Variance White Paper

An Implementation Tool for Compliance with Revised Human Health Criteria for Toxics

What DEQ Proposes To Do

DEQ has current regulatory language to authorize variances, however, a variance has never been requested by a facility in the state of Oregon. Revisions to the variance provisions are needed to clarify when variances are appropriate and how they are justified. Although revisions to the regulatory language will also apply to the aquatic life criteria, the most common circumstances under which DEQ anticipates receiving variance requests include: (1) circumstances where a discharger cannot meet the revised human health water quality criterion for a toxic pollutant because the background concentration of the pollutant is naturally elevated (e.g., arsenic) or elevated as a result of past or ongoing contamination that cannot easily be remedied or would cause more environmental damage to correct than to leave in place (e.g., dieldrin); (2) circumstances in which technology has not yet been proven to consistently remove contaminants to the level needed; and, (3) circumstances where implementation of controls more stringent than technology-based requirements would result in substantial and widespread economic and social impact.

Support and Rationale for Variances

In principle, DEQ believes that under appropriate circumstances, variances could be used as an implementation tool to allow facilities to remain in compliance with water quality standards, despite Oregon’s statewide adoption of very low human health criteria.

1.  Variances are a currently available, legal tool under federal CWA and state water quality rules.

2.  Variances have been successfully used in other states and approved by EPA.

3.  Variances can and have been used as a tool to make environmental progress by requiring the applicant to develop pollutant minimization plans where possible even though they are temporarily not able to achieve permit limits required to meet the criterion.

4.  Variances allow the receiving waterbody to maintain the beneficial use goal for the long term, even if it cannot be achieved in the short term.

5.  Variances can only be granted where they are justified based upon one of the factors at 40 CFR 131.10(g) and .

6.  Cumbersome administrative procedures should not effectively prohibit the use of this tool where it is justified.

7.  Variances could provide regulatory flexibility under a variety of circumstances, including situations where natural or human-caused background pollutants already exceed a water quality standard, if adequately justified based on one of the factors at 40 CFR 131.10(g).

8.  Variances cannot by law remove existing uses or the level of water quality necessary to protect existing uses.

9.  Variances could provide opportunities to use solutions such as offsets or trading where meeting a WQBEL is not feasible through end-of-pipe treatment.

10.  Variances can be used to ensure that the use of NPS BMPs that are cost effective and reasonable to clean up the underlying water quality problem.

11.  Variances would be reviewed every three years pursuant to 40 C.F.R. 131.20(a).

Section 2: Implementation Approach and Procedures

This section outlines DEQ’s general approach and procedures in implementing variances. Detailed guidance will be developed through an Implementation Management Directive subsequent to rule adoption.

General

Conditions Generally Applicable to All Variances:

➢  An applicant for a water quality standards variance must submit a request for a variance to the Department. The application must include all relevant information showing that the requirements for a variance have been satisfied. The burden is on the applicant to demonstrate that attaining the designated use which is not an existing use is not feasible for one of the reasons specified in OAR 340-041-0061(2).

➢  Generally, the duration of a variance will coincide with a reissuance of a NPDES permit. However, variances will be granted for the minimum amount of time needed. This will be determined based on the justification provided by each applicant and subsequent DEQ approval. In no case, shall the Department authorize a variance period greater than 10 yrs. The applicant must either meet the standard upon the expiration of this time period or renew its demonstration pursuant to OAR 340-041-0061(2).

➢  Each variance request is subject to public notification requirements; DEQ expects that the public comment opportunity will be concurrent with the opportunity to comment on the draft permit.

➢  An individual variance is granted for a specific pollutant(s) and beneficial use and does not otherwise modify the water quality standards for the water body including existing uses.

➢  A variance does not exempt the discharger from compliance with applicable technology-based limits or water quality-based limits for other pollutants.

➢  Sources shall continue to achieve the lowest effluent concentration possible under their current operations and treatment. Where pollutant minimization plans are expected to result in improved effluent quality, milestones and/or more stringent effluent quality requirements will be incorporated as part of the variance.

➢  The permittee is required to develop a pollution minimization plan to identify reasonable and cost effective measures for reducing or eliminating pollutant loading. Measures may include, but are not limited to the following: treatment optimization, investigating inflow and infiltration issues; exploring alternate source waters; or examining pre-treatment local limits. Other measures could include trading or offsets. Milestones will be established for pollutant minimization plans to ensure implementation of the measures described in the plan. If circumstances do not exist to minimize pollution, a pollution minimization plan will not be required.

➢  The requirements of the variance will be included as conditions of the NPDES permit.

➢  The variance is effective only after EPA approval for the specified duration.

➢  A variance must demonstrate that it will not remove an existing use.

➢  A variance must demonstrate that implementation of all cost-effective and reasonable best management practices for nonpoint sources which the facility has control over cannot correct the underlying water quality problem.

Administrative Process

1.   Request for Variance

If a facility will ultimately be able to meet effluent limits based on the water quality criterion and WQBEL, but needs additional time to comply (e.g. secure funding, install or optimize treatment technology, etc.), an enforceable compliance schedule is the most appropriate implementation tool and will be developed by the permit writer.

