20071003-IR-327050218FRA Amends 327 IAC 2-1-3, 327 IAC 2-1-10, 327 IAC 2-1.5-5, 327 IAC 2-1.5-18, and 327 IAC 5-2-10 and adds 327 IAC 2-1-3.1 concerning the establishment of a combined sewer overflow (CSO) wet weather limite...

TITLE 327 WATER POLLUTION CONTROL BOARD

Final Rule

LSA Document #05-218(F)

DIGEST

Amends 327 IAC 2-1-3, 327 IAC 2-1-10, 327 IAC 2-1.5-5, 327 IAC 2-1.5-18, and 327 IAC 5-2-10 and adds 327 IAC 2-1-3.1 concerning the establishment of a combined sewer overflow (CSO) wet weather limited use subcategory and permit compliance schedules for qualifying communities affected by CSOs. Effective 30 days after filing with the Publisher.

HISTORY

First Notice of Comment Period: September 1, 2005, Indiana Register (28 IR 3685).

Second Notice of Comment Period and Notice of Public Hearing: May 1, 2006, Indiana Register (29 IR 2688).

Change in Notice of Public Hearing: June 1, 2006, Indiana Register (29 IR 3038).

Change in Notice of Public Hearing: July 1, 2006, Indiana Register (29 IR 3405).

Date of First Hearing: August 9, 2006.

Posting of Proposed Rule: November 1, 2006, Indiana Register (DIN: 20061101-IR-327050218PRA).

Notice of Public Hearing: November 1, 2006, Indiana Register (DIN: 20061101-IR-327050218PHA).

Change in Notice of Public Hearing: May 23, 2007, Indiana Register (DIN: 20070523-IR-327050218CHA).

Date of Second Hearing and Final Adoption: June 13, 2007.

327 IAC 2-1-3; 327 IAC 2-1-3.1; 327 IAC 2-1-10; 327 IAC 2-1.5-5; 327 IAC 2-1.5-18; 327 IAC 5-2-10

SECTION 1. 327 IAC 2-1-3 IS AMENDED TO READ AS FOLLOWS:

327 IAC 2-1-3 Surface water use designations; multiple uses

Authority: IC 13-14-8; IC 13-14-9; IC 13-18-3

Affected: IC 13-18-4

Sec. 3. (a) The following water uses are designated by the water pollution control board:

(1) Except as provided in subsection (c), surface waters of the state are designated for full body contact recreation as provided in section 6(d) of this rule.

(2) All waters, except as described in subdivision (5), will be capable of supporting:

(A) a well-balanced, warm water aquatic community; and

(B) where natural temperatures will permit, will be capable of supporting put-and-take trout fishing.

All waters capable of supporting the natural reproduction of trout as of February 17, 1977, shall be so maintained.

(3) All waters which that are used for public or industrial water supply must meet the standards for those uses at the points where the water is withdrawn. This use designation and its corresponding water quality standards are not to be construed as imposing a user restriction on those exercising or desiring to exercise the use.

(4) All waters which that are used for agricultural purposes must, as a minimum, meet the standards established in section 6(a) of this rule.

(5) All waters in which naturally poor physical characteristics (including lack of sufficient flow), naturally poor chemical quality, or irreversible man-induced conditions, which came into existence prior to before January 1, 1983, and having been established by use attainability analysis, public comment period, and hearing:

(A) may qualify to be classified for limited use; and

(B) must be evaluated for restoration and upgrading at each triennial review of this rule.

Specific waters of the state designated for limited use are listed in section 11(a) of this rule.

(6) All waters which that:

(A) provide unusual aquatic habitat; which

(B) are an integral feature of an area of exceptional natural beauty or character; or which

(C) support unique assemblages of aquatic organisms:

may be classified for exceptional use. Specific waters of the state designated for exceptional use are listed in section 11(b) of this rule.

(b) Where multiple uses have been designated for a body of water, the most protective of all simultaneously applicable standards will apply.

