Section 323.1103. Variances.

(1) A variance may be granted from any water quality standard (WQS) that is the basis of a water quality-based effluent limitation in a national pollutant discharge elimination system (NPDES) permit, as restricted by the following provisions:

(a)    A WQS variance applies only to the permittee or permittees requesting the variance and only to the pollutant  or  pollutants  specified  in   the variance.   The variance does not modify the water quality standards  for the water body as a whole.

(b)   A variance shall not apply to new  dischargers  unless   the  proposed discharge is necessary to alleviate an imminent and substantial danger to the public health or welfare.

(c)     A WQS variance shall not be granted that would likely  jeopardize  the continued existence of any endangered or threatened species listed  under section 4 of the endangered species act or result in the destruction or adverse modification of the species’ critical habitat.

(d)  A WQS variance shall not be granted if the standard in the receiving water will be attained by implementing the treatment technology requirements under the clean water act of 1972, as amended, 33 U.S.C.§§301(b) and 306, and by the discharger implementing cost-effective and reasonable best management practices for nonpoint sources  over  which  the discharger has control within the vicinity of the facility.

(e)    The duration of a WQS variance shall not exceed the term of the NPDES permit. If the time frame of the variance is the same as the permit term, then the variance shall stay in  effect  until  the permit is reissued or revoked.

(2)   A variance may be granted if the  permittee   demonstrates  to  the department that attaining the WQS is not feasible for any of  the following reasons:

(a)  ) Naturally occurring pollutant concentrations prevent the attainment of the WQS.

(b)    Natural, ephemeral, intermittent, or low flow conditions   or  water levels prevent the attainment of the WQS.

(c)   Human-caused conditions or sources of pollution prevent the attainment of the WQS and cannot be remedied or more environmental damage would occur in correcting the conditions or sources of pollution than would occur by leaving the conditions or sources in place.

(d)    Dams, diversions, or other types of hydrologic modifications preclude the attainment of the WQS, and it is not feasible to restore the water body to its original condition or to operate the modification in a way that would result in the attainment of the WQS.

(e)   Physical conditions related to the natural features of the water body preclude attainment of WQS.

(f)  Controls more stringent than the treatment technology requirements in the clean water act of 1972, as amended, 33 U.S.C. §§301(b) and 306 would result  in unreasonable economic  effects  on  the  discharger  and  affected communities.

(3)   In addition to the requirements of  subrule  (2)   of  this  rule,  a permittee shall do both of the following:

(a)     Show that the variance requested conforms to the  antidegradation demonstration requirements of R 323.1098

(b)     Characterize the extent of any increased risk to human health and the environment associated with granting the variance compared with compliance with WQS without the variance in a way that enables the department to conclude that the increased risk is consistent with  the  protection  of the public health, safety, and welfare.

(4)    A permittee may request a variance when a NPDES permit application is submitted or during permit development. A variance request may also  be submitted with a request for a permit modification. The variance request to the department shall include the following information:

(a)    All relevant information which demonstrates that attaining the WQS is not feasible based on 1 or more of the conditions in subrule (2) of this rule.

(b)   All relevant information which demonstrates compliance with subrule (3) of this

rule.

(5)   The variance request shall be available to the public for review during the public

comment period on the  draft  NPDES  permit.  The  preliminary decision regarding the variance shall be included in the public notice of the draft NPDES permit. The department will notify the other Great Lakes states of the preliminary variance decision.

(6)   If the department determines, based on the conditions of subrules (2) and (3) of this rule, that the variance request demonstrates that attaining the WQS is not feasible, then the department shall authorize the variance through issuance of the NPDES permit. The permit shall contain all conditions needed to implement the variance, including, at a minimum, all  of the following conditions:

(a)   That compliance with an effluent limitation that, at the time the variance is granted, represents the level currently achievable by the permittee. For an existing discharge, the effluent limitation shall be no less stringent than that achieved under the previous permit.

(b)   That reasonable progress be made in effluent quality toward attaining the water quality standards. If the variance is approved for any BCC, a pollutant minimization program  shall   be  conducted  consistent  with  the provisions in paragraphs (i) through

(iv)    of R 323.1213(d). The department shall consider cost-effectiveness during the development  and  implementation of the pollutant minimization program.

(c)   That if the duration of a variance is shorter than the duration of a permit, then compliance with an effluent limitation that is sufficient to meet the underlying water quality standard  shall  be achieved  when  the variance expires.

(7)   The department shall deny a variance request through action on the NPDES permit if a permittee fails to make the demonstrations   required  under subrules (2) and

(3) of this rule.

(8) A variance may be renewed, subject to the requirements of subrules  (1) through

(7)   of this rule. As part of any renewal application, a permittee shall again demonstrate that attaining WQS is not  feasible  based  on   the requirements of subrules (2) and (3) of this rule. A permittee’s application shall also contain information concerning the permittee’s compliance with the conditions incorporated into the permittee’s permit as part of the original variance pursuant to subrule (6) of this rule.

(9)   Notwithstanding the provision in subrule (1)(a) of this rule, the department may grant multiple discharger  variances.  If  the  department determines that a multiple discharger variance is necessary to address widespread WQS compliance issues, including the presence of ubiquitous pollutants or naturally high background levels of pollutants in a watershed, then the department may waive the variance demonstration requirements in subrules (2), (3), and (4) of this rule. A permittee that is included in the multiple discharger variance will be subject to the permit requirements of subrule (6) of this rule if it is determined under R 323.1211 that there is reasonable potential for the pollutant to exceed a permit  limitation developed under to R 323.1209.

History: 1997 AACS.