Authority: IC 13-14-8; IC 13-18-3

Affected: IC 4-22-2; IC 13-14-8-8; IC 13-14-8-9; IC 13-14-8-10; IC 13-14-9; IC 13-18-4

Sec. 8.8. (a) A permit applicant or permittee may apply to the commissioner for a variance from the water quality standard used to derive a water quality-based effluent limitation (WQBEL) contained in a NPDES permit for a specific substance. The application for such a variance shall be submitted in accordance with the requirements specified in 327 IAC 5-3-4.1.

(b) The commissioner may approve all or part of a requested variance, or modify and approve a requested variance, if the permit applicant demonstrates that implementing a proposed methodology, which includes any production process(es), wastewater treatment technology, or combination thereof used to reduce pollutants discharged in the wastewater from a facility, as identified pursuant to 327 IAC 5-3-4.1(b)(2)(A), will cause an undue hardship or burden upon the applicant.

(c) In making a determination on a variance application, the commissioner shall balance the environmental impact likely to result if the variance is granted against the hardship or burden upon the applicant if the variance is not granted. In balancing these factors, the commissioner shall consider the following to determine if the hardship or burden upon the applicant is undue:

1. (1) The cost and cost effectiveness of pollutant removal by implementing the methodologies proposed by the applicant and the methodology capable of attaining the WQBEL.
2. (2) The reduction in concentrations and loadings of pollutants attainable by the methodologies proposed by the applicant as compared with the reduction attainable by use of the methodology capable of attaining the WQBEL.
3. (3) The impact of the proposed methodologies and the methodology capable of attaining the WQBEL on the price of the goods or services provided by the applicant.
4. (4) Information on the relative price of goods or services in the same market as the applicant.
5. (5) The overall impact of attaining the WQBEL and implementing the proposed methodologies on employment at the facility.
6. (6) Information on the type and magnitude of adverse or beneficial environmental impacts, including the net impact on the receiving water, resulting from the proposed methodologies that could be applied to the control of the substance for which a variance is applied.
7. (7) Other relevant information requested by the commissioner or supplied by the applicant or the public.

(d) The commissioner may grant the variance when the requirements of subsections (b) and (c) are met.

(e) A determination to grant or deny a requested variance shall be made in accordance with the procedures specified in 327 IAC 5-3-4.1. In making this determination, the commissioner may also consider other information available to the agency or supplied by the applicant or the public.

(f) A variance applies only to the permit applicant requesting the variance and only to the substance specified in the variance application. The granting of a variance does not imply or require that the water quality standard corresponding to the variance be modified through a rulemaking in accordance with IC 4-22-2 and IC 13-14-9.

(g) A variance or any renewal thereof shall not be granted for a term greater than that allowed by IC 13-14-8-9. Notwithstanding the time at which the application for a variance is submitted under 327 IAC 5-3-4.1, a variance shall not be granted for a term greater than the term remaining under the permit to which the variance is attached.

(h) Neither the filing of a variance application nor the granting of a variance shall be grounds for the staying or dismissing of or a defense in a pending enforcement action. A variance shall be prospective only.

(Water Pollution Control Division; 327 IAC 2-1-8.8; filed Feb 1, 1990, 4:30 p.m.: 13 IR 1040; errata filed Jul 6, 1990, 5:00 p.m.: 13 IR 2004; filed Feb 26, 1993, 5:00 p.m.: 16 IR 1733; errata filed Mar 10, 1993, 5:00 p.m.: 16 IR 1832; filed Feb 15, 1995, 1:30 p.m.: 18 IR 1820; errata filed Jul 31, 2017, 11:06 a.m.: 20170809-IR-327170349ACA; readopted filed Oct 18, 2024, 1:57 p.m.: 20241113-IR-327230810RFA)