Public Hearing Notice – NPDES General Permit Changes

The Environmental Rules Board (ERB) will hold a public hearing through Zoom on amendments to 327 IAC 5 and 327 IAC 15 concerning National Pollutant Discharge Elimination System general permits. The meeting is scheduled for September 9, 2020, at 1:30 p.m.

Link to notice of Public Hearing.

The purpose and subject matter of this rulemaking are to change the method of issuance of general permits from the current permit by rule process to administratively issued permits.

The purpose of the meeting is to provide for public comment prior to the final adoption of the revisions to 327 IAC 5 and 327 IAC 15. Article 5 is Industrial Wastewater Pretreatment Programs and NPDES. Article 5 NPDES General Permit Rule Program.

Link to the proposed draft.

ICI has participated in IDEM meetings concerning the proposed revisions. Please contact Dan Osborn with questions.

Review Board to Cover Portland Cement Monitoring

The Indiana Department of Environmental Management (IDEM) has proposed an amendment to Indiana Administrative Code (IAC) 326 IAC 3-5-1(b)(5) concerning the requirement for Portland cement plant kilns and clinker coolers to monitor opacity. ICI published a IDEM’s notice in the December 12, 2018 ICI newsletter. The Environmental Review Board plans to hold a hearing and vote on the preliminary draft rule during the February 13, 2019 Board meeting (meeting agenda).

The Board meeting will be held on Wednesday, February 13, 2019, 1:30 p.m. at the Indiana Government Center South in Conference Room A. The public entrance is located at 10 North Senate Avenue (access from W. Washington Street).

EPA Considers Permitting Discharges to Groundwater Under the Clean Water Act

Source: AGC of America Environmental Observer – March 30, 2018

AGC Seeks Input from Members on Potential Impact to Their Operations

The U.S. Environmental Protection Agency (EPA) is accepting public comment until May 21 on several topics related to the question of whether the federal government should use the Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) program to regulate discharges to (or through) groundwater that hydrologically connects to a “Water of the United States” (WOTUS). AGC is seeking more information from members on how this EPA action may impact contractors that own/operate stormwater infrastructure that “treats” or “stores” water runoff. This would include features that infiltrate stormwater or process water underground such as injection wells, underground tanks, surface water impoundments, retention or detention ponds, artificially constructed wetlands, treatment lagoons, or groundwater recharge and reuse systems.

EPA’s Federal Register notice points out that the courts have approached the question in varying ways. Over the years, and in varied settings, EPA has stated that such pollutant discharges may be subject to CWA requirements. But in the absence of clear and consistent nationwide requirements, the agency has made fact-specific, case-by-case determinations.

Some AGC members report that they use underground storage to allow incoming stormwater runoff to exfiltrate into underlying soils. Under current federal law, if an infiltration best management practice (BMP) is deeper than its widest surface dimension, or has a subsurface fluid distribution system, then it will likely be considered a Class V stormwater drainage well that is regulated under EPA’s Underground Injection Control (UIC) program at 40 CFR Parts 144 – 147, required by the Safe Drinking Water Act. See the AGC “Discussion DRAFT” document that summarizes the minimum federal requirements and the relevant language in EPA’s federal NPDES Construction General Permit. What EPA is wrestling with now is whether the agency should also apply the CWA NPDES permit program to discharges to groundwater where there is a direct hydrologic connection to jurisdictional water. EPA has asked for feedback on which connections are considered “direct,” recognizing the uncertainties associated with that term.

AGC Member Input NEEDED

Through public input, AGC and its members have an opportunity to inform a potential future federal regulatory action. Comments are due to EPA by May 21, 2018. Please respond to Leah Pilconis at pilconisl@agc.org by April 21.

  1. How would your company be impacted if EPA were to assert CWA jurisdiction over releases to groundwater?
  2. If EPA has the authority to subject such releases to CWA NPDES permitting, are they already addressed adequately through existing state statutory or regulatory programs or through other existing federal regulations and permit programs?

Background: Recent Ninth Circuit Decision

This EPA action stems from the U.S. Court of Appeals for the Ninth Circuit’s recent opinion in Hawaii Wildlife Fund v. County of Maui (County). The court concluded that the County’s underground injection control wells are “point sources” that “discharged” pollutants into groundwater that acted as an unconfined pathway that eventually reached the Pacific Ocean—a “navigable water” (881 F.3d 754 (9th Cir. 2018, 2/1/2018)). The wells therefore required NPDES permit coverage, per the Clean Water Act. The court based its decision on the “conduit theory” that unconfined groundwater can act as a point source if it conveys pollutants from a point source into a navigable “water of the United States” (WOTUS). Specifically, the court held that (1) the County discharged pollutants from a point source; (2) the pollutants are “fairly traceable” from the point source to a navigable water such that the discharge is the “functional equivalent” of a discharge to navigable waters; (3) the pollutant levels reaching the navigable water are more than de minimis. Read the full opinion here.

