Variances_Summary and Discussion Document

Introduction to Variances

Overview
A variance is a short-term exemption from meeting water quality standards which would otherwise be applicable. • Variances are most commonly discharger-specific, but some states have also utilized “multiple-discharger” or “waterbody” variances. • A variance is granted for a specific pollutant(s) and does not otherwise modify the standards. A variance does not exempt the discharger from compliance with applicable technology-based limits or water quality-based limits for other constituents. • A variance is granted for a specific period of time (length of time varies by state). The discharger must either meet the standard upon the expiration of this time period or must make a new demonstration of "unattainability.”	*Definition*
The federal WQS regulation at 40 CFR § 131.13 authorizes states (in this document, “state” refers to states and authorized tribes) to include variances in their WQS. Variance policies and individual variances are required to be submitted to EPA for review and approval.	*Regulatory* *Basis*
EPA first formally indicated allowability of state WQS variance provisions in a 1976 decision from EPA’s general counsel, which specifically considered an Illinois variance provision. Since then, EPA has continuously expanded upon the acceptability of state WQS variance procedures through several policy memos, Federal Register notices to various proposed and final rules, and in EPA’s 1994 Water Quality Standards Handbook, 2^nd Edition (see Attachment A).	*History of EPA Policy/ Guidance*
The intent of the variance provision is to: • provide a mechanism by which permits can be written to meet a modified water quality standard where discharger compliance with the underlying water quality standard is demonstrated to be infeasible within the meaning of 40 CFR § 131.10(g) (example, meeting the standard would cause substantial and widespread social and economic impact); • encourage maintenance of original standards as goals rather than removing uses and associated criteria that may be ultimately attainable; and,	*Intent of the Variance*
• ensure the highest level of water quality achievable during the term of the variance. In recent years, states have also utilized the flexibility available through variances to include additional requirements during the variance period for achieving source reduction through implementation of pollutant minimization plans (PMPs).
In granting a variance, a demonstration is required to show that attaining the designated use is not feasible based on one or more of the grounds outlined in 40 CFR 13 1.10(g): 1. naturally occurring pollutant concentrations prevent the attainment of the use; 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; 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; 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; 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 6. controls more stringent than those required by sections 3Ol (b) (l) (A) and (B) and 306 of the Act would result in substantial and widespread economic and social impact.	*Feasibility Demonstration*
Most states have general authorizing provisions and procedures for variances. As shown in Attachment B below, over 20 states covering all but 1 of the EPA regions, have actually granted variances to state water quality standards under their variance authorizing provisions. Parameters covered by the variances range from metals like mercury and copper, to conventional parameters like bacteria, as well as parameters such as ammonia and dissolved oxygen. EPA Region 10 has also approved a variance for a municipal facility in Idaho. The degree of use of variances in these twenty states varies, as well as the approaches that these states have taken in granting variances, as will be described further in the section that follows.	*States’ Utilization of Variances*

Types of Variances

Over time, states have employed various approaches in their utilization of variances which are described by variance “type” below. Please note that these variance “types” do not represent formally defined categories, but are presented only for general discussion purposes and to provide assistance in describing the general approaches and various situations in which variances have been utilized. Because the variance “types” described below do not represent formally defined categories, the approaches utilized by any given state may contain a combination of elements described under the different “types” below. Only differences among the various approaches are highlighted below. Some elements of variances remain consistent across the different approaches (e.g., need for the feasibility demonstration based upon one of the six factors found at 40 CFR § 131.10(g)).

Individual Variances - Less Closely Linked to the NPDES Permits Cycle

• Variance applies to a single discharger.

• Variance expires three years after issuance (this time period is linked to the triennial review requirement).

• During the variance period, any applicable technology-based limits still apply. Interim water quality-based limits set equal to the limit in the facility’s previous permit, if applicable, may also apply. Monitoring, reporting, and other general permitting conditions apply.

• Public notice and comment period for the variance is separate from the public notice and comment period for a discharger’s draft NPDES permit.

• Both general authorizing provisions for variances, as well as individual variances granted under the authorizing provision, are adopted by the state’s rulemaking body into the state’s WQS regulation.

• Each variance with accompanying feasibility demonstration is individually submitted to EPA for review and approval under CWA § 303(c).

Individual Variances - More Closely Linked to the NPDES Permits Cycle

• Variance applies to a single discharger.

• Variance expiration is tied with five-year NPDES permit cycle.

• Public notice and comment period for the variance is combined with the public notice and comment period for a discharger’s draft NPDES permit.

• While the general authorizing provision for variances is adopted by the state’s rulemaking body into the state’s WQS regulation, individual variances may be granted by the director of the lead state environmental agency (e.g., DEQ’s, DNR’s) which may or may not have rulemaking authority.