(c) A CSO wet weather limited use designation is established as a subcategory of the recreational use designation established under subsection (a). This subcategory shall be applied in accordance with section 3.1 of this rule.

(Water Pollution Control Board; 327 IAC 2-1-3; filed Sep 24, 1987, 3:00 p.m.: 11 IR 580; filed Feb 1, 1990, 4:30 p.m.: 13 IR 1019; filed Jan 14, 1997, 12:00 p.m.: 20 IR 1348; filed Sep 6, 2007, 12:25 p.m.: 20071003-IR-327050218FRA)

SECTION 2. 327 IAC 2-1-3.1 IS ADDED TO READ AS FOLLOWS:

327 IAC 2-1-3.1 CSO wet weather limited use designation

Authority: IC 13-14-8; IC 13-14-9; IC 13-18-3-2.5

Affected: IC 13-14-2-6; IC 13-14-9-14; IC 13-18-4

Sec. 3.1. (a) The CSO wet weather limited use subcategory established under section 3 of this rule shall be applied only to waters receiving wet weather discharges from combined sewer overflows.

(b) To receive consideration for the CSO wet weather limited use subcategory designation, a CSO community must do the following:

(1) Perform a use attainability analysis (UAA) to change the recreational designated use of the waterbody or waterbodies receiving the wet weather discharges from combined sewer overflows.

(2) Submit the UAA to the department for approval.

(3) Submit a long term control plan (LTCP) consistent with the application of the CSO wet weather limited use subcategory to the department for approval.

(c) The LTCP submitted to the department must:

(1) specify the water quality-based requirements that will apply to combined sewer overflows under subsection (h) if the waterbody or waterbodies receiving the wet weather overflows are redesignated to the CSO wet weather limited use subcategory; and

(2) meet the requirements of Section 402(q) of the Clean Water Act.

(d) The department shall review the UAA concurrently with the LTCP if they are submitted concurrently. The department shall use the LTCP to satisfy the requirements of the UAA, to the extent possible.

(e) Upon approval of a UAA, the department shall begin a rulemaking under IC 13-14-9-14 to amend the designated use to a CSO wet weather limited use designation. The rulemaking may commence before full implementation of the approved LTCP.

(f) Upon completion of the rulemaking required under subsection (e), the department shall submit the amended recreational use designation and the supporting UAA to the U.S. EPA for approval.

(g) Upon U.S. EPA's approval of the use designation change for the waterbody or waterbodies receiving wet weather overflows from a CSO community, the department shall modify the NPDES permit holder's permit to incorporate the CSO wet weather limited use designation and the approved LTCP into the permit.

(h) The water quality-based requirements for the CSO wet weather limited use designation shall:

(1) be determined by the approved LTCP for the combined sewer system;

(2) be consistent with the Clean Water Act; and

(3) remain in effect during the time and to the physical extent that the recreational use designation that applied to the waters immediately before the application to the waters of the CSO wet weather limited use subcategory is not attained but for not more than four (4) days after the date the overflow discharge ends.

(Water Pollution Control Board; 327 IAC 2-1-3.1; filed Sep 6, 2007, 12:25 p.m.: 20071003-IR-327050218FRA)

SECTION 3. 327 IAC 2-1-10 IS AMENDED TO READ AS FOLLOWS:

327 IAC 2-1-10 Reclassification proposals for limited or exceptional use designation

Authority: IC 13-14-8; IC 13-14-9; IC 13-18-3

Affected: IC 13-18-4

Sec. 10. (a) Except as provided in subsection (c), a person who wishes to propose that a particular body of the waters of the state be considered by the commissioner for limited use or exceptional use classification must submit to the commissioner a written proposal identifying the waterbody and the proposed classification, stating the rationale for the proposal, and including any other supporting documentation. After receiving the commissioner's recommendation on a proposal, if the board determines that a waterbody is appropriate for reclassification for limited use or exceptional use, it will initiate a rulemaking for that purpose.

