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Part 702: Derivation and Use Of Standards and Guidance Values

(Statutory authority: Environmental Conservation Law §§ 3-0301[2][m],15-0313, 17-0301, 17-0303, 17-0809)

Historical Note

Part repealed, new filed: April 28, 1972; Feb. 25, 1974; repealed, new (§§ 702.1-702.22) filed Aug. 2, 1991 eff. 30 days after filing.

Contents:

Sec.

§702.1 Basis for derivation of water quality standards and guidance values

(a) The control of taste-, color- and odor-producing, toxic and other deleterious substances is implemented through the use of standards and guidance values. Standards and guidance values for such substances shall be derived according to the procedures set forth in this Part.

(b) The derivation of standards and guidance values will consider, to the extent possible, variations in natural or background conditions of waters, including but not limited to alkalinity, temperature, hardness and pH.

(c) Standards and guidance values shall be of the following Types to protect the best usages of the waters as described in Part 701 of this Title:

(1) Health (Water Source) or H(WS);

(2) Health (Fish Consumption) or H(FC);

(3) Aquatic (Chronic) or A(C);

(4) Aquatic (Acute) or A(A);

(5) Wildlife or W;

(6) Aesthetic (Water Source) or E(WS);

(7) Aesthetic (Food Source) or E(FS); and

(8) Recreation or R.

Historical Note

Sec. repealed, new filed: April 28, 1972; Feb. 25, 1974; amds. filed: Sept. 20, 1974; July 3, 1985; repealed, new filed Aug. 2, 1991; amds. filed: Feb. 10, 1998; Jan. 17, 2008 eff. 30 days after filing. Amended (c).

§702.2 Standards and guidance values for protection of human health and sources of potable water supplies

(a) Standards and guidance values for protection of the best usage as a source of potable water supply shall protect human health and drinking water sources and are referred to as Health (Water Source) values.

(b) The standard or guidance value shall be the most stringent of the values derived using the procedures found in sections 702.3 through 702.7 of this Part.

(c) Standards or guidance values based on oncogenic effects that are based on the 95 percent lower confidence limit on the human dose corresponding to an excess lifetime cancer risk of one-in-one million or on chemical correlation to such effects shall be derived using age-specific water consumption rates and points-of-departure for a lifetime exposure period of 70 years if scientific evidence is sufficient to show that children may be more sensitive than adults to such oncogenic effects. If such scientific evidence is not available, a consumption rate of two liters of water per day for a lifetime exposure period of 70 years shall be used.

(d) Standards or guidance values based on oncogenic effects that are based on the human equivalent dose at the point-of-departure divided by an uncertainty factor, chronic nononcogenic effects, or chemical correlation to such effects shall be derived using age-specific water consumption rates for a childhood exposure period (18 years or less) if scientific evidence is sufficient to show that children may be more sensitive than adults to such effects. If such scientific evidence is not available, a consumption rate of two liters of water per day shall be used.

(e) Standards or guidance values based on acute nononcogenic effects or chemical correlation to acute nononcogenic effects shall be derived using a consumption rate of one liter of water per day or a different water consumption rate if deemed more appropriate based on scientific evidence.

Historical Note

Sec. repealed, new filed: April 28, 1972; Feb. 25, 1974; amd. filed June 20, 1988; repealed, new filed Aug. 2, 1991; amds. filed: Feb. 10, 1998; Jan. 17, 2008 eff. 30 days after filing. Amended (c), added (d)-(e).

§702.3 Procedures for deriving standards and guidance values based on Specific MCLs and principal organic contaminant classes

(a) The standard or guidance value shall be equal to the value of a Specific MCL unless the Specific MCL is based solely on aesthetic considerations.

(b) For a substance belonging to any of the principal organic contaminant classes and for which there is no Specific MCL, the standard or guidance value shall be 5 ug/L or a less stringent value as determined by the Commissioner of the New York State Department of Health.

Historical Note

Sec. amd. filed March 27, 1972; repealed, new filed: April 28, 1972; Feb. 25, 1974; amds. filed: Sept. 20, 1974; Sept. 20, 1985; repealed, new filed Aug. 2, 1991; amd. filed Feb. 10, 1998 eff. 30 days after filing. Amended (a).

