[Code of Federal Regulations]
[Title 40, Volume 19]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR125.31]

[Page 304-305]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 125--CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT DISCHARGE 
ELIMINATION SYSTEM--Table of Contents
 
    Subpart D--Criteria and Standards for Determining Fundamentally 
Different Factors Under Sections 301(b)(1)(A), 301(b)(2) (A) and (E) of 
                                 the Act
 
Sec. 125.31  Criteria.

    (a) A request for the establishment of effluent limitations under 
this subpart (fundamentally different factors variance) shall be 
approved only if:
    (1) There is an applicable national limit which is applied in the 
permit and specifically controls the pollutant for which alternative 
effluent limitations or standards have been requested; and
    (2) Factors relating to the discharge controlled by the permit are 
fundamentally different from those considered by EPA in establishing the 
national limits; and
    (3) The request for alternative effluent limitations or standards is 
made in accordance with the procedural requirements of part 124.
    (b) A request for the establishment of effluent limitations less 
stringent than those required by national limits guidelines shall be 
approved only if:
    (1) The alternative effluent limitation or standard requested 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 Act; 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:
    (i) A removal cost wholly out of proportion to the removal cost 
considered during development of the national limits; or

[[Page 305]]

    (ii) A non-water quality environmental impact (including energy 
requirements) 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 approved only if:
    (1) The alternative effluent limitation or standard requested is no 
more stringent than justified by the fundamental difference; and
    (2) Compliance with the alternative effluent limitation or standard 
would not result in:
    (i) A removal cost wholly out of proportion to the removal cost 
considered during development of the national limits; or
    (ii) A non-water quality environmental impact (including energy 
requirements) 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;

[Comment: (1) In determining whether factors concerning the discharger 
are fundamentally different, EPA will consider, where relevant, the 
applicable development document for the national limits, associated 
technical and economic data collected for use in developing each 
respective national limit, records of legal proceedings, and written and 
printed documentation including records of communication, etc., relevant 
to the development of respective national limits which are kept on 
public file by EPA.
    (2) Waste stream(s) associated with a discharger's process 
wastewater which were not considered in the development of the national 
limits will not ordinarily be treated as fundamentally different under 
paragraph (a) of this section. Instead, national limits should be 
applied to the other streams, and the unique stream(s) should be subject 
to limitations based on section 402(a)(1) of the Act. See 
Sec. 125.2(c)(2).]

    (2) The volume of the discharger's process wastewater and effluent 
discharged;
    (3) Non-water quality environmental impact of control and treatment 
of the discharger's raw waste load;
    (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;
    (6) Cost of compliance with required control technololgy.
    (e) A variance request or portion of such a request under this 
section shall not be granted on any of the following grounds:
    (1) The infeasibility of installing the required waste treatment 
equipment within the time the Act allows.

[Comment: Under this section a variance request may be approved if it is 
based on factors which relate to the discharger's ability ultimately to 
achieve national limits but not if it is based on factors which merely 
affect the discharger's ability to meet the statutory deadlines of 
sections 301 and 307 of the Act such as labor difficulties, construction 
schedules, or unavailability of equipment.]

    (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 paragraph (d) of this section;

[Comment: Review of the Administrator's action in promulgating national 
limits is available only through the judicial review procedures set 
forth in section 509(b) of the Act.]

    (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 impair the right 
of any State or locality under section 510 of the Act to impose more 
stringent limitations than those required by Federal law.