5.10 - Permit Conditions

5.10. Permit Conditions

(1) General Conditions. The conditions in 314 CMR 5.16 apply to every individual and general permit issued under 314 CMR 5.00, whether or not expressly incorporated into the permit. The permittee shall comply with all of the general conditions in 314 CMR 5.16.

(2) Special Conditions.

(a) In addition to the conditions applicable to all permits listed in 314 CMR 5.16, the Department will include special conditions in general permits and on a case-by-case basis in individual permits to provide for and assure compliance with all applicable requirements of M.G.L. c. 21, §§ 26 through 53, and 314 CMR 5.00. An applicable requirement of M.G.L. c. 21, §§ 26 through 53, and 314 CMR 5.00 is a state statutory or regulatory requirement which takes effect prior to issuance of the permit. Applicable requirements will be identified in the fact sheet or statement of basis prepared under 314 CMR 2.05: Preparation of Fact Sheet or Statement of Basis for Permit.

At a minimum, the special conditions shall establish effluent limitations in accordance with 314 CMR 5.10(3), and (4), and other applicable requirements such as: the duration of the permit (314 CMR 5.10(5)); monitoring, recordkeeping and reporting requirements (314 CMR 5.10(6)); and, where applicable, schedules of compliance (314 CMR 5.10(7)) and other conditions (314 CMR 5.10(8)). The permittee shall comply with all special conditions included in the permit.

(b) Effluent Limitations. Except as expressly provided in 314 CMR 5.10(3)(c), (4)(a)2., (4A), (4B), (4C), and (9), the Department shall apply the more stringent of the water quality based effluent limitations under 314 CMR 5.10(3), or the technology based effluent limitations under 314 CMR 5.10(4). In the case of reissued permits, the Department shall apply effluent limitations which are at least as stringent as those in the previous permit, unless the effluent limitations imposed by the previously issued permit are more stringent than subsequently promulgated effluent guidelines and one or more of the following conditions apply:

1. The discharger has installed the treatment facilities required to meet the effluent limitations in the previous permit and has properly operated and maintained the facilities, but has nevertheless been unable to achieve the previous effluent limitations. In this case, the limitations in the renewed or reissued permit may reflect the level of pollutant control actually achieved (but shall not be less stringent than required by the subsequently promulgated effluent limitation guidelines);

2. The circumstances on which the previous permit was based have materially and substantially changed since the time the permit was issued and would constitute cause for permit modification or revocation and reissuance under 314 CMR 5.12(2).

(3) Water Quality Based Effluent Limitations. Except as otherwise provided in 314 CMR 5.10(3)(c) and (9), all permits shall contain limitations which are adequate to assure that no pollutants shall be discharged in an amount or concentration that would impair the use of the ground water as an actual or potential source of potable water. All permits shall also contain limits which are adequate to protect surface waters for their existing and designated uses and to assure the attainment and maintenance of 314 CMR 4.00: Massachusetts Surface Water Quality Standards. The Department shall consider natural background conditions and any Total Maximum Daily Loads established by the Department. The permit limitations shall protect existing uses of hydrologically connected downgradient ground waters and surface waters, and shall not interfere with the maintenance and attainment of beneficial uses in hydrologically connected downgradient waters. Except as otherwise provided in 314 CMR 5.10(3)(c), (4A), (4B), (4C), and (9), the water quality based effluent limitations in 314 CMR 5.10(3)(a) through (c) shall apply to all discharges.

(a) Effluent Limitations for All Ground Waters. Pathogenic Organisms shall not be present in amounts sufficient to render the ground water detrimental to the public health, safety, welfare, or the environment, or impair the use of the ground water as an actual or potential source of potable water. Pathogenic Organisms shall not be present in amounts sufficient to interfere with the attainment and maintenance of the existing and designated uses of hydrologically connected downgradient surface waters. Any discharge shall not exceed the maximum contaminant levels set forth in 310 CMR 22.00: Drinking Water.

