Variance Compendium January 24, 2011

This compendium was developed by an EPA contractor using information obtained from informal interviews with EPA regions.

1 

Variance Compendium

Introduction

This compendium contains information related to variances for water quality standards (WQS). 

Information was collected from the Internet and short interviews conducted with 9 of the 10 EPA 

regional WQS coordinators. Note that this compendium does not represent new information, but rather 

compiles existing information. The compendium is divided into frequently asked questions (FAQs), 

references, case studies, and appendices. 

The FAQs provide readers with information such as explaining what variances for WQS are, a summary 

of guidance documents for variances, an overview of the coordination between the states and EPA, 

information used to justify a variance, EPA’s approval of variances, and variance renewal information. 

The three case studies provide examples of successfully approved variances that states implemented 

throughout the United States and used to demonstrate progress toward meeting WQS for several 

pollutants of concern. These case studies highlight how variances have been used in real situations, and 

include the following:

• Idaho Variances for Metals in the South Fork Coeur d’Alene River

• Texas WQS Variance for Aluminum in Bear Creek Tributaries 

• West Virginia Variance for Chloride in Ward Hollow of Davis Creek

The nine appendices provide the following additional information:

• Appendix A: Variances by State

• Appendix B: Example Variance Application Forms

• Appendix C: Example Memorandums of Agreement (MOAs) 

• Appendix D: Example Process Diagram of Roles and Responsibilities

• Appendix E: Example EPA Approval Letters for Variances

• Appendix F: Example Public Notices

• Appendix G: Example EPA Region and State Guidance Documents

• Appendix H: Example Worksheets to Justify the Economic Factor

• Appendix I: Considerations for Use of Selected 131.10(g) Factors

EPA is currently in the process of proposing targeted changes to the WQS regulations at 40 CFR Part 131

(including the variance provision), and intends to publish a notice of proposed rulemaking in the Federal 

Register in summer 2011. Once EPA publishes a notice of final rulemaking (estimated to be in summer 

2012), any guidance, policy interpretations, or common practices contained in this compendium may be 

subject to change based on the revised regulation at 40 CFR Part 131.
Variance Compendium January 24, 2011

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Frequently Asked Questions

What is a variance?

EPA considers a variance to be a temporary modification to the designated use and associated water 

quality criteria that would otherwise be applicable without the variance. Variances have been based on 

analyses that meet the requirements governing changes to uses. During the duration of a variance, the 

highest attainable use and associated criteria are targeted (USEPA 2007; USEPA n.d.). 

The purpose of a variance is to allow a state/tribe to limit applicability of certain criteria and to identify an 

alternative designated use (this has not always been explicit) and associated criteria to meet over a 

specified period (duration) while incremental improvements or studies are made. Variances allow for a 

more site-specific and time-limited consideration of attainability than a permanent designated use 

revision. They encourage maintenance of original standards as goals instead of removing or putting in 

place a use that represents a lesser goal than could be attained in the long term. For example, technology 

improvements could lower treatment costs in the future and ultimately allow attainment of the original 

WQS. Variances cover specific pollutants and target either pollutant sources or geographic areas. 

Variances only apply to the WQS for which they were written; they do not modify or affect the 

implementation of other standards that have not been modified (USEPA 1994; USEPA 2007; USEPA n.d.). 

The variance process simplifies how to determine an existing use by limiting the scope of the 

demonstration in terms of time, discharges affected, and parameters considered. This makes the review 

and application process somewhat less open-ended (which benefits the applicant) and limits the 

applicability of the variance to just the applicant and the parameters and duration proposed (which 

benefits the environment when compared to a full designated use change).

EPA first formally indicated allowability of state WQS variance provisions in Decision of the General 

Counsel No. 44, dated June 22, 1976. The decision specifically considered an Illinois variance provision and 

expanded on the acceptability of state WQS variance procedures in Decision of the General Counsel No. 

58, dated March 28, 1977. Over the years, subsequent guidance elaborated or clarified the variance 

policy. On July 3, 1979, EPA’s Director of the Criteria and Standards Division transmitted EPA’s definition 

of a WQS variance to the regional WQS coordinators. On March 15, 1985, the Director of the Office of 

Water Regulations and Standards issued clarification that any of the 131.10(g) factors could be used when 

granting variances (USEPA 1994). These factors are discussed in greater detail below.

40 CFR 131.13 explicitly acknowledges that states may adopt and use variances in the implementation of 

WQS (USEPA 2007): 

States may, at their discretion, include in their state standards policies generally affecting their application 

and implementation, such as mixing zones, low flows and variances. Such policies are subject to EPA review 

and approval.

According to an EPA memo on variances in WQS (Johnson 1985), it is appropriate to grant short term 

variances in situations that would also qualify for use removal or adoption of a use subcategory: 
Variance Compendium January 24, 2011

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As long as any temporary water quality standards modification conforms to the requirements established in 

Section 131.10(g) of the regulation for downgrading uses, such an approach is acceptable as it would lead 

to only a temporary change to a water quality standard rather than a permanent downgrade...

Section 131.10(g) authorizes removal of a designated use that is not an existing use if attaining the 

designated use is not feasible because of any of the following factors (USEPA 2007): 

1. Naturally occurring pollutant concentrations prevent the attainment of the use; or

2. Natural, ephemeral, intermittent or low flow conditions or water levels prevent the 

attainment of the use, unless these conditions may be compensated for by the discharge of 

sufficient volume of effluent discharges without violating state water conservation 

requirements to enable uses to be met; or

3. Human caused conditions or sources of pollution prevent the attainment of the use and 

cannot be remedied or would cause more environmental damage to correct than to leave in 

place; or

4. Dams, diversions or other types of hydrologic modifications preclude the attainment of the 

use, and it is not feasible to restore the water body to its original condition or to operate such 

modification in a way that would result in the attainment of the use; or

5. Physical conditions related to the natural features of the water body, such as the lack of a 

proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to water quality, 

preclude attainment of aquatic life protection uses; or

6. Controls more stringent than those required by sections 301(b) and 306 of the Act would 

result in substantial and widespread economic and social impact.

The six 131.10(g) factors, which are used to justify a use attainability analysis, are the same factors 

applied when justifying variances. When approving variances in the past, EPA has considered the 

following factors (USEPA 1994; USEPA 1998): 

• Existing water quality criteria remain in effect for implementation in National Pollutant 

Discharge Elimination System (NPDES) permits, as appropriate, for those sources not included 

in the variance. 

• Other applicable WQS will continue to be implemented. 

• Meeting the standard (for which the variance applies) is unattainable based on one or more 

of the 131.10(g) factors.

• Variances are set for a specific duration and can be reviewed as part of state’s triennial 

review.

• Reasonable progress can be made toward meeting the WQS; for variance renewals, verify 

that reasonable progress has occurred. 

• The original criteria will have full effect upon expiration of the variance. 

• Variances may be renewed only when the dischargers make a new demonstration of 

“unattainability.”

• Public notice, opportunity for comment, and public hearing are all provided; the public notice 

should contain a clear description of the applicability of the variance upon achieving WQS in 

the affected waterbody segment.
Variance Compendium January 24, 2011

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• The state adopts the variance as WQS, as specified in the state’s variance regulations, and 

submits the variance to EPA under CWA section 303(c).

• The variance is as close to the underlying numeric criteria as is achievable. 

• Justification from the state includes documentation that treatment more advanced than 

required by sections 303(c)(2)(A) and (B) has been carefully considered, and alternative 

effluent control strategies have been evaluated.

Variances can be written for a single discharger, or in some cases, multiple dischargers. For example, the 

Michigan Department of Natural Resources and the Environment adopted, and EPA subsequently 

approved, a multi-discharger variance for mercury. This variance was part of a broader strategy for 

addressing mercury in NPDES permitted discharges as a way to address the widespread inability of 

municipal dischargers to meet limits based on the mercury criterion. Variances can also be written for 

entire waterbodies or just segments of waterbodies.

Not all states use variances. Some use variances to demonstrate progress towards meeting WQS; other 

states have not issued a variance to date. In some cases, regions and states may instead rely on other 

options, such as the development of compliance schedules or use of site-specific criteria. In other cases, 

the variance period has been used to develop site-specific criteria. Some states use similar tools to 

variances, such as temporary modifications of their WQS. Refer to Appendix G, specifically the fact sheet 

on Colorado, for further information. States often make decisions about whether to use a variance as a 

tool based on the water quality challenges they face. 

States within 7 of the 10 regions have approved variances in place (Table 1). Note that the information in 

Table 1 is from the best available information as of January 20, 2011. Not all regions have verified these

numbers. Numerous factors can affect why some states and regions have more variances than others, 

such as differences in WQS, the complexity of the individual case, different regulatory history among the 

states/regions, or decisions to use other tools instead of variances (e.g., temporary modifications to 

WQS). More detailed information about specific variances can be found in Appendix A. 

Table 1: WQS Variances by EPA Region

Region Number of WQS 

Variances

1 1–5

2 0

3 1–5

4 6–10 

5 > 50

6 21–50

7 0 

8 0 

9 6–10

10 1–5 
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What kind of guidance exists on variances?

Because there is little information available about variances in current regulations, to date, EPA and states 

have relied on guidance for information about variances. The following guidance documents for variances 

were obtained through Internet research and from the EPA regions.

Court cases in the 1970s set some framework for early variances. Refer to Decision of the General Counsel 

No. 44 (June 22, 1976) and Decision of the General Counsel No. 58 (March 28, 1977) for more 

information. The court cases are available for download at: 

http://www.epa.gov/waterscience/standards/library/section40cfr1.pdf and 

http://www.epa.gov/waterscience/standards/library/section40cfr3.pdf, respectively.

On July 3, 1979 EPA’s Director of the Criteria and Standards Division sent a memo to the regional WQS 

coordinators that transmitted EPA’s definition of a WQS variance. The memo is available for download at: 

http://water.epa.gov/scitech/swguidance/waterquality/standards/upload/2008_08_04_standards_wqste

rms.pdf. 

In 1985, the Director of EPA’s Office of Water Regulations and Standards issued a memo to the water 

division directors, responding to questions about WQS variances and issuing a reinterpretation of the 

factors that could be considered when granting variances (USEPA 1985). The memo is available for 

download at: 

http://water.epa.gov/scitech/swguidance/waterquality/standards/upload/2008_08_04_standards_wqsva

riance.pdf. 

EPA’s National Assessment of State Variance Procedures (USEPA 1990) includes a background on 

variances, the reasoning for the assessment, the approach used to conduct the assessment, and major 

findings and conclusions. The report also recommends actions that states, regional offices, and EPA 

should take in response to the findings and conclusions of the assessment, as well as follow-up actions 

EPA took after the assessment. The report can be downloaded at: 

http://water.epa.gov/scitech/swguidance/waterquality/standards/upload/1999_11_03_standards_varian

cereport.pdf

EPA’s Water Quality Standards Handbook: Second Edition (USEPA 1994) provides a basic background of 

variances, discusses variance procedural requirements, and summarizes requirements for EPA approval of 

state-adopted variances. The handbook is available for download at: 

http://water.epa.gov/scitech/swguidance/waterquality/standards/handbook/index.cfm. 

EPA’s Advanced Notice of Proposed Rulemaking (ANPRM) (USEPA 1998) sought comments on possible 

revisions to the WQS regulation at 40 CFR Part 131. The possible revisions would provide specific 

clarification of EPA’s policy regarding variances. In addition to seeking comments, the ANPRM provides 

information such as essential elements of a variance, historical background, and brief summaries of 

different guidance documents related to the topic. The ANPRM is available at: 

http://www.epa.gov/fedrgstr/EPA-WATER/1998/July/Day-07/w17513.htm. 
Variance Compendium January 24, 2011

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EPA also issued a guidance document on combined sewer overflows (CSOs) titled Guidance: Coordinating 

CSO Long-Term Planning With Water Quality Standards Reviews (USEPA 2001), which was designed to 

address questions on integrating development of CSO long-term control plans (LTCPs) with water quality 

standards reviews. The guidance expands on EPA’s 1994 CSO Control Policy and provides some basic 

information about what a variance is and when it is appropriate in instances where waterbodies receive 

CSO discharges. The document is available for download at: 

http://nepis.epa.gov/Adobe/PDF/20004DL6.PDF. 

Region 7 has developed procedural guidelines for variances to WQS in their region (USEPA n.d.). The 

guidelines provide basic background on EPA’s variance provision and information about variance 

submittal, review, and tracking. The guidelines also provide a submittal checklist, as well as an internal 

checklist for EPA use. The Region 7 guidance is attached as Appendix G of this compendium. Note that the 

document is Region 7’s guidance and does not necessarily reflect how other regions handle variances.

The Great Lakes Water Quality Guidance (40 CFR 132, Appendix F, Procedure 2) provides information 

about variance procedure requirements for WQS for point sources for Great Lakes states or tribes. 

Additional detailed information is available at: http://ecfr.gpoaccess.gov/cgi/t/text/textidx?c=ecfr&sid=f8231f888f7f6a3fe3714c80efd26020&rgn=div9&view=text&node=40:21.0.1.1.19.0.16.7.2

5&idno=40. 

Readers interested in learning more about variances can explore a module from EPA’s WQS Academy, 

which provides a basic introduction to variances, including what they are, their purpose, legal basis, 

factors supporting variances, and cautions for use (USEPA 2007). Access the module at:

http://water.epa.gov/learn/training/standardsacademy/upload/2007_11_15_standards_academy_basic_

course_15-variances-11-15-07.pdf. 

Another useful source of information is the example variance approval letters provided in Appendix E.

Who originates a variance?

In many cases, a discharger will approach the state requesting a variance. The state may work with the 

discharger to prepare the appropriate information to support the variance or require the discharger to 

provide all necessary supporting information. Each state has its own legal and administrative procedures 

for revising WQS. Once a state has gone through its internal process (including opportunity for public 

comment), the state submits a variance package to EPA for review and approval. EPA must approve a 

variance before it becomes effective. Many states approach EPA early in the process, sometimes as soon 

as a discharger has begun to ask about variances. Such early involvement provides an opportunity for EPA 

to ask clarifying questions, to ensure the data and information necessary to support the variance 

application are available and compelling, and for EPA to have input on whether a variance is appropriate

for the particular circumstance. It also provides an opportunity for EPA to explain the variance process to 

a discharger and address any questions they might have. 

What kind of coordination is required within EPA?

Most regions reported that once a state has decided to go forward with issuing a variance, there is 

ongoing communication between the WQS and NPDES permit staff at the region. Several regions 
Variance Compendium January 24, 2011

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commented that this coordination is essential. Two regions noted that WQS staff may also need to obtain 

information beyond the WQS and NPDES programs. For instance, for variances that relate to 131.10(g) 

factor 6 (widespread socio-economic impact), there might also need to be involvement from a regional 

grants program or others with expertise in economics. For other analyses, engineering expertise might be 

needed.

What resources are required to develop and approve a variance?

Overall, most regions indicated that coordination among dischargers, states, and EPA regarding variances 

has been effective. It is not possible to provide a single estimate of the time it takes or the resources 

required to develop a variance, have it processed by the state, and approved by EPA. Most regions 

reported that the process varies on a case-by-case basis, with complex or controversial cases taking much 

longer than those that are straightforward or uncontroversial. The availability of adequate data can also 

factor into how long it takes for a variance to be developed and approved. For example, Wisconsin’s 

guidance for copper variances recommends starting the variance process and beginning data collection 12 

months prior to permit reissuance.

Several regions reported that once a state submits a WQS package that includes a variance, a variance 

action takes about the same amount of time as other substantive WQS submittals (e.g., a site-specific 

criterion, reclassification), but less time than revisions associated with a full triennial review. Two regions 

reported that a variance could take longer than other types of actions; a variance could require two 

actions—approval of the initial variance and, in the case of a renewal, a review of the actions taken and 

progress made. 

There was general agreement among the regions that the first issuance of a variance takes more time 

than a renewal of an existing variance. It is important to note that states submit state-adopted variances 

to EPA for review and approval. In some cases, the state may realize that a variance is not approvable in a 

given circumstance, and the state will not approve or adopt the variance under the state process or 

submit it to EPA. For example, in several cases, an applicant has provided information to assess 

widespread economic impact, but the region or state has determined that the facility did not adequately 

demonstrate adverse economic impacts. One region noted that there have been instances when the 

supporting information for a variance request has been determined to be insufficient before submission 

to EPA, so the state did not submit the variance for EPA approval. 

One region noted that waterbody or statewide variance processes could take a long time to complete and 

be resource intensive (e.g., modeling might be required to show what is achievable). As an example, one 

region added that in cases where a waterbody is shared by multiple states, EPA may have a greater role in 

development of the variance. 

What type of information is needed to justify a variance?

According to EPA’s Water Quality Standards Handbook (USEPA 1994), variances to WQS involve the same 

substantive and procedural requirements as removing a designated use, but specifically target and 

identify the applicable discharger(s), pollutant(s), and time limit. The justification should include an 

analysis demonstrating that one of the 131.10(g) factors for removing a designated use applies and target 

achievements of the highest attainable use and associated criteria for the variance period. The applicant 
Variance Compendium January 24, 2011

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should provide sufficient information to show that an aspect of the WQS is not attainable based on one or 

more of the 131.10(g) factors. Several regions specified that the type of information to justify a variance 

varies on a case-by-case basis, but can involve provision of information such as toxicity tests, field work, 

or economic analyses. 

Once a variance is approved, what happens during the variance period? 

Most regions that have approved variances indicated that when a variance is implemented, the state 

requires monitoring or other studies to be conducted (including studies to show what is achievable). In 

addition, states may review the variance as part of the triennial review to see if any new information has 

become available indicating that the uses are attainable.

One region indicated that some facilities receive biomonitoring requirements applicable during the terms 

of the permit, and that the permittee must continue to meet all other limitations for other parameters. 

Several regions indicated that states are required to provide detailed plans of actions the permitees will 

take for each variance. One region has requested that the state require permitees to submit studies 

examining aquatic species in the waterbody where the variance for an aquatic life criterion would apply. 

Another region reported that a discharger must demonstrate how close they can come to meeting the 

existing WQS during the variance period. That region also reported that interim permit limits are included 

and the permit is definitive about what the permittee is required to do (e.g., conditions or milestones to 

address specific problems).

Another region provided examples of permit requirements, such as a requirement to assess new 

technologies and to develop implementation plans (on a case-by-case basis). If a state is interested in 

formally articulating requirements beyond what is in the state’s variance standard itself in order to 

demonstrate progress, they may articulate those additional requirements through permit conditions or 

some other means.

Can variances be renewed?

Variances can be renewed. Whether a variance needs to be renewed depends on the situation and 

progress made toward meeting WQS. The number of times a variance is renewed can vary depending on 

many site-specific factors, such as if progress is continuing to be made to meet WQS, whether the 

conditions under which the original variance was granted continue to exist, or if sampling data could not 

be collected. For example, one region noted a case where an extenuating circumstance—specifically a 

hurricane—did not allow for collection of sufficient data. In general, issuing a variance renewal is less

resource-intensive than the initial variance. However, the requirements and data collection remain the 

same for the initial variance.

One region indicated that one state requires the following three elements to justify a variance renewal: 

(1) demonstration of reasonable progress under the current permit toward meeting applicable WQS; (2) 

justification for a renewed variance based on one of the six factors; and (3) a plan for making reasonable 

progress toward meeting WQS in the future.
Variance Compendium January 24, 2011

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No region indicated that it would not allow a renewal of an existing variance. Of the nine regions 

interviewed, six have renewed variances. Additional information about variances that have been renewed 

can be found in Appendix A.

What are some issues associated with variance approval?

Regions reported that there are instances when a variance might not be appropriate, even after all 

questions have been answered and data have been collected and submitted. In some cases, a variance 

simply might not be the right tool for the water quality problem at hand (e.g., site-specific criteria might 

be a more appropriate option). Alternately, the data might not support granting the variance (e.g., 

insignificant data is provided to make a case or the provided information does not prove that attaining the 

use is infeasible because of one of the 131.10(g) factors). One region indicated that in at least one case, 

the data did not support the significant and widespread economic test needed under 131.10(g) factor 6. 

Some issues with variance approval are not technical, but rather administrative. Examples include failure 

to provide an opportunity for public comment, failure to follow established/legally required state or tribal 

administrative procedures, and failure to meet the submittal requirements of 40 CFR 131.6, specially legal 

certification. Several regions commented that in cases where variances are not approved, the currently 

applicable WQS remain in effect.

Regions were asked about decision points and information gaps that have caused delays during the 

variance review and approval process. One region noted that sometimes EPA may have questions about 

whether the WQS could be attained by another approach or treatment technology that was not 

evaluated. Therefore, early EPA involvement can be beneficial to avoid identifying issues late in the 

process. Another region commented that gathering and processing economic data to support a variance 

under 131.10(g) factor 6 can be challenging. Technically, one hurdle to variance approval can be 

identifying what the facility would have to do to ensure attainment of the discharge limits necessary to 

comply with WQS as well as information on the cost.

How is information regarding emerging treatment techniques and technologies 

shared and used by involved parties? 

One region noted that sharing information on emerging techniques and technologies occurs on a case-bycase basis since there is no established EPA procedure for sharing this information among states and 

dischargers. Information sharing is most successful when a variance includes requirements that a 

discharger investigate new technologies and practices to reduce the pollutant of concern. In other cases, 

there might not be treatment technologies to reduce the pollutant(s) of concern and efforts must be 

focused on source control. In this regard, one region commented that pickle production uses a process 

that results in high conductivity that cannot be reduced through treatment. This type of company should 

instead report on in-plant minimization and spill control practices before water reaches the wastewater 

treatment plant.

Two regions noted that information on emerging treatment technologies and techniques is not readily 

available to states and EPA, and they must work closely with the facilities to gain a common 

understanding of what emerging treatment technologies may be relevant for consideration. For example, 

one region commented that frequently dischargers are unclear about the state’s and/or EPA’s 
Variance Compendium January 24, 2011

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expectations regarding alternative analyses and reaching a common understanding regarding those 

expectations may require EPA to make multiple communication loops before the information and 

analyses meet the state’s and/or EPA’s expectations. In addition, evaluation of emerging treatment 

technologies can be difficult, often requiring more work or closer scrutiny by the most knowledgeable 

parties. 

Another region noted that it is especially important for emerging treatment techniques and technologies 

to be shared with all involved parties and used/put into place when the justification for the variance is 

based on economics. EPA desires that dischargers continue to evaluate whether they are achieving the 

best water quality feasible. 

Have there been Endangered Species Act (ESA) consultations related to 

variances?

There have been ESA consultations related to variances. An ESA consultation is required if listed species 

are present in area where the variance applies. Two regions reported having needed to undertake ESA 

consultations as part of a variance approval. Other regions reported that they did not have any cases 

where an ESA-listed species was present at the specific site where the variance applies. 

Is there existing litigation on variances?

No regions are currently engaged in any litigation related to variances, though there has been litigation in 

the past. While there may be some states that have NPDES permits undergoing litigation, the litigation is 

not specific to the change in WQS or the variance. 

References 

Johnson, E.L. 1985, March 15. Letter from Edwin Johnson, U.S. Environmental Protection Agency, to 

Water Division Directors, U.S. Environmental Protection Agency, regarding variances in water 

quality standards. 

http://water.epa.gov/scitech/swguidance/waterquality/standards/upload/2008_08_04_standard

s_wqsvariance.pdf. Accessed January 2011.

USEPA. No Date. Variances to Water Quality Standards: Procedural Guidelines. U.S. Environmental 

Protection Agency, Region 7.

USEPA. 1990. National Assessment of State Variance Procedures. U.S. Environmental Protection Agency. 

http://water.epa.gov/scitech/swguidance/waterquality/standards/upload/1999_11_03_standard

s_variancereport.pdf. Accessed January 2011.

USEPA. 1994. Water Quality Standards Handbook: Second Edition. EPA 823-B-94-005a. U.S. Environmental 

Protection Agency. 

http://water.epa.gov/scitech/swguidance/waterquality/standards/handbook/index.cfm. 

Accessed January 2011.
Variance Compendium January 24, 2011

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USEPA. 1998. Water Quality Standards Regulation: Proposed Rule. U.S. Environmental Protection Agency. 

Fed. Regist., July 6, 1998, 63:36742-36805. http://www.epa.gov/fedrgstr/EPAWATER/1998/July/Day-07/w17513.htm. Accessed January 2011.

USEPA. 2001. Guidance: Coordinating CSO Long-Term Planning With Water Quality Standards Reviews. 

EPA-833-R-01-002. U.S. Environmental Protection Agency. 

http://nepis.epa.gov/Adobe/PDF/20004DL6.PDF. Accessed January 2011. 

USEPA. 2007. Water Quality Standards Academy: Module 15: Variances. U.S. Environmental Protection 

Agency. 

http://water.epa.gov/learn/training/standardsacademy/upload/2007_11_15_standards_academy

_basic_course_15-variances-11-15-07.pdf. Accessed January 2011.

Case Studies

Three case studies were developed to provide information about successfully approved variances that 

have been used and implemented throughout the United States to make progress toward meeting WQS. 

A brief overview of each case study is provided in the Table 2 below. The case studies are included after 

the table.

Table 2: Summary of Case Studies

Region/State Waterbody Pollutant 131.10(g) 

Justification Type of Discharger* Variance 

Renewed?

Region 3 / 

West Virginia 

Ward Hollow of 

Davis Creek

Chlorides #1 - Natural 

Background

Industrial (Private) 

Union Carbide Corp.

