Bill Text: AZ SB1274 | 2014 | Fifty-first Legislature 2nd Regular | Chaptered
Bill Title: Aquifer protection permits; post-closure procedure
Spectrum: Moderate Partisan Bill (Republican 20-4)
Status: (Passed) 2014-04-22 - Chapter 115 [SB1274 Detail]
Download: Arizona-2014-SB1274-Chaptered.html
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House Engrossed Senate Bill |
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State of Arizona Senate Fifty-first Legislature Second Regular Session 2014
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CHAPTER 115
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SENATE BILL 1274 |
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AN ACT
amending sections 49-201, 49-243, 49-244 and 49-286, Arizona Revised Statutes; relating to aquifer protection permits.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 49-201, Arizona Revised Statutes, is amended to read:
49-201. Definitions
In this chapter, unless the context otherwise requires:
1. "Administrator" means the administrator of the United States environmental protection agency.
2. "Aquifer" means a geologic unit that contains sufficient saturated permeable material to yield usable quantities of water to a well or spring.
3. "Best management practices" means those methods, measures or practices to prevent or reduce discharges and includes structural and nonstructural controls and operation and maintenance procedures. Best management practices may be applied before, during and after discharges to reduce or eliminate the introduction of pollutants into receiving waters. Economic, institutional and technical factors shall be considered in developing best management practices.
4. "CERCLA" means the comprehensive environmental response, compensation, and liability act of 1980, as amended (P.L. 96‑510; 94 Stat. 2767; 42 United States Code sections 9601 through 9657), commonly known as "superfund".
5. "Clean closure" means implementation of all actions specified in a an aquifer protection permit, if any, as closure requirements, as well as elimination, to the greatest degree practicable, of any reasonable probability of further discharge from the facility and of either exceeding aquifer water quality standards at the applicable point of compliance or, if an aquifer water quality standard is exceeded at the time the permit is issued, causing further degradation of the aquifer at the applicable point of compliance as provided in section 49-243, subsection B, paragraph 3. Clean closure also means postclosure monitoring and maintenance are unnecessary to meet the requirements of this chapter to meet the requirements in an aquifer protection permit.
6. "Clean water act" means the federal water pollution control act amendments of 1972 (P.L. 92‑500; 86 Stat. 816; 33 United States Code sections 1251 through 1376), as amended.
7. "Closed facility" means:
(a) A facility that ceased operation before January 1, 1986, that is not, on August 13, 1986, engaged in the activity for which the facility was designed and that was previously operated and for which there is no intent to resume operation.
(b) A facility that has been approved as a clean closure by the director.
(c) A facility at which any postclosure monitoring and maintenance plan, notifications and approvals required in a permit have been completed.
8. "Concentrated animal feeding operation" means an animal feeding operation that meets the criteria prescribed in 40 Code of Federal Regulations part 122, appendix B for determining a concentrated animal feeding operation for purposes of 40 Code of Federal Regulations sections 122.23 and 122.24, appendix C.
9. "Department" means the department of environmental quality.
10. "Direct reuse" means the beneficial use of reclaimed water for specific purposes authorized pursuant to section 49‑203, subsection A, paragraph 6.
11. "Director" means the director of environmental quality or the director's designee.
12. "Discharge" means the direct or indirect addition of any pollutant to the waters of the state from a facility. For purposes of the aquifer protection permit program prescribed by article 3 of this chapter, discharge means the addition of a pollutant from a facility either directly to an aquifer or to the land surface or the vadose zone in such a manner that there is a reasonable probability that the pollutant will reach an aquifer.
13. "Discharge impact area" means the potential areal extent of pollutant migration, as projected on the land surface, as the result of a discharge from a facility.
14. "Discharge limitation" means any restriction, prohibition, limitation or criteria established by the director, through a rule, permit or order, on quantities, rates, concentrations, combinations, toxicity and characteristics of pollutants.
15. "Environment" means navigable waters, any other surface waters, groundwater, drinking water supply, land surface or subsurface strata or ambient air, within or bordering on this state.
16. "Existing facility" means a facility on which construction began before August 13, 1986 and which is neither a new facility nor a closed facility. For the purposes of this definition, construction on a facility has begun if the facility owner or operator has either:
(a) Begun, or caused to begin, as part of a continuous on‑site construction program any placement, assembly or installation of a building, structure or equipment.
