Variance Compendium January 24, 2011

This compendium was developed by an EPA contractor using i nformation 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

compile s 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 exampl es of successfully approved variances that states implemented

throughout the United States and used to demonstrate p rogress toward m eeting WQS for several

pollutants of concern. These case studies highlight how variances have been use d 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

Th e nine appendices provide the following additional information:

**•** Appendix A: Variances by State

**•** Appendix B: Example Variance Application Forms

**•** Appendix C : Example Memorandums of Agreement (MOA s)

**•** Appendix D : Example Process Diagram of Role s and Responsibili ties

**•** 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 regulation s at 40 CFR Part 131

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

Regist er in s ummer 2011. Once EPA publishes a notice of final rulemaking (estimated to be in s ummer

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 P art 131.Variance Compendium January 24, 2011

2 

## Frequently Asked Questions

**What is a variance?**

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

quality criteria that would otherwise be appl icable 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 f or 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 tha n could be attained in the long term. For example, technology

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

WQS

. Variances cover specific pollutants and target either po llutant sources or geographic a reas.

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. ).

T he variance process simplifies how to determine an exi sting use b y limiting the scope of the

demonstration in terms of time, discharges affect ed, 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 Decisio n 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 1 31.13 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 po licies are subj ect 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

3 As long as any temporary water quality standards modification conforms to the requirements e stablished 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 rathe r 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 c oncentrations 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 tha n 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 ):

**•** E xisting water quality criter ia remain in effect for implementation in National Pollutant

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

in the variance

.

**•** O ther applicable WQS will continue to be implemented

.

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

of the 131.10(g) factors.

**•** V ariances a re set for a specific duration and can be reviewed as part of state’s triennial

review.

**•** R easonable progress can be made toward meeting the WQS ; for variance renewals, verify

that reasonable progress has occurred

.

**•** T he 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 p ublic hearing are all provided ; t he public notice

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

the affected waterbody segment.Variance Compendium January 24, 2011

4 **•** The state adopts the variance as WQS, as specified in the stat e’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 case s , multiple dischargers. For example, the

Michigan Departmen t of Natural Resources and the Environment adopted

, and EPA subsequently

app roved

, a multi

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

addressing mercury in NPDES permitted discharges a s 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 t o demonstrate progress towards meeting WQS ; other

states have not issued a variance to date. In some cases, regions and state s m ay 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 bee n 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 shee t

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

tool based on the water quality challenges they face.

S tates 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 the se

number s

. 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 t he

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

– 5Variance Compendium January 24, 2011

5 

### What kind **of guidance exists on variances?**

Because t here is little information available about variances in current regulation s, to date, EPA and states

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

were obtained through Internet res earch 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 E PA’s Di rector 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 avai lable 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 d ownload ed 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) provide s 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 comme nts 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

informa tion such as essential elements of a variance

, h istorical 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

6 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 guid anc e 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 docume nt is available for download at:

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

.

Region 7 has developed procedural guidelines for variances to WQS i n 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. Not e 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, Proced ure 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/text

idx?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 e xplore a module from EPA’s W QS Academy

, which p rovides a basic introduction to variance s, including what they are, their purpose, legal basis,

fact ors supporting variances, and cautions for use (USEPA 2007)

. Access the module at:

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

course_15

- variances

- 11

- 15

- 07.pdf

.

Anothe r us eful source of information is the ex ample 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 ow n legal and administrativ e 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 i t 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 dischar ger 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 sta ff at the region. Several regionsVariance Compendium January 24, 2011

7 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 (widespre ad 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 varianc e?** 

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 t he resources

required to develop a variance

, have it p rocessed by the state

, and approved by EPA. Most regions

reported that th e 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 d ata 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.

Sev eral 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 submitt als (e.g., a site

- specific

criterion

, reclassification), but less time than revisi ons associated with a full triennial review. Two r egions

reported that a variance c ould 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 re view of the actions ta ken 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. I t 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 instance s 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 processe s could take a long time to compl ete and

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

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 a n

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

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

8 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 anal yses.



### 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

require s 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 a ny 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 aqua tic 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 pe riod. 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 t o 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 pro gress 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

b e collected . For example , one region noted a case where an e xtenuating 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

9 No region indicated that it would not a llow a renewal of a n 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 dat a 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 poi nts 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

evalua ted. 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, on e 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 o ccurs on a case

- by

case basis since t here is no established EPA procedure for sharing this information among states and

d ischargers

. 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

av ailable 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 ab out the state’s and/or EPA’sVariance Compendium January 24, 2011

10 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 techni ques 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 d ischargers 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. A n ESA consultation is required if listed species

are present in area where the variance applies . T wo 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 a n 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 vari ances , 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 stan dards.

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

s_wqsvariance.pdf . Accessed January 201 1.

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

11 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/EPA

WATER/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 Protecti on

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 c ase studies were developed to provide information about successfully approved variances that

have been used and implemented throughout t he 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* Varianc e

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 dischargersVariance Compendium January 24, 2011

12 

### 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 Cree k through NPDES

permitted 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 numer ic 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 wat er 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 a lso

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 macr oinvertebrate 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 Jul y 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 Serie s 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, whic h 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, w hichever 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 f acility, 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.

Tab le 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 an y 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 l ett er 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**

**T exas Variance for Aluminum in Bear Creek Tributaries** 

**Background**

International Paper Corporatio n (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 , n o 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 P aper 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. Th at

study conclu ded that alum inum found in the p lant’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 th os e 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 -sp ecific 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, t he facility underwent significant modifications, including dredging the lower

pond and rebuilding the discharge mechanism so the pond no longer discharged continuously. A s 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 authorize d a

3- year period in which the c ompany 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 p ublic notice for the extension was filed in April 2002 (Corrigan Times 2002). PublicVariance 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 n o

significant degradation of high quality receiving waters was anticipated . I n 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 t he f acility 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 EP A. 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 alu minum . The c onditions of the permit specified that if the

permittee did not complete the WER study within 180 days of the permit expiration dat e, 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**

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

development of the s ite

- 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

sit e- 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

5.5 8 , 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 th e site

specific aluminum criterion in 2005

. The 2006 (and 2010) TPDES permit included w ater q uality -b ased

e ffluent l imits 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 Ci ties 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. Effort s 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 sy stem,

yiel ding 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 varia nces 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, u sing the I nterim

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 enha ncements 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

to ward 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 mon itored and reported, and that alternateVariance 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 effec t 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, D EQ 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 me tal 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

Concentra tion

(μg/ L) Load

(lb/day) Concentration

(μg/ L) Load

(lb/day) Concentration

(μg/ L) Load

(lb/day)

City of

P age 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 groundwa ter 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 -r elated matters that may arise.

Page

1. Apply for s tate and t ribal assistance g rant ( 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 pre sented 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 ser vice 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. Just ification 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 201 1.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

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

Environmental Quality.

http://www.deq.idaho.gov/water/data_reports/surfac e_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/scitec h/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. Environmenta l 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 t he information contained in this a ppendix 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 su fficient 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 —o ne is for chlorides and the other

