Current through Register Vol. 63, No. 3, March 1, 2024
(1) Applicability.
Subject to the requirements and limitations set out in sections (2) through (7)
below, DEQ or the EQC may grant a water quality standards variance where the
discharger or DEQ demonstrates that it is not feasible to attain the designated
use and criterion during the term of the variance because of one of the factors
listed in subsection (2)(a) of this rule. The director may grant an individual
discharger variance and the commission may grant a multiple discharger variance
or a water body variance. All water quality standards variances are subject to
EPA approval. The variance may be used only for the purpose of establishing
NPDES permit limits and requirements under CWA Section 301(b)(1)(C) or for
issuing certifications under CWA Section 401. The underlying designated use and
criterion otherwise remains in effect.
(2) Conditions to Grant a Variance. Before
the EQC or DEQ may grant a variance, it must determine that:
(a) Attaining the designated use and
criterion during the term of the variance is not feasible for one or more of
the following reasons:
(A) Naturally
occurring pollutant concentrations prevent attaining the use;
(B) Natural, ephemeral, intermittent, or low
flow conditions, or water levels prevent attaining the use, unless these
conditions may be compensated for by discharging sufficient volume of effluent
discharges to enable uses to be met without violating state water conservation
requirements;
(C) Human-caused
conditions or sources of pollution prevent attaining the use and cannot be
remedied or would cause more environmental damage to correct than to leave in
place;
(D) Dams, diversions, or
other types of hydrologic modifications preclude attaining the use, and it is
not feasible to restore the waterbody to its original condition or to operate
such modification in a way which would result in the attainment of the
use;
(E) 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 water
quality preclude attaining aquatic life protection uses;
(F) Controls more stringent than those
required by sections 301(b) and 306 of the federal Clean Water Act would result
in substantial and widespread economic and social impact; or
(G) Actions necessary to facilitate lake,
wetland, or stream restoration through dam removal or other significant
reconfiguration activities preclude attainment of the designated use and
criterion while the actions are being implemented;
(b) The effluent limit sufficient to meet the
underlying designated use and criterion cannot be attained by implementing
technology-based effluent limits required under sections 301(b) and 306 of the
federal Clean Water Act.
(c) The
requirements that apply throughout the term of the water quality standards
variance will not result in lowering the currently attained ambient water
quality, unless the variance is needed for restoration activities as specified
in paragraph(2)(a)(G) of this rule.
(3) Variance Duration and Re-evaluation.
(a) The duration of a variance must only be
as long as necessary to achieve the highest attainable condition as described
in section (5) of this rule.
(b)
The DEQ order or EQC rule will specify the duration of the variance.
(c) If the duration of the variance is less
than the term of the NPDES permit, the permittee must comply with the specified
effluent limitation sufficient to meet the underlying water quality standard
when the variance expires. The permit will include the date the variance and
corresponding interim effluent limit will expire.
(d) If the term of the variance exceeds five
years, DEQ will re-evaluate the highest attainable condition using all existing
and readily available information at least every five years. DEQ will specify
the re-evaluation frequency in the variance. Following public input, DEQ will
submit its re-evaluation to EPA within 30 days of completion. If DEQ does not
submit the re-evaluation to EPA within the specified timeline, the variance
will no longer be the applicable water quality standard until DEQ completes the
re-evaluation and submits it to EPA.
(4) Variance Submittal Requirements.
(a) To request an individual variance, a
permittee must submit the following information to DEQ:
(A) The specific pollutant, discharger, and
receiving waterbody to which the variance will apply;
(B) A demonstration that attaining the
designated use and criterion for the specific pollutant is not feasible for the
requested duration of the variance based on one of the factors found in
subsection (2)(a) of this rule;
(C)
A description of treatment or alternative options the permittee considered to
meet permit limits based on the applicable underlying water quality criterion,
and a description of why these options are not technologically, economically,
or otherwise feasible;
(D)
Sufficient water quality data and analyses to characterize ambient and
discharge water pollutant concentrations and determine the Highest Attainable
Condition, as required in section (5) of this rule;
(E) If the highest attainable condition for
the variance is consistent with paragraph (5)(a)(C) of this rule, a proposed
pollutant minimization plan covering the term of the variance that includes
actions the permittee(s) will take that will result in progress toward meeting
the underlying water quality standard; and
(F) If the discharger is a publicly owned
treatment works, a demonstration of the jurisdiction's legal authority, such as
a sewer use ordinance, to regulate the pollutant for which the variance is
sought. The jurisdiction's legal authority must be sufficient to control
potential sources of that pollutant that discharge into the jurisdiction's
sewer collection system.