§702.4 Procedures for deriving standards and guidance values based on oncogenic effects

(a) Standards and guidance values based on oncogenic effects shall be calculated using dose-response data from scientifically valid human or animal studies. Considering factors including but not limited to route, duration and timing of exposure, species, strain, tumor types and sites, nature and severity of effects, pharmacokinetics, mode-of-action, study quality, and statistical significance, the dose-response data deemed to be the most appropriate for evaluating potential human health risks at environmental exposures shall be used as the basis of the value.

(b) Standards and guidance values shall be based on the point-of-departure for the selected dose-response data.

(1) The point-of-departure shall be the LED10, which is the 95 percent lower confidence limit on the dose associated with 10 percent excess risk for oncogenic effects adjusted for background risk. A different level of excess risk may be used if deemed more appropriate based on scientific evidence.

(2) The point-of-departure shall be estimated using a validated, biologically-based dose-response model. If such a model does not exist, the point-of-departure shall be estimated using a mathematical model (i.e., the multistage, probit, logistic, or Weibull model) that best describes the dose-response data within the range of observation. Statistical measures, including the Chi-squared goodness-of-fit test, shall be used to determine which model best describes the data.

(3) If the selected dose-response data are not adequately described by methods in paragraph (2) of this subdivision, an alternative point-of-departure (e.g., a NOEL or LOEL) shall be used.

(c) If the point-of-departure is derived from an animal study, the human equivalent dose (milligrams of substance per kilogram of body weight per day) at the point-of-departure shall be estimated by multiplying the animal-to-human body weight ratio raised to the 0.25 power by the animal dose in milligrams of substance per kilogram of body weight per day. An alternative trans-species conversion method may be used if deemed more appropriate based on scientific evidence.

(d) The standard or guidance value shall be derived by extrapolating from the point-of-departure to the human dose at the standard or guidance value.

(1) If a validated biologically-based dose-response model is used to estimate the point-of-departure, the standard or guidance value shall be based on the 95 percent lower confidence limit on the human dose corresponding to an excess lifetime cancer risk of one-in-one million and shall be estimated using the model. If such a model is not available or is not validated for humans, the extrapolation method from the point-of-departure to the human dose at the standard or guidance value shall depend on the results of a mode-of-action analysis.

(2) If data on mode-of-action are unavailable, or if the mode-of-action analysis provides evidence of linearity at low doses or does not provide unequivocal evidence of nonlinearity at low doses, the standard or guidance value shall be based on the 95 percent lower confidence limit on the human dose corresponding to an excess lifetime cancer risk of one-in-one million. The human dose at the standard or guidance value shall be estimated by multiplying the human equivalent dose at the point-of-departure derived according to paragraphs (b)(1) and (2) of this section by a factor equal to the risk level of one-in-one million divided by the risk level at the point-of-departure.

(3) If a mode-of-action analysis provides no evidence for linearity at low doses and provides unequivocal evidence of nonlinearity at low doses, the standard or guidance value shall be based on the human equivalent dose at the point-of-departure identified by the methods in subdivision (b) of this section divided by an uncertainty factor that will insure that the human dose at the standard or guidance value will be without appreciable risk to the human population, including children. The magnitude of this factor will generally range from 10 to 3,000. Factors that will be considered in determining the magnitude of the uncertainty factor shall include: the nature of the dose-response curve and the point-of-departure; the relative sensitivities of experimental animals and humans; the nature and extent of human variation, including age-dependent differences in sensitivity during a lifetime; and the data gaps in the toxicological database.

(e) Standards and guidance values based on the 95 percent lower confidence limit on the human dose corresponding to an excess lifetime cancer risk of one-in-one million shall be derived using age-specific body weights for a lifetime exposure period of 70 years if scientific evidence is sufficient to show that children may be more sensitive than adults to the oncogenic effect. If such evidence is not available, a body weight of 70 kilograms and a lifetime exposure period of 70 years shall be used.

(f) Standards and guidance values based on the human equivalent dose at the point-of-departure divided by an uncertainty factor shall allow no more than 20 percent of the human dose at the standard or guidance value to come from drinking water and shall be derived using age-specific body weights for a childhood exposure period (18 years or less) if scientific evidence is sufficient to show that children may be more sensitive than adults to the oncogenic effect. If such evidence is not available, a body weight of 70 kilograms shall be used.

Historical Note

Sec. amd. filed March 27, 1972; repealed, new filed: April 28, 1972; Feb. 25, 1974; repealed, filed June 20, 1988; new filed Aug. 2, 1991; amd. filed Feb. 10, 1998; repealed, new filed Jan. 17, 2008 eff. 30 days after filing.

