Ohio Administrative Code › Title 901:10 - Livestock Environmental Permitting › Chapter 901:10-3 - NPDES Permits › Section 901:10-3-08 - Variances

Current through all regulations passed and filed through July 1, 2024
(A) A variance may
			 be requested in accordance with section 301 or section 302 of the Federal Water
			 Pollution Control Act. A request for a variance will be decided upon by the
			 director, but the director's decision shall not be incorporated into any term
			 or condition of a NPDES permit until the United States environmental protection
			 agency regional administrator grants or denies the request for a variance or,
			 in the case of variances under paragraph (B)(4) or (B)(5) of this rule, the
			 administrator grants or denies the request for a variance.
(B) The regional administrator may deny,
			 forward or submit to the United States environmental protection agency office
			 director for water enforcement and permits a recommendation for approval for a
			 request for a variance listed in paragraph (B) of this rule that has been
			 forwarded by the director:
(1) Extensions
			 based on delay in completion of a publicly owned treatment works provided that
			 the extension meets the requirements of section 301(i) of the act;
(2) Extensions based on the use of innovative
			 technology where effluent reduction will be significantly reduced with
			 significantly reduced cost. The variances may provide an extended two-year
			 period to comply provided that the extension meets the requirements of section
			 301(k) of the act;
(3) A variance
			 based on the economic capability of the applicant provided that the variance
			 shall meet the requirements of section 301(c) of the act. The owner or operator
			 must show progress in reductions with the maximum use of technology while
			 utilizing economic capability;
(4)
			 A variance based on the presence of "fundamentally different factors" or "FDF"
			 that meets the requirements of section 301(n) of the act. A FDF variance is not
			 timely unless filed when effluent limits are to be modified in a rulemaking
			 procedure. A FDF variance shall be "no less stringent a limit than justified by
			 fundamental differences" while also demonstrating that the existing limit will
			 cause adverse affect; or
(5) A
			 variance that meets the requirements of section 301(g) of the act for
			 nonconventional pollutants that include ammonia, chlorine, color, iron, and
			 total phenols.
(6) A variance
			 based on water quality related effluent limitations under section 302(b) of the
			 act applies only to the owner or operator requesting the variance and only to
			 the pollutant or pollutants specified in the variance. A variance does not
			 affect or require corresponding changes to the water quality standard for the
			 waterbody as a whole.
(a) Eligibility. The
			 owner or operator is not eligible for a variance under this paragraph if the
			 following apply:
(i) The owner or operator is
			 a new discharger or the owner or operator of a facility that commenced a
			 discharge after March 23, 1997.
(ii) If the variance would likely jeopardize
			 the continued existence of an endangered or threatened species listed under
			 section four of the Endangered Species Act or result in the destruction or
			 adverse modification of such species' critical habitat.
(iii) If standards will be attained by
			 implementing effluent limits required under sections 301 (b) and 306 of the act
			 and by the owner or operator implementing cost-effective and reasonable best
			 management practices for nonpoint source control.
(b) Timeframe for variances. A water quality
			 based variance issued under paragraph (B)(6) of this rule shall not exceed five
			 years or the term of the NPDES permit whichever is less. A water quality based
			 variance shall be reviewed and modified if necessary as part of each water
			 quality standards review pursuant to section 303(c) of the act.
(c) Conditions to grant a variance. A
			 variance may be granted if:
(i) The owner or
			 operator demonstrates to the director that attaining the water quality standard
			 is not feasible because:
(a) Naturally
			 occurring pollutant concentrations prevent the attainment of the water quality
			 standard;
(b) Natural, ephemeral,
			 intermittent or low flow conditions or water levels prevent the attainment of
			 the water quality standard, unless these conditions may be compensated for by
			 the discharge of a sufficient volume of effluent to enable the water quality
			 standard to be met without violating water conservation requirements;
(c) Human-caused conditions or
			 sources of pollution prevent the attainment of the water quality standard and
			 cannot be remedied, or would cause more environmental damage to correct than to
			 leave in place;
(d) Dams,
			 diversions or other types of hydrologic modifications preclude the attainment
			 of the water quality standard, and it is not feasible to restore the waterbody
			 to its original condition or to operate such modification in a way that would
			 result in the attainment of the water quality standard;
(e) Physical condition related to the natural
			 features of the waterbody, such as the lack of a proper substrate cover, flow,
			 depth, pools, riffles, and the like, unrelated to chemical water quality,
			 preclude attainment of the water quality standard; or
(f) 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.
