Current through 2024-38, September 18, 2024
(a) Definition. The
term Requester means an Industrial User or a POTW or other interested person
seeking a variance from the limits specified in a categorical Pretreatment
Standard.
(b) Purpose and scope. In
establishing categorical Pretreatment Standards for existing sources, the EPA
will take into account all the information it can collect, develop and solicit
regarding the factors relevant to pretreatment standards under section 307(b)
of the Act. In some cases, information which may affect these Pretreatment
Standards will not be available or, for other reasons, will not be considered
during their development. As a result, it may be necessary on a case-by-case
basis to adjust the limits in categorical Pretreatment Standards, making them
either more or less stringent, as they apply to a certain Industrial User
within an industrial category or subcategory. This will only be done if data
specific to that Industrial User indicates it presents factors fundamentally
different from those considered by EPA in developing the limit at issue. Any
interested person believing that factors relating to an Industrial User are
fundamentally different from the factors considered during development of a
categorical Pretreatment Standard applicable to that User and further, that the
existence of those factors justifies a different discharge limit than specified
in the applicable categorical Pretreatment Standard, may request a
fundamentally different factors variance under this section or such a variance
request may be initiated by the EPA.
(c) Criteria--
(1) General criteria. A request for a
variance based upon fundamentally different factors shall be approved only if:
(i) There is an applicable categorical
Pretreatment Standard which specifically controls the pollutant for which
alternative limits have been requested; and
(ii) Factors relating to the discharge
controlled by the categorical Pretreatment Standard are fundamentally different
from the factors considered by EPA in establishing the Standards; and
(iii) The request for a variance is made in
accordance with the procedural requirements in paragraphs (g) and (h) of this
section.
(2) Criteria
applicable to less stringent limits. A variance request for the establishment
of limits less stringent than required by the Standard shall be approved only
if:
(i) The alternative limit requested is no
less stringent than justified by the fundamental difference;
(ii) The alternative limit will not result in
a violation of prohibitive discharge standards prescribed by or established
under Section 6;
(iii) The
alternative limit will not result in a non-water quality environmental impact
(including energy requirements) fundamentally more adverse than the impact
considered during development of the Pretreatment Standards; and
(iv) Compliance with the Standards (either by
using the technologies upon which the Standards are based or by using other
control alternatives) would result in either:
(A) A removal cost (adjusted for inflation)
wholly out of proportion to the removal cost considered during development of
the Standards; or
(B) A non-water
quality environmental impact (including energy requirements) fundamentally more
adverse than the impact considered during development of the
Standards.
(3) Criteria applicable to more stringent
limits. A variance request for the establishment of limits more stringent than
required by the Standards shall be approved only if:
(i) The alternative limit request is no more
stringent than justified by the fundamental difference; and
(ii) Compliance with the alternative limit
would not result in either:
(A) A removal
cost (adjusted for inflation) wholly out of proportion to the removal cost
considered during development of the Standards; or
(B) A non-water quality environmental impact
(including energy requirements) fundamentally more adverse than the impact
considered during development of the Standards.
(d) Factors considered
fundamentally different. Factors which may be considered fundamentally
different are:
(1) The nature or quality of
pollutants contained in the raw wasteload of the User's process
wastewater:
(2) The volume of the
User's process wastewater and effluent discharged;
(3) Non-water quality environmental impact of
control and treatment of the User's raw waste load;
(4) Energy requirements of the application of
control and treatment technology;
(5) Age, size, land availability, and
configuration as they relate to the User's equipment or facilities; processes
employed; process changes; and engineering aspects of the application of
control technology;
(6) Cost of
compliance with required control technology.
(e) Factors which will not be considered
fundamentally different. A variance request or portion of such a request under
this section may not be granted on any of the following grounds:
(1) The feasibility of installing the
required waste treatment equipment within the time the Act allows;
(2) The assertion that the Standards cannot
be achieved with the appropriate waste treatment facilities installed, if such
assertion is not based on factors listed in paragraph (d) of this
section;
(3) The User's ability to
pay for the required waste treatment; or
(4) The impact of a Discharge on the quality
of the POTW's receiving waters.
(f) State or local law. Nothing in this
section shall be construed to impair the right of any state or locality under
section 510 of the Act to impose more stringent limitations than required by
Federal law.
(g) Application
deadline.
(1) Requests for a variance and
supporting information must be submitted in writing to the Department or to the
Administrator (or his or her delegate), as appropriate.
(2) In order to be considered, a request for
a variance must be submitted no later than 180 days after the date on which a
categorical Pretreatment Standard is published in the Federal
Register.
(3) Where the User has
requested a categorical determination pursuant to Section 7(a), the User may
elect to await the results of the category determination before submitting a
variance request under this section. Where the User so elects, he or she must
submit the variance request within 30 days after a final decision has been made
on the categorical determination pursuant to Section7(a)(4).