(b) The Department may establish water quality based effluent limitations for a pollutant subject to the maximum contaminant levels set forth in 310 CMR 22.00: Drinking Water that are more stringent than those specified in 314 CMR 5.10(3)(a), if needed to protect ground waters as an actual or potential source of potable water or surface waters of the Commonwealth for their existing and designated uses. The Department may also establish water quality based effluent limitations for other pollutants to protect the ground waters of the Commonwealth for use as an actual or potential source of potable water and the surface waters of the Commonwealth for their existing and designated uses set forth in 314 CMR 4.00: Massachusetts Surface Water Quality Standards including, but not limited to, effluent limitations on contaminants which are not regulated by 310 CMR 22.00: Drinking Water. The Department will prohibit the discharge of any toxic pollutant for which the EPA or the Department has not yet developed a Health Advisory and for which there is not sufficient data available to the Department for the establishment of a Health Advisory. The Department may establish a Health Advisory for additional toxic pollutants when sufficient data becomes available.

(c) Special Water Quality Based Effluent Limitations for Existing Discharges to Ground Water Previously Classified as Class III. A discharge authorized by a permit issued before March 20, 2009, to a ground water classified as a Class III Ground Water before March 20, 2009, may be allowed to meet the effluent limitations listed in 314 CMR 5.10(3)(c)1. and 2. provided that no action is proposed that will increase the volume of discharge or the amount of pollutants discharged above what is authorized in the permit issued before March 20, 2009:

1. The concentrations of nitrate nitrogen shall not exceed 50 milligrams per liter; and

2. The concentration of total nitrogen shall not exceed 50 milligrams per liter.

(d) Notwithstanding the provisions of 314 CMR 5.10(3)(c), the Department may require a discharge to ground water classified as a Class III Ground Water before March 20, 2009, that was not authorized by a permit issued before March 20, 2009, to meet the water quality based effluent limitations set forth in 314 CMR 5.10(3)(a) and (b). The Department may also require any discharge to ground water classified as a Class III Ground Water before March 20, 2009 to meet more stringent effluent limitations than those set forth in 314 CMR 5.10(3)(c) if it determines, based on a Total Maximum Daily Load Report or otherwise, that additional and more stringent effluent limitations are necessary to ensure that the discharge will not cause or contribute to a violation of 314 CMR 4.00: Massachusetts Surface Water Quality Standards.

(4) Technology Based Effluent Limitations.

(a) The following technology based effluent limitations shall apply to POTWs and PWTFs that do not treat industrial wastewater.

1. Except as provided in 314 CMR 5.10(4)(a)2., (4A), (4B), (4C), and (9), technology based limitations for discharges from POTWs and PWTFs that do not treat industrial wastewater shall be enhanced secondary treatment. Limitations defining enhanced secondary treatment may be expressed in terms of concentration, mass, or both.

2. Except as otherwise provided in 314 CMR 5.10(4A), (4B), or (4C), the Department will not require disinfection unless the treatment works includes open sand beds, or unless the Department determines that disinfection is necessary to protect the public health, safety, welfare, or the environment.

3. Special Technology Based Effluent Limitations for Existing Discharges to Ground Water Previously Classified as Class III. A permit issued before March 20, 2009, authorizing a discharge to a ground water classified as Class III Ground Water before March 20, 2009, may provide that the technology based effluent limitation is primary treatment if no action is proposed that will increase the volume of effluent or the amount of pollutants that will be discharged above that authorized in the permit issued before March 20, 2009. Notwithstanding the foregoing, the Department will require any discharge to ground water classified as Class III Ground Water before March 20, 2009, that was not authorized by a permit issued prior to March 20, 2009, to receive treatment in addition to primary treatment. The Department may also require any discharge to ground water classified as Class III Ground Water as of March 20, 2009 receive treatment in addition to that specified in 314 CMR 5.10(4)(a)2. if it determines, based on a Total Maximum Daily Load or otherwise, that such additional treatment is necessary to ensure that the discharge will not cause or contribute to a violation of the Massachusetts Surface Water Quality Standards.

(b) Technology based limitations for discharges from PWTFs that treat industrial wastewater shall be the more stringent of the following:

1. Limitations and standards for the applicable industrial category promulgated by EPA pursuant to §§ 304, 306, 307 and 405 of the Federal Act, 33 U.S.C. §§ 1314, 1316, 1317, and 1345, as required by § 301 of the Federal Act, 33 U.S.C. § 1311.

2. Limitations developed on a case-by-case basis that, in the Department's judgment, define the appropriate level of control set forth in the Federal Act for the category of discharger or class of pollutants discharged. In defining the appropriate level of control hereunder, the Department will consider any draft or promulgated EPA effluent limitation guidelines, draft or proposed EPA development documents or guidance, any available state guidance, or any technology or process which has been demonstrated to be achievable in the experience of the Department for the class or category of discharger.