• Each variance with accompanying feasibility demonstration is individually submitted to EPA for review and approval under CWA § 303(c).

• A procedural agreement may be established between the state and the EPA region to better coordinate the WQS and Permits program interactions within and between the state and EPA and to streamline the review process for the variance.

Multiple Discharger Variances (MDVs)

• MDV authorizing provisions and procedures are established for a particular type or class of dischargers (e.g., POTWs) and a particular pollutant (e.g., mercury). While multiple dischargers may apply for coverage under a MDV, each discharger must submit an application for coverage. Application requirements are described in the procedures associated with the MDV authorization provision.

• Variance expiration for an individual permittee is tied with five-year NPDES permit cycle.

• During the variance period, any applicable technology-based limits still apply. In addition, interim water quality-based limits are established based upon the best “level currently achievable” (LCA). Monitoring, reporting, and other general permitting conditions apply, as well as requirements pertaining to development and implementation of a Pollutant Minimization Plan (PMP).

• Public notice and comment period for MDV authorizing provision and procedures is separate from the public notice and comment period for a discharger’s draft NPDES permit. As required with any draft NPDES permit, a draft NPDES permit that incorporates a variance under the authority of a MDV undergoes a public notice and comment period opportunity.

• The authorizing provision and procedures for a MDV are adopted by the state’s rulemaking body into the state’s WQS regulation. However, application of the variance in individual permits is granted by the director of the lead state environmental agency (e.g., DEQ’s, DNR’s), which may or may not have rulemaking authority, and occurs through the NPDES permitting process.

• The authorizing provision and procedures for a MDV are submitted to EPA for review and approval under CWA § 303(c), with accompanying feasibility demonstration. However, each application of the variance in individual NPDES permits is not submitted to EPA for review and approval under CWA § 303(c).

Waterbody Variance

• Variance applies to a waterbody.

• This type of variance may be used to address long-term attainment issues (e.g., 20-years in CO) like what might be presented at some mine sites.

• Duration of the variance is determined on a case-by-case basis.

• Interim limits and requirements are also determined on a case-by-case basis.

• Public notice and comment period for the variance is separate from the public notice and comment period for a discharger’s draft NPDES permit.

• Each waterbody variance is individually adopted by the state’s rulemaking body into the state’s WQS regulation.

• Each waterbody variance with accompanying feasibility demonstration is individually submitted to EPA for review and approval under CWA § 303(c).

History of EPA Policy and Guidance on Variances
1976
EPA first formally indicated allowability of state WQS variance provisions in Decision of the General Counsel No. 44, dated June 22, 1976 (PDF) (8 pp., 338 K), which specifically considered an Illinois variance provision.

1977
EPA expanded upon the acceptability of state WQS variance procedures in Decision of the General Counsel No. 58 (OGC No. 58) (PDF) (11 pp., 533 K), dated March 29, 1977 (published, in part, at 44 F.R. 39508 (July 6, 1979)).

1979
The Director of EPA's Criteria and Standards Division transmitted EPA's definition of a WQS variance (PDF) (1 pp., 78 K) to the Regional WQS Coordinators on July 3, 1979.

1983
The Preamble to the 1983 WQS regulation revision suggested that substantial and widespread social and economic impact, the sixth element for use removal under 40 CFR § 131.10(g), is an important and appropriate test that, if met, could be used as the basis for granting a variance (see 48 FR 51403).

1985
On March 15, 1985, the Director of the Office of Water Regulations and Standards, responding to questions raised on WQS variances, issued a reinterpretation of the factors that could be considered when granting variances (PDF). It explained that it would be appropriate to grant short-term variances to individual dischargers based on any of the six factors for removing a designated use as listed at 40 CFR § 131.10(g).

1989
In Guidance for State Implementation of Water Quality Standards for CWA Section 303(c) (2) (B) (December 1988) (PDF), EPA described State variance procedures as a potential mechanism for addressing circumstances where feasibility issues in attaining WQS may arise as a result of a State’s adoption of statewide criteria for a large number of toxic pollutants for human health or aquatic life protection.

1994
EPA published additional guidance on variances in August 1994 within EPA’s Water Quality Standards Handbook: Second Edition.

1995
The Water Quality Guidance for the Great Lakes System (Great Lakes Guidance) published March 1995 by EPA (56 FR 15366, March 23, 1995; 40 CFR section 132)(PDF) contains provisions allowing for variances from water quality standards. Variances granted under the Great Lakes Guidance are pollutant-specific and point source-specific and are limited to five years or the term of the NPDES permit implementing the variance, whichever is less. Variances may be granted for any of the reasons listed at 40 CFR § 131.10(g) for which a use downgrade may be considered.

