Idaho Administrative Code
Title IDAPA 58 - Environmental Quality, Department of
Rule 58.01.25 - RULES REGULATING THE IDAHO POLLUTANT DISCHARGE ELIMINATION SYSTEM PROGRAM
Section 58.01.25.310 - VARIANCES

Universal Citation: ID Admin Code 58.01.25.310

Current through August 31, 2023

01. Variance Requests by non-POTWs. (3-24-22)

a. A discharger which is not a POTW may request a variance from otherwise applicable effluent limitations under the following statutory or regulatory provisions, within the times specified in this subsection. (3-24-22)
i. A request for a variance based on the presence of fundamentally different factors from those on which the effluent limitations guideline was based must be filed as follows: (3-24-22)
(1) For a request from best practicable control technology currently available (BPT), by the close of the public comment period under Section 109 (Public Notification and Comment); or (3-24-22)

(2) For a request from best available technology economically achievable (BAT) and/or best conventional pollutant control technology (BCT), by no later than one hundred eighty (180) days after the date on which an effluent limitation guideline is published in the Federal Register for a request based on an effluent limitation guideline promulgated on or after February 4, 1987. (3-24-22)

ii. The request must explain how the requirements of the applicable regulatory and/or statutory criteria have been met. (3-24-22)

b. An applicant may request a variance for non-conventional pollutants under this section for the following: (3-24-22)
i. A variance from the BAT requirements for Clean Water Act section 301(b)(2)(F) pollutants (commonly called non-conventional pollutants) pursuant to the Clean Water Act section 301(c) because of the economic capability of the owner or operator; or (3-24-22)

ii. A variance pursuant to the Clean Water Act section 301(g) provided: (3-24-22)
(1) The variance may only be requested for ammonia; chlorine; color; iron; total phenols (4AAP), when determined by the EPA Administrator to be a pollutant covered by the Clean Water Act section 301(b)(2)(F); and (3-24-22)

(2) Any other pollutant which the EPA Administrator lists under the Clean Water Act section 301(g)(4). (3-24-22)

c. The request for variance as outlined in Subsection 310.01.b. must be made as follows: (3-24-22)
i. For those requests for a variance from an effluent limitation based upon an effluent limitation guideline, by submitting an initial request to the Department no later than two hundred seventy (270) days after promulgation of the applicable effluent limitation guideline followed by a completed request no later than the close of the public comment period under Section 109 (Public Notification and Comment). (3-24-22)
(1) The initial request to the Department must contain: (3-24-22)
(a) The name of the discharger; (3-24-22)

(b) The permit number; (3-24-22)

(c) The outfall number(s); (3-24-22)

(d) The applicable effluent guideline; and (3-24-22)

(e) Whether the discharger is requesting a Clean Water Act section 301(c) or section 301(g) modification or both. (3-24-22)

(2) The completed request must demonstrate that the applicable requirements of 40 CFR Part 125 have been met. Notwithstanding this provision, the complete application for a request under Clean Water Act section 301(g) must be filed one hundred eighty (180) days before the Department must make a decision (unless the Department establishes a shorter or longer period). (3-24-22)

ii. For those requests for a variance from effluent limitations not based on effluent limitation guidelines, the request need only comply with Subsection 310.01.c.i(2) and need not be preceded by an initial request under Subsection 310.01.c.i(1). (3-24-22)

d. A modification under the Clean Water Act section 302(b)(2) of requirements under the Clean Water Act section 302(a) for achieving water quality related effluent limitations may be requested no later than the close of the public comment period under Section 109 (Public Notification and Comment) on the permit from which the modification is sought. (3-24-22)

e. A variance under the Clean Water Act section 316(a) for the thermal component of any discharge must be filed with a timely application for a permit under Section 105 (Application for an Individual IPDES Permit), except that if thermal effluent limitations are established under the Clean Water Act section 402(a)(1) or are based on water quality standards, the request for a variance may be filed by the close of the public comment period under Section 109 (Public Notification and Comment). (3-24-22)

02. Variance Requests by POTWs. A discharger which is a POTW may request a variance from water quality based effluent limitations. A modification under the Clean Water Act section 302(b)(2) of the requirements under the Clean Water Act section 302(a) for achieving water quality based effluent limitations shall be requested no later than the close of the public comment period under Section 109 (Public Notification and Comment) on the permit from which the modification is sought. (3-24-22)

