Current through September 24, 2024
(1) Definition.
The term Requester means an Industrial User or a WWF or other interested
person seeking a variance from the limits specified in a categorical
Pretreatment Standard.
(2)
Purpose and scope.
In establishing categorical Pretreatment Standards for
existing sources, the Division 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 Federal Clean Water 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 rule or such a variance request may be initiated by
the Division.
(3) Criteria-
(a) General criteria.
A request for a
variance based upon fundamentally different factors shall be approved only
if:
1. There is an applicable
categorical Pretreatment Standard which specifically controls the pollutant for
which alternative limits have been requested; and
2. 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
3. The request for a variance is made in
accordance with the procedural requirements in paragraphs (7) and (8) of this
rule.
(b) 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:
1. The alternative
limit requested is no less stringent than justified by the fundamental
difference;
2. The alternative
limit will not result in a violation of prohibitive discharge standards
prescribed by or established under Rule 0400-40-14-.05;
3. 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
4.
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:
(i) A removal cost (adjusted for
inflation) wholly out of proportion to the removal cost considered during
development of the Standards; or
(ii) A non-water quality environmental impact
(including energy requirements) fundamentally more adverse than the impact
considered during development of the Standards.
(c) 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:
1. The alternative limit request is no more
stringent than justified by the fundamental difference; and
2. Compliance with the alternative limit
would not result in either:
(i) A removal cost
(adjusted for inflation) wholly out of proportion to the removal cost
considered during development of the Standards; or
(ii) A non-water quality environmental impact
(including energy requirements) fundamentally more adverse than the impact
considered during development of the Standards.
(4) Factors considered
fundamentally different.
Factors which may be considered fundamentally
different are:
(a) The nature or
quality of pollutants contained in the raw waste load of the User's process
wastewater:
(b) The volume of the
User's process wastewater and effluent discharged;
(c) Non-water quality environmental impact of
control and treatment of the User's raw waste load;
(d) Energy requirements of the application of
control and treatment technology;
(e) 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;
(f) Cost of
compliance with required control technology.
(5) Factors which will not be considered
fundamentally different.
A variance request or portion of such a request
under this rule may not be granted on any of the following grounds:
(a) The feasibility of installing the
required waste treatment equipment within the time the Federal Clean Water Act
allows;
(b) 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 (4) of
this rule;
(c) The User's ability
to pay for the required waste treatment; or
(d) The impact of a discharge on the quality
of the WWF's receiving waters.
(6) Local law.
Nothing in this chapter
shall be construed to impair the right of any locality under section 510 of the
Clean Water Act to impose more stringent limitations than required by State or
Federal law.
(7)
Application deadline.
(a) Requests for a
variance and supporting information must be submitted in writing to the
Director or to the Administrator (or his delegate), as appropriate.
(b) 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.
(c) Where the User has
requested a categorical determination pursuant to paragraph (1) of Rule
0400-40-14-.06, the User may elect to await the results of the category
determination before submitting a variance request under this rule. 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
subparagraph (1)(d) of Rule 0400-40-14-.06.
(8) Contents submission.
Written
submissions for variance requests, whether made to the Administrator (or his
delegate) or the Director, must include:
(a) The name and address of the person making
the request;
(b) Identification of
the interest of the Requester, which is affected by the categorical
Pretreatment Standard for which the variance is requested;
(c) Identification of the WWF currently
receiving the waste from the Industrial User for which alternative discharge
limits are requested;
(d)
Identification of the categorical Pretreatment Standards which are applicable
to the Industrial User;
(e) A list
of each pollutant or pollutant parameter for which an alternative discharge
limit is sought;
(f) The
alternative discharge limits proposed by the Requester for each pollutant or
pollutant parameter identified in subparagraph (e) of this paragraph;
(g) A description of the Industrial User's
existing water pollution control facilities;
(h) A schematic flow representation of the
Industrial User's water system including water supply, process wastewater
systems, and points of discharge; and
(i) 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.
(9) Deficient
requests.
The Administrator (or his delegate) or the Director 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 delegate) or the Director 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 delegate) or the Director, the
request for a variance shall be denied.
(10) Public notice.
Upon receipt of a
complete request, the Administrator (or his delegate) or the Director will
provide notice of receipt, opportunity to review the submission, and
opportunity to comment.
(a) 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:
1. The WWF into which the Industrial User
requesting the variance discharges;
2. Adjoining States whose waters may be
affected; and
3. 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.
(b) 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.
(c) Following
the comment period, the Administrator (or his delegate) or the Director 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 WWF
into which the Industrial User discharges and all persons who submitted
comments on the request.
(11) Review of requests by state.
(a) Where the Director finds that
fundamentally different factors do not exist, he may deny the request and
notify the requester (and Industrial User where they are not the same) and the
WWF of the denial.
(b) Where the
Director finds that fundamentally different factors do exist, he shall forward
the request, with a recommendation that the request be approved, to the
Administrator (or his delegate).
(12) Review of requests by EPA. See 40 CFR
Part 403.13(l) for the procedures EPA uses to review requests.
(13) Request for hearing.
(a) 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.
(b) 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 part 1.25) within 30 days of the Regional
Administrator's decision.
Authority:
T.C.A. §§
69-3-101 et seq. and 4-5-201 et
seq.