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



### Appendix **C : Example Memorandum**  **s of Agreement (MOA**  **s)**

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 Role**  **s 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 l etters could b e 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.AppendixA.VariancesbyStateRegion StateNameofFacilityRequiringVariancePermitNumberYearGranted Parameter(s) Justification(s)forVariance* LengthofVariance(s) NumberofRenewalsRegion1 ConnecticutNone.Region1 MaineNone.Region1 MassachusettsMWRA,BWSC,CityofCambridgeMA0103284,MA0101982,andMA01011921997 CSOdischargeWidespreadeconomicandsocialimpact24months4Region1 MassachusettsMWRA,CitiesofCambridgeandSomervilleMA0103284,MA0101974,andMA01019821999 CSOdischargeWidespreadeconomicandsocialimpact36months4Region1 NewHampshireNone.Region1 RhodeIslandNone.Region1 VermontNone.Region2 NewYorkNone.Region2 NewJerseyNone.Region2 USVirginIslandsNone.Region2 PuertoRicoNone.Region3 DelawareNone.Region3 DistrictofColumbiaNone.Region3 PennsylvaniaNone.Region3 VirginiaNone.Region3 WestVirginiaUnionCarbideCorporation2006 chloridesUnknown2yearsRegion3 WestVirginiaStonyRivervarianceDeletedfromWQSbecauseofexpirationin1998.Region3 WestVirginiaCatenaryCoalCompany2003 aluminumRegion4 KentuckyNone.Region4TennesseeNone.Region4 SouthCarolinaNone.Region4 NorthCarolinaBlueRidgePaperProducts,Inc.,CantonMillNC0000272FirstVariance:1988,MostColor131.10(g)(6)LastColorVarianceApprovalbyEPA:12/21/20105Region4 NorthCarolinaMt.OlivePickleCompanyNC00010741996 Chloride131.10(g)(6):wasteminimizationtechniqueisproventechnologyeconomicallyfeasible(NPDESpermitexpires12/31/10)2Region4 NorthCarolinaBayValleyFoods,LLCNC00019701997 Chloride131.10(g)(6):wasteminimizationisthemostproventechnologyeconomicallyfeasible(NPDESpermitexpires12/31/10)2Region4 GeorgiaSpringsIndustries,Inc.Wholeeffluenttoxicity131.10(g)(6)DischargerceasedoperationsandvariancewillbeterminatedRegion4 FloridaPremierChemicalsLLCFL000226072008Acutetoxicity‐calcium131.10(g)(6)expiresatexpirationofNPDESpermit1AppendixA.VariancesbyStateRegion StateNameofFacilityRequiringVariancePermitNumberYearGranted Parameter(s) Justification(s)forVariance* LengthofVariance(s) NumberofRenewalsRegion4 FloridaCityofVeroBeachReverseOsmosisFacilityFL0042544‐0032007WholeeffluenttoxicityNopracticablemeansareknownoravailablefortheadequatecontrolofpollutioninadischarge.expiresatexpirationofNPDESpermitRegion4 AlabamaNone.Region4 MississippiTallahalaCreek1990 DOAttainabilityofDOlevelsresultingfromtheCityofLaurelWWTF. Removedthevariancein2003Region4 MississippiEscatawpaRiverDOVarianceisproposedtoberemovedbytheStateRegion5 IllinoisNone.Region5 IndianaStatewideStreamlinedMercuryVarianceRuleMultiplefacilities?2005 MercurywidespreadsocialandeconomicimpactsofcompliancewithmercurylimitsderivedfromIndiana’sexistingwaterqualitycriteriaRegion5 IndianaArcelorMittalBurnsHarbor,LLCIN00001751988AmmoniaasN,Phenols,TemperatureBestavailabletechnologyeconomicallyachievablerequirementsprovidedforbythefederalNPDESpermitrequirementsoftheCleanWaterActpursuanttosection301(g).renewedforatotalof22years 1993,1995Region5 IndianaNIPSCOMichiganCityGeneratingStationIN00001164/5/2010 mercuryArecognizedlackofeconomicallyviableend‐of‐pipetreatmentoptions.Submitted1/25/2010.Region5 IndianaCARGILLINCFOOD&PHARMASPECIALTIESIN000002710/13/2010streamlinedvarianceformercuryArecognizedlackofeconomicallyviableend‐of‐pipetreatmentoptions.Region5 MichiganStatewideMercuryVarianceMultiplefacilities?2/1/2000 MercurysocialandeconomicimpactsMichigan'smultipledischargervariancedoesnotaltertherequirementinMichigan'srulethat,"thedurationofaWQSvarianceshallnotexceedthetermoftheNPDESpermit."Revisedforpermitsissuedbetween2005and2009.TheMDEQisreapplyingforanMDVformercuryforNPDESpermitsissuedinFiscalYears(FYs)2010‐2014.Region5MinnesotaBuffaloLakeEnergyLLCMN006806310/6/2006Boron,Hardness,Salinity,Sodium,TDS,SpecCond,SulfateMinnesotaRegs:7050.0223subp.3,7050.0224subp.2,7050.0224subp.3Region5 MinnesotaADMCornProcessing:MarshallMN005703710/24/1995Chloride,SpecCond,TDS,Salinity,ToxicityMinnesotaRegs:7050.0223subp.3,7050.0224subp.2,7050.0224subp.2,7050.0224subp.3,7053.0215subp.1Region5 MinnesotaCliffsErie‐DunkaMiningAreaMN00425797/25/2000 ToxicityMinnesotaRegs:7053.0215subp.1Region5 MinnesotaLitchfieldWWTPMN00239731/28/1992CBOD,UnionizedAmmonia,DOMinnesotaRegs:7053.0235,7050.0220subp.3,7050.0220subp.3Region5 MinnesotaLincoln‐PipestoneRuralWaterSystemMN006435112/15/1998SpecCond,TDS,SalinityMinnesotaRegs:7050.0224subp.2,7050.0224subp.2,7050.0224subp.3Region5MinnesotaLuverneWWTPMN00201413/26/1985CBOD,UnionizedAmmoniaMinnesotaRegs:7053.0235,7050.0220subp.3Region5 MinnesotaMDNRFrenchRiverHatcheryMN000441311/26/1991 TempMinnesotaRegs:7050.0220subp.3.A,7050.0222subp.22AppendixA.VariancesbyStateRegion StateNameofFacilityRequiringVariancePermitNumberYearGranted Parameter(s) Justification(s)forVariance* LengthofVariance(s) NumberofRenewalsRegion5 MinnesotaMapleHillEstatesMHPMN00311275/19/1975 NoDischargeZone MinnesotaRegs:7053.0265Region5 MinnesotaMcKinleyWWTPMN00240315/23/1989 PhosphorusMinnesotaRegs:7053.0255subp.5Region5 MinnesotaMesabiNuggetDelawareLLC&SDIMN00676878/30/2005Bicarb,hardness,TDS,SpecCondMinnesotaRegs:7050.0224subp.2,7050.0223subp.3,7050.0224subp.2,7050.0224subp.2Region5 MinnesotaNerstrandMN00656683/1/2002 DOMinnesotaRegs:7050.0222subp.4Region5 MinnesotaRosemountWastewaterTreatmentFacility4/1/2004 MercuryRegion5 MinnesotaUnitedTaconiteLLC:ThunderbirdMineMN00449466/22/1999 pHMinnesotaRegs:7050.0224subp.2Region5MinnesotaSouthernMinnesotaBeetSugar‐RenvilleMN004066512/29/2004Bicarb,chloride,sodium%,SpecCond,MinnesotaRegs:7050.0223and7050.0224Region5 MinnesotaWinstedWWTPMN00215712/26/1980 PhosphorusMinnesotaRegs:7053.0255subp.3Region5 MinnesotaWLSSDMN00497865/19/1994 Fecalcoliform MinnesotaRegs:7053.0215Region5 WisconsinShawanoSpecialtyPapersWI‐0001341‐085/1/2009Mercury,TotalRecoverablesubstantialandwidespreadadversesocialandeconomicimpactsFromtheeffectivedateofthepermitreissuancethroughtheendofthepermitterm(3/31/2014)Region5WisconsinWeEnergies‐PleasantPrairiePowerPlantWI‐0043583‐06‐18/1/2006Mercury,TotalRecoverablesubstantialandwidespreadadversesocialandeconomicimpactsExpirationDate:6/30/2009Region5 WisconsinBethelNursingandRehabilitationCenterWI‐0031313‐073/4/2005 CopperThestandard,asappliedtothepermitte,willcausesubstantialandwidespreadsocialandeconomicimpactsintheareawherethepermitteeislocated5yearsonceon5/15/2010Region5 WisconsinCumberland2/10/2005CopperRegion5 WisconsinElkmoundWI‐0023914‐0812/9/2003 CopperRegion5 WisconsinMarshfield6/24/1905 CopperRegion5 WisconsinOakdale5/8/2006 CopperRegion5 WisconsinOshkosh1/8/2007 MercuryRegion5 WisconsinPhelps5/31/2007 CopperRegion5 WisconsinThreeLakes3/27/2006 CopperRegion5 WisconsinDevil'sLakeStateParkWI‐0060241‐0510/21/2007 MercuryRegion5 WisconsinDairylandPowerCoopGenoaWI‐0003239‐84/22/2008 MercuryRegion5 WisconsinCityofWaukeshaWI0029971‐07‐05/5/2008 MercuryRegion5 WisconsinCityofMerrillWI0020150‐085/5/2008 MercuryRegion5 WisconsinCityofWatertownWI‐00028541‐078/24/2008 Mercurysubstantialandwidespreadadversesocialandeconomicimpacts3AppendixA.VariancesbyStateRegion StateNameofFacilityRequiringVariancePermitNumberYearGranted Parameter(s) Justification(s)forVariance* LengthofVariance(s) NumberofRenewalsRegion5 WisconsinCityofAntigoWI‐0022144‐0812/5/2008 MercuryRegion5 WisconsinNeenahMenashaSewerageCommission(NMSC)WI‐0026085‐082/15/2009 MercuryRegion5 WisconsinArcadiaWastewaterTreatmentFacility(AWTF)WI‐0023230‐083/22/2009 MercurySubstantialandwidespreadadversesocialandeconomicimpacts.