40 CFR 124.62 – Decision on variances
(Applicable to State programs, see § 123.25 (NPDES).)
(a) The Director may grant or deny requests for the following variances (subject to EPA objection under § 123.44 for State permits):
(1) Extensions under CWA section 301(i) based on delay in completion of a publicly owned treatment works;
(2) After consultation with the Regional Administrator, extensions under CWA section 301(k) based on the use of innovative technology; or
(3) Variances under CWA section 316(a) for thermal pollution.
(b) The State Director may deny, or forward to the Regional Administrator with a written concurrence, or submit to EPA without recommendation a completed request for:
(1) A variance based on the economic capability of the applicant under CWA section 301(c); or
(2) A variance based on water quality related effluent limitations under CWA section 302(b)(2).
(c) The Regional Administrator may deny, forward, or submit to the EPA Office Director for Water Enforcement and Permits with a recommendation for approval, a request for a variance listed in paragraph (b) of this section that is forwarded by the State Director, or that is submitted to the Regional Administrator by the requester where EPA is the permitting authority.
(d) The EPA Office Director for Water Enforcement and Permits may approve or deny any variance request submitted under paragraph (c) of this section. If the Office Director approves the variance, the Director may prepare a draft permit incorporating the variance. Any public notice of a draft permit for which a variance or modification has been approved or denied shall identify the applicable procedures for appealing that decision under § 124.64.
(e) The State Director may deny or forward to the Administrator (or his delegate) with a written concurrence a completed request for:
(1) A variance based on the presence of “fundamentally different factors” from those on which an effluent limitations guideline was based;
(2) A variance based upon certain water quality factors under CWA section 301(g).
(f) The Administrator (or his delegate) may grant or deny a request for a variance listed in paragraph (e) of this section that is forwarded by the State Director, or that is submitted to EPA by the requester where EPA is the permitting authority. If the Administrator (or his delegate) approves the variance, the State Director or Regional Administrator may prepare a draft permit incorporating the variance. Any public notice of a draft permit for which a variance or modification has been approved or denied shall identify the applicable procedures for appealing that decision under § 124.64.