THE NECESSARY TEST Draft sections 810

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THE NECESSARY TESTDraft sections 8-10
INDIANA ANTIDEGRADATION WORKSHOP

• Ann Alexander
• Natural Resources Defense Council
• April 29, 2008

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BASIS FOR THE NECESSARY TEST

• Federal antidegradation policy, 40 C.F.R.
  131.12(a)(2)
• No lowering of water quality in waters with Tier
  II protection unless allowing lower water
  quality as to that pollutant is necessary to
  accommodate important economic or social
  development in the area in which the waters are
  located.

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BASIS FOR THE NECESSARY TEST

• Federal antidegradation policy, 40 C.F.R.
  131.12(a)(2)
• No lowering of water quality in waters with Tier
  II protection unless allowing lower water
  quality as to that pollutant is necessary to
  accommodate important economic or social
  development in the area in which the waters are
  located.

4
BASIS FOR THE NECESSARY TEST

• Federal antidegradation policy, 40 C.F.R.
  131.12(a)(2)
• No lowering of water quality in waters with Tier
  II protection unless allowing lower water
  quality as to that pollutant is necessary to
  accommodate important economic or social
  development in the area in which the waters are
  located.
• 1. necessary alternatives analysis

5
BASIS FOR THE NECESSARY TEST

• Federal antidegradation policy, 40 C.F.R.
  131.12(a)(2)
• No lowering of water quality in waters with Tier
  II protection unless allowing lower water
  quality as to that pollutant is necessary to
  accommodate important economic or social
  development in the area in which the waters are
  located.
• 1. necessary alternatives analysis

6
BASIS FOR THE NECESSARY TEST

• Federal antidegradation policy, 40 C.F.R.
  131.12(a)(2)
• No lowering of water quality in waters with Tier
  II protection unless allowing lower water
  quality as to that pollutant is necessary to
  accommodate important economic or social
  development in the area in which the waters are
  located.
• 1. necessary alternatives analysis
• 2. to accommodate purpose analysis

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ELEMENTS OF THE NECESSARY TEST

• A two-pronged question

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ELEMENTS OF THE NECESSARY TEST

• A two-pronged question
• Necessary Is it possible to minimize,
  mitigate, or eliminate the proposed discharge,
  through technology or other means? If not, then
  discharge is necessary

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ELEMENTS OF THE NECESSARY TEST

• A two-pronged question
• Necessary Is it possible to minimize,
  mitigate, or eliminate the proposed discharge,
  through technology or other means? If not, then
  discharge is necessary
• to accommodate an important economic or social
  benefit does the development requiring this
  unavoidable increase constitute a clear and
  important net social and economic benefit to the
  area?

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THE NECESSARY TEST A HIGH BAR

• USEPA Water Quality Standards Handbook 4.5
• This provision is intended to provide relief
  only in a few extraordinary circumstances where
  the economic and social need for the activity
  clearly outweighs the benefit of maintaining
  water quality above that required for
  fishable/swimmable water, and both cannot be
  achieved. The burden of demonstration on the
  individual proposing such activity will be very
  high. (emphasis added)

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OPPORTUNITIES FOR IMPROVEMENT
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OPPORTUNITIES FOR IMPROVEMENT

• Conflicting decisional requirements
• Section 8(e) choice of either DTBELs or 9
  alternative treatment upon approval of
  application (procedural or substantive?).
• Section 9(d) upon commissioners approval of
  antidegradation demonstration application,
  discharger shall accept limits
• Section 10(b) commissioner shall make a
  determination based on enumerated factors
• Section 10(c) commissioner shall deny, unless
  necessary test is met.

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OPPORTUNITIES FOR IMPROVEMENT

• Conflicting decisional requirements
• Conflicting application requirements
• Section 8(b) information re water quality,
  alternatives, social and economic impacts
• Section 10(b) commissioners decision to be
  based in part on factors not addressed by 8(b)
  information
• 
  

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OPPORTUNITIES FOR IMPROVEMENT

• Conflicting decisional requirements
• Conflicting application requirements
• Weakening of necessary test
• Section 8(e) availability of end of pipe
  control technology not considered as part of
  initial necessary test
• Section 8(c)(4) no definition of what is meant
  by substantially reduce exposure to air
  pollutants
• Section 10(c) alternative cost effectiveness
  test (not defined should be subsumed in
  necessary)
  

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OPPORTUNITIES FOR IMPROVEMENT

• Overall objectives

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OPPORTUNITIES FOR IMPROVEMENT

• Overall objectives
• Application Single consolidated application
  containing all information relevant to decision
  criteria
• Decision criteria Track the language of the
  federal antidegradation policy necessary test
• Stringency Reflect USEPA guidance stating that
  the bar should be high and the necessary test
  exception not routinely invoked

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SUGGESTIONS FOR STRUCTURE

• No lowering of water quality in waters with Tier
  II protection unless allowing lower water
  quality as to that pollutant is necessary to
  accommodate important economic or social
  development in the area in which the waters are
  located.