(b) The commissioner will consider factors such as the following factors listed in subdivisions (1) and (2) in making recommendations to the board with regard to proposals for the reclassification of a waterbody for limited use or exceptional use. These factors are listed as guidelines to provide some insight into the way the commissioner's recommendations may be made, but are not intended to be all encompassing. Irrespective of these factors, the commissioner's recommendations generally will be case-by-case determinations based on professional judgment after on-site evaluations. The commissioner will consider factors relating to the following:

(1) Factors relating to Limited use designations such as any of the following:

(A) The waterway has a Q(7),(10) low flow upstream of any existing or proposed discharge of one-tenth (0.1) cubic feet per second or less.

(B) Suitable habitat to support a well-balanced fish community is severely limited or absent.

(C) The waterway is affected by irreversible conditions, natural or man-induced, which that:

(i) came into existence prior to before January 1, 1983; which

(ii) are not practicably controllable; and

(iii) prevent establishment of a well-balanced fish community.

(D) The waterbody has no unique or exceptional features. and/or

(E) Potential or existing uses made of the waterbody by people in the immediate area would not be adversely affected by a limited use designation.

(2) Factors relating to Exceptional use designations such as any of the following:

(A) The presence of any of the following:

(i) A unique or exceptional habitat or species in the waterbody.

(B) the presence of (ii) A rare or endangered species in the waterbody.

(C) the presence of (iii) Exceptional aesthetic quality in the immediate environs of the waterbody.

(D) (B) The waterbody:

(i) is within the boundaries of or flows through a designated natural area, nature preserve, or state or national park or forest;

(E) the waterbody (ii) supports an excellent sports fishery; or

(F) the waterbody (iii) possesses exceptional quality. or

(G) (C) Intensive recreational use is made of the waterbody.

(c) A person seeking to obtain a CSO wet weather limited use subcategory designation shall do so in accordance with section 3.1 of this rule.

(Water Pollution Control Board; 327 IAC 2-1-10; filed Sep 24, 1987, 3:00 p.m.: 11 IR 585; filed Sep 6, 2007, 12:25 p.m.: 20071003-IR-327050218FRA)

SECTION 4. 327 IAC 2-1.5-5 IS AMENDED TO READ AS FOLLOWS:

327 IAC 2-1.5-5 Surface water use designations; multiple uses

Authority: IC 13-14-8; IC 13-14-9; IC 13-18-3

Affected: IC 13-18-4; IC 13-30-2-1

Sec. 5. (a) The following water uses are designated by the board:

(1) All Except as provided in subsection (c), surface waters of the state within the Great Lakes system are designated for full-body contact recreation.

(2) All surface waters, except as described in subdivision (7), shall be capable of supporting a well-balanced, warm water aquatic community.

(3) Where natural temperatures will permit, surface waters shall be capable of supporting put-and-take trout fishing. All waters capable of supporting the natural reproduction of trout shall be so maintained. The following waters are designated as salmonid waters and shall be capable of supporting a salmonid fishery:

(A) Trail Creek and its tributaries downstream to Lake Michigan.

(B) East Branch of the Little Calumet River and its tributaries downstream to Lake Michigan via Burns Ditch.

(C) Salt Creek above its confluence with the Little Calumet River.

(D) Kintzele Ditch (Black Ditch) from Beverly Drive downstream to Lake Michigan.

(E) The Galena River and its tributaries in LaPorte County.

(F) The St. Joseph River and its tributaries in St. Joseph County from the Twin Branch Dam in Mishawaka downstream to the Indiana/Michigan state line.

(G) The Indiana portion of the open waters of Lake Michigan.

(H) Those waters designated by the Indiana department of natural resources for put-and-take trout fishing.

(4) All surface waters used for public water supply are designated as a public water supply. This use designation and its corresponding water quality criteria are not to be construed as imposing a user restriction on those exercising or desiring to exercise the use.

