(1) Thermal discharge effluent limitations or standards established in permits may be less stringent than those required by applicable standards and limitations, if the discharger demonstrates to the satisfaction of the department that such effluent limitations are more stringent than necessary to assure the protection and propagation of a balanced, indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge is made. This demonstration must show that the alternative effluent limitation desired by the discharger, considering the cumulative impact of its thermal discharge together with all other significant impacts on the species affected, will assure the protection and propagation of a balanced indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge is to be made.
(2) In determining whether or not the protection and propagation of the affected species will be assured, the department may consider any information contained or referenced in any applicable thermal water quality criteria and thermal water quality information published by the EPA under section 304(a) of the federal Clean Water Act, or any other information the department deems relevant.
(3) Existing dischargers may base their demonstration upon the absence of prior appreciable harm in lieu of predictive studies. Any such demonstrations must show:
(a) that no appreciable harm has resulted from the normal component of the discharge, taking into account the interaction of such thermal component with other pollutants and the additive effect of other thermal sources to a balanced, indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge has been made; or
(b) that, despite the occurrence of such previous harm, the desired alternative effluent limitations, or appropriate modifications thereof, will nevertheless assure the protection and propagation of a balanced, indigenous community of shellfish, fish, and wildlife in and on the body of water into which the discharge is made.
(4) In determining whether or not prior appreciable harm has occurred under (3)(a), the department shall consider the length of time that the applicant has been discharging and the nature of the discharge.
(5) Any initial application for a variance from thermal effluent limitations pursuant to section 316(a) of the federal Clean Water Act must include the following early screening information:
(a) description of the alternative effluent limitation requested;
(b) a general description of the method by which the discharger proposes to demonstrate that the otherwise applicable thermal discharge effluent limitations are more stringent than necessary;
(c) a general description of the type of data, studies, experiments, and other information which the discharger intends to submit for the demonstration; and
(d) such data and information as may be available to assist the department in selecting the appropriate representative important species.
(6) After submitting the early screening information under (5), the discharger shall consult with the department at the earliest practicable time, but not later than 30 days after the application is filed, to discuss the discharger's early screening information. Within 60 days after the application is filed, the discharger shall submit for department approval a detailed plan of study that the discharger will undertake to support its demonstration for a variance under section 316(a). The discharger shall specify the nature and extent of the following type of information to be included in the plan of study: biological, hydrographical, and meteorological data; physical monitoring data; engineering or diffusion models; laboratory studies; representative important species; and other relevant information. In selecting representative important species, special consideration must be given to species mentioned in applicable water quality standards. After the discharger submits its detailed plan of study, the department shall either approve the plan or specify any necessary revisions to the plan. The discharger shall provide any additional information or studies that the department subsequently determines are necessary to support the demonstration, including such studies or inspections as may be necessary to select representative important species. The discharger may provide any additional information or studies that the discharger feels are appropriate to support the demonstration.
(7) Any discharger that intends to apply for a renewal of a section 316(a) thermal variance must notify the department of its intent in writing. Within 60 days after receipt of the notification, the department shall request that the discharger include in its renewal application only such information described in (5) and (6) that the department determines is necessary to evaluate the request.
(8) In making the demonstration, the discharger shall consider any information or guidance published by EPA to assist in making such demonstrations.
(9) If an applicant desires a ruling on a section 316(a) variance before the ruling on any other necessary permit terms and conditions, it shall make such request upon filing its application under (5). This request must be granted or denied at the discretion of the department.
(10) At the expiration of the permit, any discharger holding a thermal variance must support the continuation of the variance with studies based on the discharger's actual operation experience.