40 CFR Appendix E to Part 132, Great Lakes Water Quality Initiative Antidegradation Policy
Great Lakes States and Tribes shall adopt provisions consistent with (as protective as) appendix E to part 132.
The State or Tribe shall adopt an antidegradation standard applicable to all waters of the Great Lakes System and identify the methods for implementing such a standard. Consistent with 40 CFR 131.12, an acceptable antidegradation standard and implementation procedure are required elements of a State's or Tribe's water quality standards program. Consistent with 40 CFR 131.6, a complete water quality standards submission needs to include both an antidegradation standard and antidegradation implementation procedures. At a minimum, States and Tribes shall adopt provisions in their antidegradation standard and implementation methods consistent with sections I, II, III and IV of this appendix, applicable to pollutants identified as bioaccumulative chemicals of concern (BCCs).
This antidegradation standard shall be applicable to any action or activity by any source, point or nonpoint, of pollutants that is anticipated to result in an increased loading of BCCs to surface waters of the Great Lakes System and for which independent regulatory authority exists requiring compliance with water quality standards. Pursuant to this standard:
A. Existing instream water uses, as defined pursuant to 40 CFR 131, and the level of water quality necessary to protect existing uses shall be maintained and protected. Where designated uses of the waterbody are impaired, there shall be no lowering of the water quality with respect to the pollutant or pollutants which are causing the impairment;
B. Where, for any parameter, the quality of the waters exceed levels necessary to support the propagation of fish, shellfish, and wildlife and recreation in and on the waters, that water shall be considered high quality for that parameter consistent with the definition of high quality water found at section II.A of this appendix and that quality shall be maintained and protected unless the State or Tribe finds, after full satisfaction of intergovernmental coordination and public participation provisions of the State's or Tribe's continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such degradation, the State or Tribe shall assure water quality adequate to protect existing uses fully. Further, the State or Tribe shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and reasonable best management practices for nonpoint source control. The State or Tribe shall utilize the Antidegradation Implementation Procedures adopted pursuant to the requirements of this regulation in determining if any lowering of water quality will be allowed;
C. Where high quality waters constitute an outstanding national resource, such as waters of national and State parks and wildlife refuges and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected; and
D. In those cases where the potential lowering of water quality is associated with a thermal discharge, the decision to allow such degradation shall be consistent with section 316 of the Clean Water Act (CWA).
Control Document. Any authorization issued by a State, Tribal or Federal agency to any source of pollutants to waters under its jurisdiction that specifies conditions under which the source is allowed to operate.
High quality waters. High quality waters are water bodies in which, on a parameter by parameter basis, the quality of the waters exceeds levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water.
Lake Superior Basin - Outstanding International Resource Waters. Those waters designated as such by a Tribe or State consistent with the September 1991 Bi-National Program to Restore and Protect the Lake Superior Basin. The purpose of such designations shall be to ensure that any new or increased discharges of Lake Superior bioaccumulative substances of immediate concern are subject to best technology in process and treatment requirements.
Lake Superior Basin - Outstanding National Resource Waters. Those waters designated as such by a Tribe or State consistent with the September 1991 Bi-National Program to Restore and Protect the Lake Superior Basin. The purpose of such designations shall be to prohibit new or increased discharges of Lake Superior bioaccumulative substances of immediate concern from point sources in these areas.
Lake Superior bioaccumulative substances of immediate concern. A list of substances identified in the September 1991 Bi-National Program to Restore and Protect the Lake Superior Basin. They include: 2, 3, 7, 8-TCDD; octachlorostyrene; hexachlorobenzene; chlordane; DDT, DDE, and other metabolites; toxaphene; PCBs; and mercury. Other chemicals may be added to the list following States' or Tribes' assessments of environmental effects and impacts and after public review and comment.
