(a) Following public notice and opportunity for comment, including at least one public hearing with a minimum of 45-day notice, the administrator may grant a permittee a variance to a designated use and water quality criteria for ammonia and/or nutrients (e.g., total nitrogen, total phosphorus). The administrator may also grant subsequent variances consistent with this section.
(b) A variance shall not be granted if: - (i) the ammonia and/or nutrient water quality-based effluent limit can be achieved by implementing technology-based effluent limits under sections 301(b) and 306 of the Clean Water Act; or
- (ii) the variance will result in an increase in the discharge of the pollutant.
(c) A variance may be granted in circumstances where: - (i) a comprehensive alternatives analysis demonstrates that the most cost-effective pollutant removal alternative capable of achieving the water quality-based effluent limit would create substantial and widespread economic and social impacts; and
- (ii) the permittee implements actions necessary to achieve the highest attainable condition of the receiving water. The highest attainable condition shall be identified through a comprehensive alternatives analysis and/or other supporting documentation at the time the variance is granted or during any reevaluation and shall include:
- (A) meeting an interim effluent condition that represents the greatest pollutant reduction achievable; and
- (B) developing and implementing a pollutant minimization program.
(d) The duration of the variance shall only be as long as necessary to achieve the highest attainable condition as specified in Sections 2(b) (xxiii) and 37(c)(ii).
(e) Once granted, the variance shall only apply for the purpose of developing interim effluent limits. A discharge permit based on a variance shall include the interim effluent limit identified in the variance and any limitations and requirements identified in the variance as enforceable conditions of the permit.
(f) All discharger specific variances granted by the administrator are considered final actions and may be appealed pursuant to the Rules of Practice and Procedure, Chapter 1, Section 8.
(g) Following administrator approval and opportunity for appeal, the variance shall be submitted to EPA pursuant to 33 U.S.C. § 1313 and become effective either upon EPA approval or 90 days after submittal, whichever comes first. - (i) The director may grant an extension upon request by EPA's Regional Administrator.
- (ii) If the director grants an extension, the variance shall become effective upon either EPA approval or expiration of the extension, whichever comes first.
(h) The department shall reevaluate each variance at least every five years using all existing and readily available information. The department may also initiate a reevaluation at any time. - (i) Upon notification that the department is initiating a reevaluation, or 180 days prior to permit expiration, the permittee shall submit:
- (A) Information on how the permittee did or did not comply with the conditions of the variance;
- (B) Information indicating that the most cost-effective pollutant removal alternative capable of achieving the water quality-based effluent limit continues to create substantial and widespread economic and social impacts; and
- (C) Information sufficient to determine whether the highest attainable condition, as specified in Sections 2(b) (xxiii) and 37(c)(ii) should be modified.
- (D) If the requirements identified in Section 37(i) are not met, the variance shall expire and the permittee shall be required to meet the water quality-based effluent limit.
- (ii) In circumstances where the reevaluation concludes that a more stringent highest attainable condition is justified, the department shall modify the discharge permit accordingly. In circumstances where the reevaluation concludes that a more lenient highest attainable condition is justified, a new variance must be developed.
- (iii) Following public notice, the public shall be provided a minimum of 30 days to review and comment on the reevaluation. Each completed reevaluation is considered a final action of the administrator and may be appealed pursuant to the Rules of Practice and Procedure, Chapter 1, Section 8.
- (iv) The administrator may terminate any variance for good cause following opportunity for public comment.
- (v) The department shall submit the reevaluation to EPA within 30 days of completion or the variance shall expire and the permittee shall be required to meet the water quality-based effluent limit.
020-1 Wyo. Code R. § 1-37