(5) All surface waters used for industrial water supply are designated as an industrial water supply. This use designation and its corresponding water quality criteria are not to be construed as imposing a user restriction on those exercising or desiring to exercise the use.

(6) All surface waters used for agricultural purposes are designated as an agricultural use water.

(7) Limited use waters are designated under section 19(a) of this rule pursuant to section 18 of this rule. All waters that are designated as a limited use water under section 19(a) of this rule must be evaluated for restoration and upgrading at each triennial review of this rule.

(8) Outstanding state resource waters are designated under section 19(b) of this rule pursuant to section 18 of this rule.

(b) Where multiple uses have been designated for a body of water, the most protective of all simultaneously applicable standards will apply.

(c) A CSO wet weather limited use designation is established as a subcategory of the recreational use designation established under subsection (a). This subcategory shall be applied in accordance with 327 IAC 2-1-3.1.

(Water Pollution Control Board; 327 IAC 2-1.5-5; filed Jan 14, 1997, 12:00 p.m.: 20 IR 1369; filed Sep 6, 2007, 12:25 p.m.: 20071003-IR-327050218FRA)

SECTION 5. 327 IAC 2-1.5-18 IS AMENDED TO READ AS FOLLOWS:

327 IAC 2-1.5-18 Designation of a waterbody as a limited use water or an outstanding state resource water

Authority: IC 13-14-8; IC 13-14-9; IC 13-18-3

Affected: IC 13-18-4

Sec. 18. (a) Except as provided in subsection (f), a person who wishes to propose that a waterbody within the Great Lakes system be considered by the commissioner for designation as a limited use or outstanding state resource water shall submit to the commissioner a written proposal:

(1) identifying the waterbody and the proposed designation stating the rationale for the proposal; and

(2) including any other supporting documentation.

(b) The commissioner shall evaluate the proposal considering the following:

(1) Waters that meet the following conditions may be considered for designation as a limited use water:

(A) Waters that have:

(i) naturally poor physical characteristics (that is, suitable habitat to support a well-balanced fish community is severely limited or absent) including lack of sufficient flow (Q_7,10 low flow upstream of any existing or proposed discharge of one-tenth (0.1) cubic foot per second or less);

(ii) naturally poor chemical quality;

(iii) irreversible man-induced conditions that came into existence prior to before January 1, 1983; and

(iv) no unique or exceptional features.

(B) No potential or existing uses made of the waterbody by people in the immediate area would be adversely affected by a limited use designation.

(C) The waterbody has been evaluated by a use attainability analysis.

(2) Factors that relate to outstanding state resource water designations may include, but are not limited to, the following:

(A) The presence of any of the following:

(i) A unique or exceptional habitat or species in the waterbody.

(B) The presence of (ii) A rare or endangered species in the waterbody.

(C) The presence of (iii) Exceptional aesthetic quality in the immediate environs of the waterbody.

(D) (B) The waterbody:

(i) is within the boundaries of or flows through a designated natural area, nature preserve, or state or national park or forest;

(E) The waterbody (ii) supports an excellent sports fishery; or

(F) The waterbody (iii) possesses exceptional quality.

(G) (C) Intensive recreational use is made of the waterbody.

(H) (D) Designation as a natural, scenic, or recreational waterbody by the Indiana department of natural resources.

Irrespective of these factors, the commissioner's evaluation will generally be a case-by-case determination using information obtained from an on-site evaluation. If appropriate, the commissioner shall consult with the Indiana department of natural resources concerning the designation of a waterbody as an outstanding state resource water.

(c) After completion of the evaluation under subsection (b), if the commissioner determines that reclassification of the waterbody is appropriate, the commissioner shall initiate a rulemaking to include the waterbody either as a limited use water or an outstanding state resource water under section 19 of this rule.

(d) All waters that are designated as a limited use water under section 19(a) of this rule must be evaluated for restoration and upgrading at each triennial review of this rule.