Yes

Region 6 / 

Texas 

Bear Creek Aluminum To conduct 

studies (WER)

Industrial (Private)

International Paper 

Company

Yes

Region 10 / 

Idaho

South Fork Coeur 

d’Alene River

Metals 

(Cadmium, 

lead and zinc)

#6 - Economic Municipal (Public) Cities 

of Page, Mullan, and 

Smelterville

Yes

* All dischargers are single dischargers
Variance Compendium January 24, 2011

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Region 3 Case Study

West Virginia Variance for Chloride in Ward Hollow of Davis Creek

Background

Union Carbide Corporation (UCC) is a chemical manufacturing company located in South Charleston, West 

Virginia. The UCC industrial facility discharges at the head of Ward Hollow of Davis Creek through NPDESpermitted outfall 008. The sources of the discharge are site-generated stormwater, flows from an 

impoundment located at the facility, and intermittent discharges of non-contact cooling water (Capacasa 

2006). 

In 1989, a site-specific numeric criterion for chlorides in Ward Hollow of 540 μg/L was developed and 

adopted by the state. In the subsequent permit cycle, and to meet the revised criteria, the West Virginia 

Department of Environmental Protection used a new procedure to calculate a water quality-based 

effluent limit for chloride of 188 μg/L (monthly average), which UCC could not meet on a regular basis. 

Therefore, UCC requested a variance in 2002 (WVDEP 2005).

Variance Description

The basis for UCC’s 2002 variance request of 310 μg/L (monthly average) was that elevated chloride levels 

in Ward Hollow were naturally occurring. UCC presented several lines of evidence demonstrating this 

assertion, including historic documentation of the presence of salt springs and wells in the area. UCC also 

presented conductivity data, which correlates well with chloride levels, from nearby Staunton Run. 

(Because UCC is located at the headwaters of Ward Hollow, upstream measurements could not be taken.) 

The conductivity levels in Staunton Run were higher than those in Ward Hollow downstream from the 

UCC outlet, indicating a source of chlorides other than the UCC discharge (Capacasa 2006).

To demonstrate that granting the variance would not cause further impairment, UCC asserted that 

impairments to the macroinvertebrate population in Ward Hollow were due to urban runoff and poor 

riparian cover, not the facility’s discharges. Also, UCC evaluated several strategies to mitigate chlorides to 

meet water quality standards, including alternative deicing practices at the facility, rerouting flows to 

areas further downstream, and rerouting flows to the local wastewater treatment plant. The latter two 

options, however, would render Ward Hollow’s flows intermittent, which UCC determined would cause 

further harm to the macroinvertebrate population (Capacasa 2006). Therefore, UCC is implementing 

alternative deicing practices.

Approval Process

The variance and other revisions to West Virginia’s Requirements Governing Water Quality Standards

were adopted by the state on July 7, 2006, and became effective on June 1, 2006. On September 26, 

2006, EPA approved the variance in accordance with section 303(c)(3) of the Clean Water Act and 40 CFR 

Part 131 (Capacasa 2006). The West Virginia Water Quality Standards Rule Title 47 Series 2 was amended 

to include the variance, as follows: 
Variance Compendium January 24, 2011

13

7.2.d.19.3. A variance pursuant to 46 CSR 6, Section 5.1, based on naturally occurring pollutant 

concentrations, shall apply to Union Carbide Corporation’s discharge to Ward Hollow of Davis 

Creek, which shall have the instream criteria for chlorides of 310 mg/l for Category A and C waters 

and for Category B1 (chronic aquatic life protection). This exception shall be in effect until action 

by the Secretary to revise the exception or until July 1, 2010, whichever comes first (WVDEP n.d.).

Elements of the variance that facilitated approval were clear demonstration of naturally elevated chloride 

levels; historic and ongoing monitoring at the UCC discharge that showed a downward trend in chloride 

levels (indicating that the statewide criteria may be attainable in the future); and onsite practices 

undertaken by UCC, specifically alternative deicing practices, to reduce chlorides in stormwater (Capacasa 

2006). Because the site is an NPDES-permitted industrial facility, discharges from the site will continue to 

be monitored to determine progress toward meeting statewide water quality criteria. 

Table 3 presents a summary of chloride criteria (EPA, statewide, and approved variance) applicable to 

Ward Hollow.

Table 3. EPA, Statewide, and Variance Criteria for Ward Hollow (Capacasa 2006)

Criteria

Aquatic Life Category B1: Warm 

Water Fisheries Human Health

Acute Chronic

Category C: Contact 

Recreation

Category A: Public 

Water Supply

Variance Criteria for Ward 

Hollow

860 μg/L 310 μg/L 310 μg/L 310 μg/L

West Virginia Approved 

Statewide Criteria

860 μg/L 230 μg/L 250 μg/L 250 μg/L

EPA Criteria 860 μg/L 230 μg/L None None

Lesson Learned

When UCC submitted its 2002 variance application, the West Virginia Department of Environmental 

Protection’s Environmental Quality Board approved the request as a “site-specific numeric criterion.” This 

constituted a critical error in wording because UCC applied for and provided documentation to support a 

variance, which has different requirements than a request for a change in site-specific criteria. The error 

resulted in EPA disapproving the variance, requiring UCC to resubmit its application package and causing 

significant delay. As a result, the state determined that any future variance language must (1) indicate 

that the variance is granted for a finite length of time and (2) specifically cite the applicable factor in 40 

CFR 131.10(g) (WVDEP 2005). 
Variance Compendium January 24, 2011

14

Case Study References

Capacasa, J.M. 2006, September 26. Approval letter from Jon M. Capacasa, U.S. Environmental Protection 

Agency Region 3, to Lisa McClung, West Virginia Department of Environmental Protection, 

regarding approval of a chloride variance for Ward Hollow of Davis Creek.

WVDEP. 2005, March 10. Meeting Minutes of the Environmental Quality Board. West Virginia Department 

of Environmental Protection, Charleston, WV.

http://www.wveqb.org/attachments/March102005EQBMeetingMinutes.pdf. Accessed December 

2010. 

WVDEP. No date. Title 47 Legislative Rule Department of Environmental Protection, Water Resources 

Series 2, Requirements Governing Water Quality Standards. West Virginia Department of 

Environmental Quality. http://www.dep.wv.gov/WWE/Programs/wqs/Documents/47-02.pdf. 

Accessed January 2011. 
Variance Compendium January 24, 2011

15

Region 6 Case Study

Texas Variance for Aluminum in Bear Creek Tributaries

Background

International Paper Corporation (now Georgia-Pacific, formerly Champion International) operates a 

plywood mill in Corrigan, Texas. In 1999, the Texas Natural Resource Conservation Commission (now the 

Texas Commission on Environmental Quality [TCEQ]) issued a wastewater discharge permit to the 

Corrigan Plant that discharges to unnamed tributaries upstream of Bear Creek in the Neches River Basin. 

As one of the discharge permit conditions, the plant was required to submit analytical data for total 

aluminum. According to International Paper, no aluminum chemicals are used at the Corrigan Plant, and 

no aluminum products are manufactured on the site. In their permit application they stated “...the only 

identifiable source of aluminum being discharged is the aluminum content of the soil materials (clays) 

found on the plant site” (Tischler 1999). 

The Texas statewide criterion for aluminum is 991 μg/L. Because the source of aluminum being 

discharged from the Corrigan Plant was from the soil rather than from manufacturing processes, 

International Paper proposed a plan to develop a site-specific dissolved to total partitioning coefficient for 

aluminum. In 1998, a study was conducted as part of the coefficient development process. In addition to 

the analyses for total and dissolved fractions of aluminum, Texas also required that the facility conduct 

toxicity tests to verify that use of the partitioning coefficient would not harm instream aquatic life. That 

study concluded that aluminum found in the plant’s effluent was contributed by soil particles suspended 

in the effluent and that aluminum in these waterbodies was less toxic to aquatic life than effluent limits 

calculated without use of a partitioning coefficient (Tischler 1999). Based on those results, International 

Paper proposed that no permit limits for aluminum were necessary, and using the information obtained in 

the study, they applied for a variance to conduct a Water Effects Ratio (WER) study to determine whether 

a site-specific criterion was appropriate. The variance was granted by EPA in 1999 and incorporated into 

the 1999 permit (expiration date of August 2001).

In the summer of 2000, the facility underwent significant modifications, including dredging the lower 

pond and rebuilding the discharge mechanism so the pond no longer discharged continuously. As a result 

of these modifications, the WER study was not completed in 2000 and changes to the original study plan 

were needed. International Paper requested that the state grant an extension of the temporary variance 

for aluminum (Haynes 2001). 

Description of Variance and Approval Process

An extension of the variance was requested by Texas in the summer of 2002. The extension authorized a 

3-year period in which the company conducted a water quality study to show whether a site-specific 

amendment to water quality standards was justified (Evans 2011).

For variance requests, EPA Region 6 requires documentation of public participation before taking 

approval action. The public notice for the extension was filed in April 2002 (Corrigan Times 2002). Public 
Variance Compendium January 24, 2011

16

participation was completed through the comment period on the proposed permit (TCEQ received no 

comments) and was deemed sufficient by EPA (Flores 2003). The variance was approved by EPA and no 

significant degradation of high quality receiving waters was anticipated. In December of 2002, EPA and 

the U.S. Fish and Wildlife Service concluded that approval of the variance to the aluminum standard was 

“not likely to adversely affect Federally-listed species” (Lohoefner 2002). 

Although the facility had already conducted preliminary toxicity testing for the WER study it was required 

to update the work plan and complete the study in order to be granted the variance extension by EPA. In 

2003, EPA approved the temporary variance extension. Under the conditions of this permit, the facility 

was required to meet monitoring and reporting requirements for aluminum, but had no technology-based 

or water quality-based effluent limits for aluminum. The conditions of the permit specified that if the 

permittee did not complete the WER study within 180 days of the permit expiration date, then effluent 

limitations for aluminum would be imposed immediately in a reissued permit. The limitations were to 

include a daily average of 1.3 mg/L of total aluminum and a daily maximum of 2.8 mg/L (TPDES Permit No. 

01902). 

Progress to Date

As a result of the temporary variance, demonstrable progress can be seen through the successful 

development of the site-specific criterion. The facility’s goal was to develop a site-specific standard 

following EPA’s WER guidance for developing site-specific standards. 

From 2003 to 2004, International Paper conducted the WER study that supported the development of a 

site-specific aluminum criterion. In 2005, the final report A Study to Develop a Site-Specific Acute Water 

Quality Criterion for Aluminum in an Unnamed Tributary of Bear Creek was submitted to the state and 

then to EPA Region 6 for approval. The final WER for total recoverable aluminum from the Corrigan Mill is 

5.58, calculated from four WER test events. The site-specific criterion proposed was 5.53 mg/L (Tischler 

2005). This criterion was demonstrated to be appropriate to protect aquatic life. EPA approved the sitespecific aluminum criterion in 2005. The 2006 (and 2010) TPDES permit included water quality-based 

effluent limits based on the site-specific aluminum criterion (Evans 2011). 

Case Study References

Evans, Diane, USEPA Region 6. 2011, January 18. Personal E-mail Correspondence with Tetra Tech 

regarding Texas aluminum variance.

Flores, M. 2003. Letter from Miguel Flores, Water Quality Protection Division USEPA Region 6, to Mark 

Vickery, TCEQ, regarding variance extension approval for aluminum in an unnamed tributary to 

Bear Creek. 

Haynes, J. 2001. Letter from Jason Haynes, International Paper Company, to David Galindo, TNRCC, 

regarding International Paper Company Corrigan Facility, Permit No. 01902 – Pending Permit 

Application. 
Variance Compendium January 24, 2011

17

Lohoefener, R. 2002. Letter from Ren Lohoefener, US Fish and Wildlife Service, to Diane Evans, USEPA 

Region 6, Regarding Comments from the U.S. Fish and Wildlife Service on the application by the 

TCEQ for variances in aluminum and copper standards. 

Notice of Application and Preliminary Decision for Water Quality TPDES Permit Amendment for Industrial 

Wastewater. The Corrigan Times, Thursday April 18, 2002, Page 7. 

Tischler, L. February 1999. Corrigan Plant Aluminum Partitioning Coefficient Study. Prepared for Champion 

International Corporation, Corrigan Texas. 

Tischler, L. January 2005. A Study to Develop a Site-Specific Acute Water Quality Criterion for Aluminum in 

an Unnamed Tributary of Bear Creek. Prepared for International Paper Company, Inc. 

TPDES Permit Number 01902. Section 8, Temporary Variance to Texas Surface Water Quality Standards. 

Page 13.
Variance Compendium January 24, 2011

18

Region 10 Case Study

Idaho Variances for Metals in the South Fork Coeur d’Alene River

Background

In 2004, the wastewater treatment plants (WWTPs) of the Cities of Page, Mullan, and Smelterville, in the 

Silver Valley of northern Idaho were granted variances for discharges of metals (cadmium, lead, and zinc 

for Page and Smelterville; cadmium and zinc for Mullan) to the South Fork Coeur d’Alene River by the U.S. 

Environmental Protection Agency (USEPA 2004). In 2005, EPA approved Idaho’s use designations adopted 

in 2002, which placed the authority to grant future variances with the Idaho Department of 

Environmental Quality (DEQ) (IDAPA 58.01.02.260.01). Thus, in 2009 DEQ considered the renewal of the 

Page, Mullan, and Smelterville metals variances (Idaho DEQ 2009a). 

The three WWTPs are located in a region with historic mining and smelting of metals that has resulted in 

extensive groundwater contamination. Efforts are underway through the Superfund program to 

remediate groundwater contamination over the long-term; however, the WWTPs currently are faced with 

infiltration and inflow (I&I) of metals-contaminated groundwater into the wastewater collection system, 

yielding measurable loads of metals in discharges from all three WWTPs (Idaho DEQ 2009a). 

Variance Description

The City of Smelterville and the South Fork Coeur d’Alene River Sewer District (SFCDRSD), which operates 

the Page and Mullan WWTPs, requested variances in 2004 and 2009 on the assertion that implementing 

metals controls more stringent than current, technology-based controls would result in substantial and 

widespread adverse economic and social impacts to those communities. The applicants, using the Interim 

Economic Guidance for Water Quality Standards Workbook (USEPA 1995), presented cost estimates for 

installing enhanced metals treatment capability on the basis of pilot studies. They demonstrated that the 

higher user rates necessary to fund such treatment enhancements would cause severe economic hardship 

on the communities served by the WWTPs, encompassing all of the communities of the Silver Valley 

(Idaho DEQ 2009a). 

Beginning with the 2004 variances and continuing in the 2009 variances, a strategy was proposed that 

addresses the source of the metals in the wastewater effluent—namely I&I of contaminated groundwater 

into the wastewater collection system. This strategy includes inspecting, repairing, and replacing failing 

and poorly designed wastewater infrastructure to reduce I&I over a specified timeframe. The intent of 

this strategy is to reduce the amount of metals in treatment plant effluent to levels that meet water 

quality standards or to a level that can be treated with affordable enhancements to the WWTPs (USEPA 

2004; Idaho DEQ 2009a).

In the 2004 NPDES permits, EPA required that compliance schedules be developed by the three WWTPs to 

identify the wastewater collection system upgrades that would be necessary to demonstrate progress 

toward achieving water quality standards. The communities served by the WWTPs were tasked with 

developing city-specific schedules to meet this requirement. In the 2009 variances, DEQ specified that 

progress toward implementing the compliance schedules be monitored and reported, and that alternate 
Variance Compendium January 24, 2011

19

treatment methods be investigated for cost-effectiveness. Also, the Smelterville variance specified that 

the City evaluate their WWTP flows and begin negotiations with the SFCDRSD regarding connecting into 

the Page WWTP (Idaho DEQ 2009a). The variance conditions specified by DEQ are expected to be 

incorporated as enforceable permit requirements upon renewal of the National Pollutant Discharge 

Elimination System (NPDES) permits by EPA.

Idaho rules (IDAPA 58.01.02.260.01.a.i) required that DEQ examine the impact of the variances on the 

receiving stream segment. DEQ evaluated WWTP effluent data from NPDES discharge monitoring reports 

with instream monitoring data from the U.S. Geological Survey to determine the effect of the WWTP 

effluent on metal loads and concentrations in the South Fork Coeur d’Alene River. The results of this 

analysis indicated that cadmium and zinc were lower in the WWTP effluent than in the stream and that 

lead contributions were negligible. Thus, DEQ concluded that water quality in the South Fork Coeur 

d’Alene River would not improve substantially if the WWTP discharges were discontinued. They asserted 

that attainment of water quality standards would only be achieved with control of nonpoint sources and 

remediation of contaminated groundwater (Idaho DEQ 2009a). 

Approval Process

On June 5, 2009, DEQ approved the variances for a period of five years in accordance with IDAPA 

58.01.02.260 (Idaho DEQ 2009b, 2009c, 2009d). DEQ performed a detailed statistical analysis of each 

WWTP’s discharge monitoring data to ensure that the new limits established in the variances were at or 

below current concentrations and loadings of metals in the WWTP effluent (Idaho DEQ 2009a). Table 4

presents a summary of metal limits applicable to discharges from the Page, Mullan, and Smelterville 

WWTPs.

Table 4. Daily Maximum and Average Monthly Metal Limits for the Page, Mullan, and Smelterville 

WWTPs (Idaho DEQ 2009a, 2009b, 2009c, 2009d)

Cadmium Lead Zinc

Concentration 

(μg/L) 

Load 

(lb/day)

Concentration 

(μg/L) 

Load 

(lb/day)

Concentration 

(μg/L) 

Load 

(lb/day)

City of

Page

Daily Max. 8.3 0.3 96 3.4 1,340 48

Ave. Monthly 5.3 0.19 63 2.2 802 29

City of 

Mullan

Daily Max. 10.8 0.049 — — 3,682 17

Ave. Monthly 5.5 0.025 — — 1,610 7.4

City of 

Smelterville

Daily Max. 29.8 0.30 85 0.18 3,490 7.0

Ave. Monthly 17.5 0.19 46 0.096 1,994 4.0

Elements of the variance renewal that facilitated approval were detailed cost estimates demonstrating 

substantial and widespread adverse economic and social impacts of enhanced treatment controls and 

demonstrated and ongoing progress toward reducing metals in WWTP effluent through collection system 

replacement and repairs. The decision was further strengthened by evidence that contaminated 

groundwater was the main source of impairment from metals in the South Fork Coeur d’Alene River and 

given that groundwater remediation efforts were ongoing (Idaho DEQ 2009a). 
Variance Compendium January 24, 2011

20

Progress to Date

Each variance includes a set of actions that the applicants must complete to demonstrate reasonable 

progress toward achieving water quality standards, as follows:

Mullan

1. Monitor the progress made by the city of Mullan on I&I removal projects presented in the 

compliance schedules that were included in the Variance Request.

2. Provide annual reports to DEQ and EPA on the progress made in completing these actions and 

other I&I removal-related matters that may arise. 

Page

1. Apply for state and tribal assistance grant (STAG) funds that will be used for sewer line 

replacement work in the Elizabeth Park collection system, which is owned by the SFCDRSD.

2. Work with the nearby City of Kellogg to complete a compliance schedule. Once a compliance 

schedule is established, monitor and report on the progress made by the City of Kellogg. 

3. Monitor and report on the progress made by the neighboring Cities of Osburn and Wallace on 

I&I removal projects presented in the compliance schedules that were included in the 

Variance Request.

4. Work with DEQ on a demonstration project to determine the effectiveness of wetlands 

treatment for metals removal.

5. Repair at least five manholes per year to eliminate an estimated 2.5 million gallons of I&I per 

year per manhole. 

6. Provide annual reports to DEQ and EPA on the progress made in completing these actions and 

other I&I removal-related activities that may arise. 

Smelterville

1. Complete the replacement of a total of 88 service laterals located on private property.

2. After compiling four years of WWTP flow data, enter into negotiations with the SFCDRSD 

about connecting into the SFCDRSD Page WWTP.

3. Provide annual reports to DEQ and EPA on the progress made in completing these actions and 

other I&I removal-related activities that may arise. 

The above requirements are expected to become enforceable conditions in the WWTPs’ NPDES permits 

once they are renewed by EPA. Because each WWTP is an NPDES-permitted industrial facility, discharges 

from the sites will continue to be monitored as part of NPDES compliance. As was the case in 2009, 

discharge monitoring data can be used to determine progress toward meeting water quality standards. 

Case Study References

Idaho DEQ. 2009a. Justification for Granting of Variances from the Idaho Water Quality Standards to the 

Cities of Page, Mullan and Smelterville for the Discharge of Metals from their Wastewater 

Treatment Plants. Idaho Department of Environmental Quality. 

http://www.deq.idaho.gov/water/data_reports/surface_water/monitoring/variances_justificatio

n_page_mullen_smelterville.pdf. Accessed January 2011. 
Variance Compendium January 24, 2011

21

Idaho DEQ. 2009b. Variance from Idaho Water Quality Aquatic Life Criteria for Cadmium, Lead, and Zinc 

[for the Smelterville WWTP]. Idaho Department of Environmental Quality. 

http://www.deq.idaho.gov/water/data_reports/surface_water/monitoring/variance_smelterville.

pdf. Accessed January 2011. 

Idaho DEQ. 2009c. Variance from Idaho Water Quality Aquatic Life Criteria for Cadmium and Zinc 

[South Fork Coeur d’Alene River Sewer District, Mullan WWTP]. Idaho Department of 

Environmental Quality.

http://www.deq.idaho.gov/water/data_reports/surface_water/monitoring/variance_mullen.pdf. 

Accessed January 2011. 

Idaho DEQ. 2009d. Variance from Idaho Water Quality Aquatic Life Criteria for Cadmium, Lead, and Zinc 

[for the South Fork Coeur d’Alene River Sewer District, Page WWTP]. Idaho Department of 

Environmental Quality. 

http://www.deq.idaho.gov/water/data_reports/surface_water/monitoring/variance_page.pdf. 

Accessed January 2011. 

USEPA. 1995. Interim Economic Guidance for Water Quality Standards Workbook. EPA-823-B-95-002.

http://water.epa.gov/scitech/swguidance/waterquality/standards/upload/2007_06_18_standard

s_econworkbook_complete.pdf. Accessed January 2011. 

USEPA. 2004. EPA Grants Water Quality Standards Variances to Local Communities: NPDES Permits Allow 

Time to Reduce Metals. U.S. Environmental Protection Agency. 

http://yosemite.epa.gov/r10/WATER.NSF/NPDES+Permits/Current+ID1319/$FILE/water_var_fs_6

-24-04.pdf. Last updated June 2004. Accessed January 2011. 
Variance Compendium January 24, 2011

22

Appendices

For additional information, please refer to the following appendices. 

Appendix A: Variances by State

Appendix A provides a draft table of variances by EPA region and state, including information about the 

facility name requesting the variance, permit number, year the variance was granted, the parameter 

addressed by the variance, justification(s) for the variance, the length, and number of variance renewals. 

Note that the information contained in this appendix is the best information available at the time this 

compendium was developed. The majority of information came from EPA’s Water Quality Standards 

Action Tracking Application (WATA). The EPA Regions have not had sufficient time to review all of the 

information to determine accuracy. Also, note that no states in Region 8 have any approved variances. 

Two states, Montana and Colorado, use alternate tools to temporarily modify their WQS.

Appendix B: Example Variance Application Forms 

Appendix B provides two examples of application forms for variances—one is for chlorides and the other 

is for mercury. Both examples were provided by Wisconsin (Region 5).

Appendix C: Example Memorandums of Agreement (MOAs) 

Appendix C provides two examples of memorandums of agreement (MOAs) for Arizona (Region 9) and 

New York (Region 2).

Appendix D: Example Process Diagram of Roles and Responsibilities

Appendix D provides an example list of roles and responsibilities used in Region 7. The checklist can be 

used to ensure all pieces are properly submitted.

Appendix E: Example EPA Approval Letters for Variances

Appendix E provides three examples of individual approval letters for variances in Idaho (Region 10), 

Massachusetts (Region 1), Texas (Region 6), and Wisconsin (Region 5). These letters could be helpful for 

example language that EPA uses in approval letters. 

Appendix F: Example Public Notices

Appendix F contains two examples of public notices for variances from Wisconsin (Region 5). 

Appendix G: Example EPA Region and State Guidance Documents

Appendix G provides two guidance documents for variances. The first example is from Region 7 while 

the second is for the state of Colorado (Region 8). 
Variance Compendium January 24, 2011

23

Appendix H: Example Worksheets to Justify the Economic Factor

Appendix H provides an example of an economic analysis worksheet from Idaho (Region 10), as well as 

EPA’s analysis of the worksheet. 

Appendix I: Considerations for Use of Selected 131.10(g) Factors

Appendix I contains considerations for use of selected 131.10(g) factors. This information was prepared 

for the Region 7 states in order to assist in the development of Region 7's Kaizen process for WQS 

submissions. 
Appendix A

Variances by State

The information contained in this appendix is the best information available at the time this

compendium was developed. The majority of information came from WATA. The EPA Regions have not

had sufficient time to review all of the information to determine accuracy. Also, note that no states in

Region 8 have any approved variances. Two states, Montana and Colorado, use alternate tools to

temporarily modify their WQS.
Appendix A. Variances by State

Region State Name of Facility Requiring Variance Permit Number Year Granted Parameter(s) Justification(s) for Variance* Length o

Region 1 Connecticut None.Region 1 Maine None.Region 1 Massachusetts MWRA, BWSC, City of Cambridge

MA0103284, MA0101982, andMA0101 192 1997 CSO discharge

Widespread economic and social

impact 24 month

Region 1 Massachusetts MWRA, Cities of Cambridge and Somerville

MA0103284, MA0101974, andMA0101982 1999 CSO discharge

Widespread economic and social

impact 36 month

Region 1 New Hampshire None.

Region 1 Rhode Island None.

Region 1 Vermont None.

Region 2 New York None.Region 2 New Jersey None.Region 2 US Virgin Islands None.Region 2 Puerto Rico None.Region 3 Delaware None.Region 3 District of Columbia None.Region 3 Pennsylvania None.Region 3 Virginia None.Region 3 West Virginia Union Carbide Corporation 2006 chlorides Unknown 2 years

Region 3 West Virginia Stony River variance

Deleted from WQS because ofexpiration in 1998.