(b) Entered a binding contractual obligation to purchase a building, structure or equipment which is intended to be used in its operation within 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 for purposes of this definition.
17. "Facility" means any land, building, installation, structure, equipment, device, conveyance, area, source, activity or practice from which there is, or with reasonable probability may be, a discharge.
18. "Gray water" means wastewater that has been collected separately from a sewage flow and that originates from a clothes washer or a bathroom tub, shower or sink but that does not include wastewater from a kitchen sink, dishwasher or toilet.
19. "Hazardous substance" means:
(a) Any substance designated pursuant to sections 311(b)(2)(A) and 307(a) of the clean water act.
(b) Any element, compound, mixture, solution or substance designated pursuant to section 102 of CERCLA.
(c) Any hazardous waste having the characteristics identified under or listed pursuant to section 49‑922.
(d) Any hazardous air pollutant listed under section 112 of the federal clean air act (42 United States Code section 7412).
(e) Any imminently hazardous chemical substance or mixture with respect to which the administrator has taken action pursuant to section 7 of the federal toxic substances control act (15 United States Code section 2606).
(f) Any substance which the director, by rule, either designates as a hazardous substance following the designation of the substance by the administrator under the authority described in subdivisions (a) through (e) of this paragraph or designates as a hazardous substance on the basis of a determination that such substance represents an imminent and substantial endangerment to public health.
20. "Inert material" means broken concrete, asphaltic pavement, manufactured asbestos‑containing products, brick, rock, gravel, sand and soil. Inert material also includes material that when subjected to a water leach test that is designed to approximate natural infiltrating waters will not leach substances in concentrations that exceed numeric aquifer water quality standards established pursuant to section 49‑223, including overburden and wall rock that is not acid generating, taking into consideration acid neutralization potential, and that has not and will not be subject to mine leaching operations.
21. "Major modification" means a physical change in an existing facility or a change in its method of operation that results in a significant increase or adverse alteration in the characteristics or volume of the pollutants discharged, or the addition of a process or major piece of production equipment, building or structure that is physically separated from the existing operation and that causes a discharge, provided that:
(a) A modification to a groundwater protection permit facility as defined in section 49‑241.01, subsection C that would qualify for an area‑wide permit pursuant to section 49‑243, subsection P consisting of an activity or structure listed in section 49‑241, subsection B shall not constitute a major modification solely because of that listing.
(b) For a groundwater protection permit facility as defined in section 49‑241.01, subsection C, a physical expansion that is accomplished by lateral accretion or upward expansion within the pollutant management area of the existing facility or group of facilities shall not constitute a major modification if the accretion or expansion is accomplished through sound engineering practice in a manner compatible with existing facility design, taking into account safety, stability and risk of environmental release. For a facility described in section 49‑241.01, subsection C, paragraph 1, expansion of a facility shall conform with the terms and conditions of the applicable permit. For a facility described in section 49‑241.01, subsection C, paragraph 2, if the area of the contemplated expansion is not identified in the notice of disposal, the owner or operator of the facility shall submit to the director the information required by section 49‑243, subsection A, paragraphs 1, 2, 3 and 7.
22. "Navigable waters" means the waters of the United States as defined by section 502(7) of the clean water act (33 United States Code section 1362(7)).
23. "New facility" means a previously closed facility that resumes operation or a facility on which construction was begun after August 13, 1986 on a site at which no other facility is located or to totally replace the process or production equipment that causes the discharge from an existing facility. A major modification to an existing facility is deemed a new facility to the extent that the criteria in section 49‑243, subsection B, paragraph 1 can be practicably applied to such modification. For the purposes of this definition, construction on a facility has begun if the facility owner or operator has either:
(a) Begun, or caused to begin as part of a continuous on‑site construction program, any placement, assembly or installation of a building, structure or equipment.
(b) Entered a binding contractual obligation to purchase a building, structure or equipment which is intended to be used in its operation within 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 for purposes of this definition.
24. "Nonpoint source" means any conveyance which is not a point source from which pollutants are or may be discharged to navigable waters.