(4A) Additional and More Stringent Water Quality and Technology Based Effluent Limitations for Discharges within a Zone II or Interim Wellhead Protection Area.

(a) Except as otherwise provided in 314 CMR 5.10(9), discharges of liquid effluent from a POTW or a PWTF within a Zone II or Interim Wellhead Protection Area shall, at a minimum, meet the following additional and more stringent water quality based effluent limitations and technology based effluent limitations:

1. Total Suspended Solids shall not exceed 10 milligrams per liter;

2. Turbidity shall not exceed 5 NTU;

3. Total Organic Carbon shall not exceed 3 milligrams per liter unless the Department determines otherwise based on considerations such as the location of the discharge relative to the Zone of Contribution (as determined by a Hydrogeological Evaluation performed in accordance with 314 CMR 5.09), and whether mitigation or additional source protection measures are provided; and

4. The effluent must be filtered and disinfected to meet an effluent limitation of no more than 200 fecal coliform organisms per 100 ml.

(b) Any POTW that treats industrial wastewater and discharges a liquid effluent within a Zone II or Interim Wellhead Protection Area shall establish and implement a pretreatment program that meets the requirements of 314 CMR 12.08: Prohibitions and Standards for Discharge to POTWs, 12.09: POTW Pretreatment Programs and 5.10(8)(a). Unless a permit was issued prior to March 20, 2009 a PWTF located within a Zone II or IWPA shall not treat industrial wastewater.

(c) Except as otherwise provided in 314 CMR 5.10(9), a discharge of a liquid effluent from a POTW or a PWTF located within a Zone II or Interim Wellhead Protection Area of a ground water source and the two-year ground water travel time to the source shall, at a minimum, meet the following additional and more stringent water quality based limitations:

1. Total Suspended Solids shall not exceed 5 milligrams per liter;

2. Turbidity shall not exceed 2 NTU;

3. Biological Oxygen Demand (BOD) shall not exceed 10 milligrams per liter;

4. Total Organic Carbon (TOC) shall not exceed one milligram per liter; and

5. Total nitrogen and nitrate nitrogen shall not exceed 5 milligrams per liter.

(d) Except as otherwise provided in 314 CMR 5.10(9), a discharge of a liquid effluent from a POTW or a PWTF located within a Zone II or Interim Wellhead Protection Area of a ground water source and the two-year ground water travel time to the source shall, at a minimum, meet the following additional technology based limitations:

1. The effluent shall at all times be oxidized, filtered, and disinfected so that the median concentration of fecal coliform in the disinfected effluent does not exceed a limit of no detectable colonies per 100 milliliters over a continuous seven-day sampling period, and no sample shall exceed a limit of 14 colonies per 100 milliliters.

2. The permittee shall demonstrate that the disinfection process can inactivate or remove five logs of F-specific bacteriophage of MS 2 or poliovirus from the effluent. A virus at least as resistant as poliovirus may be used for the purpose of demonstration. This requirement may be met by a combination of removal and inactivation. Compliance may also be based on the treatment process, turbidity, and type of performance of the disinfection.

3. The Department may allow the effluent to be filtered without coagulation if the turbidity requirement can be satisfied after filtration without coagulation.

(e) Notwithstanding anything to the contrary in 314 CMR 5.10(4A), the Department may allow a discharge of effluent from a POTW or a PWTF located within a Zone II or Interim Wellhead Protection Area to meet effluent limitations that are less stringent than required by 314 CMR 5.10(4A)(a), (c) and (d), provided that:

1. The discharge was authorized by a permit issued pursuant to 314 CMR 5.00 prior to March 20, 2009;

2. No action is proposed that will increase the volume of the discharge or the amount of pollutants discharged above that authorized in the permit issued prior to March 20, 2009;

3. The continued discharge of effluent from the POTW or PWTF will not impair the use of the ground water as an actual or potential source of potable water;

4. The continued discharge of effluent from the POTW or PWTF will not cause or contribute to a violation of 314 CMR 4.00: Massachusetts Surface Water Quality Standards;

5. The discharge is required to meet effluent limitations at least as stringent as those set forth in the permit issued prior to March 20, 2009; and

6. The discharge is outside the six-month ground water travel time to the public water source for a public water system.

(f) If, pursuant to 314 CMR 5.10(4A)(e), the Department issues a permit that allows a discharge within a Zone II or Interim Wellhead Protection Area to meet effluent limitations less stringent than required by 314 CMR 5.10(4A)(a), (c) and (d), the Department may modify the permit to require the discharge to meet the applicable effluent limitations set forth in 314 CMR 5.10(4A)(a), (c) and (d) if, at permit renewal, or any other time, the Department determines that such modification is necessary to protect the public health, safety, welfare, or the environment.