Region 3 West Virginia Catenary Coal Company 2003 aluminum

Region 4 Kentucky None.Region 4 Tennessee None.Region 4 South Carolina None.

Region 4 North Carolina Blue Ridge Paper Products, Inc., Canton Mill NC0000272

First Variance:1988, Most Color 131.10(g)(6)

Last ColoEPA: 12/

Region 4 North Carolina Mt. Olive Pickle Company NC0001074 1996 Chloride

131.10(g)(6): waste minimizationtechnique is proven technologyeconomically feasible

(NPDES p12/31/10

Region 4 North Carolina Bay Valley Foods, LLC NC0001970 1997 Chloride

131.10(g)(6): waste minimizationis the most proven technology

economically feasible

(NPDES p12/31/10

Region 4 Georgia Springs Industries, Inc.

Whole effluenttoxicity 131.10(g)(6)

Region 4 Florida Premier Chemicals LLC FL00022607 2008

Acute toxicity ‐ calcium 131.10(g)(6)

expires a

permit
Appendix A. Variances by State

Region State Name of Facility Requiring Variance Permit Number Year Granted Parameter(s) Justification(s) for Variance* Length oRegion 4 Florida City of Vero Beach Reverse Osmosis Facility FL0042544‐003 2007

Whole effluenttoxicity

No practicable means are known

or available for the adequate

control of pollution in a discharge.

expires a

permit

Region 4 Alabama None.Region 4 Mississippi Tallahala Creek 1990 DO

Attainability of DO levels resulting

from the City of Laurel WWTF. Removed 

Region 4 Mississippi Escatawpa River DO

Variance 

removed 

Region 5 Illinois None.Region 5 Indiana Statewide Streamlined Mercury Variance Rule Multiple facilities? 2005 Mercury

widespread social and economic

impacts of compliance with

mercury limits derived fromIndiana’s existing water qualitycriteria

Region 5 Indiana ArcelorMittal Burns Harbor, LLC IN0000175 1988

Ammonia as N,Phenols,Temperature

Best available technology

economically achievable

requirements provided for by thefederal NPDES permitrequirements of the Clean Water

Act pursuant to section 301(g). renewed 

Region 5 Indiana NIPSCO Michigan City Generating Station IN0000116 4/5/2010 mercury

A recognized lack of economicallyviable end‐of‐pipe treatmentoptions. Submitte

Region 5 Indiana CARGILL INC FOOD & PHARMA SPECIALTIES IN0000027 10/13/2010

streamlined variancefor mercury

A recognized lack of economically

viable end‐of‐pipe treatmentoptions.

Region 5 Michigan Statewide Mercury Variance Multiple facilities? 2/1/2000 Mercury social and economic impacts

Michiganvariance 

requiremthat, "the variance term of t

Region 5 Minnesota Buffalo Lake Energy LLC MN0068063 10/6/2006

Boron, Hardness,

Salinity, Sodium, TDS,SpecCond, Sulfate

Minnesota Regs: 7050.0223subp.3 , 7050.0224 subp.2,7050.0224 subp.3

Region 5 Minnesota ADM Corn Processing: Marshall MN0057037 10/24/1995

Chloride,SpecCond,TDS,Salinity, Toxicity

Minnesota Regs: 7050.0223subp.3 , 7050.0224 subp.2,

7050.0224 subp.2, 7050.0224

subp.3, 7053.0215 subp.1

Region 5 Minnesota Cliffs Erie ‐ Dunka Mining Area MN0042579 7/25/2000 Toxicity

Minnesota Regs: 7053.0215

subp.1

Region 5 Minnesota Litchfield WWTP MN0023973 1/28/1992

CBOD, Unionized

Ammonia, DO

Minnesota Regs: 7053.0235,

7050.0220 subp. 3, 7050.0220

subp. 3

Region 5 Minnesota Lincoln‐Pipestone Rural Water System MN0064351 12/15/1998

SpecCond, TDS,Salinity

Minnesota Regs: 7050.0224 subp.

2, 7050.0224 subp. 2, 7050.0224

subp. 3

Region 5 Minnesota Luverne WWTP MN0020141 3/26/1985

CBOD, Unionized

Ammonia

Minnesota Regs: 7053.0235,

7050.0220 subp.3

Region 5 Minnesota MDNR French River Hatchery MN0004413 11/26/1991 Temp

Minnesota Regs: 7050.0220

subp.3.A, 7050.0222 subp.2
Appendix A. Variances by State

Region State Name of Facility Requiring Variance Permit Number Year Granted Parameter(s) Justification(s) for Variance* Length oRegion 5 Minnesota Maple Hill Estates MHP MN0031127 5/19/1975 No Discharge Zone Minnesota Regs: 7053.0265

Region 5 Minnesota McKinley WWTP MN0024031 5/23/1989 Phosphorus

Minnesota Regs: 7053.0255subp.5

Region 5 Minnesota Mesabi Nugget Delaware LLC & SDI MN0067687 8/30/2005

Bicarb, hardness,TDS, Spec Cond

Minnesota Regs: 7050.0224subp.2, 7050.0223 subp.3,7050.0224 subp.2, 7050.0224

subp.2

Region 5 Minnesota Nerstrand MN0065668 3/1/2002 DO

Minnesota Regs: 7050.0222subp.4

Region 5 Minnesota Rosemount Wastewater Treatment Facility 4/1/2004 Mercury

Region 5 Minnesota United Taconite LLC: Thunderbird Mine MN0044946 6/22/1999 pH

Minnesota Regs: 7050.0224subp.2

Region 5 Minnesota Southern Minnesota Beet Sugar ‐ Renville MN0040665 12/29/2004

Bicarb, chloride,sodium%, SpecCond,

Minnesota Regs: 7050.0223 and7050.0224

Region 5 Minnesota Winsted WWTP MN0021571 2/26/1980 Phosphorus

Minnesota Regs: 7053.0255subp.3

Region 5 Minnesota WLSSD MN0049786 5/19/1994 Fecal coliform Minnesota Regs: 7053.0215

Region 5 Wisconsin Shawano Specialty Papers WI‐0001341‐08 5/1/2009

Mercury, TotalRecoverable

substantial and widespreadadverse social and economicimpacts

From the 

permit reend of th(3/31/20

Region 5 Wisconsin We Energies ‐ Pleasant Prairie Power Plant WI‐0043583‐06‐1 8/1/2006

Mercury, TotalRecoverable

substantial and widespreadadverse social and economicimpacts Expiratio

Region 5 Wisconsin

Bethel Nursing andRehabilitationCenter WI‐0031313‐07 3/4/2005 Copper

The standard, as applied to thepermitte, will cause substantial

and widespread social andeconomic impacts in the areawhere the permittee is located

5 years 

Region 5 Wisconsin Cumberland 2/10/2005 CopperRegion 5 Wisconsin Elkmound WI‐0023914‐08 12/9/2003 Copper

Region 5 Wisconsin Marshfield 6/24/1905 CopperRegion 5 Wisconsin Oakdale 5/8/2006 CopperRegion 5 Wisconsin Oshkosh 1/8/2007 MercuryRegion 5 Wisconsin Phelps 5/31/2007 CopperRegion 5 Wisconsin Three Lakes 3/27/2006 CopperRegion 5 Wisconsin Devil's Lake State Park WI‐0060241‐05 10/21/2007 MercuryRegion 5 Wisconsin Dairyland Power Coop Genoa WI‐0003239‐8 4/22/2008 Mercury

Region 5 Wisconsin City of Waukesha WI0029971‐07‐0 5/5/2008 Mercury

Region 5 Wisconsin City of Merrill WI0020150‐08 5/5/2008 Mercury

Region 5 Wisconsin City of Watertown WI‐00028541‐07 8/24/2008 Mercury

substantial andwidespread adverse social and

economic impacts
Appendix A. Variances by State

Region State Name of Facility Requiring Variance Permit Number Year Granted Parameter(s) Justification(s) for Variance* Length oRegion 5 Wisconsin City of Antigo WI‐0022 144‐08 12/5/2008 Mercury

Region 5 Wisconsin

Neenah Menasha SewerageCommission (NMSC) WI‐0026085‐08 2/15/2009 Mercury

Region 5 Wisconsin Arcadia Wastewater Treatment Facility (AWTF) WI‐0023230‐08 3/22/2009 Mercury

Substantial and widespread

adverse social and economicimpacts. (NR 106.145(1)(a)) Thisfinding is based on, "Assessing theEconomic Impacts of the ProposedOhio EPA Water Rules on the Ohio

Economy," prepared in 1997 bythe Ohio Environmental

Protection Agency

Region 5 Wisconsin Chippewa Falls Wastewater Treatment Facility WI‐0023604‐08 3/22/2009 Mercury

Substantial and widespread

adverse social and economicimpacts. (NR 106.145(1)(a)) Thisfinding is based on, "Assessing theEconomic Impacts of the ProposedOhio EPA Water Rules on the Ohio

Economy," prepared in 1997 by

the Ohio Environmental

Protection Agency 12/31/20

Region 5 Wisconsin

Wisconsin Rapids Wastewater Treatment

Plant (WRWTP) WI‐0025844‐08 5/26/2009 Mercury

Substantial and widespread

adverse social and economicimpacts. (NR 106.145(1)(a)) Thisfinding is based on, "Assessing theEconomic Impacts of the ProposedOhio EPA Water Rules on the Ohio

Economy," prepared in 1997 bythe Ohio Environmental

Protection Agency

Region 5 Wisconsin Whitewater Treatment Plant WI‐0020001‐08 5/26/2009 Mercury

Region 5 Wisconsin City of Burlington WI‐00229 26‐08 6/19/2009 Mercury

Region 5 Wisconsin City of Rice Lake Wastewater Treatment Plant (RLWTP) WI‐0021865‐08 7/25/2009 Mercury

Substantial and widespread

adverse social and economicimpacts. (NR 106.145(1)(a)) Thisfinding is based on, "Assessing theEconomic Impacts of the ProposedOhio EPA Water Rules on the Ohio

Economy," prepared in 1997 bythe Ohio Environmental

Protection Agency

Region 5 Wisconsin

Grand Chute‐Menasha West Sewerage Commission

(GCMWSC) WI‐0024686‐07 7/25/2009 Mercury

Substantial and widespread

adverse social and economicimpacts. (NR 106.145(1)(a)) Thisfinding is based on, "Assessing theEconomic Impacts of the ProposedOhio EPA Water Rules on the Ohio

Economy," prepared in 1997 bythe Ohio Environmental

Protection Agency
Appendix A. Variances by State

Region State Name of Facility Requiring Variance Permit Number Year Granted Parameter(s) Justification(s) for Variance* Length oRegion 5 Wisconsin City of Menomonie WI‐0024708‐08 8/8/2009 Mercury

Technically and economically

infeasible (NR 106.145(1)(a)) This

finding is based on, "Assessing theEconomic Impacts of the ProposedOhio EPA Water Rules on the Ohio

Economy," prepared in 1997 bythe Ohio Environmental

Protection Agency

Region 5 Wisconsin Cascades Tissue Group Wisconsin Inc. (CTG) WI‐0003077‐08 11/10/2009 Mercury

Substantial and widespreadadverse social and economicimpacts. (NR 106.145(1)(a)) Thisfinding is based on, "Assessing theEconomic Impacts of the ProposedOhio EPA Water Rules on the Ohio

Economy," prepared in 1997 bythe Ohio Environmental

Protection Agency

Region 5 Wisconsin City of La Crosse WI‐0029581‐08‐0 11/29/2009 Mercury

Region 5 Wisconsin City of Beloit WI‐0023370‐08 12/1/2009 Mercury

Substantial and widespread

adverse social and economic

impacts. (NR 106.145(1)(a)) Thisfinding is based on, "Assessing the

Economic Impacts of the ProposedOhio EPA Water Rules on the Ohio

Economy," prepared in 1997 bythe Ohio Environmental

Protection Agency

Region 5 Wisconsin

Madison Metropolitan Sewerage

District (MMSD) WI‐0024597‐08 12/1/2009 Mercury

Region 5 Wisconsin

Packaging Corporation ofAmerica

(PCA) WI‐0002810‐08‐0 2/2/2010 Mercury

Region 5 Wisconsin Wisconsin Pulic Service Corporation WI‐0042765‐07 3/8/2010 Mercury

Technically and economically

infeasible (NR 106.145(1)(a)) This

finding is based on, "Assessing theEconomic Impacts of the ProposedOhio EPA Water Rules on the Ohio

Economy," prepared in 1997 bythe Ohio Environmental

Protection Agency 12/31/20

Region 5 Wisconsin Village of Cleveland's Wastewater Treatment Facility (WTF) WI‐0030848‐08 4/9/2010 Arsenic

substantial adverse economic

impact to the Village of Cleveland

Region 5 Wisconsin City of River Falls WI0029394‐08‐0 5/8/2010 Mercury

Substantial and widespread

adverse social and economicimpacts. (NR 106.145(1)(a)) Thisfinding is based on, "Assessing theEconomic Impacts of the ProposedOhio EPA Water Rules on the Ohio

Economy," prepared in 1997 by

the Ohio Environmental

Protection Agency
Appendix A. Variances by State

Region State Name of Facility Requiring Variance Permit Number Year Granted Parameter(s) Justification(s) for Variance* Length oRegion 5 Wisconsin City of Peshtigo WI‐0030651‐07 7/2/2010 Mercury

Substantial and widespread

adverse social and economicimpacts. (NR 106.145(1)(a)) Thisfinding is based on, "Assessing theEconomic Impacts of the ProposedOhio EPA Water Rules on the Ohio

Economy," prepared in 1997 bythe Ohio Environmental

Protection Agency

Less than 6/30/201

Region 5 Wisconsin Lake Delton Sewerage Commission WI‐0032402‐06 7/5/2010 Mercury

Substantial and widespread

adverse social and economicimpacts. (NR 106.145(1)(a)) Thisfinding is based on, "Assessing theEconomic Impacts of the ProposedOhio EPA Water Rules on the Ohio

Economy," prepared in 1997 bythe Ohio Environmental

Protection Agency

Region 5 Wisconsin Prairie du Chien 7/9/2010 Mercury

Region 5 Wisconsin City of Hudson WI‐0024279‐08 7/23/2010 Mercury

Substantial and widespread

adverse social and economic

impacts. (NR 106.145(1)(a)) This

finding is based on, "Assessing theEconomic Impacts of the ProposedOhio EPA Water Rules on the Ohio

Economy," prepared in 1997 bythe Ohio Environmental

Protection Agency 5 years/l

Region 5 Wisconsin Thilmany LLC 7/23/2010 Mercury

Region 5 Wisconsin Nelson Dewer Power Generating Station 8/1/2010 Mercury

Region 5 Wisconsin Western Racine County Sewerage District WI‐0028754‐08‐0 8/3/2010 Mercury

substantial and widespreadadverse social and economicimpacts." (NR 106.145(1)(a» This

fmding is based on a reportprepared in 1997 by the OhioEnvjronmental Protection Agency,

Foster Wheeler Environmental

Corporation andDRIIMcGraw‐Hill in support of the

multiple discharger variance

adopted by the State of Ohio

Region 5 Wisconsin Heart of the Valley MSD 8/13/2010 Mercury

Region 5 Wisconsin City of Jefferson POTW 8/29/2010 Mercury

Region 5 Wisconsin City of Appleton 9/11/2010 ChlorideRegion 5 Wisconsin

City of Appleton Wastewater TreatmentFacility (Appleton) WI‐0023221‐07 9/14/2010 Mercury

Region 5 Wisconsin Trega Foods 10/1/2010 ChlorideRegion 5 Wisconsin NewPage Wisconsin System, Inc. 11/22/2010 Mercury
Appendix A. Variances by State

Region State Name of Facility Requiring Variance Permit Number Year Granted Parameter(s) Justification(s) for Variance* Length oRegion 5 Wisconsin LSP‐Whitewater WI‐0049069‐04‐0 11/26/2010 Mercury

Substantial and widespread

adverse social and economicimpacts. (NR 106.145(1)(a)) Thisfinding is based on, "Assessing theEconomic Impacts of the ProposedOhio EPA Water Rules on the Ohio

Economy," prepared in 1997 bythe Ohio Environmental

Protection Agency 5 years/l

Region 5 Wisconsin Kieler Sanitary District #1 11/27/2010 Chloride

Region 5 Wisconsin City of Chilton 11/27/2010 Chloride

Region 5 Wisconsin Village of Potter 11/27/2010 ChlorideRegion 5 Wisconsin Madison Metropolitan Sewarage District 11/27/2010 MercuryRegion 5 Wisconsin Village of Kewaskum 11/27/2010 Chloride

Region 5 Wisconsin City of Brillion 11/27/2010 ChlorideRegion 5 Wisconsin City of New Holstein 11/27/2010 ChlorideRegion 5 Wisconsin Village of Dickeyville 11/27/2010 ChlorideRegion 5 Wisconsin Pell Lake SD 11/27/2010 ChlorideRegion 5 Wisconsin Wausau Water Works POTW WI‐0025739‐08 12/20/2010 Mercury

Substantial and widespread

adverse social and economic

impacts. (NR 106.145(1)(a)) Thisfinding is based on, "Assessing theEconomic Impacts of the ProposedOhio EPA Water Rules on the Ohio

Economy," prepared in 1997 by

the Ohio Environmental

Protection Agency

Region 5 Wisconsin Rib Mountain Metropolitan Sewage District WI0035581‐06 12/20/2010 Mercury

Substantial and widespread

adverse social and economicimpacts. (NR 106.145(1)(a)) This

finding is based on, "Assessing theEconomic Impacts of the ProposedOhio EPA Water Rules on the Ohio

Economy," prepared in 1997 bythe Ohio Environmental

Protection Agency

4 years athe perm

Region 5 Wisconsin CelluTiossue City Forest LLC WI‐0003204‐08 1/15/2011 Mercury

Substantial and widespread

adverse social and economic

impacts. (NR 106.145(1)(a)) Thisfinding is based on, "Assessing theEconomic Impacts of the ProposedOhio EPA Water Rules on the Ohio

Economy," prepared in 1997 bythe Ohio Environmental

Protection Agency

Region 5 Wisconsin City of Marshfield WI‐0021024‐07‐0 2/4/2011 Copper
Appendix A. Variances by State

Region State Name of Facility Requiring Variance Permit Number Year Granted Parameter(s) Justification(s) for Variance* Length oRegion 5 Ohio Statewide Mercury Variance Multiple facilities? 4/1/2007 Mercury

Region 6 Louisiana

NA ‐ Sauls Canal 9/19/2003 Chlorides

Region 6 New Mexico None.Region 6 Oklahoma None.Region 6 Arkansas None.Region 6 Texas

ConocoPhillips 01064 9/11/2006 Selenium Facility conducted a study to

evaluate whether site‐specific

aquatic life criteria areappropriate and what values

would be protective. Study results

indicate that site‐specific criteria

may not be appropriate and any

request for variance extension willlikely not be approved.

3 years

Region 6 Texas

TXU Electric 00945 7/3/2001 Copper The TXU Electric Company (Permit

No. 00945) developed site‐specificaquatic life criteria for copper,which were later approved by EPA

3 years

Region 6 Texas

Lamar Power Project 04127 1/14/2003 Aluminum Facility initiated a WER study for

aluminum, but subsequently

developed a site‐specific

partitioning coefficient foraluminum following TCEQpermitting procedures (i.e., norevisions to WQS or requests forvariance extensions).

3 years

Region 6 Texas

SWEPCO 01811 1/14/2000 and

11/6/2003

Aluminum Southwestern Electric Power

Company developed a site‐specific

aquatic life criterion foraluminum, which was laterapproved by EPA.

3 years 

Region 6 Texas

City of Mount Pleasant 10575 4/4/2006 Copper The City of Mount Pleasant

developed site‐specific criteria forcopper, which were later

approved by EPA.

3 years

Region 6 Texas

City of Kilgore 10201 7/3/2001 dissolved oxygen A UAA was conducted to evaluate

the aquatic life use and dissolvedoxygen criteria. Use and criteriarevisions were later approved by

EPA.

3 years

Region 6 Texas

Honeywell International, Inc. 00670 6/24/2003 Copper Honeywell developed site‐specific

criteria for copper, which were

later approved by EPA.

3 years

Region 6 Texas

International Paper 01902 1/14/2003 Aluminum International Paper developed a

site‐specific criteria for aluminumwhich was later approved by EPA

3 years
Appendix A. Variances by State

Region State Name of Facility Requiring Variance Permit Number Year Granted Parameter(s) Justification(s) for Variance* Length oRegion 6 Texas

Bevil Oaks MUD 11551 6/17/2003 and

10/6/2006renewal

Dissolved Oxygen A UAA has been initiated for Pine

Island Bayou and is estimated totake two to three years tocomplete. The variance extension

was requested and approved

because sampling was delayedduring several years due tohurricanes and other storm events

3 years 

Region 6 Texas

City of Kountze 10203 6/17/2003 Dissolved Oxygen A UAA to evaluate site‐specific

dissolved oxygen criteria for this

water body was conducted. Norevisions to uses or criteria weremade.

3 years

Region 6 Texas

City of Nederland 10483 7/5/2000 Dissolved Oxygen A UAA was conducted to evaluate

site‐specific dissolved oxygencriteria, which were laterapproved by EPA.

expired 1

Region 6 Texas

City of Crockett 10154 9/26/2001,

3/24/2004,and10/16/2007

Dissolved Oxygen Receiving water assessments for

these water bodies havedemonstrated that both TownBranch and Hurricane Bayou canonly support intermediate aquaticlife uses with correspondingdissolved oxygen criteria of 4mg/l. A use attainability analysis isunder development and site‐

specific standards will be

considered for adoption in the

next triennial revision.

3 years 

Region 6 Texas

Texas Utilities Steam Electric 01251 1/14/2000 Aluminum, Copper Texas Utilities Electric Company is

developed site‐specific criteria forcopper, which were later

approved by EPA. Aluminum mayhave been addressed with apartitioning coefficient. Facilityhas since gone offline.

3 years

Region 6 Texas

TXU Electric 00555 2/7/2000 Copper TXU developed site‐specific

criteria for copper, which were

later approved by EPA.

3 years
Appendix A. Variances by State

Region State Name of Facility Requiring Variance Permit Number Year Granted Parameter(s) Justification(s) for Variance* Length oRegion 6 Texas

City of Newark 11626 9/26/2006 Dissolved Oxygen The TCEQ reviewed dissolved

oxygen data from other backwaterareas of Eagle Mountain Reservoirthat resemble the Derrett Creekarm but do not receive domestic

wastewater discharges. These data

indicate that the current dissolvedoxygen criterion of 5.0 mg/l is notalways met, even in those areas

that do not have municipal point‐

source inputs. A study to evaluatesite‐specific dissolved oxygencriteria for the Derrett Creek arm

of the reservoir will be conducted

during the three‐year variance.

3 years

Region 6 Texas

Upper Trinity Regional Water District 14323 1/24/2008 Copper UTRWD developed site‐specific

criteria for copper, which are"approvable" once public

participation process iscompleted.

Region 6 Texas

Trinity River Authority 13457 9/24/2007 Dissolved Oxygen TCEQ is currently conducting a

statewide study on dissolvedoxygen levels in transition zonesof creeks and reservoirs. EPA willreview any recommended

revisions to the aquatic life uses

and dissolved oxygen criteria uponsubmittal of the study.

3 years

Region 6 Texas

City of Grapevine 10486 10/5/2007 Dissolved Oxygen TCEQ is currently conducting a

statewide study on dissolved

oxygen levels in transition zonesof creeks and reservoirs. Inaddition, the City of Grapevine

may conduct a separate study of

Morehead Cove.

3 years

Region 6 Texas

City of Weatherford 10380 6/19/2007 Dissolved Oxygen A use attainability analysis has

been conducted which indicates

that an intermediate aquatic life

use is appropriate for Town Creek.The intermediate aquatic life usewill be included in TCEQ's nexttriennial revision.

3 years
Appendix A. Variances by State

Region State Name of Facility Requiring Variance Permit Number Year Granted Parameter(s) Justification(s) for Variance* Length oRegion 6 Texas

City of Corsicana 10402 3/22/2005 and

7/8/2008

Dissolved Oxygen In its request for the original

variance (2005), the Cityconducted a preliminary waterquality study in backwater areasof segment 0836, including Post

Oak Creek. The data collectedindicated that backwater areas inthe Richland‐Chambers Reservoirmay not support the dissolvedoxygen criterion of 5.0 mg/l. This

water body is also part of an

ongoing state‐wide study to refinedissolved oxygen criteria in thetransition zones of reservoirs.

3 years 

Region 6 Texas

Oxy Vinyls L.P. 01539 1/31/2007 Nickel Oxy Vinyls L.P developed site‐

specific criteria for nickel, whichare "approvable" once public

participation process is completed(anticipated spring 2011).

3 years

Region 6 Texas

Rohm & Haas 00458 9/26/2001 Copper Facility developed site‐specific

criteria for copper, which were

later approved by EPA.

3 years

Region 6 Texas

Reliant Energy 01031 9/26/2001 Copper Facility developed site‐specific

criteria for copper, which were

later approved by EPA.

3 years

Region 6 Texas

San Jacinto River Authority 12597 1/14/2003 Copper Facility developed site‐specific

criteria for copper, which werelater approved by EPA.

3 years

Region 6 Texas

Richfield Investment Corp. 13636 3/25/2004 Dissolved Oxygen TCEQ conducting UAA to evaluate

aquatic life use and dissolvedoxygen criteria.

3 years

Region 6 Texas

Faulkey Gully MUD 11832 9/26/2001 Dissolved Oxygen TCEQ conducting UAA to evaluate

aquatic life use and dissolvedoxygen criteria.

3 years

Region 6 Texas

Harris County MUDs 12209, 12809, 12834 3/6/2000 Dissolved Oxygen A UAA was conducted to evaluate

the aquatic life use and dissolvedoxygen criteria. Use and criteriarevisions were later approved by

EPA.

