 1, 2016) for the analyses of pollutants having approved methods under that part and according to a test procedure specified in the permit for pollutants with no approved methods;

(b) The frequency of reporting monitoring results, depending on the nature and effect of the discharge, at least once a year. For sewage sludge use or disposal practices, requirements for monitoring and for reporting of results, depending on the nature and effect of the sewage sludge disposal practice, but at least once a year;

(11) Pretreatment requirements for POTWs, as follows:

(a) Identification in terms of character and volume of pollutants, of any significant indirect dischargers into the POTW subject to pretreatment standards under § 307(b) of the CWA and chapter 74:52:11; and

(b) Submission of a local program when required by and in accordance with chapter 74:52:11 to assure compliance with pretreatment standards to the extent applicable under § 307(b). The local program shall be incorporated into the permit as described in chapter 74:52:11. The program shall require all indirect dischargers to the POTW to comply with the reporting requirements of chapter 74:52:11;

(12) Best management practices to control or abate the discharge of pollutants when:

(a) Authorized under § 304(e) of the CWA for the control of toxic pollutants and hazardous substances from ancillary industrial activities;

(b) Numeric effluent limits are not feasible; or

(c) The practices are reasonably necessary to achieve effluent limits and standards or to carry out the purposes and intent of the CWA;

(13) Requirements for reissued permits, as follows:

(a) Except as provided in subdivision (13)(b) of this section, when a permit is renewed or reissued interim limits and standards or conditions must be at least as stringent as the final limits, standards, or conditions in the previous permit, unless the circumstances on which the previous permit were 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 § 74:52:04:03;

(b) When effluent limits were imposed under § 402(a)(1) of the CWA in a previously issued permit and those limitations are more stringent than the subsequently promulgated effluent guidelines, the more stringent limits apply unless:

(i) The discharger has installed the treatment facilities required to meet the effluent limits in the previous permit and has properly operated and maintained the facilities but has nevertheless been unable to achieve the previous effluent limits. In this case the limits 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;

(ii) 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 § 74:52:04:03; or

(iii) There is increased production at the facility which results in significant reduction in treatment efficiency, in which case the permit limits shall be adjusted to reflect any decreased efficiency resulting from increased production and raw waste loads, but permit limits may not be less stringent than those required by subsequently promulgated standards and limits;

(iv) Information is available which was not available at the time of permit issuance; other than revised regulations, guidance, or test methods; and which would have justified the application of a less stringent effluent limit at the time of permit issuance, or the administrator determines that technical mistakes or mistaken interpretations of law were made in issuing the permit under § 402(a)(1)(b) of the Act;

(v) A less stringent effluent limit is necessary because of events over which the permittee has no control and for which there is no reasonable remedy; or

(vi) The permittee has received a permit modification under § 301(c), 301(g), 301(i), 301(k), 301(n), or 316(a);

(14) For privately owned treatment works, any conditions expressly applicable to any user, as a limited copermittee, that may be necessary in the permit issued to the treatment works to ensure compliance with applicable requirements under this chapter. Alternatively, the secretary may issue separate permits to the treatment works and to its users or may require a separate permit application from any user. The secretary's decision to issue a permit with no conditions applicable to any user, to impose conditions on one or more users, to issue separate permits, or to require separate applications, and the basis for that decision, must be stated in the statement of basis for the proposed permit for the treatment works;

(15) Any conditions imposed in grants made by the secretary to POTWs under §§ 201 and 204 of the CWA which are reasonably necessary for the achievement of effluent limits under § 301 of CWA;

(16) When a permit is issued to a facility that may operate at certain times as a means of transportation over water, a condition that the discharge must comply with any applicable regulations promulgated (by the secretary of the department of which the coast guard is operating) that establish specifications for safe transportation, handling, carriage, and storage of pollutants;

(17) Standards for sewage sludge use or disposal under § 405(d) of the CWA unless those standards have been included in a permit issued under SDCL chapter 34A-6. If any applicable standard for sewage sludge use or disposal is promulgated under § 405(d) of the CWA and that standard is more stringent than any limit on the pollutant or practice in the permit, the secretary may initiate proceedings under chapter 74:52:04 to modify or revoke and reissue the permit to conform to the standard for sewage sludge use or disposal;

(18) Any conditions that the secretary of the army considers necessary to ensure that navigation and anchorage will not be substantially impaired; or

(19) Conditions listed in 40 C.F.R. 122.41 as it existed on July 24, 1992.

Cross-References: Water Pollution Control Act, SDCL ch 34A-2; Surface Water Quality, art 74:51.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:12, July 1, 1996; 23 SDR 180, effective April 30, 1997; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-30, 34A-2-93(9).
Law Implemented: SDCL 34A-2-36, 34A-2-41 to 34A-2-43.

ARSD 74:52:03:14 Effluent limitations to be applied to outfall

All permit effluent limitations, standards, and prohibitions shall be established for each outfall or discharge point of the permitted facility, except as otherwise provided under § 74:52:03:20 for internal waste streams.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:19:13, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-37.

ARSD 74:52:03:15 Calculation of production-based limits

Except in the case of POTWs, calculation of any permit limits, standards, or prohibitions which are based on production or another measure of operation shall not be based on the design production capacity but on a reasonable measure of actual production of the facility. For new sources or new dischargers, actual production shall be estimated using projected production at the time period of the calculated permit limits.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:14, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-38, 34A-2-41.

ARSD 74:52:03:16 Effluent limits for metals

All permit effluent limits, standards, or prohibitions for a metal shall be expressed in terms of "total recoverable metal" as defined in 40 C.F.R. Part 136 (July 1, 2016) except under one or more of the following circumstances:

(1) An applicable effluent standard or limit has been promulgated under the CWA and specifies the limit for the metal in the dissolved, valent, or total form;

(2) In establishing permit limits case by case, the limit on the metal is expressed in the dissolved, valent, or total form to carry out the provisions of the CWA;

(3) All approved analytical methods for the metal inherently measure only its dissolved form; or

(4) In establishing permit limits to comply with chapter 74:51:01 the limit for the metal is expressed in the dissolved, valent, or total form.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:15, July 1, 1996; 23 SDR 180, effective April 30, 1997; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-38, 34A-2-41.

ARSD 74:52:03:17 Effluent limits for continuous discharges

For continuous discharges, all permit effluent limits, standards, and prohibitions, including those necessary to achieve water quality standards, shall, unless impracticable, be stated as follows:

(1) Maximum daily and average monthly discharge limits for all dischargers other than publicly owned treatment works; and

(2) Average weekly and average monthly discharge limits for POTWs.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:16, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-38.

ARSD 74:52:03:18 Permit conditions for noncontinuous discharges

Permit conditions for noncontinuous discharges shall be particularly described and limited, considering the following factors, as applicable:

(1) Frequency of discharge;

(2) Total mass of pollutants discharged;

(3) Maximum rate of discharge of pollutants during the discharge; and

(4) Prohibition or limit of specified pollutants by mass, concentration, or other measure.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:17, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-38.

ARSD 74:52:03:19 Mass limits

All pollutants limited in permits for continuous discharges shall have limits, standards, or prohibitions expressed in terms of mass except:

(1) For pH, temperature, radiation, or other pollutants which cannot be expressed by mass;

(2) When applicable standards and limits are expressed in terms of other units of measurement; or

(3) If, in establishing permit limits case by case, limits expressed in terms of mass are infeasible because the mass of the pollutant discharged cannot be related to a measure of operation, and permit conditions ensure that dilution will not be used as a substitute for treatment.

