[Code of Federal Regulations]

[Title 40, Volume 21]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR125.31]



[Page 310-312]

 

                   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



[[Page 311]]



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

    (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.]





[[Page 312]]





    (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.