(e) The department shall initiate a special designations rulemaking in accordance with the following:

(1) The special designations rulemaking shall be initiated for the following purposes: of:

(A) Determining the following:

(i) Whether any other designations in addition to:

(AA) outstanding state resource waters;

(BB) high quality waters;

(CC) limited use waters; and

(DD) outstanding national resource waters;

should be established.

(B) determining (ii) The appropriate factors to consider in designating a waterbody.

(C) (B) Identifying a list of waterbodies for each special designation. and

(D) (C) Specifying antidegradation implementation procedures for the following:

(i) Outstanding state resource waters.

(ii) Outstanding national resource waters. and for

(iii) Any other newly established designation.

(2) Prior to Before the presentation of proposed rules on special designations to the board, the department shall consult with:

(A) other state and federal agencies; and with

(B) interested persons within Indiana;

as appropriate. The department shall provide information to the public on the history, intent, and importance of the current outstanding state resource water designation and the list of outstanding state resource waters.

(3) The department shall seek comment, as part of the second notice on special designations, on the following:

(A) Adding waterbodies to the list of outstanding national resource waters. on

(B) The specific interim antidegradation implementation procedures included in 327 IAC 5-2-11.7 for outstanding state resource waters. and on

(C) Procedures for addressing increases not included in the specific exceptions listed in 327 IAC 5-2-11.7(c)(2).

(4) The following statement shall be included in the second notice and shall be used as a guide during the special designation rulemaking, "The interim antidegradation implementation procedures for outstanding state resource waters in 327 IAC 5-2-11.7 are intended only to assure that a specific process exists to address proposed changes pending the completion of the special designation rulemaking. The board does not consider the specific procedures listed in 327 IAC 5-2-11.7 as a final policy statement or as binding on the board in the special designation rulemaking.".

(5) The department shall present rules to the board on a schedule such that final rules may be adopted and made effective prior to before the expiration of 327 IAC 5-2-11.7.

(f) A person seeking to obtain a CSO wet weather limited use subcategory designation shall do so in accordance with 327 IAC 2-1-3.1.

(Water Pollution Control Board; 327 IAC 2-1.5-18; filed Jan 14, 1997, 12:00 p.m.: 20 IR 1410; errata filed Aug 11, 1997, 4:15 p.m.: 20 IR 3378; filed Sep 6, 2007, 12:25 p.m.: 20071003-IR-327050218FRA)

SECTION 6. 327 IAC 5-2-10 IS AMENDED TO READ AS FOLLOWS:

327 IAC 5-2-10 Applicable limitations, standards, and conditions

Authority: IC 13-14-8; IC 13-14-9; IC 13-15-1-2; IC 13-18-3-2.6

Affected: IC 13-11-2; IC 13-18-4

Sec. 10. (a) Each NPDES permit shall provide for and ensure compliance with all applicable requirements of the Clean Water Act (CWA), regulations promulgated under the CWA, and state law. For the purposes of this section, an applicable requirement is a statutory or regulatory requirement that takes effect under state law prior to before final administrative disposition of a permit. In addition to the requirements of sections 6, 8, 9, and 12 of this rule, permits shall contain terms and conditions that ensure compliance with the following requirements as applicable:

(1) Effluent limitations and standards under Sections 301, 304, 307(a), 318, and 405 of the CWA.

(2) Standards of performance for new sources under Section 306 of the CWA and 40 CFR 122.44(a).

(3) In the case of a POTW, which primarily is designed and utilized for the treatment of wastewater from an industry of a particular class or category, the effluent limitations or standards that would apply under Section 301, 304, 306, 307, 318, or 405 of the CWA to the industry if it were a direct discharger. If the POTW receives sewage from domestic sources as well as industrial wastewater, the permit shall include composite (or hybrid) effluent limitations comprising the effluent:

(A) limitations or standards applicable to the industrial wastewater, as specified in this subdivision; and effluent

(B) limitations applicable to the domestic sewage under Sections 301 and 304 of the CWA.

Such composite limitations will be cumulative for mass limitations and weighted in proportion to respective flows for concentration limitations.

