Current through September 18, 2024
Authority: IC 13-14-8; IC 13-14-9; IC 13-15-1-2; IC
13-15-2-1; IC 13-15-4-3; IC 13-18-3
Affected: IC 4-21.5-3; IC 13-11-2-132; IC 13-15-4-1; IC
13-15-5; IC 13-15-6; IC 13-18-4; IC 13-18-7; IC 13-23-13; IC 13-24-1; IC
13-25-5
Sec. 4.1.
(a) The
commissioner shall consider and make a written determination on a request for a
variance from a water quality standard as provided in
327 IAC
2-1-8.8 or
327
IAC 2-1.5-17.
(b) Requirements for a variance application
shall be as follows:
(1) An application for a
variance for a substance may be submitted at any time during the period
beginning on the date an application is submitted for the issuance, reissuance,
or modification of a NPDES permit and ending ninety (90) days following the
effective date of the new, renewed, or modified NPDES permit, when the WQBEL
for the substance will be or is more restrictive in the renewed, or modified
NPDES permit than in the existing permit. The applicant may petition the
commissioner for up to an additional ninety (90) day period to submit an
application for a variance. If the variance application is submitted prior to
the issuance, reissuance, or modification date of the permit, the permit
limitations for a substance for which a variance application is submitted will
not be issued until such time that the commissioner makes the variance
determination. Notwithstanding these time frames and procedures, an applicant
that is seeking a variance from a water quality standard used to derive a WQBEL
contained in an issued or modified NPDES permit must appeal the issuance of the
permit or modification in accordance with IC 4-21.5 and IC 13-15-6, if
applicable, if the variance request is submitted after the issuance date of the
permit to be eligible for a stay of the WQBELs for the substance for which the
variance is being requested.
(2)
The complete variance application shall contain the information that the
commissioner determines to be necessary to satisfy the requirements contained
in
327 IAC
2-1-8.8 or
327
IAC 2-1.5-17. The application shall contain the
following:
(A) Except for variances governed
under clause (B), the variance application shall contain the following:
(i) An identification of control
methodologies in practice for similar waste streams and processes by similar
facilities which achieve a level of control greater than the level currently
achieved by the applicant, including those determined by the applicant not to
be technically feasible for the applicant. Pollution prevention measures may be
identified and submitted as part of the application. As used in this section,
"pollution prevention" means changes in production process technologies,
materials, processes, operations, or procedures to reduce or eliminate the
source of the pollutant.
(ii) An
identification, listed under item (i), of the methodologies determined by the
applicant not to be technically feasible and documentation supporting
infeasibility.
(iii) A ranking of
those feasible methodologies from greater to lesser overall control
effectiveness by:
(AA) the reduction in
pollutant concentrations; and
(BB)
the reduction in loadings (percent pollutant removed).
(iv) An evaluation for each feasible
methodology that includes reasonably foreseeable:
(AA) adverse or beneficial environmental
impacts resulting from the proposed methodology, including net impacts on the
receiving water;
(BB) impacts to
the aquatic community, wildlife, and plant life;
(CC) impacts on rare, threatened, or
endangered species;
(DD) impacts
resulting from the discharge of toxic contaminants;
(EE) energy impacts (BTU and kWH);
(FF) risks to human health; and
(GG) impacts to other media, including air or
land.
(v) For a facility
required to obtain a municipal permit as defined in IC 13-11-2-132, an
evaluation for each feasible methodology that includes the following:
(AA) An affordability analysis of total and
annualized costs that measures the financial impact of the methodology on the
user fees and taxes imposed on the residential and nonresidential users paying
for the methodology, using, at a minimum, appropriate measures of debt and
financial management conditions in the community.
(BB) The economic impacts, including the
total cost and cost effectiveness of pollutant removal of the
methodology.
(CC) The ability of
ratepayers within the community to afford the added costs.
(DD) The ability of the public facility to
obtain debt financing.
(vi) For a facility required to obtain a
NPDES permit that is not a municipal permit as defined in IC 13-11-2-132, an
evaluation for each feasible methodology that includes the following:
(AA) An affordability analysis of total and
annualized costs that measures the financial impact of the methodology to
determine whether the facility can afford the methodology based upon reasonable
measures of financial health and available capital.
(BB) The economic impacts, including the
total cost and cost effectiveness of pollutant removal of the
methodology.
(CC) The impact of
costs on applicant's goods or services.
(DD) Information regarding the relative price
of goods or services in the same market as the applicant.
(EE) The overall impact of the application of
the methodology on employment within the facility.
(vii) An explanation of why information
sought under items (i) through
(vi)
is not necessary or appropriate for inclusion in the specific variance
application.
(viii) Any other
relevant information requested by the commissioner.