Multiple discharger variances (a variance that applies to multiple point sources discharging to the same water body) are also allowed under the Great Lakes Guidance. Variances granted under the Great Lakes Guidance provisions may not jeopardize the continued existence of any Federally listed threatened or endangered species. Further, under the Guidance, variances are not available for new or recommencing discharges. A recommencing discharge is a source that recommences discharge after terminating operations (40 CFR § 122.2).

1998
On July 7, 1998, EPA published an Advanced Notice of Proposed Rulemaking

(ANPRM) seeking comments from interested parties on possible revisions to the Water Quality Standards Regulation at 40 CFR Part 131, including feedback on whether it would be would be useful to include in the regulation more explicit language reflecting current EPA thinking and practice regarding variances. In the 1998 ANPRM, EPA included general background information on variances and described what it considered to be the essential elements of a variance.

Variance Utilization Survey

Disclaimer –The information presented in this table represents EPA R10’s most recent effort to collect information on states’ use of variances. Please note that although the information has been confirmed for the majority of states, inaccuracies or inconsistencies may exist in this table.

EPA Region	State	Variances Granted?	Parameters?	Variances Granted By?
1	CT
	ME
	MA	X	bacteria	Massachusetts Department of Environmental Protection
	NH
	RI
	VT
2	NJ
	NY
3	DE
	DC
	MD
	PN
	VA
	WV	X		West Virginia Department of Environmental Protection
4	AL
	FL	X		Florida Environmental Regulation Commission
	GA	X
	KY
	MS	X
	NC	X
	SC	X
	TN
5	IL	X		Illinois Water Pollution Control Board
	IN	X	mercury
	MI	X	mercury	Michigan Department of Environmental Quality
	MN	X	mercury, dissolved solids, metals
	OH	X	mercury
	WI	X	mercury, copper, chlorides, ammonia	Wisconsin Department of Natural Resources

EPA Region	State	Variances Granted?	Parameters?	Variances Granted By?
6	AR
	LA	X		Louisiana Department of Environmental Quality
	NM
	OK
	TX	X	dissolved oxygen, metals (e.g., copper)	Texas Commission on Environmental Quality
7	IA
	KS
	MO	X		Missouri Clean Water Commission
	NE	X		Nebraska Department of Environmental Quality
8	CO	X		Colorado Water Quality Control Commission
	MT	X		Montana Board of Environmental Review
	ND
	SD
	UT
	WY
9	AZ	X		Arizona Department of Environmental Quality
	CA
	HI
	NV
10	AK
	ID	X	lead, cadmium, zinc	Idaho Board of Environmental Quality/Idaho Department of Environmental Quality
	OR
	WA

Example Authorizing Provisions for Multiple Discharger Variances

(Ohio)

“Multiple discharger determinations. Where necessary to address widespread WQS nonattainment issues, the director may make determinations about the factors listed in paragraphs (D)(3) and (D)(4) of this rule [i.e., conditions to grant a variance] for a category of dischargers where the director has enough information to determine that variances are necessary for that category according to one or more of the conditions factors in paragraph (D)(3)(a) of this rule [i.e., the six § 131.10(g) factors]. These determinations and specific application requirements shall be made by rule. Dischargers applying for a variance based on multiple discharger determinations shall submit information demonstrating that the determinations of the director are applicable to the individual discharger” [brackets added].

(Michigan)

(9) Notwithstanding the provision in subrule (1) (a) of this rule, the department may grant multiple discharger variances. If the department determines that a multiple discharger variance is necessary to address widespread WQS compliance issues, including the presence of ubiquitous pollutants or naturally high background levels of pollutants in a watershed, then the department may waive the variance demonstration requirements in subrules (2), (3), and (4) of this rule. A permittee that is included in the multiple discharger variance will be subject to the permit requirements of subrule (6) of this rule if it is determined under R 323.1211 that there is reasonable potential for the pollutant to exceed a permit limitation developed under to R 323.1209.

Example Framework for a Mercury Multiple Discharger Variance Implementation Strategy

(Michigan)

For reissuance of permits with reasonable potential and existing mercury limits:

• The mercury permit limit will be set at the facility-specific LCA (using MI’s mercury LCA calculation procedures) for the life of the permit.

• Require monitoring using Method 1631.

• Require a mercury pollutant minimization plan for the duration of the permit so that reasonable progress is made toward attaining the water quality standard.

• Use of a LCA that is calculated using some procedure other than MI’s mercury LCA calculation procedures will be evaluated by MDEQ on a case-by-case basis and submitted to EPA for review and approval.

For reissuance of permits with reasonable potential but without previous mercury limits:

• Monitor with Method 1631 monthly for two years of the permit.

• Set the mercury permit limit at the facility-specific LCA (using MI’s mercury LCA calculation procedures) effective at Year 3 (allow 2 years of monitoring before the limit takes effect).

