R 323.1098 Antidegradation.

(Effective December 13, 1973; revised December 2, 1986; July 29, 1997; and April 2, 1999)

  Rule 98.  (1)  This rule applies to any action or activity pursuant to part 31 of Act No. 451 of the Public Acts of 1994, as amended, being §324.3101 et seq. of the Michigan Compiled Laws, that is anticipated to result in a new or increased loading of pollutants by any source to surface waters of the state and for which independent regulatory authority exists requiring compliance with water quality standards.

  (2)  For all waters, the level of water quality necessary to protect existing uses shall be maintained and protected.  Where designated uses of the water body are not attained, there shall be no lowering of the water quality with respect to the pollutant or pollutants that are causing the nonattainment.

  (3)  Where, for individual pollutants, the quality of the waters is better than the water quality standards prescribed by these rules, that water shall be considered high quality and that quality shall be maintained and protected unless allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located.  For high quality waters, no action resulting in the lowering of water quality shall occur unless the provisions of this rule have been complied with.

  (4)  A person applying for a control document in a high quality water or a Lake Superior basin - outstanding international resource water for a new or increased loading of pollutants shall show how the discharge is exempted under subrule (8) or (9) of this rule or provide a demonstration as follows:

  (a)  The applicant shall identify the social or economic development and the benefits to the area in which the waters are located that would be foregone if the new or increased loading of pollutants is not allowed.  The factors to be addressed may include any of the following:

  (i)  Employment increases.

  (ii)  Production level increases.

  (iii)  Employment reductions avoidance.

  (iv)  Efficiency increases.

  (v)  Industrial, commercial, or residential growth.

  (vi)  Environmental or public health problem corrections.

  (vii)  Economic or social benefits to the community.

  (b) For discharges of BCCs that result from operations at the facility, the applicant shall include an identification of the alternatives evaluated and the alternatives to be implemented to comply with the following requirements:

  (i)  The discharger shall minimize the new or increased loading of the BCC by implementation of any cost-effective pollution prevention alternatives and techniques which have been adequately demonstrated and which are reasonably available to the discharger that would eliminate or significantly reduce the new or increased loading of the BCC.

  (ii)  If pollution prevention alternatives implemented under paragraph (i) of this subdivision do not eliminate the new or increased loading of the BCC, then the discharger shall evaluate alternative or enhanced treatment techniques which have been adequately demonstrated and which are reasonably available to the discharger that would eliminate the new or increased loading of the BCC and shall implement the techniques that have a cost that is reasonable relative to the cost of treatment necessary to achieve applicable effluent limitations.

  (iii)  If the new or increased loading is a point source discharge to a Lake Superior basin-outstanding international resource water as defined in subrule (7) of this rule and if the BCC of concern is a LSB-BSIC, then the requirements of paragraph (ii) of this subdivision do not apply.  If the pollution prevention alternatives implemented under paragraph (i) of this subdivision do not eliminate the new or increased loading of the LSB-BSIC to a Lake Superior basin-outstanding international resource water, then the discharger shall evaluate and implement the best technology in process and treatment (BTPT) that would eliminate or reduce the new or increased loading of the LSB-BSIC.  BTPT shall be the most advanced treatment techniques which have been adequately demonstrated and which are reasonably available to the discharger.  However, innovative or experimental technology shall also be considered if proposed by the discharger.  Upon demonstration by the permittee, the requirement to implement BTPT may be waived by the department for new or increased loadings of LSB-BSICs that occur as trace contaminants in naturally occurring raw materials at the facility.  If the BTPT requirement is waived, then the requirements of paragraph (ii) of this subdivision shall apply.

  (5)  If the department determines that the antidegradation demonstration information from subrule (4) of this rule shows that lowering of water quality is necessary to support important social and economic development in the area and that, if applicable, BTPT will be implemented consistent with subrule (4)(b)(iii) of this rule, then the department shall authorize the lowering of water quality through issuance of the control document.  In no event may this decision allow water quality to be lowered below the minimum level required to fully support the designated uses.  The antidegradation demonstration shall be available to the public for review during any public comment period on the control document.

  (6)  If high quality water bodies are designated outstanding state resource waters (OSRW) by the department, then controls shall be applied on pollutant sources to the OSRW or tributaries so that the water quality is not lowered in the OSRW.  A short-term, temporary, for example, weeks or months, lowering of water quality in the OSRW may be permitted by the department on a case-by-case basis.  The following water bodies are designated as OSRWs:

  (a)  The following water bodies designated as wild rivers pursuant to the Michigan scenic rivers act of 1991, 16 U.S.C. §1271 et seq:

  (i)  The Carp river (Mackinac county) - the 7.5-mile segment from Michigan state highway 123, T42N, R5W, section 2, to 1/4 of a mile upstream from forest development road 3119, T42N, R4W, section 4.

  (ii)  The Carp river (Mackinac county) - the 4.9-mile segment from 1/4 of a mile downstream of forest development road 3119, T42N, R4W, section 3, to McDonald rapids.

  (iii)  The east branch of the Ontonagon river (Houghton and Ontonagon counties) - the 25.5-mile segment from the east branch of the Ontonagon river's confluence with an unnamed stream in T48N, R37W, section 30, to the Ottawa national forest boundary, T50W, R38W, section 33.

