40 CFR 403.13 – Variances from categorical pretreatment standards for fundamentally different factors
(a) Definition. The term Requester means an Industrial User or a POTW or other interested person seeking a variance from the limits specified in a categorical Pretreatment Standard.
Terms Used In 40 CFR 403.13
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
(b) Purpose and scope. In establishing categorical Pretreatment Standards for existing sources, the EPA will take into account all the information it can collect, develop and solicit regarding the factors relevant to pretreatment standards under section 307(b). In some cases, information which may affect these Pretreatment Standards will not be available or, for other reasons, will not be considered during their development. As a result, it may be necessary on a case-by-case basis to adjust the limits in categorical Pretreatment Standards, making them either more or less stringent, as they apply to a certain Industrial User within an industrial category or subcategory. This will only be done if data specific to that Industrial User 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 an Industrial User are fundamentally different from the factors considered during development of a categorical Pretreatment Standard applicable to that User and further, that the existence of those factors justifies a different discharge limit than specified in the applicable categorical Pretreatment Standard, may request a fundamentally different factors variance under this section or such a variance request may be initiated by the EPA.
(c) Criteria—(1) General criteria. A request for a variance based upon fundamentally different factors shall be approved only if:
(i) There is an applicable categorical Pretreatment Standard which specifically controls the pollutant for which alternative limits have been requested; and
(ii) Factors relating to the discharge controlled by the categorical Pretreatment Standard are fundamentally different from the factors considered by EPA in establishing the Standards; and
(iii) The request for a variance is made in accordance with the procedural requirements in paragraphs (g) and (h) of this section.
(2) Criteria applicable to less stringent limits. A variance request for the establishment of limits less stringent than required by the Standard shall be approved only if:
(i) The alternative limit requested is no less stringent than justified by the fundamental difference;
(ii) The alternative limit will not result in a violation of prohibitive discharge standards prescribed by or established under § 403.5;
(iii) The alternative limit will not result in a non-water quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the Pretreatment Standards; and
(iv) Compliance with the Standards (either by using the technologies upon which the Standards are based or by using other control alternatives) would result in either:
(A) A removal cost (adjusted for inflation) wholly out of proportion to the removal cost considered during development of the Standards; or
(B) A non-water quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the Standards.
(3) Criteria applicable to more stringent limits. A variance request for the establishment of limits more stringent than required by the Standards shall be approved only if:
(i) The alternative limit request is no more stringent than justified by the fundamental difference; and
(ii) Compliance with the alternative limit would not result in either:
(A) A removal cost (adjusted for inflation) wholly out of proportion to the removal cost considered during development of the Standards; or
(B) A non-water quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the Standards.
(d) Factors considered fundamentally different. Factors which may be considered fundamentally different are:
(1) The nature or quality of pollutants contained in the raw waste load of the User’s process wastewater:
(2) The volume of the User’s process wastewater and effluent discharged;
(3) Non-water quality environmental impact of control and treatment of the User’s raw waste load;
(4) Energy requirements of the application of control and treatment technology;
(5) Age, size, land availability, and configuration as they relate to the User’s equipment or facilities; processes employed; process changes; and engineering aspects of the application of control technology;
(6) Cost of compliance with required control technology.
(e) Factors which will not be considered fundamentally different. A variance request or portion of such a request under this section may not be granted on any of the following grounds:
(1) The feasibility of installing the required waste treatment equipment within the time the Act allows;
(2) The assertion that the Standards cannot be achieved with the appropriate waste treatment facilities installed, if such assertion is not based on factors listed in paragraph (d) of this section;
(3) The User’s ability to pay for the required waste treatment; or
(4) The impact of a Discharge on the quality of the POTW’s receiving waters.
(f) State or local law. Nothing in this section shall be construed to impair the right of any state or locality under section 510 of the Act to impose more stringent limitations than required by Federal law.
(g) Application deadline. (1) Requests for a variance and supporting information must be submitted in writing to the Director or to the Administrator (or his delegate), as appropriate.
(2) In order to be considered, a request for a variance must be submitted no later than 180 days after the date on which a categorical Pretreatment Standard is published in the
(3) Where the User has requested a categorical determination pursuant to § 403.6(a), the User may elect to await the results of the category determination before submitting a variance request under this section. Where the User so elects, he or she must submit the variance request within 30 days after a final decision has been made on the categorical determination pursuant to § 403.6(a)(4).