(B) The following procedures shall be used to
evaluate variance applications for discharges that occur as a result of actions
listed in item (i):
(i) The procedures in
this clause apply to an applicant that requests a variance from a water quality
standard used to derive a water quality-based effluent limitation (WQBEL)
contained in an NPDES permit for a specific substance where the necessity for
the variance is a short term, temporary discharge resulting from the dredging
of contaminated sediments from a waterbody, and is any of the following:
(AA) A response action pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)
as amended.
(BB) A corrective
action pursuant to the Resource Conservation and Recovery Act (RCRA) as
amended.
(CC) An action pursuant to
similar federal or state authorities, including, but not limited to, the
following:
(aa) An underground storage tank
(UST) corrective action under IC 13-23-13.
(bb) A remediation of petroleum releases
under IC 13-24-1.
(cc) A voluntary
remediation under IC 13-25-5.
(dd)
An abatement or correction of any polluted condition under IC 13-18-7.
(ii) The
application for a variance requested under this clause shall contain the
following:
(AA) Identification of the
substance for which a variance is being requested and information documenting
the concentrations of the substance projected to be present in the
discharge.
(BB) Document
predredging environmental conditions.
(CC) Document the expected environmental
benefits of the project.
(DD)
Identification of the methodologies that potentially could be used to reduce
the concentration of the substance in the discharge or eliminate the need for
variance. Methodologies to be evaluated shall include, but not be limited to:
(aa) relocation of the discharge
location;
(bb) discharge to a
POTW;
(cc) alternate dredging
methodologies; or
(dd) control
methodologies used in practice for similar wastestreams.
(EE) An identification of the methodologies
identified under subitem (DD) determined by the applicant not to be technically
feasible and documentation supporting the infeasibility.
(FF) A ranking of those feasible
methodologies from greater to lesser effectiveness by:
(aa) the reduction in pollutant
concentrations; and
(bb) the
increase in percent removal.
(GG) An evaluation for each feasible
methodology that includes reasonably foreseeable adverse or beneficial
environmental impacts resulting from the methodology, including the net impacts
on the receiving water. This evaluation shall include:
(aa) impacts to the aquatic community,
wildlife, and plant life;
(bb)
impacts on rare, threatened, or endangered species;
(cc) impacts resulting from the discharge of
toxic contaminants;
(dd) energy
impacts (BTU and kWH);
(ee) risks
to human health; and
(ff) impacts
to other media, including air or land.
(HH) Documentation of the costs associated
with implementing each feasible methodology.
(II) Upon request by the applicant, the
commissioner may determine that one (1) or more of the requirements in subitems
(AA) through (HH) is not necessary or appropriate for inclusion in the variance
application. This request submitted by the applicant shall explain why such
information is not necessary or appropriate for inclusion.
(JJ) Any other relevant information requested
by the commissioner.
(c) Upon receipt of a variance application,
the commissioner shall provide notice, request comment, and, if requested,
schedule and hold a public meeting on the application in accordance with
327
IAC 5-2-11.2.
(d) After the receipt of a variance
application, the commissioner shall specify in writing any additional relevant
information which is deemed necessary to make a determination on the variance
request. Such additional information shall be submitted by the applicant within
forty-five (45) days after the receipt of the commissioner's request. The
applicant may petition the commissioner for an extension of up to an additional
forty-five (45) days within which to submit the additional information. Failure
of an applicant to submit any additional relevant information requested by the
commissioner within the applicable time period shall result in the denial of
the variance application.
(e) After
the commissioner has determined that a variance application is complete, the
commissioner shall make a determination on the application in accordance with
the following procedures:
(1) After receipt
of a completed variance application, the information submitted under subsection
(b)(2) will be reviewed and evaluated.
(2) The highest ranking methodology will be
evaluated in accordance with:
(A)
327 IAC
2-1-8.8(b) and
327 IAC
2-1-8.8(c); or
(B)
327
IAC 2-1.5-17(b) and
327
IAC 2-1.5-17(c).
(3) If implementation of the highest ranking
methodology causes an undue hardship or burden upon the applicant, the next
highest ranking methodology will be evaluated as in subdivision (2).
(4) The procedures outlined in subdivisions
(2) and (3) will be repeated until the highest ranking methodology that does
not meet the criteria for granting a variance is identified.
(5) The variance determination will require
the applicant to implement the highest ranking methodology that does not meet
the criteria for granting of a variance.
(6) A variance shall not be granted that
would approve the applicant's implementation of a methodology with less overall
control effectiveness than the methodology currently implemented by the
applicant.
(f) After the
commissioner's review and consideration of a completed variance application,
the commissioner shall issue a tentative determination on the variance
application. The commissioner shall provide a comment period of thirty (30)
days on a tentative determination to grant or deny a variance and shall provide
public notice of the tentative determination and the comment period as
specified under section 12 of this rule. The commissioner shall also include in
this public notice, any effects of the variance on the designated use of the
receiving waterbody if the tentative determination is to grant the
variance.
