Section 327IAC2-1.5-16. Site-specific modifications to Tier I criteria and Tier II values

   (a) Site-specific modifications to Tier I criteria and Tier II values must be protective of designated uses and aquatic life, wildlife, or human health. In addition, any site-specific modifications that result in less stringent criteria must be based on a sound scientific rationale and shall not be likely to jeopardize the continued existence of endangered or threatened species listed or proposed under Section 4 of the Endangered Species Act (ESA) or result in the destruction or adverse modification of such species’ critical habitats. More stringent modifications shall be developed to protect endangered or threatened species listed or proposed under Section 4 of the ESA, where such modifications are necessary to ensure that water quality is not likely to jeopardize the continued existence of such species or result in the destruction or adverse modification of such species’ critical habitats. More stringent modifications may also be developed to protect candidate (C1) species being considered by the U.S. Fish and Wildlife Service (FWS) for listing under Section 4 of the ESA, where such modifications are necessary to protect such species. Criteria and values may be modified on a site-specific basis to reflect local environmental conditions as restricted by the following provisions:

(1) Aquatic life criteria or values may be modified on a site-specific basis as follows:

(A) Aquatic life criteria or values may be modified on a site-specific basis to provide an additional level of protection.

(B) Less stringent site-specific modifications to chronic or acute aquatic life criteria or values may be developed when either of the following conditions applies:

(i) The local water quality characteristics such as pH, hardness, temperature, or color alter the biological availability or toxicity of a pollutant.

(ii) The sensitivity of the aquatic organisms species that occur at the site differs from the species actually tested in developing the criteria.

(C) Less stringent modifications also may be developed to acute and chronic aquatic life criteria or values to reflect local physical and hydrological conditions.

(D) Any modifications to protect threatened or endangered aquatic species required by this subsection may be accomplished using either of the two (2) following procedures:

(i) If the SMAV for a listed or proposed species or for a surrogate of such species is lower than the calculated FAV, such lower SMAV may be used instead of the calculated FAV in developing site-specific modified criteria.

(ii) The site-specific criteria may be calculated using the recalculation procedure for site-specific modifications under 327 IAC 2-1-13.

(2) Wildlife criteria or values may be modified on a site-specific basis as follows:

(A) Wildlife water quality criteria may be modified on a site-specific basis to provide an additional level of protection.

(B) Less stringent site-specific modifications to wildlife water quality criteria may be developed when a site-specific bioaccumulation factor (BAF) is derived that is lower than the system-wide BAF derived under section 13 of this rule. The modification must consider both the mobility of prey organisms and wildlife populations in defining the site for which criteria are developed. In addition, there must be a showing that the following conditions are met:

(i) Any increased uptake of the toxicant by prey species utilizing the site will not cause adverse effects in wildlife populations.

(ii) Wildlife populations utilizing the site or downstream waters will continue to be fully protected.

(C) Any modification to protect endangered or threatened wildlife species required by this subsection must consider both the mobility of prey organisms and wildlife populations in defining the site for which criteria are developed and may be accomplished by using the following recommended method:

(i) The procedure presented in section 15 of this rule is used, substituting appropriate species-specific toxicological, epidemiological, or exposure information, including changes to the BAF.

(ii) An interspecies uncertainty factor of one (1) shall be used where epidemiological data are available for the species in question. If necessary, species-specific exposure parameters may be derived as presented in section 15 of this rule.

(iii) An intraspecies uncertainty factor, to account for protection of individuals within a wildlife population, shall be applied in the denominator of the effect part of the wildlife equation in section 15 of this rule in a manner consistent with the other uncertainty factors described in section 15 of this rule.

(iv) The resulting wildlife value for the species in question should be compared to the two (2) class specific wildlife values that were previously calculated, and the lowest of the three (3) shall be selected as the site-specific modification.

(3) BAFs may be modified on a site-specific basis as follows:

(A) BAFs may be modified on a site-specific basis to larger values where reliable data show that local bioaccumulation is greater than the system-wide value.

(B) BAFs may be modified on a site-specific basis to lower values, where scientifically defensible, if:

(i) the fraction of the total chemical that is freely dissolved in the ambient water is different than that used to derive the system-wide BAFs, that is, the concentrations of particulate organic carbon and the dissolved organic carbon are different than those used to derive the system-wide BAFs;

(ii) input parameters of the model, such as the structure of the aquatic food web and the disequilibrium constant, are different at the site than those used to derive the system-wide BAFs;

(iii) the percent lipid of aquatic organisms that are consumed and occur at the site is different than that used to derive the system-wide BAFs; or

(iv) site-specific field-measured BAFs or biota-sediment accumulation factor (BSAFs) are determined.

(C) If site-specific BAFs are derived, they shall be derived using section 13 of this rule.

(D) Any more stringent modifications to protect threatened or endangered species required by this subsection shall be derived using procedures set forth in the methodology in section 13 of this rule.