  (iv)  The middle branch of the Ontonagon river (Ontonagon county) - the 17.4-mile segment from Trout creek, T48N, R38W, section 20,  to the northern boundary of the Ottawa national forest, T50N, R39W, section 12.

  (v)  The Sturgeon river (Baraga and Houghton counties) - the 16.5-mile segment from the Sturgeon river's entry into the Ottawa national forest, T48N, R35W, section 12, to Prickett lake.

  (vi)  The east branch of the Tahquamenon river (Chippewa county) - the 3.2-mile segment from the center of T46N, R6W, section 20, to the boundary of the Hiawatha national forest, T46N, R6W, section 19.

  (vii)  The Yellow Dog river (Marquette county) - the 4-mile segment from the Yellow Dog river's origin at the outlet of Bulldog lake dam, T50N, R29W, section 31, to the boundary of the Ottawa national forest, T50N, R29W, section 17.

  (b)  The main, north, south, east, and west branches of the Two-Hearted river and Dawson creek from their headwaters to the mouth of the river at Lake Superior, which are designated as wilderness rivers pursuant to part 305 of Act No. 451 of the Public Acts of 1994, as amended, being §324.30501 et seq. of the Michigan Compiled Laws.

  (c)  Water bodies within the designated boundaries of the following national parks or national lakeshores:

  (i)  Sleeping bear dunes national lakeshore.

  (ii)  Pictured rocks national lakeshore.

  (iii)  Isle royale national park.

  (7)  All surface waters of the Lake Superior basin that are not identified as OSRWs are designated as Lake Superior basin - outstanding international resource waters (LSB-OIRW).  Under the LSB-OIRW designation, new or increased loadings of any LSB-BSIC from point sources to the surface waters of the Lake Superior basin are prohibited unless the new or increased loading of a LSB-BSIC is consistent with the requirements of this rule.

  (8)  Except for water bodies designated as OSRWs, or as the department may determine on a case-by-case basis that the application of the procedures in this rule are required to adequately protect water quality, the following do not constitute a lowering of water quality.

  (a)  The short-term, temporary, for example, weeks or months, lowering of water quality.

  (b)  Bypasses that are not prohibited by regulations set forth in 40 C.F.R. §122.41(m) (1995).

  (c)  Response actions undertaken to alleviate a release into the environment of pollutants that may pose an imminent and substantial danger to the public health or welfare under any of the following:

  (i)  The comprehensive environmental response, compensation and liability act of 1980, (CERCLA), as amended, 42 U.S.C. §9601 et seq.

  (ii)  The resource conservation and resource recovery act of 1976, as amended, 42 U.S.C. §6901 et seq.

  (iii)  Part 201 of Act No. 451 of the Public Acts of 1994, as amended, being §§324.20101 to 324.20141 of the Michigan Compiled Laws.

  (iv)  Part 213 of Act No. 451 of the Public Acts of 1994, as amended, being §§324.21301 to 324.21331 of the Michigan Compiled Laws.

  (v)  Part 31 of Act No. 451 of the Public Acts of 1994, as amended, being §§324.3101 to 324.3119 of the Michigan Compiled Laws.

  (d)  Discharges of pollutant quantities from the intake water at a facility proposing a new or increased loading of a pollutant, if the intake and discharge are on the same body of water.

  (e)  Increasing the sewered area, connecting new sewers and customers, or accepting trucked-in wastes, such as septage and holding tank wastes, by a publicly owned treatment works, if the increase is within the design flow of the facility, there is no increased loading due to nondomestic wastes from a significant industrial user for BCCs that are not specifically limited in the current permit, and there is no significant change expected in the characteristics of the wastewater collected.

  (f)  Intermittent increased loadings related to wet-weather conditions.

  (g)  New or increased loadings due to implementation of department-approved industrial or municipal controls on wet-weather related flows, including combined sewer overflows and industrial storm water.

  (h)  New or increased loadings authorized by certificates of coverage under NPDES general permits and notices of coverage for storm water from construction activities. 

  (i)  Increased non-BCC loadings within the authorized levels of a limit in an existing control document.

  (j)  Increased BCC loadings within the authorized levels of a limit in an existing control document, except for those BCC loadings that result from actions by the permittee that would otherwise require submittal of an increased use request.

  (k)  New or increased loadings at a site where there is a simultaneous enforceable decrease in the allowed loading of the pollutant under consideration from sources contributing to the receiving water body, such that there is no net increase in the loading of the pollutant to the water body at that site consistent with trading rules established by the department.

  (9)  Except for water bodies designated as OSRWs, the following do not constitute a lowering of water quality:

  (a)  Increased loadings within the existing capacity and processes that are covered by the existing applicable control document, including the following:

  (i)  Normal operational variability.

  (ii)  Changes in intake water pollutants.

  (iii)  Increasing the production hours of the facility, for example, adding a second shift.

  (iv)  Increasing the rate of production.

  (b)  Changes in a control document that are not a result of changes in pollutant loading, but are the result of any of the following:

  (i)  Improved monitoring data.

  (ii)  New or improved analytical methods or sensitivity.

  (iii)  New or modified water quality values.

  (c)  Increased loadings of a pollutant which do not involve a BCC and which use less than 10% of the unused loading capacity that exists at the time of the request.