In other cases, a discharger may not be able to achieve the WQBEL developed during the Reasonable Potential Analysis due to factors such as, background concentrations of pollutants, high costs for treatment technologies, or lack of technology that has been consistently shown to remove specific pollutants to very low levels. A facility may be eligible for a variance if it can demonstrate that attaining a designated use is not feasible due to one of the six conditions found under the use attainability analysis (UAA) provisions at 40 CFR 131.10(g). Another case where a variance may be appropriate is when a facility has opportunities to improve its water quality (and possibly meet criteria), but implementation of those measures will occur over time and uncertainty exists regarding the ultimate water quality that the facility is capable of achieving.

In some cases, the most appropriate long term solution may be a change to the designated beneficial use and applicable criteria through a use attainability analysis (UAA). A variance may be issued as an interim measure before adequate information is available and rulemaking can occur to establish the correct attainable use and appropriate criteria.

2.  Variance Evaluation Report

During a pre-application review conference or following the initial review of a permit evaluation, the permittee and permit writer will identify pollutants that will require effluent limits. At that point, the permittee has the option to request a variance, and must be prepared to provide additional documentation, including treatment engineering studies and additional effluent and ambient data¹. This additional information is needed to support a variance justification for not being able to meet a water quality standard on a short term basis. The permit writer will use the additional information to write a “Variance Evaluation Report” that will summarize the applicable information and provide the justification the Department used to approve the permittee’s request for a variance. The Department may request additional information if the supplied information does not adequately support one of the six conditions specified for granting a variance. Generally, the additional information needed would include, but not be limited to:

4.  Pollutant source investigation report

5.  Intake water source and river mile

6.  Receiving waterbody and river mile

7.  Water quality standards at issue

-  designated uses,

-  water quality criterion that cannot be fully attained, whether the QL supersedes the criterion, and

-  303(d) listing status and other related information.

8.  Reason for variance request per 40 CFR 131.10(g) and description why compliance with the water quality standards cannot be achieved

9.  Water quality data summary

a.  intake water concentration (if applicable)

b.  determination of ambient background concentration for pollutant at issue

c.  TMDL if any or other information on sources and pollutant levels

10.  Effluent data summary

a.  effluent concentration

b.  determination of downstream ambient concentration after mixing

11.  Demonstration that advanced treatment technology is necessary to achieve compliance with the water quality standard for which the variance is sought

12.  Treatment or alternative options to treatment considered, and justification describing why these options are either not technically feasible or satisfy the condition described at 40 CFR 131.10(g) . This analysis also includes any facility-controlled nonpoint source actions to reduce the pollutant of concern.

13.  Proposed duration and justification for the requested variance term

14.  Proposed interim discharge limits/conditions representing the lowest level of pollutant(s) achieved during the term of the variance. An interim criterion shall also be determined.

15.  Characterization of associated risk to human health and aquatic life as a result of the variance

3.   DEQ Review and Decision

Once DEQ receives the application, standards and permitting staff will review application for completeness and adequacy and will make approval recommendations to the Director or the Commission. DEQ staff will coordinate its review of the application with the permit development and issuance process. An applicant will need to provide adequate justification showing that at least one of the six variance conditions prevents attainment of the designated use. A description of each variance condition is given below, including the types of situations DEQ is now aware of that may be appropriate for consideration under the different factors.

1.  Naturally occurring pollutant concentrations prevent the attainment of the use

This variance condition describes a situation where natural background concentrations of a pollutant, such as a naturally occurring earth metal, already exceeds or contributes to a water quality criterion violation. This occurrence may be more frequent given proposals to make human health criteria more stringent, use of more robust analytic methods and the expansion of toxics monitoring throughout the state. These pollutants are naturally occurring and may contaminate a facility’s wastewater through the facility’s intake water.

In some cases, dischargers may only be using intake water for non-contact cooling processes which do not increase mass of the pollutant, but can concentrate the pollutant through evaporative processes and water re-use. This may lead the facility to install cost prohibitive treatment to remove very small amounts of pollutant for very little, if any, environmental gain. In addition, some treatment technologies have not yet been proven to reduce pollutants to this level. Although some facilities falling into this category might be able to employ an Intake Credit, most will likely need a variance. Applicants should include, at a minimum, the information below to support this rationale.

▪  Sufficient upstream ambient data to adequately characterize pollutant concentrations.

▪  Sufficient effluent and mixing zone (if receiving waterbody is not water quality limited) analysis data.

▪  Information demonstrating that the pollutant is naturally occurring, including the source or sources of the pollutant and how they enter the facility discharge. In some cases, it can be difficult to distinguish whether the source of the pollutant is naturally occurring or from human-caused pollution. Ultimately, this determination could be based on best professional judgement, however, DEQ staff will review the pollutant investigation report to evaluate whether or not the facility has provided a sound rationale in determining the source of the pollutant.

2.  Natural, ephemeral, intermittent, or low- flow conditions or water levels prevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges without violating State water conservation requirements to enable uses to be met;

DEQ anticipates that this factor is most suitable for use attainability analysis situations where assessments are being done to evaluate water flow conditions related to the attainability of the aquatic life uses. Some states have also used this factor to evaluate the attainability of recreational uses. At this time, DEQ is not aware of any specific situation where this condition would be applicable. As result, DEQ does not foresee variances being developed based on this factor. However, if a situation developed where a variance could be considered under this condition, DEQ will work with EPA to determine course of action.