§702.5 Procedures for deriving standards and guidance values based on nononcogenic effects

(a) Standards and guidance values based on nononcogenic effects shall be calculated using dose-response data from scientifically valid human or animal studies. Considering factors, including but not limited to route, duration and timing of exposure, species, strain, nature and severity of effects, pharmacokinetics, mode-of-action, study quality and statistical significance, the dose-response data deemed to be the most appropriate for evaluating potential human health risks at environmental exposures shall be used as the basis of the value.

(b) Standards and guidance values shall be based on the point-of-departure for the selected dose-response data.

(1) The point-of-departure shall be the no-observed-effect level (NOEL), expressed as a dose in milligrams of substance per kilogram of body weight per day. Where a valid NOEL is not available, a lowest-observed-effect level (LOEL) may be used.

(2) If neither a NOEL or a LOEL are available, an alternative point-of-departure, e.g., the 95 percent lower confidence limit on the dose associated with a specified percentage of excess risk (e.g., 10 percent) for a nononcogenic effect adjusted for background risk, may be used. The alternative point-of-departure shall be estimated using one of the mathematical models that are appropriate for analysis of dichotomous or continuous dose-response data (e.g., power, polynomial, or linear), and shall be the model that best describes the dose-response data within the range of experimental observation. Statistical measures, including the Chi-squared goodness-of-fit test, shall be used to determine which model best describes the data.

(c) The standard or guidance value shall be derived by extrapolating from the point-of-departure to the reference dose (RfD). The RfD shall be estimated by dividing the NOEL (or LOEL, or an alternative point-of-departure) by an uncertainty factor. The magnitude of this factor shall insure that exposures at or below the reference dose are without appreciable risk to the human population, including children, and will generally range from 10 to 3,000. It shall account for the following areas of uncertainty:

(1) LOEL to NOEL extrapolation (where necessary, to account for uncertainty where extrapolating from a LOEL to a NOEL);

(2) subchronic to chronic extrapolation (where necessary, to account for uncertainty where extrapolating from a less-than-chronic study NOEL (or LOEL, or other point-of-departure) to a chronic NOEL, LOEL, or other point-of-departure;

(3) animal to human extrapolation (where necessary, to account for uncertainty where extrapolating from experimental animals to humans);

(4) inter-human variability (where necessary, to account for variation in sensitivity among the human population, including special consideration of the potential sensitivity of children); and

(5) data gaps (where necessary, to account for areas of scientific uncertainty in the toxicological database).

(d) Standards and guidance values based on chronic toxic effects shall allow no more than 20 percent of the reference dose to come from drinking water and shall be derived using age-specific body weights for a childhood exposure period (18 years or less) if scientific evidence is sufficient to show that children may be more sensitive than adults to such effects. If such evidence is not available, a body weight of 70 kilograms shall be used.

(e) Standards and guidance values based on acute toxic effects shall allow 20 percent of the reference dose to come from drinking water and shall be derived using a child body weight of 10 kilograms. Alternative values for percentage of reference dose or for body weight may be used if deemed more appropriate based on scientific evidence.

Historical Note

Sec. repealed, new filed April 28, 1972; repealed, filed Feb. 25, 1974; new filed Aug. 2, 1991; amd. filed Feb. 10, 1998; repealed, new filed Jan. 17, 2008 eff. 30 days after filing.

§702.6 [Repealed]

Historical Note

Sec. repealed, filed March 22, 1968; new filed Aug. 2, 1991; repealed, filed Feb. 10, 1998 eff. 30 days after filing.

§702.7 Procedure for deriving standards and guidance values based on chemical correlation

If the available data are deemed insufficient for deriving a standard or guidance value on the basis of either of sections 702.4 or 702.5 of this Part, a standard or guidance value may be based on correlation to a chemical for which a standard or guidance value has been established pursuant to those sections. Standards or guidance values based on chemical correlation may be established if similar toxic effects are anticipated because of similarity of functional groups or metabolic or toxicologic pathways.

Historical Note

Sec. repealed, filed March 22, 1968; new filed Aug. 2, 1991; amds. filed: Feb. 10, 1998; Jan. 17, 2008 eff. 30 days after filing.

§702.8 Procedures for deriving standards and guidance values for protection of human health from consumption of fish

Standards and guidance values for the protection of the best usage of fishing shall protect the health of human consumers of fish and, for Class SA waters, human consumers of shellfish from chemicals that may bioaccumulate and are referred to as Health (Fish Consumption) values.

