17.30.661    VARIANCE FROM STANDARD FOR WATER BODY CONDITIONS

(1) The department may grant to a permittee a variance from a water quality standard if the department determines in writing that the following conditions are met:

(a) the standard is more stringent than the quality of the receiving water;

(b) the condition in (a) exists because of anthropogenic contributions of the pollutant to the water body;

(c) the condition in (a) cannot reasonably be expected to be remediated during the permit term for which the variance is sought;

(d) the discharge to which the variance would apply would not materially contribute to the condition in (a); and

(e) one of the demonstrations provided at 40 CFR 131.14(b)(2)(i)(A)(1), which is by this reference adopted and incorporated into this rule, applies.

(2) To obtain a variance, a permittee shall submit to the department an application that:

(a) identifies the pollutant for which the variance is sought;

(b) identifies the permittee by name, address, and telephone number;

(c) identifies the receiving water body;

(d) demonstrates to the department's satisfaction that the requirements of (1) are met; and

(e) proposes, with supporting documentation, a variance level that is:

(i) the highest attainable interim standard in the receiving stream;

(ii) the interim effluent condition that reflects the greatest pollutant reduction that is achievable; or

(iii) if no additional feasible pollutant control technology can be identified, the interim standard or effluent condition that reflects the greatest pollutant reduction achievable with the pollutant control technologies installed at the time the variance is submitted. For a variance under this paragraph (2)(e)(iii), the permittee shall prepare and implement a pollutant minimization plan that contains a structured set of activities to improve processes and pollutant controls that will prevent and reduce pollutant loading.

(3) The department shall review each application to determine whether a reasonable alternative is in place that would eliminate the need for the variance, including:

(a) a permit compliance schedule;

(b) reuse;

(c) a TMDL for the pollutant where the permittee is meeting the established waste load allocation; or

(d) other department actions.

(4) If the department makes a preliminary finding that a reasonable alternative to approving a variance is available, the department shall consult with the applicant prior to making a decision regarding the variance.

(5) If the department determines that no reasonable alternative to a variance exists, the department shall determine whether the information provided by the applicant meets the requirements of (1) and (2). If the department finds that the requirements of (1) and (2) are met, and that a variance is needed, the department shall approve the variance after conducting a hearing following no less than 45 days' notice to the public. All written or oral public comments related to the variance shall be presented to the department during this public comment period.

(6) Within 30 days after approval of the variance, the department shall submit the variance and any supporting documentation and analysis to EPA. The variance is not approved for federal Clean Water Act purposes until EPA notifies the department that the variance complies with the federal Clean Water Act, 33 USC 1251, et seq.

(7) The variance may be used to develop MPDES permit limits. A permit incorporating a variance issued by the department under this rule is subject to ARM Title 17, chapter 30, subchapter 13. The department shall review the variance five years from the date the department issues a final discharge permit incorporating the variance.

(8) The variance must be reviewed by the department every five years to reevaluate the conditions in (2)(e). Based on this review, the department may terminate, continue, or modify the variance. In order to continue or modify the variance, the permittee shall provide information demonstrating compliance with (1) and (2). In cases where water quality in the receiving stream has improved during the term of the variance, DEQ shall consider the ambient upstream condition of the waterbody, as characterized for the previous two years, in determining an appropriate variance level under (2)(e).

(9) Based on the review conducted under (8), the department may approve the variance, with any modifications after public comment and public hearing under (5). Within 30 days after department approval of the variance, the department shall submit the variance and any supporting analysis to EPA. The variance is not approved for federal Clean Water Act purposes until EPA notifies the department that the variance complies with the federal Clean Water Act, 33 USC 1251, et seq.

(10) A copy of 40 CFR 131.14(b)(2)(i)(A)(1) may be obtained from the Department of Environmental Quality, P.O. Box 200901, Helena, MT 59601-0901.

 

History: 75-5-222, MCA; IMP, 75-5-222, MCA; NEW, 2018 MAR p. 830, Eff. 4/28/18.