Idaho Admin. Code r. 58.01.25.310

Current through September 2, 2024

Section 58.01.25.310 - VARIANCES

01.Variance Requests by non-POTWs.

a. A discharger that is not a POTW may request a variance from otherwise applicable effluent limitations under the following statutory or regulatory provisions, within the times specified

i. The presence of fundamentally different factors from which the ELG was based must be filed as follows:

(1) For a request from best practicable control technology currently available (BPT), by the close of the public comment period under Section 109; or

(2) For a request from best available technology economically achievable (BAT) and/or best conventional pollutant control technology (BCT), by no later than one hundred eighty (180) days after the date on which an ELG is published in the Federal Register for a request based on an ELG promulgated on or after February 4, 1987.

ii. The request must explain how the regulatory and/or statutory criteria have been met.

b. An applicant may request for non-conventional pollutants under this section:

i. A variance from the BAT requirements for CWA Section 301(b)(2)(F) pollutants (i.e., non-conventional pollutants) under CWA Section 301(c) because of the economic capability of the owner or operator; or

ii. A variance under CWA Section 301(g) provided:

(1) The variance may only be requested for ammonia; chlorine; color; iron; total phenols (4AAP), when determined by the EPA Administrator to be a pollutant covered by CWA Section 301(b)(2)(F); and

(2) Other pollutants the EPA Administrator lists under CWA Section 301(g)(4).

c. The request for variance as outlined in Subsection 310.01.b. must be made as follows:

i. For effluent limits based on an ELG, by submitting an initial request to the Department no later than two hundred seventy (270) days after promulgation of the applicable ELG followed by a completed request no later than the close of the public comment period under Section 109.

(1) The initial request to the Department must contain:

(a) Name of the discharger;

(b) Permit number;

(c) Outfall number(s);

(d) Applicable ELG; and

(e) Whether the discharger is requesting a CWA Section 301(c) or 301(g) modification or both.

(2) The completed request must demonstrate the applicable requirements of 40 CFR Part 125 have been met. The complete application for a request under CWA Section 301(g) must be filed one hundred eighty (180) days before the Department makes a decision (unless the Department establishes a shorter or longer period).

ii. For effluent limits not based on ELGs, the request need only comply with Subsection 310.01.c.i(2) and need not be preceded by an initial request under Subsection 310.01.c.i(1).

d. A modification under CWA Section 302(b)(2) of requirements under the CWA Section 302(a) for achieving water quality related effluent limits may be requested before the close of the public comment period under Section 109 on the permit from which the modification is sought.

e. A variance under CWA Section 316(a) for the thermal component of a discharge must be filed with a timely application for a permit under Section 105 of these rules, except that if thermal effluent limits are established under CWA Section 402(a)(1) or are based on water quality standards, the request for a variance may be filed by the close of the public comment period under Section 109.

02.Variance Requests by POTWs. A discharger that is a POTW may request a variance, under CWA Section 302(b)(2), from the water quality-based effluent limits found at CWA Section 302(a). The variance must be requested before the close of the public comment period under Section 109

03.Permit Variance Decision Process.

a. The Department may deny requests for variances. A variance that has been denied by the Department may be appealed according to the process identified in Section 204.

b. The Department may grant variances (subject to EPA objection under Subsection 103.02 or 40 CFR 123.44):

i. For extensions under CWA Section 301(i) based on delay in completing a POTW;

ii. After consultation with EPA, extensions under CWA Section 301(k) based on the use of innovative technology;

iii. Under CWA Section 316(a) for thermal pollution; or

iv. From water quality standards under IDAPA 58.01.02.260.

c. The Department may forward to EPA with or without a recommendation, a variance based on:

i. Economic capability of the applicant under CWA Section 301(c); or

ii. Water quality-related effluent limits under CWA Section 302(b)(2).

d. The Department may forward to EPA with a written concurrence, a variance based on:

i. Presence of fundamentally different factors from which the ELG was based (CWA Section 301(n)); or

ii. Certain water quality factors under CWA Section 301(g).

e. The EPA may grant or deny a request for a variance that is forwarded by the Department. If the EPA Administrator (or delegate) approves the variance, the Department will prepare a draft permit incorporating the variance.

f. A public notice of a draft permit for which a variance or modification has been approved or denied will identify the procedures for appealing that decision under Section 204.

04.Expedited Variance Procedures and Time Extensions.

a. Considering the time requirements in Subsections 310.01 and 310.02, the Department may notify a permit applicant before a draft permit is issued under Section 108 that the draft permit will contain limits eligible for variances.

i. In the notice, the Department may require the applicant, as a condition of a potential variance request, to explain how the requirements of 40 CFR Part 125, apply to the variance, have been met, and may require submitting an explanation within a specified time after receipt of the notice.

ii. The Department may send the notice before the permit application is submitted. The draft or final permit may contain the alternative limits that may become effective upon final grant of the variance.

b. A discharger who cannot file a timely complete request required under Subsections 310.01.c.i.(2) or 310.01.c.ii. may request an extension that;

i. May be granted or denied at the discretion of the Department.

ii. Is no more than six (6) months in duration.

05.Special Procedures for Decisions on Thermal Variances.

a. If the Department makes a final decision on a thermal variance before a final permit is issued it will only consider whether alternative effluent limits are justified under CWA Section 316(a) or whether cooling water intake structures will use the best available technology under CWA Section 316(b).

i. Permit applicants who wish an early decision on these issues may request that the Department provide supporting reasons when the permit applications are filed.

ii. The Department will decide whether to make an early decision. If granted, the early decision on CWA Section 316 (a) or (b) issues and the grant of the balance of the permit will be:

(1) Considered permit issuance under these regulations, and

(2) Subject to the same requirements of public notice and comment and the same opportunity for an appeal.

b. If the Department, on review of the administrative record, determines that the information necessary to decide whether the CWA Section 316(a) issue is not likely to be available in time for a decision on permit issuance, the Department may issue a permit for a term up to five (5) years.

i. The permit will require achievement of the effluent limits initially proposed for the thermal component of the discharge, no later than the date otherwise required by law.

ii. The permit will also afford the permittee an opportunity to file a demonstration under CWA Section 316(a), after conducting studies required under 40 CFR 125.70 through 125.73.

iii. A new discharger may not exceed the thermal effluent limit initially proposed unless and until the CWA Section 316(a) variance request is approved.

c. A proceeding held under Subsection 310.05.a. will be:

i. Publicly noticed as required by Section 109, and

ii. Conducted at a time allowing the permittee to take measures to meet the final compliance date if its request for modification of thermal limits is denied.

d. Whenever the Department defers the decision under CWA Section 316(a), a decision under CWA Section 316(b) may be deferred.

Idaho Admin. Code r. 58.01.25.310

Effective July 1, 2024