(NR106.145(1)(a))Thisfindingisbasedon,"AssessingtheEconomicImpactsoftheProposedOhioEPAWaterRulesontheOhioEconomy,"preparedin1997bytheOhioEnvironmentalProtectionAgencyRegion5WisconsinChippewaFallsWastewaterTreatmentFacilityWI‐0023604‐083/22/2009 MercurySubstantialandwidespreadadversesocialandeconomicimpacts.(NR106.145(1)(a))Thisfindingisbasedon,"AssessingtheEconomicImpactsoftheProposedOhioEPAWaterRulesontheOhioEconomy,"preparedin1997bytheOhioEnvironmentalProtectionAgency12/31/2013Region5 WisconsinWisconsinRapidsWastewaterTreatmentPlant(WRWTP)WI‐0025844‐085/26/2009 MercurySubstantialandwidespreadadversesocialandeconomicimpacts.(NR106.145(1)(a))Thisfindingisbasedon,"AssessingtheEconomicImpactsoftheProposedOhioEPAWaterRulesontheOhioEconomy,"preparedin1997bytheOhioEnvironmentalProtectionAgencyRegion5WisconsinWhitewaterTreatmentPlantWI‐0020001‐085/26/2009MercuryRegion5 WisconsinCityofBurlingtonWI‐0022926‐086/19/2009 MercuryRegion5 WisconsinCityofRiceLakeWastewaterTreatmentPlant(RLWTP) WI‐0021865‐087/25/2009 MercurySubstantialandwidespreadadversesocialandeconomicimpacts.(NR106.145(1)(a))Thisfindingisbasedon,"AssessingtheEconomicImpactsoftheProposedOhioEPAWaterRulesontheOhioEconomy,"preparedin1997bytheOhioEnvironmentalProtectionAgencyRegion5WisconsinGrandChute‐MenashaWestSewerageCommission(GCMWSC)WI‐0024686‐077/25/2009 MercurySubstantialandwidespreadadversesocialandeconomicimpacts.(NR106.145(1)(a))Thisfindingisbasedon,"AssessingtheEconomicImpactsoftheProposedOhioEPAWaterRulesontheOhioEconomy,"preparedin1997bytheOhioEnvironmentalProtectionAgency4AppendixA.VariancesbyStateRegion StateNameofFacilityRequiringVariancePermitNumberYearGranted Parameter(s) Justification(s)forVariance* LengthofVariance(s) NumberofRenewalsRegion5 WisconsinCityofMenomonieWI‐0024708‐088/8/2009 MercuryTechnicallyandeconomicallyinfeasible(NR106.145(1)(a))Thisfindingisbasedon,"AssessingtheEconomicImpactsoftheProposedOhioEPAWaterRulesontheOhioEconomy,"preparedin1997bytheOhioEnvironmentalProtectionAgencyRegion5 WisconsinCascadesTissueGroupWisconsinInc.(CTG)WI‐0003077‐0811/10/2009 MercurySubstantialandwidespreadadversesocialandeconomicimpacts.(NR106.145(1)(a))Thisfindingisbasedon,"AssessingtheEconomicImpactsoftheProposedOhioEPAWaterRulesontheOhioEconomy,"preparedin1997bytheOhioEnvironmentalProtectionAgencyRegion5WisconsinCityofLaCrosseWI‐0029581‐08‐011/29/2009 MercuryRegion5 WisconsinCityofBeloitWI‐0023370‐0812/1/2009 MercurySubstantialandwidespreadadversesocialandeconomicimpacts.(NR106.145(1)(a))Thisfindingisbasedon,"AssessingtheEconomicImpactsoftheProposedOhioEPAWaterRulesontheOhioEconomy,"preparedin1997bytheOhioEnvironmentalProtectionAgencyRegion5 WisconsinMadisonMetropolitanSewerageDistrict(MMSD)WI‐0024597‐0812/1/2009 MercuryRegion5 WisconsinPackagingCorporationofAmerica(PCA)WI‐0002810‐08‐02/2/2010MercuryRegion5 WisconsinWisconsinPulicServiceCorporationWI‐0042765‐073/8/2010 MercuryTechnicallyandeconomicallyinfeasible(NR106.145(1)(a))Thisfindingisbasedon,"AssessingtheEconomicImpactsoftheProposedOhioEPAWaterRulesontheOhioEconomy,"preparedin1997bytheOhioEnvironmentalProtectionAgency12/31/2014Region5 WisconsinVillageofCleveland'sWastewaterTreatmentFacility(WTF)WI‐0030848‐084/9/2010ArsenicsubstantialadverseeconomicimpacttotheVillageofClevelandRegion5 WisconsinCityofRiverFallsWI0029394‐08‐05/8/2010 MercurySubstantialandwidespreadadversesocialandeconomicimpacts.(NR106.145(1)(a))Thisfindingisbasedon,"AssessingtheEconomicImpactsoftheProposedOhioEPAWaterRulesontheOhioEconomy,"preparedin1997bytheOhioEnvironmentalProtectionAgency5AppendixA.VariancesbyStateRegion StateNameofFacilityRequiringVariancePermitNumberYearGranted Parameter(s) Justification(s)forVariance* LengthofVariance(s) NumberofRenewalsRegion5 WisconsinCityofPeshtigoWI‐0030651‐077/2/2010 MercurySubstantialandwidespreadadversesocialandeconomicimpacts.(NR106.145(1)(a))Thisfindingisbasedon,"AssessingtheEconomicImpactsoftheProposedOhioEPAWaterRulesontheOhioEconomy,"preparedin1997bytheOhioEnvironmentalProtectionAgencyLessthan5yearsuntil6/30/2014Region5WisconsinLakeDeltonSewerageCommissionWI‐0032402‐067/5/2010 MercurySubstantialandwidespreadadversesocialandeconomicimpacts.(NR106.145(1)(a))Thisfindingisbasedon,"AssessingtheEconomicImpactsoftheProposedOhioEPAWaterRulesontheOhioEconomy,"preparedin1997bytheOhioEnvironmentalProtectionAgencyRegion5 WisconsinPrairieduChien7/9/2010 MercuryRegion5WisconsinCityofHudsonWI‐0024279‐087/23/2010 MercurySubstantialandwidespreadadversesocialandeconomicimpacts.(NR106.145(1)(a))Thisfindingisbasedon,"AssessingtheEconomicImpactsoftheProposedOhioEPAWaterRulesontheOhioEconomy,"preparedin1997bytheOhioEnvironmentalProtectionAgency5years/lifeofpermitRegion5 WisconsinThilmanyLLC7/23/2010MercuryRegion5 WisconsinNelsonDewerPowerGeneratingStation8/1/2010 MercuryRegion5 WisconsinWesternRacineCountySewerageDistrictWI‐0028754‐08‐08/3/2010 Mercurysubstantialandwidespreadadversesocialandeconomicimpacts."(NR106.145(1)(a»Thisfmdingisbasedonareportpreparedin1997bytheOhioEnvjronmentalProtectionAgency,FosterWheelerEnvironmentalCorporationandDRIIMcGraw‐HillinsupportofthemultipledischargervarianceadoptedbytheStateofOhioRegion5WisconsinHeartoftheValleyMSD8/13/2010 MercuryRegion5 WisconsinCityofJeffersonPOTW8/29/2010 MercuryRegion5 WisconsinCityofAppleton9/11/2010 ChlorideRegion5 WisconsinCityofAppletonWastewaterTreatmentFacility(Appleton)WI‐0023221‐079/14/2010 MercuryRegion5 WisconsinTregaFoods10/1/2010 ChlorideRegion5 WisconsinNewPageWisconsinSystem,Inc.11/22/2010 Mercury6AppendixA.VariancesbyStateRegion StateNameofFacilityRequiringVariancePermitNumberYearGranted Parameter(s) Justification(s)forVariance* LengthofVariance(s) NumberofRenewalsRegion5 WisconsinLSP‐WhitewaterWI‐0049069‐04‐011/26/2010 MercurySubstantialandwidespreadadversesocialandeconomicimpacts.(NR106.145(1)(a))Thisfindingisbasedon,"AssessingtheEconomicImpactsoftheProposedOhioEPAWaterRulesontheOhioEconomy,"preparedin1997bytheOhioEnvironmentalProtectionAgency5years/lifeofpermitRegion5 WisconsinKielerSanitaryDistrict#111/27/2010ChlorideRegion5 WisconsinCityofChilton11/27/2010 ChlorideRegion5 WisconsinVillageofPotter11/27/2010 ChlorideRegion5 WisconsinMadisonMetropolitanSewarageDistrict11/27/2010 MercuryRegion5 WisconsinVillageofKewaskum11/27/2010 ChlorideRegion5 WisconsinCityofBrillion11/27/2010 ChlorideRegion5 WisconsinCityofNewHolstein11/27/2010 ChlorideRegion5 WisconsinVillageofDickeyville11/27/2010 ChlorideRegion5 WisconsinPellLakeSD11/27/2010 ChlorideRegion5 WisconsinWausauWaterWorksPOTWWI‐0025739‐0812/20/2010 MercurySubstantialandwidespreadadversesocialandeconomicimpacts.