Pollutants limited in terms of mass may be limited additionally in terms of other units of measurement, and the permit shall require the permittee to comply with both limits.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:18, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-38.

ARSD 74:52:03:20 Effluent limits for internal waste streams

If permit effluent limits or standards imposed at the point of discharge are impractical or infeasible, effluent limits or standards for discharges of pollutants may be imposed on internal waste streams before mixing with other waste streams or cooling water streams. In those instances, the required monitoring shall also be applied to the internal waste streams.

Limits on internal waste streams shall be imposed only when the statement of basis sets forth the exceptional circumstances which make such limits necessary, such as when the final discharge point is inaccessible, the wastes at the point of discharge are so diluted as to make monitoring impracticable, or the interferences among pollutants at the point of discharge make detection or analysis impracticable.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:19, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-38.

ARSD 74:52:03:21 Permit duration

The effective duration of a permit shall be established as follows:

(1) Permits shall be effective for a fixed term not to exceed five years;

(2) Except as provided in § 74:52:01:12, the term of the permit may not be extended by modification beyond the five-year maximum;

(3) A permit may be issued to expire on or after the deadline set in § 301(b)(2)(A), (C), and (E) of the CWA if the permit includes effluent limits to meet the requirements of § 301(b)(2)(A), (C), (D), (E), and (F) of the CWA, whether or not applicable effluent limitations guidelines have been promulgated or approved; or

(4) A determination that a particular discharger falls within a given industry category for purposes of setting a permit expiration date under subdivision (3) of this section is not conclusive as to the discharger's inclusion in that industrial category for any other purposes and does not prejudice any rights to challenge or change that inclusion at the time that a permit based on that determination is formulated.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:20, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:03:22 Compliance schedules and deadlines

A permit may, if applicable, specify a schedule of compliance leading to compliance with the CWA, this article, and article 74:51. The first permit issued to a new source or a new discharger shall contain a schedule of compliance only if necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised after commencement of construction but less than three years before commencement of the relevant discharge. For recommencing dischargers, a schedule of compliance shall be available only if necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised less than three years before recommencement of discharge. Any schedule of compliance must require compliance as soon as possible, but no later than the applicable statutory deadline under the CWA.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:21, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:03:23 Interim dates for compliance schedules

Except as provided in § 74:52:03:25, if a permit establishes a schedule of compliance for which completion exceeds one year from the date of permit issuance, the schedule shall set forth interim requirements and the dates for their achievement. The time between interim dates may not exceed one year.

If the time necessary for completion of an interim requirement, such as the construction of a control facility, 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.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:24, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-39.

ARSD 74:52:03:24 Reporting required for schedules of compliance

The permittee shall notify the secretary in writing of its compliance with the interim or final requirements or shall submit progress reports no later than 14 days following each interim date and the final date of compliance.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:25, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-39.

ARSD 74:52:03:25 Alternative schedules of compliance

A permit applicant or permittee may cease conducting regulated activities. The permit may be modified to contain a schedule leading to timely cessation of activities.

If the decision to cease conducting regulated activities is made before issuance of a permit whose term will include the termination date, the permit shall contain a schedule leading to termination which will ensure timely compliance with applicable requirements no later than the statutory deadline. If the permittee is undecided whether to cease conducting regulated activities, the secretary may issue or modify a permit to contain two schedules as follows:

(1) Both schedules shall contain an identical interim deadline requiring a final decision on whether to cease conducting regulated activities no later than a date which ensures sufficient time to comply with applicable requirements in a timely manner if the decision is to continue conducting regulated activities;

(2) One schedule shall lead to timely compliance with applicable requirements no later than the statutory deadline. The second schedule shall lead to cessation of regulated activities by a date which will ensure timely compliance with applicable requirements no later than the statutory deadline; and

(3) Each permit containing two schedules shall include a requirement that after the permittee has made a final decision under subdivision (2) of this section it shall follow the schedule leading to compliance if the decision is to continue conducting regulated activities and follow the schedule leading to termination if the decision is to cease conducting regulated activities.

The applicant's or permittee's decision to cease conducting regulated activities shall be evidenced by a firm public commitment satisfactory to the secretary, such as a resolution of the board of directors of a corporation.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:26, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-39.

ARSD 74:52:03:26 Requirements for monitoring

All permits shall specify the following requirements to ensure representative and accurate results:

(1) Requirements concerning the use, maintenance, and installation of monitoring equipment or methods, including biological monitoring methods as applicable;

(2) Required type, intervals, and frequency of monitoring including, if appropriate, continuous monitoring; and

(3) Applicable reporting frequencies and requirements based upon the impact of the regulated activity. Reporting shall be no less frequent then specified in the above regulation and consistent with §§ 74:52:03:12 and 74:52:03:13.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:27, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:03:27 Net effluent limits

If part of a discharger's process wastewater is not being discharged into waters of the state because it is disposed into a well, into a POTW, or by land application thereby reducing the flow or level of pollutants being discharged into waters of the state, applicable effluent standards and limits for the discharge in a permit shall be adjusted to reflect the reduced raw waste resulting from such disposal. Net effluent limits and standards in the permit shall be calculated by one of the following methods:

(1) If none of the waste from a particular process is discharged into waters of the state and effluent limitation guidelines provide separate allocation for wastes from that process, all allocations for the process shall be eliminated from calculation of permit effluent limit or standards; and

(2) In all other cases, effluent limits shall be adjusted by multiplying the effluent derived by applying effluent limitation guidelines to the total waste stream by the amount of wastewater flow to be treated and discharged into waters of the state and dividing the result by the total wastewater flow. Effluent limits and standards so calculated may be further adjusted as allowed in chapter 74:52:07 to make them more or less stringent if discharges to wells, publicly owned treatment works, or by land application change the character or treatability of the pollutants being discharged to receiving waters. This method may be algebraically expressed as

P = E X N

where P is the permit effluent limit, E is the limit derived by applying effluent guidelines to the total waste stream, N is the wastewater flow to be treated and discharged to waters of the state, and T is the total wastewater flow.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:28, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-13, 34A-2-36, 34A-2-38.

ARSD 74:52:03:28 Net effluent limits not applicable under certain conditions

Section 74:52:03:27 does not apply to the extent that promulgated effluent control concentrations of pollutants discharged but not mass or specify a different specific technique for adjusting effluent limits to account for well injection, land application, or disposal into POTWs.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:29, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-13, 34A-2-36, 34A-2-38.

Chapter 74:52:04 Transfer, modification, revocation and reissuance, and termination of permits

ARSD 74:52:04:01 Transfer of permit

A permit may be transferred to a new owner or operator only if the permit has been modified or has been revoked and reissued. The reissued or modified permit shall incorporate other requirements, as necessary, to reflect the conditions under the new owner. Automatic transfers are allowed as set forth in § 74:52:04:02.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:20:01, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-31.

