NR 220.21(1)(a)(a) Which do not include the classes or categories of point sources identified in ch. NR 220, subch. I, NR 220.21(1)(b)(b) Which belong to classes or categories of point sources for which effluent limitations have not been adopted in chs. NR 221 to 297 inclusive, or NR 220.21(1)(c)(c) Which belong to classes or categories of point sources excluded from, or not specifically included in, the applicability provisions of the effluent limitations of chs. NR 221 to 299 inclusive. NR 220.21(2)(2) In permits for discharges from point sources identified in sub. (1) effluent limitations shall be those which the department determines are achievable by the application of the best practicable control technology currently available, or, where appropriate, the best available control technology economically achievable. NR 220.21(3)(3) In making such determinations the department shall in part be guided, where appropriate, by transferable technology identified in guideline development documents, published by the U.S. environmental protection agency pursuant to Public Law 92-500, as best practicable control technology currently available or best available control technology economically achievable and by effluent limitations achievable by such technologies as set forth in chs. NR 221 to 299 inclusive. NR 220.21 HistoryHistory: Cr. Register, June, 1976, No. 246, eff. 7-1-76; renum. from NR 217.10 and am. (1) (a), Register, September, 1988, No. 393, eff. 10-1-88; correction in (2) made under s. 13.93 (2m) (b) 4., Stats., Register, September, 1988, No. 393. NR 220.30NR 220.30 Purpose. The purpose of this subchapter is to establish the criteria and standards to be used in determining whether effluent limitations alternative to those required by chs. NR 221 to 297 or by federal effluent limitation guidelines should be included in a WPDES permit for a discharger because factors relating to the discharger’s facilities, equipment, processes, or other factors related to the discharger are fundamentally different from the factors considered by the department or the EPA in development of the effluent limitation guidelines. This subchapter also provides expedited variance procedures for fundamentally different factors variances and for other variances under 33 USC 1311(c). NR 220.31NR 220.31 Fundamentally different factors variances. NR 220.31(1)(1) General. The department may adjust an effluent limitation that is based on a requirement in chs. NR 221 to 297 or based on a federal effluent limitation guideline established under 33 USC 1311 and 1314 on a case-by-case basis to make the limitation more or less stringent for a permittee within an industrial category or subcategory. An FDFV may only be approved for a limitation if data specific to the discharger indicates the presence of factors fundamentally different from those considered by EPA or the department in developing the limitation at issue. Any request for a variance and department approval of a variance shall comply with the requirements in 33 USC 1311(n) and 40 CFR 125 subpart D. NR 220.31(2)(2) Who may request an FDFV. Any interested person, including the permittee, believing that the factors relating to a discharger’ facilities, equipment, processes, or other facilities related to the discharger are fundamentally different from the factors considered during the development of the effluent limitation guidelines may request an FDFV. An FDFV may also be proposed by the department in the draft permit. NR 220.31(3)(3) FDFV restrictions. A fundamentally different factors variance may not be granted for any new source performance standard and does not apply to the BPT limitations for steam electric power generating, contained in s. NR 290.12 (1). The department may not include an alternative limitation based on a fundamentally different factors variance in a permit unless the EPA has approved the variance under 40 CFR 124.62. NR 220.31 HistoryHistory: CR 17-002: cr. Register April 2018 No. 748, eff. 5-1-18; correction in (1) under s. 13.92 (4) (b) 7., Stats., Register April 2018 No. 748. NR 220.32NR 220.32 Criteria for fundamentally different factors variances. NR 220.32(1)(1) Approvable FDFV requests. A request for the establishment of effluent limitations under this subchapter may be approved only if all of the following apply: NR 220.32(1)(a)(a) There is an applicable effluent limitation guideline that applies and specifically controls the pollutant for which alternative effluent limitations or standards have been requested. NR 220.32(1)(b)(b) Factors relating to the discharge controlled by the permit are fundamentally different, as specified in sub. (4), from those considered by EPA or the department in establishing effluent limitation guidelines. NR 220.32(1)(c)(c) The request for alternative effluent limitations or standards is made as part of the permit application. NR 220.32(2)(2) Less stringent FDFV limitations. A request for the establishment of effluent limitations less stringent than those required by effluent limitation guidelines shall be approved only if all of the following apply: NR 220.32(2)(a)(a) The alternative effluent limitation or standard requested is no less stringent than justified by the fundamental difference. NR 220.32(2)(b)(b) The alternative effluent limitation or standard will be consistent with any applicable areawide waste treatment management plan under ch. NR 121 and with any more stringent limitations. NR 220.32(2)(c)(c) Compliance with the effluent limitation guidelines, either by using the technologies upon which the effluent limitation guidelines are based or by other control alternatives, would result in any of the following: NR 220.32(2)(c)1.1. A cost wholly out of proportion to the removal cost considered during development of the effluent limitation guidelines. NR 220.32(2)(c)2.2. A non-water quality environmental impact, including energy requirements, fundamentally more adverse than the impact considered during development of the effluent limitation guidelines. NR 220.32(3)(3) More stringent