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Virginia Administrative Code
Title 12. Health
Agency 5. Department of Health
Chapter 590. Waterworks Regulations
6/30/2022

12VAC5-590-140. Variances.

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

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

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

b. The characteristics of the source water that is reasonably available to the waterworks prevents the waterworks from meeting the PMCL or SMCL requirements, and on condition that the waterworks installs the BAT, treatment techniques, or other means, that the department 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 one or more treatment technique variances to a waterworks from any requirement of a specified treatment technique upon a finding that the waterworks applying for the variance has demonstrated that the treatment technique is not necessary to protect the health of persons because of the nature of the source water at the waterworks.

3. The commissioner may grant a variance to a waterworks from an operational regulation if a thorough investigation reveals that the hardship imposed outweighs the benefits that may be received by the public and that the granting of the variance does not subject the public to unreasonable health risks.

4. An operational variance may not be issued from monitoring, reporting, or public notification requirements.

B. Request for a variance. Any owner may apply in writing for a variance. The request shall be sent to the department for evaluation. All requests 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 owner to be pertinent to the request; and

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

C. For any request made for a PMCL variance, the owner shall also include:

1. An explanation in full and evidence of the BAT;

2. The economic and legal factors relevant to the owner's ability to comply;

3. The analytic results of source water quality relevant to the variance request;

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

a. The date by which arrangement for an alternative source water or improvement of an existing source water will be completed;

b. The date of initiation of the connection of the alternative source water or improvement of the existing source water; and

c. The date by which final compliance is to be achieved.

5. A plan for the provision of potable water in the case of an excessive rise in the contaminant level for which the variance is requested;

6. A plan for interim control measures during the effective period of the variance; and

7. A plan for notifying the consumers at least once every three months, or more frequently if determined by the commissioner, that the waterworks is operating under the conditions of a variance.

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

E. Consideration of a variance request.

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

2. The commissioner will consider comments received during the comment period and testimony in the record of a public hearing held before making a determination.

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

a. The availability and effectiveness of BAT for which the variance is requested; and

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

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

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

b. Source protection measures employed by the waterworks.

5. In the commissioner's consideration of whether a waterworks should be granted a variance to a required operational procedure, 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 VOSH laws and regulations;

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

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

F. Disposition of a variance request.

1. The commissioner may reject any request 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. If the commissioner proposes to deny the variance, the owner shall be provided with an opportunity for an informal fact-finding proceeding as provided in § 2.2-4019 of the Code of Virginia.

2. If the commissioner grants the variance, the applicant shall be notified in writing of this decision. The 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, the 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 F 3 of this section.

b. For a treatment technique variance as specified in subdivision A 2 of this section, the notice shall provide that the variance may be terminated at any time upon a finding by the commissioner that the nature of the source water 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, the 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 toward compliance are to be taken, including where applicable:

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

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

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

b. If the waterworks has no access to an alternative source water and can effect or anticipate no adequate improvement of the existing source water, then 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.

G. 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 F of this section may take effect. A notice given pursuant to this subsection 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 a request 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, then the rationale for the extended compliance schedule shall be discussed in the notice.

H. 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, then the commissioner shall document the rationale for the extended compliance schedule.

2. The compliance 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. The compliance schedule shall provide the shortest practicable time schedule under the circumstances.

I. 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.

J. No variances shall be granted to 12VAC5-590-380, 12VAC5-590-388, 12VAC5-590-395, or 12VAC5-590-411.

Statutory Authority

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

Historical Notes

Derived from VR355-18-003.09 § 1.15, eff. August 1, 1991; amended, Virginia Register Volume 9, 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 3, eff. November 2, 2016; Volume 37, Issue 20, eff. June 23, 2021.

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