(NR106.145(1)(a))Thisfindingisbasedon,"AssessingtheEconomicImpactsoftheProposedOhioEPAWaterRulesontheOhioEconomy,"preparedin1997bytheOhioEnvironmentalProtectionAgencyRegion5WisconsinRibMountainMetropolitanSewageDistrictWI0035581‐0612/20/2010MercurySubstantialandwidespreadadversesocialandeconomicimpacts.(NR106.145(1)(a))Thisfindingisbasedon,"AssessingtheEconomicImpactsoftheProposedOhioEPAWaterRulesontheOhioEconomy,"preparedin1997bytheOhioEnvironmentalProtectionAgency4yearsand10months(lifeofthepermit)Region5WisconsinCelluTiossueCityForestLLCWI‐0003204‐081/15/2011 MercurySubstantialandwidespreadadversesocialandeconomicimpacts.(NR106.145(1)(a))Thisfindingisbasedon,"AssessingtheEconomicImpactsoftheProposedOhioEPAWaterRulesontheOhioEconomy,"preparedin1997bytheOhioEnvironmentalProtectionAgencyRegion5WisconsinCityofMarshfieldWI‐0021024‐07‐02/4/2011 Copper7AppendixA.VariancesbyStateRegion StateNameofFacilityRequiringVariancePermitNumberYearGranted Parameter(s) Justification(s)forVariance* LengthofVariance(s) NumberofRenewalsRegion5 OhioStatewideMercuryVarianceMultiplefacilities?4/1/2007 MercuryRegion6 LouisianaNA‐SaulsCanal9/19/2003 ChloridesRegion6 NewMexicoNone.Region6 OklahomaNone.Region6 ArkansasNone.Region6 TexasConocoPhillips010649/11/2006 SeleniumFacilityconductedastudytoevaluatewhethersite‐specificaquaticlifecriteriaareappropriateandwhatvalueswouldbeprotective.Studyresultsindicatethatsite‐specificcriteriamaynotbeappropriateandanyrequestforvarianceextensionwilllikelynotbeapproved.3yearsRegion6TexasTXUElectric009457/3/2001 CopperTheTXUElectricCompany(PermitNo.00945)developedsite‐specificaquaticlifecriteriaforcopper,whichwerelaterapprovedbyEPA3yearsRegion6 TexasLamarPowerProject041271/14/2003 AluminumFacilityinitiatedaWERstudyforaluminum,butsubsequentlydevelopedasite‐specificpartitioningcoefficientforaluminumfollowingTCEQpermittingprocedures(i.e.,norevisionstoWQSorrequestsforvarianceextensions).3yearsRegion6TexasSWEPCO018111/14/2000and11/6/2003AluminumSouthwesternElectricPowerCompanydevelopedasite‐specificaquaticlifecriterionforaluminum,whichwaslaterapprovedbyEPA.3years1Region6 TexasCityofMountPleasant105754/4/2006 CopperTheCityofMountPleasantdevelopedsite‐specificcriteriaforcopper,whichwerelaterapprovedbyEPA.3yearsRegion6TexasCityofKilgore102017/3/2001dissolvedoxygen AUAAwasconductedtoevaluatetheaquaticlifeuseanddissolvedoxygencriteria.UseandcriteriarevisionswerelaterapprovedbyEPA.3yearsRegion6 TexasHoneywellInternational,Inc.006706/24/2003 CopperHoneywelldevelopedsite‐specificcriteriaforcopper,whichwerelaterapprovedbyEPA.3yearsRegion6TexasInternationalPaper019021/14/2003 AluminumInternationalPaperdevelopedasite‐specificcriteriaforaluminumwhichwaslaterapprovedbyEPA3years8AppendixA.VariancesbyStateRegion StateNameofFacilityRequiringVariancePermitNumberYearGranted Parameter(s) Justification(s)forVariance* LengthofVariance(s) NumberofRenewalsRegion6 TexasBevilOaksMUD115516/17/2003and10/6/2006renewalDissolvedOxygen AUAAhasbeeninitiatedforPineIslandBayouandisestimatedtotaketwotothreeyearstocomplete.Thevarianceextensionwasrequestedandapprovedbecausesamplingwasdelayedduringseveralyearsduetohurricanesandotherstormevents3years1Region6TexasCityofKountze102036/17/2003DissolvedOxygen AUAAtoevaluatesite‐specificdissolvedoxygencriteriaforthiswaterbodywasconducted.Norevisionstousesorcriteriaweremade.3yearsRegion6 TexasCityofNederland104837/5/2000 DissolvedOxygen AUAAwasconductedtoevaluatesite‐specificdissolvedoxygencriteria,whichwerelaterapprovedbyEPA.expired11/11/02Region6TexasCityofCrockett101549/26/2001,3/24/2004,and10/16/2007DissolvedOxygenReceivingwaterassessmentsforthesewaterbodieshavedemonstratedthatbothTownBranchandHurricaneBayoucanonlysupportintermediateaquaticlifeuseswithcorrespondingdissolvedoxygencriteriaof4mg/l.Auseattainabilityanalysisisunderdevelopmentandsite‐specificstandardswillbeconsideredforadoptioninthenexttriennialrevision.3years2Region6 TexasTexasUtilitiesSteamElectric012511/14/2000 Aluminum,Copper TexasUtilitiesElectricCompanyisdevelopedsite‐specificcriteriaforcopper,whichwerelaterapprovedbyEPA.Aluminummayhavebeenaddressedwithapartitioningcoefficient.Facilityhassincegoneoffline.3yearsRegion6 TexasTXUElectric005552/7/2000 CopperTXUdevelopedsite‐specificcriteriaforcopper,whichwerelaterapprovedbyEPA.3years9AppendixA.VariancesbyStateRegion StateNameofFacilityRequiringVariancePermitNumberYearGranted Parameter(s) Justification(s)forVariance* LengthofVariance(s) NumberofRenewalsRegion6 TexasCityofNewark116269/26/2006 DissolvedOxygen TheTCEQrevieweddissolvedoxygendatafromotherbackwaterareasofEagleMountainReservoirthatresembletheDerrettCreekarmbutdonotreceivedomesticwastewaterdischarges.Thesedataindicatethatthecurrentdissolvedoxygencriterionof5.0mg/lisnotalwaysmet,eveninthoseareasthatdonothavemunicipalpoint‐sourceinputs.Astudytoevaluatesite‐specificdissolvedoxygencriteriafortheDerrettCreekarmofthereservoirwillbeconductedduringthethree‐yearvariance.3yearsRegion6TexasUpperTrinityRegionalWaterDistrict143231/24/2008CopperUTRWDdevelopedsite‐specificcriteriaforcopper,whichare"approvable"oncepublicparticipationprocessiscompleted.Region6TexasTrinityRiverAuthority134579/24/2007 DissolvedOxygenTCEQiscurrentlyconductingastatewidestudyondissolvedoxygenlevelsintransitionzonesofcreeksandreservoirs.EPAwillreviewanyrecommendedrevisionstotheaquaticlifeusesanddissolvedoxygencriteriauponsubmittalofthestudy.3yearsRegion6 TexasCityofGrapevine1048610/5/2007 DissolvedOxygen TCEQiscurrentlyconductingastatewidestudyondissolvedoxygenlevelsintransitionzonesofcreeksandreservoirs.Inaddition,theCityofGrapevinemayconductaseparatestudyofMoreheadCove.3yearsRegion6 TexasCityofWeatherford103806/19/2007 DissolvedOxygen AuseattainabilityanalysishasbeenconductedwhichindicatesthatanintermediateaquaticlifeuseisappropriateforTownCreek.TheintermediateaquaticlifeusewillbeincludedinTCEQ'snexttriennialrevision.3years10AppendixA.VariancesbyStateRegion StateNameofFacilityRequiringVariancePermitNumberYearGranted Parameter(s) Justification(s)forVariance* LengthofVariance(s) NumberofRenewalsRegion6 TexasCityofCorsicana104023/22/2005and7/8/2008DissolvedOxygen Initsrequestfortheoriginalvariance(2005),theCityconductedapreliminarywaterqualitystudyinbackwaterareasofsegment0836,includingPostOakCreek.ThedatacollectedindicatedthatbackwaterareasintheRichland‐ChambersReservoirmaynotsupportthedissolvedoxygencriterionof5.0mg/l.Thiswaterbodyisalsopartofanongoingstate‐widestudytorefinedissolvedoxygencriteriainthetransitionzonesofreservoirs.3years1Region6 TexasOxyVinylsL.P.015391/31/2007NickelOxyVinylsL.Pdevelopedsite‐specificcriteriafornickel,whichare"approvable"oncepublicparticipationprocessiscompleted(anticipatedspring2011).3yearsRegion6TexasRohm&Haas004589/26/2001CopperFacilitydevelopedsite‐specificcriteriaforcopper,whichwerelaterapprovedbyEPA.3yearsRegion6 TexasReliantEnergy010319/26/2001 CopperFacilitydevelopedsite‐specificcriteriaforcopper,whichwerelaterapprovedbyEPA.3yearsRegion6 TexasSanJacintoRiverAuthority125971/14/2003 CopperFacilitydevelopedsite‐specificcriteriaforcopper,whichwerelaterapprovedbyEPA.3yearsRegion6TexasRichfieldInvestmentCorp.136363/25/2004 