Ariz. Admin. Code § R18-11-122 - Variances

A. Upon request, the Director may establish, by rule, a discharger-specific or water segment(s)-specific variance from a water quality standard if requirements pursuant to this section are met.

B. A person who requests a variance must demonstrate all of the following information:

1. Identification of the specific pollutant and water quality standard for which a variance is sought.

2. Identification of the receiving surface water segment or segments to which the variance would apply.

3. A detailed discussion of the need for the variance, including the reasons why compliance with the water quality standard cannot be achieved over the term of the proposed variance, and any other useful information or analysis to evaluate attainability.

4. A detailed discussion of the discharge control technologies that are available for achieving compliance with the water quality standard for which a variance is sought.

5. Documentation that more advanced treatment technology than applicable technology-based effluent limitations is necessary to achieve compliance with the water quality standard for which a variance is sought.

6. A detailed description of proposed interim discharge limitations and pollutant control activities that represent the highest level of treatment achievable by a point source discharger or dischargers during the term of the variance.

7. Documentation that the proposed term is only as long as necessary to achieve the highest attainable condition.

8. Documentation that is appropriate to the type of use to which the variance would apply as follows:

a. For a water quality standard variance to a use specified in Clean Water Act § 101(a)(2), documentation must include demonstration of at least one of the following factors that preclude attainment of the use during the term of the variance:

i. Naturally occurring pollutant concentrations prevent attainment of the use;

ii. 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;

iii. That human-caused conditions or sources of pollution prevent the attainment of the water quality standard for which the variance is sought and either (1) it is not possible to remedy the conditions or sources of pollution or (2) remedying the human-caused conditions would cause more environmental damage to correct than to leave in place;

iv. 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 n a way that would result in the attainment of the use;

v. 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;

vi. That installation and operation of each of the available discharge technologies more advanced than those required to comply with technology-based effluent limitations to achieve compliance with the water quality standard would result in substantial and widespread economic and social impact; or

vii. Actions necessary to facilitate lake, wetland, or stream restoration through dam removal or other significant reconfiguration activities preclude attainment of the designated use and criterion while the actions are being implemented.

b. For a water quality standard variance to a use other than those uses specified in Clean Water Act § 101(a)(2), documentation must justify how consideration and value of the water subject to the use appropriately supports the variance and term. A demonstration consistent with (B)(8)(a) of this section may be used to satisfy this requirement.

9. For a waterbody segment(s)-specific variance, the following information is required before the Director may issue a variance, in addition to all other required documentation pursuant to this section:

a. Identification and documentation of any cost-effective and reasonable best management practices for nonpoint source controls related to the pollutant(s) or water quality parameter(s) and water body or waterbody segment(s) specified in the variance that could be implemented to make progress towards attaining the underlying designated use and criterion; and

b. If any variance pursuant to (B)(9)(a) of this section previously applied to the water body or waterbody segment(s), documentation must also demonstrate whether and to what extent best management practices for nonpoint source controls were implemented to address the pollutant(s) or water quality parameter(s) subject to the water quality variance and the water quality progress achieved.

10. For a discharger-specific variance, the following information is required before the Director may issue a variance, in addition to all other required documentation pursuant to this section:

a. Identification of the permittee subject to the variance;

b. For an existing point source discharge, a detailed description of the existing discharge control technologies that are used to achieve compliance with applicable water quality standards. For a new point source discharge, a detailed description of the proposed discharge control technologies that will be used to achieve compliance with applicable water quality standards; and

c. Documentation that the existing or proposed discharge control technologies will comply with applicable technology-based effluent limitations.

C. The Director shall consider the following factors when deciding whether to grant or deny a variance request:

1. Bioaccumulation,

2. The predicted exposure of biota and the likelihood that resident biota will be adversely affected,

3. The known or predicted safe exposure levels for the pollutant for which the variance is requested, and

4. The likelihood of adverse human health effects.

D. The variance shall represent the highest attainable condition of the water body or water body segment applicable throughout the term of the variance.

E. A variance shall not result in any lowering of the currently attained ambient water quality, unless the variance is necessary for restoration activities, consistent with (B)(8)(a)(vii) of this section. The Director must specify the highest attainable condition of the water body or waterbody segment as a quantifiable expression of one of the following:

1. The highest attainable interim criterion,

2. The interim effluent condition that reflects the greatest pollutant reduction achievable; or

3. If no additional feasible pollutant control technology can be identified, the interim criterion or interim effluent condition that reflects the greatest pollutant reduction achievable with the pollutant control technologies installed at the time of the issuance of the variance, and the adoption and implementation of a Pollutant Minimization Program.

F. A variance shall not modify the underlying designated use and criterion. A variance is only a time limited exception to the underlying standard. For discharge-specific variances, other point source dischargers to the surface water that are not granted a variance shall still meet all applicable water quality standards.

G. Point source discharges shall meet all other applicable water quality standards for which a variance is not granted.

H. The Director may not grant a variance for a point source discharge to an OAW listed in R18-11-112(G).

I. Each variance established by the Director is subject to review and approval by the Regional Administrator.

J. The term of the water quality variance may only be as long as necessary to achieve the highest attainable condition and must be consistent with the supporting documentation in subsection (E) of this section. The variance term runs from the approval of the variance by the Regional Administrator.

K. The Director shall reevaluate, in its triennial review, whether each variance continues to represent the highest attainable condition. Comment on the variance shall be considered regarding whether the variance continues to represent the highest attainable condition. If the Director determines that the requirements of the variance do not represent the highest attainable condition, then the Director shall modify or repeal the variance in its triennial review rulemaking.

L. If the variance is modified by rulemaking, the requirements of the variance shall represent the highest attainable condition at the time of initial adoption of the variance, or the highest attainable condition identified during the current reevaluation, whichever is more stringent.

M. Upon expiration of a variance, point source dischargers shall comply with the water quality standard.

N. The following are discharger-specific variances adopted by the Director:

O. The following are water body and waterbody segment-specific variances adopted by the Director:

Notes

Ariz. Admin. Code § R18-11-122

Adopted effective April 24, 1996 (Supp. 96-2). Amended by final rulemaking at 8 A.A.R. 1264, effective March 8, 2002 (Supp. 02-1). Amended by final rulemaking at 14 A.A.R. 4708, effective January 31, 2009 (Supp. 08-4). Amended by final rulemaking at 25 A.A.R. 2515, effective 9/10/2019.