(4) Human health criteria or values may be modified on a site-specific basis as follows:

(A) Human health criteria or values may be modified on a site-specific basis to provide an additional level of protection in accordance with the following:

(i) Human health criteria or values shall be modified on a site-specific basis to provide additional protection appropriate for highly exposed subpopulations.

(ii) Any person may request the commissioner to develop a site-specific modification of a human health criterion or value to make it more stringent.

(iii) The commissioner shall develop the site-specific modification of the human health criterion or value to make it more stringent when either of the following conditions applies:

(AA) Local fish consumption rates are higher than the rate used to derive a human health criterion or value applicable under section 14 of this rule.

(BB) A site-specific BAF is derived that is higher than that used in deriving a human health criterion of value under section 14 of this rule.

(B) Less stringent site-specific modifications to human health criteria or values may be developed when either of the following conditions applies:

(i) Local fish consumption rates are lower than the rate used in deriving human health criteria or values under section 14 of this rule.

(ii) A site-specific BAF is derived that is lower than that used in deriving human health criteria or values under section 14 of this rule.

(C) Local fish consumption rates referenced in clauses (A)(iii)(AA) and (B)(i) shall be determined by a fish consumption survey applicable to the site.

  (b) The application requirements for site-specific modifications to criteria or values allowed under subsection (a) are as follows:

(1) Except as provided in subdivision (2), the application requirements for site-specific modifications to criteria or values shall be determined by the commissioner on a case-by-case basis.

(2) Applications for site-specific modifications to criteria or values allowed under subsection (a)(1)(B)(ii) and determined using the recalculation procedure under 327 IAC 2-1-13 shall include the following:

(A) A list of all species of aquatic invertebrates, amphibians, and fishes that are known to occur at the site, along with the source of the information.

(B) A list of all aquatic plant, invertebrate, amphibian, and fish species that are critical species at the site, including all species that occur at the site and are listed as threatened or endangered under section 4 of the ESA.

(C) A site-specific version of Table 1 from a criteria document produced by the U.S. EPA after 1984.

(D) A site-specific version of Table 3 from a criteria document produced by the U.S. EPA after 1984.

(E) A list of all species that were deleted.

(F) Each new calculated criterion (FAV, CMC, SMC, CCC, or SCC).

(G) Each lowered criterion or value if one (1) or more were lowered to protect a specific species.

  (c) Upon receipt of an application for a site-specific modification to a criterion or value, the commissioner shall do the following:

(1) For a site-specific modification listed under subsection (d):

(A) 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(b); and

(B) publish all pertinent information about the proposed site-specific modification on the department’s Web site.

(2) For a site-specific modification not listed under subsection (d):

(A) approve or deny the application; and

(B) if the application is approved, initiate a rulemaking to have the site-specific modification incorporated into the water quality standards.

  (d) Site-specific modifications to criteria or values do not require a rulemaking if they are:

(1) allowed under subsection (a) and to a criterion not specifically listed in this rule or to a value;

(2) allowed under subsection (a)(1)(B)(i) and determined using a WER;

(3) allowed under subsection (a)(1)(B)(ii) and determined using the recalculation procedure under 327 IAC 2-1-13; or

(4) required under subsection (a) and determined under subsection (a)(1)(D).

  (e) Upon approval of a site-specific modification listed in subsection (d), the commissioner shall:

(1) publish a notice in the Indiana Register;

(2) place all pertinent information about the approved site-specific modification on the department’s Web site;

(3) submit the site-specific modification to U.S. EPA for approval if it is for a site-specific modification to a criterion specifically listed in this rule but not for a site-specific modification to a criterion specifically listed in this rule and expressed as a function of the WER; and

(4) incorporate the site-specific modification into the water quality standards during the next revision of the water quality standards if it is for a site-specific modification to a criterion specifically listed in this rule.

  (f) Site-specific modifications to criteria specifically listed in this rule, except for site-specific modifications to criteria specifically listed in this rule and expressed as a function of the WER, shall not be incorporated into a final NPDES permit or used for other Clean Water Act purposes until approved by U.S. EPA.

  (g) The following site-specific modifications to water quality criteria have been granted:

Table 16-1
Site-Specific Surface Water Quality Criteria
Waterbody	Starting Location	Ending Location	Substances	CMC (Maximum) (μg/l)	CCC (4-Day Average) (μg/l)
East Branch Grand Calumet River	U.S. Steel Outfall 005	A point one (1) mile downstream	Cyanide (Free) (adult salmonids present)	35.0	8.2
			Cyanide (Free) (salmonids absent)	45.8	10.7

(Water Pollution Control Division; 327 IAC 2-1.5-16; filed Jan 14, 1997, 12:00 p.m.: 20 IR 1407; errata filed Aug 11, 1997, 4:15 p.m.: 20 IR 3378; filed Feb 14, 2005, 10:05 a.m.: 28 IR 2093; errata filed Jul 6, 2005, 3:12 p.m.: 28 IR 3582)