(a) Standards and guidance values based on bioaccumulation and human consumption of fish shall be equal to the acceptable daily intake from fish consumption divided by a fish consumption rate of 0.033 kilograms per day and by a bioaccumulation factor.

(b) The acceptable daily intake, in micrograms per day, from fish consumption shall be the more stringent of:

(1) 20 percent of the reference dose (for nononcogenic effects) as determined from section 702.5 or 702.7 of this Part; or

(2) the human dose at the standard or guidance value (for oncogenic effects) as determined from section 702.4 or 702.7 of this Part.

(c) The bioaccumulation factor is the ratio of the concentration of a substance in fish flesh, in micrograms per kilogram, to the concentration in water, in micrograms per liter. Bioaccumulation factors will generally be based on measured values which may be supported by bioaccumulation factors derived from octanol/water partition coefficients.

Historical Note

Sec. filed May 24, 1967; repealed, new filed April 28, 1972; repealed, filed Feb. 25, 1974; new filed Aug. 2, 1991; amds. filed: Feb. 10, 1998; Jan. 17, 2008 eff. 30 days after filing. Amended intro. para., (b)(1)-(2).

§702.9 Standards and guidance values for protection of aquatic life

(a) Protection of the best usage of fishing shall include standards and guidance values for the protection of aquatic life.

(b) Standards and guidance values for the protection of propagation of aquatic life are referred to as Aquatic (Chronic) values.

(c) Standards and guidance values for the protection of survival of aquatic life are referred to as Aquatic (Acute) values.

(d) Where the waters are to be suitable for fish, shellfish, and wildlife propagation and survival, both Aquatic (Chronic) and Aquatic (Acute) standards or guidance values shall apply.

(e) Where the waters are to be suitable for fish, shellfish, and wildlife survival, Aquatic (Acute) standards and guidance values shall apply.

(f) Standards and guidance values shall be derived using the procedures found in section 706.1 of this Title.

(g) If the available data are deemed insufficient for deriving a standard or guidance value on the basis of section 706.1 of this Title, a value may be based on either:

(1) an alternative procedure if deemed appropriate based on scientific evidence; or

(2) correlation to a chemical for which a standard or guidance value has been established pursuant to section 706.1 of this Title if similar toxic effects are anticipated because of similarity of functional groups or metabolic or toxicologic pathways.

Historical Note

Sec. filed Aug. 2, 1991; repealed, new filed Feb. 10, 1998; amd. filed Jan. 17, 2008 eff. 30 days after filing. Amended (d)-(e), (g).

§702.10-702.11 [Repealed]

Historical Note

Secs. filed Aug. 2, 1991; repealed, filed Feb. 10, 1998 eff. 30 days after filing.

§702.12 Procedures for deriving standards and guidance values for protection of recreation

(a) Protection of the best usage of recreation shall include standards and guidance values to protect the quality of the water for primary and secondary contact recreation, including aesthetic conditions. Such values are referred to as recreation values and derived based on an evaluation of reported levels of the pollutant (such as pathogens or pathogen indicators, nutrients or vegetation) that affect the quality of the water and its suitability for primary and secondary contact recreation.

Historical Note

Sec. filed Aug. 2, 1991; repealed, filed Feb. 10, 1998; new filed Jan. 17, 2008 eff. 30 days after filing.

§702.13 Procedures for deriving standards and guidance values for protection of wildlife

(a) Protection of the best usage of fishing shall include standards and guidance values for protection of the health of wildlife consumers of aquatic life and water. Such values are referred to as Wildlife values.

(b) Standards and guidance values to protect wildlife shall be derived using levels of chemicals known to be toxic to wildlife in conjunction with a bioaccumulation factor and wildlife consumption rates of aquatic life and water.

(c) Where the available data are deemed insufficient for deriving a value on the basis of subdivision (b) of this section, a value may be based on correlation to a chemical for which a standard or guidance value has been established pursuant to that subdivision. Values based on chemical correlation may be established where similar toxic effects are anticipated because of similarity of functional groups or metabolic or toxicologic pathways.

Historical Note

Sec. filed Aug. 2, 1991; repealed, new filed Feb. 10, 1998; amd. filed July 16, 1999 eff. Aug. 4, 1999. Amended (c).

