Ala. Admin. Code r. 335-6-10-.12

Current through Register Vol. 42, No. 11, August 30, 2024

Section 335-6-10-.12 - Implementation Of The Antidegradation Policy

(1) The antidegradation policy at Rule 335-6-10-.04 addresses three categories of waters/uses:

(a) High quality waters that constitute an outstanding national resource (Tier 3);

(b) Waters where the quality exceeds levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water (Tier 2); and

(c) Existing instream water uses and the level of water quality necessary to protect the existing uses (Tier 1).

(2) Tier 3 waters are those waters designated pursuant to the Outstanding National Resource Water (ONRW) special designation at Rule 335-6-10-.10, and are identified in Rule 335-6-11-.02.

(3) Tier 1 waters are:

(a) Those waters (except waters assigned the use classification of Outstanding Alabama Water, which are Tier 2 waters) identified as Category 4 or Category 5 waters;

(b) Those waters (except waters assigned the use classification of Outstanding Alabama Water, which are Tier 2 waters) for which attainment of applicable water quality standards has been, or is expected to be, achieved through implementation of effluent limitations more stringent than technology-based controls (BPT, BAT, and secondary treatment); and

(c) Those waters assigned the use classification of Limited Warmwater Fishery or Agricultural and Industrial Water Supply (as identified in Rule 335-6-11-.02).

(4) Tier 2 waters are all other waters (those waters not identified as either Tier 3 waters or Tier 1 waters), including all waters assigned the use classification of Outstanding Alabama Water (as identified in Rule 335-6-11-.02).

(5) All new or expanded discharges to Tier 2 waters (except discharges eligible for coverage under general permits) covered by the NPDES permitting program are potentially subject to the provisions of Rule 335-6-10-.04(3). Applicants for such discharges are required to demonstrate that the proposed discharge is necessary for important economic or social development as a part of the permit application process.

(6) After receipt of a permit application for a potentially covered discharge, the Department will determine whether the proposed discharge is to a Tier 2 water, as defined in paragraph (4) above. Of necessity, this determination will be made on a case-by-case basis.

(7) The basic framework of the permitting process is unchanged for a covered discharge to a Tier 2 water. However, the process is enhanced to document the consideration of Tier 2 provisions. The additional documentation includes:

(a) The Department's determination that the application is for a new or expanded discharge;

(b) The Department's determination that the receiving stream is considered to be a Tier 2 water; and

(c) The Department's determination, based on the applicant's demonstration, that the proposed discharge is necessary for important economic or social development in the area in which the waters are located.

(8) All three items will be documented in the permit file and/or fact sheet, and will be used by the Department in its decision process. The public notice process will be used to announce a preliminary Department decision to deny or to allow a covered discharge to a Tier 2 water, while the final determination will be made concurrently with the final Department decision regarding the permit application for a covered discharge.

(9) Documentation by the applicant shall include:

(a) An evaluation of discharge alternatives completed by a Registered Professional Engineer licensed to practice in the State of Alabama.

1. The applicant shall document the discharge alternatives evaluation by completing and submitting the following forms¹, or by submitting the same information in another format acceptable to the Department:

(i) ADEM Form 311, Alternatives Analysis; and, as applicable,

(ii) ADEM Form 312, Calculation of Total Annualized Costs for Public-Sector Projects, or ADEM Form 313, Calculation of Total Annualized Costs for Private-Sector Projects. Alternatives with total annualized project costs that are less than 110% of the total annualized project costs for the Tier 2 discharge proposal are considered viable alternatives.

(b) A demonstration that the proposed discharge will support important economic or social development in the area in which the waters are located, documented by the applicant's response, in writing, to the following questions. The applicant shall provide supporting information for each response.

¹ Forms are listed in ADEM Admin. Code r. 335-1-1-.07 and are available for downloading on the ADEM web page under Forms.

1. What environmental or public health problem will the discharger be correcting?

2. How much will the discharger be increasing employment (at its existing facility or as the result of locating a new facility)?

3. How much reduction in employment will the discharger be avoiding?

4. How much additional state or local taxes will the discharger be paying?

5. What public service to the community will the discharger be providing?

6. What economic or social benefit will the discharger be providing to the community?

Ala. Admin. Code r. 335-6-10-.12

New Rule: Filed June 26, 2002; effective July 31, 2002. Amended: Filed December 14, 2010; effective January 18, 2011. 1 The criteria for Polychlorinated Biphenyls (PCBs) apply to total PCBs, which is defined as the sum of the seven particular Aroclors (1016, 1221,1232, 1242, 1248, 1254, and 1260) listed in this table. Author: Statutory Authority: Code of Ala. 1975, §§ Amended: Filed April 25, 1997; effective May 30, 1997. Amended: Filed August 17, 2005; effective September 21, 2005. Amended: Filed April 22, 2008; effective May 27, 2008. Amended: Filed October 20, 2008; effective November 24, 2008.

Amended by Alabama Administrative Monthly Volume XXXV, Issue No. 03, December 30, 2016, eff. 2/3/2017.

Authors: James E. Mclndoe, Lynn Sisk, Chris L. Johnson

Statutory Authority:Code of Ala. 1975, §§ 22-22-9, 22-22A-5, 22-22A-6, 22-22A-8.