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U.S. Code as of:
01/19/04
Section 300g-4. Variances
(a) Characteristics of raw water sources; specific treatment
technique; notice to Administrator, reasons for variance;
compliance, enforcement; approval or revision of schedules and
revocation of variances; review of variances and schedules;
publication in Federal Register, notice and results of review;
notice to State; considerations respecting abuse of discretion in
granting variances or failing to prescribe schedules; State
corrective action; authority of Administrator in a State without
primary enforcement responsibility; alternative treatment
techniques
Notwithstanding any other provision of this part, variances from
national primary drinking water regulations may be granted as
follows:
(1)(A) A State which has primary enforcement responsibility for
public water systems may grant one or more variances from an
applicable national primary drinking water regulation to one or
more public water systems within its jurisdiction which, because
of characteristics of the raw water sources which are reasonably
available to the systems, cannot meet the requirements respecting
the maximum contaminant levels of such drinking water regulation.
A variance may be issued to a system on condition that the system
install the best technology, treatment techniques, or other
means, which the Administrator finds are available (taking costs
into consideration), and based upon an evaluation satisfactory to
the State that indicates that alternative sources of water are
not reasonably available to the system. The Administrator shall
propose and promulgate his finding of the best available
technology, treatment techniques or other means available for
each contaminant for purposes of this subsection at the time he
proposes and promulgates a maximum contaminant level for each
such contaminant. The Administrator's finding of best available
technology, treatment techniques or other means for purposes of
this subsection may vary depending on the number of persons
served by the system or for other physical conditions related to
engineering feasibility and costs of compliance with maximum
contaminant levels as considered appropriate by the
Administrator. Before a State may grant a variance under this
subparagraph, the State must find that the variance will not
result in an unreasonable risk to health. If a State grants a
public water system a variance under this subparagraph, the State
shall prescribe at the the (!1) time the variance is granted, a
schedule for -
(i) compliance (including increments of progress) by the
public water system with each containment level requirement
with respect to which the variance was granted, and
(ii) implementation by the public water system of such
additional control measures as the State may require for each
contaminant, subject to such contaminant level requirement,
during the period ending on the date compliance with such
requirement is required.
Before a schedule prescribed by a State pursuant to this
subparagraph may take effect, the State shall provide notice and
opportunity for a public hearing on the schedule. A notice given
pursuant to the preceding sentence may cover the prescribing of
more than one such schedule and a hearing held pursuant to such
notice shall include each of the schedules covered by the notice.
A schedule prescribed pursuant to this subparagraph for a public
water system granted a variance shall require compliance by the
system with each contaminant level requirement with respect to
which the variance was granted as expeditiously as practicable
(as the State may reasonably determine).
(B) A State which has primary enforcement responsibility for
public water systems may grant to one or more public water
systems within its jurisdiction one or more variances from any
provision of the national primary drinking water regulation which
requires the use of a specified treatment technique with respect
to a contaminant if the public water system applying for the
variance demonstrates to the satisfaction of the State that such
treatment technique is not necessary to protect the health of
persons because of the nature of the raw water source of such
system. A variance granted under this subparagraph shall be
conditioned on such monitoring and other requirements as the
Administrator may prescribe.
(C) Before a variance proposed to be granted by a State under
subparagraph (A) or (B) may take effect, such State shall provide
notice and opportunity for public hearing on the proposed
variance. A notice given pursuant to the preceding sentence may
cover the granting of more than one variance and a hearing held
pursuant to such notice shall include each of the variances
covered by the notice. The State shall promptly notify the
Administrator of all variances granted by it. Such notification
shall contain the reason for the variance (and in the case of a
variance under subparagraph (A), the basis for the finding
required by that subparagraph before the granting of the
variance) and documentation of the need for the variance.
