Appendix E to Part 132 - Great Lakes Water Quality Initiative Antidegradation Policy
40:24.0.1.1.21.0.16.7.25 : Appendix E
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).
I. Antidegradation Standard
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).
II. Antidegradation Implementation Procedures
A. Definitions.
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.
3. Fact Sheets prepared pursuant to 40 CFR 124.8 and 124.56
shall reflect any conditions developed under sections II.D.1 or
II.D.2 of this appendix and included in a permit.
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.
III. Antidegradation Demonstration
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.
IV. Antidegradation Decision
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.