Outstanding National Resource Waters. Those waters designated as such by a Tribe or State. The State or Tribal designation shall describe the quality of such waters to serve as the benchmark of the water quality that shall be maintained and protected. Waters that may be considered for designation as Outstanding National Resource Waters include, but are not limited to, water bodies that are recognized as:
Important because of protection through official action, such as Federal or State law, Presidential or secretarial action, international treaty, or interstate compact;
Having exceptional recreational significance;
Having exceptional ecological significance;
Having other special environmental, recreational, or ecological attributes; or waters whose designation as Outstanding National Resource Waters is reasonably necessary for the protection of other waters so designated.
Significant Lowering of Water Quality. A significant lowering of water quality occurs when there is a new or increased loading of any BCC from any regulated existing or new facility, either point source or nonpoint source for which there is a control document or reviewable action, as a result of any activity including, but not limited to:
(1) Construction of a new regulated facility or modification of an existing regulated facility such that a new or modified control document is required;
(2) Modification of an existing regulated facility operating under a current control document such that the production capacity of the facility is increased;
(3) Addition of a new source of untreated or pretreated effluent containing or expected to contain any BCC to an existing wastewater treatment works, whether public or private;
(4) A request for an increased limit in an applicable control document;
(5) Other deliberate activities that, based on the information available, could be reasonably expected to result in an increased loading of any BCC to any waters of the Great Lakes System.
b. Notwithstanding the above, changes in loadings of any BCC within the existing capacity and processes, and that are covered by the existing applicable control document, are not subject to an antidegradation review. These changes include, but are not limited to:
(1) Normal operational variability;
(2) Changes in intake water pollutants;
(3) Increasing the production hours of the facility, (e.g., adding a second shift); or
(4) Increasing the rate of production.
C. Also, excluded from an antidegradation review are new effluent limits based on improved monitoring data or new water quality criteria or values that are not a result of changes in pollutant loading.
B. For all waters, the Director shall ensure that the level of water quality necessary to protect existing uses is maintained. In order to achieve this requirement, and consistent with 40 CFR 131.10, water quality standards use designations must include all existing uses. Controls shall be established as necessary on point and nonpoint sources of pollutants to ensure that the criteria applicable to the designated use are achieved in the water and that any designated use of a downstream water is protected. Where water quality does not support the designated uses of a waterbody or ambient pollutant concentrations exceed water quality criteria applicable to that waterbody, the Director shall not allow a lowering of water quality for the pollutant or pollutants preventing the attainment of such uses or exceeding such criteria.
C. For Outstanding National Resource Waters:
1. The Director shall ensure, through the application of appropriate controls on pollutant sources, that water quality is maintained and protected.
2. Exception. A short-term, temporary (i.e., weeks or months) lowering of water quality may be permitted by the Director.
D. For high quality waters, the Director shall ensure that no action resulting in a lowering of water quality occurs unless an antidegradation demonstration has been completed pursuant to section III of this appendix and the information thus provided is determined by the Director pursuant to section IV of this appendix to adequately support the lowering of water quality.
1. The Director shall establish conditions in the control document applicable to the regulated facility that prohibit the regulated facility from undertaking any deliberate action, such that there would be an increase in the rate of mass loading of any BCC, unless an antidegradation demonstration is provided to the Director and approved pursuant to section IV of this appendix prior to commencement of the action. Imposition of limits due to improved monitoring data or new water quality criteria or values, or changes in loadings of any BCC within the existing capacity and processes, and that are covered by the existing applicable control document, are not subject to an antidegradation review.
2. For BCCs known or believed to be present in a discharge, from a point or nonpoint source, a monitoring requirement shall be included in the control document. The control document shall also include a provision requiring the source to notify the Director or any increased loadings. Upon notification, the Director shall require actions as necessary to reduce or eliminate the increased loading.
E. Special Provisions for Lake Superior. The following conditions apply in addition to those specified in section II.B through II.C of this appendix for waters of Lake Superior so designated.