03. Permit Variance Decision Process. (3-24-22)

a. The Department may deny requests for variances. A variance that has been denied by the Department may be appealed according to the process identified in Section 204 (Appeals Process). (3-24-22)

b. The Department may grant (subject to EPA objection under Subsection 103.02 or 40 CFR 123.44 ): (3-24-22)
i. Variances for extensions under the Clean Water Act section 301(i) based on delay in completion of a POTW; (3-24-22)

ii. Variances after consultation with EPA, extensions under the Clean Water Act section 301(k) based on the use of innovative technology; (3-24-22)

iii. Variances under the Clean Water Act section 316(a) for thermal pollution; or (3-24-22)

iv. Variances from water quality standards under IDAPA 58.01.02.260, "Water Quality Rules." (3-24-22)

c. The Department may forward to EPA with or without a recommendation: (3-24-22)
i. A variance based on the economic capability of the applicant under the Clean Water Act section 301(c); or (3-24-22)

ii. A variance based on water quality related effluent limitations under the Clean Water Act section 302(b)(2). (3-24-22)

d. The Department may forward to EPA with a written concurrence: (3-24-22)
i. A variance based on the presence of fundamentally different factors from those on which an effluent limitations guideline was based (Clean Water Act section 301(n)) ; or (3-24-22)

ii. A variance based upon certain water quality factors under the Clean Water Act section 301(g). (3-24-22)

e. The EPA may grant or deny a request for a variance that is forwarded by the Department. If the EPA Administrator (or his delegate) approves the variance, the Department shall prepare a draft permit incorporating the variance. (3-24-22)

f. Any public notice of a draft permit for which a variance or modification has been approved or denied shall identify the applicable procedures for appealing that decision under Section 204 (Appeals Process). (3-24-22)

04. Expedited Variance Procedures and Time Extensions. (3-24-22)

a. Notwithstanding the time requirements in Subsections 310.01 and 310.02, the Department may notify a permit applicant before a draft permit is issued under Section 108 (Draft Permit and Fact Sheet) that the draft permit will likely contain limitations which are eligible for variances. (3-24-22)
i. In the notice, the Department may require the applicant, as a condition of consideration of any potential variance request, to submit a request explaining how the requirements of 40 CFR Part 125 , applicable to the variance, have been met and may require its submission within a specified reasonable time after receipt of the notice. (3-24-22)

ii. The Department may send the notice before the permit application has been submitted. The draft or final permit may contain the alternative limitations which may become effective upon final grant of the variance. (3-24-22)

b. A discharger who cannot file a timely complete request required under Subsections 310.01.c.i.(2) or 310.01.c.ii. may request an extension. (3-24-22)
i. The extension may be granted or denied at the discretion of the Department. (3-24-22)

ii. The extension shall be no more than six (6) months in duration. (3-24-22)

05. Special Procedures for Decisions on Thermal Variances. (3-24-22)

a. The only issues connected with issuance of a particular permit on which the Department will make a final decision before the final permit is issued, are whether alternative effluent limitations would be justified under the Clean Water Act section 316(a) or whether cooling water intake structures will use the best available technology under section 316(b). (3-24-22)
i. Permit applicants who wish an early decision on these issues should make a request to the Department, furnished with supporting reasons at the time their permit applications are filed. (3-24-22)

ii. The Department will then decide whether or not to make an early decision. If it is granted, both the early decision on Clean Water Act section 316(a) or (b) issues and the grant of the balance of the permit shall be: (3-24-22)
(1) Considered permit issuance under these regulations, and (3-24-22)

(2) Subject to the same requirements of public notice and comment and the same opportunity for an appeal. (3-24-22)

b. If the Department, on review of the administrative record, determines that the information necessary to decide whether or not the Clean Water Act section 316(a) issue is not likely to be available in time for a decision on permit issuance, the Department may issue a permit for a term up to five (5) years. (3-24-22)
i. The permit shall require achievement of the effluent limitations initially proposed for the thermal component of the discharge, no later than the date otherwise required by law. (3-24-22)

ii. However, the permit shall also afford the permittee an opportunity to file a demonstration under Clean Water Act section 316(a), after conducting such studies as are required under 40 CFR 125.70 through 125.73. (3-24-22)

iii. A new discharger may not exceed the thermal effluent limitation which is initially proposed unless and until its Clean Water Act section 316(a) variance request is finally approved. (3-24-22)

c. Any proceeding held under Subsection 310.05.a. shall be: (3-24-22)
i. Publicly noticed as required by Section 109 (Public Notification and Comment), and (3-24-22)

ii. Conducted at a time allowing the permittee to take necessary measures to meet the final compliance date in the event its request for modification of thermal limits is denied. (3-24-22)

d. Whenever the Department defers the decision under the Clean Water Act section 316(a), any decision under the Clean Water Act section 316(b) may be deferred. (3-24-22)

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