Section 327IAC5-3-4. Time deadlines for applications for statutory modifications of and variances from effluent limitations

   (a) Except as provided in subsection (d), applications for variances from and modification of effluent limitations under the statutory and regulatory provisions of the CWA shall be made as provided in subsections (b) and (c).

  (b) The following are requirements for dischargers other than publicly owned treatment works:

(1) A request for a variance based on the presence of factors fundamentally different (40 CFR 125.30) from those on which the effluent limitations guideline was based, shall be made by the earlier of the following dates:

(A) The close of the public comment period provided under section 9 of this rule.

(B) One hundred eighty (180) days after the date on which a national effluent limitation guideline is established or revised by the administrator.

The request shall explain why the requirements of section 9(c) of this rule and 327 IAC 5-6 have been met.

(2) A request for a variance from the BAT requirements for pollutants subject to section 301(b)(2)(F) of the CWA (commonly called nonconventional pollutants) pursuant to section 301(c) of the CWA because of the economic capability of the owner or operator or pursuant to section 301(g) of the CWA (provided however that a section 301(g) variance may only be requested for ammonia, chlorine, color, iron, total phenols (4AAP) (when determined by the administrator to be a pollutant covered by section 301(b)(2)(F) of the CWA) and any other pollutants which the administrator lists under section 301(g)(4) of the CWA) must be made as follows:

(A) Submitting an initial application to the regional administrator and the commissioner stating the name of the applicant, the permit number, the outfall number(s), the applicable effluent guideline, and whether the applicant is applying for a modification pursuant to section 301(c) or 301(g) of the CWA, or both. This application shall have been or shall be filed not later than the date established by the CWA, which is:

(i) September 25, 1978, for a pollutant which is controlled by a BAT effluent limitation guideline promulgated before December 27, 1977; or

(ii) two hundred seventy (270) days after promulgation of an applicable effluent limitation guideline for guidelines promulgated after December 27, 1977.

(B) Submitting a completed request no later than the close of the public comment period under section 9 of this rule demonstrating that the requirements of section 9(c) of this rule and the applicable requirements of 40 CFR 125, Subpart E or F, have been met. Notwithstanding this provision, the completed application for a request under section 301(g) of the CWA shall be filed one hundred eighty (180) days before EPA must make a decision (unless the regional division director establishes a shorter or longer period).

(C) For those requests for a variance from effluent limitations based on other than effluent limitation guidelines, the request shall comply only with clause (B) and need not be preceded by an initial application under clause (A).

(3) An extension under section 301(k) of the CWA from the statutory deadlines of section 301(b)(2)(A) of the CWA for BAT or section 301(b)(2)(E) of the CWA for BCT, based on the use of innovative technology may be requested no later than the close of the public comment period for the discharger's initial permit requiring compliance with best available technology or best conventional pollutant control technology. The request shall demonstrate that the requirements of section 9(c) of this rule and 40 CFR 125, Subpart C, have been met.

(4) A modification, under section 302(b)(2) of the CWA, of water quality related effluent limitations proposed under section 302(a) of the CWA may be requested no later than the close of the public comment period on the draft permit in which said effluent limitations are proposed or at the public hearing required under section 302(b)(1) of the CWA.

(5) The following are requirements for thermal effluent limitations:

(A) An original request for alternate thermal effluent limitations for the thermal component of any discharge under section 316(a) of the CWA in lieu of promulgated effluent limitation guidelines must be filed with a timely permit application required under section 2 of this rule.

(B) If thermal effluent limitations are proposed in the draft permit, pursuant to section 402(a)(1) of the CWA (see 327 IAC 5-5-2(b)(2)) or water quality standards, and the proposed limitations are in the absence of, or are more stringent than, promulgated effluent limitation guidelines, the original request for alternate thermal effluent limitations shall be filed, or modified if deemed necessary, by the close of the public comment period for the draft permit.

(C) A request for a renewal of alternate thermal effluent limitations shall, in every case, be filed with a timely application for permit reissuance.

(D) The request for alternate thermal effluent limitations shall include the information specified by 327 IAC 5-7.

  (c) The following are requirements for publicly owned treatment works:

(1) Section 301(i)(1) of the CWA requires that an extension of the statutory deadlines in section 301(b)(1)(B) or 301(b)(1)(C) of the CWA based on delay in the construction of publicly owned treatment works must have been requested on or before August 3, 1987.

(2) A modification under section 302(b)(2) of the CWA of water quality related effluent limitations proposed under section 302(a) of the CWA may be requested no later than the close of the public comment period on the draft permit in which said effluent limitations are proposed or at the public hearing required under section 302(b)(1) of the CWA, whichever is earlier.

  (d) Notwithstanding any later time specified in subsections (b) and (c), the commissioner may notify the applicant before a draft permit is published pursuant to section 12 of this rule that the draft permit will likely contain limitations which are eligible for variances or modifications. In such notice the commissioner may require the applicant as a condition of consideration of any potential variance request to submit, within a specified reasonable time, after receipt of the notice, a statement explaining how the criteria and other requirements of this rule applicable to the variance or modification have been met. This notice may be sent before the application under section 2 of this rule has been submitted.

  (e) A discharger who cannot file a timely, complete request required under subsection (b)(2)(B), (b)(2)(C), (b)(3), (b)(4), (b)(5), or (c)(2) may request an extension to apply. Extensions shall be limited to the time the commissioner determines is necessary to satisfy the requirements of the appropriate regulations but shall be no more than six (6) months in duration. The request may be granted or denied in the discretion of the commissioner. (Water Pollution Control Division; 327 IAC 5-3-4; filed Sep 24, 1987, 3:00 p.m.: 11 IR 635; filed Feb 26, 1993, 5:00 p.m.: 16 IR 1757; readopted filed Jan 10, 2001, 3:23 p.m.: 24 IR 1518; readopted filed Nov 21, 2007, 1:16 p.m.: 20071219-IR-327070553BFA; readopted filed Jul 29, 2013, 9:21 a.m.: 20130828-IR-327130176BFA)