(h) Contents submission. Written submissions for variance requests, whether made to the Administrator (or his delegate) or the Director, must include:
(1) The name and address of the person making the request;
(2) Identification of the interest of the Requester which is affected by the categorical Pretreatment Standard for which the variance is requested;
(3) Identification of the POTW currently receiving the waste from the Industrial User for which alternative discharge limits are requested;
(4) Identification of the categorical Pretreatment Standards which are applicable to the Industrial User;
(5) A list of each pollutant or pollutant parameter for which an alternative discharge limit is sought;
(6) The alternative discharge limits proposed by the Requester for each pollutant or pollutant parameter identified in paragraph (h)(5) of this section;
(7) A description of the Industrial User’s existing water pollution control facilities;
(8) A schematic flow representation of the Industrial User’s water system including water supply, process wastewater systems, and points of Discharge; and
(9) A Statement of facts clearly establishing why the variance request should be approved, including detailed support data, documentation, and evidence necessary to fully evaluate the merits of the request, e.g., technical and economic data collected by the EPA and used in developing each pollutant discharge limit in the Pretreatment Standard.
(i) Deficient requests. The Administrator (or his delegate) or the Director will only act on written requests for variances that contain all of the information required. Persons who have made incomplete submissions will be notified by the Administrator (or his delegate) or the Director that their requests are deficient and unless the time period is extended, will be given up to thirty days to remedy the deficiency. If the deficiency is not corrected within the time period allowed by the Administrator (or his delegate) or the Director, the request for a variance shall be denied.
(j) Public notice. Upon receipt of a complete request, the Administrator (or his delegate) or the Director will provide notice of receipt, opportunity to review the submission, and opportunity to comment.
(1) The public notice shall be circulated in a manner designed to inform interested and potentially interested persons of the request. Procedures for the circulation of public notice shall include mailing notices to:
(i) The POTW into which the Industrial User requesting the variance discharges;
(ii) Adjoining States whose waters may be affected; and
(iii) Designated 208 planning agencies, Federal and State fish, shellfish and wildlife resource agencies; and to any other person or group who has requested individual notice, including those on appropriate mailing lists.
(2) The public notice shall provide for a period not less than 30 days following the date of the public notice during which time interested persons may review the request and submit their written views on the request.
(3) Following the comment period, the Administrator (or his delegate) or the Director will make a determination on the request taking into consideration any comments received. Notice of this final decision shall be provided to the requester (and the Industrial User for which the variance is requested if different), the POTW into which the Industrial User discharges and all persons who submitted comments on the request.
(k) Review of requests by state. (1) Where the Director finds that fundamentally different factors do not exist, he may deny the request and notify the requester (and Industrial User where they are not the same) and the POTW of the denial.
(2) Where the Director finds that fundamentally different factors do exist, he shall forward the request, with a recommendation that the request be approved, to the Administrator (or his delegate).
(l) Review of requests by EPA. (1) Where the Administrator (or his delegate) finds that fundamentally different factors do not exist, he shall deny the request for a variance and send a copy of his determination to the Director, to the POTW, and to the requester (and to the Industrial User, where they are not the same).
(2) Where the Administrator (or his delegate) finds that fundamentally different factors do exist, and that a partial or full variance is justified, he will approve the variance. In approving the variance, the Administrator (or his delegate) will:
(i) Prepare recommended alternative discharge limits for the Industrial User either more or less stringent than those prescribed by the applicable categorical Pretreatment Standard to the extent warranted by the demonstrated fundamentally different factors;
(ii) Provide the following information in his written determination:
(A) The recommended alternative discharge limits for the Industrial User concerned;
(B) The rationale for the adjustment of the Pretreatment Standard (including the reasons for recommending that the variance be granted) and an explanation of how the recommended alternative discharge limits were derived;
(C) The supporting evidence submitted to the Administrator (or his delegate); and
(D) Other information considered by the Administrator (or his delegate) in developing the recommended alternative discharge limits;
(iii) Notify the Director and the POTW of his or her determination; and
(iv) Send the information described in paragraphs (l)(2) (i) and (ii) of this section to the Requestor (and to the Industrial User where they are not the same).
(m) Request for hearing. (1) Within 30 days following the date of receipt of the notice of the decision of the Administrator’s delegate on a variance request, the requester or any other interested person may submit a petition to the Regional Administrator for a hearing to reconsider or contest the decision. If such a request is submitted by a person other than the Industrial User the person shall simultaneously serve a copy of the request on the Industrial User.
(2) If the Regional Administrator declines to hold a hearing and the Regional Administrator affirms the findings of the Administrator’s delegate the requester may submit a petition for a hearing to the Environmental Appeals Board (which is described in § 1.25 of this title) within 30 days of the Regional Administrator’s decision.