Section 140. Variances

A. The commissioner may grant a variance to a primary maximum contaminant level (PMCL), a treatment technique requirement, an operational regulation, or a secondary maximum contaminant level (SMCL) by following the appropriate procedures set forth in this section.

1. Requirements for a variance. A PMCL variance may be granted to a waterworks from any requirement respecting a PMCL upon a finding that:

a. Alternative sources of water are not reasonably available to the waterworks;

b. The characteristics of the raw water sources which are reasonably available to the waterworks prevent the waterworks from meeting the PMCL requirements and on condition that the waterworks installs the best available technology, treatment techniques, or other means, which the commissioner finds are generally available (taking costs into consideration); and

c. The granting of a variance will not result in an unreasonable risk to the health of persons served by the waterworks.

2. The commissioner may grant a treatment technique variance from any requirement of a specified treatment technique upon a finding that the waterworks applying for the variance has demonstrated that such treatment technique is not necessary to protect the health of persons because of the nature of the raw water source of such waterworks.

3. The commissioner may grant a variance from an operational regulation or a SMCL if a thorough investigation reveals that the hardship imposed outweighs the benefits that may be received by the public and that the granting of such variance does not subject the public to unreasonable health risks. An operational variance may not be issued from monitoring, reporting, or public notification requirements.

B. Application for a variance. Any owner may apply in writing for a variance. The application should be sent to the appropriate field office for evaluation. All applications for a variance shall include the following:

1. A citation of the regulation from which a variance is requested;

2. The nature and duration of the variance requested;

3. Relevant analytical results of water quality sampling of the waterworks, including results of relevant tests conducted pursuant to the requirements of this chapter;

4. A statement of the hardship to the owner and the anticipated impacts to the public health and welfare if a variance were granted;

5. Suggested conditions that might be imposed on the granting of a variance that would limit its detrimental impact on public health and welfare;

6. Other information, if any, believed by the applicant to be pertinent to the application; and

7. Such other information as may be required by the commissioner to make the determination.

8. For any application made for a PMCL variance, the applicant shall also include;

a. Explanation in full and evidence of the best available treatment technology and techniques;

b. Economic and legal factors relevant to ability to comply;

c. Analytical results of raw water quality relevant to the variance request;

d. A proposed compliance schedule including the date each step toward compliance will be achieved. Such schedule shall include as a minimum the following dates:

(1) Date by which arrangement for alternative raw water source or improvement of existing raw water source will be completed;

(2) Date of initiation of the connection of the alternative raw water source or improvement of existing raw water source; and

(3) Date by which final compliance is to be achieved.

e. A plan for the provision of safe drinking water in the case of an excessive rise in the contaminant level for which the variance is requested; and

f. A plan for interim control measures during the effective period of the variance.

9. For any application made for a treatment technique variance, the applicant must also include a statement that monitoring and other reasonable requirements prescribed by the commissioner as a condition to the variance will be performed.

C. Consideration of a variance application.

1. The commissioner shall act on any variance application submitted pursuant to subsection B of this section within 90 days of receipt of the application.

2. In the commissioner's consideration of whether the waterworks is unable to comply with a contaminant level required by this chapter (PMCL variance) because of the nature of the raw water source, the commissioner shall consider such factors as the following:

a. The availability and effectiveness of treatment methods for which the variance is requested.

b. Cost and other economic considerations such as implementing treatment, improving the quality of the source water, or using an alternate source.

3. In the commissioner's consideration of whether a waterworks should be granted a variance to a required treatment technique because such treatment is unnecessary to protect the public health (treatment technique variance), the commissioner shall consider such factors as the following:

a. Quality of the water source including water quality data and pertinent sources of pollution.

b. Source protection measures employed by the waterworks.

4. In the commissioner's consideration of whether waterworks should be granted a variance to a required operational procedure or SMCL (operational variance), the commissioner shall consider such factors as the following:

a. The effect that such a variance would have on the adequate operation of the waterworks, including operator safety (in accordance with Virginia Occupational Safety and Health laws).

b. The cost and other economic considerations imposed by this requirement.

c. The effect that such a variance would have on the protection of the public health.

D. Disposition of a variance application.

1. The commissioner may reject any application for a variance by sending a rejection notice to the applicant. The rejection notice shall be in writing and shall state the reasons for the rejection. A rejection notice constitutes a case decision. The applicant has the right to petition for a hearing within 60 days of the date of the rejection to challenge the rejection pursuant to 12VAC5-590-160 and 12VAC5-590-180.

