C.F.R. » Title 40 » CHAPTER I—ENVIRONMENTAL PROTECTION AGENCY › SUBCHAPTER D—WATER PROGRAMS › PART 125—CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM › Subpart D—Criteria and Standards for Determining Fundamentally Different Factors Under Sections 301(b)(1)(A), 301(b)(2) (A) and (E) of the Act

40 C.F.R. § 125.30

Purpose and scope

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(a) This subpart establishes the criteria and standards to be used in determining whether effluent limitations alternative to those required by promulgated EPA effluent limitations guidelines under sections 301 and 304 of the Act (hereinafter referred to as “national limits”) should be imposed on 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 EPA in development of the national limits. This subpart applies to all national limitations promulgated under sections 301 and 304 of the Act, except for the BPT limits contained in 40 CFR 423.12 (steam electric generating point source category).

(b) In establishing national limits, EPA takes into account all the information it can collect, develop and solicit regarding the factors listed in sections 304(b) and 304(g) of the Act. In some cases, however, data which could affect these national limits as they apply to a particular discharge may not be available or may not be considered during their development. As a result, it may be necessary on a case-by-case basis to adjust the national limits, and make them either more or less stringent as they apply to certain dischargers within an industrial category or subcategory. This will only be done if data specific to that discharger indicates it presents factors fundamentally different from those considered by EPA in developing the limit at issue. Any interested person believing that factors relating to a discharger's facilities, equipment, processes or other facilities related to the discharger are fundamentally different from the factors considered during development of the national limits may request a fundamentally different factors variance under § 122.21(l)(1). In addition, such a variance may be proposed by the Director in the draft permit.

(Secs. 301, 304, 306, 307, 308, and 501 of the Clean Water Act (the Federal Water Pollution Control Act Amendments of 1972, Pub. L. 92-500 as amended by the Clean Water Act of 1977, Pub. L. 95-217 (the “Act”); Clean Water Act, Safe Drinking Water Act, Clean Air Act, Resource Conservation and Recovery Act: 42 U.S.C. 6905, 6912, 6925, 6927, 6974) [44 FR 32948, June 7, 1979, as amended at 45 FR 33512, May 19, 1980; 46 FR 9460, Jan. 28, 1981; 47 FR 52309, Nov. 19, 1982; 48 FR 14293, Apr. 1, 1983]
Notes of Decisions
Cited in 3 cases, 1983–1990 · leading case: Chem. Mfrs. Ass'n v. Nat. Resources Def. Council, Inc., 470 U.S. 116 (1985).
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Chem. Mfrs. Ass'n v. Nat. Resources Def. Council, Inc., 470 U.S. 116 (1985). · cites it 2× “EPA has promulgated an analogous provision for direct dischargers, 40 CFR § 125.30 (1984). [8] Sources subject to new source performance standards (NSPS) under the Act are those who begin construction after the publication of proposed new source standards, 33 U.”
Nat'l Ass'n of Metal Finishers v. Env't Prot. Agency, 719 F.2d 624 (3rd Cir. 1983). “Under the Consolidated Permit Regulations, 40 C.F.R. §§ 125.30 .-32 (1982), existing direct dischargers may obtain FDF variances from BPT and BAT effluent limitations.”
Rybachek v. United States Env't Prot. Agency, 904 F.2d 1276 (9th Cir. 1990). “See 40 C.F.R. § 125.30 -.32 (1989). Petitioners’ claim of the unavailability of variances also ignores repeated statements by the EPA throughout the rulemaking.”
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