3.  Human-caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more environmental damage to correct than to leave in place;

Similar to condition #1 above, this factor may be applicable in circumstances where pollutant concentrations already exceed the applicable water quality criteria within the waterbody, but, in this instance, the source of the pollutant is anthropogenic, as opposed to naturally-occurring. An example of this type of human-caused condition is “legacy” pollutants which are ubiquitous in the environment and result from past use of toxic chemicals, such as DDT, PCBs, or dieldrin. Although many of these products have since been banned, some will continue to persist in the environment for many more years and may come from diffuse sources. As with naturally-occurring pollutants, facilities may bring the contaminant into their facilities through process waters (e.g. non-contact cooling), and then discharge the same contaminant (without adding mass) to the receiving waterbody, where the concentration may slightly increase.

One way facilities may use this factor to justify a variance would be to demonstrate that for an individual facility, it is not able to affect the presence of one or more pollutants in their effluent (i.e., “…sources of pollution … cannot be remedied…”). The sources of the pollutant within the watershed may be so diffuse as to make quantifiable estimates difficult (i.e. impeding the facilities’ ability to implement or reduce at source concept), or the amount of treatment needed to reduce the pollutants of concern to necessary effluent concentrations is cost prohibitive or not proven.

Another use of this factor would be to describe how taking an alternative approach would have adverse environmental consequences (i.e., “… would cause more environmental damage to correct than to leave in place.”) For example, for a facility that has non-contact cooling water as part of their process, the cooling water can be used multiple times prior to being discharged. This leads to a reduction in the amount of water the source draws from the river, thereby conserving in-stream water flow and minimizing temperature impacts. The facility could alternatively consider reducing the number of passes to decrease pollutant concentrations in its effluent, but that alternative may contribute to temperature increases in the river and would reduce streamflow in the reach between the withdrawal and the discharge. Other alternatives could include consideration of additional treatment, which could result in other unintended environmental effects, such as potential disposal issues with waste generated from various treatment technologies (e.g. brines, spent resin); or alternative water source issues (e.g. high levels of arsenic in ground water), etc.

4.  Hydrologic modifications preclude the attainment of the use, and it is not feasible to restore the water body to its original condition or to operate such modification in a way that would result in the attainment of the use;

DEQ anticipates that this factor is most suitable for use attainability analysis situations where assessments are being done to evaluate water flow conditions related to the attainability of the aquatic life uses. Some states have also used this factor to evaluate the attainability of recreational uses. At this time, DEQ is not aware of any specific situation where this condition would be applicable. As result, DEQ does not foresee variances being developed based on this factor. However, if a situation developed where a variance could be considered under this condition, DEQ will work with EPA to determine course of action.

5.  Physical conditions related to the natural features of the water body, such as the lack of a proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to [chemical] water quality, preclude attainment of aquatic life protection uses; or

DEQ anticipates that this factor is most suitable for use attainability analysis situations where assessments are being done to evaluate water flow conditions related to the attainability of the aquatic life uses. At this time, DEQ is not aware of any specific situation where this condition would be applicable. As result, DEQ does not foresee variances being developed based on this factor. However, if a situation developed where a variance could be considered under this condition, DEQ will work with EPA to determine course of action.

6.  Controls more stringent than those required by sections 30l (b) (l) (A) and (B) and 306 of the Act would result in substantial and widespread economic and social impact.

EPA has developed a guidance which describes the steps involved in the determination of “substantial and widespread economic and social impact” for point sources covered by sections 301(b) and 306 of the Clean Water Act. EPA’s 1995 Economic Interim Guidance for Water Quality Standards (EPA-823-B-95-002) is not an exhaustive description of all appropriate economic analyses; however, a justification submitted consistent with this guidance would be most likely to meet EPA’s needs in order to approve a variance under this condition. This document can be accessed at: http://www.epa.gov/waterscience/standards/econworkbook/. Below is a diagram taken from the guidance which describes the basic steps in determining substantial and widespread economic impact for both private and public entities.

4.  Public Notification Process

Public notice is required as part of the variance approval process. This requirement can be done in conjunction with the public notice and comment period of a NPDES permit. As required by state and federal law, the Department will provide public notice of the proposed action and allow a minimum of 35 days to submit written comments. The Department will schedule a public hearing to allow interested parties to submit oral or written comments if the Department receives written requests for a public hearing during the public comment period from at least ten persons or from an organization or organizations representing at least ten persons. The Department will then provide a minimum of 30 days notice for a hearing if one is scheduled.

5.  EPA Approval Process

Individual variances will be approved by action of the DEQ Director. The variance is not effective, however, until it has been approved by EPA because it is a change to Oregon’s water quality standards. DEQ will submit the variance evaluation report along with DEQ approval documentation to EPA Region 10 within XXX weeks of the issuance of the variance. EPA standards staff will evaluate the variance package and determine whether or not the documentation supports the proposed variance.

Aquatic life criteria variances submitted to EPA for approval are subject to Endangered Species Act (ESA) consultation requirements. Section 7(a)(2) of the ESA requires that federal agencies, in consultation with the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration Fisheries, ensure that their actions are not likely to jeopardize the existence of federally listed species or result in the adverse modification of designated critical habitat of such species. Extended time for ESA consultation will need to be built into the standard variance approval timeframe.