ARSD 74:52:04:02 Automatic transfers allowed with conditions

A permit may be automatically transferred to a new permittee if the current permittee notifies the secretary at least 30 days in advance of the proposed transfer date and the notice includes a written agreement between the existing and new permittees containing a specific date for transfer of permit responsibility, coverage, and liability between them. If the operation of the facility will essentially remain unchanged and no action is taken by the secretary, the transfer is effective on the date specified in the agreement. If changes are planned, the permit must be transferred as set forth in § 74:52:04:01.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:20:02, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-31.

ARSD 74:52:04:03 Modification or revocation and reissuance of permits

If cause exists, the secretary may modify or revoke and reissue a permit, subject to the limitations in this section. If a permit is modified, the secretary may request an updated application; if a permit is revoked and reissued, the secretary shall require a new application.

If a permit is modified, only the conditions subject to modification are reopened. If a permit is revoked and reissued, the entire permit is reopened and subject to revision and the permit is reissued for a new term. If a permit modification satisfies the criteria in § 74:52:04:06 for minor modifications, the permit may be modified without a proposed permit or public review. Otherwise, a proposed permit must be prepared and publicly noticed in accordance with chapter 74:52:05.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:20:03, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-31.

ARSD 74:52:04:04 Causes for modification

The following are causes for modification of permits:

(1) Material and substantial alterations or additions to the permitted facility or activity which occurred after permit issuance justify the application of permit conditions that are different or absent in the existing permit;

(2) The secretary has received new information on existing and new sources and new dischargers as required by § 74:52:02:09. Permits may be modified during their terms for this cause only if the information was not available at the time of permit issuance (other than revised regulations, guidance, or test methods) and would have justified the application of different permit conditions at the time of issuance. For general permits, this cause includes any information indicating that cumulative effects on the environment are unacceptable;

(3) The secretary determines that good cause exists for modification of a compliance schedule due to events over which the permittee has little or no control and for which there is no reasonably available remedy. A compliance schedule may not be modified to extend beyond an applicable CWA statutory deadline;

(4) The permittee has filed a request for a variance under §§ 301(c), 301(g), 301(h), 301(i), 301(k), or 316(a) of the CWA or for fundamentally different factors;

(5) If required to incorporate an applicable toxic effluent standard or prohibition as required by § 307(a) of the CWA;

(6) If required by the reopener conditions in a permit, which are established in the permit under § 74:52:03:13 or 40 C.F.R. § 403.10(d) (pretreatment program) (February 13, 1992). However, a modification clause approved under 40 C.F.R. § 403.8(e) (July 1, 1991) relating to the incorporation is considered a minor modification subject to the procedures in § 74:52:04:06;

(7) Upon request of a permittee who qualifies for effluent limits on a net basis under § 74:52:03:27;

(8) As necessary under 40 C.F.R. § 403.8(e) (compliance schedule for development of pretreatment program) (July 1, 1991);

(9) If the level of discharge of any pollutant which is not limited in the permit exceeds the level which can be achieved by the technology-based treatment requirements applicable to the permittee;

(10) To establish a notification level as provided in § 74:52:03:11;

(11) To modify a schedule of compliance to reflect the time lost during modification or replacement of an innovative or alternative facility. This subdivision applies to POTWs which have received a grant under § 202(a)(3) of the CWA for 100 percent of the costs to modify or replace facilities constructed with a grant for innovative and alternative wastewater technology under § 202(a)(2) of the CWA. The compliance schedule may not be modified to extend beyond an applicable CWA statutory deadline for compliance;

(12) If the permittee's technology-based effluent limits are more stringent than the subsequently promulgated effluent guidelines. The permittee must demonstrate operation and maintenance costs that are totally disproportionate from the operation and maintenance costs considered in the development of a subsequently promulgated effluent limitations guidelines. The permit limitations may not be made less stringent than the subsequent guidelines. The permittee must make this request within 90 days of promulgation after the effluent guidelines;

(13) To correct technical mistakes, such as errors in calculations, or mistaken interpretations of law made in determining permit conditions;

(14) If the discharger has installed the treatment technology considered by the permit writer in setting effluent limits which are more stringent than subsequently promulgated effluent guidelines and has properly operated and maintained the facilities but nevertheless has been unable to achieve those effluent limits. In this case, the limits in the modified permit may reflect the level of pollutant control actually achieved but may not be less stringent than required by a subsequently promulgated effluent limit;

(15) If required by a permit condition to incorporate a land application plan for beneficial reuse of sewage sludge, to revise an existing land application plan, or to add a land application plan; or

(16) The incorporation of the terms of a concentrated animal feeding operation's nutrient management plan into the terms and conditions of a general permit when a concentrated animal feeding operation obtains coverage under a general permit in accordance with § 74:52:02:22 is not a cause for modification pursuant to the requirements of this section.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:20:04, July 1, 1996; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-31.

ARSD 74:52:04:05 Causes for modification or revocation and reissuance

The following are causes to modify or, alternatively, to revoke and reissue a permit:

(1) Cause exists for termination under § 74:52:04:07. The secretary may determine that modification or revocation and reissuance is appropriate; or

(2) The secretary has received notification of a proposed transfer of the permit.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:20:05, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-31.

ARSD 74:52:04:06 Minor modifications of permits

Upon consent of the permittee, the secretary may modify a permit to make the corrections or allowances for changes in the permitted activities that are listed in this section without following the procedures of § 74:52:04:03. Minor modifications may only:

(1) Correct typographical errors;

(2) Require more frequent monitoring or reporting by the permittee;

(3) Change an interim compliance date in a schedule of compliance, provided the new date is not more than 120 days after the date specified in the existing permit and does not interfere with attainment of the final compliance date requirement;

(4) Change the construction schedule for a discharger which is a new source. Such a change may not affect a discharger's obligation to have all pollution control equipment installed and in operation prior to discharge;

(5) Delete an outfall if the discharge from that outfall is terminated and does not result in discharge of pollutants from other outfalls except in accordance with permit limits;

(6) Incorporate conditions of a POTW pretreatment program that has been approved in accordance with the procedures in 40 C.F.R. § 403.11 (July 1, 2016), as enforceable conditions of the POTW's permit; or

(7) Incorporate changes to the terms of a concentrated animal feeding operation's nutrient management plan that have been revised in accordance with the requirements of § 74:52:02:22.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:20:06, July 1, 1996; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-31.

ARSD 74:52:04:07 Termination of permits

The following are causes for terminating a permit during its term or for denying a permit renewal application:

(1) Noncompliance by the permittee with any condition of the permit;

(2) The permittee's failure in application or during the permit issuance process to disclose fully all relevant facts or the permittee's misrepresentation of any relevant facts at any time;

(3) A determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable levels by permit modification or termination; or

(4) A change in any condition that requires either a temporary or a permanent reduction or elimination of any discharge controlled by the permit.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:20:07, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-31.

Chapter 74:52:05 Application process

ARSD 74:52:05:01 Complete application required

The secretary shall not begin processing a permit until the applicant has fully complied with all application requirements.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:21:01, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-29, 34A-2-31.

ARSD 74:52:05:02 Secretary to review application for completeness

The secretary shall review each application for completeness. An application for a new source or a new discharger shall be reviewed for completeness by the secretary within 30 days of its receipt. An application for an existing source shall be reviewed for completeness within 60 days of receipt. If the application is incomplete, the secretary shall notify the applicant and list the information necessary to make the application complete. The secretary shall specify in the notice of deficiency a date for submitting the necessary information. The secretary shall again review the additional information for completeness according to the time limits set in this section. The effective date of the application is the last date of the review period unless the applicant is notified that the application is still incomplete or that the effective date is sooner. After the application is completed, the secretary may request additional information from an applicant but only when necessary to clarify, modify, or supplement previously submitted material.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:21:03, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-29, 34A-2-31.

