Section 327IAC5-18-5. Variance from a categorical pretreatment standard for fundamentally different factors

   (a) The requirements for requesting a variance from a categorical pretreatment standard for fundamentally different factors are as follows:

(1) Any interested person may request a fundamentally different factors variance under this section for the following reasons:

(A) 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.

(B) The existence of the differing factors justifies a different discharge limit from that specified in the applicable categorical pretreatment standard.

(2) Requests for a variance and supporting evidence must be submitted in writing to the commissioner within one hundred eighty (180) days after the date when a categorical pretreatment standard is published in the Federal Register. If an industrial user has requested a categorical determination under section 4(b) of this rule, the industrial user may defer submission of a variance request under this section until no later than thirty (30) days after a final decision has been made on the categorical determination under 40 CFR 403.6(a)(4).

(3) A written request for a fundamentally different factors variance (FDFV) must include the following:

(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 POTW currently receiving the waste from the industrial user for which alternative discharge limits are requested.

(D) Identification of the categorical pretreatment standards that 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 clause (E).

(G) A description of the industrial user's existing water pollution control facilities.

(H) A schematic flow representation of the industrial user's water system, including water supply, process wastewater systems, and points of discharge.

(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.

  (b) The commissioner shall act upon a FDFV request according to the following:

(1) A decision on a FDFV request according to subsection (a) shall be made in accordance with the criteria and standards set forth in 40 CFR 403.13. A variance shall not be granted if a proposed alternative discharge limit would result in a violation of prohibitive discharge standards in section 2 of this rule.

(2) When the commissioner makes a tentative decision on a FDFV request the commissioner shall provide a public notice of receipt of the request, opportunity to review the submission, and opportunity to comment. The public notice shall meet the following:

(A) Be circulated in a manner designed to inform interested and potentially interested persons of the request. Public notice shall include mailing notices to the following:

(i) The POTW that will receive the discharge from the industrial user requesting the variance.

(ii) Adjoining states whose waters may be affected.

(iii) Planning agencies, federal and state fish agencies, and shellfish and wildlife resource agencies designated in Section 208 of the Clean Water Act (33 U.S.C. 1288).

(iv) Any other person or group that has requested individual notice.

(B) Provide for a comment period of not less than thirty (30) days duration following the date of the public notice during which time interested persons may review the request and submit written comments on the request.

(3) The commissioner shall make a determination on the request for a FDFV taking into consideration any comments received during the comment period. If the commissioner denies the request, the commissioner's decision shall be final and notice thereof shall be provided to the following:

(A) The requester.

(B) The industrial user for which the variance was requested, if different from the requester of clause (A).

(C) The POTW intended to receive the industrial user's discharge that was the subject of the FDFV request.

(D) All persons who submitted comments on the request.

(4) If the commissioner concludes that fundamentally different factors do exist, the commissioner shall forward the request and a recommendation that a variance be approved to the EPA water management division director for a final determination pursuant to 40 CFR 403.13.

(5) The commissioner will act only on variances that contain all of the information required. The commissioner shall notify a person who has made an incomplete submission that the request is deficient and, unless the time period is extended, the person will be given a maximum of thirty (30) days to correct the deficiency. If the deficiency is not corrected within the time period allowed by the commissioner, the request for variance shall be denied.

(Water Pollution Control Division; 327 IAC 5-18-5; filed Oct 10, 2000, 3:02 p.m.: 24 IR 300; errata filed Feb 6, 2006, 11:15 a.m.: 29 IR 1936; filed Oct 9, 2015, 4:07 p.m.: 20151104-IR-327100659FRA)