(4B) Additional and More Stringent Effluent Limitations for Discharges Within 100 Feet of an Irrigation Well. If a permit authorizes the discharge of reclaimed water within 100 feet of an irrigation well, the permit shall establish effluent limitations that are at least as stringent as effluent limitations established in accordance with 314 CMR 20.17(8).

(4C) Additional and More Stringent Effluent Water Quality and Technology Based Effluent Limitations for Discharges from Treatment Works That Discharge an Effluent to the Ground Water Without the Benefit of Treatment in the Unsaturated Zone. If an applicant proposes a wastewater treatment facility that does not include treatment in the unsaturated zone prior to discharge to the ground water, the permit shall require the discharge to meet the effluent limitations set forth in 314 CMR 5.10(4A) that apply to discharges within a Zone II or Interim Wellhead Protection Area of a ground water source and the two-year ground water travel time to the source.

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

(6) Monitoring, Recordkeeping and Reporting Requirements.

(a) Each permit shall contain monitoring requirements to assure compliance with permit limitations and conditions, including without limitation the installation of monitoring wells to ensure the protection of the ground water as an actual or potential source of potable water, protection of surface waters for their existing and designated uses, and to assure the attainment and maintenance of the 314 CMR 4.00: Massachusetts Surface Water Quality Standards. The Department shall approve the number, location, dimensions, method of construction, sampling parameters, and method of sampling of monitoring wells. The type, intervals, and frequency of monitoring shall be sufficient to yield data which are representative of the monitored activity including, when appropriate, continuous monitoring. Monitoring requirements may include the mass (or other measurement specified in the permit) for each pollutant limited in the permit, the volume of effluent discharged from each facility, and other measurements as appropriate (including biological monitoring methods when appropriate). Monitoring shall be conducted in accordance with the provisions of 314 CMR 5.16(10). Permittees shall maintain records of all monitoring activities in accordance with 314 CMR 5.16(11).

(b) Each permit shall contain requirements to report monitoring results with a frequency dependent on the nature and effect of the discharge, but in no case less than once a year. Pollutants for which the permittee must report violations of maximum daily discharge limitations under 314 CMR 5.16(20)(e) shall be listed in the permit.

(c) The permittee shall demonstrate that permitted discharges comply with the effluent limitations and other relevant conditions in the permit through tests or analytical determination of ground water and effluent samples collected, transported, and stored in the manner outlined in Standard Methods for the Examination of Water and Wastewater, 22nd edition, published by the American Public Health Association, American Water Works Association, and the Water Environment Federation, 2016, and the latest EPA analytical procedures. The Department must approve the location of ground water, influent, and effluent sampling. Effluent samples must be collected at a point where the effluent emerges from a treatment works, disposal system, outlet, or point source, and prior to being discharged to the ground, unless otherwise approved by the Department. In selecting or approving monitoring well locations and construction, the Department may consider all relevant facts including, but not limited to:

1. The mobility of pollutants in the unsaturated zone, and the pollutant attenuation mechanisms in this zone;

2. Attenuation mechanisms that may remove potential pollutants passing through the soil;

3. The relative thickness of the unsaturated zone;

4. Attenuation of pollutant concentrations with distance, that may occur in the saturated zone as a result of the attenuation process occurring below the water table; and

5. Information from the approved Hydrogeological Report, including but not limited to, information on ground water levels, ground water flows, and soils information.

(d) Tests or Analytical Determinations. Tests and analytical determinations to establish compliance with standards, limitations and criteria shall be conducted in accordance with methods approved by the Department for that purpose.

(7) Schedule of Compliance.