ARSD 74:52:05:03 Refusal to correct application deficiency grounds for permit denial

If an applicant fails or refuses to correct deficiencies in the application, the permit will be denied.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:21:04, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-29, 34A-2-31.

ARSD 74:52:05:04 Notice for application denial

Once an application is complete and the secretary tentatively decides to deny the permit application, the secretary shall issue a notice of intent to deny the application. A notice of intent to deny the permit application follows the same procedures as those contained in this chapter for a proposed permit.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:21:06, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-29, 34A-2-31.

ARSD 74:52:05:05 Secretary to prepare proposed permit upon approval of application

If the secretary tentatively decides to issue a SWD permit or general permit, the secretary shall prepare a proposed SWD permit or a proposed general permit that contains the following information:

(1) All conditions under §§ 74:52:03:02 to 74:52:03:10, inclusive, and when applicable, conditions under §§ 74:52:03:11 and 74:52:03:12;

(2) All compliance schedules under § 74:52:03:22;

(3) All monitoring requirements under § 74:52:03:26; and

(4) All applicable effluent limitations, standards, prohibitions, and variances.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:21:07, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-29, 34A-2-31.

ARSD 74:52:05:06 Public notice -- Proposed permit and statement of basis

The secretary shall give notice to the public of proposed permits prepared under this chapter and shall make them available for public comment. Each proposed permit shall be accompanied by a statement of basis. The secretary shall give notice of opportunity for a public hearing.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:21:08, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:05:07 Contents of statement of basis

A statement of basis shall be prepared for each proposed permit. The statement of basis shall briefly set forth the principal facts and the legal, methodological, and policy questions considered in preparing the proposed permit, including the following when applicable:

(1) A brief description of the type of facility or activity which is the subject of the proposed permit;

(2) The type and quantity of wastes, fluids, or pollutants which are proposed to be or are being treated, stored, disposed of, injected, emitted, or discharged;

(3) A brief summary of the basis for the proposed permit conditions, including references to applicable statutory or regulatory provisions;

(4) Reasons why any requested variances or alternatives to required standards do or do not appear justified;

(5) A description of the procedures for reaching a final decision on the proposed permit;

(6) Any calculations or other necessary explanations of the derivation of specific effluent limitations and conditions; and

(7) If applicable, a sketch or detailed description of the location of the discharge described in the application.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:21:10, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:05:08 Public notice of permit actions required

The secretary shall give public notice that the following actions have occurred:

(1) A permit application has been tentatively denied;

(2) A statement of basis and proposed permit have been prepared; and

(3) A contested case hearing has been scheduled.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:21:13, July 1, 1996; 23 SDR 180, effective April 30, 1997.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-35.

ARSD 74:52:05:09 Public notice not required for denial of request for modifications, revocation and reissuance, or termination of a permit

Public notice not required for denial of request for modification, revocation and reissuance, or termination of a permit.** Public notice is not required when a request for permit modification, revocation and reissuance, or termination is denied. Written notice of that denial shall be given to the requester and to the permittee.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:21:14, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-35.

ARSD 74:52:05:10 Public notices for more than one action

Public notices may describe more than one permit or permit action.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:21:15, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-35.

ARSD 74:52:05:11 At least 30 days allowed for public comment on the preparation of a proposed permit

At least 30 days allowed for public comment on preparation of proposed permit.** Public notice of the preparation of a proposed permit, including a notice of intent to deny a permit application, shall allow at least 30 days for public comment.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:21:16, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-35.

ARSD 74:52:05:12 At least 30 days public notice required for contested case hearing

Public notice of a contested case hearing must be given at least 30 days before the hearing. Public notice of the hearing may be given at the same time as public notice of the proposed permit, and the two notices may be combined.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:21:17, July 1, 1996; 23 SDR 180, effective April 30, 1997.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-35.

ARSD 74:52:05:13 Methods of public notice

Public notice of activities described in this chapter shall be given by the following methods:

(1) By mailing a copy of a notice to the following persons (a person otherwise entitled to receive notice under this subdivision may waive the right to receive notice for any categories of permits):

(a) The applicant;

(b) Federal and state agencies with jurisdiction over fish, shellfish, and wildlife resources, state historic preservation officers, and other appropriate government authorities, including affected states;

(c) Any state agency responsible for plan development under § 208(b)(2), 208(b)(4), or 303(e) of the CWA and the U. S. Army Corps of Engineers, the U. S. Fish and Wildlife Service;

(d) Any user identified in the permit application of a privately owned treatment works;

(e) Persons on a mailing list developed by the department including those who request in writing to be on the list;

(f) Any unit of local government having jurisdiction over the area where the facility is proposed to be located;

(g) Each state agency having any authority under state law over the construction or operation of such facility; and

(h) Any agency which the secretary knows has issued or is required to issue a RCRA, UIC, PSD, NPDES, 404, or sludge management permit for the same facility;

(2) For major permits, general SWD permits, and permits that contain sewage sludge application plans, by publication of a notice in a daily or weekly newspaper within the area affected by the facility or activity; and

(3) By any other method that gives actual notice of the action in question to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:21:18, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-35.

ARSD 74:52:05:14 Contents of public notice for proposed permit

A public notice for a proposed permit shall contain the following information:

(1) Name and address of the office processing the permit action for which notice is being given;

(2) Name and address of the permittee or permit applicant and, if different, of the facility or activity regulated by the permit, except in the case of SWD proposed general permits;

(3) A brief description of the business conducted at the facility or activity described in the permit application or the proposed SWD general permit when there is no application;

(4) Name, address, and telephone number of a person from whom interested persons may obtain further information, including copies of the proposed permit or proposed general permit, the statement of basis, and the application;

(5) A brief description of the contested case procedures required by chapter 74:50:02 and the time and place of any hearing that will be held, including a statement of procedures to request a hearing and other procedures by which the public may participate in the final permit decision; and

(6) A general description of the location of each existing or proposed discharge point and the name of the receiving water. For proposed general permits, this requirement is satisfied by a map or a description of the permit area.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:21:19, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-35.

ARSD 74:52:05:15 Public comments -- Request for contested case hearing

During the public comment period, any interested person may submit written comments on the proposed permit and may request a contested case hearing in accordance with chapter 74:50:02. A request for a contested case hearing must be in writing and must be prepared and filed in accordance with § 74:50:02:02. All comments must be considered in making the final decision and must be answered as provided in § 74:52:05:20.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:21:20, July 1, 1996; 23 SDR 180, effective April 30, 1997.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-35.

ARSD 74:52:05:16 Obligation to raise issues and provide information during the public comment period

If a person, including applicants, believes that any condition of the proposed permit is inappropriate or that the secretary's tentative decision to deny an application, terminate a permit, or prepare a proposed permit is inappropriate, that person must raise all reasonably ascertainable issues and submit all reasonably available arguments, factual grounds, and supporting materials not already available in the administrative record, by the close of the public comment period, including any public hearing under chapter 74:50:02. Supporting materials must be included in full and may not be incorporated by reference unless they are already part of the administrative records in the same proceeding or consist of state and federal statutes and regulations, EPA or the department's documents of general applicability, or other generally available reference materials.