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SUGGESTIONS FOR STRUCTURE

• necessary
• Requires alternatives analysis considering, inter
  alia
• Pollution prevention and substitution
  alternatives
• Discharge location alternatives
• Treatment alternatives

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SUGGESTIONS FOR STRUCTURE

• important economic or social development
• Requires socioeconomic analysis considering
• Baseline situation unemployment rates,
  percentage living below poverty line, elderly,
  average comparative household income, jobs and/or
  tax revenues in economically depressed areas.
• Net impact correct benefits with adverse
  impacts loss of tourism from lost recreational
  opportunities, increase in costs to facilities
  using affected water, etc.
• Other developments determine whether other
  developments of comparable contribution will
  occur in place of the proposed development.
• GLWRI Antidegradation Policy (Preamble at 58
  Fed.Reg. 20802 (April 16, 1993)

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SUGGESTIONS FOR STRUCTURE

• area in which the waters are located
• Requires geographic analysis of
• Scope of waters impacted by the proposed
  discharge
• Population likely to benefit
• Population likely to suffer adverse consequences

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SUGGESTIONS FOR STRUCTURE

• What should the application contain?

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SUGGESTIONS FOR STRUCTURE

• What should the application contain?
• Complete analysis of alternatives
• Identify all available alternatives
• Eliminate those that are technically infeasible
• Rank them in order of effectiveness
• Choose the most effective or affirmatively
  justify otherwise.

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SUGGESTIONS FOR STRUCTURE

• What should the application contain?
• Complete analysis of alternatives
• Delineation of relevant geographic area
• Description of baseline economic and social
  conditions
• Description of net social and economic benefit
  and basis for claimed importance

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SUGGESTIONS FOR STRUCTURE

• What should be the decision criteria?

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SUGGESTIONS FOR STRUCTURE

• What should be the decision criteria?
• Step 1 Is the discharge necessary? If the
  applicant has failed to demonstrate that there is
  no feasible alternative that minimizes,
  mitigates, or eliminates, DENY.
• Step 2 If the discharge is necessary, has the
  applicant clearly demonstrated that the
  development it accommodates is important?

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SUGGESTIONS FOR STRUCTURE

• What should be the decision criteria?
• Step 1 Is the discharge necessary? If the
  applicant has failed to demonstrate that there is
  no feasible alternative that minimizes,
  mitigates, or eliminates, DENY.
• Step 2 If the discharge is necessary, has the
  applicant clearly demonstrated that the
  development it accommodates is important?
• What is the relevant geographic area?
• What is the baseline social and economic
  situation?
• What is the net benefit, if any?
• Is that benefit unusually important?

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SUGGESTIONS FOR STRUCTURE

• What about de minimis dischargers?

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SUGGESTIONS FOR STRUCTURE

• What about de minimis dischargers?
• Step 1 Is the discharge necessary?
• If the applicant has failed to demonstrate that
  there is no feasible alternative that minimizes,
  mitigates, or eliminates, DENY.

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SUGGESTIONS FOR STRUCTURE

• What about de minimis dischargers?
• Step 1 Is the discharge necessary?
• If the applicant has failed to demonstrate that
  there is no feasible alternative that minimizes,
  mitigates, or eliminates, DENY.

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SUGGESTIONS FOR STRUCTURE

• What about de minimis dischargers?
• Step 1 Is the discharge necessary?
• Modified alternatives analysis

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SUGGESTIONS FOR STRUCTURE

• What about de minimis dischargers?
• Step 1 Is the discharge necessary?
• Modified alternatives analysis
• Pollution prevention and substitution
  alternatives
• Discharge location alternatives
• Treatment alternatives

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SUGGESTIONS FOR STRUCTURE

• What about de minimis dischargers?
• Step 1 Is the discharge necessary?
• Modified alternatives analysis
• Pollution prevention and substitution
  alternatives
• Discharge location alternatives
• Treatment alternatives

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SUGGESTIONS FOR STRUCTURE

• What about de minimis dischargers?
• Step 1 Is the discharge necessary?
• Modified alternatives analysis
• Step 2 If the discharge is necessary,
• has the applicant clearly demonstrated that the
  development it accommodates is important?

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SUGGESTIONS FOR STRUCTURE

• What about de minimis dischargers?
• Step 1 Is the discharge necessary?
• Modified alternatives analysis
• Step 2 If the discharge is necessary,
• has the applicant clearly demonstrated that the
  development it accommodates is important?

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SUGGESTIONS FOR STRUCTURE

• What about de minimis dischargers?
• Step 1 Is the discharge necessary?
• Modified alternatives analysis
• Step 2 If the discharge is necessary,
• applicant must accept DTBELs or other available
  default limits

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• thank you