Water QualityLTCP CSO Conference

1
Water Quality/LTCP CSO Conference

• Indiana Approach for Doing UAAs for CSOs
• Fred Andes, Barnes Thornburg LLP
• June 2, 2006

2
Main Purposes of SEA 620

• Provide clear path for CSO communities to obtain
  relief, when appropriate, from requirement that
  CSO discharges meet current bacterial water
  quality standards
• While CSO communities are implementing Long-Term
  Control Plans, provide maximum amount of legal
  protection against liability for discharges that
  exceed standards during and after rain events

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Establishment of CSO Wet Weather Subcategory

• WPCB Sec. 4 of SEA 620 created CSO Wet Weather
  Limited Use (CSO-WW) subcategory of designated
  use, subject to EPA approval
• IDEM will submit new subcategory to EPA Region 5
  for approval
• WPCB to adopt rules for implementation of new
  designated use subcategory
• Impact of subcategory during and for up to 4
  days after rain events, regular recreational use
  will not apply requirements that will apply are
  those that were contained in approved LTCP

4
Approval of CSO Wet Weather Subcategory for
Specific Waterbodies

• City prepares LTCP based on CSO-WW subcategory,
  if appropriate
• City prepares draft Use Attainability Analysis
  (UAA) for CSO-WW subcategory
• City specifies CSO controls and implementation
  schedule as warranted under CSO-WW
• - In most cases, the level of CSO controls
  specified under the LTCP will be determined under
  the substantial/widespread social and economic
  impact criterion of the UAA process

5
Approval of CSO-WW Subcategory for Specific
Waterbodies (Contd.)

• IDEM reviews LTCP and draft UAA
• If IDEM concurs, IDEM initiates rulemaking and
  holds public hearing on proposed WQS revision to
  apply CSO-WW subcategory to receiving water
• IDEM could concurrently conduct public hearing on
  proposal to approve LTCP based on CSO-WW and a
  draft permit modification to incorporate LTCP

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Approval of CSO-WW Subcategory for Specific
Waterbodies (Contd.)

• At any time after its concurrence with the draft
  UAA, IDEM could conditionally approve LTCP based
  on proposed CSO-WW subject to ultimate EPA
  approval of the WQS revision
• If WPCB concludes CSO-WW is appropriate for
  receiving waters, WPCB approves WQS revision
• If WPCB approves WQS revision, IDEM submits the
  CSO-WW WQS revision and UAA to EPA for approval

7
Approval of CSO-WW Subcategory for Specific
Waterbodies (Contd.)

• If EPA approves the WQS revision, it will be
  approved for application to the Citys receiving
  waters
• The CSO-WW subcategory will not actually apply to
  the Citys receiving waters until implementation
  of the LTCP is completed, resulting in a time gap
  between approval and application of the CSO-WW

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Compliance Schedules - History

• Before SEA 431, longest compliance schedule
  possible was 5 years in Great Lakes Basin and 3
  years outside Basin
• 431 contained provision regarding longer
  schedules during approval of LTCP
• IDEM and CSO community differed on how 431
  language should be applied, resulting in permit
  appeals

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Compliance Schedules - 620

• 620 sought to clarify appropriate use of
  compliance schedules for CSO controls
• Allows schedule for time period during which LTCP
  is developed, approved and implemented
• Schedule is incorporated into permit
• Schedule can last longer than one permit term,
  but no longer than time required to implement
  approved LTCP

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Use of Compliance Schedules

• WPCB is required to adopt rules to implement
  inclusion of compliance schedules in permits, but
  IDEM does not need to wait for those rules before
  putting long-term schedules in permits

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Other 620 Provisions

• Variances before 620, a variance could be
  extended only once now, can be extended more
  than once
• To get variance, discharger must do a Pollutant
  Minimization Plan for CSOs, that means that you
  have prepared an LTCP and are implementing 9
  minimum controls
• Orders IDEM given authority to seek judicially
  enforceable order to compel implementation of an
  approved LTCP

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Key Issues

• Existing Uses
• Michigan Approach as Alternative to UAA
• Application of Narrative Criteria
• Which UAA Test to Use?
• Application of Substantial and Widespread Social
  and Economic Impact UAA Test
• Stakeholder Participation Process
• SEA 234 - Process for Adoption of
  Waterbody-Specific UAA-Based Standards Revisions