Section NR 211.14 - Fundamentally different factors variances(1) 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 industrial user, and that the existence of those factors justifies a different discharge limit from that specified in the applicable categorical pretreatment standard may request a fundamentally different factors variance under this section. Such a variance request may be initiated by EPA.(2)(a) A request for a fundamentally different factors variance may be approved only if: 1. Factors relating to the industrial user which would be affected by the variance are fundamentally different from the factors considered in establishing the applicable categorical pretreatment standard;2. There is an applicable categorical pretreatment standard which specifically controls the pollutant for which alternative limits have been proposed; and3. The procedural requirements of this section have been met.(b) A request for a fundamentally different factors variance to establish limits less stringent than required by the categorical pretreatment standard may be approved only if: 1. The alternative limit requested is no less stringent than justified by the fundamental difference; and2. The alternative limit will not result in a violation of any prohibited discharge standard set forth in or established under s. NR 211.10;3. The alternative limit will not result in an environmental impact not related to water quality which would be fundamentally more adverse than the impact considered during development of the categorical pretreatment standard; and4. Compliance with the applicable categorical pretreatment standard would result in either a removal cost wholly out of proportion to the removal cost considered during development of the standard or an environmental impact not related to water quality which would be fundamentally more adverse than the impact considered during development of the standard.(c) A request for a fundamentally different factors variance to establish limits more stringent than required by the categorical pretreatment standard may be approved only if: 1. The alternative limit requested is no more stringent than justified by the fundamental difference; and2. Compliance with the alternative limit would not result in either a removal cost wholly out of proportion to the removal cost considered during development of the standard or an environmental impact not related to water quality which would be fundamentally more adverse than the impact considered during the development of the standard.(3) Factors considered fundamentally different are:(a) The nature or quality of pollutants contained in the industrial user's raw process wastewater;(b) The volume of the industrial user's process wastewater and the volume of effluent discharged;(c) The environmental impact, other than that related to water quality, of control and treatment of the industrial user's raw process wastewater;(d) The energy requirements of the application of control and treatment technology;(e) Age, size, and configuration of the industrial user's equipment, facilities, production processes and process changes, availability of land, and engineering aspects of the application of control technology; and(f) The cost of compliance with required control technology.(4) Factors which may not be considered fundamentally different are:(a) The feasibility of installing the required pretreatment equipment within the time allowed by the categorical pretreatment standard;(b) The assertion that the standard cannot be achieved with the appropriate pretreatment equipment installed, if such assertion is not based on factors listed in sub. (3);(c) The industrial user's ability to pay for the required pretreatment equipment; or(d) The impact of a discharge on the quality of the POTW's receiving water.(5) Requests for a variance shall be submitted in writing to the department within 180 days after the effective date of the federal categorical pretreatment standard. If the industrial user has requested a categorical determination under s. NR 211.33, the request for a fundamentally different factors variance may be delayed to within 30 days after the final decision on the category determination has been made. Variance requests shall include the following: (a) The name and address of the person making the request;(b) Identification of the interest of the person making the request;(c) Identification of the POTW receiving the indirect discharge from the industrial user for which the variance is requested;(d) Identification of the categorical pretreatment standards applicable to the industrial user;(e) A list of each pollutant for which an alternative discharge limit is sought;(f) The alternative discharge limits being proposed for each pollutant identified in par. (e);(g) A description of the industrial user's existing pretreatment equipment;(h) A schematic flow chart of the industrial user's water system including water supply, process wastewater systems, and points of discharge; and(i) A statement of facts clearly establishing why the variance request should be approved, including detailed supporting data, documentation and evidence necessary to fully evaluate the merits of the request.(6) The department will act only on written requests for variances which contain all of the information required in sub. (5). Persons who submit incomplete requests will be notified that the requests are deficient and will be given 30 days to correct the deficiency. If the deficiency is not corrected within 30 days, or within an extended period if allowed by the department, the request for the variance shall be denied.(7) The department shall publish a notice of its receipt of a request for a fundamentally different factors variance and shall mail copies of the notice to the affected industrial user and any other interested party. The public notice shall be published as a Class I notice under ch. 985, Stats., in a newspaper of general circulation in the area in which the industrial user is located. The department shall allow a 30-day period for public review and comment.(8) If the department finds that fundamentally different factors do not exist, the department shall deny the request. If the department finds that fundamentally different factors do exist, the request and findings shall be forwarded to EPA for EPA's approval, disapproval, or revision and approval of the variance. A copy of the final determination shall be sent to the person requesting the variance, and to the affected industrial user and POTW.Wis. Admin. Code Department of Natural Resources § NR 211.14
Cr. Register, July, 1983, No. 331, eff. 8-1-83.