§702.14 Procedures for deriving standards and guidance values for protection of aesthetic quality

(a) Protection of the best usage as a source of potable water supply shall include standards and guidance values to protect the aesthetic quality of the water, including but not limited to taste, odor, and discoloration, both as a source of potable water and for other human uses such as clothes washing and showering. Such values are referred to as Aesthetic (Water Source) values and shall be derived based on an evaluation of reported levels of the substance that affect the aesthetic quality of the water. Values derived shall not exceed the value of a Specific MCL that is based on aesthetic considerations.

(b) Protection of the best usage of fishing shall include standards and guidance values to prevent tainting of aquatic food, including but not limited to taste, odor, and discoloration. Such values are referred to as Aesthetic (Food Source) values and derived based on an evaluation of reported levels of the substance that affect the aesthetic quality of the fish flesh, aquatic life, wildlife, or livestock that are consumed by humans and that acquire such flavor, odor, or color because of habitation in, passage through, or ingestion of waters.

(c) If the available data are deemed insufficient for deriving a value based on subdivision (a) or (b) of this section, a value may be established based on chemical correlation to a chemical for which a standard or guidance value has been established pursuant to that subdivision, if similar aesthetic considerations are anticipated because of similarity of functional groups or metabolic or toxicologic pathways.

Historical Note

Sec. filed Aug. 2, 1991; repealed, new filed: Feb. 10, 1998; Jan. 17, 2008 eff. 30 days after filing.

§702.15 Derivation of guidance values

(a) For those substances that do not have an applicable Health (Water Source) standard in section 703.5 of this Title and that the department determines may pose a threat to human health if discharged to the waters of the State, a guidance value may be derived and shall be the most stringent of the following:

(1) the values derived by applying the procedures from sections 702.3 through 702.7 of this Part;

(2) a "general organic guidance value" of 50 ug/L for an individual organic substance. This paragraph does not apply if adequate and sufficient data are available to justify values greater than 50 ug/L using procedures from both sections 702.4 and 702.5 of this Part. The general organic guidance value applies only to those substances specified by the department; or

(3) a "specific organic mixture guidance value" of 100 ug/L for a commercially available mixture of individual organic substances. This paragraph does not apply if adequate and sufficient data are available to justify values greater than 100 ug/L using procedures from both sections 702.4 and 702.5 of this Part. The derivation of this value for any specified mixture does not preclude the existence or derivation of a Health (Water Source) standard or guidance value for any individual organic substance in the mixture. The specific organic mixture guidance value applies only to those mixtures specified by the department.

(b) For those substances that do not have an applicable Health (Fish Consumption) standard in section 703.5 of this Title and that the department determines may pose a threat to human health if discharged to the waters of the State, a guidance value may be derived by applying the procedures from section 702.8 of this Part.

(c) (1) For those substances that do not have an applicable Aquatic (Chronic) standard in section 703.5 of this Title and that the department determines may pose a threat to aquatic life or the environment if discharged to the waters of the State, a guidance value may be derived by applying the appropriate procedure from section 702.9 of this Part.

(2) For those substances that have an identified applicable Aquatic (Chronic) standard in section 703.5 of this Title, a guidance value shall be substituted where the procedures in section 702.9 of this Part yield a more stringent value. Remarks in Table 1 of section 703.5(f) of this Title identify the standards to which this paragraph applies. This paragraph applies only to the waters of the Great Lakes System.

(d) (1) For those substances that do not have an applicable Aquatic (Acute) standard in section 703.5 of this Title and that the department determines may pose a threat to aquatic life or the environment if discharged to the waters of the State, a guidance value may be derived by applying the appropriate procedure from section 702.9 of this Part.

(2) For those substances that have an identified applicable Aquatic (Acute) standard in section 703.5 of this Title, a guidance value shall be substituted where the procedures in section 702.9 of this Part yield a more stringent value. Remarks in Table 1 of section 703.5(f) of this Title identify the standards to which this paragraph applies. This paragraph applies only to the waters of the Great Lakes System.

(e) For those substances that do not have an applicable Wildlife standard in section 703.5 of this Title and that the department determines may pose a threat to wildlife if discharged to the waters of the State, a guidance value may be derived by applying the appropriate procedure from section 702.13 of this Part.

(f) For those substances that do not have an applicable Aesthetic (Water Source) standard in section 703.5 of this Title and that the department determines may pose a threat to the aesthetic quality of sources of potable water if discharged to the waters of the State, a guidance value may be derived by applying the appropriate procedure from section 702.14 of this Part.

