Summary of DEQ’s Draft Proposed Revisions to Variance Rule

Objective: Restructure the Variance Rule to Increase Clarity

The draft proposed revisions to the variance rule include the following structural changes in order to increase the overall clarity of the variance rule:

1.  The current variance procedures are included in Division 41 under the rule titled “Other Implementation of Water Quality Criteria” (OAR 340-041-0061). The draft proposed revisions separate the variance procedures into its own rule.

2.  The draft proposed revisions divide the variance rule into sections which include new section headings.

Objective: Streamline the Process for Granting Individual Variances

The draft proposed revisions to the variance rule shown below streamline the process for granting individual variances in the following ways:

1.  Clarify that variances may be granted by the DEQ Director as well as the Oregon Environmental Quality Commission.

2.  Require that DEQ make a list of variances that have been granted available to the public and kept up to date. Because variances may not be adopted as administrative rules, it is important to DEQ to provide another means by which the variances are published.

3.  Coordinate the variance request, review and public notice procedures with NPDES permit issuance/renewal when possible.

4.  Allow the duration of the variance to be tailored to the situation and specified in each variance, with the limitation that an individual point source variances granted by the DEQ Director may not exceed 10 years. Specifying the duration in the individual variance rather than in the authorizing rule will enable the term of the variance and the permit to coincide or reduce the staff resource demands if a longer variance period is appropriate because the variance will not need to be re-issued.

Objective: Clarify the Conditions that Apply During the Variance Period

The revisions to the variance rule should clarify the procedures by which DEQ will decide what conditions should apply during the variance period.

Note: A source that receives a variance from meeting the water quality criteria must still comply with all applicable technology based limits.

1.  An existing source will at a minimum, have a permit limit equal to their current pollutant load based on discharge monitoring.

2.  The Department may require that the permittee develop a plan for pollution minimization, trading or offsets and/or establish permit conditions that reflect the feasible actions the facility can take to reduce and/or control their pollutant load during the variance period, even though they can not meet the water quality criteria.

This is an area where further work is needed.

Objective: Provide the Flexibility to Grant a Variance to Multiple Dischargers, if Appropriate

1.  The phrase “or point sources” was included in the “applicability” section of the rule to make clear that the department and commission have the flexibility to grant a variance to multiple dischargers if appropriate in the future.

Next Steps

1.  DEQ will need to develop requirements and procedures for variance application and issuance, determine which of those requirements/procedures must be included in an administrative rule and share proposed draft rules with the RWG.

Process-related questions include:

a.  What information must an applicant provide to the Department to obtain a variance?

b.  What steps will be involved in DEQ’s review process?

c.  What criteria will the Department use in determining whether to approve a variance? Particularly for the factor that considers economic harm.

d.  How will any variance conditions be determined and incorporated into the permit?

e.  What monitoring and reporting requirements will be included?

2.  DEQ and EPA R10 will work together to develop a process for coordination and streamlining of the variance review and approval process by EPA. The objectives of the agreement would be to establish an efficient and consistent process and a reasonable timeline for EPA approval of variances grated by DEQ. The intent is that this will improve the certainty and usefulness of variances as a criteria permitting tool in appropriate circumstances. Coordination-related questions that may include the following:

a.  How will DEQ coordinate internally between WQS and Permits programs?

b.  How will DEQ coordinate with EPA R10?

c.  How will EPA coordinate internally between their WQS and Permits programs?

d.  Can timeframes be agreed to and followed for various steps in the process to ensure timely action on the variance?

e.  What else should be included in a procedural agreement between ODEQ and EPA Region 10 to coordinate and streamline the review process for the variance and ensure timely approvals?

DEQ’s Draft Proposed Revisions to Variance Rule

340-041-006100xx

(2) Water qQuality vVariances.

(1) Applicability. The commission or department may grant point source variances from the water quality standards in this Division where the following requirements in this rule are met.

(a) The water quality variance may apply only to the point source or point sources for which the variance is requested and only to the pollutant or pollutants specified in the variance; the underlying water quality standard otherwise remains in effect.

(b) A water quality standard variance may not be granted if:

(A) Standards will be attained by all point source dischargers implementing effluent limitations required under sections 301(b) and 306 of the federal Clean Water Act and by nonpoint sources implementing cost-effective and reasonable best management practices; or

(B) The variance 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.

(c) The variance is effective only after EPA approval. The effective date will be specified in the variance or in an NPDES permit.

(d) The duration of the variance period must be specified as part of each variance. In no case shall the Department authorize a variance period greater than 10 years for an individual point source variance.

(c)2. Conditions to Grant a Variance. Before a variance is granted, the applicant must demonstrate that attaining the water quality standard is not feasible for one of the following reasons:

(Aa) Naturally occurring pollutant concentrations prevent the attainment of the use.

(Bb) 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 to enable uses to be met without violating state water conservation requirements.

(Cc) 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.

(Dd) Dams, diversions, or other types of 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 which would result in the attainment of the use.

(Ee) 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 unrelated to water quality preclude attainment of aquatic life protection uses.

(Ff) Controls more stringent than those required by sections 301(b) and 306 of the federal Clean Water Act would result in substantial and widespread economic and social impact.

3. (d) Procedures Variance Application Submittal, Public Notice Requirements.

(a) 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 the designated use is unattainable for one of the reasons specified in subsection (c2) of this section rule.

(b) If the department preliminarily determines that grounds exist for granting a variance, it must provide public notice of the proposed variance and an opportunity for public comment. The public notice requirement may be satisfied by including the proposed variance in the public notice of a draft NPDES permit.

4. Final Decision on Variance; Variance Requirements. The commission or department must issue a final decision regarding the variance request. A variance is not effective under the federal Clean Water Act until submitted to and approved by EPA. If a variance is granted, the department:

(a) shall include and incorporate into the permit an effluent limitation representing currently achievable treatment conditions based on discharge monitoring which is no less stringent than that achieved under the previous permit, and

(Ab) The department may condition the variance on the performance of additional studies, monitoring, management practices development and implementation of a pollutant minimization program, implementation of pollutant offsets or trading, and/or other controls deemed necessary. Where required, Tthese terms and conditions will be incorporated into the applicant's NPDES permit or department order.

(B) A variance may not exceed three years or the term of the NPDES permit, whichever is less.

(C) DEQ approval of the variance for a point source is not effective under the federal Clean Water Act until submitted to and approved by EPA.

6. Variance Renewals. A variance may be renewed if the applicant reapplies and demonstrates that the use in question is still not attainable or that the conditions upon which the variance was granted continue to exist. 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 of this section rule. Where appropriate, the department may request the applicant for a variance renewal to submit additional information demonstrating that reasonable progress has been made towards achieving the underlying water quality standard.

7. Notice of Variances. The department will publish a list of all variances to state water quality standards that have been granted pursuant to this rule. Newly granted variances will be added to this list within 30 days of their effective date. The list will identify: the person or entity for which the variance was granted; the underlying water quality standards to which the variance was granted; the water(s) affected; and the effective and expiration dates of the variance.