62-625.700. Fundamentally Different Factors Variance

(1) In establishing categorical pretreatment standards for existing sources, the EPA takes into account all the information it can collect, develop and solicit regarding the factors relevant to pretreatment standards under section 307(b) of the CWA. In some cases, information which may affect these pretreatment standards will not be available or, for other reasons, will not be considered during their development. As a result, it may be necessary on a case-by-case basis to adjust the limits in categorical pretreatment standards, making them either more or less stringent, as they apply to a certain industrial user within an industrial category or subcategory. This will only be done if data specific to that industrial user indicates it presents factors fundamentally different from those considered by EPA in developing the limit at issue. Any interested person or industrial user believing that factors relating to an industrial user are fundamentally different from the factors considered during development of a categorical pretreatment standard applicable to that industrial user and further, that the existence of those factors justifies a different discharge limit than specified in the applicable categorical pretreatment standard, may request a fundamentally different factors variance under this rule or such a variance request may be initiated by the EPA.

(2) Criteria.

(a) General criteria. A request for a variance based upon fundamentally different factors shall be approved only if:

1. There is an applicable categorical pretreatment standard which specifically controls the pollutant for which alternative limits have been requested;

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

3. The request for a variance is made in accordance with the procedural requirements in subsections (6) and (7) below.

(b) Criteria applicable to less stringent limits. A variance request for the establishment of limits less stringent than required by the pretreatment standard shall be approved only if:

1. The alternative limit requested is no less stringent than justified by the fundamental difference;

2. The alternative limit will not result in a violation of prohibitive discharge standards prescribed by or established under Rule 62-625.400, F.A.C.;

3. The alternative limit will not result in a non-water quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the pretreatment standards; and

4. Compliance with the pretreatment standards (either by using the technologies upon which the pretreatment standards are based or by using other control alternatives) would result in either

a. A removal cost (adjusted for inflation) wholly out of proportion to the removal cost considered during development of the pretreatment standards, or

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

(c) Criteria applicable to more stringent limits. A variance request for the establishment of limits more stringent than required by the pretreatment standards shall be approved only if:

1. The alternative limit request is no more stringent than justified by the fundamental difference; and

2. Compliance with the alternative limit would not result in either

a. A removal cost (adjusted for inflation) wholly out of proportion to the removal cost considered during development of the pretreatment standards, or

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

(3) Factors considered fundamentally different. Factors which shall be considered fundamentally different are:

(a) The nature or quality of pollutants contained in the raw waste load of the industrial user’s process wastewater;

(b) The volume of the industrial user’s process wastewater and effluent discharged;

(c) Non-water quality environmental impact of control and treatment of the industrial user’s raw waste load;

(d) Energy requirements of the application of control and treatment technology;

(e) Age, size, land availability, and configuration as they relate to the industrial user’s equipment or facilities; processes employed; process changes; and engineering aspects of the application of control technology; and

(f) Cost of compliance with required control technology.

(4) Factors which will not be considered fundamentally different. A variance request or portion of such a request under this section shall not be granted on any of the following ground:

(a) The feasibility of installing the required waste treatment equipment within the time the CWA allows;

(b) The assertion that the pretreatment standards cannot be achieved with the appropriate waste treatment facilities installed, if such assertion is not based on factors listed in subsection (3) above;

(c) The industrial user’s ability to pay for the required waste treatment; or

(d) The impact of a discharge on the quality of the WWF’s receiving waters.

(5) State or local law. Nothing in this section shall be construed to impair the right of the State of Florida or any locality to impose more stringent limitations than required by Federal law.

(6) Application deadline.

(a) Requests for a variance and supporting information must be submitted in writing to the Department.

(b) In order to be considered, a request for a variance must be submitted no later than 180 days after the date on which a categorical pretreatment standard is published in the Federal Register.

(c) Where the industrial user has requested a categorical determination pursuant to subsection 62-625.410(2), F.A.C., the industrial user may elect to wait for the results of the category determination before submitting a variance request under this section. Where the industrial user so elects, it must submit the variance request within 30 days after a final decision has been made on the categorical determination pursuant to paragraph 62-625.410(2)(d), F.A.C.

