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)