EPA has 60 days to review the application and respond. EPA and DEQ will work together to develop mutually acceptable timeframes for variance approvals. The effective date of the variance will be no earlier than the date of EPA approval.

6.  Public Information on Variances

The Department will publish a list of all approved variances to state water quality standards that have been granted by the state and approved by EPA on the DEQ standards website @ XXXXXXXXXX. Newly granted variances will be added to this list within 30 days of their effective date. The list will identify: (1) the person or entity for which the variance was granted; (2) the underlying water quality standards to which the variance was granted; (3) the water(s) affected; (4) the effective and expiration dates of the variance; (5) the allowable pollutant limit granted under the variance; and (6) where additional information on the variance may be found.

7.  Renewal process

Variances may be renewed if an applicant reapplies and demonstrates that the designated use is still not attainable or that the conditions upon which the variance was granted continue to exist at the time of the permit renewal. Renewal of the variance may be denied if the applicant does not comply with the conditions of the original variance or otherwise does not meet the requirements set forth in variance regulations. In addition the Department will require the permittee to submit information demonstrating that reasonable progress has been made towards achieving the underlying water quality standard.

Requirements and Conditions for a Variance

General

Approved variances, including interim conditions and requirements, will be incorporated into NPDES permits. Interim variance conditions and requirements will be developed on a case by case basis depending on the circumstances of the facility requesting the variance. At a minimum, each facility requesting a variance will be required to:

1.  Demonstrate that advanced treatment technology is necessary to achieve compliance with the water quality standard for which the variance is sought.

2.  Describe treatment or alternative options considered to meet water quality standards, and describe why these options are either not technically feasible or how the variance would satisfy the condition described at OAR 340-041-0061(2).

3.  Comply with applicable technology-based limits or water quality-based limits for other pollutants.

4.  Continue to achieve the lowest effluent concentration possible under current operations and treatment. At a minimum, these requirements will reflect the best effluent quality achieved under current operations and treatment, presuming the facility is operating the system at optimum performance levels under a variety of environmental conditions. Where changes in operations or treatment are expected to improve effluent quality, those expected improvements will be reflected in the required effluent concentrations.

5.  Describe and implement opportunities to reduce the pollutant of concern. For example, treatment optimization strategies or source reduction opportunities will be implemented where possible. These activities would be included in a Pollution Minimization Plan (PMP).

Pollution Minimization Plan (PMP)

In cases where a facility is contributing to significant increases in pollutant concentrations to the receiving stream, a PMP will be developed as part of the condition for granting a variance. “Significant” will be assessed based on the information presented for each variance. For example, a facility that only uses intake water for non-contact cooling purposes may only slightly increase the pollutant (naturally occurring or human-caused) concentration from ambient conditions. A PMP would not be required, since the facility is passing through contaminants already found in the intake water and not adding additional mass. Similarly, DEQ would not likely require a PMP in instances where the facility’s effluent shows a slight increase in concentration and alternatives to reduce the effluent concentration are unavailable.

Conversely, where a discharge results in a water quality criterion exceedance through a facility’s industrial process, source materials used, and/or inflow and infiltration issues, and treatment to reduce effluent concentrations are not available, the Department would work with the facility to develop a PMP to reduce the pollutant of concern, including milestones for implementation.

The objective of a PMP is to implement, where possible, activities which could reduce the amount of pollutant reaching a waterbody. The intent is to reduce pollutant contributions to the maximum extent practicable and, while water quality standards may be achieved following implementation, it is not an explicit requirement of the PMP. Interim milestones based on implementation measures would also be identified in a PMP. PMP activities could include, but not be limited to the following:

1.   Source Reduction

In some cases, a facility may be able to identify major contributors of a pollutant of concern. In other cases, sources are unclear and not quantifiable. The most economic and effective way of reducing overall toxics in the environment may be to reduce the use of these materials whenever possible, as described below. Interim milestones could be developed based on the time needed to set up and implement public education campaigns, a mercury take back program, or develop additional requirements for a pre-treatment program, etc.

o  explore alternate sources for intake water

For example, there may be a ground water or surface water source that could be available to the facility, thus avoiding a water quality criterion violation which would have otherwise occurred. However, the facility would need to balance the advantages and disadvantages of using this source. If a facility knows that an alternate source is available which would meet water quality criteria, a compliance schedule to allow time needed to implement the change in process could be the better alternative. If the outcome is uncertain, then a variance may still be the appropriate tool.

o  material substitution

In the case of source material, some pollutants “hitchhike” onto raw materials used in industrial processes, such as wood forest products or the electronics industry. Facilities may be able to substitute materials containing pollutants with other, less toxic, materials. Manufacturers may also be able to reformulate products to be environmentally safer, cost competitive, and effective. If a facility is able to substitute materials used in their industrial process for less toxic ones, it may want a compliance schedule to allow time needed to implement the change in process. If the outcome is uncertain, then a variance may be the appropriate tool.

o  pollution prevention programs

In some circumstances, the discharger may not be responsible for background pollutants, but may be able to help fund or initiate outreach and education efforts to reduce the pollutant source entering their facility (e.g. mercury take back programs).

o  develop pre-treatment local limits

A POTW may have a pre-treatment program for a categorical standard, but those limits do not necessarily reduce the amount of another toxic pollutant not covered by that standard. A POTW could develop a local limit for all the indirect industrial users to help reduce the pollutant of concern from entering the collection system, thus reducing potential treatment costs and receiving water concentrations.

o  offsets/trading

Offsets may allow a permittee to reduce loading from an upstream source in order to create the assimilative capacity they need to meet water quality standards downstream at the discharge point. If sufficient assimilative capacity was reached and a water quality criterion met, the facility would not need to apply for a variance. This may not be feasible in situations where legacy or naturally-occurring pollutants are diffuse in the environment and are not easily identifiable or preventable.

