Section 327IAC5-6-2. Criteria

   (a) A variance from national limits shall be proposed by the commissioner to EPA for approval, whether at the commissioner's own initiative or upon the request of the permit applicant, only if:

(1) there is an applicable national limit which specifically controls the pollutant for which alternative effluent limitations or standards have been proposed;

(2) the factors relating to the discharge upon which the variance request is based are fundamentally different from those considered by EPA in establishing the national limits and were in existence prior to EPA's promulgation of such national limits; and

(3) the request for alternative effluent limitations or standards is made in accordance with the procedural requirements of 327 IAC 5-3.

  (b) A request for the establishment of effluent limitations less stringent than applicable national limits shall be recommended by the commissioner only if:

(1) the alternative effluent limitation or standard to be established is no less stringent than justified by the fundamental difference; and

(2) the alternative effluent limitation or standard will ensure compliance with sections 208(e) and 301(b)(1)(C) of the CWA; and

(3) compliance with the national limits (either by using the technologies upon which the national limits are based or by other control alternatives) would result in:

(A) a removal cost wholly out of proportion to the removal cost considered during development of the national limits; or

(B) an environmental impact not affecting water quality (including energy requirements) which is fundamentally more adverse than the impact considered during development of the national limits.

  (c) A request for alternative limits more stringent than required by national limits shall be recommended by the commissioner only if:

(1) the alternative effluent limitation or standard to be established is no more stringent than justified by the fundamental difference; and

(2) compliance with the alternative effluent limitation or standard can be achieved using the technologies upon which the national limits are based or other reasonably available control alternatives and would not result in:

(A) a removal cost wholly out of proportion to the removal cost considered during development of the national limits; or

(B) an environmental impact not affecting water quality (including energy requirements) which is fundamentally more adverse than the impact considered during development of the national limits.

  (d) Factors which may be considered fundamentally different are:

(1) the nature or quality of pollutants contained in the raw waste load of the applicant's process wastewater;

(2) the volume of the discharger's process wastewater and the volume of effluent discharged;

(3) nonwater quality environmental impact of the control and treatment of the discharger's raw waste load (however, this factor will be considered pertinent, generally, only if such nonwater quality impact would result in the violation of another applicable federal or state law);

(4) energy requirements of the application of control and treatment technology;

(5) age, size, land availability, and configuration as they relate to the discharger's equipment or facilities; processes employed; process changes; and engineering aspects of the application of control technology.

  (e) Alternative effluent limitations shall not be established under this section on any of the following grounds:

(1) the infeasibility of installing the required waste treatment equipment within the time the CWA allows;

(2) the assertion that the national limits cannot be achieved with the appropriate waste treatment facilities installed, if such assertion is not based on factor(s) listed in subsection (d);

(3) the discharger's ability to pay for the required waste treatment; or

(4) the impact of a discharge on local receiving water quality.

  (f) Nothing in this section shall be construed to abridge the right of the commissioner under section 510 of the CWA to impose more stringent limitations than the minimum technology-based effluent limitations applicable under the CWA. (Water Pollution Control Division; 327 IAC 5-6-2; filed Sep 24, 1987, 3:00 pm: 11 IR 647; 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)