Subchapter I. VARIANCES AND EXEMPTIONS ISSUED
BY THE DEPARTMENT
Sec.
109.901. Requirements for a variance.
109.902. Variance request.
109.903. Requirements for an exemption.
109.904. Exemption request.
109.905. Public hearing on a variance or exemption.
109.906. Consideration of a request for a variance or exemption.
109.907. Disposition of a request for a variance or exemption.
109.908. Compliance schedules.
Cross References This subchapter cited in 25 Pa. Code § 109.5 (relating to organization of chapter); 25 Pa. Code § 109.407 (relating to general public notification requirements); 25 Pa. Code § 109.409 (relating to Tier 2 public notice—categories, timing and delivery of notice; 25 Pa. Code § 109.410 (relating to Tier 3 public notice—categories, time and delivery).
§ 109.901. Requirements for a variance.
(a) The Department may grant one or more variances to a public water system from a requirement respecting a MCL upon finding that:
(1) The public water system has installed and is using the best treatment technology, treatment methods or other means that the Department in concurrence with the Administrator finds are generally available to reduce the level of the contaminant, and has determined that alternative sources of water are not reasonably available.
(2) The water supplier has demonstrated to the Department that, because of characteristics of the raw water sources which are reasonably available to the system, the system cannot meet the requirements respecting the MCLs.
(3) The granting of a variance will not result in an unreasonable risk to the health of persons served by the system.
(b) The MCL for E. coli established under § 109.202(a) (relating to State MCLs, MRDLs and treatment technique requirements) is not eligible for a variance.
(c) The Department may grant one or more variances to a public water system from a treatment technique requirement upon a finding that the public water supplier applying for the variance has demonstrated that, because of the nature of the raw water source of the system the treatment technique is not necessary to protect the health of the persons served by the system. The treatment technique requirements established under § 109.202(c), the treatment technique requirements established under § 109.1102(b) (relating to action levels and treatment technique requirements), the treatment technique requirements established under § § 109.1203 and 109.1302 (relating to bin classification and treatment technique requirements; and treatment technique requirements) are not eligible for a variance.
Authority The provisions of this § 109.901 amended under section 4 of the Pennsylvania Safe Drinking Water Act (35 P.S. § 721.4); and section 1920-A of The Administrative Code of 1929 (71 P.S. § 510-20).
Source The provisions of this § 109.901 adopted December 7, 1984, effective December 8, 1984, 14 Pa.B. 4479; amended May 15, 1992, effective May 16, 1992, 22 Pa.B. 2621; amended December 23, 1994, effective December 24, 1994, 24 Pa.B. 6404; amended July 20, 2001, effective July 21, 2001, 31 Pa.B. 3895; amended December 24, 2009, effective December 26, 2009, 39 Pa.B. 7279; amended September 23, 2016, effective September 24, 2016, 46 Pa.B. 6005. Immediately preceding text appears at serial page (347153).
Cross References This section cited in 25 Pa. Code § 109.902 (relating to variance request); 25 Pa. Code § 109.906 (relating to consideration of a request for a variance or exemption); 25 Pa. Code § 109.907 (relating to disposition of a request for a variance or exemption); and 25 Pa. Code § 109.908 (relating to compliance schedules).
§ 109.902. Variance request.
A water supplier may request the granting of a variance or a variance renewal for a public water system by submitting a request for a variance in writing to the Department. Water suppliers may submit a joint request for variances when they seek similar variances under similar circumstances. A written request for a variance 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, but not limited to, results of tests required by Subchapter C (relating to monitoring requirements) and raw water quality analyses.
(3) For a request made under § 109.901(a) (relating to requirements for a variance):
(i) Evidence that the best available treatment technology and techniques have been applied and a full explanation of the technology and techniques.
(ii) Factors relevant to ability to comply and availability of alternative raw water sources.
(iii) 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) Date by which arrangement for alternative raw water source or improvement of existing raw water source will be completed.
(B) Date of initiation of the connection of the alternative raw water source or improvement of existing raw water source.