2.   Treatment/Process Optimization Strategies  

o  Investigate inflow and infiltration interactions

For example, a POTW may have an antiquated collection system which allows arsenic from ground water to seep through cracked pipes and be carried as influent to the treatment plant, thus contributing to an exceedance of the arsenic water quality criterion. A facility could develop interim limits based on expected capital improvements to the collection system. For instance, the variance could include a requirement that X feet of leaking pipes would be replaced, or that X% of capital improvements would be made over a certain time period.

o  Optimize current treatment technology

Treatment optimization may be most feasible where relatively low pollutant reductions are needed, or where sampling data show that pollutant loads increase throughout the treatment process as a result of chemical additions or treatment techniques. It may, however, be difficult to see improvements in removal efficiencies if the facility is already well-maintained and operated. Some optimization strategies include:

✓  Operator training

✓  Maintenance activities

✓  Adjusting coagulant doses

✓  Increasing filter maintenance and backwash cycles

✓  Installation of automation equipment

Section 3: Questions and Answers

1.  The Oregon Environmental Quality Commission currently has the authority to grant variances. Why is the Department proposing changes to allow it to also hold that authority? Is it legal for DEQ to grant variances, instead of the EQC?

To foster efficiency in the administrative process for granting variances, the Department is proposing changes to allow the Director of DEQ to authorize variances. The EQC generally meets every six weeks, however, agendas are typically very full and items brought to the EQC require an additional 6 weeks lead time for DEQ staff to prepare the materials. A backlog of variance requests may lead to delays in approval. DEQ thinks that when variances are granted, the process for granting the variance should occur at the same time as the permit issuance. By giving authority to the DEQ Director, the variance approval process will be more efficient and timely.

It is legal for DEQ to grant variances. By adopting the authorizing rule language granting the Department to grant variances, the EQC is delegating that authority to the Department.

2.  Under what circumstances will the Department grant a variance, and likewise, under what circumstances will the Commission grant a variance?

The Department will grant individual variances that are applicable to a single facility. Unique circumstances or controversial situations may warrant EQC approval. This will be determined on a case by case basis.

A multiple discharge variance requires explicit rulemaking to address the particular facility/pollutant situation. As such, the Commission would adopt such rules. Additionally, circumstances where a variance would apply to a waterbody as opposed to an individual facility would also be granted by the Commission.

3.  How will the Department ensure integrity and consistency in the process for granting variances? Is there a public appeals process?

The Department will develop an IMD to guide the variance process. It will focus on the application requirements and procedures, justification for requesting a variance, establishing interim permit conditions under a variance, approval and renewal process, and situations where a variance would not be appropriate or approved.

In addition, every variance request will be subject to public notice and comment requirements. DEQ expects to satisfy these requirements by including the proposed variance in the public notice for a draft NPDES permit.

DEQ and EPA will work together to develop mutually acceptable timeframes to guide the variance approval process. In addition, DEQ anticipates assistance from EPA in conducting reviews based on the economic condition.

If a member of the public provided comments during the public comment period and does not support a decision by DEQ, he or she will have the same recourse available to the public to appeal any other part of the permit by making a request to the Department to reconsider the decision to grant a variance.

4.  Why is the Department changing the allowable maximum duration for a variance? Why does the Department believe this maximum duration is appropriate?

The Department is changing the duration of a variance to coincide with the duration of a NPDES permit. In this approach, the duration of the water quality variance would not exceed the term of the permit. This avoids the situation where a variance expires before a new permit is reissued. This dovetailing fosters efficiency in the administrative process for granting variances and streamlines the public notice and comment requirements for both variance and NPDES permits. If a permit is not reviewed within the 5 year timeframe, the variance will remain in effect until the permit is reissued or revoked. Under no circumstances would a variance continue for greater than 10 years.

5.  Isn’t there a requirement under Clean Water Act section 303(c)(1) which requires DEQ to review a variance on a triennial basis? How does this mesh with a variance that has been approved for a period longer than 3 years?

Section 303(c) of the CWA requires states to conduct a triennial review of their water quality standards. If the state adopts new or revised water quality standards, they must be submitted to EPA for approval. A variance is considered a temporary change to a water quality standard, so would fall under this three year review requirement. However, section 303(c) does not require an expiration and re-adoption of standards every three years, rather, it is an opportunity to identify what standards need to be revised based on updated science or other circumstances. If during a triennial review process information is submitted to the Department showing that the conditions on which the variance was based and/or the justification for the variance are no longer valid, the variance could be terminated by the Department of the Commission.

6.  During the variance period, will an effluent limit be included in the facility’s permit for the pollutant which is the subject of the variance? How will DEQ determine what the interim effluent limit should be?