History

Source: 19 SDR 122, effective February 21, 1993; transferred from § 74:03:21:20.01, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-35.

ARSD 74:52:05:17 Contents of public notices for hearings

In addition to the general public notice described in § 74:52:05:14, the public notice of a hearing shall contain the following information:

(1) Reference to the date of previous public notices relating to the permit;

(2) Date, time, and place of the hearing; and

(3) A brief description of the nature and purpose of the hearing, including the applicable rules and procedures.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:21:21, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-35.

ARSD 74:52:05:18 Issuance of final decision -- Notice to interested persons

After the close of the public comment period on a proposed permit, a final permit decision shall be issued by the secretary.

The secretary shall notify the applicant and each person who has submitted written comments or requested notice of the final permit decision. The notice shall include reference to the procedures for contesting the decision. For the purpose of this section, the final permit decision means a final decision to issue, deny, modify, revoke and reissue, or terminate a permit.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:21:22, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:05:19 Effective date of permit

The final permit decision is effective 30 days after the service of notice of the decision except under the following circumstances:

(1) A later effective date is specified in the decision;

(2) A hearing is requested under § 74:52:05:15; or

(3) No comments or requests for changes in the proposed permit were received during the public notice period, in which case the permit is effective upon receipt by the applicant of the final permit decision.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:21:24, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-31.

ARSD 74:52:05:20 Response to comments

At the time that any final permit is issued, the secretary shall issue a response to all written comments received during the period of public notice.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:21:25, July 1, 1996.
General Authority: SDCL 34A-2-28.
Law Implemented: SDCL 34A-2-31.

Chapter 74:52:06 Secondary treatment standards

ARSD 74:52:06:01 Definitions

The following definitions are applicable to secondary treatment standards:

(1) "Seven-day average," the arithmetic mean of pollutant parameter values of samples collected in a period of seven consecutive days;

(2) "30-day average," the arithmetic mean of pollutant parameter values of samples collected in a period of 30 consecutive days;

(3) "BOD5," the five-day measure of the pollutant parameter biochemical oxygen demand;

(4) "CBOD5," the five-day measure of the pollutant parameter carbonaceous biochemical oxygen demand;

(5) "Effluent concentrations consistently achievable through proper operation and maintenance," for a given pollutant parameter, the 95th percentile value for the 30-day average effluent quality achieved by a treatment works in a period of at least two years, excluding values attributable to upsets, bypasses, operational errors, or other unusual conditions, and a seven-day average value equal to 1.5 times this value;

(6) "mg/L," milligrams per liter;

(7) "Percent removal," a percentage expression of the removal efficiency across a treatment plant for a given pollutant parameter, as determined from the 30-day average values of the raw wastewater influent pollutant concentrations to the facility and the 30-day average values of the effluent pollutant concentrations;

(8) "TSS," total suspended solids; and

(9) "Significantly more stringent limitations," BOD5 and TSS limitations necessary to meet the percent removal requirements of at least five mg/L more stringent than the otherwise applicable concentration-based limitations.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:22:01, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-13, 34A-2-20.

ARSD 74:52:06:02 Purpose

This chapter provides regulations on the level of effluent quality which must be attained by a POTW through the application of secondary or equivalent treatment.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:22:02, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-13, 34A-2-20.

ARSD 74:52:06:03 Secondary treatment

The following limitations describe the minimum level of effluent quality attainable by secondary treatment:

(1) The BOD5 30-day average shall not exceed 30 mg/L, the BOD5 seven-day average shall not exceed 45 mg/L, and the BOD5 30-day average percent removal shall not be less than 85 percent;

(2) At the option of the permitting authority, in lieu of the parameter BOD5 at the levels of the effluent quality specified in subdivision (1) of this section, the parameter CBOD5 may be substituted provided that the following conditions are met:

(a) The CBOD5 30-day average shall not exceed 25 mg/L;

(b) The CBOD5 seven-day average shall not exceed 40 mg/L; and

(3) The TSS 30-day average shall not exceed 30 mg/L, the TSS seven-day average shall not exceed 45 mg/L, and the 30-day removal shall not be less than 85 percent;

(4) The effluent values for pH shall be maintained within the limits of 6.0 to 9.0 unless the publicly owned treatment works demonstrates that:

(a) Inorganic chemicals are not added to the waste stream as part of the treatment process; and

(b) Contributions from industrial sources do not cause the pH of the effluent to be less than 6.0 or greater than 9.0.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:22:03, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-13, 34A-2-20.

ARSD 74:52:06:04 Special considerations

The following special considerations apply to the secondary treatment requirements:

(1) The POTWs subject to this chapter may not be capable of meeting the percentage removal requirements established under § 74:52:06:03 during wet weather where the treatment works receive flows from combined sewers which are designed to transport both storm water and sanitary sewage. For such treatment works, the decision must be made on a case-by-case basis as to whether any attainable percentage removal level can be defined, and if so, what the level should be;

(2) The secretary, subject to EPA approval, may adjust the minimum levels of effluent quality required for POTWs in subdivision 74:52:06:03(3) to conform to the TSS concentrations achievable with waste stabilization ponds if the following conditions are met:

(a) Waste stabilization ponds are the principal process used for secondary treatment;

(b) Operation and maintenance data indicate that the TSS values specified in subdivision 74:52:06:03(3) cannot be achieved;

(d) The POTW is achieving levels of effluent quality required for BOD5 specified in § 74:52:06:03;

(3) For less concentrated influent wastewater for separate sewers, the secretary may substitute either a lower percent removal requirement or a mass loading limit for the percent removal requirements set forth in § 74:52:06:03 if the permittee satisfactorily demonstrates that;

(a) The treatment works is consistently meeting, or will consistently meet, its permit effluent concentration limits but its percent removal requirements cannot be met due to less concentrated influent wastewater;

(b) To meet the percent removal requirements, the treatment works would have to achieve significantly more stringent limitations than would otherwise be required by the concentration-based standards; and

(c) The less concentrated influent wastewater is not the result of excessive infiltration or inflow, or both. The determination of whether the less concentrated wastewater is the result of excessive infiltration or inflow shall use the definition of excessive infiltration or inflow in 40 C.F.R. § 35.2005(b)(16) (July 1, 1991), plus the additional criterion that inflow is nonexcessive if the total flow to the POTW is less than 275 gallons per capita per day.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:22:04, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-13, 34A-2-20.

ARSD 74:52:06:05 Sampling and test procedures

Sampling and test procedures for pollutants listed in this chapter must be in accordance with guidelines in 40 C.F.R. Part 136 as it existed on July 1, 2016. Chemical oxygen demand (COD) or total organic carbon (TOC) may be substituted for BOD5 when a long-term BOD5:COD or BOD:TOC correlation has been demonstrated.

History

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:22:05, July 1, 1996; 23 SDR 180, effective April 30, 1997; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-13, 34A-2-30.
Law Implemented: SDCL 34A-2-13, 34A-2-20.