(4) Water quality standard based and other more stringent requirements. Any effluent limitations or other requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards under Sections 301, 304, 306, 307, 318, and 405 of the CWA where necessary to do the following:

(A) Achieve water quality standards established by the water pollution control board or by EPA in accordance with Sections 118 and 303 of the CWA. Numeric water quality-based effluent limitations shall be established in accordance with sections 11.1 and 11.3 through 11.6 of this rule.

(B) Attain or maintain a specified water quality through water quality related effluent limits established under Section 302 of the CWA.

(C) Incorporate, in accordance with Section 301(b)(1)(C) of the CWA, any more stringent limitations, treatment standards, or schedules of compliance requirements established under federal or state law or regulations (including those adopted under interstate agreements or compacts such as the Ohio River Valley Water Sanitation Commission (ORSANCO)).

(D) Ensure consistency with the requirements of a water quality management plan approved by EPA under Section 208(b) of the CWA.

(E) Incorporate alternative effluent limitations or standards where warranted by fundamentally different factors under 327 IAC 5-6.

(5) The following requirements for toxic pollutant limitations:

(A) Limitations established under subdivision (1), (2), (3), or (4) to control pollutants meeting the criteria listed in clause (B). Such limitations shall be established in accordance with clause (C).

(B) Limitations must control all toxic pollutants that the:

(i) the commissioner determines (based on information reported in a permit application or in a notification under section 9 of this rule or on other information) are or may be discharged at a level greater than the level that is allowed under the technology-based effluent limitations applicable to the permittee under the CWA (see 327 IAC 5-5-2(c)); or

(ii) the discharger does or may use or manufacture as an intermediate or final product or byproduct; however, limitations are not required under this subdivision merely because the discharger does or may use or manufacture a toxic pollutant under research or laboratory conditions.

(C) The requirement that the limitations control the pollutants meeting the criteria of clause (B) shall be satisfied by limitations on:

(i) limitations on those pollutants; or

(ii) limitations on other pollutants that, in the judgment of the commissioner, will ensure treatment of the pollutants specified under clause (B) to the levels required by the CWA.

(D) As used in this subdivision, "toxic pollutant" means:

(i) a pollutant listed as toxic under Section 307(a)(1) of the CWA; or

(ii) a pollutant or a combination of pollutants determined by the commissioner to have significant toxic characteristics when discharged into the waters of the state for organisms reasonably expected to be exposed to such the pollutant or pollutants.

(6) Permits issued prior to before the promulgation by the administrator of applicable effluent limitations and standards (including best management practices) under Sections 301, 304, 307, 318, and 405 of the CWA shall contain such limitations and other conditions as the commissioner determines to be necessary to carry out those provisions of the CWA under 327 IAC 5-5-2(b) and Section 402(a)(1) of the CWA.

(7) Best management practices to control or abate the discharge of pollutants where:

(A) required under Section 304(e) of the CWA for the control of toxic and hazardous pollutants from ancillary industrial activities;

(B) numeric effluent limitations are infeasible; or

(C) the practices are reasonably necessary to achieve effluent limitations and standards or to carry out the purposes and intent of the CWA.

Examples of best management practices that may be appropriate under clause (B) include proper operation and maintenance criteria and sludge-handling requirements. Examples of best management practices that may be appropriate under clause (C) include the construction of sheds over material storage piles to prevent rainfall from leaching materials from these piles and creating a source of pollution, ditching and diversion of rainfall run-off to minimize or prevent contamination from a discharger's manufacturing operations, and the use of solid, absorbent materials for cleaning up leaks and drips as opposed to washing these materials down a floor drain creating additional sources of pollution.

(8) Twenty-four (24) hour reporting. Pollutants for which the permittee must report violations of maximum daily discharge limitations under section 8(10)(C)(iii) of this rule (twenty-four (24) hour reporting) shall be listed as such in the permit. This list shall include any:

(A) toxic pollutant or hazardous substance; or any

(B) pollutant specifically identified as the method to control a toxic pollutant or hazardous substance.