1. A State or Tribe may designate certain specified areas of the Lake Superior Basin as Lake Superior Basin - Outstanding National Resource Waters for the purpose of prohibiting the new or increased discharge of Lake Superior bioaccumulative substances of immediate concern from point sources in these areas.
2. States and Tribes may designate all waters of the Lake Superior Basin as Outstanding International Resource Waters for the purpose of restricting the increased discharge of Lake Superior bioaccumulative substances of immediate concern from point sources consistent with the requirements of sections III.C and IV.B of this appendix.
F. Exemptions. Except as the Director may determine on a case-by-case basis that the application of these procedures is required to adequately protect water quality, or as the affected waterbody is an Outstanding National Resource Water as defined in section II.A of this appendix, the procedures in this part do not apply to:
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); and
3. Response actions pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), as amended, or similar Federal, State or Tribal authorities, undertaken to alleviate a release into the environment of hazardous substances, pollutants or contaminants which may pose an imminent and substantial danger to public health or welfare.
Any entity seeking to lower water quality in a high quality water or create a new or increased discharge of Lake Superior bioaccumulative substances of immediate concern in a Lake Superior Outstanding International Resource Water must first, as required by sections II.D or II.E.2 of this appendix, submit an antidegradation demonstration for consideration by the Director. States and Tribes should tailor the level of detail and documentation in antidegradation reviews, to the specific circumstances encountered. The antidegradation demonstration shall include the following:
A. Pollution Prevention Alternatives Analysis. Identify any cost-effective pollution prevention alternatives and techniques that are available to the entity, that would eliminate or significantly reduce the extent to which the increased loading results in a lowering of water quality.
B. Alternative or Enhanced Treatment Analysis. Identify alternative or enhanced treatment techniques that are available to the entity that would eliminate the lowering of water quality and their costs relative to the cost of treatment necessary to achieve applicable effluent limitations.
C. Lake Superior. If the States or Tribes designate the waters of Lake Superior as Outstanding International Resource Waters pursuant to section II.E.2 of this appendix, then any entity proposing a new or increased discharge of any Lake Superior bioaccumulative substance of immediate concern to the Lake Superior Basin shall identify the best technology in process and treatment to eliminate or reduce the extent of the lowering of water quality. In this case, the requirements in section III.B of this appendix do not apply.
D. Important Social or Economic Development Analysis. Identify the social or economic development and the benefits to the area in which the waters are located that will be foregone if the lowering of water quality is not allowed.
E. Special Provision for Remedial Actions. Entities proposing remedial actions pursuant to the CERCLA, as amended, corrective actions pursuant to the Resource Conservation and Recovery Act, as amended, or similar actions pursuant to other Federal or State environmental statutes may submit information to the Director that demonstrates that the action utilizes the most cost effective pollution prevention and treatment techniques available, and minimizes the necessary lowering of water quality, in lieu of the information required by sections III.B through III.D of this appendix.
A. Once the Director determines that the information provided by the entity proposing to increase loadings is administratively complete, the Director shall use that information to determine whether or not the lowering of water quality is necessary, and, if it is necessary, whether or not the lowering of water quality will support important social and economic development in the area. If the proposed lowering of water quality is either not necessary, or will not support important social and economic development, the Director shall deny the request to lower water quality. If the lowering of water quality is necessary, and will support important social and economic development, the Director may allow all or part of the proposed lowering to occur as necessary to accommodate the important social and economic development. In no event may the decision reached under this section allow water quality to be lowered below the minimum level required to fully support existing and designated uses. The decision of the Director shall be subject to the public participation requirements of 40 CFR 25.
B. If States designate the waters of Lake Superior as Outstanding International Resource Waters pursuant to section II.E.2 of this appendix, any entity requesting to lower water quality in the Lake Superior Basin as a result of the new or increased discharge of any Lake Superior bioaccumulative substance of immediate concern shall be required to install and utilize the best technology in process and treatment as identified by the Director.