Ga. Comp. R. & Regs. R. 391-3-6-.10 - Determinations of Categorization of Industrial Users and Requests for Fundamentally Different Factor

(1) Purpose. The purpose of Rule 391-3-6-.10 is to provide for uniform procedures and practices to be followed for the determination of categorization of industrial users and requests for variances for fundamentally different factors. Such determinations will be applicable to the approved local POTW pretreatment programs and the pretreatment programs supervised and operated by the EPD.

(2) Definitions. All terms used in this paragraph shall be interpreted in accordance with the definitions as set forth in the Act unless otherwise defined in the Paragraph or in any other Paragraph of these Rules.

(3) Determinations on Categorization of Industrial Users.

(a) Within thirty (30) days after the effective date of a pretreatment standard for a sub-category under which an industrial user believes itself to be included, the industrial user or POTW may request that the Director provide written certification to the effect that the industrial user does or does not fall within the particular category. If an existing industrial user adds or changes a process or operation which may be included in a sub-category, the existing industrial user must request this certification prior to commencing discharge from the added or changed process or operation. A new source must request this certification prior to commencing discharge. Where a request for certification is submitted by a POTW, that POTW shall notify any affected industrial user of such submission. The industrial user may provide written comments on the POTW submission to the EPD within thirty (30) days of notification. Each request shall contain a statement:

1. Describing which sub-categories might be applicable;

2. Citing evidence and reasons why a particular sub-category is applicable and why others are not applicable. Each statement shall contain a certification stating that the facts contained therein are true on the basis of the applicant's personal knowledge or to the best of his information and belief. The certification shall be attested to by a notary public and be specifically as written in 40 CFR 403.6(a)(2)(ii).

(b) The Director will act only on written requests for determinations that contain all of the information required. Persons who have made incomplete submissions will be notified by the Director that their requests are deficient and unless the time period is extended they will be given thirty (30) days to correct the deficiency. If the deficiency is not corrected within thirty (30) days or within an extended period allowed by the Director the request for a determination shall be denied.

(c) When the Director determines that all of the information required by this Subparagraph, any additional evidence that may have been requested and any other available information relevant to the request has been submitted, he will make a written determination of the applicable sub-category and state the reasons for his determination. The Director shall forward the written determination described in this Subparagraph to the Regional Administrator of EPA in accordance with 40 CFR 124.62(e)(1) who may make a final determination. If the Regional Administrator does not modify the Director's decision within sixty (60) days after receipt thereof, the Director's decision is final.

(d) The Director shall send a copy of his determination to the affected industrial user and POTW. When the final determination is made by the Regional Administrator of EPA, he shall send a copy of his determination to the Director and the Director will forward it to the affected industrial user and POTW.

(e) If an industrial users fails to seek the certification referred to in Subparagraph 391-3-6-.10(3) within the prescribed thirty (30) day period or to contest a negative determination through administrative channels provided, they will be bound by a subsequent determination made by the Director as to the sub-category under which an industrial user should be included.

(4) Fundamentally Different Factors Variances.

(a) Requests for a variance from categorical pretreatment standards for fundamentally different factors and supporting evidence must be submitted in writing to the Director within ninety (90) days after promulgation by the EPA of the categorical pretreatment standards.

1. Written submissions for variance requests submitted to the Director must include:

(i) the name and address of the person making the request;

(ii) identification of the interest of the requestor which is affected by the categorical pretreatment standard for which the variance is requested:

(iii) identification of the POTW currently receiving the waste from the industrial user for which alternative discharge limits are requested;

(iv) identification of the categorical pretreatment standards which are applicable to the industrial user;

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

(vi) the alternative discharge limits proposed by the requestor for each pollutant or pollutant parameter identified in Subparagraph 391-3-6-.10(4)(a)1.(v);

(vii) a description of the industrial user's existing water pollution control facilities;

(viii) a schematic flow representation of the industrial user's water system including water supply processed wastewater systems, and point of discharge; and

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

(b) The Director will only act on written requests for variances that contain all of the information required. Persons who have made incomplete submissions will be notified by the Director that their requests are deficient and unless the time period is extended, will be given thirty (30) days to correct the deficiency. If the deficiency is not corrected within the thirty (30) days or within an extended period allowed by the Director, the request for variance shall be denied.

(c) When the Director receives a submittal from a person making a request, he will, after determining that it contains all of the information required by Subparagraph 391-3-6-.10(4)(a), consider the submission, any additional evidence that may have been requested, and any other available information relevant to the request. The Director will then make a written finding indicating whether or not there are factors which are fundamentally different for that industrial user, from those factors considered in the development of the appropriate categorical pretreatment standards. This preliminary finding will include the reasons as to whether or not the variance should be granted.

(d) When the Director finds that fundamentally different factors do not exist, he may deny the request and notify the requestor and the industrial user, where they are not the same, of the denial.

(e) When the Director finds that fundamentally different factors do exist, he shall forward the request and a written recommendation that the request be approved to the Regional Administrator of EPA. If upon review of the recommended approval submitted by the Director, the Regional Administrator of EPA finds that fundamentally different factors do exist and that a partial or full variance is justified, he will approve the variance.

(f) A request for a variance based upon fundamentally different factors shall be approved only if the applicable criteria are met as described in 40 CFR 403.13(c). A review of each request shall be made based upon factors considered fundamentally different as described in 40 CFR 403.13(d) and factors which will not be considered fundamentally different as described in 40 CFR 403.13(e).

(5) Enforcement. Any person who violates any provision of the Act, any rule promulgated and adopted pursuant thereto, or any term, condition, schedule or compliance or other requirements contained in a permit issued pursuant to the Act shall be subject to enforcement proceedings pursuant to the Act.

Notes

Ga. Comp. R. & Regs. R. 391-3-6-.10

Ga. L. 1964, p. 416, et. seq., as amended (Ga. Code Ann. Sec. 17-501et seq.); Ga. L. 1972, p. 1015, as amended (Ga. Code Ann. Sec. 40-3501et seq.), O.C.G.A. Sec. 12-5-20 et seq.

Original Rule entitled "Determinations and Categorization of Industrial Users and Requests for Fundamentally Different Factors Variances" was filed on August 24, 1979; effective September 13, 1979. Amended: F. Apr. 8, 1993; eff. Apr. 28, 1993. Repealed: ER. 391-3-6-0.32-.10, of the same title, adopted. F. May 1, 1996; eff. April 25, 1996, the date of adoption, to remain in effect for a period of 120 days or until the effective date of a permanent Rule covering the same subject matter superseding this ER is adopted, as specified by the Agency. Amended: Permanent Rule of same title adopted. F. Jul. 10, 1996; eff. July 30, 1996.