26.04.01.03

.03 Requirements for a Variance, Granting a Variance, and Public Hearings.

A. The Approving Authority may grant to a supplier of water a variance or variances from certain requirements of this chapter. The requirements for obtaining variances are as follows:

(1) The Approving Authority may issue a variance based on the condition that the supplier of water installs the best technology, treatment techniques, or other means, which the Approving Authority finds are available when taking costs into consideration, and based upon an evaluation that indicates that alternative sources of water are not reasonably available;

(2) The Approving Authority may issue a variance to a supplier of water after documentation and consideration of findings set in 40 CFR §142.20;

(3) The Approving Authority may issue to systems serving fewer than 10,000 persons a variance from a maximum contaminant level, or a treatment technique in accordance with 40 CFR §§142.301—142.313, Subpart K, except for microbial contaminants that are included in subparts H, P, S, T, W, and Y of the 40 CFR §141.

(4) Variances from the treatment technique requirements of 40 CFR §141, Subpart H, may not be granted;

(5) Variances from the total coliform and E. coli maximum contamination levels may not be granted; beginning April 1, 2016 the total coliform maximum contaminant level is no longer effective;

(6) Variances from a maximum contaminant level for any synthetic organic chemical may only be granted if the:

(a) Conditions of §A(4) of this regulation are met; and

(b) Requirements of Regulation .03-1 of this chapter are met;

(7) Except as otherwise provided in this regulation, variances from a maximum contaminant level may be granted if the Approving Authority finds that:

(a) Characteristics of the raw water sources (which are reasonably available to the system) are such that the system cannot meet the requirements respecting the maximum contaminant levels of this regulation when application has been made of the best technology, treatment techniques, or other means, which the Approving Authority finds are generally available, taking costs into consideration; and

(b) The granting of a variance does not result in an unreasonable risk to the health of persons served by the system;

(8) Variances for a treatment technique other than treatment technique requirements of 40 CFR §141, Subpart H, may be granted if the Approving Authority finds that the supplier of water 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 raw water source of the system.

B. A supplier of water may request the granting of a variance under this regulation for a public water system by submitting a request for a variance in writing to the Approving Authority. The written request shall include the following information:

(1) The nature and duration of the variance requested.

(2) Relevant analytical results of water quality sampling of the system, including tests conducted under the requirements of this regulation.

(3) For any request made under §A(1) of this regulation:

(a) Explanation in full and evidence that application of the best available treatment technology and techniques has been made.

(b) Economic and legal factors relevant to ability or inability to comply.

(c) Analytical results of alternate raw water quality relevant to the variance request.

(d) A proposed compliance schedule, including the date each step toward compliance will be achieved. The schedule includes as a minimum the following dates:

(i) The date by which arrangement for alternate raw water source or improvement of existing raw water source will be completed;

(ii) The date of initiation of the connection of the alternate raw water source or improvement of existing raw water source; and

(iii) The 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.

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

(4) For a request made under §A(2) of this regulation, a statement that the supplier of water will perform monitoring and other reasonable requirements prescribed by the Approving Authority as a condition of the variance.

(5) Other information, if any, believed to be pertinent by the applicant and other information required by the Approving Authority.

C. The Approving Authority shall act on any variance request submitted under §B of this regulation within 90 days after receipt of the request and all necessary information. In addition, before acting on a request for a variance from:

(1) An MCL, the Approving Authority shall consider such factors as the following:

(a) The availability and effectiveness of treatment methods for the contaminant for which the variance is requested; and

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

(2) A required treatment technique, because this treatment is unnecessary to protect the public health, the Approving Authority shall consider such factors as the following:

(a) Quality of the water source, including pertinent sources of pollution; and

(b) Source protection measures employed by the supplier of water.

D. If the Approving Authority decides to deny the application for a variance, the applicant shall be notified in writing of the intention to issue a denial. The notice shall include a statement of reasons for the proposed denial, and shall offer the applicant an opportunity to present, within 30 days of receipt of the notice, additional information or argument to the Approving Authority. The Approving Authority shall make a final determination on the request within 30 days after receiving additional information or argument.