(ii) In addition to the requirements of
			 paragraph (B)(6)(c)(i) of this rule the owner or operator shall also:
(a) Show that the variance requested conforms
			 to the requirements of the antidegradation policy as set forth in section
			 6111.12 of the Revised Code; and
(b) Characterize the extent of any
			 increased risk to human health and the environment associated with granting the
			 variance compared with compliance with the water quality standard absent the
			 variance, such that the director is able to conclude that any such increased
			 risk is consistent with the protection of the public health, safety and
			 welfare.
(d)
			 Submittal of the variance application. The owner or operator shall submit an
			 application for a variance to the director. The application shall include:
(i) All relevant information demonstrating
			 that attaining the water quality standard is not feasible based on one or more
			 of the conditions in paragraphs (B)(6)(c)(i) and (B)(6)(c)(ii) of this rule.
(e) Public notice of
			 preliminary decision. Upon receipt of a complete application for a variance and
			 upon making a preliminary decision regarding the variance the director shall
			 provide public notice of the request and preliminary decision for a public
			 comment pursuant to the procedures set forth in Chapter 901:10-6 of the
			 Administrative Code. The director shall notify the other Great Lakes States and
			 Tribes of the preliminary decision for discharges in the Lake Erie basin. This
			 public notice requirement may be satisfied by including the supporting
			 information for the variance and the preliminary decision in the public notice
			 of the draft NPDES permit.
(7) The director shall issue a final decision
			 on the variance request within ninety days of the expiration of the public
			 comment period required in paragraph (B)(6)(e) of this rule. If the director
			 decides to grant or deny a variance then the director shall do so in accordance
			 with Chapter 119. of the Revised Code. If all or part of the variance is
			 approved by the director, the decision shall include all permit conditions
			 needed to implement those parts of the variance so approved. Such permit
			 conditions shall, at a minimum, require:
(a)
			 Compliance with an initial effluent limitation which, at the time the variance
			 is granted, represents the level currently achievable by the owner or operator
			 and which is no less stringent than that achieved under the previous permit;
(b) That reasonable progress be
			 made toward attaining the water quality standards for the waterbody as a whole
			 through appropriate conditions;
(c) When the duration of a variance is
			 shorter than the duration of a permit, compliance with an effluent limitation
			 sufficient to meet the underlying water quality standard, upon the expiration
			 of said variance; and
(d) A
			 provision that allows the director to reopen and modify the permits based on
			 any triennial water quality standards revisions to the variance.
The director shall deny a variance request if the permittee
				fails to make the demonstrations required under paragraph (B)(6)(c) of this
				rule.
(8)
			 Incorporating into the permit. The director shall establish and incorporate
			 into the NPDES permit all conditions needed to implement the variance as
			 determined in paragraph (B)(7) of this rule.
(9) Renewal of the variance. A variance may
			 be renewed subject to the requirements of paragraph (B)(8) of this rule. As
			 part of any renewal application, the owner or operator shall again demonstrate
			 that attaining a water quality standard is not feasible based on the
			 requirements of paragraph (B)(6)(c) of this rule. The application shall also
			 contain information concerning compliance with the conditions incorporated into
			 its permit as part of the original variance pursuant to paragraphs (B)(7) and
			 (B)(8) of this rule. Renewal of a variance may be denied if the owner or
			 operator did not comply with the conditions of the original variance.
(10) All variances and supporting
			 information shall be submitted by the director to the regional administrator
			 and shall include:
(a) Relevant applications
			 as set forth in paragraph (B)(6)(d) of this rule;
(b) Public comments and records of any public
			 hearings pursuant to paragraph (B)(6)(e) of this rule;
(c) The final decision of the director; and
(d) The NPDES permit.
(e) Information required by this paragraph
			 shall be submitted by the director within thirty days of the date of the final
			 variance decision. The information required by paragraph (B)(6)(d) of this rule
			 shall be submitted in accordance with the terms of the memorandum of agreement
			 with the regional administrator pursuant to
			 40 CFR
			 123.24
										.
(11) All variances shall be transmitted to
			 the Ohio environmental protection agency and appended to the water quality
			 standard rules adopted in accordance with section
			 6111.041 of the Revised Code.