(C) Date by which final compliance is to be achieved.
(iv) 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.
(v) A plan for interim control measures during the effective period of variance.
(4) For a request made under § 109.901(b), a statement that the supplier will perform monitoring and other reasonable requirements prescribed by the Department in concurrence with the Administrator as a condition of the variance.
(5) Other information believed to be pertinent by the applicant.
(6) Other relevant information the Department may require.
Source The provisions of this § 109.902 adopted December 7, 1984, effective December 8, 1984, 14 Pa.B. 4479.
§ 109.903. Requirements for an exemption.
(a) The Department may exempt a public water system from an MCL or treatment technique requirement upon finding that:
(1) Due to compelling factors, the public water system is unable to comply with the contaminant level or treatment technique requirement, or to implement measures to develop an alternative source of water supply.
(2) The public water system was in operation on the effective date of the contaminant level or treatment technique requirement or, for a system that was not in operation by that date, only if no reasonable alternative source of drinking water is available to the new system.
(3) The granting of the exemption will not result in an unreasonable risk to health.
(4) Management or restructuring changes or both as provided in 40 CFR 142.20(b)(1)(i) (relating to State-issued variances and exemptions under Section 1415(a) and Section 1416 of the Act) cannot reasonably be made that will result in compliance with the applicable MCL or treatment technique requirement or, if compliance cannot be achieved, improve the quality of the drinking water.
(b) The MCL for E. coli established under § 109.202(a) (relating to State MCLs, MRDLs and treatment technique requirements) is not eligible for an exemption.
(c) The treatment technique requirements established under § 109.202(c), the treatment technique requirements established under § § 109.1102(b), 109.1203 and 109.1302 (relating to action levels and treatment technique requirements; bin classification and treatment technique requirements; and treatment technique requirements) are not eligible for an exemption.
Authority The provisions of this § 109.903 amended under section 4 of the Pennsylvania Safe Drinking Water Act (35 P.S. § 721.4); and section 1920-A of The Administrative Code of 1929 (71 P.S. § 510-20).
Source The provisions of this § 109.903 adopted December 7, 1984, effective December 8, 1984, 14 Pa.B. 4479; amended May 15, 1992, effective May 16, 1992, 22 Pa.B. 2621; amended December 23, 1994, effective December 24, 1994, 24 Pa.B. 6404; amended July 20, 2001, effective July 21, 2001, 31 Pa.B. 3895; amended December 24, 2009, effective December 26, 2009, 39 Pa.B. 7279; amended September 23, 2016, effective September 24, 2016, 46 Pa.B. 6005. Immediately preceding text appears at serial pages (347154) to (347155).
Cross References This section cited in 25 Pa. Code § 109.906 (relating to consideration of a request for a variance or exemption); and 25 Pa. Code § 109.908 (relating to compliance schedules).
§ 109.904. Exemption request.
A water supplier may request the granting of an exemption for a public water system by submitting a request for exemption in writing to the Department. Water suppliers may submit a joint request for exemptions when they seek similar exemptions under similar circumstances. A written request for an exemption shall include the following information:
(1) The nature and duration of exemption requested.
(2) Relevant analytical results of water quality sampling of the system, including results of relevant tests required by Subchapter C (relating to monitoring requirements).
(3) Explanation of the compelling factors which prevent the system from achieving compliance.
(4) Other information believed by the applicant to be pertinent to the application.
(5) A plan for the provision of safe drinking water in the case of an excessive rise in the contaminant for which the public water system is requesting a maximum contaminant level or treatment technique requirement exemption.
(6) A proposed compliance schedule, including the date when each step toward compliance will be achieved.
(7) Other relevant information the Department may require.
Source The provisions of this § 109.904 adopted December 7, 1984, effective December 8, 1984, 14 Pa.B. 4479.
§ 109.905. Public hearing on a variance or exemption.
Upon receipt of a request for a variance, variance renewal or exemption, the Department will review the application for completeness and eligibility for the relief requested. If the application is incomplete or the public water system is not eligible for the relief requested, the Department will return the application with a written explanation of the reason for the return. If the Department’s preliminary review finds the application is complete and the public water system may be eligible for a variance or exemption, the Department will provide an opportunity for a public hearing and public comments.
