Current through Register Vol. 48, No. 38, September 20, 2024
a) Notwithstanding the provisions of Section
302.105, waters within the Lake
Michigan Basin must not be lowered in quality due to new or increased loading
of substances defined as BCCs in Section
302.501 from any source or
activity subject to the NPDES permitting, Section 401 water quality
certification provisions of the Clean Water Act (33 U.S.C. 1341), or
joint permits from the Agency and the Illinois Department of Natural Resources
under Section 39(n) of the Act [415 ILCS
5/39(n)] until and unless it can be
affirmatively demonstrated that the change is necessary to accommodate
important economic or social development.
1)
Where ambient concentrations of a BCC are equal to or exceed an applicable
water quality criterion, no increase in loading of that BCC is
allowed.
2) Where ambient
concentrations of a BCC are below the applicable water quality criterion, a
demonstration to justify increased loading of that BCC must include the
following:
A) Pollution Prevention
Alternatives Analysis. Identify any cost-effective reasonably available
pollution prevention alternatives and techniques that would eliminate or
significantly reduce the extent of increased loading of the BCC.
B) Alternative or Enhanced Treatment
Analysis. Identify alternative or enhanced treatment techniques that are
cost-effective and reasonably available to the entity that would eliminate or
significantly reduce the extent of increased loading of the BCC.
C) Important Social or Economic Development
Analysis. Identify the social or economic development and the benefits that
would be forgone if the increased loading of the BCC is not allowed.
3) In no case will increased
loading of BCCs result in exceeding applicable water quality criteria or
concentrations exceeding the level of water quality necessary to protect
existing uses.
4) Changes in
loadings of any BCC within the existing capacity and processes of an existing
NPDES authorized discharge, certified activity under Section 401 of the Clean
Water Act, or joint permits from the Agency and the Illinois Department of
Natural Resources under Section 39(n) of the Act are not subject to the
antidegradation review of subsection (a). These changes include:
A) normal operational variability, including
intermittent increased discharges due to wet weather conditions;
B) changes in intake water
pollutants;
C) increasing the
production hours of the facility; or
D) increasing the rate of
production.
5) Any
determination to allow increased loading of a BCC based on a demonstration of
important economic or social development need must satisfy the public
participation requirements of
40 CFR
25 before final issuance of the NPDES permit,
Section 401 water quality certification, or joint permits from the Agency and
the Illinois Department of Natural Resources under Section 39(n) of the
Act.
b) The following
actions are not subject to the provisions of subsection (a) unless the Agency
determines the circumstances of an individual situation warrant application of
those provisions to adequately protect water quality:
1) Short-term, temporary (i.e., weeks or
months) lowering of water quality;
2) Bypasses that are not prohibited at
40 CFR
122.41(m), incorporated by
reference in 35 Ill. Adm. Code
301.106; or
3) Response actions under the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), as amended,
or similar federal or State authority, undertaken to alleviate a release into
the environment of hazardous substances, pollutants, or contaminants that pose
danger to public health or welfare.