DissolvedOxygenTCEQconductingUAAtoevaluateaquaticlifeuseanddissolvedoxygencriteria.3yearsRegion6 TexasFaulkeyGullyMUD118329/26/2001 DissolvedOxygen TCEQconductingUAAtoevaluateaquaticlifeuseanddissolvedoxygencriteria.3yearsRegion6 TexasHarrisCountyMUDs12209,12809,128343/6/2000 DissolvedOxygen AUAAwasconductedtoevaluatetheaquaticlifeuseanddissolvedoxygencriteria.UseandcriteriarevisionswerelaterapprovedbyEPA.3yearsRegion6TexasTex‐SunParks,L.C1218912/11/2000DissolvedOxygen AUAAwasconductedtoevaluatetheaquaticlifeuseanddissolvedoxygencriteria.UseandcriteriarevisionswerelaterapprovedbyEPA.3yearsRegion6TexasW.HarrisCountyMUDNo.15122239/26/2001 DissolvedOxygen AUAAwasconductedtoevaluatetheaquaticlifeuseanddissolvedoxygencriteria.UseandcriteriarevisionswerelaterapprovedbyEPA.3years11AppendixA.VariancesbyStateRegion StateNameofFacilityRequiringVariancePermitNumberYearGranted Parameter(s) Justification(s)forVariance* LengthofVariance(s) NumberofRenewalsRegion6 TexasMaydeCreekMUD119699/26/2001 DissolvedOxygen AUAAwasconductedtoevaluatetheaquaticlifeuseanddissolvedoxygencriteria.UseandcriteriarevisionswerelaterapprovedbyEPA.3yearsRegion6 TexasWestlake112849/26/2001 DissolvedOxygen AUAAwasconductedtoevaluatetheaquaticlifeuseanddissolvedoxygencriteria.UseandcriteriarevisionswerelaterapprovedbyEPA.3yearsRegion6TexasRollingCreekUtilityDistrict128419/26/2001 DissolvedOxygen AUAAwasconductedtoevaluatetheaquaticlifeuseanddissolvedoxygencriteria.UseandcriteriarevisionswerelaterapprovedbyEPA.3yearsRegion6 TexasTXDept.ofCriminalJustice138048/9/2007 DissolvedOxygen Useofsite‐specificflowsevaluatedandlaterapproved.(Variancealsoincludedin2004permit.).3years1Region6 TexasCityofClute1004410/28/2005 DissolvedOxygen TCEQisconductingastudytoevaluatewhetherornotaloweraquaticlifeuseanddissolvedoxygencriterionforFlagLakeDrainageCanalare‐appropriate.(Variancealsoincludedin2008permit).3years1Region6 TexasCityofGraham104871/27/2010 DissolvedOxygenAUAAisunderdevelopmenttoevaluateaquaticlifeuseanddissolvedoxygencriteria.3yearsRegion6TexasCityofCleburne100062/2/2007and7/10/2010Chlorides,Sulfates,TDSSite‐specificcriteriaweredevelopedandadoptedbyTCEQ.WQSrevisionshavebeensubmittedtoEPA.3years1Region6 TexasTXUElectric009542/7/2000 CopperFacilitydevelopedsite‐specificcriteriaforcopper,whichwerelaterapprovedbyEPA.3yearsRegion6TexasCityofCorpusChristi1040111/6/2002DissolvedOxygen AUAAwasconductedtoevaluatetheaquaticlifeuseanddissolvedoxygencriteria.UseandcriteriarevisionswerelaterapprovedbyEPA.3yearsRegion6 TexasCityofSanBenito104737/5/2000 DissolvedOxygen AUAAwasconductedtoevaluatetheaquaticlifeuseanddissolvedoxygencriteria.UseandcriteriarevisionswerelaterapprovedbyEPA.3yearsRegion6TexasNaturalGasOdorizing,Inc.013856/2/2006ZincNaturalGasOdorizing,Inc.isconductingastudyforsite‐specificaquaticlifecriteria.3yearsRegion6 TexasCityofAlvin100059/21/2004 DissolvedOxygen AUAAwasconductedtoevaluatetheaquaticlifeuseanddissolvedoxygencriteria.UseandcriteriarevisionswerelaterapprovedbyEPA.3years12AppendixA.VariancesbyStateRegion StateNameofFacilityRequiringVariancePermitNumberYearGranted Parameter(s) Justification(s)forVariance* LengthofVariance(s) NumberofRenewalsRegion6 TexasMcAllen106337/3/2001 DissolvedOxygen AUAAwasconductedtoevaluatetheaquaticlifeuseanddissolvedoxygencriteria.UseandcriteriarevisionswerelaterapprovedbyEPA.3yearsRegion7 IowaNone.Region7 KansasNone.Region7 MissouriNone.Region7 NebraskaNone.Region8 ColoradoNone.Region8 UtahNone.Region8 MontanaNone.Region8 WyomingNone.Region8 NorthDakotaNone.Region8 SouthDakotaNone.Region9 ArizonaCentralandCamelbackWQARFRegistrySiteAZ0024848Approved2/12/2008,Permitissued2/2/08 BoronNaturallyoccurringboronlevels.ADEQcontendsthattheinstallationandoperationofeachoftheavailabledischargetechnologiestoachievecompliancewiththewaterqualitystandardwouldresultinsubstantialeconomicimpacttoADEQ'sWQARFprogram.LengthofthePermit(5years);reviewedevery3yearsaspartofArizona'striennialreviewRegion9ArizonaCanyonCreekFishHatcheryAZ0021229Preliminaryapproval:6/03/2010;Finalapprovalnotyetissued. TotalNandTotalPHumancausedconditionsorsourcesofpollutionpreventtheattainmentoftheuseandcannotberemediedorwouldcausemoreenvironmentaldamagetocorrectthantoleaveinplace.LengthofthePermit(5years);reviewedevery3yearsaspartofArizona'striennialreviewRegion9ArizonaCityofShowLowUnderreview;preliminaryapprovalnotyetissued.SeleniumEconomicVarianceLengthofthePermit(5years);reviewedevery3yearsaspartofArizona'striennialreviewRegion9 ArizonaNorthGilaSanitationDistrictAZ0020117Underreview;preliminaryapprovalnotyetissued.TotalNandTotalP EconomicVarianceLengthofthePermit(5years);reviewedevery3yearsaspartofArizona'striennialreviewRegion9 ArizonaPinetopLakesideAZ0025437VarianceapprovedDecember2006,permitissuedJanuary2007Phosphorus(limit0.16mg/L)DischargetoconstructedandbermedwetlandsLengthofthePermit(5years);reviewedevery3yearsaspartofArizona'striennialreview13AppendixA.VariancesbyStateRegion StateNameofFacilityRequiringVariancePermitNumberYearGranted Parameter(s) Justification(s)forVariance* LengthofVariance(s) NumberofRenewalsRegion9 ArizonaLakeRooseveltAZ23787Varianceapproved11/19/2007;Permitissued10/18/2007TotalN,TotalP:VariancefromTotalN(0.3mg/L)andTotalP(0.03mg/L)limitsEconomicVarianceLengthofthePermit(5years);reviewedevery3yearsaspartofArizona'striennialreviewRegion9 ArizonaFlagstaff Meadows6/6/2008 N&PEconomicVarianceLengthofthePermit(5years);reviewedevery3yearsaspartofArizona'striennialreviewRegion9 ArizonaHoustonCreekLandingWWTPAZ0025305Approved5/28/2008,varianceissued6/2/2008 TotalNandTotalP EconomicVarianceLengthofthePermit(5years);reviewedevery3yearsaspartofArizona'striennialreviewRegion9ArizonaCottonwoodApproved4/22/2009 N&PEconomicVarianceLengthofthePermit(5years);reviewedevery3yearsaspartofArizona'striennialreviewRegion9 ArizonaJeromeAZ0021804Preliminaryapproval:7/27/2007;permitissued10/23/2007 TotalNandTotalPLengthofthePermit(5years);reviewedevery3yearsaspartofArizona'striennialreviewRegion9 CaliforniaNone.Region9 HawaiiNone.Region9NevadaNone.Region10 OregonNone.Region10 WashingtonNone.Region10IdahoCityofSmeltervilleID‐002011‐72004 Cd,Zn,Pbhighlevelsofmetalsenteringtreatmentplantsthroughinflowandinfiltration,utilitycannotmeetdischargelimits,negativewidespreadsocioeconomicimpact8/1/2004‐8/1/2009;renewedexpires7/30/20141Region10 IdahoPageWWTPID‐002130‐02004 Cd,Zn,Pbhighlevelsofmetalsenteringtreatmentplantsthroughinflowandinfiltration,utilitycannotmeetdischargelimits,negativewidespreadsocioeconomicimpact8/1/2004‐8/1/2009;renewedexpires7/30/20141Region10 IdahoMullenWWTPID‐002129‐62004Cd,Znhighlevelsofmetalsenteringtreatmentplantsthroughinflowandinfiltration,utilitycannotmeetdischargelimits,negativewidespreadsocioeconomicimpact8/1/2004‐8/1/2009;renewedexpires7/30/20141Region10AlaskaNone.*NoteforRegion6:Justificationinapplicationforvariancewas:(1)preliminaryroundoftoxicitytestingforWERstudyifrequestappliedtoaquaticlifecriteriaformetals;(2)documentationoffieldobservationsifrequestappliedtodissolvedoxygencriteria;or(3)otherinformationforrequestsonmineralsorselenium.14