2. If the commissioner grants the variance, the applicant shall be notified in writing of this decision. Such notice shall identify the variance, the waterworks covered, and shall specify the period of time for which the variance will be effective.

a. For a PMCL variance as specified in subdivision A 1 of this section, such notice shall provide that the variance will be terminated when the waterworks comes into compliance with the applicable regulation and may be terminated upon a finding by the commissioner that the waterworks has failed to comply with any requirements of a final schedule issued pursuant to subdivision D 3 of this section.

b. For a treatment technique variance as specified in subdivision A 2 of this section, such notice shall provide that the variance may be terminated at any time upon a finding by the commissioner that the nature of the raw water source is such that the specified treatment technique for which the variance was granted is necessary to protect the public health or upon a finding that the waterworks has failed to comply with monitoring and other requirements prescribed by the commissioner as a condition to the granting of the variance.

c. For an operational variance as specified in subdivision A 3 of this section, such notice shall provide that the variance will be terminated when the waterworks comes into compliance with the applicable regulation and may be terminated upon a finding by the commissioner that the waterworks has failed to comply with any requirements or schedules issued in conjunction with the variance. The effective date of the operational variance shall be the date of its issuance. A public hearing is not required before the issuance of an operational variance.

3. Schedules pursuant to PMCL and treatment technique variances:

a. The proposed schedule for compliance shall specify dates by which steps towards compliance are to be taken, including where applicable:

(1) Date by which arrangement for an alternative water source or improvement of existing raw water source will be completed.

(2) Date of connection to the alternative raw water source or improvement of the existing raw water source.

(3) Date by which final compliance is to be achieved.

b. If the waterworks has no access to an alternative raw water source and can effect or anticipate no adequate improvement of the existing raw water source, the proposed schedule may specify an indefinite time period for compliance until a new and effective treatment technology is developed, at which time a new compliance schedule shall be prescribed by the commissioner.

c. The schedule for implementation of interim control measures during the period of variance shall specify interim treatment techniques, methods, and equipment and dates by which steps toward meeting the interim control measures are to be met.

d. The schedule shall be prescribed by the commissioner at the time the variance is granted.

e. For a PMCL variance specified in subdivision A 1 of this section the commissioner shall propose a schedule for:

(1) Compliance (including increments of progress) by the waterworks with each contaminant level requirement covered by the variance; and

(2) Implementation by the waterworks of such control measures as the commissioner may require for each contaminant level covered by the variance.

E. Public hearings on PMCL and treatment technique variances and their schedules.

1. Notice of a public hearing shall be provided before a variance and schedule proposed by the commissioner pursuant to subsection D of this section may take effect. A notice given pursuant to the preceding sentence may cover the granting of more than one variance and a public hearing held pursuant to such notice shall include each of the variances covered by the notice.

2. Notice of a public hearing on an application for a variance and its schedule shall be advertised in at least one major newspaper of general circulation in the region in which the waterworks is located. The notice shall include a summary of the proposed variance and its schedule and shall contain the time, date, and place of the public hearing. If the schedule exceeds five years from the date of the variance, the rationale for the extended compliance schedule shall be discussed in the notice.

F. Issuance of variance.

1. Within 30 days after the public hearing, the commissioner shall, taking into consideration information obtained during such hearing, revise the proposed variance as necessary and prescribe the final schedule for compliance and interim measures for the waterworks granted a variance. If the schedule for compliance exceeds five years from the date of issuance of the variance, the commissioner shall document the rationale for the extended compliance schedule.

2. Such schedule shall establish the timetable by which the waterworks shall comply with each contaminant level and treatment technique requirement prescribed by this chapter. Such schedule shall also consider if the waterworks is to become part of a regional waterworks. Such schedule shall provide the shortest practicable time schedule under the circumstances.

G. Posting of variances. All variances granted to any waterworks are nontransferable. Each variance must be attached to the permit of the waterworks to which it is granted. Each variance is a condition to that permit and is revoked when the permit is revoked.

H. No variances shall be granted to 12VAC5-590-380, 12VAC5-590-400, or 12VAC5-590-420.

Historical Notes

Derived from VR355-18-003.09 § 1.15, eff. August 1, 1991; amended, Volume 09, Issue 17, eff. June 23, 1993; Volume 19, Issue 24, eff. September 10, 2003; Volume 21, Issue 16, eff. May 18, 2005; Volume 33, Issue 03, eff. November 2, 2016.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.