25. "On‑site wastewater treatment facility" means a conventional septic tank system or alternative system that is installed at a site to treat and dispose of wastewater of predominantly human origin that is generated at that site.
26. "Permit" means a written authorization issued by the director or prescribed by this chapter or in a rule adopted under this chapter stating the conditions and restrictions governing a discharge or governing the construction, operation or modification of a facility.
27. "Person" means an individual, employee, officer, managing body, trust, firm, joint stock company, consortium, public or private corporation, including a government corporation, partnership, association or state, a political subdivision of this state, a commission, the United States government or any federal facility, interstate body or other entity.
28. "Point source" means any discernible, confined and discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation or vessel or other floating craft from which pollutants are or may be discharged to navigable waters. Point source does not include return flows from irrigated agriculture.
29. "Pollutant" means fluids, contaminants, toxic wastes, toxic pollutants, dredged spoil, solid waste, substances and chemicals, pesticides, herbicides, fertilizers and other agricultural chemicals, incinerator residue, sewage, garbage, sewage sludge, munitions, petroleum products, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and mining, industrial, municipal and agricultural wastes or any other liquid, solid, gaseous or hazardous substances.
30. "Postclosure monitoring and maintenance" means those activities that are conducted after closure notification and that are necessary to:
(a) Keep the facility in compliance with either the aquifer water quality standards at the applicable point of compliance or, for any aquifer water quality standard that is exceeded at the time the aquifer protection permit is issued, the requirement to prevent the facility from further degrading the aquifer at the applicable point of compliance as provided under section 49-243, subsection B, paragraph 3.
(b) Verify that the actions or controls specified as closure requirements in an approved closure design has eliminated discharge to the extent intended plan or strategy are routinely inspected and maintained.
(c) Perform any remedial, or mitigative or corrective action actions or controls as specified in the aquifer protection permit or perform corrective action as necessary to comply with this paragraph and article 3 of this chapter.
(d) Meet property use restrictions.
31. "Practicably" means able to be reasonably done from the standpoint of technical practicability and, except for pollutants addressed in section 49‑243, subsection I, economically achievable on an industry‑wide basis.
32. "Reclaimed water" means water that has been treated or processed by a wastewater treatment plant or an on‑site wastewater treatment facility.
33. "Regulated agricultural activity" means the application of nitrogen fertilizer or a concentrated animal feeding operation.
34. "Safe drinking water act" means the federal safe drinking water act, as amended (P.L. 93‑523; 88 Stat. 1660; 95‑190; 91 Stat. 1393).
35. "Standards" means water quality standards, pretreatment standards and toxicity standards established pursuant to this chapter.
36. "Standards of performance" means performance standards, design standards, best management practices, technologically based standards and other standards, limitations or restrictions established by the director by rule or by permit condition.
37. "Tank" means a stationary device, including a sump, that is constructed of concrete, steel, plastic, fiberglass, or other non‑earthen material that provides substantial structural support, and that is designed to contain an accumulation of solid, liquid or gaseous materials.
38. "Toxic pollutant" means a substance that will cause significant adverse reactions if ingested in drinking water. Significant adverse reactions are reactions that may indicate a tendency of a substance or mixture to cause long lasting or irreversible damage to human health.
39. "Trade secret" means information to which all of the following apply:
(a) A person has taken reasonable measures to protect from disclosure and the person intends to continue to take such measures.
(b) The information is not, and has not been, reasonably obtainable without the person's consent by other persons, other than governmental bodies, by use of legitimate means, other than discovery based on a showing of special need in a judicial or quasi‑judicial proceeding.
(c) No statute specifically requires disclosure of the information to the public.
(d) The person has satisfactorily shown that disclosure of the information is likely to cause substantial harm to the business's competitive position.
40. "Vadose zone" means the zone between the ground surface and any aquifer.
41. "Waters of the state" means all waters within the jurisdiction of this state including all perennial or intermittent streams, lakes, ponds, impounding reservoirs, marshes, watercourses, waterways, wells, aquifers, springs, irrigation systems, drainage systems and other bodies or accumulations of surface, underground, natural, artificial, public or private water situated wholly or partly in or bordering on the state.
42. "Well" means a bored, drilled or driven shaft, pit or hole whose depth is greater than its largest surface dimension.