(h) Contents submission. Written
submissions for variance requests, whether made to the Administrator (or his or
her delegate) or the Department, must include:
(1) The name and address of the person making
the request;
(2) Identification of
the interest of the Requester which is affected by the categorical Pretreatment
Standard for which the variance is requested;
(3) Identification of the POTW currently
receiving the waste from the Industrial User for which alternative discharge
limits are requested;
(4)
Identification of the categorical Pretreatment Standards which are applicable
to the Industrial User;
(5) A list
of each pollutant or pollutant parameter for which an alternative discharge
limit is sought;
(6) The
alternative discharge limits proposed by the Requester for each pollutant or
pollutant parameter identified in paragraph (h)(5) of this section;
(7) A description of the Industrial User's
existing water pollution control facilities;
(8) A schematic flow representation of the
Industrial User's water system including water supply, process wastewater
systems, and points of Discharge; and
(9) A Statement of facts clearly establishing
why the variance request should be approved, including detailed support data,
documentation, and evidence necessary to fully evaluate the merits of the
request, e.g., technical and economic data collected by the EPA and used in
developing each pollutant discharge limit in the Pretreatment
Standard.
(i) Deficient
requests. The Administrator (or his or her delegate) or the Department will
only act on written requests for variances that contain all of the information
required. Persons who have made incomplete submissions will be notified by the
Administrator (or his or her delegate) or the Department that their requests
are deficient and unless the time period is extended, will be given up to
thirty days to remedy the deficiency. If the deficiency is not corrected within
the time period allowed by the Administrator (or his or her delegate) or the
Department, the request for a variance shall be denied.
(j) Public notice. Upon receipt of a complete
request, the Administrator (or his or her delegate) or the Department will
provide notice of receipt, opportunity to review the submission, and
opportunity to comment, pursuant to the procedures in Chapters 2 and 522.
(1) The public notice shall be circulated in
a manner designed to inform interested and potentially interested persons of
the request. Procedures for the circulation of public notice shall include
mailing notices to:
(i) The POTW into which
the Industrial User requesting the variance discharges;
(ii) Adjoining States whose waters may be
affected; and
(iii) Designated 208
planning agencies, Federal and State fish, shellfish and wildlife resource
agencies; and to any other person or group who has requested individual notice,
including those on appropriate mailing lists.
(2) The public notice shall provide for a
period not less than 30 days following the date of the public notice during
which time interested persons may review the request and submit their written
views on the request.
(3) Following
the comment period, the Administrator (or his or her delegate) or the
Department will make a determination on the request taking into consideration
any comments received. Notice of this final decision shall be provided to the
requester (and the Industrial User for which the variance is requested if
different), the POTW into which the Industrial User discharges and all persons
who submitted comments on the request.
(k) Review of requests by state.
(1) Where the Department finds that
fundamentally different factors do not exist, it may deny the request and
notify the requester (and Industrial User where they are not the same) and the
POTW of the denial.
(2) Where the
Department finds that fundamentally different factors do exist, it shall
forward the request, with a recommendation that the request be approved, to the
Administrator (or his or her delegate).
(l) Review of requests by EPA.
(1) Where the Administrator (or his or her
delegate) finds that fundamentally different factors do not exist, he or she
shall deny the request for a variance and send a copy of his or her
determination to the Department, to the POTW, and to the requester (and to the
Industrial User, where they are not the same).
(2) Where the Administrator (or his or her
delegate) finds that fundamentally different factors do exist, and that a
partial or full variance is justified, he or she will approve the variance. In
approving the variance, the Administrator (or his or her delegate) will:
(i) Prepare recommended alternative discharge
limits for the Industrial User either more or less stringent than those
prescribed by the applicable categorical Pretreatment Standard to the extent
warranted by the demonstrated fundamentally different factors;
(ii) Provide the following information in his
or her written determination:
(A) The
recommended alternative discharge limits for the Industrial User
concerned;
(B) The rationale for
the adjustment of the Pretreatment Standard (including the reasons for
recommending that the variance be granted) and an explanation of how the
recommended alternative discharge limits were derived;
(C) The supporting evidence submitted to the
Administrator (or his or her delegate); and
(D) Other information considered by the
Administrator (or his or her delegate) in developing the recommended
alternative discharge limits;
(iii) Notify the Department and the POTW of
his or her determination; and
(iv)
Send the information described in paragraphs (l)(2) (i) and (ii) of this
section to the Requestor (and to the Industrial User where they are not the
same).
(m)
Request for hearing.
(1) Within 30 days
following the date of receipt of the notice of the decision of the
Administrator's delegate on a variance request, the requester or any other
interested person may submit a petition to the Regional Administrator for a
hearing to reconsider or contest the decision. If such a request is submitted
by a person other than the Industrial User the person shall simultaneously
serve a copy of the request on the Industrial User.
(2) If the Regional Administrator declines to
hold a hearing and the Regional Administrator affirms the findings of the
Administrator's delegate the requester may submit a petition for a hearing to
the Environmental Appeals Board (which is described in
40
CFR 1.25) within 30 days of the Regional
Administrator's decision.