(a) A permit may, when appropriate, specify a schedule leading to compliance with M.G.L. c. 21, §§ 26 through 53 and 314 CMR 5.00. Any such schedule shall require compliance as soon as possible. Each schedule shall set forth dates to accomplish interim requirements leading toward compliance. Beginning with the date of permit issuance, the time between interim dates shall not exceed one year. If the time necessary for completion of any interim requirement is more than one year and is not readily divisible into stages for completion, the permit shall specify interim dates for the submission of reports of progress toward completion of the interim requirements and indicate a projected completion date.

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

(8) Other Conditions. In addition to the conditions established under 314 CMR 5.10(1) through (7), a permit may include special conditions as follows:

(a) Requirements for POTWs to comply with pretreatment provisions under 314 CMR 12.00: Operation, Maintenance and Pretreatment Standards for Wastewater Treatment Works and Direct Dischargers, including:

1. The identification, in terms of character and volume of pollutants, of any significant indirect discharge into the POTW subject to the prohibitions and standards of 314 CMR 12.08: Prohibitions and Standards for Discharges to POTWs;

2. The establishment of a POTW pretreatment program in accordance with 314 CMR 12.09: POTW Pretreatment Programs, including any necessary schedule of compliance for adoption of the program;

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

4. The submittal by a POTW of the reports required by 314 CMR 12.09(3): POTW Reporting.

(b) A permit may impose similar pretreatment requirements on a PWTF that treats industrial wastewater if it determines such requirements are necessary to ensure that the discharge will not:

1. interfere with the use of the ground water as an actual or potential source of potable water;

2. cause or contribute to a violation of 314 CMR 4.00: Massachusetts Surface Water Quality Standards; or

3. pose a threat to the public health, safety, welfare, or the environment.

(c) Requirements applicable to the management of hazardous wastes for treatment works subject to the provisions of 314 CMR 8.00: Supplemental Requirements for Hazardous Waste Management Facilities.

(d) Requirements to control or abate the discharge of pollutants through the application of best management practices when:

1. Authorized under § 304(e) of the Federal Act, 33 U.S.C. § 1314(e), for the control of toxic pollutants and hazardous substances from ancillary and industrial activities;

2. Numerical effluent limitations are infeasible; or

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

(e) Requirements to monitor, record, and report the quality of water at upgradient and downgradient monitoring wells to determine that the discharge does not impair the use of the ground water as an actual or potential source of potable water and will not cause or contribute to a violation of 314 CMR 4.00: Massachusetts Surface Water Quality Standards.

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

(g) Requirements imposed in grants or loans made by EPA or the Department to POTWs under the Federal Act or M.G.L. c. 29C which are reasonably necessary for the achievement of effluent limitations and compliance with all the terms and conditions of the permit or 314 CMR 5.00.

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

(i) Requirements for the periodic submission of reports regarding the condition and capacity of a treatment works, including any portion of a sewer system.

(j) Requirements for the operation, maintenance, and staffing of treatment works, including but not limited to, the following:

1. Submission of an Operation and Maintenance and Staffing Plan (the "Operations and Maintenance Plan") to the Department for its review and approval at least 90 days before the facility commences operation or at least 45 days before the permit takes effect, whichever last occurs. The plan will be presumed approved if the Department does not issue a written approval, conditional approval, denial or request for further information within 90 days after submittal. The Operation and Maintenance Plan shall document how the permittee intends to operate, maintain and staff the facility in accordance with all applicable requirements in the permit, 314 CMR 5.00, 257 CMR 2.00: Certification of Operators of Wastewater Treatment Facilities, and 314 CMR 12.00: Operation and Maintenance and Pretreatment Standards for Wastewater Treatment Works and Indirect Dischargers. The Operation and Maintenance Plan shall include a preventative maintenance program to ensure that all equipment is kept in a reliable condition. The Operation and Maintenance Plan shall include a plan to staff the facility in accordance with all applicable regulations, including without limitation, 257 CMR 2.00. If the permit authorizes the use of some or all of the effluent as reclaimed water in accordance with 314 CMR 20.00: Reclaimed Water Permit Program and Standards the Operation and Maintenance Plan shall also include an emergency contingency plan that establishes standard operating procedures that must be followed when the reclaimed water does not meet the applicable effluent limitations.

2. Operation of the facility in accordance with the Operation and Maintenance Plan approved by the Department, 314 CMR 5.00 and 12.00: Operation and Maintenance and Pretreatment Standards for Wastewater Treatment Works and Indirect Dischargers.