(D) Each public water system's variance granted by a State
under subparagraph (A) shall be conditioned by the State upon
compliance by the public water system with the schedule
prescribed by the State pursuant to that subparagraph. The
requirements of each schedule prescribed by a State pursuant to
that subparagraph shall be enforceable by the State under its
laws. Any requirement of a schedule on which a variance granted
under that subparagraph is conditioned may be enforced under
section 300g-3 of this title as if such requirement was part of a
national primary drinking water regulation.
(E) Each schedule prescribed by a State pursuant to
subparagraph (A) shall be deemed approved by the Administrator
unless the variance for which it was prescribed is revoked by the
Administrator under subparagraph (G) or the schedule is revised
by the Administrator under such subparagraph.
(F) Not later than 18 months after the effective date of the
interim national primary drinking water regulations the
Administrator shall complete a comprehensive review of the
variances granted under subparagraph (A) (and schedules
prescribed pursuant thereto) and under subparagraph (B) by the
States during the one-year period beginning on such effective
date. The Administrator shall conduct such subsequent reviews of
variances and schedules as he deems necessary to carry out the
purposes of this subchapter, but each subsequent review shall be
completed within each 3-year period following the completion of
the first review under this subparagraph. Before conducting any
review under this subparagraph, the Administrator shall publish
notice of the proposed review in the Federal Register. Such
notice shall (i) provide information respecting the location of
data and other information respecting the variances to be
reviewed (including data and other information concerning new
scientific matters bearing on such variances), and (ii) advise of
the opportunity to submit comments on the variances reviewed and
on the need for continuing them. Upon completion of any such
review, the Administrator shall publish in the Federal Register
the results of his review together with findings responsive to
comments submitted in connection with such review.
(G)(i) If the Administrator finds that a State has, in a
substantial number of instances, abused its discretion in
granting variances under subparagraph (A) or (B) or that in a
substantial number of cases the State has failed to prescribe
schedules in accordance with subparagraph (A), the Administrator
shall notify the State of his findings. In determining if a State
has abused its discretion in granting variances in a substantial
number of instances, the Administrator shall consider the number
of persons who are affected by the variances and if the
requirements applicable to the granting of the variances were
complied with. A notice under this clause shall -
(I) identify each public water system with respect to which
the finding was made,
(II) specify the reasons for the finding, and
(III) as appropriate, propose revocations of specific
variances or propose revised schedules or other requirements
for specific public water systems granted variances, or both.
(ii) The Administrator shall provide reasonable notice and
public hearing on the provisions of each notice given pursuant to
clause (i) of this subparagraph. After a hearing on a notice
pursuant to such clause, the Administrator shall (I) rescind the
finding for which the notice was given and promptly notify the
State of such rescission, or (II) promulgate (with such
modifications as he deems appropriate) such variance revocations
and revised schedules or other requirements proposed in such
notice as he deems appropriate. Not later than 180 days after the
date a notice is given pursuant to clause (i) of this
subparagraph, the Administrator shall complete the hearing on the
notice and take the action required by the preceding sentence.
(iii) If a State is notified under clause (i) of this
subparagraph of a finding of the Administrator made with respect
to a variance granted a public water system within that State or
to a schedule or other requirement for a variance and if, before
a revocation of such variance or a revision of such schedule or
other requirement promulgated by the Administrator takes effect,
the State takes corrective action with respect to such variance
or schedule or other requirement which the Administrator
determines makes his finding inapplicable to such variance or
schedule or other requirement, the Administrator shall rescind
the application of his finding to that variance on schedule or
other requirement. No variance revocation or revised schedule or
other requirement may take effect before the expiration of 90
days following the date of the notice in which the revocation or
revised schedule or other requirement was proposed.
(2) If a State does not have primary enforcement responsibility
for public water systems, the Administrator shall have the same
authority to grant variances in such State as the State would
have under paragraph (1) if it had primary enforcement
responsibility.
