Section 250-RICR-150-10-1.57 - Variances Under the State and Federal ActsA. An applicant for a renewal of a RIPDES permit may apply for the following variances: 1. Variance requests by non-POTWs. A discharger which is not a publicly owned treatment works (POTW) may request a variance from otherwise applicable effluent limitations under any of the following statutory or regulatory provisions within the times specified in this paragraph: a. Fundamentally different factors. A request for a variance based on the presence of "fundamentally different factors" from those on which the effluent limitations guideline was based shall be made by the close of the public comment period under § 1.42 of this Part. The request shall explain how the requirements of § 1.45 of this Part and 40 C.F.R. § 125 Subpart D, incorporated above at § 1.3(B) of this Part, have been met.b. Non-conventional pollutants. A request for a variance from the BAT requirements for 33 U.S.C. § 1311(b)(2)(F) (Section 301(b)(2)(F) of the Clean Water Act), pollutants (commonly called "non-conventional" pollutants) pursuant to 33 U.S.C. § 1311(c) (Section 301(c) of the Clean Water Act) because of the economic capability of the owner or operator, or pursuant to 33 U.S.C. § 1311(g) (Section 301(g) of the Clean Water Act) because of certain environmental considerations, when those requirements were based on effluent limitation guidelines, must be made by: (1) Submitting an initial request to the Regional Administrator, as well as to the Department, stating the name of discharger, the permit number, the outfall number(s), the applicable effluent guideline, and whether the discharger is requesting a Section 301(c), 33 U.S.C. § 1311(c) or Section 301(g), 33 U.S.C. § 1311(g), modification or both. This request must have been filed not later than: (AA) September 25, 1978, for a pollutant which is controlled by a BAT effluent limitation guideline, promulgated before December 27, 1977; or(BB) 270 days after promulgation of an applicable effluent limitation guideline for guidelines promulgated after December 27, 1977; and(2) Submitting a completed request no later than the close of the public comment period under § 1.42 of this Part demonstrating that the requirements of § 1.45 of this Part and the applicable requirements of 40 C.F.R. § 125, incorporated above at § 1.3(B) of this Part, have been met.(3) Requests for variance from effluent limitations not based on effluent limitation guidelines, need only comply with § 1.57(A)(2)(b) of this Part and need not be preceded by an initial request under § 1.57(A)(2)(a) of this Part.c. Delay in construction of POTW. An extension under 33 U.S.C. § 1311(i)(2) (Section 301(i)(2) of the Clean Water Act), of the statutory deadlines in 33 U.S.C. § 1311(b)(1)(A) or (b)(1)(C) (Sections 301(b)(1)(A) or (b)(1)(C) of the Clean Water Act) based on delay in completion of a POTW into which the source is to discharge must have been requested on or before June 26, 1978, or 180 days after the relevant POTW requested an extension under § 1.57(B)(2) of this Part, whichever is later, but in no event may this date have been later than December 25, 1978. The request shall explain how the requirements of 40 C.F.R. § 125 Subpart J, incorporated above at § 1.3(B) of this Part, have been met.d. Innovative technology. An extension under 33 U.S.C. § 1311(k) (Section 301(k) of the Clean Water Act) from the statutory deadline of Section 301(b)(2)(A) for best available technology based on the use of innovative technology may be required no later than the close of the public comment period under § 1.42 of this Part for the discharger's initial permit requiring compliance with 33 U.S.C. § 1311(b)(2)(A) (Section 301(b)(2)(A) of the Clean Water Act). The request shall demonstrate that the requirements of § 1.45 of this Part and 40 C.F.R. § 125, Subpart C, incorporated above at § 1.3(B) of this Part, have been met.e. Water quality related effluent limitations. A modification under 33 U.S.C. § 1312(b)(2) (Section 302(b)(2) of the Clean Water Act), of requirements under 33 U.S.C. § 1312(a) (Section 302(a) of the Clean Water Act), for achieving water quality related effluent limitations may be requested no later than the close of the public comment under § 1.42 of this Part on the permit from which the modification is sought.f. Thermal discharges. A variance under 33 U.S.C. § 1326(a) (Section 316(a) of the Clean Water Act) for the thermal component of any discharge must be filed with a timely application for a permit under this section, except that if thermal effluent limitations are established under 33 U.S.C. § 1342(a)(1) (Section 402(a)(1) of the Clean Water Act) or are based on water quality standards the request for a variance may be filed by the close of the public comment period under § 1.42 of this Part. A copy of the request as required under 40 C.F.R. § 125 Subpart H, shall be sent simultaneously to the Department as required under 40 C.F.R. § 125, incorporated above at § 1.3(B) of this Part).2. Variance requests by POTWs. A discharger which is a publicly owned treatment works (POTWs) may request a variance from otherwise applicable effluent limitations under any of the following statutory provisions as specified in this paragraph: a. Dischargers into marine waters. A preliminary request for a modification under the 33 U.S.C. § 1326(a) (Section 301(h) of the Clean Water Act) of requirements of the 33 U.S.C. § 1311(b)(1)(B) (Section 301(b)(1)(B) of the Clean Water Act) for dischargers into marine waters must have been submitted to the EPA no later than December 29, 1982. A final request must be submitted in accordance with the filing requirements of 40 C.F.R. § 125 Subpart G, and shall demonstrate that all the requirements of 40 C.F.R. § 125 Subpart G, incorporated above at § 1.3(B) of this Part, have been met.b. Delay in construction. An extension under the 33 U.S.C. § 1311(i)(1) (Section 301(i)(1) of the Clean Water Act), of the statutory deadlines in 33 U.S.C. § 1311(b)(1)(B) or (b)(1)(C) (Sections 301(b)(1)(B) or (b)(1)(C) of the Clean Water Act), based on delay in the construction of the POTW must have been requested on or before June 26, 1978.c. Water quality based effluent limitation. A modification under 33 U.S.C. § 1312(b)(2) (Section 302(b)(2) of the Clean Water Act), of the requirements under 33 U.S.C. § 1312(a) (Section 302(a) of the Clean Water Act) for achieving water quality based effluent limitations shall be requested no later than the close of the public comment period under § 1.42 of this Part on the permit from which the modification is sought.3. Expedited variance procedures and time extensions.a. Notwithstanding the time requirements in §§ 1.57(A) and 1.57(B) of this Part, the Department may notify a permit applicant before a draft permit is issued under § 1.38 of this Part that the draft permit will likely contain limitations which are eligible for variances. In the notice the Department may require the applicant as a condition of consideration of any potential variance request to submit a request explaining how the requirements of 40 C.F.R. § 125, incorporated above at § 1.3(B) of this Part, applicable to the variance have been met and may require its submission within a specified reasonable time after receipt of the notice. The notice may be sent before the permit application has been submitted. The draft or final permit may contain the alternative limitations which may become effective upon final grant of the variance.b. A discharger who cannot file a complete request required under §§ 1.57(A)(2)(a) or 1.57(A)(2)(b) of this Part may request an extension. The extension may be granted or denied at the discretion of the Department. Extensions shall be no more than 6 months in duration.4. Modifications to water quality based effluent limitations for POTWs and Non-POTWs Applications for a modification to a water quality based effluent limitation imposed by EPA, under 33 U.S.C. § 1312 (Section 302 of the Clean Water Act) shall be made prior to the close of the public comment period under § 1.42 of this Part.250 R.I. Code R. 250-RICR-150-10-1.57