(g) If a significant
degree of interest is expressed during the comment period on the tentative
determination to grant or deny the variance, and a public hearing is requested,
the commissioner may hold such a hearing after giving notice thereof in
accordance with section 12 of this rule. After the comment period or public
hearing, the commissioner may request additional information from the
applicant.
(h) The commissioner
shall make a written determination on the requested variance in accordance with
the conditions in
327 IAC
2-1-8.8(b) and subsection (c) or
327
IAC 2-1.5-17(b) and
327
IAC 2-1.5-17(c) within ninety (90)
days of the expiration of the later of the following:
(1) The expiration of the public comment
period required under subsection (f).
(2) The date of a public hearing allowed
under subsection (g).
(3) The date
that additional information, requested under subsection (g), is received by the
commissioner. This determination is appealable under IC 4-21.5-3.
(i) If the determination is to
grant a variance, either as requested, or as modified by the commissioner, the
commissioner shall issue a new or reissue or modify an existing NPDES permit to
incorporate the provisions of the variance. This variance shall contain the
following:
(1) The WQBELs from which the
variance has been granted.
(2) The
effluent limitations which are determined to be attainable during the term of
the variance. These limitations shall represent the maximum degree of progress
feasible during the term of the variance toward attainment of the WQBELs
without causing the demonstrated adverse impact. When the duration of the
variance is shorter than the duration of the permit, compliance with effluent
limitations sufficient to meet the water quality criterion upon the expiration
of the variance shall be required.
(3) A compliance schedule which specifies the
time period in which the permittee will be required to attain the limitations
specified under subdivision (2). During this period in which the compliance
schedule is in effect, the permittee will be required to meet interim
limitations that are no less stringent than those achieved under the previous
permit. If the variance is approved for a BCC, a pollutant minimization program
shall be conducted consistent with
327
IAC 5-2-11.6(h)(7).
(4) Appropriate conditions requiring
reasonable progress to be made toward attaining the water quality criterion for
the waterbody as a whole.
(5) Any
additional monitoring that is determined to be necessary to evaluate the
effects on the receiving waterbody of the variance from water quality
standards. This monitoring may include, but is not limited to, the following:
(A) Whole effluent toxicity tests.
(B) Biological assessments of the receiving
waterbody.
(C) Fish tissue
analysis.
(D) Monitoring of the
water column.
(E) Sediment toxicity
testing.
(F) Chemical analysis of
sediments.
(6) A
requirement for the permittee to investigate treatment technologies, process
changes, and other techniques which may result in further progress toward
attainment of the WQBELs.
(7) A
provision allowing the commissioner to reopen and modify the permit based on
any revision to the variance made by the board during the next revision of the
water quality standards or by EPA upon review of the variance.
(8) For variances governed under subsection
(b)(2)(B), a permit condition that allows the commissioner to suspend work of
the project, upon written notice to the discharger, if the commissioner
determines that the discharge is not in compliance with the permit or that the
discharge is causing adverse environmental impacts that were not considered in
the development of the permit. This decision is appealable under IC 4-21.5-3.
The issuance of a suspension order under this subsection shall not limit other
enforcement actions or penalties. The department and permittee shall analyze
operational deficiencies, and the department shall prescribe changes necessary
to bring the discharge into conformance with the permit or revise the permit to
address the unanticipated adverse environmental impacts.
(9) Other conditions that the commissioner
determines to be necessary to implement the terms of the variance.
(j) The commissioner may issue a
permit containing new limitations for substances not included by the applicant
in the variance request. Permit limitations for a substance contained in the
applicant's permit that are in effect at the time of the variance application
shall remain in effect during the consideration of a variance application for
that particular substance.
(k) The
permittee may request a renewal of a variance in accordance with the provisions
contained in
327 IAC
2-1-8.8 or
327
IAC 2-1.5-17 and this section. The renewal application
shall also contain information concerning its compliance with the conditions
incorporated into its permit as part of the original variance under subsection
(i). Renewal of a variance may be denied if the permittee did not comply with
the conditions of the original variance.
(l) All variances and supporting information
shall be submitted by the commissioner to the EPA and shall include the
following:
(1) Relevant permittee
applications submitted under subsection (b).
(2) Public comments and records of any public
hearings under subsections (f) and (g).
(3) The final decision under subsection
(h).
(4) NPDES permits issued under
subsection (i).
Items required in subdivisions (1) through (3) shall be
submitted by the commissioner within thirty (30) days of the date of the final
variance decision. The item required in subdivision (4) shall be submitted in
accordance with the Memorandum of Agreement with the Regional
Administrator.
(m)
All variances shall be appended to the water quality standards rules, 327 IAC
2-1 or 327 IAC 2-1.5, during the triennial review process.