(9) Any conditions that the Secretary of the Army considers necessary to ensure that navigation and anchorage will not be substantially impaired in accordance with 327 IAC 5-3-10(a).

(10) Additional conditions applicable to POTWs shall be as follows:

(A) Any conditions imposed in grants made by the administrator to POTWs under Sections 201 and 204 of the CWA that are reasonably necessary for the achievement of effluent limitations required under Section 301 of the CWA.

(B) Requirements under Section 405 of the CWA governing the disposal of sewage sludge from POTWs or any other treatment works treating domestic sewage for any use for which rules have been established in accordance with any applicable rules.

(C) All POTWs shall identify, in terms of character and volume of pollutants, any significant indirect discharges into the POTW which that are subject to pretreatment standards under Section 307(b) and 307(c) of the CWA.

(D) All POTWs must provide adequate notice to the commissioner of the following:

(i) Any new introduction of pollutants into the POTW from an indirect discharger that would be subject to Section 301 or 306 of the CWA if it were directly discharging those pollutants.

(ii) Any substantial change in the volume or character of pollutants being introduced into that POTW by any source where such the change would:

(AA) render the source subject to pretreatment standards under Section 307(b) or 307(c) of the CWA; or would

(BB) result in a modified application of such the standards.

As used in this clause, "adequate notice" includes information on the quality and quantity of effluent introduced into the POTW and any anticipated impact of the change on the quantity or quality of effluent to be discharged from the POTW.

(E) POTWs must develop and submit to the commissioner a POTW pretreatment program when required by 40 CFR 403 and 327 IAC 5-13-1 in order to assure compliance by industrial users of the POTW with applicable pretreatment standards established under Sections 307(b) and 307(c) of the CWA. The pretreatment program shall:

(i) meet the criteria of 327 IAC 5-13-2(f); and

(ii) once approved, shall be incorporated into the POTW's permit.

(11) Antibacksliding requirements shall be as follows:

(A) In the case of effluent limitations established on the basis of Section 402(a)(1)(B) of the CWA, a permit may not be renewed, reissued, or modified on the basis of effluent guidelines promulgated under Section 304(b) of the CWA subsequent to the original issuance of such the permit to contain effluent limitations which that are less stringent than the comparable effluent limitations in the previous permit. In the case of effluent limitations established on the basis of Section 301(b)(1)(C), 303(d), or 303(e) of the CWA, a permit may not be renewed, reissued, or modified to contain effluent limitations which that are less stringent than the comparable effluent limitations in the previous permit except in compliance with Section 303(d)(4) of the CWA.

(B) A permit, with respect to which clause (A) applies, may be renewed, reissued, or modified to contain less stringent effluent limitations applicable to a pollutant if:

(i) material and substantial alterations or additions to the permitted facility occurred after permit issuance that justify the application of a less stringent effluent limitation;

(ii) information is available that:

(AA) was not available at the time of permit issuance (other than revised regulations, guidance, or test methods); and that

(BB) would have justified the application of a less stringent effluent limitation at the time of permit issuance;

or the commissioner determines that technical mistakes or mistaken interpretations of law were made in issuing the permit under Section 402(a)(1)(B) of the CWA;

(iii) a less stringent effluent limitation is necessary because of events:

(AA) over which the permittee has no control; and

(BB) for which there is no reasonably available remedy;

(iv) the permittee has received a permit modification under Section 301(c), 301(g) through 301(i), 301(k), 301(n), or 316(a) of the CWA; or

(v) the permittee has installed the treatment facilities required to meet the effluent limitations in the previous permit and has properly operated and maintained the facilities, but has nevertheless been unable to achieve the previous effluent limitations, in which case the limitations in the reviewed, reissued, or modified permit may reflect the level of pollutant control actually achieved (but shall not be less stringent than required by effluent guidelines in effect at the time of permit renewal, reissuance, or modification).