# 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

dn r .wi. g ov

Applicant Information

Contact Name

Street Address

Cit y State ZIP Code

Tele p hone Number FAX Number ( include area code )

E-mail Address Street Address

Cit y State ZIP Code Com p an y Name

WPDES Permit No.

Receivin g Water A vera g e Dischar g e 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 y es, Name of Facilit y

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 b e 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 = % Facilit y 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 limitin g the discharge of chloride from significant industrial users?

d) Does your community have centralized softening of source water through a water utility? No Yes For Municipalities Only

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?

No Yes

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 Submittin g Re q uest ( Individual must be an Authorized Re p resentative )

Si g nature of Official Date Si g ned Title Certification

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

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 sour ce 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 WisconsinState of Wisconsin

Department of Natural Resources

PO Box 7921, Madison WI 53707-7921

dn r .wi. g ov

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 informati on may result in denial of your application. Personal information collec ted

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

Wis. Stats.] 

### Mercur y Variance Application

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

Individual Submittin g Re q uest ( Individual must be an Authorized Re p resentative ) Title Based on the information provided, I believe that attainment of the applicable water quality standards for mercury may cause substantial and widespr ead

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 condit ions

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

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

Date Si g ned Si g nature of Official Applicant Information

What are the primary sources of mercury to your facility?

What feasible actions (e.g. pollution prevention or installation of treat ment) 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. Cit y State ZIP Code Facilit y Name

Tele p hone Number FAX Number ( include area code )

Receivin g Water A vera g e Dischar g e Flow Rate Source of Water Su pp l y Contact Name Com p an y Name

Street Address

Cit y State ZIP Code E-mail Address

Alternatives Street Address WPDES Permit No.

Capital $

$ A nnual OperationalMercuryVariance ApplicationForm 3400-192 (R 4/06) Page 2 of 2Mercury Data to Support Variance Request or Determination of Reasonable PotentialMake additional copies if necessary.*Describe sample type as composite or grab for all samples.SampleDateLaboratory NameLaboratory Results of Testing (express all results in ng/L)Limit of Quantitation(LOQ)Limit of Detection(LOD)Field BankEffluent toSurface WaterIntake (if water supplyis surface water)Treatment SystemInfluent (if tested)SampleType*

# Appendix C

Examples: Memorandums of Agreement (MOA s )

# Arizona MOAUNITED 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 ju stification 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 MOAIII. 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 an y variance granted pursuant to 6 NYCRR ' 702.17 is

consistent with and as protective of water qua lity 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 appli cation in accordance with 6 NYCRR 621, which

includes a request for a variance, NYSDEC sha ll 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 prot ective as a variance issu ed 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 comment s 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 cont ained 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, Procedur e 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 Environmenta l Benefit Permit Strategy (EBPS), NYSDEC will

give priority review for any permit c ontaining a variance granted under 6 NYCRR

Section 702.17 to assess whether there is ne w 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.)7SUBMITTAL CHECKLISTItem DescriptionDate Sent byState(mm/dd/yyyy)Date EPA-R7Received(mm/dd/yyyy)Complete?(Y/N)If not complete,date notified(mm/dd/yyyy)In not complete,date resubmitted(mm/dd/yyyy)AdditionalCommentsaSubmittal letterb.i131.10(g) factorb.iiDesignated use andsupporting criteriab.iiiAdvanced treatment andalternatives consideredb.ivReasonable and necessarytime periodb.vInterim milestones, ifapplicableb.viTriennial review statementc.iVariance applicationc.iiPermit cover pagec.iiiEffluent limitationsc.ivVariance language inpermit conditionsd.iNotice of draft permitd.iiRelevant state approvaldocumentsd.iiiPublic notice affidavitd.ivComments and responsesd.vFulfilled publicparticipatione.iPurpose/intente.iiUses and criteria rationalee.iiiMonitoring and assessmenttracking8EPA INTERNAL CHECKLISTThe EPA Water Quality Standards Coordinator scans copies of all the information and place it in the Variance folder on theshared network drive for the Water, Wetlands, and Pesticides Division, and notifies the NPDES Permits Coordinators (Region andstate) that a variance package has been received. The Water Quality Standards Coordinator notes submittal dates on the SubmittalChecklist (see attached) and maintains a copy in the folder on the shared network drive. (H:\WQMB\Water QualityStandards\Variances\[State Name])DescriptionDate Completed(mm/dd/yyyy)Additional CommentsSubmittal copied to H: driveSubmittal sent to USFWSRegional and state Permits Coordinators notifiedReview comments received from Permits CoordinatorsBiological evaluations submitted to USFWSResponse received from USFWSConcurrence? Y / NResponse to state and reviewed by Permits CoordinatorsResponse 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 IdahoUNITED 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) of the 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 of Page, Mullan and Smelterville. In accordance with

these authorities, EPA approves Idaho's granting of renewed 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 of the variance 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 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 of the 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 staff were 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 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

information to include. In addition, EPA commented that although the SFCDRSD and Smelterville



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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 of widespread 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 CW A requires States and authorized Tribes to submit new or revised

WQS to EPA for review. Under Section 303( c) of the CW A 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 CW A 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



# o

l.a.i. and ii, were added in 2002 and approved by EPA on July 7, 2006. Subsections 0 l.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 Pepervariance 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 of the

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 (IDAP A

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 ID EQ' 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 IDAP A 58.01.02.260. This package included the following:

• Cover letter

• Copy of the public notice bulletin

• Individual Variances for Page, Mullan and Smelterville

• IDEQ's Variance Justification document,

• Idaho Attorney General Certification Letter

• Copies of the 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 of the 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 of these

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 of these 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 of EPA's review are discussed in the enclosed document titled "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." It is clear from our review IDEQ performed a thorough analysis and developed appropriate

3 

# o

PltnlfKl on RBCycled Paper

### 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 of these 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 

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P11nled 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) of the 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 of the withdrawal of the 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 of the 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 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 of the 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 of EPA'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 if the 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 of the

standard; or

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

attainment of the 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 of hydrologic 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 of the 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 (IDAP A '

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 0 1.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) of the 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 W QS to ensure

the adopted water quality standards are consistent with the CW A 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).

EP A guidance on variances provides that EP A 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 of the 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 of metals 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 of two 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 of the 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 of both 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 of metals

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.

EP A environmental engineer, Ben Cope, reviewed the estimated metals removal

treatment costs and relevant portions of the 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, EP A 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 if the 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.

EP A 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 if the 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 of the 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.

EP A 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 if the 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 of meeting 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 of meeting 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 of the

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 of the discharges on the receiving stream water quality is very small and the

marginal impact of the 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 of Page, 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

of the 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

of the 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 of the facility's wastewater discharge. The

derivation of these 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 of metals 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 of discharge 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 of Metals 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 IT ED STA TES E NV I RON ME N TA L PR OTECT I O N AG E N CY

• '0- 

### f;' 

## ft 

# r,. R EG I O N I 

# i 9 O N E C O NGRE SS S TRE ET S U IT E 110 0

7,

, B OST ON

, MA S SA C HU SETT S 0 21 14-2 023

### ~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 Alew ife BrookIMystic Rive r CSO Variances



### Dcar Commissioner Burt :

This l etter responds to your letter of Ju ly 8, 2008, whereby the Massachusetts Department of

Environmental Protection (MassDEP) submitted adop ted combined sewer overflow (CSO)



### varia nces to t he Envi ronmental Prot ection Ag ency (EP A) for rev iew. The variances are fo r C SO

discharges by the Massachusetts Water Resour ces Authority (MWRA)

, the Ci ty of Somerville,

and the City of Cambridge to Alewife BrooklUpper Mystic River and for CSO discharges by the

MWRA, 

### the City 

### of Cambridge, and Boston W ater & 

### Sewer Commission to the Lower Charles

R

iver /Charles Basin

. MassDEP issued the variances for terms of three 

### years on August 30

, 2007

with effective dates of September I

, 2007 and Octobe r I

, 2007 for the Alewife BrooklUpper

Mysti c Rive r and the Lo wer Charles River Basin, respectively

. On Ju ly 1 5, 2008

, MassDEP's



### Genera l Couns el ce rtifi ed t he varian ces a s ha ving been du ly adop ted pursuant t o Commonw ea lth

law. By today's 

### l etter, EPA approves these variances.

EPA reviews variances under Section 303 of Clean 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 wate r q uality standard

. 6 3 FR 36742, 36759 (July 7

, 

### 1998). EPA generally will only approve a sta te's variance where there is a demonstration that

one of the 

### fa ctors that would jus tify 

### r emoval ofa designa ted use or e st ab lishment ofa

subcatego ry of use has b een satisfied, specifically the factors pub lished at 40 C .F.R

. 131 .10(g).