3 years

Region 6 Texas

Tex‐Sun Parks, L.C 12189 12/11/2000 Dissolved Oxygen A UAA was conducted to evaluate

the aquatic life use and dissolvedoxygen criteria. Use and criteriarevisions were later approved by

EPA.

3 years

Region 6 Texas

W. Harris County MUD No. 15 12223 9/26/2001 Dissolved Oxygen A UAA was conducted to evaluate

the aquatic life use and dissolvedoxygen criteria. Use and criteriarevisions were later approved by

EPA.

3 years
Appendix A. Variances by State

Region State Name of Facility Requiring Variance Permit Number Year Granted Parameter(s) Justification(s) for Variance* Length oRegion 6 Texas

Mayde Creek MUD 11969 9/26/2001 Dissolved Oxygen A UAA was conducted to evaluate

the aquatic life use and dissolvedoxygen criteria. Use and criteriarevisions were later approved by

EPA.

3 years

Region 6 Texas

Westlake 11284 9/26/2001 Dissolved Oxygen A UAA was conducted to evaluate

the aquatic life use and dissolvedoxygen criteria. Use and criteriarevisions were later approved by

EPA.

3 years

Region 6 Texas

Rolling Creek Utility District 12841 9/26/2001 Dissolved Oxygen A UAA was conducted to evaluate

the aquatic life use and dissolvedoxygen criteria. Use and criteriarevisions were later approved by

EPA.

3 years

Region 6 Texas

TX Dept. of Criminal Justice 13804 8/9/2007 Dissolved Oxygen Use of site‐specific flows

evaluated and later approved.

(Variance also included in 2004permit.).

3 years 

Region 6 Texas

City of Clute 10044 10/28/2005 Dissolved Oxygen TCEQ is conducting a study to

evaluate whether or not a loweraquatic life use and dissolvedoxygen criterion for Flag LakeDrainage Canal are‐appropriate.

(Variance also included in 2008permit).

3 years 

Region 6 Texas

City of Graham 10487 1/27/2010 Dissolved Oxygen A UAA is under development to

evaluate aquatic life use and

dissolved oxygen criteria.

3 years

Region 6 Texas

City of Cleburne 10006 2/2/2007 and

7/10/2010

Chlorides, Sulfates,

TDS

Site‐specific criteria weredeveloped and adopted by TCEQ.

WQS revisions have beensubmitted to EPA.

3 years 

Region 6 Texas

TXU Electric 00954 2/7/2000 Copper Facility developed site‐specific

criteria for copper, which werelater approved by EPA.

3 years

Region 6 Texas

City of Corpus Christi 10401 11/6/2002 Dissolved Oxygen A UAA was conducted to evaluate

the aquatic life use and dissolvedoxygen criteria. Use and criteriarevisions were later approved by

EPA.

3 years

Region 6 Texas

City of San Benito 10473 7/5/2000 Dissolved Oxygen A UAA was conducted to evaluate

the aquatic life use and dissolved

oxygen criteria. Use and criteriarevisions were later approved by

EPA.

3 years

Region 6 Texas

Natural Gas Odorizing, Inc. 01385 6/2/2006 Zinc Natural Gas Odorizing, Inc. is

conducting a study for site‐specific aquatic life criteria.

3 years

Region 6 Texas

City of Alvin 10005 9/21/2004 Dissolved Oxygen A UAA was conducted to evaluate

the aquatic life use and dissolved

oxygen criteria. Use and criteriarevisions were later approved by

EPA.

3 years
Appendix A. Variances by State

Region State Name of Facility Requiring Variance Permit Number Year Granted Parameter(s) Justification(s) for Variance* Length oRegion 6 Texas

McAllen 10633 7/3/2001 Dissolved Oxygen A UAA was conducted to evaluate

the aquatic life use and dissolved

oxygen criteria. Use and criteriarevisions were later approved by

EPA.

3 years

Region 7 Iowa None.Region 7 Kansas None.Region 7 Missouri None.Region 7 Nebraska None.Region 8 Colorado None.Region 8 Utah None.Region 8 Montana None.Region 8 Wyoming None.Region 8 North Dakota None.Region 8 South Dakota None.Region 9 Arizona Central and Camelback WQARF Registry Site AZ0024848

Approved2/12/2008,Permit issued2/2/08 Boron

Naturally occurring boron levels.

ADEQ contends that theinstallation and operation of eachofthe available dischargetechnologies to achievecompliance with the water quality

standard would result insubstantial economic impact toADEQ's WQARFprogram.

Length of reviewed 

Arizona's 

Region 9 Arizona Canyon Creek Fish Hatchery AZ0021229

Preliminaryapproval:6/03/2010;Final approval

not yet issued. Total N and Total P

Human caused conditions orsources of pollution prevent theattainment of the use and cannot

be remedied or would cause moreenvironmental damage to correctthan to leave in place.

Length of reviewed Arizona's 

Region 9 Arizona City of Show Low

Under review;

preliminaryapproval notyet issued. Selenium Economic Variance

Length of reviewed Arizona's 

Region 9 Arizona North Gila Sanitation District AZ0020117

Under review;preliminaryapproval notyet issued. Total N and Total P Economic Variance

Length of reviewed Arizona's 

Region 9 Arizona Pinetop Lakeside AZ 0025437

VarianceapprovedDecember2006, permitissued January2007

Phosphorus (limit

0.16 mg/L)

Discharge to constructed and

bermed wetlands

Length of reviewed Arizona's 
Appendix A. Variances by State

Region State Name of Facility Requiring Variance Permit Number Year Granted Parameter(s) Justification(s) for Variance* Length oRegion 9 Arizona Lake Roosevelt AZ23787

Varianceapproved11/19/2007;Permit issued10/18/2007

Total N, Total P:

Variance from Total N

(0.3 mg/L) and TotalP (0.03 mg/L) limits Economic Variance

Length of reviewed Arizona's 

Region 9 Arizona Flagstaff Meadows 6/6/2008 N & P Economic Variance

Length of reviewed 

Arizona's 

Region 9 Arizona Houston Creek Landing WWTP AZ0025305

Approved5/28/2008,variance issued6/2/2008 Total N and Total P Economic Variance

Length of reviewed 

Arizona's 

Region 9 Arizona Cottonwood

Approved4/22/2009 N & P Economic Variance

Length of reviewed 

Arizona's 

Region 9 Arizona Jerome AZ0021804

Preliminaryapproval:7/27/2007;permit issued10/23/2007 Total N and Total P

Length of reviewed 

Arizona's 

Region 9 California None.

Region 9 Hawaii None.

Region 9 Nevada None.

Region 10 Oregon None.Region 10 Washington None.Region 10 Idaho City of Smelterville ID‐002011‐7 2004 Cd, Zn, Pb

high levels of metals enteringtreatment plants through inflow

and infiltration, utility cannot

meet discharge limits, negative

widespread socioeconomic impact

8/1/2004expires 7

Region 10 Idaho Page WWTP ID‐002130‐0 2004 Cd, Zn, Pb

high levels of metals entering

treatment plants through inflow

and infiltration, utility cannot

meet discharge limits, negative

widespread socioeconomic impact

8/1/2004expires 7

Region 10 Idaho Mullen WWTP ID‐002129‐6 2004 Cd, Zn

high levels of metals enteringtreatment plants through inflow

and infiltration, utility cannotmeet discharge limits, negative

widespread socioeconomic impact

8/1/2004expires 7

Region 10 Alaska None.

* Note for Region 6: Justification in application for variance was: (1) preliminary round of toxicity testing for WER study if request applied to aquatic life criteria for metals; (2) documentation of field observations if request

applied to dissolved oxygen criteria; or (3) other information for requests on minerals or selenium.
Appendix B

Examples: Variance Application Forms
Example Chloride Variance Application for Wisconsin
Chloride Variance Application

Form 3400-193 (R 4/06) Page 1 of 2

State of Wisconsin

Department of Natural Resources

PO Box 7921, Madison WI 53707-7921

dnr.wi.gov

Applicant Information

Contact Name 

Street Address 

City State ZIP Code 

Telephone Number (include area code) FAX Number 

E-mail Address 

Street Address 

City State ZIP Code 

Company Name 

WPDES Permit No. 

Receiving Water Average Discharge Flow Rate 

Capital Cost

Have you done a study to determine the capital cost of end-of-pipe chloride removal for your facility?

Yes - Please include the information with this worksheet or mail it with the signature portion of the permit application.

No - Please complete this estimate of relative capital cost:

$1.125 x Annual Average Design Flow (in MGD) X 1,000,000 =

Chloride Removal Capital Cost:

Do you know of a facility that could accept for treatment the

concentrated brine solution that would result from end-of-pipe chloride

treatment?

If yes, Name of Facility

Yes No

Treatment Facility Information

Notice: Information requested is required for the Department to determine whether or not to grant a variance under the provisions of sections NR 106.80

through 106.96, Wis. Adm. Code. Failure to provide all of the requested information may result in denial of your application. Personal information

collected will be used to administer the watershed program and may be provided to requesters as required by Wisconsin's Open Records law

[ss. 19.31-19.39, Wis. Stats.]

Chloride Removal as a Percentage of Annual Capital Cost:

Chloride Removal Capital Cost (from above)

Capital Cost of Current Wastewater Facility X 100 = %

Operational (O&M) Cost Based on the Cost Estimate

Have you done a study to determine the annual O & M cost of end-of-pipe chloride removal for your facility?

Yes - Please include the information with this worksheet or mail it with the signature portion of the permit application.

No - Please complete this estimate of relative O&M cost:

($1.00 x Annual Average Design Flow (in MGD) x 1000 x 365) =

Chloride Removal O&M Cost:

Chloride Removal as a Percentage of Annual O&M Cost:

Chloride Removal O&M Cost (from above)

O&M Costs of Current Wastewater Facility X 100 = %

Facility Name 
Chloride Variance Application

Form 3400-193 (R 4/06) Page 2 of 2

The information in the following questions is requested to assist the permittee and the Department in determining appropriate effluent values

or limitations, compliance schedules and source reduction measures.

Sample Information

Have you sampled at least eleven effluent samples for chloride over the course of at least a year? Yes No

a) Have you identified industrial contributors of chloride to your sewer system?

b) Have you requested voluntary reductions of chloride from any industrial users to your sewer system?

c) Have you instituted sewer use ordinances regulating or limiting the discharge of chloride from significant industrial users?

d) Does your community have centralized softening of source water through a water utility?

For Municipalities Only Yes No

For Industry Only

a) Is privately softened water, use of brine, or use of salt integral to your production process?

b) Do you operate a private softener for your industrial process?

c) Have you optimized operation of your water softener (adjustment of regeneration interval, salt dosage, replacement of backwash

controller)?

d) Have you determined which industrial processes can be run without softened water?

e) Have you determined typical concentrations of chloride from domestic users of your sewer system?

f) Does your community implement a public information program on proper maintenance and improved efficiency of residential

softeners?

g) Have you implemented local ordinances to mandate the use of efficient softeners?

Yes No

e) Have you implemented practices to reduce or reuse any brine solutions or softened water in your industrial process?

f) Have you implemented housekeeping practices to reduce spillage of any brine solutions, or to minimize the contribution of salt to

the wastewater treatment system?

Additional Information or Comments

Individual Submitting Request (Individual must be an Authorized Representative)

Signature of Official Date Signed 

Title 

Certification

Based on the information provided, I believe that attainment of the applicable water quality standards for chloride may cause substantial and widespread

adverse social and economic impacts in the area where this discharge is located. I understand that, as a condition of the variance, the Department and

the permittee will need to agree upon an interim effluent limitation, a target value or target limitation, and a compliance schedule to implement source

reduction. I understand that these conditions will be included in the WPDES permit issued to this facility.

I certify that the information provided is true, accurate and complete.
Example Mercury Variance Application for Wisconsin
State of Wisconsin

Department of Natural Resources

PO Box 7921, Madison WI 53707-7921

dnr.wi.gov

Notice: Information requested is required for the Department to determine whether or not to grant a variance under the provisions of section

NR 106.145, Wis. Adm. Code. Failure to provide all of the requested information may result in denial of your application. Personal information collected

will be used to administer the watershed program and may be provided to requesters as required by Wisconsin's Open Records law [ss. 19.31-19.39,

Wis. Stats.]

Mercury Variance Application

Form 3400-192 (R 4/06) Page 1 of 2

Individual Submitting Request (Individual must be an Authorized Representative) Title 

Based on the information provided, I believe that attainment of the applicable water quality standards for mercury may cause substantial and widespread

adverse social and economic impacts in the area where this discharge is located. I understand that, as a condition of the variance, the Department and

the permittee will need to agree upon an alternative effluent limitation and specific language incorporating the PMP. I understand that these conditions

will be included in the WPDES permit issued to this facility.

I certify that the information provided is true, accurate and complete.

Signature of Official Date Signed 

Applicant Information

What are the primary sources of mercury to your facility?

What feasible actions (e.g. pollution prevention or installation of treatment) have you taken and could you take to reduce mercury discharge levels

sufficiently to meet, or make progress toward meeting, the water quality based effluent limit?

What types of waste materials or byproducts would be produced by these steps and what would be the ultimate means of disposal of those wastes?

What are the estimated costs of these actions? How do these costs compare with current costs?

If this is a new discharge, what danger to public health or welfare would this variance help alleviate?

Pollutant Minimization Program (PMP)

If you have not previously submitted a PMP plan, submit it with this application or provide an explanation of why you cannot submit it now. If you have

already submitted the plan or have begun to implement the PMP program, provide an update on your actions and success implementing the PMP.

Other Information

Certification

Test Data: Supply mercury data on page 2 of this form.

Supply any other information that you believe may be relevant to your request.

Facility Name City State ZIP Code 

Telephone Number (include area code) FAX Number 

Receiving Water Source of Water Supply Average Discharge Flow Rate 

Company Name Contact Name 

Street Address 

City State ZIP Code E-mail Address 

Alternatives

WPDES Permit No. Street Address 

Capital $

Annual Operational $
Merc

Form 34

Mercury Data to Support Variance Request or Determination of Reasonable PotentialMake additional copies if necessary.*Describe sample type as composite or grab for all samples.

Sample

Date 

Laboratory Results of Testing (express all results in ng/L)

Limit of Quantitation

(LOQ)

Limit of Detection

(LOD) Field Bank Effluent to Surface Water Intake (if water supply is surface water) Treatment System Influent (if tested) Sample Type*
Appendix C

Examples: Memorandums of Agreement (MOAs)
Arizona MOA
 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

 REGION IX 

75 Hawthorne Street 

San Francisco, CA 94105

MEMORANDUM

DATE: REVISED June 1, 2010 

SUBJECT: Guidelines for EPA review and approval of water quality standards 

 variances issued by the Arizona Department of Environmental Quality 

FROM: Karin Graves, USEPA Region 9, Standards and TMDLs Office 

TO: Debra Daniel, Arizona Department of Environmental Quality 

A water quality standards variance may be issued to allow a short-term exemption from meeting 

certain otherwise applicable water quality standards (WQS). 

EPA authorizes States and Tribes to include variances in their water quality standards. (see 40 

CFR 131.13). Agency guidance on variances identifies what the Agency believes to be the 

essential elements of a variance. EPA may approve the use of variances when the state 

demonstrates that the following items are fulfilled: 

 the variance is subject to the same public review as other changes in WQS (the variance 

may be public noticed for review and comment with the draft permit); 

 a variance should be granted only where there is a demonstration that one of the use 

removal factors (40 CFR 131.10(g)) has been satisfied; 

 a variance is granted to an individual discharger for a specific pollutant(s) and does not 

otherwise modify the standards; 

 a variance identifies and justifies the numerical criteria that will apply during the 

existence of the variance; 

 a variance is established as close to the underlying numerical criteria as is possible; 

 a variance is reviewed every three years, at a minimum, and extended only where the 

conditions for granting the variance still apply; 

 upon expiration, of the variance, the underlying numerical criteria have full regulatory 

effect; 

 a variance does not exempt the discharger from compliance with applicable technology 

or other water quality-based limits, and advanced treatment and alternative effluent 

control strategies have been considered; and 

 a variance does not affect effluent limitations for other dischargers. (65 FR 129 p 36759, 

July 8, 1998).
ADEQ has incorporated variance provisions into the State’s water quality standards at R18-11-

122 that meet EPA requirements. 

In order to review and approve water quality variances issued by ADEQ, EPA Region IX 

proposes the following steps: 

1. ADEQ will send EPA a variance package including: A letter from ADEQ with technical 

justification for the variance and demonstration that it meets the items listed above, the 

request for variance submitted by the permittee (consistent with the requirements of R18-

11-222 E) and a draft permit fact sheet. 

2. EPA will review the variance application and raise any concerns to ADEQ prior to public 

notice. EPA will review the variance for consistency with meeting the provisions of 

Arizona water quality standards, consistency with 131.10(g) factors, and the extent of 

risk to human health and the environment resulting from variance approval. 

3. EPA will review the variance application for potential effects to endangered species that 

would be likely to jeopardize the continued existence of any endangered or threatened 

species listed under Section 4 of the Endangered Species Act (ESA) or result in the 

destruction or adverse modification of such species' critical habitat. If necessary, EPA 

will prepare a biological evaluation for the Fish & Wildlife Service and obtain 

concurrence for EPA approval. 

4. If applicable, EPA will provide preliminary approval of the variance. 

5. ADEQ will public notice the draft permit with justification for the variance contained in 

the Fact Sheet. 

6. After the close of the comment period, ADEQ will provide EPA with: a final permit fact 

sheet with the variance language included, public notice document, any comments 

received on the variance, and response to comments received on the variance. 

7. EPA will issue letter of approval for the variance, if appropriate. 

8. ADEQ will issue the final NPDES permit, as appropriate. 
New York MOA
III. Variances

1. The NYSDEC has revised its regulations at 6 NYCRR '702.17 to enable the State to 

grant variances similar to those allowed in 40 C.F.R. Part 132, Appendix 6, Procedure 2 

of the GLWQG. To ensure that any variance granted pursuant to 6 NYCRR '702.17 is 

consistent with and as protective of water quality as variances that would be issued under 

40 C.F.R. Part 132 Appendix 6, Procedure 2, EPA and NYSDEC agree as follows: 

2. Upon receipt of a complete SPDES application in accordance with 6 NYCRR 621, which 

includes a request for a variance, NYSDEC shall submit a copy of such request to Region 

II. 

3. If NYSDEC determines that the variance request should be issued in accordance with the 

requirements of 6 NYCRR Part 702.17, it shall submit a draft permit and explanation of 

how the variance, if issued, will be as protective as a variance issued in accordance with 

40 C.F.R. Part 132 Appendix 6, Procedure 2, to EPA Region II on or before the date it 

notices said permit and variance request in the State=s Environmental Notice Bulletin. 

4. EPA Region II shall be granted at least 30 days, but no longer than the public comment 

period, to review and comment on NYSDEC=s explanation that the variance would be as 

protective as a variance issued in accordance with the GLWQG. 

5. In the event that EPA provides comments on the proposed application, NYSDEC shall 

consider EPA=s comments to the explanation and proposed variance and prepare a 

written response to EPA=s comments. 

6. Upon submission of NYSDEC=s response to EPA Region=s comments on the 

explanation, EPA shall have 30 days to provide additional comments. 

7. Nothing in this MOA obviates the NYSDEC=s obligations to conform with the public 

notice, comment and hearing requirements contained in its regulations at 6 NYCRR Parts 

621 and 624. 

8. If EPA determines that the explanation provided by NYSDEC does not demonstrate that 

the granting of a variance pursuant to 6 NYCRR Section 702.17 would be as protective as 

that which would be required by 40 C.F.R. Part 132, Appendix F, Procedure 2, it may 

object to the issuance of such variance in the permit as being outside the guidelines and 

requirements of the Act. If EPA determines that the explanation supporting the issuance 

of the variance demonstrates the variance is as protective as that which would be required 

by 40 C.F.R. Part 132, Appendix F, Procedure 2, EPA will not object to the issuance of 

the permit or modification based solely on the grounds that the permit contains a variance 

to a water quality-based effluent limit. 

9. In accordance with the Environmental Benefit Permit Strategy (EBPS), NYSDEC will 

give priority review for any permit containing a variance granted under 6 NYCRR 

Section 702.17 to assess whether there is new information which indicates that the 

standard in question is achievable. 
Appendix D

Example: Process Diagram of Roles and Responsibilities

(The following is an excerpt from EPA Region 7’s guidance for variances for water quality standards. The

guidance reflects Regional suggestions and is not intended to reflect national policy.)
7

SUBMITTAL CHECKLIST

Item Description Date Sent by 

State (mm/dd/yyyy) 

Date EPA-R7 Received (mm/dd/yyyy) 

Complete? (Y/N) 

If not complete, date notified (mm/dd/yyyy) 

In not compdate resubm(mm/dd/yyyy

a Submittal letter b.i 131.10(g) factor b.ii Designated use and 

supporting criteria 

b.iii Advanced treatment and 

alternatives considered 

b.iv Reasonable and necessary 

time period 

b.v Interim milestones, if 

applicable 

b.vi Triennial review statement c.i Variance application c.ii Permit cover page c.iii Effluent limitations c.iv Variance language in 

permit conditions 

d.i Notice of draft permit d.ii Relevant state approval 

documents 

d.iii Public notice affidavit d.iv Comments and responses d.v Fulfilled public 

participation 

e.i Purpose/intent e.ii Uses and criteria rationale e.iii Monitoring and assessment 

tracking 
8

EPA INTERNAL CHECKLIST 

The EPA Water Quality Standards Coordinator scans copies of all the information and place it in the Vari

shared network drive for the Water, Wetlands, and Pesticides Division, and notifies the NPDES Permits Coordinstate) that a variance package has been received. The Water Quality Standards Coordinator notes submittal dates Checklist (see attached) and maintains a copy in the folder on the shared network drive. (H:\WQMB\Water QualiStandards\Variances\[State Name]) Description Date Completed 

(mm/dd/yyyy) 

Additional Comments 

Submittal copied to H: drive Submittal sent to USFWS Regional and state Permits Coordinators notified Review comments received from Permits Coordinators Biological evaluations submitted to USFWS Response received from USFWS Concurrence? Y / N Response to state and reviewed by Permits Coordinators Response to state sent 
Appendix E

Examples: EPA Approval Letters for Variances  
Example EPA Approval Letter for Discharges of Metals  

from the Cities of Page, Mullan, and Smelterville  

Wastewater Treatment Plants in Idaho
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
 

REGION 10
 

1200 Sixth Avenue, Suite 900 

Seattle, WA 98101-3140 

OFFICE OF 

WATER AND WATERSHEDS 

JUL 2 2 2009 

Mr. Barry Burnell, Administrator 

Water Quality Programs 

Idaho Department of Environmental Quality 

1410 North Hilton 

Boise, Idaho 83706-1255 

Re:	 Approval ofIdaho's Granting of Renewed Variances to Idaho's Water Quality Standards for 

the Discharges of Metals from the Cities of Page, Mullan and Smelterville Wastewater 

Treatment Plants, Docket 58-0000-0903 

Dear Mr. Burnell: 

Pursuant to its authority under Section 303(c) ofthe Clean Water Act (CWA) and the 

implementing regulations at 40 CFR Part 131, the United States Environmental Protection Agency 

has reviewed Idaho's Docket 58-000-0903 granting variances from Idaho's water quality standards to 

the wastewater treatment facilities ofthe cities ofPage, Mullan and Smelterville. In accordance with 

these authorities, EPA approves Idaho's granting ofrenewed variances from the freshwater aquatic 

life criteria for cadmium, lead and zinc for Page and Smelterville and from the freshwater aquatic life 

criteria for cadmium and zinc for Mullan. 

Background 

Consistent with Idaho's variance policy contained in IDAPA 58.01.02.260., by letter dated 

January 30, 2009, the South Fork Coeur d'Alene River Sewer District (SFCDRSD), which operates 

the Page and Mullan wastewater treatment plants (WWTP), provided Idaho Department of 

Environmental Quality (IDEQ) with a request for a renewal ofthe variance granted by EPA in 2004. 

By letter dated February 19, 2009, IDEQ received a separate request from the City of Smelterville, 

for renewal ofthe variance granted to the Smelterville WWTP by EPA in 2004. 

IDEQ reviewed these requests and determined that the facilities demonstrated that renewal of 

the respective variances was justified and consistent with Idaho's variance policy and proposed to 

grant these variances. Draft variances were prepared and a public notice was published in the Idaho 

Administrative Bulletin on April 1, 2009, informing the public ofIDEQ's preliminary decision, the 

availability ofthe draft variances and supporting documentation, and initiated a 30-day public 

comment period. By letter dated April 30, 2009, EPA provided comments to IDEQ regarding the 

proposed variances. In those comments EPA stated that EPA staffwere generally supportive of 

IDEQ's tentative determination, and believed that IDEQ's decision was consistent with Idaho's 

Water Quality Standards. However, a written justification and any supporting documentation is a 

required part ofIDEQ's submission ofthe renewed variances to EPA for review and action. 

Therefore, EPA encouraged IDEQ to develop a justification document and provided suggestions for 

information to include. In addition, EPA commented that although the SFCDRSD and Smelterville 

o Pt1ntetl on RecyCled Peper 
did make a demonstration regarding the "substantial" part of the economic analysis they did not 

include a substantive analysis of "widespread" adverse impacts. EPA stated that the facilities must 

provide a substantive analysis to support its assertion ofwidespread adverse impacts, as indicated in 

Chapter 4 of the Interim Economic Guidance for Water Quality Standards Workbook (EPA-823-B95-002, March 1995). 

On June 12,2009, EPA received for review and action, IDEQ's letter dated June 8, 2009, 

which contained variances IDEQ granted to the wastewater treatment facilities of Page, Mullan and 

Smelterville. Contained in the submission were copies of the revised requests from the facilities, 

individual variances for each facility with proposed effluent limitations, as well as variance 

conditions, a detailed justification describing IDEQ' s review and the State of Idaho attorney 

general's certification that the variances were prepared in accordance with state law. 