Please direct your comments and any questions to Leah Pilconis at pilconisl@agc.org or (703) 837-5332.

Upcoming INDOT NEPA and CE Training

Source: Indiana Department of Transportation

National Environmental Policy Act Initial Training (Requires Online and In-Person Participation)
(Dates: April 13, 2018 through May 15, 2018)

Participants in this class will receive detailed instruction covering environmental considerations required under the National Environmental Policy Act (NEPA) of 1969. Participants will also learn about various policies on work done for INDOT and FHWA. Upon completion of the course participants will be certified in the INDOT NEPA project development process. This course is one of the requirements to be prequalified for environmental work for INDOT projects.

The NEPA Initial Training contains two elements:

  • Online Course: The NEPA Initial Online Course predominately covers NEPA laws and regulations along with providing background information on the NEPA process.  The Online Course is through INDOT University and is self-paced.   All Online Course modules must be completed in advance of the NEPA Initial In-Person Course.  The Online Course is anticipated to take anywhere from 12-28 hours to complete and will begin on April 13, 2018.  Participants will need to complete all modules by May 13, 2018 in advance of the NEPA Initial In-Person Course on May 15, 2018.
  • In-Person Course:  The NEPA Initial In-Person Course is instructor lead and will focus on topics covered in the Online Course.   The course will provide additional information, examples, case studies, class exercises, and discussion questions.  The course will be at the Indiana Government Center South, Conference Rooms 1&2, 402 W. Washington Street, Indianapolis, IN 46204 on May 15, 2018 from 8:00am to 4:00pm (Eastern).

Completion of both the Online Course and In-Person Course is required for participants to become eligible for the final NEPA Certificate of Completion. Eligibility is determined by the Environmental Policy Office, which will notify approved participants how to access the final certificate. If interested in attending, please contact Shirley Clark at sclark@indot.in.gov.  Please provide your name, agency/organization, mailing address, phone, and e-mail. You will receive an e-mail regarding the registration process after contacting Ms. Clark.

Seat limit for the training is set at 50.  A fee of $300 for consultants for the NEPA Initial Training is required.  State, Federal, and Local government employees are not charged for this course.

Categorical Exclusion (CE) Training (Requires Online and In-Person Participation)
(Dates: April 13, 2018 through May 16, 2018)

Participants in this course will receive detailed instruction on the preparation of Categorical Exclusions (CE) for INDOT. Participants will also learn about various policies covering work done for INDOT and FHWA. This course is one of the requirements to be prequalified to prepare Categorical Exclusions for INDOT. Upon completion of the course, participants will be certified in the INDOT CE process.

The CE Training contains two elements:

  • Online Course: The CE Online Course predominately covers the content and preparation of CE documents.  The Online Course is through INDOT University and is self-paced.   All Online Course modules must be completed in advance of the CE In-Person Course.  The Online Course is anticipated to take anywhere from 4-6 hours to complete and will begin on April 13, 2018.  Participants will need to complete all modules by May 13, 2018 in advance of the CE In-Person Course on May 16, 2018.
  • In-Person Course:  The CE In-Person Course is instructor lead and will focus on topics covered in the Online Course.   The course will provide additional information, examples, class exercises, and discussion questions.  The course will be at the Indiana Government Center South, Conference Rooms 1&2, 402 W. Washington Street, Indianapolis, IN 46204 on May 16, 2018 from 8:00am to 4:00pm (Eastern).

Completion of both the Online Course and In-Person Course is required for participants to become eligible for the final CE Certificate of Completion. Eligibility is determined by the Environmental Policy Office, which will notify approved participants how to access the final certificate. If interested in attending, please contact Shirley Clark at sclark@indot.in.gov.  Please provide your name, agency/organization, mailing address, phone, and e-mail. You will receive an e-mail regarding the registration process after contacting Ms. Clark.

Seat limit for these trainings is set at 50.  A fee of $75 for consultants for the CE Training is required.  State, Federal, and Local government employees are not charged for this course.