(1) Notice of a public hearing on a proposed variance or exemption will be circulated in a manner designed to inform interested and potentially interested persons of the variance or exemption requests under consideration.
(i) The Department will post a notice in prominent public buildings of the municipalities or areas served by the public water system, and publish a notice in a newspaper or newspapers of general circulation in the area served by the public water system.
(ii) The Department will mail a notice to other appropriate State or local agencies at the Department’s discretion.
(iii) The notice will include the following:
(A) A summary of the variance or exemption requested including the applicant’s proposed schedule for compliance.
(B) A description to the service area or portions of service area affected by the proposed variance or exemption.
(C) An invitation to interested persons to register their interest in a public hearing by calling or writing to the contact person whose address and phone number is included in the notice or to provide written comments on the proposal.
(D) The address of the Department office and other locations where a complete copy of the application may be obtained.
(E) A proposed date, time, and location for a public hearing on the proposed variance or exemption.
(iv) The Department will publish the notice in the Pennsylvania Bulletin, providing at least 30 days for public comment from the date of publication.
(2) If the Department receives no indication of interest in response to the notice for public hearing within 30 days, the Department may issue a notice cancelling the public hearing. The notice will be posted,published and circulated in the same manner as the notice for public hearing set forth in paragraph (1). The notice shall include:
(i) A summary of the variance or exemption requested and the proposed schedule for compliance.
(ii) A description of the service area or portions of service area affected by the proposed variance or exemption.
(iii) An invitation for interested persons to provide written comments and the address of the contact person from whom further information can be obtained and to whom comments should be addressed.
(iv) A final date for the receipt of written comments, which will be no less than 30 days from the date of the notice of public hearing.
(3) A hearing convened under paragraph (1) will be conducted before a hearing officer to be designated by the Department. The hearing will be conducted by the hearing officer in an informal, orderly, and expeditious manner. The hearing officer will have authority to call witnesses, receive oral and written testimony, and take action necessary to assure the fair and efficient conduct of the hearing.
Source The provisions of this § 109.905 adopted December 7, 1984, effective December 8, 1984, 14 Pa.B. 4479.
§ 109.906. Consideration of a request for a variance or exemption.
The Department will consider comments received during the comment period and testimony in the record of a public hearing held with respect to the request for a variance or exemption before making a determination. The Department will consider the availability of alternative water sources, risks to the public health from granting the relief requested and other relevant factors including the following considerations:
(1) In its consideration of whether the public water system satisfies the requirements for a variance from a maximum contaminant level under § 109.901(a) (relating to requirements for a variance), the Department will consider whether the public water system has installed and is effectively operating the best treatment technology, treatment methods, or other means that the Department finds in concurrence with the Administrator are generally available to reduce the level of the contaminant for which the variance is requested, and whether the system has evaluated that alternative sources of water are not reasonably available.
(2) In its consideration of whether a public water system satisfies the requirements for a variance from a treatment technique requirement under § 109.901(b), the Department will consider the following factors:
(i) The quality of the water source and pertinent sources of pollution.
(ii) The source protection measures employed by the public water system.
(3) In its consideration of whether a public water system satisfies the requirements for an exemption under § 109.903 (relating to requirements for an exemption), the Department will consider factors such as:
(i) The need for construction, installation, or modification of treatment equipment or systems.
(ii) The time needed to put into operation a new treatment facility to replace an existing system which is not in compliance.
(iii) The availability of an alternative source of water, including the feasibility of partnerships with neighboring public water systems, as identified by the public water system or by the Department.
Source The provisions of this § 109.906 adopted December 7, 1984, effective December 8, 1984, 14 Pa.B. 4479; amended December 24, 2009, effective December 26, 2009, 39 Pa.B. 7279. Immediately preceding text appears at serial pages (290583) to (290584).
§ 109.907. Disposition of a request for a variance or exemption.
