327 Ind. Admin. Code 5-3-4.1

Current through September 4, 2024

Section 327 IAC 5-3-4.1 - Determination on variances from water quality standards and effluent limitations based on such variances; procedures

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.

327 IAC 5-3-4.1

Water Pollution Control Board; 327 IAC 5-3-4.1; filed Feb 1, 1990, 4:30 p.m.: 13 IR 1044; filed Feb 26, 1993, 5:00 p.m.: 16 IR 1759; filed Feb 15, 1995, 1:30 p.m.: 18 IR 1821; errata filed Apr 21, 1995, 4:00 p.m.: 18 IR 2261; filed Jan 14, 1997, 12:00 p.m.: 20 IR 1467; errata filed Aug 11, 1997, 4:15 p.m.: 20 IR 3380; readopted filed Jan 10, 2001, 3:23 p.m.: 24 IR 1518; readopted filed Nov 21, 2007, 1:16 p.m.: 20071219-IR-327070553BFA

Readopted filed Jul 29, 2013, 9:21 a.m.: 20130828-IR-327130176BFA