(3) The Administrator may grant a variance from any treatment
technique requirement of a national primary drinking water
regulation upon a showing by any person that an alternative
treatment technique not included in such requirement is at least
as efficient in lowering the level of the contaminant with
respect to which such requirement was prescribed. A variance
under this paragraph shall be conditioned on the use of the
alternative treatment technique which is the basis of the
variance.
(b) Enforcement of schedule or other requirement
Any schedule or other requirement on which a variance granted
under paragraph (1)(B) or (2) of subsection (a) of this section is
conditioned may be enforced under section 300g-3 of this title as
if such schedule or other requirement was part of a national
primary drinking water regulation.
(c) Applications for variances; regulations: reasonable time for
acting
If an application for a variance under subsection (a) of this
section is made, the State receiving the application or the
Administrator, as the case may be, shall act upon such application
within a reasonable period (as determined under regulations
prescribed by the Administrator) after the date of its submission.
(d) "Treatment technique requirement" defined
For purposes of this section, the term "treatment technique
requirement" means a requirement in a national primary drinking
water regulation which specifies for a contaminant (in accordance
with section 300f(1)(C)(ii) of this title) each treatment technique
known to the Administrator which leads to a reduction in the level
of such contaminant sufficient to satisfy the requirements of
section 300g-1(b) of this title.
(e) Small system variances
(1) In general
A State exercising primary enforcement responsibility for
public water systems under section 300g-2 of this title (or the
Administrator in nonprimacy States) may grant a variance under
this subsection for compliance with a requirement specifying a
maximum contaminant level or treatment technique contained in a
national primary drinking water regulation to -
(A) public water systems serving 3,300 or fewer persons; and
(B) with the approval of the Administrator pursuant to
paragraph (9), public water systems serving more than 3,300
persons but fewer than 10,000 persons,
if the variance meets each requirement of this subsection.
(2) Availability of variances
A public water system may receive a variance pursuant to
paragraph (1), if -
(A) the Administrator has identified a variance technology
under section 300g-1(b)(15) of this title that is applicable to
the size and source water quality conditions of the public
water system;
(B) the public water system installs, operates, and
maintains, in accordance with guidance or regulations issued by
the Administrator, such treatment technology, treatment
technique, or other means; and
(C) the State in which the system is located determines that
the conditions of paragraph (3) are met.
(3) Conditions for granting variances
A variance under this subsection shall be available only to a
system -
(A) that cannot afford to comply, in accordance with
affordability criteria established by the Administrator (or the
State in the case of a State that has primary enforcement
responsibility under section 300g-2 of this title), with a
national primary drinking water regulation, including
compliance through -
(i) treatment;
(ii) alternative source of water supply; or
(iii) restructuring or consolidation (unless the
Administrator (or the State in the case of a State that has
primary enforcement responsibility under section 300g-2 of
this title) makes a written determination that restructuring
or consolidation is not practicable); and
(B) for which the Administrator (or the State in the case of
a State that has primary enforcement responsibility under
section 300g-2 of this title) determines that the terms of the
variance ensure adequate protection of human health,
considering the quality of the source water for the system and
the removal efficiencies and expected useful life of the
treatment technology required by the variance.
(4) Compliance schedules
A variance granted under this subsection shall require
compliance with the conditions of the variance not later than 3
years after the date on which the variance is granted, except
that the Administrator (or the State in the case of a State that
has primary enforcement responsibility under section 300g-2 of
this title) may allow up to 2 additional years to comply with a
variance technology, secure an alternative source of water,
restructure or consolidate if the Administrator (or the State)
determines that additional time is necessary for capital
improvements, or to allow for financial assistance provided
pursuant to section 300j-12 of this title or any other Federal or
State program.
(5) Duration of variances
The Administrator (or the State in the case of a State that has
primary enforcement responsibility under section 300g-2 of this
title) shall review each variance granted under this subsection
not less often than every 5 years after the compliance date
established in the variance to determine whether the system
remains eligible for the variance and is conforming to each
condition of the variance.