(g) For those substances that do not have an applicable Aesthetic (Food Source) standard in section 703.5 of this Title and that the department determines may pose a threat to the aesthetic quality of food for human consumption if discharged to the waters of the State, a guidance value may be derived by applying the appropriate procedure from section 702.14 of this Part.

(h) For those parameters that do not have an applicable Recreation standard in section 703.5 of this Title and that the department determines may pose a threat to the quality of the water for recreation if discharged to the waters of the State, a guidance value may be derived by applying the appropriate procedure from section 702.12 of this Part.

Historical Note

Sec. filed Aug. 2, 1991; amds. filed: Feb. 10, 1998; Jan. 17, 2008 eff. 30 days after filing. Amended (a), (f), added (g)-(h).

§702.16 Derivation and implementation of effluent limitations

(a) Standards and guidance values shall be used to control taste-, color- and odor-producing, toxic and deleterious substances, as specified in the narrative standards for fresh and saline surface waters and groundwaters and shall be the basis of water quality-based effluent limitations and groundwater effluent limitations for use in SPDES permits issued pursuant to Parts 750-758 of this Title.

(b) Surface water effluent limitations.

(1) When deriving a water quality-based effluent limitation from a surface water standard or guidance value, the department may take into account factors, including but not limited to analytical detectability, treatability, natural background levels, intermittent streamflow, wet weather events, and the waste assimilative capacity of the receiving waters.

(2) Where these factors indicate that achieving a water quality-based effluent limitation would be clearly unreasonable, the department may substitute a modified effluent limitation. Where the effluent limitation had been derived from an aquatic standard or guidance value, the department shall also require biological monitoring.

(3) A surface water effluent limitation for the total of organic substances that have a Health (Water Source) standard for surface water in Table 1 of section 703.5(f) of this Title or a guidance value for surface water derived pursuant to section 702.15(a) of this Part shall be established based on an ambient value of 100 ug/L. Where such standards or guidance values are 100 ug/L or greater, they shall not be included in the total.

(c) Groundwater effluent limitations.

(1) Groundwater effluent limitations are provided in Table 3 of section 703.6(e) of this Title. For those substances not included in Table 3 of section 703.6(e) of this Title and for which a guidance value has been derived as provided in section 702.15(a) or section 702.15(f) of this Part, the groundwater effluent limitation shall be equal to the guidance value.

(2) When implementing a groundwater effluent limitation, the department may take into account factors, including but not limited to analytical detectability and treatability.

(3) Where these factors indicate that achieving a groundwater effluent limitation as set forth in paragraphs (1) and (2) of this subdivision would be clearly unreasonable, the department may substitute a modified effluent limitation.

(4) A groundwater effluent limitation for the total of organic substances that have a groundwater standard in Table 1 of section 703.5(f) of this Title or a groundwater guidance value derived pursuant to section 702.15(a) of this Part shall be established at 100 ug/L. However, substances that have a groundwater standard or guidance value or groundwater effluent limitation of 100 ug/L or greater shall not be included in this total.

Historical Note

Sec. filed Aug. 2, 1991; amds. filed: Feb. 10, 1998; March 22, 1999; July 16, 1999; Jan. 17, 2008 eff. 30 days after filing. Amended (b)(1).

§702.17 Variances to effluent limitations based on standards and guidance values

(a) The department may grant, to an applicant for a SPDES permit or to a SPDES permittee, a variance to a water quality-based effluent limitation or groundwater effluent limitation included in a SPDES permit.

(1) A variance applies only to the permittee identified in such variance and only to the pollutant specified in the variance. A variance does not affect or require the department to modify a corresponding standard or guidance value. A variance does not affect or require the department to modify a corresponding groundwater effluent limitation for the groundwater as a whole.

(2) A variance shall not apply to a new or recommencing discharger in the Great Lakes System unless the proposed discharge is a temporary one that is necessary to alleviate an imminent and substantial danger to the public health or the environment that is greater than the danger from not achieving the standard or guidance value. For the purpose of this Part, an imminent and substantial danger to the public health or the environment shall include, but not be limited to, a significant threat to the environment as defined in Part 375 of this Title.

(3) A variance shall not be granted that would likely jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of such species' critical habitat.

(4) A variance shall not be granted if standards or guidance values will be attained by implementing effluent limits required under section 750-1.11(a) of this Title and by the permittee implementing cost-effective and reasonable best management practices for nonpoint source control.

(5) A variance term shall not exceed the term of the SPDES permit. Where the term of the variance is the same as the permit, the variance shall stay in effect until the permit is reissued, modified or revoked.

