[Code of Federal Regulations]

[Title 40, Volume 28]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR403.13]



[Page 46-50]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

 

PART 403_GENERAL PRETREATMENT REGULATIONS FOR EXISTING AND NEW SOURCES OF 

POLLUTION--Table of Contents

 

Sec.  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.

    (b) Purpose and scope. In establishing categorical Pretreatment 

Standards for existing sources, the EPA will take



[[Page 47]]



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 Sec.  

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;



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    (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 Federal Register.

    (3) Where the User has requested a categorical determination 

pursuant to Sec.  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 Sec.  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.



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    (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.



[[Page 50]]



    (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 Sec.  1.25 of this 

title) within 30 days of the Regional Administrator's decision.



[46 FR 9439, Jan. 28, 1981, as amended at 49 FR 5132, Feb. 10, 1984; 50 

FR 38811, Sept. 25, 1985; 51 FR 16030, Apr. 30, 1986; 54 FR 258, Jan. 4, 

1989; 57 FR 5347, Feb. 13, 1992; 58 FR 18017, Apr. 7, 1993; 60 FR 33932, 

June 29, 1995; 70 FR 60198, Oct. 14, 2005]