FDFV limitations. A request for an alternative limitation that is more stringent than required by effluent limitation guidelines shall be approved only if all of the following apply: NR 220.32(3)(a)(a) The alternative effluent limitation or standard requested is no more stringent than justified by the fundamental difference. NR 220.32(3)(b)(b) Compliance with the alternative effluent limitation or standard would not result in any of the following: NR 220.32(3)(b)1.1. A removal cost wholly out of proportion to the removal cost considered during development of the effluent limitation guidelines. NR 220.32(3)(b)2.2. A non-water quality environmental impact, including energy requirements, fundamentally more adverse than the impact considered during development of the effluent limitations. NR 220.32(4)(4) Fundamentally different factors. Factors that may be considered fundamentally different are limited to any of the following: NR 220.32(4)(a)(a) The nature or quality of pollutants contained in the raw waste load of the applicant’s process wastewater. NR 220.32(4)(b)(b) The volume of the discharger’s process wastewater and effluent discharged. NR 220.32(4)(c)(c) Non-water quality environmental impact of control and treatment of the discharger’s raw waste load. NR 220.32(4)(d)(d) Energy requirements of the application of control and treatment technology. NR 220.32(4)(e)(e) Age, size, land availability, and configuration as they relate to the discharger’s raw waste load. NR 220.32(5)(5) Unapprovable FDFV requests. A variance request or portion of such a request under this section may not be granted on any of the following grounds: NR 220.32(5)(a)(a) The infeasibility of installing the required waste treatment equipment within the time specified in the effluent limitation guidelines or standards or Clean Water Act. NR 220.32 NoteNote: A variance may be approved based on the discharger’s inability to ultimately achieve effluent limitations, but not based on the discharger’s ability to meet a limit within statutory deadlines.
NR 220.32(5)(b)(b) The assertion that the effluent limitation guidelines cannot be achieved with the appropriate waste treatment facilities installed if the assertion is not based on factors listed in sub. (4). NR 220.32(5)(c)(c) The discharger’s ability to pay for the required waste treatment. NR 220.32(5)(d)(d) The impact of a discharge on local receiving water quality. NR 220.32 HistoryHistory: CR 17-002: cr. Register April 2018 No. 748, eff. 5-1-18. NR 220.33NR 220.33 Variance application process. NR 220.33(1)(a)(a) FDFV deadline. A written request for an alternative limitation based on a fundamentally different factors variance shall be submitted no later than 180 days after the date on which an effluent limitation guideline is published in the federal register, and any of the following apply: NR 220.33(1)(a)1.1. For a variance from an effluent limitation that is based on the best practicable control technology currently available under 33 USC 1311(b)(1)(A) and 1314(b)(1), the request shall be submitted by the close of the public comment period under s. 283.39, Stats. NR 220.33(1)(a)2.2. For a variance from an effluent limitation that is based on the best control technology available for conventional pollutants under 33 USC 1311(b)(2)(E) and 33 USC 1314(b)(4), or for variances from an effluent limitation that is based on the best available treatment technology economically achievable under 33 USC 1311(b)(2) and 33 USC 1314(b)(2), the request shall be submitted as part of the permit application for reissuance or modification. NR 220.33(1)(b)(b) Other technology based limitation variance deadlines. Requests for a variance to an effluent guideline limitation under 33 USC 1311(c) or (g) shall comply with the deadlines and requirements in 40 CFR 122.21(m). NR 220.33(1)(c)(c) Advanced notification. Before public notice of a draft permit modification or reissuance is given under s. 283.39, Stats., the department may notify a permitee or applicant in writing that the draft permit will likely contain limitations based on effluent limitation guidelines or standards that may be eligible for a variance under par. (a) or (b). In the written notice to the permittee, the department may require that the permittee submit a variance request within a reasonable time period if the permittee is interested in applying for a variance under par. (a) or (b). If the permittee wishes to request a variance, the variance application shall explain how the requirements for the variance have been met and the application shall be submitted within the reasonable time period specified in the written notice. The department may send the written notice to a permittee prior to submittal of a permit application for reissuance. If the department determines the variance is approvable, the draft permit or final permit may contain an alternative limitation that takes effect upon approval by the department and the EPA. NR 220.33(2)(2) Content of FDFV application. Any permittee requesting an FDFV shall demonstrate and explain each of the following in the application: NR 220.33(2)(b)(b) How the factors listed in s. NR 220.32 regarding the discharger’s facility are fundamentally different from the factors EPA or the department considered in establishing the effluent limitation guidelines. The requester shall reference all relevant material and information such as the published development documents in support of the effluent limitation guidelines, all associated technical and economic data collected for use in developing each effluent limitation guideline, all records of legal proceedings, and all written and printed documentation including records of communication that relevant to the regulations that are kept as public records by the department. NR 220.33(2)(c)(c) How the alternative limitations requested are justified by the fundamental difference alleged in par. (b). NR 220.33 HistoryHistory: CR 17-002: cr. Register April 2018 No. 748, eff. 5-1-18.
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