(b) To be eligible for any multiple
discharger variance or waterbody variance, a permittee must submit all the
information required in the specific multiple discharger or waterbody variance
rule.
(5) Highest
Attainable Condition. The highest attainable condition is a quantifiable
expression of one of the following:
(a) For
individual or multiple discharger WQS variances:
(A) The highest attainable interim criterion;
or
(B) The interim effluent
condition that reflects the greatest pollutant reduction achievable;
or
(C) If no additional feasible
pollutant control technology can be identified, the interim criterion or
interim effluent condition that reflects the greatest pollutant reduction
achievable with the pollutant control technologies installed at the time the
State grants the WQS variance, and adoption and implementation of a pollutant
minimization plan.
(b)
For WQS variances applicable to a waterbody or waterbody segment:
(A) The highest attainable interim use and
interim criterion; or
(B) If no
additional feasible pollutant control technology can be identified, the interim
use and interim criterion that reflects the greatest pollutant reduction
achievable with the pollutant control technologies installed at the time the
State adopts the WQS variance, and the adoption and implementation of a
pollutant minimization plan.
(c) For any WQS variance that applies to a
waterbody or waterbody segment, supporting documentation will identify and
document any cost-effective and reasonable best management practices for
nonpoint source controls related to the pollutant(s) or water quality
parameter(s) and waterbody or waterbody segment(s) specified in the WQS
variance that could be implemented to make progress towards attaining the
underlying designated use and criterion. DEQ will provide public notice and
comment for any such documentation.
(d) In any subsequent WQS variance for a
waterbody or waterbody segment, DEQ will document whether and to what extent
best management practices for nonpoint source controls were implemented to
address the pollutant(s) or water quality parameter(s) subject to the WQS
variance and the water quality progress achieved.
(6) Variance Permit Conditions. DEQ must
establish and incorporate into the discharger's NPDES permit all conditions
necessary to implement an approved variance in lieu of the underlying water
quality standard, so long as the variance remains effective. The permit must
include, at a minimum, the following requirements:
(a) A permit limit or requirement deriving
from the highest attainable effluent condition or highest attainable use and
criterion specified in the variance, including any updated highest attainable
effluent condition based on a five year re-evaluation;
(b) For variances expressing the highest
attainable condition per section 5(a)(C) or 5(b)(B) of this rule, a requirement
to implement the Pollutant Minimization Program included in the applicable
variance;
(c) Any studies, effluent
monitoring, or other monitoring necessary to ensure compliance with the
conditions of the variance; and
(d)
An annual progress report to DEQ describing the results of any required studies
or monitoring during the reporting year, and identifying the pollutant
reduction activities completed and any impediments to reaching any specific
milestones stated in the variance.
(7) Public Input and Notification
Requirements.
(a) If DEQ proposes to grant a
variance, it must provide public notice of the proposed variance and accept
public comment. The public notice may be coordinated with the public
notification of a draft NPDES permit or draft 401 certification that would rely
on the variance;
(b) If DEQ is
required to re-evaluate the highest attainable condition consistent with (3)(d)
of this rule, DEQ will obtain public input on the re-evaluation prior to
submitting the re-evaluation to EPA. The specific method of obtaining public
input will be documented in the variance.
(c) DEQ will publish a list of all variances
approved under this rule on its website. DEQ will add newly approved variances
to this list within 30 days of their effective date. The list will identify:
(A) The effective date and duration of the
variance;
(B) The facility or
facilities;
(C) The pollutant(s) or
water quality parameter(s);
(D) The
waters to which the variance applies;
(E) The underlying designated use and
criterion for the waterbody;
(F)
The highest attainable condition specified in the variance;
(G) How to obtain additional information
about the variance.
Statutory/Other Authority: ORS
468.020,
468B.010,
468B.020,
468B.035
& 468B.110
Statutes/Other Implemented: ORS
468B.048