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-IR- Database: Indiana Register

TITLE 327 WATER POLLUTION CONTROL DIVISION

FINDINGS AND DETERMINATION OF THE COMMISSIONER
PURSUANT TO IC 13-14-9-7 AND SECOND NOTICE OF COMMENT PERIOD
LSA Document #22-110

CITY OF ANGOLA CHLORIDE VARIANCE UPDATE


PURPOSE OF NOTICE
The Indiana Department of Environmental Management (IDEM) is soliciting public comment on amendments to rules at 327 IAC 2-1.5-17 concerning updates to the variance from the chloride water quality standard for the city of Angola. The purpose of this notice is to seek public comment on the draft rule, including suggestions for specific language to be included in the rule. IDEM seeks comment on the affected citations listed and any other provisions of Title 327 that may be affected by this rulemaking.

CITATIONS AFFECTED: 327 IAC 2-1.5-17.


STATUTORY REQUIREMENTS
IC 13-14-9-7 recognizes that under certain circumstances it may be appropriate to reduce the number of public comment periods routinely provided. In cases where the commissioner determines that the rulemaking policy alternatives available to IDEM are so limited that the first notice of public comment period would provide no substantial benefit to the environment or persons to be regulated or otherwise affected by the proposed rule, IDEM may forgo this comment period and proceed directly to the notice of second public comment period.
If the commissioner makes the determination of limited rulemaking policy alternatives required by IC 13-14-9-7, the commissioner shall prepare written findings and include them in the second notice of public comment period published in the Indiana Register. This document constitutes the commissioner's written findings pursuant to IC 13-14-9-7.
The statute provides for this shortened rulemaking process if the commissioner determines that "the rulemaking policy alternatives available to the department are so limited that the public notice and comment period under [IC 13-14-9-3] . . . would provide no substantial benefit to:
(1) the environment; or
(2) persons to be regulated or otherwise affected by the proposed rule.".

BACKGROUND
On August 4, 2021, IDEM made a final determination to approve the city of Angola Wastewater Treatment Plant (Angola) variance from the water quality standard for chloride in accordance with 327 IAC 5-3-4.1 and 327 IAC 2-1.5-17. Final approval was granted by the United States Environmental Protection Agency (U.S. EPA) on September 28, 2021. Angola's National Pollutant Discharge Elimination System (NPDES) permit modification incorporating the approved chloride variance was issued on October 15, 2021, and became effective on November 1, 2021.
Under 327 IAC 5-3-4.1(m): "All variances shall be appended to the water quality standards rules, 327 IAC 2-1 or 327 IAC 1.5, during the triennial review process.". Currently, 327 IAC 2-1.5-17 references Angola's variance limits (monthly average and daily maximum) for chloride that were originally approved in 2012. This rulemaking will update 327 IAC 2-1.5-17 to reflect Angola's most recent final approved chloride variance limits.
IDEM seeks comment on the affected citations listed, including suggestions for specific language, any other provisions of Title 327 that may be affected by this rulemaking, and alternative ways to achieve the purpose of the rulemaking.
IC 13-14-9-4 Identification of Restrictions and Requirements Not Imposed under Federal Law
No element of the draft rule imposes either a restriction or a requirement on persons to whom the draft rule applies that is not imposed under federal law.
Potential Fiscal Impact
This rulemaking will not have a fiscal impact to the source as it is simply reflecting the variance limitations that have already been incorporated into the city of Angola's current NPDES permit.
Public Participation and Work Group Information
No work group is planned for the rulemaking. If you feel that a work group or other informal discussion on the rule is appropriate, please contact Krystal Hackney, Rules Development Branch, Office of Legal Counsel at KHackney1@idem.in.gov, (317) 232-3158 or (800) 451-6027 (in Indiana).
Small Business Assistance Information
IDEM established a compliance and technical assistance program (CTAP) under IC 13-28-3. The program provides assistance to small businesses and information regarding compliance with environmental regulations. In accordance with IC 13-28-3 and IC 13-28-5, there is a small business assistance program ombudsman to provide a point of contact for small businesses affected by environmental regulations. Information on CTAP and other resources available can be found at:
www.in.gov/idem/ctap
For purposes of IC 4-22-2-28.1, small businesses affected by this rulemaking may contact the Small Business Regulatory Coordinator:
Angela Taylor
IDEM Small Business Regulatory Coordinator/CTAP Small Business Liaison
IGCN 1316
100 North Senate Avenue
Indianapolis, IN 46204-2251
(317) 233-0572 or (800) 988-7901
ctap@idem.in.gov
For purposes of IC 4-22-2-28.1, the Small Business Ombudsman designated by IC 5-28-17-6 is:
Emily Totten
Small Business Ombudsman
Indiana Economic Development Corporation
One North Capitol, Suite 700
Indianapolis, IN 46204
(317) 402-3062
etotten@iedc.in.gov
Resources available to regulated entities through the small business ombudsman include the ombudsman's duties stated in IC 5-28-17-6, specifically IC 5-28-17-6(9), investigating and attempting to resolve any matter regarding compliance by a small business with a law, rule, or policy administered by a state agency, either as a party to a proceeding or as a mediator.
The Small Business Assistance Program Ombudsman is:
Erin Moorhous
IDEM Small Business Assistance Program Ombudsman/Business, Agricultural, and Legislative Liaison
IGCN 1301
100 North Senate Avenue
Indianapolis, IN 46204-2251
(317) 232-8921 or (800) 451-6027
emoorhou@idem.in.gov