Sec. 2. Section 49-243, Arizona Revised Statutes, is amended to read:
49-243. Information and criteria for issuing individual permit; definition
A. The director shall consider, and the applicant for an individual permit may be required to furnish with the application, the following information:
1. The design of the discharge facility. When formal as‑built submittals are unavailable, the applicant shall provide sufficient documentation to allow evaluation of those elements of the facility affecting discharge pursuant to the demonstration required in subsection B, paragraph 1 of this section.
2. A description of how the facility will be operated.
3. Existing and proposed pollutant control measures.
4. A hydrogeologic study defining and characterizing the discharge impact area, including the vadose zone.
5. The use of water from aquifers in the discharge impact area.
6. The existing quality of the water in the aquifers in the discharge impact area.
7. The characteristics of the pollutants discharged by the facility.
8. Closure strategy.
9. Any other relevant federal or state permits issued to the applicant.
10. Any other relevant information the director may require.
B. The director shall issue a permit to a person for a facility other than water storage at a storage facility pursuant to title 45, chapter 3.1 if the person demonstrates that either paragraphs 1 and 2 or paragraphs 1 and 3 of this subsection will be met:
1. That the facility will be so designed, constructed and operated as to ensure the greatest degree of discharge reduction achievable through application of the best available demonstrated control technology, processes, operating methods or other alternatives, including, where practicable, a technology permitting no discharge of pollutants. In determining best available demonstrated control technology, processes, operating methods or other alternatives, the director shall take into account any treatment process contributing to the discharge, site specific hydrologic and geologic characteristics and other environmental factors, the opportunity for water conservation or augmentation and economic impacts of the use of alternative technologies, processes or operating methods on an industry-wide basis. A discharge reduction to an aquifer achievable solely by means of site specific characteristics does not, in itself, constitute compliance with this paragraph. The requirements of this paragraph for wetlands designed and constructed to treat municipal and domestic wastewater for underground storage pursuant to section 49‑241, subsection B may be met by including seepage through the bottom of the facility if it is demonstrated that site characteristics can act to achieve performance levels established as the best available demonstrated control technology by the director. In addition, the director shall consider the following factors for existing facilities:
(a) Toxicity, concentrations and quantities of discharge likely to reach an aquifer from various types of control technologies.
(b) The total costs of the application of the technology in relation to the discharge reduction to be achieved from such application.
(c) The age of equipment and facilities involved.
(d) The industrial and control process employed.
(e) The engineering aspects of the application of various types of control techniques.
(f) Process changes.
(g) Non-water quality environmental impacts.
(h) The extent to which water available for beneficial uses will be conserved by a particular type of control technology.
2. That pollutants discharged will in no event cause or contribute to a violation of aquifer water quality standards at the applicable point of compliance for the facility.
3. That no pollutants discharged will further degrade at the applicable point of compliance the quality of any aquifer that at the time of the issuance of the permit violates the aquifer quality standard for that pollutant.
C. An applicant shall satisfy the requirements of subsection B, paragraph 1 of this section either by making a demonstration that the facility will meet the criteria of that paragraph or by agreeing to utilize the appropriate presumptive controls adopted by the director pursuant to section 49‑243.01, subsection A.
D. In assessing technology, processes, operating methods and other alternatives for the purposes of this section, "practicable" means able to be reasonably done from the standpoint of technical practicality and, except for pollutants addressed in subsection I of this section, economically achievable on an industry-wide basis.
E. The determination of economic impact on an industry-wide basis for purposes of subsection B, paragraph 1 of this section shall take into account differences in industry sectors, the type and size of the operation and the reasonableness of applying controls in an arid or semiarid setting.
F. Control measures designed to further reduce discharge may not be required if the director determines that site specific conditions, in conjunction with technology, processes, operating methods or other alternatives are sufficient to meet the requirements of subsection B, paragraph 1 of this section.
G. A discharging facility at an open pit mining operation shall be deemed to satisfy the requirements of subsection B, paragraph 1 of this section if the director determines that both of the following conditions are satisfied:
1. The mine pit creates a passive containment that is sufficient to capture the pollutants discharged and that is hydrologically isolated to the extent that it does not allow pollutant migration from the capture zone. For the purposes of this paragraph, "passive containment" means natural or engineered topographical, geological or hydrological control measures that can operate without continuous maintenance. Monitoring and inspections to confirm performance of the passive containment do not constitute maintenance.
