Title: Section 128-2.7 - Noncomplying regulated activities

128-2.7 Noncomplying regulated activities.
(a) General requirements.
(1) A noncomplying regulated activity may be continued except where specifically prohibited from continuing by these rules and regulations.

(2) A noncomplying regulated activity shall come into compliance with these rules and regulations where specifically required to do so by these rules and  regulations.

(3) Except where otherwise provided in these rules and regulations, no noncomplying regulated activity shall be substantially altered or modified without the prior review and approval of the Department. The Department shall review and approve such an alteration or modification in accordance with the standards and  procedures set forth in Subpart 128-6 (variances). However, a noncomplying regulated activity may be reduced in size or extent without such review and approval provided that such reduction does not cause any increase in any existing discharge or any increase in the potential for contamination to or degradation of the water supply. An application for a regulated activity to be located on a site with a noncomplying regulated activity, which does not involve a substantial alteration or modification of a noncomplying regulated activity, shall be reviewed in accordance with the standards for that regulated activity.

(4) In the event that any noncomplying regulated activity is discontinued for a period of one year or more, it shall permanently desist. However, a noncomplying regulated activity shall not be deemed discontinued in the following situations:
(i) Seasonal use of a residence or business;
(ii) Destruction of 75 percent or more of the market value of a noncomplying regulated activity and its related property, by flood, fire, or other natural disaster,  provided that any replacement of a noncomplying regulated activity shall be identical in capacity, intensity, volume and type to the former noncomplying regulated activity and provided that such replacement shall take place within two years of such destruction, and provided further that such replacement shall comply with these rules and regulations, where possible;
(iii) Transfer, sale, or lease of a residence or business provided further that the noncomplying regulated activity is not changed to a different noncomplying  regulated activity, unless approved by the Department, and provided that such transfer, sale or lease occurs within three years of the offering for sale or lease of  the residence or business.

(5) Should any noncomplying regulated activity cause contamination to or degradation of the water supply, such that the activity is a threat to the life, health, or safety of water supply users, the Commissioner may order that such noncomplying regulated activity conform either in whole or in part to the requirements of these rules and regulations, immediately or within a limited period of time at the Commissioner's discretion, or be discontinued immediately. Any person who
receives such an order may request a hearing on such order in the manner provided in section 128-2.9.

(6) Any owner or operator of a noncomplying regulated activity who was not required by these rules and regulations to notify the Department pursuant to paragraph (1) of subdivision (b) of this section, may request, in writing, a determination from the Department that such property or activity is a noncomplying regulated activity. The written request shall include all of the information required in such paragraph. The Department shall determine, based upon the submission, whether the property or activity is a noncomplying regulated activity, and shall notify the owner or operator of such determination in writing. (b) Commercial, industrial, institutional or governmental noncomplying regulated activities.
(1) Commercial, industrial, institutional or governmental owners or operators of a noncomplying regulated activity shall notify the Department, in writing, of the existence of the noncomplying regulated activity within one (1) year of the effective date of these rules and regulations. The notification shall include a description of the noncomplying regulated activity and its location, and the name and telephone number of a contact person.
(2) The Department shall publish a directory of all commercial, industrial, institutional or governmental noncomplying regulated activities located in the watershed based upon the information submitted pursuant to paragraph (1) of this subdivision, and any additional information available to the Department.
(3) The directory shall be published in a newspaper of general circulation for two consecutive weekdays in each of two consecutive weeks.
(4) Within sixty days of the last date of such publication, any commercial, industrial, institutional, or governmental owner or operator of a noncomplying regulated activity shall notify the Department in writing of any objection to the information set forth in the directory. Furthermore, any owner or operator of a noncomplying regulated activity shall notify the Department in writing of the omission from the directory of his or her noncomplying regulated activity.
(5) Within 120 days of the last date of publication of the directory, the Department shall publish a revised directory, in accordance with the procedures provided for in paragraph (3) of this subdivision.
(6) If, within five years of the effective date of these rules and regulations, a commercial, industrial, institutional or governmental owner or operator of a noncomplying regulated activity discovers that his or her property should have been included in the final directory and was not included, such owner or operator shall write to the Department and request that the property be added to the directory. The request shall include all of the facts surrounding the omission from the
listing and the reason why the property should be designated a noncomplying regulated activity, as well as all supporting documentary evidence, such as title searches, deeds, etc. Based upon the submission, the Department shall determine whether to add the property to the directory and shall notify the petitioner in writing of its decision.
(7) Upon written notification by the Department, a commercial, industrial, institutional, or governmental owner or operator of a noncomplying regulated activity may be required to submit any results of local, state or federally mandated or conducted tests or environmental audits. In addition, such owner or operator may be required to provide to the Department copies of any reports or applications submitted to local, state and federal agencies relating to the noncomplying regulated activity.
(8) Upon written notification by the Department, a commercial, industrial, institutional, or governmental owner or operator of a noncomplying regulated activity may be required to submit, within ninety days of receipt of mailing, for review and approval by the Department, a plan to protect the water supply from the potential for contamination or degradation posed by such activity. Such plan may include, but shall not be limited to, restriction or management of activities, use of best management practices, drainage control, development of procedures to address the potential contamination or degradation (including disposal procedures) and
training of employees.
(i) The decisions whether to require submission of a plan and whether to approve a plan shall be based upon the risk of potential for contamination to or degradation of the water supply based upon such factors as: location, intensity of use, record of adequate maintenance and operation of any existing structure or facility, compliance with existing local, state, and federal laws and rules and regulations, and the burden upon the noncomplying regulated activity.