• Require monitoring using Method 1631.

• Require a mercury pollutant minimization plan for the duration of the permit so that reasonable progress is made toward attaining the WQS.

For reissuance of permits with insufficient data for mercury limit determination:

• Require monthly monitoring with Method 1631 to start at permit issuance and continue for the permit duration.

• Include a Special Condition that triggers a mercury pollutant minimization plan if the monitoring data after one year indicates the presence of mercury at levels indicating reasonable potential to cause or contribute to exceedances of water quality standards.

• Evaluate the need for a permit modification to include a mercury limit, or include a mercury limit at the time of permit reissuance, if reasonable potential exists.

Example Pollutant Minimization Plan (PMP) Elements for Mercury

(EPA Region 5 Guidance)

1. A Program Plan, which lays out the POTW’s commitments for:

a. Identification of potential sources of mercury that contribute to discharge levels;

b. Reasonable, cost-effective activities designed to reduce or eliminate mercury loadings from identified sources;

c. Tracking mercury source reduction implementation and mercury source monitoring;

d. Monitoring the POTW’s influent, effluent and biosolids, including at least quarterly influent monitoring;

e. Resources and staffing;

2. Implementation of cost-effective control measures for direct and indirect contributors; and

3. An annual status report submitted to the Permitting Authority, which includes:

a. A list of potential mercury sources;

b. A summary of actions taken to reduce or eliminate mercury discharges to enable the POTW to progress toward meeting the water quality based effluent limitation (WQBEL);

c. Mercury source reduction implementation, source monitoring results, and influent, effluent and biosolids results for the previous year;

d. Proposed adjustments to the Program Plan, based on the findings of 3.c.

1976	EPA first formally indicated allowability of state WQS variance provisions in Decision of the General Counsel No. 44, dated June 22, 1976 (PDF) (8 pp., 338 K), which specifically considered an Illinois variance provision.
1977	EPA expanded upon the acceptability of state WQS variance procedures in Decision of the General Counsel No. 58 (OGC No. 58) (PDF) (11 pp., 533 K), dated March 29, 1977 (published, in part, at 44 F.R. 39508 (July 6, 1979)).
1979	The Director of EPA's Criteria and Standards Division transmitted EPA's definition of a WQS variance (PDF) (1 pp., 78 K) to the Regional WQS Coordinators on July 3, 1979.
1983	The Preamble to the 1983 WQS regulation revision suggested that substantial and widespread social and economic impact, the sixth element for use removal under 40 CFR § 131.10(g), is an important and appropriate test that, if met, could be used as the basis for granting a variance (see 48 FR 51403).
1985	On March 15, 1985, the Director of the Office of Water Regulations and Standards, responding to questions raised on WQS variances, issued a reinterpretation of the factors that could be considered when granting variances (PDF). It explained that it would be appropriate to grant short-term variances to individual dischargers based on any of the six factors for removing a designated use as listed at 40 CFR § 131.10(g).
1989	In Guidance for State Implementation of Water Quality Standards for CWA Section 303(c) (2) (B) (December 1988) (PDF), EPA described State variance procedures as a potential mechanism for addressing circumstances where feasibility issues in attaining WQS may arise as a result of a State’s adoption of statewide criteria for a large number of toxic pollutants for human health or aquatic life protection.
1994	EPA published additional guidance on variances in August 1994 within EPA’s Water Quality Standards Handbook: Second Edition.
1995	The Water Quality Guidance for the Great Lakes System (Great Lakes Guidance) published March 1995 by EPA (56 FR 15366, March 23, 1995; 40 CFR section 132)(PDF) contains provisions allowing for variances from water quality standards. Variances granted under the Great Lakes Guidance are pollutant-specific and point source-specific and are limited to five years or the term of the NPDES permit implementing the variance, whichever is less. Variances may be granted for any of the reasons listed at 40 CFR § 131.10(g) for which a use downgrade may be considered. Multiple discharger variances (a variance that applies to multiple point sources discharging to the same water body) are also allowed under the Great Lakes Guidance. Variances granted under the Great Lakes Guidance provisions may not jeopardize the continued existence of any Federally listed threatened or endangered species. Further, under the Guidance, variances are not available for new or recommencing discharges. A recommencing discharge is a source that recommences discharge after terminating operations (40 CFR § 122.2).
1998	On July 7, 1998, EPA published an Advanced Notice of Proposed Rulemaking (ANPRM) seeking comments from interested parties on possible revisions to the Water Quality Standards Regulation at 40 CFR Part 131, including feedback on whether it would be would be useful to include in the regulation more explicit language reflecting current EPA thinking and practice regarding variances. In the 1998 ANPRM, EPA included general background information on variances and described what it considered to be the essential elements of a variance.