N.J. Admin. Code § 7:9B-1.16

Current through Register Vol. 56, No. 11, June 3, 2024

Section 7:9B-1.16 - Water quality standards variances

(a) A water quality standards (WQS) variance is subject to 40 CFR 131.14 and 40 CFR 131.20(b). The USEPA must review and approve the variance prior to implementation of any WQS variance. A WQS variance may be initiated either by the Department or at the request of a permittee.

(b) The WQS variance policies are, as follows:

1. A WQS variance serves as the interim applicable water quality standard for the term of the WQS variance when implementing:

i. NJPDES permitting requirements pursuant to N.J.A.C. 7:14A; or

ii. Certifications under Section 401 of the Federal Act;

2. A WQS variance may be adopted for a permittee, waterbody, or waterbody segment, and only applies to the permittee, waterbody, or waterbody segment specified in the WQS variance;

3. Where a WQS variance is established, the underlying criterion and designated use pursuant to N.J.A.C. 7:9B-1.14 and 1.15 shall be retained by the Department. All other standards not specifically addressed by the WQS variance also remain in effect;

4. A permittee requesting a WQS variance must demonstrate, to the satisfaction of the Department, that the water quality standards cannot be met due to one or more of the following conditions:

i. Naturally occurring pollutant concentrations prevent the attainment of the use;

ii. Natural-, ephemeral-, intermittent-, or low-flow conditions or water levels prevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges without violating State water conservation requirements to enable uses to be met;

iii. Human-caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more environmental damage to correct than to leave in place;

iv. Dams, diversions, or other types of hydrologic modifications preclude the attainment of the use, and it is not feasible to restore the waterbody to its original condition or to operate such modification in a way that would result in the attainment of the use;

v. Natural features of the waterbody, such as cover, flow, depth, pools, riffles, or lack of a proper substrate, that create physical conditions unrelated to water quality and preclude attainment of aquatic life protection uses; or

vi. Controls more stringent than those required by sections 301(b) and 306 of the Federal Act would result in substantial and widespread economic and social impact, as determined in accordance with the USEPA Interim Economic Guidance for Water Quality Standards (EPA-823-B-95-002), Clean Water Act Financial Capability Assessment Guidance (EPA-800-B-21-001), and as supplemented and amended;

5. A WQS variance requested by a new or expanded permittee for an aquatic life criterion specified at N.J.A.C. 7:9B-1.14 that would likely jeopardize the continued existence of any endangered or threatened species, as listed at section 7 of the Federal Endangered Species Act of 1973 (16 U.S.C. §§ 1531 et seq.), or result in the destruction or adverse modification of such species' critical habitat shall not be granted;

6. A WQS variance may not be adopted if the designated use and criterion addressed by the WQS variance can be achieved by implementing technology-based effluent limits required pursuant to sections 301(b) and 306 of the Federal Act; and

7. A WQS variance for thermal discharge shall be consistent with section 316(a) of the Federal Act and N.J.A.C. 7:9B-1.5(c)9 and (h)2 i(3) in lieu of this section.

(c) A permittee requesting a WQS variance to satisfy one of the conditions listed at (b)4 above must submit the following:

1. Ambient, influent, and effluent data collected, in accordance with a Department-approved quality assurance project plan;

2. For a substance or substances that the permittee alleges is naturally occurring, a justification that includes an investigation of the anthropogenic sources of the substance or substances to the receiving stream upstream of the discharge point;

3. A review of possible sources of the substance or substances in the effluent, including, but not limited to, processes onsite, legacy contamination, and influent sources, such as industrial users discharging to a sanitary treatment plant;

4. A review of existing technology installed on-site to treat the influent for the substance or substances of concern and the date that the existing technology was first implemented;

5. A review of any additional technologies that would lower the effluent concentrations of the substance or substances of concern and the associated cost to implement such technology;

6. Information required to determine the affordability of such technology using the USEPA Interim Economic Guidance for Water Quality Standards (EPA-823-B-95-002), Clean Water Act Financial Capability Assessment Guidance (EPA-800-B-21-001), as supplemented and amended;

7. For a WQS variance to a waterbody or waterbody segment, identification of any cost-effective and reasonable best management practices for nonpoint source controls related to the substance or substances and waterbody or waterbody segment specified in the WQS variance that could be implemented to make progress towards attaining the underlying designated use and criterion;

8. Documentation demonstrating the highest attainable condition (HAC) for the substance(s). A HAC must be based on the following:

i. For a permittee-specific WQS variance:

(1) The highest attainable interim criterion;

(2) The interim effluent condition that reflects the greatest pollutant reduction achievable; or

(3) The interim criterion or interim effluent condition that reflects the greatest pollutant reduction achievable with the pollutant control technologies installed at the time the Department adopts the WQS variance, and the adoption and implementation of a Pollutant Minimization Program (PMP), if no additional feasible pollutant control technology can be identified; and

ii. For a WQS variance applicable to a waterbody or waterbody segment:

(1) The highest attainable interim use and interim criterion; or

(2) The interim use and interim criterion that reflects the greatest pollutant reduction achievable with the pollutant control technologies installed at the time the Department adopts the WQS variance, and the adoption and implementation of a PMP, if no additional feasible pollutant control technology can be identified;

9. A proposed term, including documentation justifying that the proposed term is only as long as necessary to achieve the HAC;

10. A Pollutant Minimization Program, including:

i. Pollutant control activities that the permittee proposes to take during the term of the WQS variance, including identification and quantification of source(s) of substance(s) within the permittee's collection system and evaluation of on-site strategies to minimize the discharge of a substance or substances and in the collection system to the maximum extent practicable; and

ii. A schedule for implementing the PMP; and

11. Where applicable, documentation supporting the WQS variance must be submitted justifying the use and value of the waterbody pursuant to section 131.10(a) of the Federal Act for uses that are not specified at section 101(a)(2) of the Federal Act.

(d) A permittee requesting a WQS variance to a use specified at section 101(a)(2) of the Federal Act or a sub-category of such a use shall demonstrate that attaining the designated use and criterion is not feasible throughout the term of the WQS variance because:

1. One of the factors listed at (b)4 above is met; or

2. Actions necessary to facilitate lake, wetland, or stream restoration through dam removal or other significant reconfiguration activities preclude attainment of the designated use and criterion while the actions are being implemented.

(e) For a WQS variance term longer than five years, the Department shall reevaluate the WQS variance at least once every five years.

1. A permittee shall submit the following for a reevaluation:

i. A report with the submittal requirements listed at (c) above with the NJPDES permit renewal application pursuant to N.J.A.C 7:9B-1.14;

ii. Documentation of whether, and to what extent, the PMP was implemented and the water quality progress achieved; and

iii. An updated PMP for the subsequent five-year permit cycle.

2. The Department shall take the following actions in response to reevaluation submittals:

i. Approve and authorize the WQS variance for an additional five years, if the reevaluation submittal is satisfactory;

ii. Propose a permit action to revise the WQS variance if the submittal fails to meet the requirements or the submittal indicates a revised HAC is appropriate; or

iii. Suspend the WQS variance if the permittee does not submit the information required for the revaluation of the WQS variance at the frequency specified at N.J.A.C. 7:9B. The variance may be reinstated when this information is submitted and approved by the Department.

N.J. Admin. Code § 7:9B-1.16

Adopted by 55 N.J.R. 1722(a), effective 8/7/2023