### Id. I n addition, a variance typ ically applies to ind ividual dis chargers and for a specific

p ollutant(s ) and does not otherwise modify the applicable water quality standards

. [d

. Under

Section 303(c)(I) of the CWA and 40 C .F .R

. 131.20(a), a variance should be rev iewed, at a



### mi nimum

, every three years , and extensio ns are warranted on ly where the conditions for granting

the variance still apply

. ld

. Upon expiration of the 

### variance

, the underlying numeri cal cri teria

have full

, regu latory effect

. Id.Consistent w i th these considera tions an d based o n revi ew of the materi als submitted . pursuant to S ection 303(c)(3) of the Clean Wa ter A ct (CW A) and 4 0 C.F .R. 131. 21, (hereby a pprove the v ariances for th e C ity of S omerville and th e C ity o f Cambri dge to A lewife BrookJU p per Mys tic Ri ver and the varian ces f or the C ity of C ambridge and B oston W ater & S ewer Co mmission to

t he Lowe r Charles Rive r /C harles B asin, and t he vari ances f or t he M WRA . On M arch 14 ,2006, EP A a pproved v ariances M assDEP submitted to EPA o n Ma rch 13 ,2 006,

fo r th e M WRA's C SO d ischarges t o t he A lewife Bro oklUpper Myst ic R iver and th e Lo wer Charles River B asin . EPA 's ac tion ap proved tri ennial r eissuance of th e va riances t hrough t he yea r 2020, s ubject t o con ditions sp ecified i n EPA's Mar ch 14 , 2006 l etter. Wh ile E PA 's 200 6 appro va l action was i ntended to a pprov e MassDE P's anticipated rc issuance of the MWRA variances every thr ee years through 2 0 20, EPA by t oday' s actio n has decided to take a separat e approval action on M assDEP 's 2 007 rcis suance of the variances for MWRA . EPA would an ticipate taking future actions o n MassDEP 's reissuance o f t he variances for MWRA . In add ition to d etermining th at the variance s s atisfy the re levant CWA and r e g ulatory r equirement s. EPA a lso has co nfirmed that MassDE P 's r eissuance of th e varianc es for MWRA o n A ugust 3 0 , 2 007 . was co nsistent with the c onditions set forth in E PA

' s 2006 ap proval. I n ac cordance w ith t he v ariances , C SO di scharges from perm itted out falls a re n ot req uired t o m cct effl uent li mits b ased o n th e Massac husetts C lass B b acteria c riteria duri ng events when fl ow i n th e co llection system ex ceeds the c ollection syste m c onveyance c apacity as a r esult of p rec ipi tation o r snow m elt. The b acteria variances requ ire co ntinued i mplementation ofCSO long t erm control measures consis tent wit h MWRA 's 1997 Fina l C SO Facilities Plan. as amended. for Alewife Brook /U pper Mys tic River and th e Lowe r Charle s River Basin (the Long

Term C ontrol Plan ) and d o not in an y way delay the pace of implementation that w ould occur with out tbe v ariances . Ra ther, th e projects t hat are to be i mplemented during t he term of these vari ances w ilt improve wa ter quali ty in as sociated waters . Numerous a nalyses ha ve be en c ompleted s ince the late 1980s eva luating alterna tives for e liminating c ombined o verflows from the coll ection sy stem t ributary to th e De er Island Tr eatment P lant. Among thes e ar e t he 1997 C SO Faciliti es P lan a nd En vironmental Im pact Re port ; the 200 1 No tice of Project Chan ge for the Long Term Co ntrol Plan fo r Ale w if e B rook ; th e Jul y 1,2 003 MWRA F inal V ariance Re port fo r the A lew if e Bro ok !U ppe r Myst ic Ri ver; and

t he J anuary 2004 Co ttage Farm C SO Fac ility A ssessment Report

. B ased on th ese analyses , Mass DEP determine d that pro ceeding at this time with c ontrols necessary for full attainment of the applicabl e Class B bacteria criteria and associated recreatio nal use would result in sub stantial and wid espread economic and social impact as those terms are used in 40 C .F.R. 131.1 0 (g)(6 ).

EPA's independ ent analysis of thes e impacts co nfirms MassDEP's dem o nstration re garding the r egulatory cri teria. E PA agree s th at it is no t feas i ble t o fu lly attain t he Class B bac teria criteria an d associat ed r ecreational u se w ithin the thr ee ye ar term o f the v ariances. T herefore, E PA approves these MassDEP C SO v ariances fo r t he MWRA , t he C ity of S omerville, the Ci ty of C ambridge, an d Bo ston Wat er & Sew er Co mmission, whi ch r evise th e w ater q uality crit eria for b acteria by r endering th em ina pplicable t o t he i dentified p ermittees fo r eso disc harges int o t he i dentified receiving wate rs d uring s pecified wet w eather eve nts . 2

### We l ook forward to cont inued cooperatio n with Massac huset ts in the deve lopmen t, r eview, and

app rova l of wate r qua lity s tanda rds p ursuant t o o ur r esponsibilities un der th e Cl ean W ater Ac t.

I f y ou hav e an y quest ions, ple ase c ontact B ill Bec kwith (6 17- 918-1 544) o r Michael Wagner

(617 -9 18 -17 35).

S incerel

# ~L--

tep hen S

. P e rkins, Di recto r

Office of E cosys t em P rotection

cc : Glenn Haas, MassDEP

Marcia Shennan, MassDEP

V ernon L ang, U SF &WS

Mary Co lligan, NOAAF

Pe ter Col ossi, NOAAF

Dan ielle Fu ligni, EPA SSB

3

# Example EPA Approval Letter for Dissolved Oxygen

Standards for Salt Creek in TexasUNITED 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 WisconsinUNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 5

77 WEST JACKSON BOULEVARD

CHICAGO

, IL 60604 -3590



# APR 

# 072010

REPLY TO THE A TIENTION 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 of Cleveland's Wastewater Treatment

Facility (WTF), 

### WPDES Permit Number WI-0030848-08, to 

# u.s. Environmental Protection

Agency for review under section 303(c) of the 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) of the 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) of the 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 of this 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 CW A to modify its action based on other

endpoints, such as impacts to federally-listed threatened or endangered species.

Recycled/Recyclable. Pr inted with Vegetable O il Base d In ks on 100 % Recycled Paper ( 50% P ostconsumer)

### If you or your staff has any questions regarding this approval, please contact Francine

Norling of my staff at (312) 886-0271.

Sincerely,

# \~C-br

# KI 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 of Cleveland Water and Sewer Utility Rates, dated March 26, 2010.

• Economic Analysis Spreadsheet: Village of Cleveland'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 of Cleveland'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 of this 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 of the proposed variance, the limit in the permit is set equal to 4.5 ug/L as a daily

maximum. Pursuant to NR 106 of the Wisconsin Administrative Code, the permit limit equals

### the upper 99 th 

### percentile of the 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 of the 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 of the 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 of Cleveland 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 of the 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) of the 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 of Cleveland'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 of CWA Sections 101(a)(2) and 303(c)(2) are implemented through federal

regulations contained in 40 CFR 131; WQS requirements of CW A Section 118, specific to

waters of the 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) of the CWA specifies that designated uses "provide for the protection and

propagation of fish, shellfish, and wildlife and provide for recreation in and on the water."

Section 303(c)(2) of the CW A requires that standards shall protect the public health and shall

take into consideration their use and value for public water supplies, propagation of fish 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 of the proposed ammonia and pH

monitoring requirements. WDNR did not receive any other comments from the public.

EPA did not review the draft 

### version of this 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 of section 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 of this 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.



### 4Re2UIatorv Reouirement: VilIae:e of Cleveland'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 of Cleveland 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 of Cleveland 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 CW A 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 CW A ( 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 of the permit term, March 31,2015.

(40 CFR 132, Appendix F, Procedure

2.8)

Variance is based on one of the 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 of the substantial public

health and safety benefits of providing wastewater treatment, and

the limited impact of the elevated effluent concentration.



### 5

### ReeulatorY Requirement: Villaee of 

### Cleveland'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 of Cleveland'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 CW A 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% of the 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% of the MHI (EPA

Economic Analysis Spreadsheet).

• EPA considers costs that exceed 2% of the 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 of the 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 of this 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 CW A 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 WisconsinSTATE 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 produ ces 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 li sted in the fact sheet, whic h is available by contacting

the permit drafter or basin engineer. Significant change s proposed include the addition of an effluent limit for

mercury and increased dioxin monitoring requirem ents for wastewater tr eatment 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 pr otect 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 alterna tive 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 sta ndard used to derive the WQBEL, as provided for under

s. NR 106.145(6), Wis. Adm. Code. The designated use of the receiving wate r 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 noti ce 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 propo sed 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 recei ved from five or more person s 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 pers on(s) requesting the hearing; the interest in the proposed

permit of the person(s) requesting the hearing; the reasons fo r 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 of fice location, if necessary.

