Current through Register Vol. 46, No. 39, September 25, 2024
(a) The department
may grant, to an applicant for a SPDES permit or to a SPDES permittee, a
variance to a water quality-based effluent limitation or groundwater effluent
limitation included in a SPDES permit.
(1) A
variance applies only to the permittee identified in such variance and only to
the pollutant specified in the variance. A variance does not affect or require
the department to modify a corresponding standard or guidance value. A variance
does not affect or require the department to modify a corresponding groundwater
effluent limitation for the groundwater as a whole.
(2) A variance shall not apply to a new or
recommencing discharger in the Great Lakes System unless the proposed discharge
is a temporary one that is necessary to alleviate an imminent and substantial
danger to the public health or the environment that is greater than the danger
from not achieving the standard or guidance value. For the purpose of this
Part, an imminent and substantial danger to the public health or the
environment shall include, but not be limited to, a significant threat to the
environment as defined in Part 375 of this Title.
(3) A variance shall not be granted that
would likely jeopardize the continued existence of any endangered or threatened
species or result in the destruction or adverse modification of such species'
critical habitat.
(4) A variance
shall not be granted if standards or guidance values will be attained by
implementing effluent limits required under section
750-1.11(a)
of this Title and by the permittee implementing cost-effective and reasonable
best management practices for nonpoint source control.
(5) A variance term shall not exceed the term
of the SPDES permit. Where the term of the variance is the same as the permit,
the variance shall stay in effect until the permit is reissued, modified or
revoked.
(b) A variance
may be granted if the requester demonstrates that achieving the effluent
limitation is not feasible because:
(1)
naturally occurring pollutant concentrations prevent attainment of the standard
or guidance value;
(2) natural,
ephemeral, intermittent or low flow conditions or water levels prevent
attainment, unless these conditions may be compensated for by the discharge of
sufficient volume of effluent to enable the standard or guidance value to be
met without violating water conservation requirements;
(3) human-caused conditions or sources of
pollution prevent attainment of the standard or guidance value and cannot be
remedied or would cause more environmental damage to correct than to leave in
place;
(4) dams, diversions or
other types of hydrologic modifications preclude attainment of the standard or
guidance value, and it is not feasible to restore the waterbody to its original
condition or to operate such modification in a way that would result in such
attainment;
(5) physical conditions
related to the natural features of the waterbody, such as the lack of a proper
substrate cover, flow, depth, pools, riffles, and the like, unrelated to
chemical water quality, preclude attainment of the standard or guidance value;
or
(6) controls more stringent than
those required by section
750-1.11(a)
of this Title would result in substantial and widespread economic and social
impact.
(c) In addition
to the requirements of subdivision (b) of this section, the requestor shall
also characterize, using adequate and sufficient data and principles, any
increased risk to human health and the environment associated with granting the
variance compared with attainment of the standard or guidance value absent the
variance, and demonstrate to the satisfaction of the department that the risk
will not adversely affect the public health, safety and welfare.
(d) The requestor shall submit a written
application for a variance to the department. The application shall include:
(1) all relevant information demonstrating
that achieving the effluent limitation is not feasible based on subdivision (b)
of this section; and
(2) all
relevant information demonstrating compliance with the conditions in
subdivision (c) of this section.
(e) Where a request for a variance satisfies
the requirements of this section, the department shall authorize the variance
through the SPDES permit. The variance request shall be available to the public
for review during the public notice period for the permit. The permit shall
contain all conditions needed to implement the variance. Such conditions shall,
at minimum, include:
(1) compliance with an
initial effluent limitation that, at the time the variance is granted,
represents the level currently achievable by the requestor, and that is no less
stringent than that achieved under the previous permit where
applicable;
(2) that reasonable
progress be made toward achieving the effluent limitation based on the standard
or guidance value, including, where reasonable, an effluent limitation more
stringent than the initial effluent limitation;
(3) additional monitoring, biological studies
and pollutant minimization measures as deemed necessary by the
department;
(4) when the duration
of a variance is shorter than the duration of a permit, compliance with an
effluent limitation sufficient to meet the underlying standard or guidance
value, upon the expiration of the variance; and
(5) a provision that allows the department to
reopen and modify the permit for revisions to the variance.
(f) The department shall deny a
variance request if the requestor fails to make the demonstrations required
under subdivisions (b) and (c) of this section.
(g) A variance may be renewed, subject to the
requirements of this section. As part of any renewal application, the permittee
shall again demonstrate that achieving the effluent limitation is not feasible
based on the requirements of this section. The permittee's application shall
also contain information concerning its compliance with the conditions
incorporated into its permit as part of the original variance pursuant to
subdivisions (b) and (c) of this section. Renewal of a variance may be denied
if the permittee did not comply with the conditions of the original
variance.
(h) Where the department
determines that a multiple discharge variance is necessary to address
widespread standard or guidance value attainment issues including the presence
of a ubiquitous pollutant or naturally high levels of a pollutant in a
watershed, the department, in lieu of the discharger, may conduct the variance
demonstration requirements in subdivisions (b) and (c) of this section. Any
permittee accepting such variance shall be subject to the provisions of
subdivision (e) of this section.
(i) The department will make available to the
public a list of every variance that has been granted and that remains in
effect.
