117 Neb. Admin. Code, ch. 2, § 015

Current through September 17, 2024

Section 117-2-015 - Variances

015.01 Upon written application by any person and meeting the requirements of this section, the director may grant a variance for an interim beneficial use and interim criterion when it is determined that the attainment of a current beneficial use and criterion is not feasible because one of the following conditions is met:

015.01A One of the factors listed in 40 C.F.R 131.10(g) dated July 1, 2018, which is adopted and incorporated by reference, exists.

015.01B Actions necessary to facilitate lake, wetland, or stream restorations through dam removal or other significant reconfiguration activities preclude attainment of the designated use and criterion while the actions are being implemented.

015.02 Prior to the granting of any variance as allowed by 015.01, persons or categories of facilities eligible for an interim beneficial use and interim criterion will be proposed for adoption by the Nebraska Environmental Quality Council, after a public hearing consistent with 40 C.F.R. 131.20(b) dated July 1, 2018, which is adopted and incorporated by reference. Categories of eligible facilities will be identified and proposed in conjunction with the next systematic review or subsequent triennial review.

015.03 Adoption and implementation of each variance will be in accordance with 40 C.F.R 131.14 dated July 1, 2018, which is adopted and incorporated by reference, except that 131.14(a)(2), 131.14(b)(1)(ii), and 131.14(b)(2)(i)(A) are to be replaced by paragraphs 015.04 through 015.06 of this regulation, respectively.

015.04 Each variance will have a designated term limit and reflect the highest attainable condition during the specified term. A variance may be applied to individual or multiple dischargers or surface water bodies.

015.05 Each variance will have requirements and a time limitation demonstrating the intent that progress be made toward the attainment of the underlying designated use and criterion.

015.05A Each Nebraska surface water quality standard not specifically addressed in a variance will remain applicable.

015.05B Each person requesting a variance is to provide evidence that a designated use and criterion, or a designated use or criterion addressed by the variance cannot be achieved solely by the implementation of technology-based effluent limits.

015.05C Each requirement of the variance is to represent the highest attainable condition of the surface water segment applicable throughout the term of the variance. A specified requirement will not result in lowering the currently attained ambient water quality, unless a variance is necessary for physical reconfiguration activities intended for surface water segment restoration. The highest attainable condition of each affected surface water segment as a quantifiable expression is to be specified as one of the following:

015.05C1 The highest attainable interim criterion;

015.05C2 The interim effluent condition that reflects the greatest pollutant reduction achievable; or

015.05C3 The interim criterion or effluent condition that reflects the greatest pollutant reduction achievable with the pollutant control technologies installed at the time the variance is adopted.

015.05D If the quantifiable expression identified in paragraph 015.05C3 is selected, a pollutant minimization plan consistent with 40 C.F.R 131.3(p) dated July 1, 2018, which is adopted and incorporated by reference, is to be adopted and implemented if no additional feasible pollutant control technology is identified.

015.06 Each variance request will include supporting documentation that demonstrates all of the following:

015.06A Attaining the designated use and criterion is not feasible throughout the term of the variance because of one of the factors cited in paragraphs 015.01A and 015.01B;

015.06B The term of the variance is only as long as necessary to achieve the highest attainable condition; and

015.06C The highest attainable condition of the affected surface water segment is as defined in paragraph 015.05C.

015.07 A discharger that adversely impacts water quality will not be granted a variance from requirements of Title 117, Chapter 3.

015.08 Specific eligibility requirements may be included in a multiple-discharger variance as an alternative to identifying the specific dischargers at the time of adoption of the variance. Each discharger is to meet the eligibility requirements in the applicable section of the "Nebraska Surface Water Quality Standards Variance Register", which will be made available to the public by the Department on its web site.

117 Neb. Admin. Code, ch. 2, § 015

Adopted effective 6/24/2019