Appendix L - Criteria and Standards for Determining Fundamentally Different Factors

Current through April 27, 2019

(a) Purpose and scope.

(i) This appendix establishes the criteria and standards to be used in determining whether effluent limitations alternative to those required by promulgated EPA effluent limitations guidelines under sections 301 and 304 of the CWA (hereinafter referred to as "national limits") should be imposed on a discharger because factors relating to the discharger's facilities, equipment, processes or other factors related to the discharger are fundamentally different from the factors considered by EPA in development of the national limits. This subpart applies to all national limitations promulgated under sections 301 and 304 of the CWA, except for the BPT limits contained in 40 CFR 423.12 (steam electric generating point source category).

(ii) In establishing national limits, EPA takes into account all the information it can collect, develop and solicit regarding the factors listed in section 304(b) of the CWA. In some cases, however, data which could affect these national limits as they apply to a particular discharge may not be available or may not be considered during their development. As a result, it may be necessary on a case-by-case basis to adjust the national limits, and make them either more or less stringent as they apply to certain dischargers within an industrial category or subcategory. This will only be done if data specific to that discharger indicates it presents factors fundamentally different from those considered by EPA in developing the limit at issue. Any interested person believing that factors relating to a discharger's facilities, equipment, processes or other facilities related to the discharger are fundamentally different from the factors considered during development of the national limits may request a fundamentally different factors variance under Section 8 of these regulations. In addition, such a variance may be proposed by the director in the draft permit.

(b) Criteria.

(i) A request for the establishment of effluent limitations under this appendix shall be forwarded to the Administrator of the EPA (or his delegate) with a written concurrence only if:

(A) There is an applicable national limit which is applied in the permit and specifically controls the pollutant for which alternative effluent limitations or standards have been requested; and

(B) Factors relating to the discharge controlled by the permit are fundamentally different from those considered by EPA in establishing the national limits; and

(C) The request for alternative effluent limitations or standards is made in accordance with the requirements of Section 8 of these regulations.

(ii) A request for the establishment of effluent limitations less stringent than those required by national limits guidelines shall be forwarded to the Administrator of the EPA (or his delegate) with a written concurrence only if:

(A) The alternative effluent limitation or standard requested is no less stringent than justified by the fundamental difference; and

(B) The alternative effluent limitation or standard will ensure compliance with Sections 208(e) and 301(b) (1) (C) of the CWA; and

(C) Compliance with the national limits (either by using the technologies upon which the national limits are based or by other control alternatives) would result in:

(I) A removal cost wholly out of proportion to the removal cost considered during development of the national limits; or

(II) A non-water quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the national limits.

(iii) Factors which may be considered fundamentally different are:

(A) The nature of 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;

(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 equipment or facilities, processes employed, process changes, and engineering aspects of the application of control technology;

(F) Cost of compliance with required control technology.

(iv) A variance request or portion of such a request under this section shall not be forwarded to the Administrator of the EPA (or his delegate) with a written concurrence on any of the following grounds:

(A) The infeasibility of installing the required waste treatment equipment within the time the CWA allows.

(B) The assertion that the national limits cannot be achieved with appropriate waste treatment facilities installed, if such assertion is not based on factor(s) listed in Appendix L (iv);

(D) The impact of a discharge on local receiving water quality.

(v) Nothing in this appendix shall be construed to impair the right of any locality under Section 510 of the CWA to impose more stringent limitations than those required by federal law.

(i) A written request for a variance under this appendix shall be submitted in triplicate to the director in accordance with Section 8 of these regulations.

(ii) The burden is on the person requesting the variance to explain that:

(A) Factor(s) listed in Appendix L (b) (ii) of these regulations regarding the discharger's facility are fundamentally different from the factors EPA considered in establishing the national limits. The requester should refer to all relevant material and information, such as the published guideline regulations development document, all associated technical and economic data collected for use in developing each national limit, all records of legal proceedings, and all written and printed documentation including records of communication, etc., relevant to the regulations which are kept on public file by the EPA;

(B) The alternative limitations requested are justified by the fundamental difference alleged in Appendix L (c) (ii) (A) of these regulations; and