(6) Ineligibility for variances
A variance shall not be available under this subsection for -
(A) any maximum contaminant level or treatment technique for
a contaminant with respect to which a national primary drinking
water regulation was promulgated prior to January 1, 1986; or
(B) a national primary drinking water regulation for a
microbial contaminant (including a bacterium, virus, or other
organism) or an indicator or treatment technique for a
microbial contaminant.
(7) Regulations and guidance
(A) In general
Not later than 2 years after August 6, 1996, and in
consultation with the States, the Administrator shall
promulgate regulations for variances to be granted under this
subsection. The regulations shall, at a minimum, specify -
(i) procedures to be used by the Administrator or a State
to grant or deny variances, including requirements for
notifying the Administrator and consumers of the public water
system that a variance is proposed to be granted (including
information regarding the contaminant and variance) and
requirements for a public hearing on the variance before the
variance is granted;
(ii) requirements for the installation and proper operation
of variance technology that is identified (pursuant to
section 300g-1(b)(15) of this title) for small systems and
the financial and technical capability to operate the
treatment system, including operator training and
certification;
(iii) eligibility criteria for a variance for each national
primary drinking water regulation, including requirements for
the quality of the source water (pursuant to section
300g-1(b)(15)(A) of this title); and
(iv) information requirements for variance applications.
(B) Affordability criteria
Not later than 18 months after August 6, 1996, the
Administrator, in consultation with the States and the Rural
Utilities Service of the Department of Agriculture, shall
publish information to assist the States in developing
affordability criteria. The affordability criteria shall be
reviewed by the States not less often than every 5 years to
determine if changes are needed to the criteria.
(8) Review by the Administrator
(A) In general
The Administrator shall periodically review the program of
each State that has primary enforcement responsibility for
public water systems under section 300g-2 of this title with
respect to variances to determine whether the variances granted
by the State comply with the requirements of this subsection.
With respect to affordability, the determination of the
Administrator shall be limited to whether the variances granted
by the State comply with the affordability criteria developed
by the State.
(B) Notice and publication
If the Administrator determines that variances granted by a
State are not in compliance with affordability criteria
developed by the State and the requirements of this subsection,
the Administrator shall notify the State in writing of the
deficiencies and make public the determination.
(9) Approval of variances
A State proposing to grant a variance under this subsection to
a public water system serving more than 3,300 and fewer than
10,000 persons shall submit the variance to the Administrator for
review and approval prior to the issuance of the variance. The
Administrator shall approve the variance if it meets each of the
requirements of this subsection. The Administrator shall approve
or disapprove the variance within 90 days. If the Administrator
disapproves a variance under this paragraph, the Administrator
shall notify the State in writing of the reasons for disapproval
and the variance may be resubmitted with modifications to address
the objections stated by the Administrator.
(10) Objections to variances
(A) By the Administrator
The Administrator may review and object to any variance
proposed to be granted by a State, if the objection is
communicated to the State not later than 90 days after the
State proposes to grant the variance. If the Administrator
objects to the granting of a variance, the Administrator shall
notify the State in writing of each basis for the objection and
propose a modification to the variance to resolve the concerns
of the Administrator. The State shall make the recommended
modification or respond in writing to each objection. If the
State issues the variance without resolving the concerns of the
Administrator, the Administrator may overturn the State
decision to grant the variance if the Administrator determines
that the State decision does not comply with this subsection.
(B) Petition by consumers
Not later than 30 days after a State exercising primary
enforcement responsibility for public water systems under
section 300g-2 of this title proposes to grant a variance for a
public water system, any person served by the system may
petition the Administrator to object to the granting of a
variance. The Administrator shall respond to the petition and
determine whether to object to the variance under subparagraph
(A) not later than 60 days after the receipt of the petition.
(C) Timing
No variance shall be granted by a State until the later of
the following:
(i) 90 days after the State proposes to grant a variance.
(ii) If the Administrator objects to the variance, the date
on which the State makes the recommended modifications or
responds in writing to each objection.
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