(a) If the Department proposes to deny the application for a variance or exemption, it will notify the applicant of its preliminary determination to issue a denial. The notice will include a statement of reasons for the proposed denial, and will offer the applicant an opportunity to present, within 30 days of receipt of the notice, additional information or argument to the Department. The Department will make a final determination on the request after receiving the additional information or argument. If no additional information or argument is submitted by the applicant, the application will be denied.
(b) If the Department makes a determination to grant a variance or exemption request, it will notify the applicant of the decision in writing. The notice will identify the variance or exemption, the facility covered, and will specify the period of time for which the variance or exemption will be effective.
(1) For an exemption or the type of variance in § 109.901(a) (relating to requirements for a variance), the notice will provide that the variance or exemption will be terminated when the system comes into compliance with the applicable maximum contaminant level requirement, and may be rescinded upon a finding by the Department that the system has failed to comply with the final schedule or other terms or conditions of the variance or exemption.
(2) For the type of variance specified in § 109.901(b), the notice will provide that the variance may be terminated at any time the Department finds that:
(i) The nature of the raw water source is such that the specified treatment technique from which the variance was granted is necessary to protect the health of persons served by the system.
(ii) The public water system has failed to comply with monitoring or other terms or conditions of the variance.
(3) Variances are effective for the period stated in the variance, which may not exceed 2 years from the date of issuance.
(4) No exemption may extend beyond the expiration dates prescribed in the Federal act and the Federal regulations.
(c) If the Department makes a determination to grant a variance or exemption request, it will document its findings as required under 40 CFR 142.20(a)(1) (relating to State-issued variances and exemptions under section 1415(a) and section 1416 of the act) for granting a variance, and under 40 CFR 142.20(b)(1) for granting an exemption.
Source The provisions of this § 109.907 adopted December 7, 1984, effective December 8, 1984, 14 Pa.B. 4479; amended December 24, 2009, effective December 26, 2009, 39 Pa.B. 7279. Immediately preceding text appears at serial page (290584).
§ 109.908. Compliance schedules.
(a) For a variance specified in § 109.901(a) (relating to requirements for a variance) or an exemption specified in § 109.903 (relating to requirements for an exemption), the Department will issue a schedule for:
(1) Compliance by the public water system with the maximum contaminant level requirement covered by the variance or exemption and the treatment technique requirement covered by the exemption.
(2) Implementation by the public water supplier of control measures as the Department may require for the contaminant covered by the variance or exemption. The schedule will specify interim treatment techniques, methods and equipment, and dates by which steps toward meeting the interim control measures are to be completed.
(b) For a variance specified by § 109.901(a), the schedule for compliance will specify dates by which steps toward compliance are to be taken, including:
(1) Date by which arrangement for an alternative raw water source or improvement of existing raw water source will be completed.
(2) Date of initiation of the connection for the alternative raw water source or improvement of the existing raw water source.
(3) Date by which final compliance is to be achieved.
(c) The schedule for a variance shall cover a time period no greater than 2 years. A new schedule covering a time period no greater than 2 years shall be proposed for the variance renewal.
(d) The compliance schedule for an exemption will be limited to the time reasonably necessary for the public water system to achieve compliance, and will not extend beyond the dates prescribed in the Federal act or Federal regulations for the expiration of exemptions.
(e) In accordance with 40 CFR 142.20(b)(2) (relating to State-issued variances and exemptions under section 1415(a) and section 1416 of the act), the Department may renew an exemption for a public water system that serves fewer than 3,300 persons and which needs financial assistance for the necessary improvements under the initial compliance schedule, provided the Department establishes that the system is taking all practicable steps to meet the requirements of this subchapter and the established compliance schedule to achieve full compliance with the applicable MCL or treatment technique requirement. The Department must document its findings in granting an extension under this subsection.
Source The provisions of this § 109.908 adopted December 7, 1984, effective December 8, 1984, 14 Pa.B. 4479; amended December 24, 2009, effective December 26, 2009, 39 Pa.B. 7279. Immediately preceding text appears at serial page (290585).
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