(b) A variance may be granted if the requester demonstrates that achieving the effluent limitation is not feasible because:

(1) naturally occurring pollutant concentrations prevent attainment of the standard or guidance value;

(2) natural, ephemeral, intermittent or low flow conditions or water levels prevent attainment, unless these conditions may be compensated for by the discharge of sufficient volume of effluent to enable the standard or guidance value to be met without violating water conservation requirements;

(3) human-caused conditions or sources of pollution prevent attainment of the standard or guidance value and cannot be remedied or would cause more environmental damage to correct than to leave in place;

(4) dams, diversions or other types of hydrologic modifications preclude attainment of the standard or guidance value, and it is not feasible to restore the waterbody to its original condition or to operate such modification in a way that would result in such attainment;

(5) physical conditions related to the natural features of the waterbody, such as the lack of a proper substrate cover, flow, depth, pools, riffles and the like, unrelated to chemical water quality, preclude attainment of the standard or guidance value; or

(6) controls more stringent than those required by section 750-1.11(a) of this Title would result in substantial and widespread economic and social impact.

(c) In addition to the requirements of subdivision (b) of this section, the requestor shall also characterize, using adequate and sufficient data and principles, any increased risk to human health and the environment associated with granting the variance compared with attainment of the standard or guidance value absent the variance, and demonstrate to the satisfaction of the department that the risk will not adversely affect the public health, safety and welfare.

(d) The requestor shall submit a written application for a variance to the department. The application shall include:

(1) all relevant information demonstrating that achieving the effluent limitation is not feasible based on subdivision (b) of this section; and

(2) all relevant information demonstrating compliance with the conditions in subdivision (c) of this section.

(e) Where a request for a variance satisfies the requirements of this section, the department shall authorize the variance through the SPDES permit. The variance request shall be available to the public for review during the public notice period for the permit. The permit shall contain all conditions needed to implement the variance. Such conditions shall, at minimum, include:

(1) compliance with an initial effluent limitation that, at the time the variance is granted, represents the level currently achievable by the requestor, and that is no less stringent than that achieved under the previous permit where applicable;

(2) that reasonable progress be made toward achieving the effluent limitation based on the standard or guidance value, including, where reasonable, an effluent limitation more stringent than the initial effluent limitation;

(3) additional monitoring, biological studies and pollutant minimization measures as deemed necessary by the department;

(4) when the duration of a variance is shorter than the duration of a permit, compliance with an effluent limitation sufficient to meet the underlying standard or guidance value, upon the expiration of the variance; and

(5) a provision that allows the department to reopen and modify the permit for revisions to the variance.

(f) The department shall deny a variance request if the requestor fails to make the demonstrations required under subdivisions (b) and (c) of this section.

(g) A variance may be renewed, subject to the requirements of this section. As part of any renewal application, the permittee shall again demonstrate that achieving the effluent limitation is not feasible based on the requirements of this section. The permittee's application shall also contain information concerning its compliance with the conditions incorporated into its permit as part of the original variance pursuant to subdivisions (b) and (c) of this section. Renewal of a variance may be denied if the permittee did not comply with the conditions of the original variance.

(h) Where the department determines that a multiple discharge variance is necessary to address widespread standard or guidance value attainment issues including the presence of a ubiquitous pollutant or naturally high levels of a pollutant in a watershed, the department, in lieu of the discharger, may conduct the variance demonstration requirements in subdivisions (b) and (c) of this section. Any permittee accepting such variance shall be subject to the provisions of subdivision (e) of this section.

(i) The department will make available to the public a list of every variance that has been granted and that remains in effect.

Historical Note

Sec. filed Aug. 2, 1991; repealed, new filed Feb. 10, 1998 eff. 30 days after filing.

§702.18 More stringent groundwater effluent limitations

(a) The department, after consultation with the New York State Department of Health, may establish, on a case-by-case basis, more stringent effluent limitations than those set forth in section 703.6 of this Title or established by section 702.16(c)(1) of this Part, where necessary, to prevent pollution and protect the groundwaters for their best usages. The department shall consider rules and regulations promulgated by the administrator or the New York State Department of Health in establishing such limitations. Additionally, the department shall consider action levels for compounds determined to exhibit toxic effects which are established by the Commissioner of the New York State Department of Health.