Item (ii) shall not apply to any revised waste load allocations or any alternative grounds for translating water quality standards into effluent limitations, except where the cumulative effect of such the revised allocations results in a decrease in the amount of pollutants discharged into the concerned waters, and such the revised allocations are not the result of a discharger eliminating or substantially reducing its discharge of pollutants due to complying with the requirements of the CWA or for reasons otherwise unrelated to water quality.

(C) In no event may a permit with respect to which clause (A) applies be renewed, reissued, or modified to contain an effluent limitation that is less stringent than required by effluent guidelines in effect at the time the permit is renewed, reissued, or modified. In no event may such a permit to discharge into waters be renewed, reissued, or modified to contain a less stringent effluent limitation if the implementation of such the limitation would result in a violation of a water quality standard under Section 303 of the CWA, 327 IAC 2-1, or 327 IAC 2-1.5 applicable to such the waters.

(12) For a POTW, any conditions expressly applicable to any user, as a limited co-permittee, that may be necessary in the permit issued to the treatment works to ensure compliance with applicable requirements under this subdivision. Alternatively, the commissioner may issue separate permits to the treatment works and to its users or may require a separate permit application from any user. The commissioner's decision to:

(A) issue a permit with no conditions applicable to any user; to

(B) impose conditions on one (1) or more users; to

(C) issue separate permits; or to

(D) require separate applications;

and the basis for that decision, shall be stated in the fact sheet for the draft permit for the treatment works.

(b) Notwithstanding the requirements of this section, where appropriate, NPDES permits for communities with approved LTCPs that are consistent with the federal CSO policy shall contain schedules of compliance for meeting final water quality-based effluent limitations for CSOs, provided any such permit:

(1) requires compliance with applicable standards and water quality-based effluent limitations as soon as possible in accordance with 40 CFR 122.47(a)(1) and in no event beyond the period specified in the approved LTCP for implementation of the LTCP;

(2) contains interim requirements, milestones, and final water quality-based effluent limitations and dates certain by which those requirements, milestones, and limitations will be met, even if these dates are beyond the term of the permit;

(3) complies in all other respects with the requirements of 40 CFR 122.47; and

(4) requires implementation of the approved LTCP.

(c) The department shall, where appropriate, and upon the request of the permittee, incorporate into the NPDES permit that contains water quality-based effluent limitations associated with CSOs a schedule of compliance provided that all the conditions in subsection (b) are met.

(Water Pollution Control Board; 327 IAC 5-2-10; filed Sep 24, 1987, 3:00 p.m.: 11 IR 623; filed Feb 26, 1993, 5:00 p.m.: 16 IR 1743; filed Jan 14, 1997, 12:00 p.m.: 20 IR 1426; errata filed Aug 11, 1997, 4:15 p.m.: 20 IR 3378; filed Sep 6, 2007, 12:25 p.m.: 20071003-IR-327050218FRA)

LSA Document #05-218(F)

Proposed Rule: 20061101-IR-327050218PRA

Hearing Held: June 13, 2007

Approved by Attorney General: August 22, 2007

Approved by Governor: September 6, 2007

Filed with Publisher: September 6, 2007, 12:25 p.m.

Documents Incorporated by Reference: None Received by Publisher

Small Business Regulatory Coordinator: Christina Lowry, IDEM Compliance and Technical Assistance Program, OPPTA - MC60-04, 100 N. Senate Avenue, W-041, Indianapolis, IN 46204-2251, [phone], [e-mail]

Small Business Assistance Program Ombudsman: Megan Tretter, IDEM Small Business Assistance Program Ombudsman, MC 50-01-IGCN 1307, 100 N. Senate Avenue, Indianapolis, IN 46204-2251, [phone], [e-mail]

Posted: 10/03/2007 by Legislative Services Agency

DIN: 20071003-IR-327050218FRA

Composed: Nov 01,2016 12:15:38AM EDT

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