2. The discharging facility employs additional processes, operating methods or other alternatives to minimize discharge.
H. The director shall issue a permit to a person for water storage at a storage facility proposed under title 45, chapter 3.1 if the person demonstrates that the facility will be so designed, constructed and operated as to ensure that the project will not cause or contribute to the violation of any standard adopted pursuant to section 49‑223 at the applicable point of compliance for the facility.
I. With respect to the following pollutants, the permit applicant for a new facility must meet the criteria of subsection B, paragraph 1 of this section to limit discharges to the maximum extent practicable regardless of cost:
1. Any organic substance listed by the secretary of the department of health and human services pursuant to 42 United States Code section 241(b)(4), as known to be carcinogens or reasonably anticipated to be carcinogens.
2. Any organic substance listed in 40 Code of Federal Regulations section 261.33(e), regardless of whether the substance is a waste subject to regulation under the resource conservation recovery act (P.L. 94‑580; 90 Stat. 2795).
3. Any organic toxic pollutant that the director lists by rule after determining that minute amounts of that pollutant in drinking water will present a substantial short‑term or long-term human health threat.
J. The director, by rule, may prescribe requirements for issuing a single permit applicable to all similar facilities under common ownership and located in a contiguous geographic area in lieu of an individual permit for each facility.
K. The director shall consider and may prescribe in the permit the following terms and conditions as necessary to ensure compliance with this article:
1. Monitoring requirements.
2. Record keeping and reporting requirements.
3. Contingency plan requirements.
4. Discharge limitations.
5. Compliance schedule requirements.
6. Closure requirements and, for a facility that cannot achieve clean closure, postclosure monitoring and maintenance requirements.
7. Alert levels that, when exceeded, may require adjustments of permit conditions or appropriate actions as are required by the contingency plans.
8. Such other terms and conditions as the director deems necessary to ensure compliance with this article.
L. With the consent of the applicant or permittee, the director may include in an aquifer protection permit for an existing facility the requirement that the owner or operator of the facility applicant or permittee undertake a remedial action, as defined in section 49‑281, to prevent, minimize or mitigate damage to the public health or welfare or to the waters of the state resulting from a discharge that occurred before August 13, 1986, if the following conditions are met:
1. The selection of remedial action, including the level and extent of cleanup, was determined according to the criteria in section 49‑282.06 and the rules adopted pursuant to that section.
2. The pollutant that was discharged constituted a hazardous substance.
M. The director may include in an aquifer protection permit as a condition the mitigation measures described in an order issued under section 49‑286.
M. With the consent of the applicant or permittee, the director may include in an aquifer protection permit as a condition the mitigation measures authorized under section 49-286 instead of issuing a mitigation order under section 49-286.
N. The director may deny a permit for a facility if the director determines that the applicant is incapable of fully carrying out the terms and conditions of the permit, including any conditions that require monitoring or installing and maintaining discharge control measures. The following apply to an application for a permit or to an issued permit:
1. The director may require the applicant to furnish information, such as past performance, including compliance with or violations of similar laws or rules, and technical and financial competence, relevant to its capability to comply with the permit terms and conditions.
2. For the purposes of evaluating an applicant's financial competence for closure, the director may consider a closure strategy and cost estimate rather than a detailed closure plan. Except for a state or federal agency or a county, city, town or other local governmental entity, the cost estimate shall be based on the cost for the applicant or permittee to hire a third party to conduct the closure strategy or plan unless the financial responsibility mechanism provided pursuant to this subsection is a self‑assurance or a guarantee and the director determines that the applicant or permittee is technically and financially capable of closing the facility at its own cost and, if necessary, of conducting post-closure monitoring and maintenance. Except for a state or federal agency or a county, city, town or other local governmental entity, the permittee shall update its cost estimate:
(a) For the duration of the permit on a periodic basis as scheduled in the permit but not more frequently than once every five years. The cost estimate shall be updated to adjust for inflation or as necessary to reflect increased or decreased costs resulting from changes to the facility or to the facility closure strategy or plan, or to any other relevant conditions related to the facility.
