Current through Register Vol. 56, No. 24, December 18, 2024
(a) Any
interested person believing that factors relating to an indirect user are
fundamentally different from the factors considered during development of a
categorical pretreatment standard applicable to that indirect user and 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.
1. 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;
ii. Factors relating to the discharge
controlled by the categorical pretreatment standard are fundamentally different
from the factors considered by USEPA in establishing the standards;
and
iii. The request for a variance
is made in accordance with the procedural requirements of (e) and (f)
below.
2. 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 any prohibition established
under N.J.A.C.
7:14A-21.2(a)1;
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:
(1) A removal cost (adjusted for
inflation) wholly out of proportion to the removal cost considered during
development of the standards; or
(2) A non-water quality environmental impact
(including energy requirements) fundamentally more adverse than the impact
considered during development of the standards.
3. 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:
(1) A removal
cost (adjusted for inflation) wholly out of proportion to the removal cost
considered during development of the standards; or
(2) A non-water quality environmental impact
(including energy requirements) fundamentally more adverse than the impact
considered during development of the standards.
(b) Factors which may be
considered fundamentally different are:
1. The
nature or quality of pollutants contained in the raw waste load of the indirect
user's process wastewater;
2. The
volume of the indirect user's process wastewater and effluent
discharged;
3. The non-water
quality environmental impact of control and treatment of the indirect user's
raw waste load;
4. The energy
requirements of the application of control and treatment technology;
5. The age, size, land availability, and
configuration as they relate to the indirect user's equipment or facilities,
processes employed, process changes, and engineering aspects of the application
of control technology; and
6. The
cost of compliance with required control technology.
(c) A variance request or portion of such a
request under this section shall 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 (b) above;
3. The indirect user's ability to pay for the
required waste treatment; or
4. The
impact of a discharge on the quality of the local agency's receiving
waters.
(d) Nothing in
this section shall be construed to impair the right of any local agency to
impose more stringent limitations than required by Federal law.
(e) Requests for a variance and supporting
information shall be submitted in writing to the Department no later than 180
days after the date on which a categorical pretreatment standard is published
in the Federal Register for a request based on a categorical pretreatment
standard promulgated on or after February 4, 1987.
1. Where the indirect user has requested a
categorical determination pursuant to
N.J.A.C.
7:14A-21.3(a), the indirect
user may elect to await the results of the categorical determination before
submitting a variance request under this section. Where the indirect 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.
(f) Written variance requests shall 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 local agency
currently receiving the waste from the indirect user for which alternative
discharge limits are requested;
4.
Identification of the categorical pretreatment standards which are applicable
to the indirect 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 pursuant to (f)5 above;
7. A description of the indirect user's
existing water pollution control facilities;
8. A schematic flow representation of the
indirect 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 USEPA and used in
developing each pollutant discharge limit in the pretreatment
standard.
(g) The
Department shall act only on written requests for variances that contain all of
the information required pursuant to (f) above. Persons who have made
incomplete submissions will be notified by the Department that their requests
are deficient and unless the time period is extended, will be given up to 30
days to remedy the deficiency. If the deficiency is not corrected within the
time period allowed by the Department, the request for a variance shall be
denied.
(h) Upon receipt of a
complete request, the Department shall provide public notice of receipt,
opportunity to review the submission, and opportunity to comment.
1. The public notice shall be published in a
manner designed to inform interested and potentially interested persons of the
request and shall include mailing notices to:
i. The local agency into whose treatment
works the indirect user requesting the variance discharges;
ii. Adjoining states whose waters may be
affected;
iii. Agencies responsible
for areawide Water Quality Management Plan, Federal and State fish, shellfish
and wildlife resource agencies; and
iv. 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 written comments on the request.
3. Following the comment period, 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 indirect user for which the variance is requested, if
different, the local agency into whose treatment works the indirect user
discharges and all persons who submitted comments on the request.
(i)Review of requests by the
Department is as follows:
1. Where the
Department finds that fundamentally different factors do not exist, it shall
deny the request and notify the requester (and indirect user where they are not
the same) and the local agency 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 USEPA Administrator.
(Review of the variance request by USEPA is governed by 40 CFR Part 403.13(l)
).
(j) Requests for an
adjudicatory hearing shall be as follows:
1.
If the Department denies the variance request, the requester may request an
adjudicatory hearing pursuant to N.J.A.C. 7:14A-17.
2. If USEPA denies the variance request, the
requester may seek relief pursuant to 40 CFR Part 403.13(m).