EPA Review 

Section 303(c)(2) of the CWA requires States and authorized Tribes to submit new or revised 

WQS to EPA for review. Under Section 303(c) of the CWA and its implementing regulations found 

at 40 CFR 131, EPA is to review these WQS to ensure the adopted water quality standards are 

consistent with the CWA and the State has followed its own procedures for adopting such standards. 

The Federal water quality standards regulations at 40 CFR 131.13, authorizes States to 

include variances in their water quality standards and provides that States may include general 

policies in their State standards affecting their application and implementation. Such policies are 

required to be submitted to EPA for review and approval. 

In summary, States have the discretion to include variance policies in their water quality 

standards regulation. Such policies are subject to EPA review and approval. In addition, States must 

include individual variances as part or their water quality standards and each variance is subject to 

public review. Each individual variance represents a temporary downgrade in water quality 

standards. Therefore, individual variances are a change to water quality standards and States and 

Tribes are required to submit them to EPA for review and approvaVdisapproval. Variances are not 

effective for Clean Water Act purposes until approved by EPA. As with all water quality standards 

submitted to EPA for review, the minimum requirements for water quality standards submissions 

include appropriate supporting justification and certification by the State Attorney General that the 

variance is legal according to state law (40 CFR 131.6). 

IDEQ's variance policy is contained in IDAPA 58.0102.260 ofIdaho's water quality 

standards regulations. The majority of section 260 was approved by EPA in 1997. Subsections 

ol.a.i. and ii, were added in 2002 and approved by EPA on July 7, 2006. Subsections 0l.a.i. and ii., 

establish an administrative procedure whereby IDEQ grants variances through a formal process 

which includes public comment and submission to EPA for approval. However, this administrative 

process does not require action by the Idaho Board of Environmental Quality or the Idaho State 

Legislature. 

Consistent with Idaho's variance policy at IDAPA 58.0l.02.260.a.ii., IDEQ is required to 

maintain a list of variances which is available to the public. In this particular case, since Idaho's 

2 

o Prlnred on Recycled Peper 
variance procedures no longer require adoption of each variance into the water quality standards 

regulations, it is important that IDEQ ensure that the public and the regulated community are aware 

of all variances to water quality standards that have been granted by IDEQ and approved by EPA. 

As it now exists, we believe it is unclear to the public and regulated community the entire list ofthe 

effective variances when currently there are variances in the rules and other variances out side the 

rules. Given that IDEQ already has a section of your rules which houses specific variances (IDAPA 

58.01.02.260.02), EPA recommends that during the next water quality standards rulemaking IDEQ 

include these current variances for the South Fork Coeur d'Alene River for Page, Mullan and 

Smelterville WWTPs in section 58.01.02.260.02. 

EPA reviewed IDEQ's submission package, granting renewed variances to the facilities for 

both consistency with EPA guidance on variances and with Idaho's variance policy and procedures 

as described in IDAPA 58.01.02.260. This package included the following: 

•	 Cover letter 

•	 Copy ofthe public notice bulletin 

•	 Individual Variances for Page, Mullan and Smelterville 

•	 IDEQ's Variance Justification document, 

•	 Idaho Attorney General Certification Letter 

•	 Copies ofthe revised requests from SFCDRSD and the City of Smelterville and supporting 

information which accompanied these requests 

•	 Page, Mullan and Smelterville metals effluent data 

•	 Summary of Alternate Metals Limits analysis 

•	 Metals Load Concentration Comparisons 

•	 Metals Load Comparison Summary 

•	 Idaho Variance Procedure 

EPA Determination 

Based on our review ofthe materials contained in IDEQ's submission package, as listed 

above, EPA has determined that IDEQ's granting of renewed variances for the Page, Mullan and 

Smelterville WWTPs is consistent with Idaho' variance policy and procedures as described in 

Idaho's Water Quality Standards at IDAPA 58.01.02.260. In addition, IDEQ's granting ofthese 

variances is consistent with CWA Section 303(c), the implementing federal water quality standards 

regulations at 40 CFR 131.13 and EPA guidance on variances as described in the Water Quality 

Standards Handbook: Second Edition (EPA 1994). The granting ofthese renewed variances is based 

on IDEQ's review that the facilities demonstrated that controls more stringent than technology-based 

effluent limitations would result in substantial and widespread economic and social impacts. This is 

consistent with Idaho's variance policy at IDAPA 58.01.02.260.01.b.vi., and EPA guidance. 

The details ofEPA's review are discussed in the enclosed document titled "Justification for 

EPA's Approval ofIdaho's Granting ofRenewed Variances to Idaho's Water Quality Standards for 

the Discharges of Metals from the Cities of Page, Mullan and Smelterville Wastewater Treatment 

Plants." It is clear from our review IDEQ performed a thorough analysis and developed appropriate 

3 

o PltnlfKl on RBCycledPaper 
documentation demonstrating that a renewal of the variances was justified and legally valid. EPA 

congratulates IDEQ on a comprehensive and expeditious approach to the granting ofthese variances. 

If you have further questions, please feel free to contact Lisa Macchio, Idaho Water Quality 

Standards Coordinator, at (206) 553-1834. 

Sincerely, 

Michael A. Bussell, Director 

Office of Water and Watersheds 

Enclosure: 

cc:	 Michael McIntyre, IDEQ 

Don Essig, IDEQ 

John Tindall, IDEQ 

4 

oP11nled 01/ Recyc/IKI Paper 
July 20, 2009 

JUSTIFICATION
 

for
 

EPA's Approval ofIdaho's
 

Granting of Renewed Variances to Idaho's Water Quality Standards
 

for the Discharges of Metals from the
 

Cities of Page, Mullan and Smelterville Wastewater Treatment Plants
 

Idaho Docket No. 58-0000-0903
 

Background 

In 1997, EPA promulgated a federal rule which established water quality 

standards applicable to specific waters in the State of Idaho (40 CFR Part 131.33, Federal 

Register Vol. 62, No. 147, July 31, 1997). As part of this rule making EPA promulgated 

a cold water biota beneficial use designation for the South Fork Coeur d'Alene River. 

This rule also set forth requirements and a procedure for EPA to grant variances to the 

water quality standards for the South Fork Coeur d'Alene River (40 CFR Part 131.33(d), 

Federal Register Vol. 62, No. 147, July 31, 1997 page 41188). 

On June 24, 2004, EPA issued variances from water quality standards to the Page 

and Mullan wastewater treatment plants (WWTPs) ofthe South Fork Coeur d'Alene 

River Sewer District (SFCDRSD) and the City of Smelterville for their discharge of 

cadmium, lead and zinc to the South Fork Coeur d'Alene River. A water quality standard 

variance applies only to the permittee requesting the variance and only to the pollutant(s) 

specified in the variance for a specific time; the underlying water quality standard 

otherwise remains in effect. Maintaining the underlying standard rather than changing it 

assures that reasonable further progress is made towards improving water quality and 

eventually attaining the water quality standard. Since water quality standards are 

implemented within National Pollutant Discharge Elimination System (NPDES) permits, 

reasonable progress toward meeting the standards was required within the permit. These 

variances will expire at midnight on August 1,2009. 

On August 19, 2008 EPA proposed removing its federal use designation for the 

South Fork Coeur d'Alene River. The removal of the federal use designation became 

final on November 5, 2008. As a result ofthe withdrawal ofthe federal rule, the State of 

Idaho now has the authority to grant variances to water quality standards in the South 

Fork Coeur d'Alene River. 

Consistent with Idaho's variance policy contained in IDAPA 58.01.02.260., by 

letter dated January 30, 2009, SFCRSD, which operates the Page and Mullan WWTPs, 

provided Idaho Department of Environmental Quality (IDEQ) with a request for a 

renewal ofthe variances granted by EPA in 2004. By letter dated February 19,2009, 

IDEQ received a separate request from the City of Smelterville for renewal of the 

variance that was granted to their facility by EPA in 2004. 

1
 
IDEQ reviewed these requests and determined that the facilities demonstrated that 

renewal ofthe respective variances was justified and consistent with Idaho's variance 

policy and proposed to grant these variances. Draft variances were prepared and a public 

notice was published in the Idaho Administrative Bulletin on April 1, 2009 informing the 

public ofIDEQ's preliminary decision, the availability ofthe draft variances and 

supporting documentation. This notice initiated a 30-day public comment period. 

By letter dated April 30, 2009, EPA provided comments to IDEQ regarding the 

proposed variances. In those comments EPA stated that EPA staff were generally 

supportive ofIDEQ's tentative determination, and believed that IDEQ's decision was 

consistent with Idaho's Water Quality Standards. However a written justification and 

any supporting documentation is a required part of IDEQ's submission of the renewed 

variances to EPA for review and action. Therefore, EPA encouraged IDEQ to develop a 

justification document and provided suggestions for what to include. In addition, EPA 

commented that the SFCRSD and City of Smelterville did demonstrate that complying 

with the water quality standards would impose substantial adverse economic impacts, the 

SFCRSD and City of Smelterville did not include a substantive analysis of widespread 

adverse impacts with their submissions to IDEQ. EPA stated that the facilities must 

provide a substantive analysis to support their assertions of widespread adverse impacts. 

EPA referred IDEQ to Chapter 4 ofEPA's Interim Economic Guidance for Water 

Quality Standards Workbook (EPA 1995) which contains a discussion of a recommended 

analysis for addressing widespread adverse impacts. 

On June 12,2009, EPA received IDEQ's letter dated June 8, 2009, in which 

IDEQ provided to EPA, for review and action, the variances which IDEQ had granted to 

the Page, Mullan, and Smelterville WWTPs. Contained in the submission were copies of 

the revised requests from the SFCRSD and the City of Smelterville; the individual 

variances, dated June 5, 2009, for each facility with proposed effluent limitations as well 

as variance conditions; a detailed justification describing IDEQ's review ofthe requests; 

a 'proposed procedures document' for reviewing the variance requests, and the State of 

Idaho attorney general's certification that the variances were prepared in accordance with 

state law. 

IDEQ's Process and Criteria for Granting Variances 

The procedures for granting variances to the SFCRSD and the Smelterville 

WWTP are described in Idaho's water quality standards regulations at IDAPA 

58.01.02.260. The regulations provide that a variance may be granted ifthe applicant 

demonstrates to IDEQ that meeting the standard is unattainable based on one or more of 

the following reasons: 

1.	 Naturally occurring pollutant concentrations prevent the attainment ofthe 

standard; or 

2.	 Natural, intermittent, or low flow conditions or water levels prevent the 

attainment ofthe standard; or 

2
 
3.	 Human caused conditions or sources of pollution prevent the attainment of 

the standard and cannot be remedied or would cause more environmental 

damage to correct than to leave in place; or 

4.	 Dams, diversions or other types ofhydrologic modifications preclude the 

attainment ofthe standard, and it is not feasible to restore the water body 

to its original condition or to operate such modification in a way that 

would result in attainment ofthe standard; or 

5.	 Physical conditions related to the natural features ofthe water body, 

unrelated to water quality, preclude attainment of the standard; or 

6.	 Controls more stringent than technology-based effluent limitations would 

result in substantial and widespread economic and social impacts. 

In addition, the discharger must submit to IDEQ documentation that treatment more 

advanced than required by technology-based effluent limitation has been considered and 

that alternative effluent control strategies have been evaluated (IDAPA 58.01.02.260.01.c.). 

Lastly, with respect to requests for renewal of a variance IDEQ will require the discharger 

to demonstrate reasonable progress towards meeting the standard (IDAPA ' 

58.01.02.260.01.dji.) . 

IDEQ's variance policy is contained in IDAPA 58.0102.260 ofIdaho's water 

quality standards regulations. Idaho's initial variance policy was approved by EPA in 

1997. Subsections 01.aj. and ii, were added in 2002 and approved by EPA by letter to 

IDEQ dated July 7, 2006. Subsections 01.aj and ii establishes an administrative 

procedure for granting variances. It is similar to the formal rulemaking process but does 

not require action by the Idaho Board of Environmental Quality or the Idaho State 

Legislature. 

EPA Review 

Section 303(c) (2) ofthe CWA requires that States and authorized Tribes submit 

new or revised WQS to EPA for review. Under Section 303(c) of the CWA and its 

implementing regulations found at 40 CFR 131, EPA is to review these WQS to ensure 

the adopted water quality standards are consistent with the CWA and the State has 

followed its own procedures for adopting such standards. 

The Federal water quality standards regulations at 40 CFR 131.13, authorizes 

States to include variances in their water quality standards and provides that States may 

include general policies in their State standards affecting their application and 

implementation. Such policies are required to be submitted to EPA for review and 

approval. 

In 1983, EPA amended the Water Quality Standards Regulation to explicitly 

3
 
address certain requirements in State standards and other legal and programmatic issues 

(48 FR 51400, November 8, 1983). The 1983 Preamble to these regulations clarifies 

EPA's position regarding variances. It states that "EPA has approved State-adopted 

variances in the past and will continue to do so if: each individual variance is included as 

part of the water quality standard, subject to the same public review as other changes in 

water quality standards... EPA will review for approval individual variances, not just an 

overall State variance policy" (48 FR 51403). 

In summary, States have the discretion to include variance policies in their water 

quality standards regulation. Such policies are subject to EPA review and approval. In 

addition, States must include individual variances as part or their water quality standards 

and each variance is subject to public review. Each individual variance represents a 

temporary downgrade in water quality standards. Therefore, individual variances are a 

change to water quality standards and States and Tribes are required to submit them to 

EPA for review and approval or disapproval. Variances are not effective for Clean Water 

Act purposes until approved by EPA. As with all water quality standards submitted to 

EPA for review, the minimum requirements for water quality standards submissions 

include appropriate supporting justification and certification by the State Attorney 

General that the variance is legal according to state law (40 CFR 131.6). 

EPA guidance on variances provides that EPA will approve state variances if: 

1.	 the justification submitted includes documentation that treatment more 

advanced than that required by sections 301(b)(l)(b) and 306 ofthe Clean 

Water Act has been carefully considered and that alternative effluent control 

strategies have been evaluated 

2.	 the State demonstrates that meeting the standard is unattainable based on one 

or more ofthe factors in 131.10 (g) 

3.	 reasonable progress is being made toward meeting the standards 

4.	 a clear description is provided ofthe impact ofthe variance upon achieving 

water quality standards in the affected stream segment. 

5.	 the variance was subjected to public notice and opportunity for comment 

6.	 the variance was granted for a specific period of time. 

1. Advanced Treatment is Necessary for Removal of Metals for the Discharge 

In 2004, EPA granted variances to the WWTP of Page, Mullan and Smelterville 

based on the facilities demonstration that controls more stringent than technology-based 

effluent limitations would result in substantial and widespread economic and social 

impacts to the communities. The following information was extracted from EPA's 

justification for the 2004 variances. This information is still accurate and describes the 

unusual circumstances which have caused and contributed to the high levels of metals in 

the discharges from these facilities: 

The Page and Mullan wastewater treatment plants are operated by the SFCRSD. 

The City of Smelterville operates a separate wastewater treatment plant. These three 

4
 
facilities treat domestic sewage from the communities of Kellogg and Mullan. A 

substantial portion of the infrastructure in the communities of Kellogg and Mullan is built 

upon historically-deposited tailings materials, which originated from the mining activity 

ofIdaho's Silver Valley. This includes the collection systems for the sewage treatment 

plants. 

Page, Mullan and Smelterville have unusually high levels ofmetals in their 

effluent when compared to a typical sewage treatment plant in the region. Influent data 

for these facilities indicates that there is a high concentration of metals flowing into these 

facilities. This is most likely a result oftwo circumstances. The first being the nature of 

the surrounding material the collection system piping was constructed in. In many areas 

the piping was built amongst and in packed historical mine tailings deposits. Metals in 

these tailings materials leach out with groundwater and subsurface flow of water through 

this tailings material. The second is the condition of the collection system piping. This 

system is old and believed to be cracked in places. As a result of these two conditions, 

the water which naturally seeps through the surrounding tailings deposits picks up 

dissolved metals. Subsequently, this metals contaminated water enters the cracked 

collection system piping and is carried as influent to the treatment plant along with the 

domestic untreated sewage entering the system also as influent. This suggests that the 

inflow and infiltration problem is likely a significant contribution ofthe metals loading 

into the treatment plants. Without additional controls for metals removal, the effluent 

from the facilities would not meet the water quality-based NPDES permit limits. 

In order to meet water quality-based NPDES permit limits, Page, Mullan, and 

Smelterville would need to reduce the metals concentrations by approximately 83% to 

98%. In order to accomplish these reductions, expensive metals removal treatment along 

with corrections to the piping system would need to be installed at each facility. The 

most cost-effective method of attaining the water quality standards for metals would most 

likely involve additional controls in the form ofboth improvements to the collection 

system to reduce seepage into the pipes, which would be followed by an assessment of 

whether and or what kind of additional treatment technology would be needed. 

2. Demonstration that 131.10 (g) (6), Controls more Stringent than TechnologyBased Effluent Limitations would Result in Substantial and Widespread Economic 

and Social Impacts. 

EPA reviewed both the SFCRSD's and Smelterville's justification for a variance. 

The facility's submission contained the necessary information in providing a 

demonstration that controls more stringent than technology-based effluent limitations 

would result in substantial and widespread adverse economic and social impacts. 

SFCRSD (Page and Mullan) 

EPA's Senior Economist, Elliot Rosenberg, reviewed the economic information 

contained in SFCRSD's submission. The worksheets for determining substantial 

economic adverse impacts were reviewed and found to be accurate. In addition, the 

conclusions were appropriate. This review was performed assuming the treatment cost 

5
 
estimates were appropriate and reasonable. 1 

According to SFCRSD's analyses regarding the source and quantity of metals in 

the discharge, the needed control requirements include both a reduction in infiltration and 

inflow (1/1) and additional treatment technology for metals removal from the discharge 

stream from the wastewater treatment plants of Page and Mullan. An analysis of the 

collection system improvements and 1/1 analyses for the Cities of Kellogg, Mullan, 

Osburn and Wallace was developed by JUB Engineers and presented in several reports 

(JUB 2004, 2002a, 2008, 2002b). In addition, estimated costs for addressing the III 

problems were developed by JUB Engineers in these same reports and were part of the 

total treatment costs for the SFCRSD. In summary, the total estimated costs for meeting 

Idaho's water quality criteria for cadmium, lead and zinc, include the addition ofmetals 

removal treatment technology and remedies correcting the III problems identified in the 

JUB analyses. 

The estimated metals removal treatment costs were derived from a pilot study for 

the Page wastewater treatment plant entitled "Metals Removal Pilot Study for the Page 

Wastewater Treatment Plant" (Pilot Study), prepared by JUB Engineers (JUB 2006). 

As explained in SFCRSD's submission, the least cost alternative for metals removal was 

selected and used as a basis in the economic worksheet calculations. 

EPA environmental engineer, Ben Cope, reviewed the estimated metals removal 

treatment costs and relevant portions ofthe Pilot Study. Based on EPA's review of the 

Pilot Study, the treatment technology selected to remove metals from the municipalities 

effiuent is an appropriate treatment technology. However, EPA found that the Pilot 

Study did not provide an engineering judgment on the potential range of capital costs for 

treatment and the estimate included a contingency of25% on top of the capital cost 

estimate. Although cost estimates of this nature are inherently uncertain, EPA staff 

recommended subtraction of the 25% contingency cost from the treatment cost so that the 

estimated metals removal treatment costs were somewhat more conservative. 2 

In light of Ben Cope's recommendation, EPA chose to verify whether or not the 

facilities' would still meet the requirements demonstrating substantial adverse economic 

impacts if the metals treatment costs were reduced by 25%. Therefore, Elliot Rosenberg 

prepared a revised economic analysis based on a reduction of the metals treatment costs 

by 25%. EPA concluded that the SFCRSD would likely incur substantial adverse 

economic impacts by implementing the appropriate treatment even with a reduction of 

the 25% to the treatment cost.3 

In addition, EPA determined that the qualitative issues enumerated in the 

1 Memos from Elliot Rosenberg, EPA, Senior Economist, to Lisa Macchio, EPA Water Quality Standards
 

Coordinator, June 23, 2009.
 

2 Memo from Ben Cope, environmental engineer, Office of Environmental Assessment, EPA, Region 10, to
 

Lisa Macchio, Idaho Water Quality Standards Coordinator, Office of Water, EPA, Region 10, July 13,
 

2009.
 

3 Memos from Elliot Rosenberg, EPA, Senior Economist to Lisa Macchio, EPA Water Quality Standards
 

CoordirJator, July 20,2009.
 

6
 
SFCRSD's submissions further supported the conclusion that there would be widespread 

adverse social and economic impacts ifthe Page and Mullen WWTP's have to implement 

the proposed metals treatment and reduce infiltration and inflow into the system in order 

to comply with the water quality criteria. This qualitative discussion included a review of 

the relative magnitudes of a number of indicators, for example: levels of unemployment 

in the community compared to the state level, losses to the local economy, decreases in 

tax revenues, and how increased water treatment fees adversely impact public and private 

entities. 

EPA has evaluated these costs and related socioeconomic information based on 

the guidance put forth in EPA's "Interim Economic Guidance for Water Quality 

Standards Workbook", (EPA 1995). Based on this review, EPA determined that the 

SFCRSD's facilities of Page and Mullan have demonstrated that installing controls more 

stringent than technology-based effluent limitations would result in substantial and 

widespread adverse economic and social impacts to the affected and surrounding 

communities. 

Smelterville 

EPA's Senior Economist, Elliot Rosenberg, reviewed the economic information 

contained in Smelterville's submission. The worksheets for determining substantial 

economic adverse impacts were reviewed and found to be accurate. In addition, the 

conclusions were appropriate. This review was performed assuming the treatment cost 

estimates were appropriate and reasonable.4 

The Smelterville submission to IDEQ included capital cost estimate for metals 

removal that was based in part on the Pilot Study prepared by JUB for the Page WWTP. 

The capital treatment cost estimates for Smelterville was derived by multiplying the 

capital cost estimate for the Page WWTP by the ratio of the City of Smelterville flows to 

the Page flows. This approach is commonly used in estimating treatment requirements; 

therefore EPA considered this a reasonable approach for estimating the cost of metals 

removal treatment for the City of Smelterville. Smelterville's cost estimates for meeting 

Idaho's water quality criteria for cadmium, lead and zinc, included only the addition of 

metals removal treatment technology. The estimate did not include any VI remedies. 

As discussed previously, EPA environmental engineer, Ben Cope recommended 

subtraction of the 25% contingency cost from the treatment cost so that the estimated 

metals removal treatment costs were somewhat more conservative. 5 Consistent with 

EPA's decision to verify whether or not the would still meet the requirements 

demonstrating substantial adverse economic impacts ifthe metals treatment costs were 

reduced by 25%; Elliot Rosenberg prepared a revised economic analysis based on a 

4 Memos from Elliot Rosenberg, EPA, Senior Economist, to Lisa Macchio, EPA Water Quality Standards
 

Coordinator, June 23, 2009.
 

5 Memo from Ben Cope, environmental engineer, Office of Environmental Assessment, EPA, Region 10, to
 

Lisa Macchio, Idaho Water Quality Standards Coordinator, Office of Water, EPA, Region 10, July 13,
 

2009.
 

7 
reduction of the metals treatment costs by 25%. EPA concluded that Smelterville would 

likely incur substantial adverse economic impacts by implementing the appropriate 

treatment even with a reduction ofthe 25% to the treatment cost.6 

In addition, EPA has determined that the qualitative issues enumerated in the 

facilities' submissions further supported the conclusion that there would be widespread 

adverse social and economic impacts if the Smelterville WWTP has to implement the 

proposed metals treatment in order to comply with the water quality criteria. This 

qualitative discussion included a review of the relative magnitudes of a number of 

indicators, for example: levels of unemployment in the community compared to the state 

level, losses to the local economy, decreases in tax revenues, and how increased water 

treatment fees adversely impact public and private entities. 

EPA has evaluated these costs and related socioeconomic information based on 

the guidance put forth in EPA's "Interim Economic Guidance for Water Quality 

Standards Workbook", (EPA, March 1995). Based on this review, EPA determined that 

the City of Smelterville has demonstrated for its WWTP that installing controls more 

stringent than technology-based effluent limitations would result in substantial and 

widespread economic and social impacts to the surrounding communities. 

3. Determination of Reasonable Progress Towards Meeting the Water Quality 

Standards 

The SFCRSD and Smelterville submission to IDEQ included documentation of 

the progress made toward correcting the infiltration and inflow (1/1) problems. The 

measures included inspections and actual construction to replace and repair portions of 

the waterwater collection systems.? In 2004, EPA issued NPDES permits to each of these 

facilities that contained specific conditions related to the variance EPA granted in 2004. 

The facilities' submissions included a detailed discussion of each these conditions and the 

actions completed to address each condition. 

IDEQ evaluated SFCRSD's compliance with their permit conditions and in the 

technical justification IDEQ determined that all conditions with the exception of a 

provision requiring them to develop compliance schedules for the surrounding 

municipalities of Osburn, Wallace, Kellog and Mullan had been achieved. With respect 

to the compliance schedule condition, Osburn and Wallace adopted compliance schedules 

in September 2005 while Kellog and Mullan have yet to adopt compliance schedules. 

However, the SFCRSD continues to work with Kellogg and Wallace to address III as 

these communities construct other infrastructure improvements such as road replacement. 

Mullan continues to annually upgrade the wastewater collection system without a 

compliance schedule. Lastly, the Silverton work which included replacing the sanitary 

sewer collectors and services was completed and included replacement of all main lines 

and reconstruction of services to property lines. 

6 See Memo from Elliot Rosenberg, Senior Economist, to Lisa Macchio, Water Quality Standards
 

Coordinator, July 20,2009.
 

