(a) Variance requests by non-POTWs. - (i) 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 section:
- (A) Fundamentally different factors.
- (I) 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 filed as follows:
- (1.) For a request from best practicable control technology (BPT) currently available, at the time of application.
- (2.) For a request from best available technology (BAT) economically achievable and/or best conventional pollutant control technology (BCT), by no later than 180 days after the date on which an effluent limitation guideline is published in the federal register for a request based on an effluent limitation guideline promulgated on or after February 4, 1987.
- (II) The request shall explain how the applicable requirements of Wyoming Water Quality Rules and Regulations Chapter 1 - Surface Water Quality Standards, the Environmental Quality Act and the provisions of these regulations have been met.
- (B) Non-conventional pollutants. Request for a variance from the BAT requirements for CWA Section 301(b) (2) (F) pollutants (commonly called "non-conventional" pollutants) pursuant to Section 301(c) of the CWA because of the economic capability of the owner or operator, or pursuant to Section 301(g) of the CWA provided however that a § 301(g) variance may only be requested for ammonia, chlorine, color, iron, total phenols (when determined by the Regional Administrator to be a pollutant covered by Section 301(b) (2) (F) and any other pollutant which the Regional Administrator lists under Section 301(g) (4) of the CWA) and must be made as follows:
- (I) For those requests for a variance from an effluent limitation based upon an effluent limitation guideline by:
- (1.) Submitting an initial request to the director and the Regional Administrator stating the name of the discharger, the permit numb er, the outfall number(s), the applicable effluent guideline, and whether the discharger is requesting a Section 301(c) or Section 301(g) modification or both. This request must have been filed not later than 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 Section 15 of these regulations demonstrating that the applicable requirements of Section 5(c) (iii) (A) and (B) and Appendices F, L and M have been met. Notwithstanding this provision, the complete application for a request under section 301(g) shall be filed 180 days before the director must make a decision (unless the director establishes a shorter or longer period).
- (II) For those requests for a variance from effluent limitations not based on effluent limitation guidelines, the request need only comply with Section 8(a) (i) (B) (I) (b) and need not be preceded by an initial request under Section 8(a) (i) (B) (I) (a).
- (C) Water quality related effluent limitations. A modification under CWA Section 302(b) (2) of requirements under CWA Section 302(a) for achieving water quality related effluent limitations may be requested no later than the close of the public comment period under Section 15 of these regulations on the permit from which the modification is sought.
- (D) Thermal discharges. A variance under the CWA Section 316(a) 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 the CWA Section 402(a) (1) or are based on water quality standards the request for a variance may be filed by the close of the public comment period under Section 15 of these regulations. A copy of the request as required under Appendix M of these regulations, shall be sent simultaneously to the director.
(b) Variance requests by POTWs. A discharger which is a publicly owned treatment works (POTW) may request a variance from otherwise applicable effluent limitations as follows:
Water quality based effluent limitation. A modification under CWA Section 302(b) (2) of the requirements under Section 302(a) for achieving water quality based effluent limitations shall be requested no later than the close of the public comment period under Section 15 of these regulations on the permit from which the modification is sought.
(c) Expedited variance procedures and time extensions. - (i) Notwithstanding the time requirements in Section 8(a) and (b), the director may notify a permit applicant before a draft permit is issued under Section 5 that the draft permit will likely contain limitations which are eligible for variances. In the notice the director may require the applicant as a condition of consideration of any potential variance request to submit a request explaining how the requirements of Section 5(c) (iii) (A) and (B) and Appendices F, L and M 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 granting of the variance.
(d) Decisions on variances. - (i) The director may grant or deny requests for the following variances:
- (A) Extensions under CWA Section 301(i) based on delay in completion of a publicly owned treatment works;
- (B) After consultation with the Regional Administrator, extensions under CWA Section 301(k) based on the use of innovative technology; or
- (C) Variances under CWA Section 316(a) for thermal pollution.
- (ii) The director may deny or forward to the Regional Administrator with a written concurrence, or submit to EPA without recommendation a completed request for:
- (A) A variance based on the economic capability of the applicant under CWA Section 301(c); or
- (B) A variance based on water quality related effluent limitations under CWA Section 302(b) (2).
- (iii) EPA may approve or deny any variance request. If EPA approves the variance, the director may prepare a draft permit incorporating the variance.
- (iv) The director may deny or forward to the Administrator of the EPA (or his delegate) with a written concurrence a completed request for:
- (A) A variance based on the presence of "fundamentally different factors" from those on which an effluent limitation guideline was based and in accordance with Appendix M of these regulations;
- (B) A variance based upon certain water quality factors under CWA Section 301(g).
- (v) The Administrator of the EPA (or his delegate) may grant or deny a request for a variance lis ted in Section 8(e) (iv) of these regulations. If the Administrator of the EPA (or his delegate) approves the variance, the director may prepare a permit incorporating the variance.
- (vi) Any public notice of a draft permit for which a variance has been approved or denied shall identify the applicable procedures for appealing that decision.
(e) When the director issues a permit on which EPA has made a variance decision, separate appeals of the permit and of the EPA variance decision are possible. - (i) Variance decisions made by EPA may be appealed under the provisions of 40 CFR 124.19.
- (ii) Decisions by the director regarding the issuance or denial of a WYPDES permit may be appealed in accordance with the provisions of Section 17 of these regulations.