FINDINGS
The commissioner of IDEM has prepared written findings regarding rulemaking on updating Angola's chloride variance to the water quality standard as required under 327 IAC 5-3-4.1(m). These findings are prepared under IC 13-14-9-7 and are as follows:
(1) According to the requirement of 327 IAC 5-3-4.1(m), the chloride variance requested by the city of Angola and granted by the commissioner of IDEM, is appended to 327 IAC 2-1.5-17.
(2) I have determined that under the specific circumstances pertaining to this rule, the rulemaking policy alternatives are so limited that the public notice and comment period provided in the notice of first public comment period would provide no substantial benefit to the environment or to persons to be regulated or otherwise affected by the rule.
(3) The draft rule is hereby incorporated into these findings.
___________________________________
Brian C. Rockensuess
Commissioner
Indiana Department of Environmental Management

REQUEST FOR PUBLIC COMMENTS
This notice requests the submission of comments on the draft rule language, including suggestions for specific revisions to language to be contained in the draft rule. Comments may be submitted in one of the following ways:
(1) By mail or common carrier to the following address:
LSA Document #22-110 City of Angola Chloride Variance Update
Krystal Hackney
Rules Development Branch
Office of Legal Counsel
Indiana Department of Environmental Management
Indiana Government Center North
100 North Senate Avenue
Indianapolis, IN 46204-2251
(2) By electronic mail to KHackney1@idem.in.gov. To confirm timely delivery of submitted comments, please request a document receipt when sending the electronic mail. PLEASE NOTE: Electronic mail comments will NOT be considered part of the official written comment period unless they are sent to the address indicated in this notice.
Contact Karla Kindrick at kkindric@idem.in.gov or (317) 232-8922 if another method of submitting comments within the comment period is desired. Regardless of the delivery method used, in order to properly identify each comment with the rulemaking action it is intended to address, each comment document must clearly specify the LSA document number of the rulemaking.

COMMENT PERIOD DEADLINE
All comments must be postmarked or time stamped not later than May 21, 2022.
Additional information regarding this action may be obtained from Krystal Hackney, Rules Development Branch, Office of Legal Counsel, at KHackney1@idem.in.gov, (317) 232-3158 or (800) 451-6027 (in Indiana).

DRAFT RULE

SECTION 1. 327 IAC 2-1.5-17 IS AMENDED TO READ AS FOLLOWS:

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

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 such a the variance shall must be submitted in accordance with 327 IAC 5-3-4.1. The following do not constitute an undue hardship or burden, Therefore, 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 such 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 shall 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 shall 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 shall 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 shall 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 shall 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 shall 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 shall 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 shall be is grounds for the staying or dismissing of or a defense in a pending enforcement action. A variance shall 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  Affected Discharger  Starting Location  Ending Location  Substance  Variance Limit (mg\L) 
H.D. Wood Ditch and Mud Creek  IN0021296  Angola WWTP Outfall 001  Confluence with Pigeon Creek  Chloride  768 745 Monthly Average 
1,056 1,024 Daily Maximum 
(Water Pollution Control Division; 327 IAC 2-1.5-17; filed Jan 14, 1997, 12:00 p.m.: 20 IR 1409; errata filed Aug 11, 1997, 4:15 p.m.: 20 IR 3378; filed Jun 14, 2013, 9:43 a.m.: 20130710-IR-327120512FRA)



Posted: 04/06/2022 by Legislative Services Agency

DIN: 20220406-IR-327220110FDA
Composed: Nov 28,2022 6:59:17AM EST
A PDF version of this document.