(b) For a significant amendment as defined by rule adopted by the director, if required to address incremental changes in the cost estimate that result from the significant amendment.
3. Except for a state or federal agency or a county, city, town or other local governmental entity, the applicant or permittee shall demonstrate financial responsibility to cover the estimated costs to close the facility and, if necessary, to conduct post-closure monitoring and maintenance by providing to the director for approval a financial assurance mechanism or combination of mechanisms as prescribed in rules adopted by the director or in 40 code of federal regulations section 264.143 (f)(1) and (10) as of january 1, 2014. An applicant or permittee that demonstrates financial responsibility by means of a self‑assurance or guarantee shall aggregate the estimated closure and post‑closure costs for all aquifer protection permits in this state for which the applicant, permittee or guarantor has provided a self-assurance or a guarantee in order to determine whether the applicant, permittee or guarantor meets the applicable financial test.
4. The permittee shall maintain its demonstration of financial responsibility prescribed in this subsection for the duration of the individual permit. Except for a state or federal agency or a county, city, town or other local governmental entity, the permittee shall periodically demonstrate financial responsibility and report to the director that the financial assurance mechanism is being maintained as scheduled in the permit and as prescribed in paragraph 3 of this subsection but not more frequently than once every two years. The permit's applicable reporting schedule shall be based on the type of financial assurance mechanism that is selected pursuant to this subsection.
5. A demonstration of financial responsibility made for a facility as prescribed by section 49‑770 shall suffice, in whole or in part, for any demonstration of financial responsibility prescribed by this section.
6. A demonstration of financial assurance or competence required under this section or section 49‑770 for a facility shall not be required before completion of construction but shall be required before the department issues approval to operate. Financial assurance for a facility is not required pursuant to this section if substantially similar financial assurance for that facility is required and has been provided pursuant to other federal, state or local laws, and evidence of that financial assurance is filed with the director.
7. Financial information required to be supplied under this subsection is confidential.
O. The director shall require an applicant for an individual permit to submit evidence that the discharging facility complies with applicable municipal or county zoning ordinances and regulations. The director shall not issue the permit unless it appears from the evidence submitted by the applicant that the facility complies with the applicable zoning ordinances and regulations.
P. The director may issue a single area-wide permit applicable to facilities under common ownership and located in a contiguous geographic area in lieu of an individual permit for each facility. In issuing an area-wide permit, the demonstration required under subsection B, paragraphs 2 and 3 of this section may be considered collectively for all facilities included in the permit. The director may evaluate discharge reduction collectively for existing facilities in the pollutant management area by considering any one or all of the factors set forth in subsection B, paragraph 1 of this section. The director may consolidate those permit conditions listed in subsection K of this section that have general applicability to the facilities included in the area‑wide permit. An area‑wide permit shall specify all of the following:
1. A description of the pollutant management area and point or points of compliance.
2. Those facilities that have been evaluated individually for meeting the criteria in subsection B, paragraph 1 of this section and that are included in the area‑wide permit.
3. For multiple facilities within the pollutant management area that are substantially similar in nature and, considered alone, would have a small discharge impact area compared to other facilities in the area, narrative permit conditions may be used to define the best available demonstrated control technology, processes, operating methods or other alternatives consistent with subsection B, paragraph 1 of this section replacing the need for an individual technical review.
4. A compliance schedule for submittal and evaluation of information regarding design and discharge for existing facilities within the pollutant management area that, because of the small size, quantity or quality of discharge, or physical location with regard to the point or points of compliance, the director has determined that review for the purposes of subsection B, paragraph 1 of this section shall be conducted in the future. In determining the requirements and length of a compliance schedule for an area-wide permit, the director shall consider the character and impact of the discharge, the nature of the activities necessary to prepare appropriate technical submittals, the number of persons potentially affected by the discharge, the current state of treatment technology, and the age of the facility.
Q. The director may expedite processing of an aquifer protection permit application by a permit applicant who proposes a new facility to discharge liquids that do not contain any pollutant in a concentration that exceeds a numeric aquifer water quality standard. The director shall not require the applicant to complete a hydrogeologic study in order to obtain the permit unless the permit applicant is relying on site specific characteristics to meet the requirements of subsection B, paragraph 1 of this section or unless the study is necessary to demonstrate compliance with narrative aquifer water quality standards. Applications made pursuant to this subsection shall have precedence and be considered by the department before all other aquifer protection permit applications.