3. Submission of a revised Operation and Maintenance Plan whenever there are proposed modifications to the facility, the standard operating procedures for the facility, or the staffing of the facility. The plan will be presumed approved if the Department does not issue a written approval, conditional approval, denial or request for further information within 90 days after submittal.

4. Except as otherwise determined by the Department, implementation of proposed changes only after the revised Operation and Maintenance Plan is approved by the Department.

5. the permittee intends to enter into a contract with a third party (the "contract operator") for the operation and maintenance of the facility, at least 90 days prior to the date the contract operator intends to commence operation of the facility, the permittee shall submit a draft unsigned contract to the Department for its review and approval. he contract will be presumed approved if the Department does not issue a written approval, conditional approval, denial or request for further information within ninety days after submittal. The contract shall provide that the contract operator shall operate and maintain the facility in accordance with the approved Operation and Maintenance Plan, 314 CMR 20.00: Reclaimed Water Permit Program and Standards, 314 CMR 12.00: Operation and Maintenance and Pretreatment Standards for Wastewater Treatment Works and Indirect Dischargers, and 257 CMR 2.00: Certification of Operators of Wastewater Treatment Facilities. The permittee shall not execute the contract and authorize the contract operator to operate the facility unless and until the Department has approved the contract. The permittee shall notify the department in writing within seven days of any change in contract operators.

(k) Use of Effluent as Reclaimed Water in Accordance with 314 CMR 20.00: Reclaimed Water Permit Program and Standards. A permit issued under 314 CMR 5.00 may authorize the use, sale or distribution of some or all of the effluent from the permitted facility as reclaimed water, in accordance with 314 CMR 20.00, provided that the facility is a reclaimed water system as defined in 314 CMR 5.02. Any such permit shall contain the conditions governing the operation and maintenance of a reclaimed water system and the treatment, use, sale and distribution of reclaimed water set forth in 314 CMR 20.00.

(l) Conditions for Privately Owned Wastewater Treatment Facilities That Treat at Least Some Sewage from Residential Uses, Hospitals, Nursing or Personal Care Facilities, Residential Care Facilities And/or Assisted Living Facilities.

1. A permit for a Privately Owned Wastewater Treatment Facility (PWTF) that treats at least some sewage from residential uses, hospitals, nursing or personal care facilities, residential care facilities, and/or assisted living facilities shall contain the following additional conditions:

a. The permittee shall establish, fund and maintain a financial assurance mechanism that provides for the continued availability of an immediate repair and replacement account to be used by the permittee solely for the immediate repair and replacement of any failing components of the PWTF. To create an immediate repair and replacement account, the permittee shall deposit at least 25% of the estimated construction cost of the PWTF into an interest bearing escrow account in accordance with the financial assurance mechanism and 314 CMR 5.15. The escrow agent for the immediate repair and replacement account shall be a third-party acting in a fiduciary capacity. On or before January 31st of each year, the permittee shall submit an annual financial report identifying the initial and current balances in the immediate repair and replacement account, and confirming the continuing availability of funds in the account for the purposes specified in the permit and 314 CMR 5.15. The report shall be prepared in accordance with generally accepted accounting principles.

b. The permittee shall meet the obligation to establish all required financial assurance mechanisms by using Department approved form documents, and shall submit the documents to the Department for its review and approval.

c. The permittee shall maintain the current form documents evidencing all required financial assurance mechanisms approved by the Department. The permittee shall perform all its obligations under the required financial assurance mechanisms as approved by the Department.

d. For purpose of the financial assurance mechanism requirement, the estimated construction cost of the wastewater treatment facility shall include the cost of constructing the wastewater treatment plant, collection system, associated mechanical equipment, but shall not include the land and disposal area.

2. A permit for a PWTF that does not treat any sewage from residential uses, hospitals, nursing or personal care facilities, residential care facilities, or assisted living facilities may include the conditions set forth in 314 CMR 5.10(8)(k)1. that require the permittee to establish, fund and maintain a financial assurance mechanism providing for an immediate repair and replacement account in accordance with 314 CMR 5.15(4) and (5) if, at the time of permit renewal or any other time, the Department determines that establishment and maintenance of a financial assurance mechanism is necessary to ensure that the PWTF operates in compliance with its permit or 314 CMR 5.00, or to protect the public health, safety, welfare, or the environment. In making this determination, the Department shall consider the compliance history of the PWTF and the risk the PWTF poses to the public health, safety, welfare or the environment, including without limitation, actual and potential sources of potable water for a public water system and downgradient, hydrologically connected surface waters.