During the variance period, the facility will be required to achieve the lowest effluent concentration possible under current operations and treatment. At a minimum, these requirements will reflect the best effluent quality achieved under current operations and treatment, presuming the facility is operating the system at optimum performance levels under a variety of environmental conditions. In some cases, the discharger may be able to reduce pollutant concentrations in its effluent through source reduction, treatment optimization, or other pollutant minimization strategies. In these cases, a lower effluent limit may be possible to achieve and would be incorporated into an interim limit.

7.  How will the Department ensure that reasonable progress is being made toward meeting the underlying or original water quality standards during the variance period?

Where appropriate, the Department will condition the variance on the performance of additional studies, monitoring, development and implementation of specific activities contained in the pollutant minimization plan, implementation of pollutant offsets or trading, and/or other controls deemed necessary. Where required, these terms and conditions, as well as milestones, and monitoring and reporting requirements will be incorporated into the applicant's NPDES permit or department order.

8.  How does the antidegradation process fit with the variance process?

An antidegradation policy provides a means for maintaining and protecting water quality of surface waters by requiring that all activities with the potential to affect existing water quality undergo review and comment prior to any decision to approve or deny a permit or certificate for the activity. Any activity that proposes to discharge a new or increased load (beyond loads presently allowed in an existing permit) or that will lower the water quality of a high quality water is subject to an antidegradation review. A permit application that will result in a discharge of a new or increased load or that will lower water quality is subject to an antidegradation review. However, permit renewals with the same or lower discharge load as the previous permit may not be considered as a lowering of water quality from existing water quality conditions. DEQ anticipates that facilities applying for a variance from a revised human health criterion will not be increasing discharge loads from their current NPDES discharge loads. Nothing in the variance provisions removes the antidegradation review requirements where they apply.

9.  Could a new or expanding discharge receive a variance?

DEQ does not intend to grant variances for new facilities. DEQ would closely analyze any requests for variances for expanding facilities or newly permitted facilities. DEQ’s preference, in these circumstances, would be to use a compliance schedule, if needed, to achieve water quality standards.

10.  Would a variance be subject to public notice and comment requirements?

Yes, as with revisions to state water quality standards, a variance request would also require public notice and comment. Since variances will be linked to the NPDES permitting cycle, public notice can serve both permitting and variance requirements.

11.  What sort of requirements would be expected under a pollutant minimization plan?

A pollutant minimization plan would be developed based on factors such as, discharge concentrations, pollutant source, fate and transport of the pollutant in the environment, current treatment technology, etc. For example, if a discharger is not increasing mass, but there is a slight increase in concentration of a background pollutant to a receiving stream, the Department may not require additional measures. Conversely, where a discharge results in a water quality criterion exceedance through a facility’s industrial process, source materials used, and/or inflow and infiltration issues, and treatment to reduce effluent concentrations are not available, the Department would work with the facility to develop a PMP to reduce the pollutant of concern, including milestones for implementation, as appropriate.

12.  What information would be needed to justify a request for renewal of a variance? Does a renewal need to be reviewed and approved by EPA?

Variances may be renewed if an applicant reapplies and demonstrates that the designated use is still not attainable or that the conditions upon which the variance was granted continue to exist at the time of the permit renewal. Renewal of the variance may be denied if the applicant does not comply with the conditions of the original variance or otherwise does not meet the requirements set forth in variance regulations. If applicable, the Department will require the applicant to submit information demonstrating that reasonable progress has been made towards achieving the underlying water quality standard.

Yes, EPA would need to review and approve a request for a renewal, as this is a short-term exemption from meeting water quality standards.

13.  If a facility is approved for a variance, does it mean that the facility will never be in compliance with the water quality criterion?

No. Variances may only be used on a short-term basis from meeting an applicable water quality standard. If an applicant is not able to meet the criterion by the expiration of the variance time limit, the applicant would need to demonstrate that the conditions upon which the variance was granted continue to exist in order to be approved for renewal. The renewal request is an opportunity to ascertain progress in meeting the applicable water quality criterion and to determine next steps. DEQ’s goal is to maintain the underlying designated use even if the use cannot be met in the short term. However, DEQ would consider a use attainability analysis to determine whether or not the designated use continues to be appropriate. If the analysis indicated that the designated could not be supported, changes to the water quality standards (the beneficial use designation and criteria) through a use attainability analysis and rule-making may be appropriate.

14.  Will the Department allow a multi-discharger permit?

The variance authorizing language being proposed by the Department is directed to individual facilities.

A multiple discharge variance requires explicit rulemaking to address the particular facility/pollutant situation. As such, the Commission would adopt such rules. Additionally, circumstances where a variance would apply to a waterbody as opposed to an individual facility would also be granted by the Commission.

15.   Are there any situations where the Department would not approve a variance to a facility based on certain circumstances?

Although the Department anticipates that variances will be a useful tool to comply with revised human health toxics criteria, there may be situations where a variance will not be appropriate. For example, in situations where:

a.  a use attainability analysis is the more appropriate long term goal, although a variance may be an option if time is needed to demonstrate a different designated use;

b.  discharge concentrations would pose an unreasonable risk to human health;

c.  discharge concentrations would likely jeopardize the continued existence of any threatened or endangered species listed under section 4 of the Endangered Species Act or result in the destruction or adverse modification of such species' critical habitat;

d.  the Department disagrees with the information or rationale presented to justify the variance under one of the 6 factors that must be used to allow a variance or does not believe the applicant has provided sufficient measures for reducing or mitigating its contribution;

e.  a new facility requests a variance

History of EPA Policy and Guidance on Variances

This data is in addition to the data submitted in the initial permit application or developed by the permit writer.

