Sec. NR 220.33 - Variance application process

ยง NR 220.33. Variance application process


(a) FDFV deadline. A written request for an alternative limitation based on a fundamentally different factors variance shall be submitted no later than 180 days after the date on which an effluent limitation guideline is published in the federal register, and any of the following apply:

1. For a variance from an effluent limitation that is based on the best practicable control technology currently available under 33 USC 1311(b)(1)(A) and 1314(b)(1), the request shall be submitted by the close of the public comment period under s. 283.39, Stats.

2. For a variance from an effluent limitation that is based on the best control technology available for conventional pollutants under 33 USC 1311(b)(2)(E) and 33 USC 1314(b)(4), or for variances from an effluent limitation that is based on the best available treatment technology economically achievable under 33 USC 1311(b)(2) and 33 USC 1314(b)(2), the request shall be submitted as part of the permit application for reissuance or modification.

(b) Other technology based limitation variance deadlines. Requests for a variance to an effluent guideline limitation under 33 USC 1311(c) or (g) shall comply with the deadlines and requirements in 40 CFR 122.21(m).

(c) Advanced notification. Before public notice of a draft permit modification or reissuance is given under s. 283.39, Stats., the department may notify a permitee or applicant in writing that the draft permit will likely contain limitations based on effluent limitation guidelines or standards that may be eligible for a variance under par. (a) or (b). In the written notice to the permittee, the department may require that the permittee submit a variance request within a reasonable time period if the permittee is interested in applying for a variance under par. (a) or (b). If the permittee wishes to request a variance, the variance application shall explain how the requirements for the variance have been met and the application shall be submitted within the reasonable time period specified in the written notice. The department may send the written notice to a permittee prior to submittal of a permit application for reissuance. If the department determines the variance is approvable, the draft permit or final permit may contain an alternative limitation that takes effect upon approval by the department and the EPA.

(2) CONTENT OF FDFV APPLICATION. Any permittee requesting an FDFV shall demonstrate and explain each of the following in the application:

(a) How the appropriate criteria of s. NR 220.32 have been met.

(b) How the factors listed in s. NR 220.32 regarding the discharger's facility are fundamentally different from the factors EPA or the department considered in establishing the effluent limitation guidelines. The requester shall reference all relevant material and information such as the published development documents in support of the effluent limitation guidelines, all associated technical and economic data collected for use in developing each effluent limitation guideline, all records of legal proceedings, and all written and printed documentation including records of communication that relevant to the regulations that are kept as public records by the department.

(c) How the alternative limitations requested are justified by the fundamental difference alleged in par. (b).

(Adopted by, CR 17-002: cr. Register April 2018 No. 748, eff. 5/1/2018)

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