(7) Application contents. Written submissions for variance requests must include:

(a) The name and address of the person making the request;

(b) Identification of the interest of the requester which is affected by the categorical pretreatment standard for which the variance is requested;

(c) Identification of the WWF currently receiving the wastewater from the industrial user for which alternative discharge limits are requested;

(d) Identification of the categorical pretreatment standards which are applicable to the industrial user;

(e) A list of each pollutant or pollutant parameter for which an alternative discharge limit is sought;

(f) The alternative discharge limits proposed by the requester for each pollutant or pollutant parameter identified in paragraph (e) above;

(g) A description of the industrial user’s existing wastewater treatment facilities;

(h) A schematic flow representation of the industrial user’s water system including water supply, process wastewater systems, and points of discharge; and

(i) A statement of facts clearly establishing why the variance request should be approved, including detailed support data, documentation, and evidence necessary to fully evaluate the merits of the request, (e.g., technical and economic data collected by the EPA and used in developing each pollutant discharge limit in the pretreatment standard.)

(8) Deficient applications. The Department will only act on written requests for variances that contain all of the information required. Persons who have made incomplete applications will be notified by the Department that their requests are deficient and will be given thirty days, from the date of the notification, to remedy the deficiency. If the deficiency is not corrected within the time period allowed by the Department, the request for a variance shall be denied.

(9) Public notice. Upon receipt of a complete request, the Department will provide notice of receipt, opportunity to review the submission, and opportunity to comment.

(a) The public notice shall be circulated in a manner designed to inform interested and potentially interested persons of the request. Procedures for the circulation of public notice shall include mailing notices to:

1. The applicable control authority and the WWF into which the industrial user requesting the variance discharges;

2. Adjoining states whose waters may be affected; and

3. All Federal and State agencies with jurisdiction over fish, shellfish and wildlife resources, and over coastal zone management plans. Those agencies include the U.S. Council on Historic Preservation, U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, the National Marine Fisheries Service, the Florida Department of State, Division of Historical Resources, the Florida Fish and Wildlife Conservation Commission, the Florida Department of Community Affairs, the unit of local government having jurisdiction over the area where the WWF is located, and any other person or group who has requested individual notice, including those on appropriate mailing lists.

(b) The public notice shall provide for a period not less than 30 days following the date of the public notice during which time interested persons may review the request and submit their written views on the request.

(c) Following the comment period, the Department will make a determination on the request taking into consideration any comments received. Notice of this final decision shall be provided to the requester (and the industrial user for which the variance is requested if different), the control authority, the WWF into which the industrial user discharges and all persons who submitted comments on the request.

(10) Review of requests by the state.

(a) Where the Department finds that fundamentally different factors do not exist, it shall deny the request and notify the requester (and industrial user where they are not the same), the control authority and the WWF of the denial.

(b) Where the Department finds that fundamentally different factors do exist, it shall forward the request, with a recommendation that the request be approved, to the EPA Administrator (or delegate).

(11) Review of requests by EPA.

(a) Where the EPA Administrator (or delegate) finds that fundamentally different factors do not exist, he or she shall deny the request for a variance and send a copy of his or her determination to the Department, the control authority, the WWF, and the requester (and to the industrial user, where they are not the same).

(b) Where the EPA Administrator (or delegate) finds that fundamentally different factors do exist, and that a partial or full variance is justified, he or she will approve the variance. In approving the variance, the EPA Administrator (or delegate) will:

1. Prepare recommended alternative discharge limits for the industrial user either more or less stringent than those prescribed by the applicable categorical pretreatment standards to the extent warranted by the demonstrated fundamentally different factors:

2. Provide the following information in his written determination

a. The recommended alternative discharge limits for the industrial user concerned,

b. The rationale for the adjustment of the pretreatment standard (including the reasons for recommending that the variance be granted) and an explanation of how the recommended alternative discharge limits were derived,

c. The supporting evidence submitted to the EPA Administrator (or delegate), and

d. Other information considered by the EPA Administrator (or delegate) in developing the recommended alternative discharge limits;

3. Notify the Department, the control authority, and the WWF of his or her determination; and

4. Send the information described in subparagraphs (b)1. and 2., above, to the requester (and to the industrial user where they are not the same).

(12) Request for hearing.

(a) Within 30 days following the date of receipt of the notice of the decision of the EPA Administrator’s delegate on a variance request, the requester or any other interested person may submit a petition to the EPA Regional Administrator for a hearing to reconsider or contest the decision. If such a request is submitted by a person other than the industrial user, the person shall simultaneously serve a copy of the request on the industrial user.

(b) If the EPA Regional Administrator declines to hold a hearing and the EPA Regional Administrator affirms the findings of the EPA Administrator’s delegate, the requester may submit a petition for a hearing to the EPA Administrator within 30 days of the EPA Regional Administrator’s decision.

Rulemaking Authority 403.061(7), (31), 403.0885 FS. Law Implemented 403.0885 FS. History–New 11-29-94, Amended 1-8-97, 5-10-10.