(9) Special Effluent Limitations. A permit may establish special effluent limitations less stringent than the water quality based effluent limitations set forth in 314 CMR 5.10(3) and the technology based limitations set forth in 314 CMR 5.10(4), as provided in 314 CMR 5.10(9)(a) through (h), if and only if, it is demonstrated to the satisfaction of the Department that the special effluent limitations are sufficient to protect the use of the ground water as an actual or potential source of potable water, and to protect the use of surface waters for the designated uses set forth in 314 CMR 4.00: Massachusetts Surface Water Quality Standards. The Department shall not issue a permit with special effluent limitations as provided in 314 CMR 5.10(9)(a) through (h), unless it determines, based on a Total Maximum Daily Load or otherwise, that the discharge will not cause or contribute to a violation of 314 CMR 4.00.

(a) A permit may establish special effluent limitations less stringent than the water quality based effluent limitations listed in 314 CMR 5.10(3)(a) and (b) and the technology based effluent limitations set forth in 314 CMR 5.10(4)(a), where it is demonstrated to the satisfaction of the Department that the permitted facility is a treatment works designed, constructed, operated and maintained for the purpose of restoring a contaminated ground water and the discharge from such facility will not cause the ground waters receiving the discharge or any hydrologically connected downgradient surface waters of the Commonwealth to be further degraded.

(b) A permit may specify effluent limitations less stringent than the water quality based effluent limitations listed in 314 CMR 5.10(3)(a) and (b) where it is demonstrated to the satisfaction of the Department that natural background conditions preclude the ground water receiving the discharge from meeting the water quality based effluent limitations listed in 314 CMR 5.10(3)(a) and (b).

(c) An individual permit for a discharge of an effluent resulting from the treatment of sewage by a treatment works may specify effluent limitations less stringent than the water quality based effluent limitations listed in 314 CMR 5.10(3)(a) and (b) and the technology based effluent limitations specified in 314 CMR 5.10(4)(a), where it is demonstrated to the satisfaction of the Department that all the following conditions are met:

1. The ground water is not an underground source of drinking water because it does not currently serve as a source of drinking water and it cannot serve as a source of public drinking water now or in the future because:

a. it is used to produce mineral, hydrocarbon or geothermal energy,

b. it is so contaminated or is located at a depth or location that it would be economically or technologically infeasible, or

c. it is not fit for human consumption.

2. The proposed discharge will not present an actual or potential public health hazard.

3. The proposed discharge will not cause the water quality of any public or private water supply to violate the maximum contaminant limits set forth in 310 CMR 22.00: Drinking Water.

(d) In determining whether an applicant has made the demonstration required by 314 CMR 5.10(9)(c), the Department shall, at a minimum, consider the following factors:

1. the volume and physical, chemical, and biological characteristics of the waste in the proposed discharge;

2. the nature and extent of the area that may be affected by the potential movement of the contaminant plume that may result from the proposed discharge (the potentially impacted area);

3. the hydrological characteristics of the potentially impacted area and its connection to hydrologically connected downgradient ground waters and surface waters;

4. the existing quantity and quality of ground water and surface water in the impacted area; and

5. the proximity of the proposed discharge to surface waters and to ground water withdrawals including without limitation wells for public water systems and private water supply wells.

(e) An individual permit for the discharge of a liquid effluent resulting from the treatment of sewage at a treatment works may require the discharge to meet the water quality based limitation for nitrate nitrogen and total nitrogen of 10 milligrams per liter at selected monitoring wells located along the downgradient property boundary instead of at the point of discharge, if the discharger completes a nitrogen analysis in accordance with Department guidelines and demonstrates to the satisfaction of the Department that:

1. The water quality based limitation for nitrate nitrogen and total nitrogen of 10 milligrams per liter will be met at all points at which the discharge will reach any ground water source of potable water for a public water system, or any private water supply well; and

2. The discharge is not within a Zone I, Zone II, Interim Wellhead Protection Area, Private Water Supply Area, Zone A, sole source aquifer, potentially productive aquifer, or any nitrogen sensitive area designated by the Department in accordance with 310 CMR 15.215: Designation of Nitrogen Sensitive Areas.

