Current through Register Vol. 48, No. 9, September 27, 2024
(a) A request for
the establishment of effluent limitations under this part (fundamentally
different factors variance) shall be approved only if:
(1) There is an applicable national limit
which is applied in the permit and specifically controls the pollutant for
which alternative effluent limitations or standards have been requested;
and
(2) Factors relating to the
discharge controlled by the permit are fundamentally different from those
considered by EPA in establishing the national limits; and
(3) The request for alternative effluent
limitations or standards is made in accordance with the procedural requirements
of R.61-9.124.
(b) A
request for the establishment of effluent limitations less stringent than those
required by national limits guidelines shall be approved only if:
(1) The alternative effluent limitation or
standard requested is no less stringent than justified by the fundamental
difference; and
(2) The alternative
effluent limitation or standard will ensure compliance with section208(e)(e)
and 301(b)(1)(C)(b)(1)(C) of the CWA; and
(3) Compliance with the national limits
(either by using the technologies upon which the national limits are based or
by other control alternatives) would result in:
(i) A removal cost wholly out of proportion
to the removal cost considered during development of the national limits;
or
(ii) A non-water quality
environmental impact (including energy requirements) fundamentally more adverse
than the impact considered during development of the national limits.
(c) A request for
alternative limits more stringent than required by national limits shall be
approved only if:
(1) The alternative effluent
limitation or standard requested is no more stringent than justified by the
fundamental difference; and
(2)
Compliance with the alternative effluent limitation or standard would not
result in:
(i) A removal cost wholly out of
proportion to the removal cost considered during development of the national
limits; or
(ii) A non-water quality
environmental impact (including energy requirements) fundamentally more adverse
than the impact considered during development of the national limits.
(d) Factors which may
be considered fundamentally different are:
(1)
The nature or quality of pollutants contained in the raw waste load of the
applicant's process wastewater;
(2)
The volume of the discharger's process wastewater and effluent
discharged;
(3) Non-water quality
environmental impact of control and treatment of the discharger'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 discharger'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) A variance request or portion of such a
request under this section shall not be granted on any of the following
grounds;
(1) The infeasibility of installing
the required waste treatment equipment within the time the CWA
allows.
(2) The assertion that the
national limits cannot be achieved with the appropriate waste treatment
facilities installed, if such assertion is not based on factor(s) listed in
paragraph (d) of this section;
(3)
The discharger's ability to pay for the required waste treatment; or
(4) The impact of a discharge on local
receiving water quality.
(f) Nothing in this section shall be
construed to impair the right of the State or locality under section510 of the
CWA to impose more stringent limitations than those required by Federal
law.