Chapter 74:52:07 Criteria and standards for permits

ARSD 74:52:07:01 Criteria and standards for surface water discharge permits

The criteria and standards for surface water discharge permits are those in 40 C.F.R. Part 125, Subparts A, B, C, D, H, I, J, K, and L (July 1, 2016).

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:23:01, July 1, 1996; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-93(9).
Law Implemented: SDCL 34A-2-13, 34A-2-20.

Chapter 74:52:08 Toxic pollutant effluent standards for permits

ARSD 74:52:08:01 Toxic pollutant effluent standards for surface water discharge permits

The toxic pollutant effluent standards for surface water discharge permits are those in 40 C.F.R. Part 129 (July 1, 2016).

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:24:01, July 1, 1996; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-93(9).
Law Implemented: SDCL 34A-2-13, 34A-2-20.

Chapter 74:52:09 Sewage sludge standards

ARSD 74:52:09:01 Standards for use or disposal of sewage sludge for surface water discharge permits

The standards for the use or disposal of sewage sludge for surface water discharge permits are those in 40 C.F.R. Part 503 (July 1, 2016).

History

Source: 23 SDR 180, effective April 30, 1997; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-20, 34A-2-93(9), 34A-2-123.
Law Implemented: SDCL 34A-2-20, 34A-2-123.

Chapter 74:52:10 Effluent guidelines and standards for permits and pretreatment industrial users

ARSD 74:52:10:01 Effluent guidelines and standards for surface water discharge permits and pretreatment industrial users

The effluent guidelines and standards for surface water discharge permits and pretreatment industrial users are those in 40 C.F.R. Subchapter N (July 1, 2016).

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; 20 SDR 33, effective September 5, 1993; transferred from § 74:03:25:01, July 1, 1996; 29 SDR 176, effective July 1, 2003; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-13, 34A-2-93(9).
Law Implemented: SDCL 34A-2-13, 34A-2-20.

Chapter 74:52:11 Pretreatment regulations

ARSD 74:52:11:01 Pretreatment regulations

The South Dakota pretreatment regulations are those in 40 C.F.R. Part 403 (July 1, 2016) with the following substitutions:

(1) Substitute "SDCL 34A-2-94" for all federal regulation references to "40 C.F.R. 2.302" in 40 C.F.R. § 403.14.

History

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:26:01, July 1, 1996; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-93(10).
Law Implemented: SDCL 34A-2-14, 34A-2-14, 34A-2-16, 34A-2-20.

ARSD 74:52:11:02 Repealed

Right of entry.** Repealed.

History

Source: 20 SDR 33, effective September 5, 1993; transferred from § 74:03:26:01.01, July 1, 1996; 44 SDR 98, effective December 11, 2017.

ARSD 74:52:11:03 State-run pretreatment programs

Any POTW or combination of POTWs operated by the same authority required to develop a pretreatment program may request the secretary to assume POTW pretreatment program requirements as set forth at 40 C.F.R. § 403.10(e) (July 1, 2016).

POTWs that have already been required to develop a pretreatment program at the time the state is delegated pretreatment program authority, have 30 days from notification of state approval to make this request of the secretary.

POTWs that are required to develop a pretreatment program after the state is delegated pretreatment program authority, have 30 days from notification to develop a local program to make this request of the secretary.

POTWs that have been required to develop a pretreatment program must submit written notification either stating their intention to continue with their local responsibilities or requesting the secretary to assume the responsibilities along with the surface water discharge permit application requirements in chapter 74:52:02.

Upon notification, the secretary and the POTW have 45 days to develop a joint powers agreement which specifically sets forth each party's role. The secretary must provide 30 days for public notice prior to signing the agreement. If an agreement cannot be reached, the POTW pretreatment program requirements remain with the POTW.

History

Source: 19 SDR 122, effective February 21, 1993; transferred from § 74:03:26:02, July 1, 1996; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-14.
Law Implemented: SDCL 34A-2-14.

ARSD 74:52:11:04 Permit applicability

The conditions established in §§ 74:52:11:01 to 74:52:11:15, inclusive, are applicable to all PIU permits. A significant industrial user who discharges or proposes to discharge to a POTW and who does not have an effective PIU permit must submit a complete, signed application for a PIU permit to the secretary. Permit applications must contain the information located in 40 C.F.R. § 403.12(b) as it existed on July 1, 2016, and must use application forms provided by the secretary. Significant industrial users covered by an approved POTW pretreatment program are exempt from the requirements of this section.

History

Source: 19 SDR 122, effective February 21, 1993; transferred from § 74:03:26:03, July 1, 1996; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-14, 34A-2-35.

ARSD 74:52:11:05 Procedures for processing PIU permits

Procedures for processing PIU permits are the same as those for processing surface water discharge permits in chapters 74:52:04 and 74:52:05.

History

Source: 19 SDR 122, effective February 21, 1993; transferred from § 74:03:26:04, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-14, 34A-2-35.

ARSD 74:52:11:06 Time to apply for new facilities

A significant industrial user proposing a discharge to a POTW shall submit an application for a PIU permit at least 180 days before the date on which the discharge is to commence, unless permission for a later date has been granted by the secretary.

History

Source: 19 SDR 122, effective February 21, 1993; transferred from § 74:03:26:05, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-14.

ARSD 74:52:11:07 PIU permit renewals

A PIU permittee must reapply for a permit at least 180 days before the existing permit expires.

History

Source: 19 SDR 122, effective February 21, 1993; transferred from § 74:03:26:10, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-44.

ARSD 74:52:11:08 Continuation of expired permits

The conditions of an expired permit continue in force until the effective date of a new permit if the permittee has submitted a complete and timely application for a new permit under § 74:52:11:07 and the secretary, through no fault of the permittee, does not issue a new permit that is effective by the expiration date of the previous permit. Permits continued under this section remain fully effective and enforceable until the effective date of a new permit.

If the permittee is not in compliance with the conditions of the expiring or expired permit, the secretary may choose to do one or more of the following:

(1) Initiate enforcement action based on the permit that has been continued;

(2) Issue a notice of intent to deny the new permit under § 74:52:05:18;

(3) Issue a new permit under § 74:52:04:03 with appropriate conditions; or

(4) Take other action authorized by the PIU permit regulations in § 74:52:11:01.

History

Source: 19 SDR 122, effective February 21, 1993; transferred from § 74:03:26:07, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:11:09 Review of applications

The secretary may not begin processing as PIU permit before receiving a complete application. A permit application is complete when the secretary receives a signed application form with supplemental information which is completed to the secretary's satisfaction.

Cross-Reference: General permits, § 74:52:02:46.

History

Source: 19 SDR 122, effective February 21, 1993; transferred from § 74:03:26:08, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:11:10 Information requirements

An applicant for PIU permit must provide the information specified at 40 C.F.R § 403.12(b) (July 1, 2016) to the secretary, using the application form provided by the secretary.

History

Source: 19 SDR 122, effective February 21, 1993; transferred from § 74:03:26:09, July 1, 1996; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:11:11 Service of process

Each applicant shall provide the secretary with an address for receipt of any legal paper for service of process. The last address provided to the secretary pursuant to this section is the address at which the secretary may tender any legal notice, including service of process in connection with an enforcement action. Service is complete upon tender of the notice, process, or order and may not be considered incomplete because of the refusal to accept it or because the addressee is not found.

History

Source: 19 SDR 122, effective February 21, 1993; transferred from § 74:03:26:10, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-44.