Information on this permit action may also be obtained by calling the permit drafter at (608) 267-7640 or by writingto the Department. Reasonable costs (usu ally 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 alterna tive 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 WisconsinSTATE 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 th e 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 noncon tact 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 fo r this existing discharge. The pe rmit 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 ch anges 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 ch anged 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 subm itted 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 w as related to a high level of mercury in the mill’s

intake water.

The Department did not change the public noticed perm it in response to the permitt ee’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. Ad m. Code, persons desiring further adjudicative review

of this final determination may requ est 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 thedate the permit was signed (see permit signature date a bove). Further information regarding the conduct and

nature of public adjudicatory hearings may be obtaine d by contacting the Department of Natural Resources,

Bureau of Watershed Management, WP DES Permits, Box 7921, Madison, Wi sconsin 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) 2 67-7640 or mike.hammers@wisconsin.gov or by writing to the Department.

Reasonable costs (usually 20 cents per page) will be char ged for copies of information in the file other than

the public notice and fact sheet. Pursuant to the Am ericans 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, 1977.7SUBMITTAL CHECKLISTItem DescriptionDate Sent byState(mm/dd/yyyy)Date EPA-R7Received(mm/dd/yyyy)Complete?(Y/N)If not complete,date notified(mm/dd/yyyy)In not complete,date resubmitted(mm/dd/yyyy)AdditionalCommentsaSubmittal letterb.i131.10(g) factorb.iiDesignated use andsupporting criteriab.iiiAdvanced treatment andalternatives consideredb.ivReasonable and necessarytime periodb.vInterim milestones, ifapplicableb.viTriennial review statementc.iVariance applicationc.iiPermit cover pagec.iiiEffluent limitationsc.ivVariance language inpermit conditionsd.iNotice of draft permitd.iiRelevant state approvaldocumentsd.iiiPublic notice affidavitd.ivComments and responsesd.vFulfilled publicparticipatione.iPurpose/intente.iiUses and criteria rationalee.iiiMonitoring and assessmenttracking8EPA INTERNAL CHECKLISTThe EPA Water Quality Standards Coordinator scans copies of all the information and place it in the Variance folder on theshared network drive for the Water, Wetlands, and Pesticides Division, and notifies the NPDES Permits Coordinators (Region andstate) that a variance package has been received. The Water Quality Standards Coordinator notes submittal dates on the SubmittalChecklist (see attached) and maintains a copy in the folder on the shared network drive. (H:\WQMB\Water QualityStandards\Variances\[State Name])DescriptionDate Completed(mm/dd/yyyy)Additional CommentsSubmittal copied to H: driveSubmittal sent to USFWSRegional and state Permits Coordinators notifiedReview comments received from Permits CoordinatorsBiological evaluations submitted to USFWSResponse received from USFWSConcurrence? Y / NResponse to state and reviewed by Permits CoordinatorsResponse to state sent9EPA Contacts:ManagementPradip Dalal, Chief, Wastewater & Infrastructure Management BranchJohn DeLashmit, Chief, Water Quality Management BranchRegional CoordinatorAnn Lavaty, Regional Water Quality Standards (WQS) CoordinatorState CoordinatorsIowaJohn Reyna, WQS CoordinatorJohn Dunn, NPDES Permits CoordinatorKansasJay Hua, WQS CoordinatorJodi Bruno, NPDES Permits CoordinatorMissouriRebecca Landewe, WQS CoordinatorMark Matthews, NPDES Permits CoordinatorNebraskaKeith Hayden, WQS CoordinatorKimberly Hill, NPDES Permits Coordinator

# Fact Sheet: Colorado Temporary Modifications

## Fact Sheet: Colorado Temporary Modifications

Updated December 2010 to Describe Latest Revisions to

Colorad o’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.

Refer r ed to as the “underlying standard.”

• 

### A temporary (less stringent) narrative or numeric standard is also adopted; normally the

tempor ary 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 iss ue. 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

repres entative 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 . Co v ers 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

natura l 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

cont r ols 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

proble m; and

4) 

### Adequate supporting information is submitted, including a justification for the interim

narrat ive 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-S pecific Examples

• 

### Total Ammonia – McElmo Creek, La Plata River Segment 7a, Aquatic life Warm Class 1,

Regulat ion #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, Regul a tion #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, Aqua tic 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 50 th 

### percentile. Temporary standard = “existing

qualit y.” Expires 5/31/2011.

• 

### Dissolved Selenium – Toll Gate Creek, Upper South Platte River Segment 16h, Aquatic Life

Warm C l ass 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

. Curren t 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. T y pe 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 disc ussion of application are intended to be

illustrative not definitive. It is not necessarily comprehensive.

Factor 1 – Naturally occurring pollutan t concentrations prevent the attainment of the use.

Potential Components of Demonstration : water quality assessment for all relevant

parameters, biological assessment (as an indica tor of water quality), appropriate reference

condition for comparison (if available), land usage/watershed characteristics,

characterization of point a nd non-point source pollutant sources upstream of water body,

characterization of natural s ources, water quality modeli ng (as necessary to confirm

effects from natural pollu tant sources), assessment of possible groundwater

contamination from human activities as the source of surface wate r pollutant levels,

stream bank stability (including upstream stabilit y 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 cons iderations for factor 1 and factor 5). A

“natural condition” is a condition without hum an-caused changes. Because it is difficult

(if not impossible) to find a completely “nat ural” 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 ap proximation of the natural condition. Waters

where activities such as urbanization, agri cultural practices, hydr ologic 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 th e 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 wate r table (to distinguish

ephemeral from intermittent if necessary), bi ological assessment (as necessary to confirm

flow or water level limitation if physical evid ence is unclear), recr eational use safety and

access, potential use by children.

Factor 2 is most commonly appl ied 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 lo w flow conditions that are

associated with a depth that is not conduc ive to swimming predominate. Although there

is no formal guidance on what depth preclud es recreation, many states have developed

protocols that have led to acceptable use refinements (e.g., Colorado, Oklahoma,

Kansas). More recently, this factor has b een considered relevant for situations where

high flows make it unsafe for recreation under ce rtain 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 discha rger creates sufficient depth for recreation

in a stream that would ot herwise be too shallow.

Factor 3 – Human caused conditions or sources of pollution preven t the attainment of the

use and cannot be remedied or would cause mo re 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), a ppropriate reference condition for comparison (if available),

land usage/watershed characteristics, charac terization of human cau sed condition and its

relationship to water quality and/or the us e 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 waters hed 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 de signated use expectations. App lication of this factor is

very closely tied to the partic ular aspects of a given situa tion and not easily generalized.

A good example is removal of contaminated se diment from a harbor that would cause

more damage by disruption than the da mage caused by leaving it in place.

Factor 4 – Dams, diversions, or other types of hydrologic modificat ions 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 indica tor of water quality), appropriate reference

condition for comparison (if available), land usage/watershed characteristics,

characterization of hydrologic m odification and its relationshi p to water quality and/or

the use in question, identificat ion of currently available re storation and/or operation

methods and assessment of their potential effica cy 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 th is 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 situ ation 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, riffl es, and the like, unrelated to

water quality, preclude a ttainment of aquatic life protection uses.

Potential Components of Demonstration : physical habitat charact erization of the water

body, natural hydrologic patterns, sediment gr ain size, bathymetry, biological assessment

(as necessary to confirm physical habitat limitation if physical evidence is unclear).

Factor 5 is often cited in conj unction with factor 1 and factor 2 for situations where, for

example, natural physical conditions contribut e to naturally low di ssolved oxygen levels.

This factor would also be relevant for s ituations where the natural substrate is not

conducive to certain aquatic life uses (e.g., wh ere a high “percent fines” in the sediment

and lack of gravel preclude salmonid spawni ng). 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 southeas tern stream, it was the combination of the

effects of urbanization and na turally sluggish hydrology that made attainment of a use

infeasible.

Note: The phrase “unrelated to water qua lity” in Factor 5 doe s not preclude an

examination of water quality. This is part icularly important when evaluating a waterbody

below a WWTP discharge 1 

### . A demonstration that th e downstream conditions are natural

may require a quantitative examination of th e water quality in th e waterbody above and

below the WWTP to determine the effects of the discharge on the downstream condition.

It is possible that the discharged WWTP e ffluent could directly impact the available

habitat and aquatic life through the exposure of susp ended solids, biological oxygen

demanding substances, ammonia and other pollu tants toxic to aquatic life which could

limit the attainability of the use.

1 A task of the UAA is to identify receiving water bodi es, 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-l imited 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-bas ed 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 re quired by sections 301(b) and 306 of the

Act would result in substantial and wi despread economic and social impact

Potential Components of Demonstration : water quality assessment for all relevant

parameters, biological assessment (as an indi cator of water quality), identification of

currently available control technologies a nd 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 entitie s, opportunity costs,

evaluation of equity and di stribution, environmental jus tice, identific ation of the

community and characterizati on of its financial health.

Factor 6 has primarily been applied to singl e 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.