7 See pgs. 2-7 in the SFCRSD submission and pgs. 1-2 in the Smelterville submission for more details.
 

8
 
EPA has reviewed IDEQ's technical justification along with the SFCRSD's 

submission to determine ifthe facilities have made reasonable progress in correcting the 

III problem. Although EPA found that most the conditions of the previous variance had 

been completed, all compliance schedules had not been completed. However, it appears 

the facilities are making reasonable progress in addressing the problems associated with 

III without compliance schedules. Therefore, EPA has determined that the SFCRSD has 

made reasonable progress towards reducing the III problem and thus towards reducing the 

metals levels in the discharge with the ultimate goal ofmeeting Idaho's water quality 

criteria for cadmium, lead and zinc. 

Smelterville's submission also included a detailed discussion of the NPDES 

permit variance conditions and what actions had been taken to address this condition. 

According to Smelterville's statements, a thorough III investigation was performed on the 

collection system and a report was submitted to EPA and IDEQ. The sewer main and 

lateral were replaced by 2008. All service connections were inspected in the Silver King 

area and three were found in need of replacement. At this time, that replacement has not 

yet been completed. However, Smelterville is planning to give the owners one year to 

replace their connections. In addition there were 88 other service connections which 

were determined to be defective and have yet to be replaced or repaired. Smelterville 

stated that these will be replaced by spring 2010. Once this has been completed 

Smelterville will need time to monitor and evaluate and analyze the results from reducing 

the III problem. Smelterville also stated that their intent is to ultimately connect with the 

SFCRSD for treatment oftheir wastewater. Smelterville proposed that by January 2013 

it will begin negotiations with SFCRSD in hopes that they connect by the end of2013. 

EPA has reviewed IDEQ's technical justification along with Smelterville's 

submission to determine ifthe facility has made reasonable progress in correcting the III 

problem. EPA has determined that Smelterville has made reasonable progress towards 

reducing the III problem and thus reducing the metals levels in the discharge with the 

ultimate goal ofmeeting the Idaho water quality criteria for cadmium, lead and zinc. 

4. Impact of Variances to Water Quality ofthe South Fork Coeur d'Alene River 

Consistent with Idaho's variance policy, IDEQ examined the impact ofthe 

variances on the receiving stream segment of the South Fork Coeur d'Alene River. All 

three facilities discharge within 22 miles of each other. EPA reviewed IDEQ's analysis 

and found it to be an accurate analysis. EPA concurs with IDEQ's determination that the 

impact ofthe discharges on the receiving stream water quality is very small and the 

marginal impact ofthe variances even smaller. 8 

5. The Variance was Subjected to Public Notice and Opportunity for Comment 

8 Memo from Brian Nickel, EPA, NPDES Unit to Lisa Macchio, Water Quality Standards Unit, June 29, 

2009. 

9
 
Consistent with Idaho's variance policy, IDEQ provided notice to the public that 

the State was proposing to grant variances to the WWTP ofPage, Mullan and 

Smelterville. The public comment period was opened for 30 days from April 1, 2009 to 

April 30, 2009. IDEQ received public comment as well as comments from EPA. A copy 

ofthe bulletin noticing the public comment period was provided in IDEQ's variance 

submission package to EPA. Additional information regarding public comment is 

discussed in IDEQ's Justification document. 9 

6. The Variance is Granted for a Specific Period of Time 

Consistent with Idaho's variance policy, IDEQ has established a 5 year time 

period for the variances. Included in IDEQ's submission package were separate notices 

ofthe variance for each facility. The documents state that each variance will expire on 

July 30,2014. 

Proposed NPDES Alternate Metals Limits and Variance Conditions 

IDEQ developed proposed alternate effluent limitations which were provided to 

EPA in the submission package. Because EPA has retained the authority to issue NPDES 

permits in Idaho, EPA will consider these when re-issuing the NPDES permits for these 

facilities. 

During the term of the variance the WWTPs are expected to maintain their current 

performance. Therefore, the proposed effluent limits developed by IDEQ were based on 

current performance. EPA reviewed IDEQ's calculations used to develop alternate 

effluent limitations for metals for each ofthe facility's wastewater discharge. The 

derivation ofthese limits was based on the procedures in EPA's Technical Support 

Document for Water Quality-Based Toxics Control (TSD) (EPA 1991). This is the same 

approach used by EPA when staff developed alternate effluent limits for these facilities in 

their current NPDES permits. 

Brian Nickel of EPA's NPPES Permits Unit reviewed IDEQ's justification 

document along with IDEQ's effluent files which were included in IDEQ's submission 

package to EPA. 10 EPA staff found IDEQ's analysis ofmetals loads, basis for alternate 

metals limits and the calculations to be sound and consistent with EPA's approach. 

Therefore, EPA has determined that IDEQ's calculations of the alternate metals limits for 

these facilities are accurate and reasonable. EPA has determined that these proposed 

alternate effluent limitations are established at levels that require the facilities to maintain 

the current levels ofdischarge and that this is reasonable while the facilities make further 

progress on addressing infrastructure corrections and if needed, investigate additional 

9 Justification for Granting Variances from the Idaho Water Quality Standards to the Cities of Page, Mullan 

and Smelterville for the Discharge ofMetals from their Wastewater Treatment Plants, prepared by the 

Idaho Department of Environmental Quality, March 28, 2009. 

10 See Mullan Effluent, Page Effluent, and Smelterville Effluent pdf files contained on compact disk 

provided with IDEQ's submission package 

10
 
treatment options as a remedy. I I 

EPA has reviewed IDEQ's proposed variance conditions for the facilities, as 

described on pages 12-13 ofIDEQ's Justification document, and has determined that 

these conditions are consistent with actions needed to be taken by the facilities to 

demonstrate further progress in ultimately attaining Idaho's water quality standards in the 

South Fork Coeur d'Alene River. 

II Memo from Brian Nickel, EPA, NPDES Unit to Lisa Macchio, Water Quality Standards Unit, June 29, 

2009. 

11 
List of References 

EPA 1991. Technical Support Document for Water Quality-based Toxics Control. 

EPN50512-90-001, March 1991. 

EPA 1995. Interim Economic Guidance for Water Quality Standards. Workbook. EPA823-B-95-002, March 1995. 

JUB 2002 a. City of Mullan Collection System Capital Improvement Plan and Infiltration 

and Inflow (III) Analysis for the South Fork of the Coeur d'Alene River Sewer District. 

January 2002.75 pgs. 

JUB 2002 b. City of Wallace Collection System Capital Improvement Plan and 

Infiltration and Inflow (III) Analysis for the South Fork of the Coeur d'Alene River Sewer 

District. February 2002. 111 pgs. 

JUB 2004. City of Kellogg Collection System Capital Improvement Plan and Infiltration 

and Inflow (III) Analysis for the South Fork of the Coeur d'Alene River Sewer District. 

December 2004. 179 pgs. 

JUB 2006. Metals Removal Pilot Study for the Page Wastewater Treatment Plant. Study 

Results for the South Fork of the Coeur d'Alene River Sewer District. April 2006. 482 

pgs. 

JUB 2008. City Osburn Infiltration and Inflow Analysis for South Fork of the Coeur 

d'Alene River Sewer District and the City of Osburn. November 2008. 114 pgs. 

12
 
Example EPA Approval Letter for Charles River and Alewife

Brook/Mystic River CSO Variances in Massachusetts
_".os,,,. UN ITED STATES ENVIRONMENTAL PROTECTION AGENCY • '0-

f;' ft r,. REGION I i 9 ON E CONGRESS STREET SUITE 1100

7, , BOSTON , MASSACHU SETTS 021 14-2023

~1- ...#'

"'.of, o,~c..

July 29,2008

Laurie Burt, Commissioner

Massachusetts Department of Environmental Protection

One Winter Street

Boston, MA 02108

Re: Charles River and Alewife BrookIMystic RiverCSO Variances

Dcar Commissioner Burt:

This letter responds to your letter ofJuly 8, 2008, whereby the Massachusetts Department of

Environmental Protection (MassDEP) submitted adopted combined sewer overflow (CSO)

variancesto the Environmental Protection Agency (EPA) for review. The variances are forCSO

discharges by the Massachusetts Water Resources Authority (MWRA), the City of Somerville,

and the City ofCambridge to Alewife BrooklUpper Mystic River and for CSO discharges by the

MWRA, the City of Cambridge, and Boston Water & Sewer Commission to the Lower Charles

River/Charles Basin. MassDEP issued the variances for terms ofthree years on August 30, 2007

with effective dates ofSeptember I, 2007 and October I, 2007 for the Alewife BrooklUpper

Mystic River and the Lower Charles River Basin, respectively. On July 15, 2008, MassDEP's

General Counsel certified the variances as having been duly adopted pursuant to Commonwealth

law. By today's letter, EPAapproves these variances.

EPA reviews variances under Section 303 ofClean Water Act (CWA), which addresses EPA

consideration of, and action on, state water quality standards. A variance typically is a shortterm revision to an otherwise applicable water quality standard. 63 FR 36742, 36759 (July 7,

1998). EPA generally will only approve a state's variance where there is a demonstration that

one ofthe factors that would justify removal ofa designated use orestablishment ofa

subcategory of use has been satisfied, specifically the factors published at 40 C.F.R. 131.10(g).

Id. In addition, a variance typically applies to individual dischargers and for a specific

pollutant(s) and does not otherwise modify the applicable water quality standards. [d. Under

Section 303(c)(I) ofthe CWA and 40 C.F.R. 131.20(a), a variance should be reviewed, at a

minimum, everythree years, and extensions are warranted only where the conditions for granting

the variance still apply. ld. Upon expiration ofthe variance, the underlying numerical criteria

have full,regulatory effect. Id.
Consistent with these considerations and based on review ofthe materi als submitted. pursuant to

Section 303(c)(3) ofthe Clean Water Act (CWA) and 40 C.F.R. 131.21, (hereby approve the

variances for the City of Somerville and the City of Cambridge to Alewife BrookJUpper Mystic

River and the variances for the City ofCambridge and Boston Water & Sewer Commission to

the Lower Charles River/Charles Basin, and the variances for the MWRA.

On March 14,2006, EPA approved variances MassDEP submitted to EPA on March 13,2006,

for the MWRA's CSO discharges to the Alewife BrooklUpper Mystic River and the Lower

Charles River Basin. EPA's action approved triennial reissuance ofthe variances through the

year 2020, subject to conditions specified in EPA's March 14, 2006 letter. While EPA's 2006

approval action was intended to approve MassDEP's anticipated rcissuance ofthe MWRA

variances every three years through 2020, EPA by today' s action has decided to take a separate

approval action on MassDEP's 2007 rcissuance ofthe variances for MWRA. EPA would

anticipate taking future actions on MassDEP 's reissuance of the variances for MWRA. In

addition to determining that the variances satisfy the relevant CWA and regulatory requirements.

EPA also has confirmed that MassDEP's reissuance of the varianc es for MWRA on August 30,

2007. was consistent with the conditions set forth in EPA's 2006 approval.

In accordance with the variances, CSO discharges from permitted outfalls are not required to

mcct effluent limits based on the Massachusetts Class B bacteria criteria during events when

flow in the collection system exceeds the collection system conveyance capacity as a result of

precipitation or snow melt. The bacteria variances require continued implementation ofCSO

long term control measures consistent with MWRA's 1997 Final CSO Facilities Plan. as

amended. for Alewife Brook /Upper Mystic River and the Lower Charles River Basin (the Long

Term Control Plan) and do not in any way delay the pace ofimplementation that would occur

without tbe variances. Rather, the projects that are to be implemented during the term ofthese

variances wilt improve water quality in associated waters.

Numerous analyses have been completed since the late 1980s evaluating alterna tives for

eliminating combined overflows from the collection system tributary to the Deer Island

Treatment Plant. Among these are the 1997 CSO Facilities Plan and Environmental Impact

Report; the 2001 Notice of Project Change for the Long Term Control Plan for Alewife Brook;

the July 1,2003 MWRA Final Variance Report for the Alewife Brook !Upper Mystic River; and

the January 2004 Cottage Farm CSO Facility Assessment Report. Based on these analyses,

MassDEP determined that proceeding at this time with controls necessary for full attainment of

the applicabl e Class B bacteria criteria and associated recreatio nal use would result in substantial

and widespread economic and social impact as those terms are used in 40 C.F.R. 131.10(g)(6).

EPA's independent analysis ofthese impacts confirms MassDEP's demonstration regarding the

regulatory criteria. EPA agrees that it is not feasible to fully attain the Class B bacteria criteria

and associated recreational use within the three year term of the variances. Therefore, EPA

approves these MassDEP CSO variances for the MWRA, the City of Somerville, the City of

Cambridge, and Boston Water & Sewer Commission, which revise the water quality criteria for

bacteria by rendering them inapplicable to the identified permittees for eso discharges into the

identified receiving wate rs during specified wet weather events.

2
We look forward to continued cooperation withMassachusettsin the development, review, and

approval ofwater quality standards pursuantto our responsibilities under the Clean Water Act.

If you have any questions, please contact Bill Beckwith (617-918-1 544) or Michael Wagner

(617-918-1735).

Sincerel~L--

tephen S. Perkins, Director

Officeof Ecosystem Protection

cc: Glenn Haas, MassDEP

Marcia Shennan, MassDEP

Vernon Lang, USF&WS

Mary Colligan, NOAAF

Peter Colossi, NOAAF

Danielle Fuligni, EPA SSB

3
Example EPA Approval Letter for Dissolved Oxygen  

Standards for Salt Creek in Texas
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 6 

1445 ROSS AVENUE, SUITE 1200 

DALLAS, TX 75202-2733 

'! 

JAN 2 7 2010 

i< . ., .,.,:.),,:,, Ms. L'Oreal Stepney, P.E., Deputy D~&s;< ''' 

Office of Water (MC-158) 

Texas Commission on Environmental Quality 

P.O. Box 13087 

Austin, TX 7871 1-3087 

Dear Ms. Stepney: 

The Environmental Protection Agency (EPA) has completed its review of the 

request for a temporary variance to the Texas Water Quality Standards (TX WQS) [§307, 

Texas Surface Water Quality Standards, adopted July 26,20001, which was submitted by 

letter dated January 20,2010, to EPA for review and approval, as required by 

40 CFR 813 1.20. The variance applies to the dissolved oxygen standards for Salt Creek 

(unclassified perennial stream in segment 1208 - Brazos River above Possum Kingdom 

Lake). 

The City of Graham's wastewater treatment facility (TPDES #10487-001) 

discharges treated domestic wastewater to an unclassified drainage ditch; thence to Salt 

Creek, thence to segment 1208 of the Brazos River Basin. The drainage ditch has no 

significant aquatic life use. Salt Creek has a presumed high aquatic life use with a 

corresponding dissolved oxygen criterion of 5 mg/l. The designated uses for segment 

1208 are high aquatic life use and contact recreation. A receiving water assessment has 

demonstrated that Salt Creek is affected by several impoundments and that the high 

aquatic life use may not be attainable. A use attainability analysis (UAA) is under 

development and site-specific standards may be considered for adoption in a future 

triennial revision. EPA will review any recommended revisions to the aquatic life uses 

and dissolved oxygen criteria upon submittal of the UAA. 

The proposed permit for the City of Graham facility includes a variance to 

standards for dissolved oxygen and interim requirements. During the variance period, the 

permittee will be required to meet water quality-based limits for carbonaceous 

biochemical oxygen demand, total suspended solids and ammonia nitrogen, as issued in 

previous permits. The facility will also conduct acute and chronic biomonitoring tests. If 

standards changes for Salt Creek are not adopted by the Texas Commission on 

Environmental Quality (TCEQ) and approved by EPA, the permittee will be required to 

submit an amendment application for authorization to dispose of treated effluent via 

irrigation. 

The Endangered Species Act 7 states that "all Federal agencies shall.. .utilize their 

authorities in furtherance of the purposes of this Act by carrying out programs for the 

conservation of endangered and threatened species" and "each Federal agency shall 

Internet Address (URL) . http:lhuww.epa.gov 

Re~ydedlReoyclable. Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 25% Postconsumer) 
insure that any action authorized, funded, or carried out by such agency is not likely to 

jeopardize the continued existence of any endangered or threatened species." EPA has 

determined that approval of a temporary variance to the dissolved oxygen criteria will 

have no effect on federally-listed threatened and endangered species or critical habitat. 

The State Attorney General has previously certified that the variance provision in 

the TX WQS was duly adopted pursuant to State law. Public participation was 

completed through the comment period on the proposed permit. The federal regulation 

for public participation (40 CFR $25.5(b)) states that public notification must occur 45 

days prior to the date of a hearing. It also states that the notification period may be 

reduced to 30 days when EPA determines that there are no complex or controversial 

matters to be addressed. EPA has decided that the 30-day notification period is sufficient 

for this variance request. No comments were received during the public comment period 

on the proposed permit and variance. If TCEQ adopts standards changes based on the 

UAA, an opportunity for public comment will be provided when the revised standards are 

proposed. 

EPA considers the issuance of the variance, in conjunction with the public review 

and comment process completed by TCEQ, to be consistent with and satisfy, the 

procedural requirements of 40 CFR $13 1.20. EPA is hereby approving the variance 

identified above, pursuant to $303(c) of the Clean Water Act and the implementing 

regulations at 40 CFR Part 13 1. 

If you or your staff have any questions in this matter, please contact me at 

(214) 665-7101 or call Diane Evans of my staff at (214) 665-6677. 

Sincerely, 

hc- Mime1 I. Flores 

elrictor 

Water Quality Protection Division 

cc: Lori Hamilton, TCEQ - Standards Group (MC-234) 

Kent Trede, TCEQ - Wastewater Permits Section (MC-148) 
Example EPA Review and Approval Letter for Arsenic  

Variance for Village of Cleveland’s Wastewater Treatment

Facility in Wisconsin
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 5

77 WEST JACKSON BOULEVARD

CHICAGO , IL 60604-3590

APR 072010

REPLY TO THE ATIENTION OF' WQ-161

Todd L. Ambs, Administrator

Division of Water

Wisconsin Department of Natural Resources

POBox 7921

Madison, Wisconsin 53707-7921

Dear Mr. Ambs:

Thank you for your letter of February 2,2010, submitting Wisconsin's proposed variance

from the water quality standards for arsenic for the Village ofCleveland's Wastewater Treatment

Facility (WTF), WPDES Permit Number WI-0030848-08, to u.s. Environmental Protection

Agency for review under section 303(c) ofthe Clean Water Act (CWA). The proposed action

would grant the Village of Cleveland's WTF a variance from Wisconsin's water quality criteria

for arsenic and establish a variance-based effluent limit for the Village of Cleveland's WTF

discharge to Lake Michigan of 4.5 ug!L, expressed as a daily maximum.

Consistent with section 303(c) ofthe CWA and federal regulations at 40 CFR 131.21,

EPA is required to review and approve state water quality standards. EPA has reviewed the

information submitted in support of the proposed variance and hereby approves the proposed

variance pursuant to section 303(c) ofthe CWA and federal regulations at 40 CFR 131.21.

As required under section 7 of the Endangered Species Act (ESA) and federal regulations

at 50 CFR Part 402, EPA is required to consult with U.S. Fish and Wildlife Service (FWS) on

any action that may affect federally-listed threatened and endangered species. EPA is not

required to consult with FWS on approval ofthis variance, as this arsenic variance is for a human

health criterion. Standards related to human health protection are not subject to ESA consultation

since EPA lacks control or discretion under the CWA to modify its action based on other

endpoints, such as impacts to federally-listed threatened or endangered species.

Recycled/Recyclable. Printed with Vegetable Oil Based Inks on 100% Recycled Paper (50% Postconsumer)
If you or your staff has any questions regarding this approval, please contact Francine

Norling of my staff at (312) 886-0271.

Sincerely,

\~C-brKI Tinka G. Hyde

Director, Water Division

cc: Robert Masnado, WDNR

Jim Schmidt, WDNR

Richard Sachs, WDNR

Louise Clemency, USFWS
EPA's Review of the Wisconsin Department of Natural Resources (WDNR) Request for

Approval of a Variance from Arsenic Water Quality Standards (ViUage of Cleveland

Wastewater Treatment Facility, WPDES Permit No. WI-0030848-oS) Under Section 303(c)

of the Clean Water Act (CWA) WQSTS # WI2010-345

Date: APR 07.2010.

I. Summary

A. Date received by EPA: February 2, 2010

B. Submittal History:

On February 2, 2010, WDNR submitted a request to EPA for approval of a water quality

standard (WQS) variance for discharge by the Village of Cleveland's Wastewater Treatment : .

Facility (WTF), WPDES Permit No. WI-0030848-08 in southeast Manitowoc County.

C. Documents included in the submittal:

• Transmittal letter from WDNR to EPA, dated February 2,2010.

• Certification Statement for Approval of a Variance to Water Quality Standards, Village

of Cleveland's WTF, WPDES Permit No. WI-0030848-08, dated January 8,2010.

• Recommendation for Tentative Decision on Variance Request, dated October 20, 2009.

D. Other supporting documents:

• Public Notice of Intent to Reissue the Permit, dated November 30, 2009.

• Notice of Final Determination to Reissue a WPDES Permit.

• Draft WPDES Permit.

• Permit Fact Sheet dated November 17, 2009.

• Water Quality Based Effluent Limitation (WQBEL) Evaluation Document, dated

November 30, 2006.

• Revised WQBEL Recommendations for Cleveland's WTF, dated December 8,2008.

• Arsenic variance application form for municipal permittees, dated September 2,2009.

• Median Household Incomes (MHIs) of Wisconsin Municipalities, Adjusted to 2006,

dated August 2008.

• Village ofCleveland Water and Sewer Utility Rates, dated March 26, 2010.

• Economic Analysis Spreadsheet: Village ofCleveland's annual WQS compliance costs

as a percent of MHI, prepared by EPA, March 29, 2010.

E. Description of Action:

WDNR proposes to grant the Village ofCleveland's WTF a variance from Wisconsin's water

quality criteria for arsenic applicable to Lake Michigan in southeast Manitowoc County of up to

4.5 ug/L as a daily maximum discharge concentration. In the absence ofthis variance, the most

stringent applicable water quality criterion for arsenic would be 0.2 ug/L for protection of human

health (applicable at the intake location for any Public Water Supply withdrawal). Under the

conditions ofthe proposed variance, the limit in the permit is set equal to 4.5 ug/L as a daily

maximum. Pursuant to NR 106 ofthe Wisconsin Administrative Code, the permit limit equals
the upper 99th percentile ofthe representative daily discharge concentration of arsenic. In

addition to the limit, the permittee must also conduct quarterly effluent monitoring for arsenic.

WDNR has waived the requirement to prepare a Pollutant Minimization Plan (PMP), including

further investigation of alternate water supplies, as allowed under S.283.15(5)2.a, Stats. WDNR

concluded that neither source reduction nor obtaining an alternate water supply is reasonably

within the economic capability ofthe permittee.

F. Basis of Action:

The available data show that the arsenic concentration in the effluent from the Village of

Cleveland's WTF is greater than the level needed to comply with the most stringent applicable

water quality criterion of 0.2 ugIL.

Based on this information, WDNR concluded that:

• The source ofthe elevated arsenic level in the Outfall 001 discharge (P99 value of 4.5

ugIL) is naturally occurring arsenic in the Village's water supply. Data on Cleveland's

municipal water suppy show that between 2002 and 2009, arsenic in the municipal wells

ranged from 5.1 to 5.8 ugIL in one well, and 2.4 to 3.4 ugIL in a second well.

• The Village of Cleveland's WTF is properly operated and maintained.

• Additional end-of-pipe treatment would be necessary to comply with a 2.2 ugIL

WQBEL.

• The expense of building and operating an alternate water supply to comply with a 2.2

ugIL WQBEL would result in substantial adverse economic impact to the Village of

Cleveland, allowing the facility to seek a variance consistent with s. 283.15, Wis. Stats.

and federal regulations at 40 CPR 13l.lO(g). The cost of connecting to an existing water

system that draws water from Lake Michigan (Manitowoc or Sheboygan) is estimated to

be between $10 million to $20 million. The cost of installing the village's own intake is

estimated to be close to $20 million. The Village ofCleveland is a small municipality

(population 1,374 from the 2000 census).

n. Areas AtTeded and Environmental Impacts

A. Area AtTeded:

The area affected by this variance is Lake Michigan in southeast Manitowoc County, Wisconsin,

which is designated as a coldwater fishery and public water supply. The discharge from the WTF

is from Outfall 001, located approximately 500 feet off the shore, in the "Sevenmile and Silver

Creeks Watershed." The average treated discharge rate at Outfall 001 is approximately 0.239

million gallons per day (MGD.)

B. Environmental Impacts:

1. Aquatic Life

The variance will have no effect on exposed aquatic life. The proposed effluent limitation of 4.5

ugIL is significantly less than both the acute and chronic criteria to protect aquatic life.

Wisconsin's aquatic life criteria for arsenic are: Acute Arsenic Criterion = 339.8 ugIL and

Chronic Arsenic Criterion = 148 ugIL. Because the discharge concentration of arsenic in the

2
effluent will be limited by the variance to 4.5 ugIL, both the acute and chronic aquatic life

criteria will be met at the point where the effluent enters Lake Michigan.

2. Human Health

As a condition ofthe proposed variance, the discharge concentration is limited in the permit to

4.5 ugIL as a daily maximum effluent concentration. This concentration is less than EPA's and

Wisconsin's current Maximum Contaminant Level of 10 JlgIL for mercury in drinking water.

EPA established this limit after determining that treatment of drinking water systems below that

level was not cost-effective. EPA made this determination under the authority of Section

1412(b)(6) ofthe Safe Drinking Water Act (66 FR 6976, Ian. 22,2001). Therefore, the MCL of

10 ugll maximizes public health risk reduction at a cost justified by the benefits.

