Current through September 21, 2024
(a) Following
public notice and opportunity for comment, including at least one public
hearing with a minimum of 45-day notice, the administrator may grant a
permittee a variance to a designated use and water quality criteria for ammonia
and/or nutrients (e.g., total nitrogen, total phosphorus). The administrator
may also grant subsequent variances consistent with this section.
(b) A variance shall not be granted if:
(i) the ammonia and/or nutrient water
quality-based effluent limit can be achieved by implementing technology-based
effluent limits under sections 301(b) and 306 of the Clean Water Act;
or
(ii) the variance will result in
an increase in the discharge of the pollutant.
(c) A variance may be granted in
circumstances where:
(i) a comprehensive
alternatives analysis demonstrates that the most cost-effective pollutant
removal alternative capable of achieving the water quality-based effluent limit
would create substantial and widespread economic and social impacts;
and
(ii) the permittee implements
actions necessary to achieve the highest attainable condition of the receiving
water. The highest attainable condition shall be identified through a
comprehensive alternatives analysis and/or other supporting documentation at
the time the variance is granted or during any reevaluation and shall include:
(A) meeting an interim effluent condition
that represents the greatest pollutant reduction achievable; and
(B) developing and implementing a pollutant
minimization program.
(d) The duration of the variance shall only
be as long as necessary to achieve the highest attainable condition as
specified in Sections
2(b) (xxiii) and
37(c)(ii).
(e) Once granted, the
variance shall only apply for the purpose of developing interim effluent
limits. A discharge permit based on a variance shall include the interim
effluent limit identified in the variance and any limitations and requirements
identified in the variance as enforceable conditions of the permit.
(f) All discharger specific variances granted
by the administrator are considered final actions and may be appealed pursuant
to the Rules of Practice and Procedure, Chapter 1, Section
8.
(g) Following administrator approval and
opportunity for appeal, the variance shall be submitted to EPA pursuant to
33 U.S.C. §
1313 and become effective either upon EPA
approval or 90 days after submittal, whichever comes first.
(i) The director may grant an extension upon
request by EPA's Regional Administrator.
(ii) If the director grants an extension, the
variance shall become effective upon either EPA approval or expiration of the
extension, whichever comes first.
(h) The department shall reevaluate each
variance at least every five years using all existing and readily available
information. The department may also initiate a reevaluation at any time.
(i) Upon notification that the department is
initiating a reevaluation, or 180 days prior to permit expiration, the
permittee shall submit:
(A) Information on how
the permittee did or did not comply with the conditions of the
variance;
(B) Information
indicating that the most cost-effective pollutant removal alternative capable
of achieving the water quality-based effluent limit continues to create
substantial and widespread economic and social impacts; and
(C) Information sufficient to determine
whether the highest attainable condition, as specified in Sections
2(b) (xxiii) and 37(c)(ii)
should be modified.
(D) If the
requirements identified in Section 37(i) are not met, the variance shall expire
and the permittee shall be required to meet the water quality-based effluent
limit.
(ii) In
circumstances where the reevaluation concludes that a more stringent highest
attainable condition is justified, the department shall modify the discharge
permit accordingly. In circumstances where the reevaluation concludes that a
more lenient highest attainable condition is justified, a new variance must be
developed.
(iii) Following public
notice, the public shall be provided a minimum of 30 days to review and comment
on the reevaluation. Each completed reevaluation is considered a final action
of the administrator and may be appealed pursuant to the Rules of Practice and
Procedure, Chapter 1, Section
8.
(iv) The administrator may terminate any
variance for good cause following opportunity for public comment.
(v) The department shall submit the
reevaluation to EPA within 30 days of completion or the variance shall expire
and the permittee shall be required to meet the water quality-based effluent
limit.
