327 IAC 2-1.5-17 - Variances from water quality standards for point sources
Authority: IC 13-14-8; IC 13-14-9; IC 13-15-1-2; IC 13-15-2-1; IC 13-18-3
Affected: IC 4-22-2; IC 13-11-2-24; IC 13-13-5; IC 13-18-4; IC 13-18-7; IC 13-23-13; IC 13-24-1; IC 13-25-5; IC 13-30-2-1
Sec. 17.
(a) A permit
applicant or permittee may apply to the commissioner for a variance from the
water quality standard used to derive a water quality-based effluent limitation
(WQBEL) contained in a NPDES permit for a specific substance. The application
for the variance must be submitted in accordance with
327 IAC 5-3-4.1. A variance to a
water quality standard shall not be granted:
(1) that would likely jeopardize the
continued existence of any endangered or threatened species listed under
Section 4 of the Endangered Species Act (ESA) or result in the destruction or
adverse modification of the species' critical habitat;
(2) if standards will be attained by
implementing effluent limits required under Sections 301(b) and 306 of the
Clean Water Act (CWA) and by the permittee implementing cost-effective and
reasonable best management practices for nonpoint source control at the
facility; or
(3) to recommencing
dischargers or new Great Lakes dischargers, unless the new Great Lakes
discharge occurs as the result of:
(A) a
response action pursuant to the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), as amended, as defined in IC
13-11-2-24;
(B) a corrective action
pursuant to the Resource Conservation and Recovery Act (RCRA), as amended, as
defined in IC 13-13-5; or
(C) an
action pursuant to similar federal or state authorities, including, but not
limited to:
(i) an underground storage tank
(UST) corrective action under IC 13-23-13;
(ii) a remediation of petroleum releases
under IC 13-24-1;
(iii) a voluntary
remediation under IC 13-25-5; or
(iv) an abatement or correction of any
polluted condition under IC 13-18-7.
(b) The commissioner may approve all or part
of a requested variance , or modify and approve a requested variance , if the
permit applicant demonstrates that implementing a proposed methodology, that
includes any production processes, wastewater treatment technology, or
combination thereof used to reduce pollutants discharged in the wastewater from
a facility, as identified under
327 IAC
5-3-4.1(b)(2)(A), will cause an undue
hardship or burden upon the applicant, except as provided in subsection (a)(1)
through (a)(3).
(c) In making a
determination on a variance application, the commissioner shall balance the
increased risk to human health and the environment if the variance is granted
against the hardship or burden upon the applicant if the variance is not
granted so that the commissioner is able to conclude that any increased risk is
consistent with the protection of the public health, safety, and welfare. In
balancing these factors, the commissioner shall consider the following to
determine if the hardship or burden upon the applicant is undue:
(1) For variance applications, except those
governed under subdivision (2), the following must be considered:
(A) The cost and cost effectiveness of
pollutant removal by implementing the methodologies proposed by the applicant
and the methodology capable of attaining the WQBEL.
(B) The reduction in concentrations and
loadings of pollutants attainable by the methodologies proposed by the
applicant as compared with the reduction attainable by use of the methodology
capable of attaining the WQBEL.
(C)
The impact of the proposed methodologies and the methodology capable of
attaining the WQBEL on the price of the goods or services provided by the
applicant.
(D) Information on the
relative price of goods or services in the same market as the
applicant.
(E) The overall impact
of attaining the WQBEL and implementing the proposed methodologies on
employment at the facility.
(F)
Information on the type and magnitude of adverse or beneficial environmental
impacts, including the net impact on the receiving water, resulting from the
proposed methodologies that could be applied to the control of the substance
for which a variance is applied. This information must include the extent of
any increased risk to human health and the environment associated with each of
the proposed methodologies.
(G)
Other relevant information requested by the commissioner or supplied by the
applicant or the public.
(2) For variance applications where the
necessity for the variance is a short term, temporary discharge resulting from
the dredging of contaminated sediments from a waterbody and is conducted under
any of the federal or state authorities listed under subsection (a)(3), the
following must be considered:
(A) The cost and
cost effectiveness of pollutant removal by implementing the methodologies
proposed by the applicant and the methodology capable of attaining the
WQBEL.
(B) The reduction in
concentrations and loadings of pollutants attainable by the methodologies
proposed by the applicant as compared with the reduction attainable by use of
the methodology capable of attaining the WQBEL.
(C) Information on the type and magnitude of
adverse or beneficial environmental impacts, including the net impact on the
receiving water, resulting from the proposed methodologies that could be
applied to the control of the substance for which a variance is applied. This
information must include the extent of any increased risk to human health and
the environment associated with each of the proposed methodologies. In
considering the information required by this clause, the commissioner shall
also consider that the action is the following:
(i) For the protection, maintenance, or
restoration of the environment.
(ii) Short term and temporary.
(D) Other relevant information
requested by the commissioner or supplied by the applicant or the
public.
(d) The
commissioner may grant the variance when the requirements of subsections (b)
and (c) are met.
(e) A
determination to grant or deny a requested variance must be made in accordance
with 327 IAC 5-3-4.1. In making this
determination, the commissioner may also consider other information available
to the agency or supplied by the applicant or the public.
(f) A variance applies only to the permit
applicant requesting the variance and only to the substance specified in the
variance application. The granting of a variance does not imply or require that
the water quality standard corresponding to the variance be modified through a
rulemaking in accordance with IC 4-22-2 and IC 13-14-9.
(g) A variance or any renewal thereof must
not be granted for a term greater than that allowed by IC 13-14-8.
Notwithstanding the time at which the application for a variance is submitted
under 327 IAC 5-3-4.1, a variance must
not be granted for a term greater than the term remaining under the permit to
which the variance is attached.
(h)
Neither the filing of a variance application nor the granting of a variance is
grounds for the staying or dismissing of or a defense in a pending enforcement
action. A variance must be prospective only.
(i) The following variance from water quality
standards found at section 8 of this rule has been granted:
Table 17-1
Variances from Water Quality Standards
|
Waterbody H.D. Wood Ditch and Mud Creek |
Affected Discharger IN0021296 |
Starting Location Angola WWTP Outfall 001 |
Ending Location Confluence with Pigeon Creek |
Substance Chloride |
|
Notes
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