2009-12-29T16:01:00
[AM1]
Andrea Matzke
Need to verify number

2009-12-29T16:01:00
[NB2]
Nina Bell
So, if this is only about the new criteria, why is the provision applying to all pollutants? And, if it is, why doesn’t this paper address the other pollutants?

2009-12-29T16:01:00
[NB3]
Nina Bell
If to date the only states that have done this are under the GLI, I suggest that you say so. As you know, the GLI does not apply to Oregon and it is my opinion that DEQ and EPA are going out on a limb plucking random bits from the GLI for Oregon.

2009-12-29T16:01:00
[NB4]
Nina Bell
I think this is a mistake. (1) we have not discussed how this applies to a wide range of pollutants, (2) this will require ESA consultation on EPA’s action on the rule, (3) the existing use protection requirement will be harder to address for aquatic life than for human health and (4) it does not appear that DEQ has thought about how this will work for aquatic life.

2009-12-29T16:01:00
[NB5]
Nina Bell
The existing use protection and the NPS BMPs. Please note that (g)(3) is modified by (h)(2).

2009-12-29T16:01:00
[NB6]
Nina Bell
Language from 131.12(a)(1). This demonstrates how the antidegradation policy works with the variance/designated use removal rules.

2009-12-29T16:01:00
[NB7]
Nina Bell
Likewise, this language is the same as Tier II protections of antidegradation.

2009-12-29T16:01:00
[NB8]
Nina Bell
Why does DEQ think it can have a variable term variance that lengthens with an administratively extended permit?

2009-12-29T16:01:00
[NB9]
Nina Bell
40 C.F.R. 131.20(a) applies to Oregon.

2009-12-29T16:01:00
[NB10]
Nina Bell
Even the GLI does not allow variances longer than 5 years or the term of a permit. 40 CFR Pt. 132, App. F Procedure 2 B. “…shall not exceed five years of the term of the NPDES permit.” Plain language. Why does DEQ think that GLI even applies to Oregon? Why does DEQ think that it can go beyond GLI?

2009-12-29T16:01:00
[NB11]
Nina Bell
Wrong. Designated use that is not an existing use.

2009-12-29T16:01:00
[NB12]
Nina Bell
Here or somewhere it might be useful for DEQ to explain why existing uses are the “floor” of CWA protections and why they cannot be waived.

2009-12-29T16:01:00
[AM13]
Andrea Matzke
Will need to re-work this section based on input from permit writer staff

2009-12-29T16:01:00
[AM14]
Andrea Matzke
This report may include some of the numbered items listed below. Right now, the purpose of this section is to try and capture information needed. We’ll work on the format of the variance, in terms of the specific requirements, and how to fold it into a NPDES permit during the development of an IMD.

2009-12-29T16:01:00
[NB15]
Nina Bell
A variance is a change in water quality standards which means an interim criterion, not just an interim WQBEL.

2009-12-29T16:01:00
[AM16]
Andrea Matzke
Various DEQ internal deadlines will be decided at a later date

2009-12-29T16:01:00
[AM17]
Andrea Matzke
Spencer Comment: This needs to be re-worked to reflect a Variance evaluation report process. A major element of this will be in determining responsibility between Standards and Permitting staff for the development of the Report. Additionally it will be necessary to determine the appropriate amount of organizational review.

2009-12-29T16:01:00
[AM18]
Andrea Matzke
Spencer comment: This needs to be re-worked to reflect evaluation report format

2009-12-29T16:01:00
[NB19]
Nina Bell
Public HEARINGS are required to change standards. 40 CFR 131.20(a).& (b)

2009-12-29T16:01:00
[AM20]
Andrea Matzke
Need to confirm what public notice regs to reference—this language is found in Division 45…

2009-12-29T16:01:00
[NB21]
Nina Bell
Not adequate, see above.

2009-12-29T16:01:00
[NB22]
Nina Bell
What’s missing here is anything about DEQ’s obligations. One might think it’s in the next section, Requirements and Conditions for a Variance but that is really just a rehash of what the requester needs to do.

There needs to be a section about DEQ that states that DEQ will ensure that existing uses and the water quality necessary to protect them will be identified and protected, that DEQ will issue temporary replacement criteria, that it will evaluate the impact to existing uses, that it will identify the conditions that will apply during the variance period, that DEQ will evaluate why this is temporary and what it expects will happen over time to ensure that it is the case, ETC.

2009-12-29T16:01:00
[AM23]
Andrea Matzke
Might be good to include some rough timelines here given this additional requirement for consultation.

2009-12-29T16:01:00
[AM24]
Andrea Matzke
We’ll need to develop some time lines for renewals—e.g. 1 yr prior to expiration.—most likely same schedule as a NPDES permit

2009-12-29T16:01:00
[NB25]
Nina Bell
If DEQ is serious about this, it needs to think about what kind of information is needed at the time of the variance request and what kind of information must be gathered. Otherwise, it’s just lip service. Also worth noting that this is GLI language. It would be better to use the language in the actual federal rules that apply to Oregon.