(b) Circumstances under which the department may consider more stringent effluent limitations include but are not limited to the following:

(1) a discharge to an aquifer that is the sole or principal source of potable water supply;

(2) an existing or proposed discharge that is directly on or into consolidated rock or bedrock;

(3) a discharge containing one or more substances that in combination with precipitation and/or natural soil constituents is likely to produce a toxic pollutant; or

(4) where adverse cumulative or synergistic effects can be established for constituents in a discharge.

Historical Note

Sec. filed Aug. 2, 1991; amds. filed: Feb. 10, 1998; July 16, 1999 eff. Aug. 4, 1999. Amended (b).

§702.19 Modifications of groundwater effluent limitations

(a) (1) An applicant for a SPDES permit or a SPDES permittee may make written application for a modification of a groundwater effluent limitation listed in Table 3 of section 703.6(e) of this Title or established pursuant to section 702.16(c)(1) of this Part.

(2) Such applicant shall have the burden of establishing to the satisfaction of the commissioner, that one or more of the effluent limitations are unnecessarily restrictive as to a particular discharge in that such modification would, notwithstanding noncompliance with such limitations, prevent pollution and protect the groundwaters for their best usages.

(b) Where a request for a modification of a groundwater effluent limitation satisfies the requirements of this section, the department shall authorize the modification through the SPDES permit. The modification request shall be available to the public for review during the public notice period for the permit. The permit shall contain all conditions needed to implement the modification.

Historical Note

Sec. filed Aug. 2, 1991; amds. filed: Feb. 10, 1998; March 22, 1999 eff. April 7, 1999. Amended (a)(1), (b).

§702.20 Studies and monitoring for discharges to groundwater

(a) The department may require the submission of information by any person responsible for a discharge in order that the department may evaluate the short- and long-term effect the discharge may have on groundwaters of the State or for the purpose of determining additional (section 702.15[a] of this Part) or more stringent (section 702.18 of this Part) effluent limitations or modifications (section 702.19 of this Part) thereto. Such information may include but is not limited to the following:

(1) a statement of the property to be affected by a discharge and the extent to which such property is under the control of the person responsible for such discharge;

(2) a geohydrologic analysis of the aquifers that may be affected;

(3) a determination of the direction and rate of movement of the discharge and the natural groundwater;

(4) an evaluation of adverse effects a discharge may have on any aquifer, source of potable water supply, or other surface waters or groundwaters of the State; and

(5) an evaluation of the ability of unconsolidated deposits, consolidated rock or bedrock and the groundwaters to attenuate potential pollutants such that the best usage of the groundwaters is maintained.

(b) The department may require the installation and operation of monitoring facilities in order to assure compliance with effluent limitations or to evaluate the effect of the discharge on the quality of the groundwater. Specific monitoring requirements shall be established by the department on a case-by-case basis and as may be required by Part 756 of this Title.

Historical Note

Sec. filed Aug. 2, 1991; amd. filed Feb. 10, 1998 eff. 30 days after filing.

§702.21 Exceptions to groundwater effluent limitations

(a) Activities and conditions. The effluent limitations set forth in section 703.6 of this Title or established pursuant to section 702.16(c)(1) of this Part for discharges to Class GA waters are not applicable to the following activities:

(1) the discharge of sewage without the admixture of industrial waste or other wastes where:

(i) a disposal system, point source or outlet consists of a subsurface sewage disposal system designed, constructed and maintained in accordance with guidelines and standards satisfactory to the department;

(ii) monitoring facilities are utilized in accordance with requirements as may be specified by the department; and

(iii) the disposal system is designed to discharge, and discharges, less than 30,000 gallons per day;

(2) normally accepted agricultural practice of utilizing chemicals and fertilizers for growing of crops for human and animal consumption; and

(3) waste management systems that employ land application techniques and have renovative capabilities provided it has been demonstrated to the satisfaction of the commissioner that:

(i) there will be no actual or potential public health hazard;

(ii) applicable water quality standards will be met in saturated zones; and

(iii) applicable water quality standards will not be contravened in any adjacent waters of the State.

(b) Nothing contained in this section shall be construed to allow any discharge that would preclude the best usage of Class GA waters specified in section 701.15 of this Title.

Historical Note

Sec. filed Aug. 2, 1991; amd. filed Feb. 10, 1998 eff. 30 days after filing.

§702.22 Severability

If any provision of this Part or its application to any person or circumstance is held to be invalid, the remainder of this Part and the application of that provision to other persons or circumstances will not be affected.

Historical Note

Sec. filed Aug. 2, 1991 eff. 30 days after filing.