N.J. Admin. Code § 7:14A-21.5 - Variance from categorical pretreatment standards for fundamentally different factors

(a) Any interested person believing that factors relating to an indirect user are fundamentally different from the factors considered during development of a categorical pretreatment standard applicable to that indirect user and 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.

1. 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;

ii. Factors relating to the discharge controlled by the categorical pretreatment standard are fundamentally different from the factors considered by USEPA in establishing the standards; and

iii. The request for a variance is made in accordance with the procedural requirements of (e) and (f) below.

2. 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 any prohibition established under 7:14A-21.2(a)1;

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:

(1) A removal cost (adjusted for inflation) wholly out of proportion to the removal cost considered during development of the standards; or

(2) A non-water quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the standards.

3. 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:

(1) A removal cost (adjusted for inflation) wholly out of proportion to the removal cost considered during development of the standards; or

(2) A non-water quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the standards.

(b) Factors which may be considered fundamentally different are:

1. The nature or quality of pollutants contained in the raw waste load of the indirect user's process wastewater;

2. The volume of the indirect user's process wastewater and effluent discharged;

3. The non-water quality environmental impact of control and treatment of the indirect user's raw waste load;

4. The energy requirements of the application of control and treatment technology;

5. The age, size, land availability, and configuration as they relate to the indirect user's equipment or facilities, processes employed, process changes, and engineering aspects of the application of control technology; and

6. The cost of compliance with required control technology.

(c) A variance request or portion of such a request under this section shall 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 (b) above;

3. The indirect user's ability to pay for the required waste treatment; or

4. The impact of a discharge on the quality of the local agency's receiving waters.

(d) Nothing in this section shall be construed to impair the right of any local agency to impose more stringent limitations than required by Federal law.

(e) Requests for a variance and supporting information shall be submitted in writing to the Department no later than 180 days after the date on which a categorical pretreatment standard is published in the Federal Register for a request based on a categorical pretreatment standard promulgated on or after February 4, 1987.

1. Where the indirect user has requested a categorical determination pursuant to 7:14A-21.3(a), the indirect user may elect to await the results of the categorical determination before submitting a variance request under this section. Where the indirect 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.

(f) Written variance requests shall 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 local agency currently receiving the waste from the indirect user for which alternative discharge limits are requested;

4. Identification of the categorical pretreatment standards which are applicable to the indirect 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 pursuant to (f)5 above;

7. A description of the indirect user's existing water pollution control facilities;

8. A schematic flow representation of the indirect 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 USEPA and used in developing each pollutant discharge limit in the pretreatment standard.

(g) The Department shall act only on written requests for variances that contain all of the information required pursuant to (f) above. Persons who have made incomplete submissions will be notified by the Department that their requests are deficient and unless the time period is extended, will be given up to 30 days to remedy the deficiency. If the deficiency is not corrected within the time period allowed by the Department, the request for a variance shall be denied.

(h) Upon receipt of a complete request, the Department shall provide public notice of receipt, opportunity to review the submission, and opportunity to comment.

1. The public notice shall be published in a manner designed to inform interested and potentially interested persons of the request and shall include mailing notices to:

i. The local agency into whose treatment works the indirect user requesting the variance discharges;

ii. Adjoining states whose waters may be affected;

iii. Agencies responsible for areawide Water Quality Management Plan, Federal and State fish, shellfish and wildlife resource agencies; and

iv. 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 written comments on the request.

3. Following the comment period, the Department 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 indirect user for which the variance is requested, if different, the local agency into whose treatment works the indirect user discharges and all persons who submitted comments on the request.

(i)Review of requests by the Department is as follows:

1. Where the Department finds that fundamentally different factors do not exist, it shall deny the request and notify the requester (and indirect user where they are not the same) and the local agency of the denial.

2. Where the Department finds that fundamentally different factors do exist, it shall forward the request, with a recommendation that the request be approved, to the USEPA Administrator. (Review of the variance request by USEPA is governed by 40 CFR Part 403.13(l) ).

(j) Requests for an adjudicatory hearing shall be as follows:

1. If the Department denies the variance request, the requester may request an adjudicatory hearing pursuant to N.J.A.C. 7:14A-17.

2. If USEPA denies the variance request, the requester may seek relief pursuant to 40 CFR Part 403.13(m).

Notes

N.J. Admin. Code § 7:14A-21.5