E. If the Approving Authority proposes to grant a variance request submitted under §B of this regulation, the applicant shall be notified of the decision in writing. The notice shall identifythe proposed variance, the facility covered, and the period of time for which the proposed variance will be effective. In addition, for a variance from a:

(1) Maximum contaminant level, the notice shall provide that the variance will be terminated when the supplier of water complies with the applicable standard, and may be terminated upon a finding by the Approving Authority that the supplier of water has failed to comply with any requirements of a final schedule approved by the Approving Authority;

(2) Treatment technique, the notice shall provide that the variance may be terminated at any time upon a finding that the nature of the raw water source is such that the application of the treatment technique for which the variance was granted is necessary to protect the health of individuals, or if the supplier of water has failed to comply with any of the conditions prescribed by the Approving Authority, as a condition to the granting of the variance.

F. Compliance Schedules.

(1) For a variance specified in §A(1) of this regulation, the Approving Authority shall propose a schedule for:

(a) Compliance, including increments of progress, by the supplier of water with each contaminant level requirement with respect to which the variance was granted; and

(b) Implementation of control measures by the supplier of water as the Approving Authority may require for each contaminant, subject to the contaminant level requirement, during the period ending on the date of compliance.

(2) The proposed schedule shall specify dates by which steps toward compliance are to be taken, including at the minimum, when applicable, the date:

(a) By which arrangement for an alternate raw water source or improvement of existing raw water source will be completed;

(b) Of initiation of the connection for the alternate raw water source or improvement of the existing raw water source; and

(c) By which final compliance is to be achieved.

(3) If the supplier of water has no access to an alternate 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 Approving Authority.

(4) The proposed 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.

(5) The schedule shall be prescribed by the Approving Authority at the time of granting the variance.

G. Before a variance or a schedule proposed by the Approving Authority under §§D—F of this regulation may take effect, the Approving Authority, the supplier of water, or both, shall provide public notice of an opportunity for a public hearing concerning the variance or schedule. Public notice of a hearing on a variance or schedule shall be circulated in a manner designed to inform interested and potentially interested persons of the proposed variance or schedule, and shall include at least the following:

(1) Publishing of a notice in a newspaper or newspapers of general circulation in the area served by the supplier of water, and posting of a notice in the principal post office of each municipality or area served by the supplier of water; and

(2) Mailing a notice to the agency of the county in which the system is located and who is responsible for the water supply program, and to other appropriate agencies at the discretion of the Approving Authority. The notice shall:

(a) Include a summary of the proposed variance and schedule; and

(b) Inform interested persons that they may request a public hearing on the proposed variance or schedule.

H. Requests for a hearing may be submitted by an interested person. The request shall be submitted in writing to the Approving Authority within 30 days after issuance of the public notices provided for in G of this regulation. The request shall include the following information:

(1) The name, address and telephone number of the individual, organization or other entity requesting a hearing;

(2) A brief statement of the interest of the person making the request in the proposed variance or schedule;

(3) A brief statement of the information that the person making the request intends to submit at the hearing; and

(4) The signature of the individual making the request, or, if the request is made on behalf of an organization or other entity, the signature of a responsible official of the organization or other entity.

I. The Approving Authority gives notice of any hearing to be held in the manner set forth in §G of this regulation. Notice of the hearing shall also be sent to any person requesting the hearing. Notice of the hearing shall include a statement of the purpose of the hearing, information regarding the time and location for the hearing, and the address and telephone number of an office at which interested persons may obtain further information concerning the hearing. Notice of the hearing shall be given at least 15 working days before the time scheduled for the hearing.

J. A hearing convened under §I, of this regulation, will be conducted before a hearing officer to be designated by the Approving Authority. The hearing officer shall have the authority to subpoena or call witnesses, receive oral and written testimony, limit the introduction of irrelevant or repetitious evidence, and limit or prohibit cross-examination. Following the conclusion of the hearing, the hearing officer shall forward the record of the hearing to the Approving Authority.

K. The variance or schedule shall become effective 30 days after notice for a hearing is given under G of this regulation if no timely request for a hearing is submitted and the Approving Authority does not determine to hold a public hearing.

L. Within 30 days after the termination of the public hearing held under §§G—K, of this regulation, the Approving Authority shall confirm, revise or rescind the proposed variance or schedule.