Current through Register Vol. 41, No. 3, September 23, 2024
A. The
term "requester" means an industrial user or a POTW or other interested person
seeking a variance from the limits specified in a categorical pretreatment
standard.
B. 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 section.
C. Criteria.
1. General criteria. A request for a variance
based upon fundamentally different factors shall be approved only if:
a. There is an applicable categorical
pretreatment standard which specifically controls the pollutant for which
alternative limits have been requested;
b. 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
c. The request for a variance is made in
accordance with the procedural requirements in subsections G and H of this
section.
2. 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:
a. The alternative limit requested is no
less stringent than justified by the fundamental difference;
b. The alternative limit will not result in a
violation of prohibitive discharge standards prescribed by or established under
9VAC25-31-770;
c. The alternative limit will not result in a
nonwater quality environmental impact (including energy requirements)
fundamentally more adverse than the impact considered during development of the
pretreatment standards; and
d.
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 nonwater quality environmental impact
(including energy requirements) fundamentally more adverse than the impact
considered during development of the standards.
3. 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:
a. The alternative limit request is no more
stringent than justified by the fundamental difference; and
b. 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 nonwater quality environmental impact
(including energy requirements) fundamentally more adverse than the impact
considered during development of the standards.
D. Factors considered
fundamentally different. Factors which may be considered fundamentally
different are:
1. The nature or quality of
pollutants contained in the raw waste load of the user's process
wastewater;
2. The volume of the
user's process wastewater and effluent discharged;
3. Nonwater quality environmental impact of
control and treatment of the user'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 user's equipment or facilities; processes
employed; process changes; and engineering aspects of the application of
control technology; and
6. Cost of
compliance with required control technology.
E. Factors which will not be considered
fundamentally different. A variance request or portion of such a request under
this section may not be granted on any of the following grounds:
1. The feasibility of installing the required
waste treatment equipment within the time the CWA 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 subsection D of this
section;
3. The user's ability to
pay for the required waste treatment; or
4. The impact of a discharge on the quality
of the POTW's receiving waters.
F. Local law. Nothing in this section shall
be construed to impair the right of any locality under the Code of Virginia or
§ 510 of the CWA to impose more stringent limitations than required by
federal law.
G. Application
deadline.
1. Requests for a variance and
supporting information must be submitted in writing to the department or to the
administrator, as appropriate.
2.
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.
3. Where the user has requested a categorical
determination pursuant to
9VAC25-31-780 A, the user may elect
to await the results of the category determination before submitting a variance
request under this section. Where the user so elects, he must submit the
variance request within 30 days after a final decision has been made on the
categorical determination pursuant to
9VAC25-31-780 A 4.
H. Contents submission. Written
submissions for variance requests, whether made to the administrator or the
department, must 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 POTW currently receiving the waste from the industrial
user for which alternative discharge limits are requested;
4. Identification of the categorical
pretreatment standards which are applicable to the industrial 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 in
subdivision 5 of this subsection;
7. A description of the industrial user "s
existing water pollution control facilities;
8. A schematic flow representation of the
industrial 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 EPA and used in
developing each pollutant discharge limit in the pretreatment
standard.
I. Deficient
requests. The administrator 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 the
director 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 administrator
or the director, the request for a variance shall be denied.
J. Public notice. Upon receipt of a complete
request, the administrator or the director will provide notice of receipt,
opportunity to review the submission, and opportunity to comment.
1. 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,
by electronic or postal delivery, notices to:
a. The POTW into which the industrial user
requesting the variance discharges;
b. Adjoining states whose waters may be
affected; and
c. 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.
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 their written
views on the request.
3. Following
the comment period, the administrator 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 POTW into which the
industrial user discharges and all persons who submitted comments on the
request.
K. Review of
requests.
1. 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
POTW of the denial.
2. 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.
Statutory Authority
§§ 62.1-44.15 of the Code of Virginia; §
402 of the federal Clean Water Act; 40 CFR Parts 122, 123, 124, 403, and 503.
