N.Y. Comp. Codes R. & Regs. tit. 6 § 702.17

Current through Register Vol. 46, No. 50, December 11, 2024

Section 702.17 - Variances to effluent limitations based on standards and guidance values

(a) The department may grant, to an applicant for a SPDES permit or to a SPDES permittee, a variance to a water quality-based effluent limitation or groundwater effluent limitation included in a SPDES permit.

(1) A variance applies only to the permittee identified in such variance and only to the pollutant specified in the variance. A variance does not affect or require the department to modify a corresponding standard or guidance value. A variance does not affect or require the department to modify a corresponding groundwater effluent limitation for the groundwater as a whole.

(2) A variance shall not apply to a new or recommencing discharger in the Great Lakes System unless the proposed discharge is a temporary one that is necessary to alleviate an imminent and substantial danger to the public health or the environment that is greater than the danger from not achieving the standard or guidance value. For the purpose of this Part, an imminent and substantial danger to the public health or the environment shall include, but not be limited to, a significant threat to the environment as defined in Part 375 of this Title.

(3) A variance shall not be granted that would likely jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of such species' critical habitat.

(4) A variance shall not be granted if standards or guidance values will be attained by implementing effluent limits required under section 750-1.11(a) of this Title and by the permittee implementing cost-effective and reasonable best management practices for nonpoint source control.

(5) A variance term shall not exceed the term of the SPDES permit. Where the term of the variance is the same as the permit, the variance shall stay in effect until the permit is reissued, modified or revoked.

(b) A variance may be granted if the requester demonstrates that achieving the effluent limitation is not feasible because:

(1) naturally occurring pollutant concentrations prevent attainment of the standard or guidance value;

(2) natural, ephemeral, intermittent or low flow conditions or water levels prevent attainment, unless these conditions may be compensated for by the discharge of sufficient volume of effluent to enable the standard or guidance value to be met without violating water conservation requirements;

(3) human-caused conditions or sources of pollution prevent attainment of the standard or guidance value and cannot be remedied or would cause more environmental damage to correct than to leave in place;

(4) dams, diversions or other types of hydrologic modifications preclude attainment of the standard or guidance value, and it is not feasible to restore the waterbody to its original condition or to operate such modification in a way that would result in such attainment;

(5) physical conditions related to the natural features of the waterbody, such as the lack of a proper substrate cover, flow, depth, pools, riffles, and the like, unrelated to chemical water quality, preclude attainment of the standard or guidance value; or

(6) controls more stringent than those required by section 750-1.11(a) of this Title would result in substantial and widespread economic and social impact.

(c) In addition to the requirements of subdivision (b) of this section, the requestor shall also characterize, using adequate and sufficient data and principles, any increased risk to human health and the environment associated with granting the variance compared with attainment of the standard or guidance value absent the variance, and demonstrate to the satisfaction of the department that the risk will not adversely affect the public health, safety and welfare.

(d) The requestor shall submit a written application for a variance to the department. The application shall include:

(1) all relevant information demonstrating that achieving the effluent limitation is not feasible based on subdivision (b) of this section; and

(2) all relevant information demonstrating compliance with the conditions in subdivision (c) of this section.

(e) Where a request for a variance satisfies the requirements of this section, the department shall authorize the variance through the SPDES permit. The variance request shall be available to the public for review during the public notice period for the permit. The permit shall contain all conditions needed to implement the variance. Such conditions shall, at minimum, include:

(1) compliance with an initial effluent limitation that, at the time the variance is granted, represents the level currently achievable by the requestor, and that is no less stringent than that achieved under the previous permit where applicable;

(2) that reasonable progress be made toward achieving the effluent limitation based on the standard or guidance value, including, where reasonable, an effluent limitation more stringent than the initial effluent limitation;

(3) additional monitoring, biological studies and pollutant minimization measures as deemed necessary by the department;

(4) when the duration of a variance is shorter than the duration of a permit, compliance with an effluent limitation sufficient to meet the underlying standard or guidance value, upon the expiration of the variance; and

(5) a provision that allows the department to reopen and modify the permit for revisions to the variance.

(f) The department shall deny a variance request if the requestor fails to make the demonstrations required under subdivisions (b) and (c) of this section.

(g) A variance may be renewed, subject to the requirements of this section. As part of any renewal application, the permittee shall again demonstrate that achieving the effluent limitation is not feasible based on the requirements of this section. The permittee's application shall also contain information concerning its compliance with the conditions incorporated into its permit as part of the original variance pursuant to subdivisions (b) and (c) of this section. Renewal of a variance may be denied if the permittee did not comply with the conditions of the original variance.

(h) Where the department determines that a multiple discharge variance is necessary to address widespread standard or guidance value attainment issues including the presence of a ubiquitous pollutant or naturally high levels of a pollutant in a watershed, the department, in lieu of the discharger, may conduct the variance demonstration requirements in subdivisions (b) and (c) of this section. Any permittee accepting such variance shall be subject to the provisions of subdivision (e) of this section.

(i) The department will make available to the public a list of every variance that has been granted and that remains in effect.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 702.17