Sec. 3. Section 49-244, Arizona Revised Statutes, is amended to read:
49-244. Point of compliance
The director shall designate a point or points of compliance for each facility receiving a permit under this article. For the purposes of this chapter, the point of compliance is the point at which compliance with must be determined for either the aquifer water quality standards shall be determined or, if an aquifer water quality standard is exceeded at the time the aquifer protection permit is issued, the requirement that there be no further degradation of the aquifer as provided in section 49-243, subsection B, paragraph 3. The point of compliance shall be a vertical plane downgradient of the facility that extends through the uppermost aquifers underlying that facility. For an aquifer which that has no existing or reasonably foreseeable drinking water beneficial use, the director may establish monitoring for compliance in another aquifer in lieu of monitoring in the uppermost aquifer. The point of compliance shall be determined as follows:
1. Except as provided in paragraph 2 of this section, for a pollutant that is a hazardous substance the point of compliance is the limit of the pollutant management area. The pollutant management area is the limit projected in the horizontal plane of the area on which pollutants are or will be placed. The pollutant management area includes horizontal space taken up by any liner, dike or other barrier designed to contain pollutants in the facility. If the facility contains more than one discharging activity, the pollutant management area is described by an imaginary line circumscribing the several discharging activities.
2. A point of compliance for hazardous substances other than that identified in paragraph 1 of this section may be approved by the director if the facility owner or operator can demonstrate either:
(a) That it is technically impracticable or inappropriate considering the likely fate or transport of a pollutant in an aquifer to monitor at the boundary specified in paragraph 1 of this section.
(b) The alternative point of compliance will allow installation and operation of the monitoring facilities that are substantially less costly. Such a request by a facility owner or operator under this paragraph must be supported by an analysis of the volume and characteristics of the pollutants that may be discharged and the ability of the vadose zone to attenuate the particular pollutants that may be discharged, including such factors as climate, hydrology, geology and soil chemistry. In no event shall an alternative point of compliance be further from the boundary specified in paragraph 1 of this section than is necessary for purposes of this paragraph, subdivisions (a) and (b) of this paragraph, and in no event shall it be so located as to result in an increased threat to an existing or reasonably foreseeable drinking water source. In addition an alternate compliance point for a hazardous substance pursuant to this subdivision shall never be further downgradient than any of the following:
(i) The property boundary.
(ii) Any point of an existing or reasonably foreseeable future drinking water source.
(iii) Seven hundred fifty feet from the edge of the pollutant management area.
3. For pollutants that are not hazardous substances the director, in identifying a point of compliance, shall take into account the volume and characteristics of the pollutants, the practical difficulties associated with implementation of applicable water pollution control requirements, whether the facility is a new facility or an existing facility, water conservation and augmentation and the site-specific characteristics of the facility, including, but not limited to, climate, hydrology, geology, soil chemistry and pollutant levels in the aquifer. The point of compliance must be so located as to ensure protection of all current and reasonably foreseeable future uses of the aquifer.
Sec. 4. Section 49-286, Arizona Revised Statutes, is amended to read:
49-286. Mitigation of non-hazardous releases
A. If the director determines that a drinking water source is being or is about to be rendered unusable without treatment as a drinking water source by a non-hazardous substance that was disposed before the effective date of this chapter by a person that would be a responsible party under section 49‑283 if the substance were a hazardous substance, the director may order that person to perform one or more of the following mitigation measures:
1. Providing an alternative water supply.
2. Mixing or blending if economically practicable.
3. Economically and technically practicable treatment before ingesting the water.
4. Such other mutually agreeable mitigation measures as are necessary to achieve the purposes of this section.
B. The director's selection of mitigation measures shall balance the short-term and long-term public benefits of mitigation with the cost of each alternative measure. The director may only require the least costly alternative if more than one alternative may render water usable as a drinking water source.
C. A mitigation order issued under this section is enforceable under sections 49‑261 and 49‑264.
APPROVED BY THE GOVERNOR APRIL 22, 2014.
FILED IN THE OFFICE OF THE SECRETARY OF STATE APRIL 23, 2014.
