The Indiana Department of Environmental Management (IDEM) recently released its new Antidegradation Rule (Clean and Redlined), and advised stakeholders of its intent to request preliminary adoption of this new rule at the July 13, 2011 meeting of the Water Pollution Control Board.
As explained below, the proposed rule appears substantially different from earlier versions and, according to IDEM, stands to impact 14 industries, 35 coal mines, 6 pipeline companies, 3 sand and gravel, and 1 petroleum terminal based on 2009 data.
IDEM identified key changes from prior versions of the rule to include:
- Replacing the term "pollutant of concern" with "regulated pollutant". Antidegradation standards and implementation apply to regulated pollutants which are defined to explicitly include nutrients.
- Due to its unique and ubiquitous nature, mercury is specifically recognized in the antidegradation standards and addressed differently from other BCCs [bioaccumulative chemicals of concern].
- Most of the exemptions proposed in the second-noticed version of the rule are no longer exemptions, and require some level of an antidegradation demonstration (note: the exemption justification requirements were eliminated).
- Exemptions remain for de minimis discharges and discharges that result from changes in processes that do not result in a change in loading.
- De minimis is substantially simplified – 10% for both individual and cumulative impacts for all water bodies.
- The antidegradation demonstration requirements are different for different categories of discharges.
- The components of the antidegradation demonstration include:
1. providing basic information about the discharge;
2. showing that a discharge is necessary;
3. outlining treatment alternatives when a discharge is necessary; and,
4. indicating the social and economic benefit of discharges not already designated as beneficial.
- Some activities may only require the first two components of an antidegradation demonstration, while others may require all four.
IDEM submitted its fiscal impact analysis of the proposed Antidegradation Rule to the State Budget Agency/Office of Management and Budget for review on May 6, 2011. In its costs – benefits analysis, IDEM noted:
Based upon the 80 permit applications received in 2009 that might be required to consider antidegradation, a consulting cost of $100 per hour, and our estimate that a complex antidegradation process would require 160 professional hours, the annual cost to the regulated community to implement the rule would be up to $1,280,000. If the cost of professional services was $300 per hour, this estimate would increase to $3,840,000 per year. The Indiana Manufacturers Association has submitted public comments estimating the total annual cost to be between $3,034,200 and $9,920,000.
IDEM intends to hold a public meeting to explain changes to the rule before the July 13, 2011 Water Pollution Control Board Meeting. We will examine the new Antidegradation Rule in future blog posts.
For more information on IDEM's New Antidegradation Rule, please contact Bill Wagner or any member to Taft’s Environmental Practice Group.