ARSD 74:52:11:12 Signatory requirements for reports

Each report required by a permit and other information requested by the secretary must be signed by a person described in 40 C.F.R. § 403.12 (July 1, 2016). A person is a duly authorized representative only under the following circumstances:

(1) The authorization is made in writing by a person described in 40 C.F.R. § 403.12(1) (July 1, 2016);

(2) The authorization specified either an individual or a position with responsibility for the overall operation of the regulated facility or activity, such as the position of plant manager, or superintendent, a position of equivalent responsibility, or an individual or position with overall responsibility for environmental matters for the company; and

(3) The written authorization is submitted to the secretary.

History

Source: 19 SDR 122, effective February 21, 1993; transferred from § 74:03:26:11, July 1, 1996; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:11:13 Changes to signatory authorization

If an authorization under § 74:52:11:12 is no longer accurate because a different individual or position has responsibility for the overall operation of the facility, a new authorization satisfying the requirements of § 74:52:11:12 must be submitted to the secretary prior to or together with any reports, information, or applications required to be signed by an authorized representative.

History

Source: 19 SDR 122, effective February 21, 1993; transferred from § 74:03:26:12, July 1, 1996
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40, 34A-2-44.

ARSD 74:52:11:14 Certification

A person signing a document under this chapter must make the following certification:

History

Source: 19 SDR 122, effective February 21, 1993; transferred from § 74:03:26:13, July 1, 1996.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-40.

ARSD 74:52:11:15 PIU permit conditions

PIU permit conditions are the same as those in chapter 74:52:03 for surface water discharge permits. Additional conditions for PIU permits are contained in § 74:52:11:16.

History

Source: 19 SDR 122, effective February 21, 1993; transferred from § 74:03:26:14, July 1, 1996; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-14, 34A-2-35.

ARSD 74:52:11:16 Additional permit conditions

In addition to the conditions required by § 74:52:11:15, the secretary shall establish PIU permit conditions as required in 40 C.F.R. §§ 403.8(f)(1)(iii)(B)(1-6) and on a case by case basis to provide for and assure compliance with all applicable requirements of the CWA and state and local laws and rules. These shall include the following conditions as applicable:

(1) Technology-based effluent limits and standards based on effluent limits and standards promulgated under § 301 of the CWA or pretreatment standards for new sources promulgated under § 306 of the CWA, on case-by-case limitations determined under § 402(a)(1) of the CWA, or on a combination of the two;

(2) For any discharger within a primary industry category as listed in § 74:52:02:39, the secretary shall promptly modify or revoke and reissue a permit to incorporate an applicable effluent standard or limit under §§ 301(b)(2)(C) and (D), 304(b)(2), and 307(a)(2) of the CWA which is promulgated or approved after the permit is issued if that effluent standard or limit is more stringent than any effluent limit in the permit or controls a pollutant not limited in the permit;

(3) Incorporate effluent limits and standards to satisfy local limits;

(4) Incorporate a list of pollutants for which the permittee must report violations of maximum daily discharge limits within 24 hours. This list shall include any toxic pollutant or hazardous substance or any pollutant specifically identified as the method to control a toxic pollutant or hazardous substance;

(5) Incorporate durations for permits, as set forth in § 74:52:03:21;

(6) Incorporate monitoring requirements in addition to § 74:52:03:26, as follows:

(a) To assure compliance with permit limits, measurements, and test procedures as follows:

(i) The mass, or any other measurement specified in the permit for each pollutant limited in the permit;

(ii) The volume of effluent discharged from each outfall;

(iv) According to test procedures approved under 40 C.F.R. Part 136 (July 1, 2016), for the analyses of pollutants having approved methods under that part and according to a test procedure specified in the permit for pollutants with no approved methods;

(b) The frequency of reporting monitoring results, depending on the nature and effect of the discharge, but not less than once a year;

(7) Include requirements for reissued permits as follows:

(a) Except as provided in subdivision (7)(b) of this section, when a permit is renewed or reissued interim limitations and standards or conditions must be at least as stringent as the final limitations, standards, or conditions in the previous permit unless 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 § 74:52:04:03;

(b) If effluent limits were imposed under § 402(a)(1) of the CWA in a previously issued permit and those limits are more stringent than the subsequently promulgated effluent guidelines, the more stringent limits apply unless:

(i) The discharger has installed the treatment facilities required to meet the effluent limits in the previous permit and has properly operated and maintained the facilities but has nevertheless been unable to achieve the previous effluent limits. In this case the limits in the renewed or reissued permit may reflect the level of pollutant control actually achieved but may not be less stringent than required by the subsequently promulgated effluent limit guidelines;

(ii) The subsequently promulgated effluent guidelines are based on best conventional pollutant control technology, § 310(b)(2)(E) of the CWA;

(iii) 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 § 74:52:04:03; or

(iv) There is increased production at the facility which results in significant reduction in treatment efficiency, in which case the permit limits shall be adjusted to reflect any decreased efficiency resulting from increased production and raw waste loads, but permit limitations may not be less stringent than those required by subsequently promulgated standards and limits;

(8) Any conditions expressly applicable to any user, as a limited copermittee, that may be necessary in the permit issued to the treatment works to ensure compliance with applicable requirements under this chapter. Alternatively, the secretary may issue separate permits to the treatment works and to its users or may require a separate permit application from any user. The secretary's decision to issue a permit with no conditions applicable to any user, to impose conditions on one or more users, to issue separate permits, or to require separate applications, and the basis for that decision, must be stated in the statement of basis for the proposed permit for the treatment works;

(9) Incorporate any more stringent limits, treatment standards, or schedule of compliance requirements established under federal, state, and local law or rules (July 1, 2016);

(10) Incorporate alternative effluent limits or standards where warranted by fundamentally different factors;

(11) Incorporate toxic pollutant limits to control toxic pollutants which are or may be discharged at a level greater than the level which can be achieved by the technology-based treatment requirements;

(12) Incorporate a notification level which exceeds the notification level of subsection 74:52:03:11(1)(a), (b), or (c) upon a petition from the permittee or on the secretary's initiative. This new notification level may not exceed the level which can be achieved by the technology-based treatment requirements applicable to the permittee; or

(13) Incorporate best management practices to control or abate the discharge of pollutants when:

(a) Authorized under § 304(e) of the CWA for the control of toxic pollutants and hazardous substances from ancillary industrial activities;

(b) Numeric effluent limits are not feasible; or

(c) The practices are reasonably necessary to achieve effluent limits and standards or to carry out the purposes and intent of the CWA.

History

Source: 19 SDR 122, effective February 21, 1993; transferred from § 74:03:26:15, July 1, 1996; 23 SDR 180, effective April 30, 1997; 44 SDR 98, effective December 11, 2017.
General Authority: SDCL 34A-2-30.
Law Implemented: SDCL 34A-2-14, 34A-2-15, 34A-2-36.