3. The discharge complies with the requirements of the Water Resource Bureau's Interim Policy entitled Nutrient Loading Approach to Wastewater Permitting and Disposal, dated August 20, 1999. Notwithstanding the foregoing, the Department may modify any ground water discharge permit that has requirements based on the Interim Policy to include additional conditions or more stringent requirements when the ground water discharge permit is renewed, or at any other time that the Department determines such additional conditions are necessary for the protection of the public health, safety, welfare or the environment.

(f) An individual permit for a discharge of a liquid effluent resulting from the treatment of sewage at a treatment works may require the discharge to meet effluent limitations for nitrate nitrogen and total nitrogen of five mg/l at selected monitoring wells located along the down gradient property boundary in lieu of meeting the applicable effluent limitation for nitrate nitrogen and total nitrogen set forth in 314 CMR 5.10(3), (4)(a)1. and (4A) at the point of discharge, if the discharger completes a nitrogen analysis in accordance with Department guidelines and demonstrates to the satisfaction of the Department that:

1. The discharge is located within a Zone II, Interim Wellhead Protection Area, Private Water Supply Area, Zone A, a sole source aquifer, a potentially productive aquifer, or a nitrogen sensitive area designated by the Department in accordance with 310 CMR 15.215: Designation of Nitrogen Sensitive Areas;

2. The applicable water quality based limitations and the technology based limitations for nitrate nitrogen and total nitrogen set forth in 314 CMR 5.10(3), (4)(a)1. and 5.10(4A) will be met at all points at which the discharge will reach any ground water source of potable water for a public water system or any private water supply well;

3. The treatment works was in existence and permitted prior to March 20, 2009.

4. There is no increase in the volume of the discharge or amount of pollutants discharged above that authorized by the permit issued prior to March 20, 2009; and

5. The discharge complies with the requirements of the Water Resource Bureau's Interim Policy entitled Nutrient Loading Approach to Wastewater Permitting andDisposal, dated August 20, 1999. Notwithstanding the foregoing, the Department may modify any ground water discharge permit that has requirements based on the Interim Policy to include additional conditions or more stringent requirements when the ground water discharge permit is renewed, or at any other time that the Department determines such additional conditions are necessary for the protection of the public health, safety, welfare or the environment.

(g) A permit issued pursuant to 314 CMR 5.10(9)(e) or (f) may impose additional effluent limitations and require the implementation of additional measures to protect the ground water as an actual or potential source of potable water and surface waters for their existing and designated uses. Such additional effluent limitations and measures include, but are not limited to, limitations on the total pounds of nitrate nitrogen and/or total nitrogen discharged to the site over a calendar year, limitations on parameters in addition to nitrate nitrogen and total nitrogen, monitoring of parameters in addition to nitrate nitrogen and total nitrogen at the point of discharge and/or at selected monitoring wells along the property line, land use controls, best management practices, and household hazardous waste collection. If a permit is issued pursuant to 314 CMR 5.10(9)(e) or (f) for a discharge from a treatment works in existence prior to March 20, 2009, there shall be no reduction in the level of treatment from that provided prior to March 20, 2009.

(h) An individual permit for the discharge of an effluent resulting from the treatment of sewage at a seasonal wastewater treatment facility in existence as of March 20, 2009, that is not located within a Zone II, Interim Wellhead Protection Area, Private Water Supply Area, or nitrogen sensitive area designated by the Department in accordance with 310 CMR 15.215: Designation of Nitrogen Sensitive Areas, may establish special effluent limitations as follows. The special effluent limitations shall restrict the total pounds of biochemical oxygen demand, total suspended solids, nitrate nitrogen and total nitrogen discharged to the ground from the treatment works over a calendar year to the total pounds of the aforementioned pollutants that would have been discharged during such calendar year, if the discharge occurred throughout the year in compliance with the more stringent of the water quality based effluent limitations and the technology based limitations set forth in 314 CMR 5.10(3) and (4)(a), provided that it is demonstrated to the Department's satisfaction that the water quality based limitations set forth in 314 CMR 5.10(3)(a) and (b) will be met at all points where the discharge will reach any source for a public water system or any private water supply well.

(Amended by Mass Register Issue 1327, eff. 12/2/2016. Amended by Mass Register Issue 1330, eff. 12/2/2016.)

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