In addition, there are no municipal surface water supply intakes near the Village ofCleveland's

discharge to Lake Michigan. It can be assumed that the concentration of arsenic in Lake

Michigan water will decrease within a short distance from the discharge point, due to the large

volume of water in Lake Michigan. Therefore, it is unlikely that human health will be negatively

affected by the Village of Cleveland's arsenic discharge.

m. CWA Sections 10l<a)(2)/303(c)(2)/1l8(c)(2l140 CFR 131 and 132 Review

A. EPA's authority under section 303(c)(2) of the CWA

WQS requirements ofCWA Sections 101(a)(2) and 303(c)(2) are implemented through federal

regulations contained in 40 CFR 131; WQS requirements of CWA Section 118, specific to

waters ofthe Great Lakes System, are implemented through federal regulations contained in 40

CFR 132. Federal regulations at 40 CFR 131.21 require EPA to review and approve or

disapprove state-adopted WQS. In making this determination, EPA must consider the following

requirements of 40 CFR 131.5:

• whether state-adopted uses are consistent with CWA requirements;

• whether the state has adopted criteria protective of the designated uses;

• whether the state has followed legal procedures for revising its standards;

• whether state standards are based on appropriate technical and scientific data and

analyses; and

• whether the state's submission includes certain basic elements as specified in 40 CFR

131.6.

Section 101(a)(2) ofthe CWA specifies that designated uses "provide for the protection and

propagation offish, shellfish, and wildlife and provide for recreation in and on the water."

Section 303(c)(2) ofthe CWA requires that standards shall protect the public health and shall

take into consideration their use and value for public water supplies, propagation offish and

wildlife, recreational, agricultural, industrial, and navigational purposes.

EPA is required to review and approve new and revised WQS submitted by States and Tribes.

Possible EPA actions include:

3
• Approval (where EPA has concluded that approval of certain revisions will have no

effect on listed species, or is otherwise not subject to ESA consultation),

• Approval subject to ESA consultation (where EPA has concluded that certain revisions

may effect listed species (including beneficial effects»,

• Disapproval (where EPA has concluded that certain revisions do not meet the

requirements of the CWA or federal regulations and guidance), and

• No EPA action (where EPA has concluded that certain revisions are not revisions to the

State's or Tribe's WQS and, therefore, do not need to be reviewed under Section 303(c)

oftheCWA.

Consistent with federal regulations at 40 CFR 131.21, new or revised WQS do not become

effective for CWA purposes until they are approved by EPA.

B. Public Participation, Comments, and Issues Raised on WDNR's draft variance

determination

WDNR issued a public notice for the permit and variance request on November 30, 2009. The

only comments WDNR received were from the facility. In response to those comments, WDNR

revised the permit language to reduce the frequency ofthe proposed ammonia and pH

monitoring requirements. WDNR did not receive any other comments from the public.

EPA did not review the draft version ofthis variance determination.

C. EPA's Review ofWDNR's Final Mercury Variance Determination

1. Review of Submittal for Completeness

Rel!U1atory Requirement: Villaae of Cleveland's WTF:

Use designations consistent with the The designated uses for Lake Michigan are coldwater fishery and

provisions ofsection 101(a)(2) and public water supply.

303(c)(2) of the Act (40 CFR 131.6(a»

Methods used and analyses conducted to Documents submitted by WDNR in support ofthis variance

support WQS revisions (40 CFR include all items listed above under submittal history.

131.6(b»

Water quality criteria sufficient to protect Under the conditions of the variance, the applicable water quality

the designated use "cold water fish criterion is the arsenic effluent concentration currently achievable

community and public water supply" (40 (expressed as a l-day P99 concentration,) 4.5 ugIL. TheWisconsin

CFR 131.6(c» criteria to protect aquatic life are 339.8 ug/L acute and 148 ug/L

r chronic. The WQBEL to protect human health is 2.2 ug/L, based

on Wisconsin's human health criterion of 0.2 ug/L. There are no

municipal water supply intakes near the Village of Cleveland's

discharge to Lake Michigan.

An antidegradation policy consistent Not applicable. This variance does not affect Wisconsin's existing

with §131.12 (40 CFR 131.6(d» antidegradation policy.

4
Re2UIatorv Reouirement: VilIae:e ofCleveland's WTF:

Certification by the State Attorney WDNR's General Counsel certified the variance in a letter from

General or other appropriate legal Michael Lutz to Tinka Hyde dated January 8, 2010.

authority within the State that the WQS

were duly adopted pursuant to State law.

(40 CFR 131.6(e»

General information which will aid the The information submitted by WDNR and the Village of

Agency in determining the adequacy of Cleveland is described above. The Village ofCleveland operates a

the scientific basis of the standards which WTF with a average discharge rate of approximately 0.239 MGD.

do not include uses specified in section

101(a)(2) of the Act as well as

information on general policies

applicable to State standards which their

application and implementation. (40

CFR 131.6(f)

Variance not applicable to The Village ofCleveland WTF is an existing facility.

new/recommencing discharges (40 CFR

132. Appendix F. Procedure 2.A.l)

Variance does not jeopardize federally- The variance for arsenic is for a human health criterion. Standards

listed threatened/endangered species (40 related to human health protection are not subject to Endangered

CFR 132, Appendix F, Procedure Species Act consultation since EPA lacks control or discretion

2.A.2) under the CWA to modify its action based on other endpoints,

such as impacts to federally-listed threatened or endangered

species.

WQS cannot be attained by The facility is currently meeting its secondary treatment

implementing treatment requirements of requirements. Regarding non-point source controls, there are no

sections 301 and 306 of the CWA ( 40 applicable cost-effective and reasonable best management

CFR 132, Appendix F, Procedure practices, as the source of arsenic in the Village of Cleveland's

2.A.3) wastewater treatment system is not agricultural runoff. (Source is

naturally-occurring pyrite, based on geologic logs from WDNR.)

Duration of the variance is five years or As proposed the variance duration is five years, from April 1,

the life of the permit, whichever is less 2010 through the end ofthe permit term, March 31,2015.

(40 CFR 132, Appendix F, Procedure

2.8)

Variance is based on one ofthe six Variance is based on condition '1", substantial and widespread

conditions (40 CFR, Appendix F, social and economic impacts that would occur if the facility were

Procedure 2.C) required to comply with WQS.

Variance conforms with State antidegra- Granting this variance does not remove an existing use.

dation policy (40 CFR 132, Appendix F,

Procedure 2.C.2.a)

Any increased risk to human health or Given the substantial estimated costs of obtaining alternative

the environment is consistent with the source water supplies, and the lack of treatment technologies

protection of public health, safety, and capable of reducing arsenic effluent concentrations to achieve a

welfare (40 CFR 132, Appendix F, 2.2 ug/L water quality-based effluent limitation, granting a

Procedure 2.C.2.b) variance in this situation is consistent with the protection of the

public health, safety and welfare because ofthe substantial public

health and safety benefits of providing wastewater treatment, and

the limited impact of the elevated effluent concentration.

5
ReeulatorY Requirement: Villaee ofCleveland's WTF:

Submittal of a varianceapplication by The Villageof Cleveland's variance application was submittedto

the permittee demonstrating that WDNR on September2, 2009.

attaining WQS is not feasible and

showingcompliance with the

requirementsof sectionC.2. of Procedure

2. (40 CFR 132, Appendix F,

Procedure 2-D)

Submittal to EPA, includingpermittee's WDNR providedall the required information.

application,publiccomments and

hearing records(if held), final decisions,

.NPDES permit with conditions,

consistent with 2.F (40 CFR 132,

Appendix F. Procedure 2.D

2. EPA action on the rmal variance determination submitted by WDNR:

The information provided by WDNR meets the substantive requirements for a WQS submittal of

40 CFR 131.6. Based on this information, EPA has made the following determinations for the

Village ofCleveland's wastewater treatment facility:

• The arsenic level in the effluent (l-day P99 value of 4.5 ugIL, as determined by WDNR)

exceeds the 2.2 ugIL WQBEL calculated by WDNR to protect public water supply use in

Lake Michigan (based on a default lOx dilution, using the CWA water quality criterion of

0.2 ugIL human cancer criterion for public water supply receiving waters). Considering

the distance from the discharge and the nearest PWS intake (which is where the WQS

applies), this default dilution factor is an extreme under estimate.

• The source of arsenic is the groundwater public water supply for the Village of

Cleveland, and is naturally-occurring (contaminant of pyrite, based on WDNR geologic

logs).

• The arsenic concentration in the public water supply (5.4 ug/L in Well #1 and 3.1 ugIL in

Well #2) is in compliance with EPA's MCL of 10 ugIL. The wastewater treatment

plant's permitted discharge to Lake Michigan of 4.5 ugIL is also in compliance with

EPA's MCL of 10 ugIL.

• The most reasonable option for compliance with WQSI is to construct a public water

supply from Lake Michigan.

• Building a Lake Michigan water intake and treatment plant could cost up to $20 million

dollars, based on WDNR estimates.

• Current wastewater treatment costslhousehold are approximately 1% ofthe MHI for the

Village of Cleveland.

• The added cost of building and operating a Lake Michigan water intake would increase

the costlhousehold of compliance with WQS to approximately 4% ofthe MHI (EPA

Economic Analysis Spreadsheet).

• EPA considers costs that exceed 2% ofthe MHI to be likely to cause widespread adverse

social and economic impacts in the community.

• Therefore, WDNR's fmal arsenic variance determination is consistent with the CWA, 40

CFR 131.IO(g)(6), and federal regulations and guidance.

6
Based on the information listed above, EPA approves WDNR's final arsenic variance

determination for the Village of Cleveland's WTF.

IV. Documents Considered by EPA

Arsenic in Drinking Water Rule (66 FR 6976, Jan.22, 2(01)

v. Endangered Species Act Requirements

Consistent with section 7 ofthe ESA and federal regulations at 50 CFR Part 402, EPA is

required to consult with U.S. Fish and Wildlife Service (FWS) on any action taken by EPA that

may affect federally-listed threatened and endangered species or their designated critical habitat.

In the case ofthis action, EPA is not required to consult with FWS. This arsenic variance is for a

human health criterion. Standards related to human health protection are not subject to ESA

consultation since EPA lacks control or discretion under the CWA to modify its action based on

other endpoints, such as impacts to federally-listed threatened or endangered species. In

addition, the approved variance concentration is not expected to have any adverse impacts on

aquatic life (see aquatic life environmental impact discussion above).

7
Appendix F

Examples: Public Notices
Example Public Notice of Intent to Reissue a  

Variance in Wisconsin
STATE OF WISCONSIN DEPARTMENT OF NATURAL RESOURCES 

PUBLIC NOTICE OF INTENT TO REISSUE WISCONSIN POLLUTANT DISCHARGE ELIMINATION 

SYSTEM (WPDES) PERMIT No. WI-0001341-08-0 

Permittee and Facility Where Discharge Occurs: Little Rapids Corporation, Shawano Specialty Papers, W7575 

Poplar Road, Shawano, WI 54166 

Receiving Water and Location: Shawano Specialty Papers discharges to the Wolf River, Middle Wolf River 

Watershed (WR 14) in the Wolf River Basin.

Brief Facility Description: Shawano Specialty Papers produces approximately 180 tons per day of specialty papers 

from virgin market pulps and pre- and post-consumer pulp substitutes. This activity results in the average discharge 

of 66,000 gallons per day of noncontact cooling water and 2.4 million gallons per day of treated process wastewater. 

Shawano Specialty Papers also land applies an average of 2,000 dry tons of wastewater treatment system sludge per 

year on application sites located in Shawano County. 

Summary of Proposed Changes: All proposed changes are listed in the fact sheet, which is available by contacting 

the permit drafter or basin engineer. Significant changes proposed include the addition of an effluent limit for 

mercury and increased dioxin monitoring requirements for wastewater treatment system sludge. 

Permit Drafter: Michael Hammers, DNR, 101 S Webster St., PO Box 7921, Madison, WI 53707-7921, (608) 267-

7640, mike.hammers@wisconsin.gov

Basin Engineer: Bruce Oman, DNR, 101 N Ogden Road, Peshtigo, WI 54157-1708, (715) 582-5012, 

bruce.oman@wisconsin.gov 

The Department has tentatively decided that the above specified WPDES permit should be reissued. Limitations 

and conditions which the Department believes adequately protect the receiving water are included in the proposed 

permit. Land application of waste shall be done in accordance with permit conditions and applicable codes. All 

land application sites shall be approved prior to their use. To receive a list of approved sites, or to be notified of 

potential approvals, contact the basin engineer. 

The Department has determined that a water quality-based effluent limitation (WQBEL) of 1.3 ng/L expressed as a 

monthly average is needed for mercury to protect wildlife and human health in the above-named receiving water. 

The permittee has submitted an application for an alternative mercury effluent limitation (AMEL). The application 

included a pollutant minimization program (PMP) plan for mercury as required under s. NR 106.145(8), Wis. Adm. 

Code. The Department concludes that the permittee has qualified for a variance based on the information submitted, 

information on file and the findings provided in s. NR 106.145(1), Wis. Adm. Code. The Department and the 

permittee have mutually agreed upon an AMEL of 3.7 ng/L expressed as a daily maximum, continued effluent 

monitoring, and permit language requiring implementation of the PMP. The Department proposes to grant the 

AMEL, which represents a variance to the water quality standard used to derive the WQBEL, as provided for under 

s. NR 106.145(6), Wis. Adm. Code. The designated use of the receiving water will not change as a result of the 

variance. 

Persons wishing to comment on or object to the proposed permit action, or to request a public hearing, may write to 

the Department of Natural Resources at the permit drafter’s address. All comments or suggestions received no later 

than 30 days after the publication date of this public notice will be considered along with other information on file in 

making a final decision regarding the permit. Anyone providing comments in response to this public notice will 

receive a notification of the Department’s final decision when the permit is issued. The U.S. Environmental 

Protection Agency is allowed up to 90 days to submit comments or objections regarding this permit determination. 

If no comments are received on the proposed permit from anyone, including U.S. EPA, the permit will be issued as 

proposed. 

The Department may schedule a public informational hearing if requested by any person and shall schedule a public 

informational hearing if a petition requesting a hearing is received from five or more persons or if response to this 

notice indicates significant public interest pursuant to s. 283.49, Stats. Requests for a public informational hearing 

shall state the following: the name and address of the person(s) requesting the hearing; the interest in the proposed 

permit of the person(s) requesting the hearing; the reasons for the request; and the issues proposed to be considered 

at the hearing. 

Information on file for this permit action, including the draft permit and fact sheet, may be inspected and copied at 

the permit drafter’s or basin engineer’s office, Monday through Friday (except holidays), between 9:00 a.m. and 

3:30 p.m. Please call the permit drafter or basin engineer for directions to their office location, if necessary. 

Information on this permit action may also be obtained by calling the permit drafter at (608) 267-7640 or by writing 
to the Department. Reasonable costs (usually 20 cents per page) will be charged for copies of information in the file 

other than the public notice and fact sheet. Permit information is also available at: 

http://dnr.wi.gov/org/water/wm/ww/drafts/pubnot.htm. Pursuant to the Americans with Disabilities Act, reasonable 

accommodation, including the provision of informational material in an alternative format, will be made to qualified 

individuals upon request. 

PUBLISHING NEWSPAPER: Shawano Leader, PO Box 416, Shawano, WI 54166-0416 

Date Notice Issued: February 4, 2009 
Example Public Notice of the Final Determination to  

Reissue a Variance in Wisconsin
STATE OF WISCONSIN DEPARTMENT OF NATURAL RESOURCES 

NOTICE OF FINAL DETERMINATION TO REISSUE WISCONSIN POLLUTANT DISCHARGE 

ELIMINATION SYSTEM (WPDES) PERMIT No. WI-0001341-08-0 

Permittee and Facility Where Discharge Occurs: Little Rapids Corporation, Shawano Specialty Papers, 

W7575 Poplar Road, Shawano, WI 54166 

Receiving Water: Shawano Specialty Papers discharges to the Wolf River, Middle Wolf River Watershed 

(WR 14) in the Wolf River Basin. 

Brief Facility Description: Shawano Specialty Papers produces approximately 180 tons per day of specialty 

papers from virgin market pulps and pre- and post-consumer pulp substitutes. This activity results in the 

average discharge of 66,000 gallons per day of noncontact cooling water and 2.4 million gallons per day of 

treated process wastewater. Shawano Specialty Papers also land applies an average of 2,000 dry tons of 

wastewater treatment system sludge per year on application sites located in Shawano County. 

Permit Drafter’s Name, Address, Phone and e-Mail: Michael Hammers, Wisconsin DNR, 101 S. Webster 

St., PO Box 7921, Madison, WI 53707-7921, (608) 267-7640, mike.hammers@wisconsin.gov 

Basin Engineer’s Name, Address, Phone and e-Mail: Bruce Oman, Wisconsin DNR, 101 N. Ogden Road, 

Peshtigo, WI 54157, (715) 582-5012, bruce.oman@wisconsin.gov 

Date Permit Signed/Issued: 

Date of Effectiveness: May 1, 2009 

Date of Expiration: March 31, 2014 

Following the public notice period the Department has made a final determination to reissue the WPDES 

permit for the above-named permittee for this existing discharge. The permit application, information from 

the WPDES permit file, comments received on the proposed permit, and applicable Wis. Adm. Codes were 

used as a basis for this final determination. 

The Department has the authority to issue, modify, suspend, or revoke WPDES permits and to establish 

effluent limitations and permit conditions under ch. 283, Stats. 

Following is a summary of significant comments and changes that have been made in the terms and 

conditions set forth in the draft permit as public noticed: 

Permit Changes

The effective date of the public noticed permit was changed from April 1, 2009 to May 1, 2009 in recognition 

of the time required to process the variance from water quality standards for mercury. Such variances must be 

approved by the U.S. Environmental Protection Agency (EPA) following the close of the public comment 

period. 

Comments Received from EPA or Other Government Agencies

Neither EPA nor other government agencies submitted comments on the public noticed permit. 

Comments Received from the Applicant, Individuals or Groups

The permittee requests permit language stating that a mercury limit exceedance would not be considered a 

violation when the permittee can show the exceedance was related to a high level of mercury in the mill’s 

intake water. 

The Department did not change the public noticed permit in response to the permittee’s requested. Such an 

approach for evaluating exceedances of water quality-based effluent limits is not authorized by Wisconsin’s 

water quality standards. 

As provided by s. 283.63, Stats., and ch. 203, Wis. Adm. Code, persons desiring further adjudicative review 

of this final determination may request a public adjudicatory hearing. A request shall be made by filing a 

verified petition for review with the Secretary of the Department of Natural Resources within 60 days of the 
date the permit was signed (see permit signature date above). Further information regarding the conduct and 

nature of public adjudicatory hearings may be obtained by contacting the Department of Natural Resources, 

Bureau of Watershed Management, WPDES Permits, Box 7921, Madison, Wisconsin 53707 and by review of 

ch. NR 203, Wis. Adm. Code, s. 283.63 Stats., and applicable code law. 

Information on file for this permit action may be inspected and copied at either the above named permit 

drafter’s address or the above named basin engineer’s address, Monday through Friday (except holidays), 

between 9:00 a.m. and 3:30 p.m. Information on this permit action may also be obtained by contacting the 

permit drafter at (608) 267-7640 or mike.hammers@wisconsin.gov or by writing to the Department. 

Reasonable costs (usually 20 cents per page) will be charged for copies of information in the file other than 

the public notice and fact sheet. Pursuant to the Americans with Disabilities Act, reasonable accommodation, 

including the provision of informational material in an alternative format, will be made to qualified 

individuals upon request. 
Appendix G

Examples: EPA Region and State Guidance Documents
EPA Region 7

Variances to Water Quality Standards

Procedural Guidelines

(The guidance reflects Regional suggestions and is not intended to reflect national policy)
Environmental Protection Agency (EPA), Region 7 

Variances to Water Quality Standards 

Procedural Guidelines 

Background on EPA’s Variance Provision

 A variance is a temporary modification to the designated use and associated water quality 

criteria that would otherwise apply. It is based on a use attainability demonstration and targets 

achievement of the highest attainable use and associated criteria during the variance period. 

Modifying the use through a variance process allows the state (in this document, state refers to 

states and authorized Tribes) to limit the applicability of a specific criterion and to identify an 

alternative designated use and associated criteria to be met during the term of the variance. The 

variance may be written to address a specified geographical coverage, a specified pollutant or 

pollutants, and/or a specified pollutant source. All other applicable water quality standards 

(WQS) not specifically modified by the variance remain applicable (e.g., any other criteria 

adopted to protect the designated use). A typical variance modifies the use as it pertains to 

discharge of a single pollutant from a single source for a period of three to five years – although 

it may be of longer duration. 

 

EPA explained its position on approving variances in its Water Quality Standards 

Handbook (Second Edition, 1994) and reiterated this position in the 1998 Advanced Notice of 

Proposed Rulemaking (63 FR No. 129, July 7, 1998). The legal basis for granting a variance is 

that the state has fulfilled the same regulatory requirement for removing a designated use (the 

complete legal history is found in Section 5.3 of EPA’s Water Quality Standards Handbook, 

1994). As such, a variance is a revised WQS that must be supported on the basis of one of the 

factors specified in 40 CFR § 131.10(g), and requires EPA review and approval before it can be 

effective for Clean Water Act (CWA) purposes (40 CFR § 131.21(c)). Federal regulations (40 

CFR §§ 131.6(a) and (c), 131.10 and 131.11) require states to specify uses and criteria to support 

those uses in a water body at all times. As such, the variance must identify the designated use 

and associated criteria to be in place for at least the term of the variance to ensure the highest 

level of water quality is attained. In addition, every 3 years, the state must consider whether there 

is any new information that may indicate that a 101(a) use is attainable (assuming the variance 

does not retain a 101(a) use), and if so, revise the WQS accordingly (40 CFR § 131.20(a)). EPA 

expects states to address each of these items in their submittal, discussed in greater detail below. 

 

For further background information please refer to EPA’s Advanced Notice of Proposed 

Rulemaking (63 FR No. 129, July 7, 1998); EPA’s Water Quality Standards Handbook Section 

5–3 (1994); Memorandum from EPA’s Office of Water, “Variances in Water Quality Standards,” 

March 15, 1985; 48 FR 51400, 51403 (Nov. 8, 1983); and Decision of the General Counsel No. 

58, In Re Bethlehem Steel Corporation, March 29, 1977. 

 
2

Submittal

Variances are often implemented through a two-step process: first, a general authorizing 

provision is adopted into state WQS which describes the purpose for and under what 

circumstances the state may grant a variance; and second, individual applications of the variances 

are adopted as WQS pursuant to the general authorizing provision. In this way, adoption and 

approval of individual variances may be streamlined because the general authorizing provision is 

already in place. EPA’s regulations at 131.6(e) identify a minimum submission requirement that 

certification by the state Attorney General (AG), or other appropriate legal authority within the 

state, that the WQS were duly adopted pursuant to state law. In the case of variances, if a state 

first adopts a general authorizing provision into their WQS (all requirements for submission to 

EPA are met, including AG certification) and EPA approves that provision, then the state could 

submit individual variances without the AG certification because EPA has approved the 

authorizing provision that was certified by the AG. To be effective for CWA purposes, EPA 

must review and approve both the general authorizing provision and individual applications of 

variances as new or revised state WQS. 

EPA has approved the use of variances when the state demonstrates that the following 

items are fulfilled: 1) the individual variance is included in WQS, 2) the variance is subject to 

the same public review as other changes in WQS, 3) that meeting the standard is unattainable 

based on one or more of the factors listed in 40 CFR § 131.10(g) for removing a designated use, 

4) the variance secures the highest level of water quality attainable short of achieving the 

standard, and 5) that advanced treatment and alternative effluent control strategies have been 

considered. 

1) Variances to Water Quality Standards and Triennial Review

By using variances to WQS, states can write National Pollutant Discharge Elimination 

System (NPDES) permits such that reasonable progress is made toward attaining the standards 

without violating Section 402(a)(1) of the Act, which states that NPDES permits must meet the 

applicable WQS. Variances are granted for a specific period of time (typically 3 years), which 

should be specified in the variance submittal. To be effective for CWA purposes, such as 

NPDES permitting, variances must be reviewed and approved by EPA. 

Because variances are changes to WQS, states must review the variance on a triennial 

basis to consider any new information and to determine whether or not the variance is still 

justified, as is required under Section 303(c) of the CWA for WQS. If the triennial review of the 

variance indicates that more stringent criteria are attainable, then the state should revise the 

permit variance and WQS accordingly. If, however, the discharger makes a new demonstration 

that WQS are unattainable and the state believes that additional time is warranted, then the state 

should make the necessary revisions to the permit variance and WQS, and resubmit it to EPA for 

review. EPA understands that in some circumstances it may be warranted to grant a variance that 

extends beyond 3 years based on the initial demonstration made by the discharger. In these 

cases, the state should justify the proposed timeframe and include interim milestones in the 

permit to ensure that reasonable progress is made toward meeting the standards (EPA Water 

Quality Standards Handbook, Second Edition, 1994). 
3

2) Public Participation

Section 303(c)1 of the CWA and the applicable federal regulations at 40 CFR § 131.20 

describe the states’ requirement to hold a public hearing for the purpose of reviewing WQS, and 

notes that the information should be made available to the public prior to the hearing. It is EPA’s 

belief that variances, to be approved as changes to WQS, require the same opportunity for public 

review and comment. 

3) 40 CFR § 131.10(g) Demonstration

 As described in Section 5.3 of the EPA Water Quality Standards Handbook (Second 

Edition, 1994), variances to WQS involve the same substantive and procedural requirements as 

removing a designated use, but specifically identify the applicable discharger(s), pollutant(s), and 

time limit. The substantive and procedural requirements include a use attainability 

demonstration identifying one of the factors listed in federal regulations (40 CFR § 131.10(g)) 

for removing a designated use and target achievement of the highest attainable use and associated 

criteria during the variance period. The state must demonstrate that meeting the current WQS is 

unattainable based on one or more of these factors and submit the variance to EPA as a change to 

WQS. 