2009-12-29T16:01:00
[NB26]
Nina Bell
Again, what this is skipping is a section in which DEQ describes its obligations to, for example, state the interim conditions and requirements, and the interim criterion. This section seems to be rehash of the stuff that has come before. I’m not sure what it adds to the application process.

2009-12-29T16:01:00
[NB27]
Nina Bell
This should be written in a more consistent fashion so that it says what DEQ will do and what the source will do. Right now it mixes up shoulds and coulds and wills and requires and mights and it’s kind of a jumble as to who is deciding what needs to get done and what can get done.

2009-12-29T16:01:00
[AM28]
Andrea Matzke
Spencer comment : We need to tie this to a quantifiable value such as a limit derived from a less conservative effluent limit such as a HH criteria of 10E-4 or -5. Just putting in a % or ambiguous definition of “significance” will lead to great difficulty in implementing a consistent WQ policy.

2009-12-29T16:01:00
[NB29]
Nina Bell
It would seem that significance might be based on the underlying criterion. For example, the hypothetical variance provided evaluates significance based on changes that range from 0.00008 – 0.0035 which doesn’t look significant until you see that the criterion itself is established at 0.0000053. So, is significance based on the QL? On how small the criterion is? On what?

2009-12-29T16:01:00
[NB30]
Nina Bell
This should be clearly stated as an addition of pollutant if that’s what it means. And I’d like to know why DEQ thinks that an increase that is not a pass-through isn’t significant? And why is the issue only “alternatives to reduce the effluent concentration” when the rules specifically discuss nonpoint sources? And where is this slight increase in concentration being measured, after mixing? I’m OK with that for concentrated intake pollutants but not additions. And how does “slight” relate to “significant”?

2009-12-29T16:01:00
[NB31]
Nina Bell
Please read the Pretreatment paper for a broader list of ideas because this is too limited.

2009-12-29T16:01:00
[NB32]
Nina Bell
If DEQ is serious about this, it’s time for the issue paper to reflect it. Instead, it’s silent.

2009-12-29T16:01:00
[NB33]
Nina Bell
Presumably not what you proposed in your draft? Because it’s not very explicit.

2009-12-29T16:01:00
[NB34]
Nina Bell
It’s time for DEQ to start thinking about temporary standards instead of just variances. In my opinion, what you’re talking about is not allowed.

2009-12-29T16:01:00
[NB35]
Nina Bell
Why does the department think it’s legal? How will the department address the requirements of the regulations for a three year review?

2009-12-29T16:01:00
[NB36]
Nina Bell
See previous comments about GLI. Note that GLI also contained an explicit permit reopener that DEQ doesn’t discuss.

2009-12-29T16:01:00
[NB37]
Nina Bell
Would be better citing the regulations in this instance. And then answer the question. 131.20(a) “shall be reexamined if new information has become available.” That means there are a number of steps, such as determining whether new information has become available, ensuring that new information would become available if there were something new, etc.

2009-12-29T16:01:00
[NB38]
Nina Bell
What is DEQ going to do to ensure that information is generated? This should be the obligation of the source that is obtaining the variance to pollute public waters.

2009-12-29T16:01:00
[NB39]
Nina Bell
It would be worth searching all of the DEQ documents for this common problem of using a plural where it should be singular.

2009-12-29T16:01:00
[NB40]
Nina Bell
reopener

2009-12-29T16:01:00
[NB41]
Nina Bell
Once again, utterly silent on nps despite applicable federal regulations. Reopener. New information.

2009-12-29T16:01:00
[NB42]
Nina Bell
This is a faulty reading of the antidegradation policy. The policy is much more than the Tier II review. How can DEQ answer this question without any reference whatsoever to existing uses which are not only a requirement of the policy but are mentioned TWICE in the sections that apply to variances? Same with the nonpoint source requirements that are repeated in both sections of federal regulations. It’s time to consider how to protect existing uses and it’s time to consider how failure to control NPS is going to affect PS.

2009-12-29T16:01:00
[NB43]
Nina Bell
Once again, DEQ goes beyond GLI! It’s amazing to me that the Department picks out the lax aspects of GLI, goes beyond them, and then leaves the more strict ones behind. FYI GLI prohibits the use of variances for new sources. Plus this appears to ignore Pinto Creek.

2009-12-29T16:01:00
[NB44]
Nina Bell
Hearings are required for changes to standards.

2009-12-29T16:01:00
[NB45]
Nina Bell
If not applicable, why not?

2009-12-29T16:01:00
[NB46]
Nina Bell
GLI term. What does this really mean here? what kind of information are we talking about?

2009-12-29T16:01:00
[NB47]
Nina Bell
Also the conditions OF the variance need to have been met.

2009-12-29T16:01:00
[NB48]
Nina Bell
This sounds very passive. In other words, it does not sound as if DEQ plans to take this seriously.

2009-12-29T16:01:00
[AM49]
Andrea Matzke
DEQ is still working on the language here for a potential MDV for non-contact cooling.

2009-12-29T16:01:00
[NB50]
Nina Bell
Repeats what was said already which isn’t much. Clearly DEQ is proposing a very drastic solution without having given it much thought at all.

2009-12-29T16:01:00
[NB51]
Nina Bell
vague

2009-12-29T16:01:00
[NB52]
Nina Bell
also vague. Inappropriate to plop this in to a document that otherwise ignores T&E species and aquatic life criteria.