Section NR 220.32 - Criteria for fundamentally different factors variances(1) APPROVABLE FDFV REQUESTS. A request for the establishment of effluent limitations under this subchapter may be approved only if all of the following apply: (a) There is an applicable effluent limitation guideline that applies and specifically controls the pollutant for which alternative effluent limitations or standards have been requested.(b) Factors relating to the discharge controlled by the permit are fundamentally different, as specified in sub. (4), from those considered by EPA or the department in establishing effluent limitation guidelines.(c) The request for alternative effluent limitations or standards is made as part of the permit application.(2) LESS STRINGENT FDFV LIMITATIONS. A request for the establishment of effluent limitations less stringent than those required by effluent limitation guidelines shall be approved only if all of the following apply: (a) The alternative effluent limitation or standard requested is no less stringent than justified by the fundamental difference.(b) The alternative effluent limitation or standard will be consistent with any applicable areawide waste treatment management plan under ch. NR 121 and with any more stringent limitations.(c) Compliance with the effluent limitation guidelines, either by using the technologies upon which the effluent limitation guidelines are based or by other control alternatives, would result in any of the following:1. A cost wholly out of proportion to the removal cost considered during development of the effluent limitation guidelines.2. A non-water quality environmental impact, including energy requirements, fundamentally more adverse than the impact considered during development of the effluent limitation guidelines.(3) MORE STRINGENT FDFV LIMITATIONS. A request for an alternative limitation that is more stringent than required by effluent limitation guidelines shall be approved only if all of the following apply: (a) The alternative effluent limitation or standard requested is no more stringent than justified by the fundamental difference.(b) Compliance with the alternative effluent limitation or standard would not result in any of the following:1. A removal cost wholly out of proportion to the removal cost considered during development of the effluent limitation guidelines.2. A non-water quality environmental impact, including energy requirements, fundamentally more adverse than the impact considered during development of the effluent limitations.(4) FUNDAMENTALLY DIFFERENT FACTORS. Factors that may be considered fundamentally different are limited to any of the following:(a) The nature or quality of pollutants contained in the raw waste load of the applicant's process wastewater.(b) The volume of the discharger's process wastewater and effluent discharged.(c) Non-water quality environmental impact of control and treatment of the discharger's raw waste load.(d) Energy requirements of the application of control and treatment technology.(e) Age, size, land availability, and configuration as they relate to the discharger's raw waste load.(f) Cost of compliance with required control technology.(5) UNAPPROVABLE FDFV REQUESTS. A variance request or portion of such a request under this section may not be granted on any of the following grounds: (a) The infeasibility of installing the required waste treatment equipment within the time specified in the effluent limitation guidelines or standards or Clean Water Act. Note: A variance may be approved based on the discharger's inability to ultimately achieve effluent limitations, but not based on the discharger's ability to meet a limit within statutory deadlines.
(b) The assertion that the effluent limitation guidelines cannot be achieved with the appropriate waste treatment facilities installed if the assertion is not based on factors listed in sub. (4).(c) The discharger's ability to pay for the required waste treatment.(d) The impact of a discharge on local receiving water quality.Wis. Admin. Code Department of Natural Resources § NR 220.32
Adopted by, CR 17-002: cr. Register April 2018 No. 748, eff.5/1/2018