Chapter 74:52:12 Industrial stormwater fees

ARSD 74:52:12:01 Definitions

74 : 52 : 12 : 01 . Definitions. Words and phrases defined in SDCL 34A-2-2, have the same meaning when used in chapter 74:52:12. Terms and abbreviations that are not specifically defined must be construed in conformance with the context and in relation to the applicable section of the standards or the statute concerned. In addition, terms used in chapter 74:52:12 are defined as follows:

(1) "Sector A Sites" means all facilities that produce lumber and wood, except furniture, as defined by standard industrial classification major group 24. This sector includes all facilities that produce lumber and wood products, except furniture;

(2) "Sector AA Sites" means fabricated metal products manufacturing facilities, as defined by standard industrial classification major groups 34 and 39;

(3) "Sector AB Sites" means facilities that manufacture transportation equipment, industrial or commercial machinery, as defined in standard industrial classification major groups 35 and 37 (except standard industrial groups 357 and 373);

(4) "Sector AC Sites" means electronic and electrical equipment and components, photographic, and optical goods manufacturing facilities, as defined by standard industrial classification major groups 36 and 38, and standard industrial group 357;

(5) "Sector AD Sites" means facilities required by the secretary to obtain a permit for stormwater discharges associated with industrial activity;

(6) "Sector B Sites" means paper and allied products manufacturing facilities, as defined by standard industrial classification major group 26;

(7) "Sector C Sites" means chemical and allied products manufacturing facilities, as defined by standard industrial classification major group 28 and primary standard industrial classification of 3952;

(8) "Sector D Sites" means asphalt paving and roofing materials manufacturers and lubricant manufacturers, as defined by standard industrial classification major group 29;

(9) "Sector E Sites" means glass, clay, cement, concrete, and gypsum product manufacturing facilities, as defined by standard industrial classification major group 32;

(10) "Sector F Sites" means primary metals facilities, as defined by standard industrial classification major group 33;

(11) "Sector G Sites" means metal mining, ore mining, and dressing facilities, as defined by standard industrial classification major group 10;

(12) "Sector H Sites" means coal mines and coal mining-related facilities, as defined by standard industrial classification major group 12;

(13) "Sector I Sites" means oil and gas extraction facilities, as defined by standard industrial classification major group 13;

(14) "Sector J Sites" means active and inactive mining, quarrying, and processing of nonmetallic minerals (except fuels), as defined by standard industrial classification major group 14;

(15) "Sector K Sites" means hazardous waste treatment, storage, or disposal facilities, as defined by SDCL 34A-11-2;

(16) "Sector L Sites" means landfills, land application sites, and open dumps that receive or have received industrial waste, as defined by § 74:27:07:01;

(17) "Sector M Sites" means automobile salvage yards and automobile recyclers, as defined by primary standard industrial classification of 5015;

(18) "Sector N Sites" means scrap recycling and waste recycling facilities, as defined by primary standard industrial classification of 5093;

(19) "Sector O Sites" means steam electric power generating facilities, as defined by 40 C.F.R. Part 423.10 (November 3, 2015);

(20) "Sector P Sites" means land transportation and warehousing activities, as defined by standard industrial classification major groups 40, 41, 42, 43, and standard industrial classification 5171;

(21) "Sector Q Sites" means water transportation facilities with vehicle maintenance shops or equipment cleaning operations, as defined by standard industrial classification major group 44;

(22) "Sector R Sites" means ship and boat building or repair yards, defined by primary standard industrial classification of 3731 or 3732;

(23) "Sector S Sites means vehicle maintenance areas, equipment cleaning areas, or deicing areas located at air transportation facilities, as defined by standard industrial classification major group 45;

(24) "Sector T Sites" means stormwater discharges from treatment works, including those facilities that treat domestic sewage with a design flow of one million gallons per day or more, are required to have an approved pretreatment program under chapter 74:52:10, or have land dedicated to the disposal of sewage sludge within the confines of the facility;

(25) "Sector U Sites" means food and kindred products facilities, as defined by standard industrial classification major group 20;

(26) "Sector V Sites" means textile facilities, as defined by standard industrial classification major groups 22, 23, and 31 (except standard industrial classification of 3111);

(27) "Sector W Sites" means wood and metal furniture and fixture manufacturing facilities, as defined by standard industrial classification major group 25 and standard industrial classification 2434;

(28) "Sector X Sites" means printing and publishing facilities, including allied industries facilities, as defined by in standard industrial classification major group 27;

(29) "Sector Y Sites" means rubber, miscellaneous plastic products, and miscellaneous manufacturing facilities, as defined by standard industrial classification major groups 30 and 39 (except standard industrial classification of 3952); and,

(30) "Sector Z Sites" means leather tanning and finishing facilities, with a primary standard industrial classification of 3111.

Reference: Standard Industrial Classification Manual, 1987, Executive Office of the President, Office of Management and Budget. Copies may be obtained from National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia 22161, order no. PB 87-100012. Cost: $31. The document is available online at https://www.osha.gov/pls/imis/sic_manual.html.

History

Source: 47 SDR 110, effective April 27, 2021.
General Authority: SDCL 34A-2-119.1.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:12:02 Sector J annual fees

74 : 52 : 12 : 02 . Sector J annual fees. The owner or operator of a sector J industrial site that is required to operate under a general water pollution control permit for stormwater discharges associated with industrial activities shall pay an annual fee. The annual fee must be based on the unreclaimed acreage reported under SDCL 45-6-72 by December 31 of each year to the surface water discharge and pretreatment permit administrative subfund as follows:

(1) $100 for sites with less than 1.0 acre unreclaimed;

(2) $200 for sites with 1.0 acre to less than 20.0 acres unreclaimed;

(3) $400 for sites with 20.0 acres to less than 40.0 acres unreclaimed;

(4) $600 for sites with 40.0 acres to less than 80 acres unreclaimed; and

(5) $800 for sites with 80 acres or more unreclaimed.

History

Source: 47 SDR 110, effective April 27, 2021.
General Authority: SDCL 34A-2-119.1.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:12:03 Other industrial sector sites fees

74 : 52 : 12 : 03 . Other industrial sector sites fees. The owner or operator of an industrial site that is required to operate under a general water pollution control permit for stormwater discharges associated with industrial activities, except sector J sites, shall pay an annual fee to the surface water discharge and pretreatment permit administrative subfund as follows:

(1) $100 for sectors B, P, Q, R, T, U, V, W, and X;

(2) $200 for sectors C, F, O, S, Y, Z, AA, AB, AC, and AD;

(3) $400 for sectors A, D, E, M, and N;

(4) $600 for sectors K and L; and

(5) $800 for sectors G, H, and I.

History

Source: 47 SDR 110, effective April 27, 2021.
General Authority: SDCL 34A-2-119.1.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:12:04 Annual fee due date

74 : 52 : 12 : 04 . Annual fee due date. The annual fee for each industrial site that is required to operate a general water pollution control permit for stormwater discharges associated with industrial activities accrues on January 1 of each year and is due on January 31 of that year. The annual fee will accrue each year until the permit coverage is terminated by the secretary.

History

Source: 47 SDR 110, effective April 27, 2021.
General Authority: SDCL 34A-2-119.1.
Law Implemented: SDCL 34A-2-36.

ARSD 74:52:12:05 Maximum annual fee

74 : 52 : 12 : 05 . Maximum annual fee. The maximum annual fee for an owner with multiple industrial sites that are required to operate under a general water pollution control permit for stormwater discharges associated with industrial activities may not exceed $2,500 per year.

History

Source: 47 SDR 110, effective April 27, 2021.
General Authority: SDCL 34A-2-119.1.
Law Implemented: SDCL 34A-2-36.