4) Highest Level of Water Quality Attainable

Federal regulations require states to designate uses and adopt water quality criteria to 

protect those uses (40 CFR §§ 131.6(a) and (c), 131.10 and 131.11). As such, the variance must 

identify the designated use and associated criteria to be in place for at least the term of the 

variance to ensure that the highest attainable level of water quality is maintained. The state 

should demonstrate that the variance is protective of the aquatic life community that is expected 

in the receiving stream, paying particular attention to any threatened or endangered species and 

their critical habitat that may be affected by a change in the WQS. 

5) Consideration of Advanced Treatment and Alternatives

 The state’s justification for the variance should include documentation that treatment 

more advanced than that required by Sections 303(c)(2)(A) and (B) of the CWA has been 

carefully considered, and that alternative effluent control strategies have been evaluated. 

 Once the variance is approved by the state staff, the state should send the following 

information to EPA-Region 7 (Water Quality Standards Coordinator) after the public comment 

period has ended*: 

a. Submittal Letter – Letter from state with an official request for EPA to review the 

variance as a change to WQS. 
4

b. Regulatory Documentation

i. Demonstration that meeting the standard is unattainable based on one or 

more of the factors listed in 40 CFR § 131.10(g) for removing a designated 

use. 

ii. Demonstration that the variance secures the highest level of water quality 

attainable short of achieving the standard, which includes specifying the 

designated use to be supported by the alternate criteria applicable during 

the time of the variance and an explanation as to why the alternate criteria 

are protective of the designated use. 

iii. Demonstration that advanced treatment and alternative effluent control 

strategies have been considered. 

iv. An explanation as to why the specified time period is reasonable and 

necessary. 

v. If the variance request is for longer than 3 years, interim milestones should 

be included in the permit. 

vi. A statement of state’s intent to review the variance on a triennial basis, as 

is required for WQS under Clean Water Act section 303(c)(1). 

c. Permit Information

i. A copy of the variance application from the permittee 

ii. A copy of the cover page of the permit 

iii. A copy of the effluent limitations 

iv. A copy of the variance language included as conditions in the permit 

d. Public Participations Information

i. Copy of the notice of draft permit published by the state 

ii. Copies of relevant state, commission, and/or rulemaking documents 

approving the variance 

iii. Copy of the Affidavit of publication of notice 

iv. Copy of all public comments received on the proposed variance and draft 

permit, and responses to those comments 

v. A brief explanation as to how the state fulfilled its state and the federal 

public participation requirements for WQS 

e. Technical Justification

i. Purpose/intent of the variance 

ii. Rationale for including interim uses and criteria (see considerations 

below) 

iii. Monitoring provisions and assessment protocols to track progress 

Considerations based on purpose/intent: 

 Interim numeric criteria - Variances intended to provide relief in cases where 

meeting one or more criteria to protect the designated use is not feasible under 

current conditions, but could be feasible if circumstances change, should 

specify interim numeric water quality criteria that are achievable. For 

example, circumstances that are used to justify a variance based on 40 CFR 

131.10(g) factor 6 (meeting standards would result in substantial and 

widespread economic and social impact) could change if less expensive 

pollution control technology is developed. 
5

 Narrative criteria – Variances intended to provide time to implement controls 

and a mechanism to oversee and track progress where attaining the designated 

use might ultimately be feasible, but will take considerable time and effort, 

may include a narrative criterion as the basis for permit limits to drive 

increased controls. The variance should include a description of how the 

narrative criteria will be translated (e.g., numeric translators). 

 Site-specific criteria – Variances intended to provide time to develop sitespecific criteria should include a detailed timeline with specific data collection 

and analysis milestones. In addition, the state’s submission to EPA should 

include a summary of preliminary testing that justifies the development of a 

site-specific standard. 

 Highest attainable use – In cases where the highest attainable use may be 

unknown, the variance should include a description of the efforts to make as 

much progress as feasible. 

 Long-term attainability – For variances intended to provide time to complete 

studies to determine what is attainable in the longer term (but only in cases 

where an analysis shows that standards are not attainable in the short term 

based on one or more factors listed in 40 CFR § 131.10(g)), then this type of 

variance should include a detailed timeline with specific data collection and 

analysis milestones. This procedure is not intended to support long-term 

open-ended evaluations. 

*Region 7 encourages states to coordinate with the Region early in the variance review 

process. If the state chooses to initiate coordination prior to the permit public notice, the 

state can send their submittal in two parts. The official request (Item a) and technical 

information (Items b and e) may be submitted early to EPA along with draft versions of 

the permit information listed under Item c. After the public notice closes, the state should 

submit a final copy of the permit information (Item c) with the public participation 

information (Item d). The official request (Item a) may also be submitted with the final 

permit and public participation information (Items c and d). All items must be submitted 

to EPA before a final decision can be made on the variance. 

Review

 EPA will evaluate the variance package and determine whether or not the documentation 

supports the proposed variance. The EPA Water Quality Standards and Permit Coordinators will 

review the variance. Section 7(a)(2) of the Endangered Species Act (ESA) requires that federal 

agencies, in consultation with the United States Fish and Wildlife Service (USFWS), ensure that 

their actions are not likely to jeopardize the continued existence of federally listed threatened or 

endangered species or result in the destruction or adverse modification of designated critical 

habitat of such species. If EPA finds the variance approvable, EPA will submit a biological 

evaluation to USFWS, when necessary. If EPA receives concurrence from USFWS, EPA will 

send an approval letter to the state. If EPA does not agree that the variance is appropriate, then 

EPA will respond in writing to the state. If the variance is approved and after 3 years the 

permittee cannot meet the WQS, then the state must consider any new information and reinitiate 

the variance review process. 
6

Tracking

EPA tracks the approved variances and expiration dates on the EPA Water Quality 

Standards Repository to ensure that the information is readily available to the public. 

The state should track the approved variances and expiration dates on the state 

Department’s (e.g., Department of Environmental Quality, Department of Natural Resources) 

Water Quality Standards website and NPDES Permits website to ensure the information is 

readily available to the public. 

References

EPA’s Water Quality Standards Handbook, Second Edition. 1994. 

http://www.epa.gov/waterscience/library/wqstandards/handbook.pdf

Advanced Notice of Proposed Rulemaking, Federal Register, Vol. 63, No. 129 (July 7, 1998) 

48 Federal Register 51400, 51403 (Nov. 8, 1983) 

Memorandum from EPA’s Office of Water, “Variances in Water Quality Standards,” 

March 15, 1985 

Decision of the General Counsel No. 58, In Re Bethlehem Steel Corporation, March 29, 1977. 
7

SUBMITTAL CHECKLIST

Item Description Date Sent by 

State (mm/dd/yyyy) 

Date EPA-R7 Received (mm/dd/yyyy) 

Complete? (Y/N) 

If not complete, date notified (mm/dd/yyyy) 

In not compdate resubm(mm/dd/yyyy

a Submittal letter b.i 131.10(g) factor b.ii Designated use and 

supporting criteria 

b.iii Advanced treatment and 

alternatives considered 

b.iv Reasonable and necessary 

time period 

b.v Interim milestones, if 

applicable 

b.vi Triennial review statement c.i Variance application c.ii Permit cover page c.iii Effluent limitations c.iv Variance language in 

permit conditions 

d.i Notice of draft permit d.ii Relevant state approval 

documents 

d.iii Public notice affidavit d.iv Comments and responses d.v Fulfilled public 

participation 

e.i Purpose/intent e.ii Uses and criteria rationale e.iii Monitoring and assessment 

tracking 
8

EPA INTERNAL CHECKLIST 

The EPA Water Quality Standards Coordinator scans copies of all the information and place it in the Vari

shared network drive for the Water, Wetlands, and Pesticides Division, and notifies the NPDES Permits Coordinstate) that a variance package has been received. The Water Quality Standards Coordinator notes submittal dates Checklist (see attached) and maintains a copy in the folder on the shared network drive. (H:\WQMB\Water QualiStandards\Variances\[State Name]) Description Date Completed 

(mm/dd/yyyy) 

Additional Comments 

Submittal copied to H: drive Submittal sent to USFWS Regional and state Permits Coordinators notified Review comments received from Permits Coordinators Biological evaluations submitted to USFWS Response received from USFWS Concurrence? Y / N Response to state and reviewed by Permits Coordinators Response to state sent 
9

EPA Contacts: Management

Pradip Dalal, Chief, Wastewater & Infrastructure Management Branch John DeLashmit, Chief, Water Quality Management Branch Regional Coordinator

Ann Lavaty, Regional Water Quality Standards (WQS) Coordinator State Coordinators

Iowa John Reyna, WQS Coordinator John Dunn, NPDES Permits Coordinator Kansas Jay Hua, WQS Coordinator Jodi Bruno, NPDES Permits Coordinator Missouri Rebecca Landewe, WQS Coordinator Mark Matthews, NPDES Permits Coordinator Nebraska Keith Hayden, WQS Coordinator Kimberly Hill, NPDES Permits Coordinator 
Fact Sheet: Colorado Temporary Modifications
Fact Sheet: Colorado Temporary Modifications 

Updated December 2010 to Describe Latest Revisions to 

Colorado’s General Policy (Regulation #31, Section 31.7(3)) 

What is a Temporary Modification? 

• Site-specific WQS revision subject to EPA review and triennial review. 

• Recognizes significant uncertainty and provides time to resolve a WQS issue. 

• A protective numeric criterion is adopted/retained. Often this is a CWA 304(a) criterion. 

Referred to as the “underlying standard.” 

• A temporary (less stringent) narrative or numeric standard is also adopted; normally the 

temporary standard is based on maintaining and protecting existing water quality. 

• An expiration date is adopted based on the time needed to execute the plan for resolving the 

WQS issue. Barring action by the Commission to adopt a different numeric standard, the 

underlying standard becomes effective upon expiration of the temporary modification 

(inspiring stakeholders to develop a defensible alternative). 

How Do Temporary Modifications Affect WQS-Based Decisions? 

• CWA 303(d) listing decisions are based on the protective underlying standard and 

representative water quality data. Temporary modifications are not a basis for de-listing. 

• TMDL may be a low priority until the WQS uncertainty is resolved; however, TMDL might 

be high priority if there is interest in using TMDL Program expertise and resources. 

• NPDES compliance schedules (to achieve WQBELs based on the underlying standards) are 

held in abeyance until the uncertainty is resolved. However, permits may require actions 

intended to eliminate the WQS uncertainty (e.g., field study requirements), and include 

requirements to protect the temporary standard. 

Types of Temporary Modifications 

• Type A - Significant uncertainty regarding WQS necessary to protect current and/or future 

uses. Covers situations where there are compelling reasons to doubt that the current WQS is 

appropriate, including water effect ratio and copper toxicity issues, recalculation issues, and 

cases where UAAs are needed. The justification may or may not describe a valid 

attainability question – e.g., the justification may focus on evidence that the criterion needs to 

be modified, but contain little or no evidence that WQBELs are infeasible. Temporarily 

postpones need to issue a compliance schedule to achieve WQBELs based on significantly 

uncertain WQS. See examples below. 

• Type B - Significant uncertainty regarding the extent to which existing quality is the result of 

natural or irreversible human-induced conditions. Covers situations where the underlying 

standard may be infeasible to achieve, but additional studies are needed to derive a defensible 

numeric standard. The justification must reference an attainability issue related to natural 

and/or anthropogenic sources. Provides time to develop a site-specific criteria study and/or 

UAA; however, the focus is usually on reviewing the criterion. Retaining the present 

designated use serves as a reminder that conditions may be correctable and may increase 

priority for funding to attain the classified use. See examples below. 

• Type C - Significant uncertainty regarding the timing of implementing attainable source 

controls or treatment (this is a new type adopted in 2010 but Region 8 submitted comments 

during the rulemaking process that it would recommend EPA disapproval). 
2

Conditions for Granting a Temporary Modification 

1) Significant uncertainty (see types of temporary modifications above); and

2) Non-attainment of underlying standard demonstrated or predicted; and

3) An existing permitted discharge has a demonstrated or predicted WQBEL compliance 

problem; and

4) Adequate supporting information is submitted, including a justification for the interim 

narrative or numeric value, raw data describing effluent and ambient quality, a plan for 

eliminating the need for the temporary modification, and a justification for the proposed 

expiration date; and 

5) Expiration date based on how soon resolving the issues is deemed feasible. 

Annual Review Process 

An annual rulemaking hearing is held to review temporary modifications that expire within two 

years. As a result of the hearing, the Commission may, for example: 

• Delete the temporary modification and allow the underlying standard to go into effect, or 

• Delete the temporary modification and adopt a revised underlying standard. 

Site-Specific Examples 

• Total Ammonia – McElmo Creek, La Plata River Segment 7a, Aquatic life Warm Class 1, 

Regulation #34. Current type A temporary modification. Uncertainty regarding whether 

discharger (e.g., Vista Verde Village Mobile Home Park, a 0.015 mgd aerated lagoon 

facility) can comply with WQBELs (economic impact issue). Colorado does not yet have a 

fully developed discharger-specific variance program. Uncertainty regarding whether table 

value standard is appropriate for the expected aquatic community (recalculation issue). The 

portion of McElmo Creek receiving the mobile home park discharge has low flows; 

additional data are needed to characterize expected aquatic life and explore possible 

recalculation. State staff are evaluating options with EPA participation. Underlying standard 

= table values (EPA 1999 Update). Temporary standard = Previous (less stringent) table 

values for un-ionized ammonia. Expires 12/31/2012. 

• Dissolved Copper – Monument Creek, Fountain Creek Segment 6, Aquatic Life Warm Class 

2, Regulation #32. Current type A temporary modification. Uncertainty regarding whether 

hardness-dependent table value standard is appropriate given ameliorating effects of site 

water characteristics including influence of the Tri-Lakes WWTF. Studies to date show that 

there is a WER. Uncertainty regarding how far downstream an adjusted numeric standard 

should apply. Uncertainty regarding how a site-specific standard should be derived from 

biotic ligand model instantaneous results. Uncertainty regarding whether a “translator” 

adjustment is appropriate for purposes of calculating WQBELs, and if so, what translator 

adjustment is appropriate. EPA has supported use of the biotic ligand model, including 

tasking Hydroqual with developing the fixed monitoring benchmark (FMB) approach. 

Underlying standard = hardness-dependent table values. Temporary standard = “current 

condition.” Expires 12/31/2012. 
3

• Total Recoverable Iron – Dry, Sage, and Grassy Creeks, Yampa River Segments 13d and 

13e, Aquatic Life Warm Class 2, Regulation #33. Current type B temporary modification. 

Uncertainty regarding whether elevated iron concentrations are due to natural or irreversible 

man-induced sources. Seneca Coal Company discharges at multiple locations along these 

creeks. As part of the annual review process, a rulemaking action currently is underway to 

consider adoption of site-specific standards based on pre-mining water quality data. 

Underlying standard = 1,000 μg/L as a 50th percentile. Temporary standard = “existing 

quality.” Expires 5/31/2011. 

• Dissolved Selenium – Toll Gate Creek, Upper South Platte River Segment 16h, Aquatic Life 

Warm Class 2, Regulation #38. Type B temporary modification (now deleted). There was 

uncertainty regarding whether elevated selenium concentrations are due to natural or 

irreversible man-induced sources. The City of Aurora discharges to this segment. The 

USGS was contracted to do the study. In 2009, site-specific selenium criteria were adopted 

based on evidence that the existing ambient concentrations are due to natural groundwater 

flow associated with bedrock, and the temporary modification was deleted. 

• Temperature – San Miguel River Segment 4b, Aquatic Life Cold Class 2, Regulation #35. 

Current type B temporary modification. Uncertainty regarding appropriate ambient 

temperature standard for this section of the San Miguel River, which supports a mixed 

aquatic community in a transition zone between cold and warm water habitats. Uncertainty 

regarding the extent to which Tri-State Generation and Transmission’s cooling water 

discharge is affecting stream temperature and aquatic life. Uncertainty regarding effects of 

upstream water diversions on aquatic life and temperature, and whether effects are reversible. 

Uncertainty regarding thermal requirements of expected community (e.g., mottled sculpin, a 

cold water species). Uncertainty regarding the appropriate aquatic life use sub-category. As 

part of the annual review process, a rulemaking action currently is underway to consider 

adoption of site-specific WQS revisions based on a UAA and site-specific criteria study. 

Underlying standard = None. Temporary standard = 26.3°C as a maximum weekly average 

during June-Sept. Expires 5/31/2011. 

• Dissolved Zinc – Eagle River Segments 5a, 5b, and 5c, Aquatic Life Cold Class 1, Regulation 

#33. Type A and Type B combo temporary modification (now deleted). There was 

uncertainty regarding whether the much improved (but still somewhat elevated) zinc levels 

downstream of the Eagle Mine CERCLA site were natural or man-induced rreversible. 

There was uncertainty regarding whether the table value standard is appropriate for the 

expected aquatic community (recalculation issue). There was uncertainty regarding whether 

the aquatic community within the CERCLA site is significantly different compared to 

upstream control sites. These sources of uncertainty were studied under the temporary 

modification while the remedial action was underway (remedial actions were not postponed 

to allow time for resolution of the WQS issues). In 2008, based on all three lines of 

evidence, site-specific zinc criteria were adopted (requiring a small additional improvement 

in zinc levels) and the temporary modification was removed. 
Appendix H

Examples: Worksheets to Justify the Economic Factor
Example Economic Analysis Worksheet from Idaho















Example EPA Analysis of Idaho’s Economic Analysis Worksheet










Appendix I

Considerations for Use of Selected 131.10(g) Factors
“Checklist” Materials for the Purposes of the R7 Kaizen Process 

ATTACHMENT A 

CONSIDERATIONS FOR USE OF SELECTED 131.10(g) FACTORS 

This list of considerations and the brief discussion of application are intended to be 

illustrative not definitive. It is not necessarily comprehensive. 

 

Factor 1 – Naturally occurring pollutant concentrations prevent the attainment of the use. 

Potential Components of Demonstration: water quality assessment for all relevant 

parameters, biological assessment (as an indicator of water quality), appropriate reference 

condition for comparison (if available), land usage/watershed characteristics, 

characterization of point and non-point source pollutant sources upstream of water body, 

characterization of natural sources, water quality modeling (as necessary to confirm 

effects from natural pollutant sources), assessment of possible groundwater 

contamination from human activities as the source of surface water pollutant levels, 

stream bank stability (including upstream stability if natural siltation is suspected), tidal 

influences (i.e., for estuarine dissolved oxygen). 

Factor 1 may be used in situations where, for example, natural shale deposits cause 

elevated levels of trace metals or where naturally occurring low dissolved oxygen levels 

predominate (possibly in conjunction with considerations for factor 1 and factor 5). A 

“natural condition” is a condition without human-caused changes. Because it is difficult 

(if not impossible) to find a completely “natural” water body that is free from influence 

from any human activity, the “natural condition” is typically determined using conditions 

least affected by human activities as the point of reference, as long as those least affected 

conditions are believed to be a reasonable approximation of the natural condition. Waters 

where activities such as urbanization, agricultural practices, hydrologic modification, and 

atmospheric deposition have a significant measurable or predicted effect on the 

designated use should not be used as a natural point of reference. 

Factor 2 – Natural, ephemeral, intermittent or low flow conditions or water levels 

prevent the attainment of the use, unless these conditions may be compensated for by the 

discharge of sufficient volume of effluent discharges without violating State water 

conservation requirements to enable uses to be met. 

Potential Components of Demonstration: volume and velocity of flow, depth, range of 

flow conditions (including highs and lows as well as more generally representative 

conditions not influenced by drought or recent precipitation), presence of pools within the 

water body channel, precipitation and snowmelt patterns, presence of riparian vegetation 

(as an indicator of pattern of flow and water levels), depth of water table (to distinguish 

ephemeral from intermittent if necessary), biological assessment (as necessary to confirm 

flow or water level limitation if physical evidence is unclear), recreational use safety and 

access, potential use by children. 

Factor 2 is most commonly applied to situations where the ephemeral character of a water 
“Checklist” Materials for the Purposes of the R7 Kaizen Process 

body precludes certain types of aquatic life uses or where low flow conditions that are 

associated with a depth that is not conducive to swimming predominate. Although there 

is no formal guidance on what depth precludes recreation, many states have developed 

protocols that have led to acceptable use refinements (e.g., Colorado, Oklahoma, 

Kansas). More recently, this factor has been considered relevant for situations where 

high flows make it unsafe for recreation under certain situations. However, the wording 

of factor 2 in the regulation only lends itself to application where high flow conditions 

are natural. The last phrase of the factor (“unless those conditions...”) means that the 

factor is not relevant to situations where a discharger creates permanent flow in an 

otherwise ephemeral stream or where a discharger creates sufficient depth for recreation 

in a stream that would otherwise be too shallow. 

Factor 3 – Human caused conditions or sources of pollution prevent the attainment of the 

use and cannot be remedied or would cause more environmental damage to correct than 

to leave in place. 

Potential Components of Demonstration: water quality (and sediment and tissue quality 

as necessary) assessment for all relevant parameters, biological assessment (as an 

indicator of water quality), appropriate reference condition for comparison (if available), 

land usage/watershed characteristics, characterization of human caused condition and its 

relationship to water quality and/or the use in question, identification of currently 

available remedies and assessment of their potential efficacy and feasibility, 

demonstration of application of technology-based requirements and cost effective and 

reasonable BMPs (as appropriate) or forecast of water quality conditions once 

implemented (e.g., using water quality modeling), assessment of potential damage caused 

by potential remedies. 

Factor 3 is likely most applicable to watershed scale impacts, where there are a mix of 

pollutant sources and conditions, and the degree of human activity cannot be reconciled 

with certain water quality or designated use expectations. Application of this factor is 

very closely tied to the particular aspects of a given situation and not easily generalized. 

A good example is removal of contaminated sediment from a harbor that would cause 

more damage by disruption than the damage caused by leaving it in place. 

Factor 4 – Dams, diversions, or other types of hydrologic modifications preclude the 

attainment of the use, and it is not feasible to restore the water body to its original 

condition or to operate such modification in a way that would result in the attainment of 

the use. 

Potential Components of Demonstration: water quality assessment for all relevant 

parameters, biological assessment (as an indicator of water quality), appropriate reference 

condition for comparison (if available), land usage/watershed characteristics, 

characterization of hydrologic modification and its relationship to water quality and/or 

the use in question, identification of currently available restoration and/or operation 

methods and assessment of their potential efficacy and feasibility, societal value of the 

hydrologic modification. 
“Checklist” Materials for the Purposes of the R7 Kaizen Process 

Factor 4 has been used to examine dam operation and consider potential use 

modifications. The potential applications for this factor are related to those associated 

with Factor 3. As with factor 3, application of this factor is very closely tied to the 

particular aspects of a given situation and not easily generalized. 

Factor 5 - Physical conditions related to the natural features of the water body, such as 

the lack of a proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to 

water quality, preclude attainment of aquatic life protection uses. 

Potential Components of Demonstration: physical habitat characterization of the water 

body, natural hydrologic patterns, sediment grain size, bathymetry, biological assessment 

(as necessary to confirm physical habitat limitation if physical evidence is unclear).

Factor 5 is often cited in conjunction with factor 1 and factor 2 for situations where, for 

example, natural physical conditions contribute to naturally low dissolved oxygen levels. 

This factor would also be relevant for situations where the natural substrate is not 

conducive to certain aquatic life uses (e.g., where a high “percent fines” in the sediment 

and lack of gravel preclude salmonid spawning). Natural physical conditions are also 

occasionally cited as a contributing factor to situations where human activity has also 

played a large role in modifying water body conditions (e.g., a combination of factor 3 

and factor 5). For example, in a southeastern stream, it was the combination of the 

effects of urbanization and naturally sluggish hydrology that made attainment of a use 

infeasible. 

Note: The phrase “unrelated to water quality” in Factor 5 does not preclude an 

examination of water quality. This is particularly important when evaluating a waterbody 

below a WWTP discharge1

. A demonstration that the downstream conditions are natural

may require a quantitative examination of the water quality in the waterbody above and 

below the WWTP to determine the effects of the discharge on the downstream condition. 

It is possible that the discharged WWTP effluent could directly impact the available 

habitat and aquatic life through the exposure of suspended solids, biological oxygen 

demanding substances, ammonia and other pollutants toxic to aquatic life which could 

limit the attainability of the use. 

 

1 A task of the UAA is to identify receiving water bodies, in which the use(s) is not attained for reasons 

other than those specified above (natural conditions), that are water quality-limited (impaired) and will 

require water quality-based controls. Water quality-limited segments are specifically defined by EPA as:

“...those segments that do not or are not expected to meet applicable water quality standards even after 

the application of technology-effluent limitations required by sections 301(b) and 306 of the Act.” 

According to sections 301(b) and 306, technology-based controls include, but are not limited to, “best 

available technology economically achievable (BAT)” for industrial point sources and secondary 

treatment for publicly owned treatment work, as well as reasonable and cost-effective BMPs for 

diffuse sources that have an assurance of being implemented. 
“Checklist” Materials for the Purposes of the R7 Kaizen Process 

Factor 6 - Controls more stringent than those required by sections 301(b) and 306 of the 

Act would result in substantial and widespread economic and social impact 

Potential Components of Demonstration: water quality assessment for all relevant 

parameters, biological assessment (as an indicator of water quality), identification of 

currently available control technologies and assessment of their potential efficacy, 

characterization of the costs of controls and their potential for financing over a period of 

years, characterization of the ability to pay for the affected entities, opportunity costs, 

evaluation of equity and distribution, environmental justice, identification of the 

community and characterization of its financial health. 

Factor 6 has primarily been applied to single discharger situations where the surrounding 

community is experiencing economic hardship. It is often used in conjunction with a 

variance rather than a use removal. EPA’s 1995 Interim Economic Guidance for Water 

Quality Standards: Workbook provides guidance on using this factor.