5 Colo. Code Regs. § 1002-11.43

Current through Register Vol. 47, No. 22, November 25, 2024

Section 5 CCR 1002-11.43 - VARIANCES AND EXEMPTIONS RULE

11.43(1)Applicability and Definitions

(a) For all public water systems, the supplier may apply for a variance or exemption as specified in this rule.

(b) "EXEMPTION" means the supplier is temporarily not required to comply with an MCL or treatment technique. The Department may grant an exemption if the supplier meets the requirements specified in 11.43(4).

(c) "SMALL SYSTEM VARIANCE" means a variance from an MCL or treatment technique for systems that supply less than (<) 10,000 people and meet the requirements specified in 11.43(3).

(d) "SMALL SYSTEM VARIANCE TECHNOLOGY" means a specific treatment or treatment technology that the EPA has identified for use by small systems that are otherwise unable to afford to comply with the National Primary Drinking Water Regulations.

(e) "VARIANCE" means the supplier is temporarily not required to comply with an MCL. The Department may grant a variance to a supplier if characteristics of the source(s) that are reasonably available to the system prevent compliance with the MCL, despite implementation of BATs or treatment techniques, and the system meets the requirements specified in 11.43(2).

11.43(2)Variance Qualifications

(a) The Department may grant a variance from an MCL if all of the following criteria are met:

(i) Because of the characteristics of the raw water source(s) which are reasonably available to the system, the supplier cannot meet the requirements respecting the MCLs of such drinking water regulations despite application of the BAT(s) (as described in Regulation 11), treatment techniques, or other means identified by the EPA Administrator.

(ii) Based on a Department-approved evaluation, an alternative source is not reasonably available to the system.

(iii) The variance will not result in an unreasonable risk to public health.

(b) If the supplier can demonstrate to the satisfaction of the Department that a specific treatment technique for a contaminant is not necessary to protect public health because of the nature of the system's source, the supplier may receive one or more variances from any requirement that requires the use of that treatment technique.

(i) If the supplier is granted a variance under 11.43(2)(b), the supplier must comply with any Department-specified monitoring or other requirements.

(c) The Department will not grant a variance from:

(i) The E. coli MCLs.

(ii) Any treatment technique requirement of 11.8, 11.9, o11.10, 11.11 or 11.16.

11.43(3)Small System Variance Qualifications

(a) The Department may grant a small system variance from an MCL or treatment technique if all of the following criteria apply:

(i) The system supplies (including the supplier's consecutive system's population served):

(A) Less than or equal to ([LESS THAN EQUAL TO]) 3,300 people; or

(B) With EPA Administrator approval, greater than (>) 3,300 people and less than (<) 10,000 people.

(ii) The Department determines that the supplier cannot financially afford to comply with an MCL or treatment technique based on the Department-specified affordability criteria. This includes compliance through one or more of the following:

(A) Treatment.

(B) An alternative source.

(C) Restructuring or consolidation, unless the Department makes a written determination that restructuring or consolidation is not practical.

(iii) The EPA Administrator has identified a small system variance technology that is applicable to the system's size and source water quality.

(A) The supplier must be financially and technically capable of installing, operating, and maintaining the applicable small system variance technology, as specified in guidance or regulations issued by the EPA Administrator.

(iv) The Department determines that the small system variance technology provides adequate protection of public health, considering the system's source water quality and the removal efficiencies and expected useful life of the small system variance technology.

(b) The Department will not grant a small system variance from:

(i) Treatment technique requirements or MCLs for a contaminant which was regulated in the National Primary Drinking Water Regulations on or before January 1, 1986.

(ii) A microbial contaminant (e.g., a bacterium, virus or other organism), an indicator for a microbial contaminant, or treatment technique requirement for a microbial contaminant.

(iii) A treatment technique for filtration of surface water sources specified in 11.8, 11.9, 11.10 or a treatment technique requirement in 11.11 or 11.16.

11.43(4)Exemption Qualifications

(a) The Department may grant an exemption from an MCL or treatment technique if all of the following criteria apply:

(i) Due to compelling factors, the supplier is unable to comply with an MCL or treatment technique requirement, or implement measures to develop an alternative source.

(A) Compelling factors may include economic factors (e.g., qualifying as a system that supplies a disadvantaged community).

(ii) The exemption will not result in an unreasonable risk to public health.

(iii) The supplier cannot reasonably make management and/or restructuring changes that result in compliance or, if compliance cannot be achieved, improve the drinking water quality.

(iv) The public water system was in operation on the effective date of the MCL or treatment technique requirement.

(A) The Department may grant an exemption to systems not in operation on the effective date of the MCL or treatment technique requirement if a reasonable alternative source is not available.

(b) If the supplier was granted a variance or small system variance, the supplier will not be granted an exemption.

(c) The supplier will not be granted an exemption from:

(i) The E. coli MCLs.

(ii) The entry point residual disinfectant concentration requirement for surface water systems.

(d) To be granted an exemption, the supplier must establish that all practical steps are being taken to meet the MCL or treatment technique requirement and that at least one of the following apply:

(i) The system cannot meet the MCL or treatment technique requirement without capital improvements and the capital improvements cannot be completed before the effective date of the MCL or treatment technique requirement.

(ii) The supplier has entered into an enforceable agreement to become a part of a regional public water system.

(iii) If the supplier needs financial assistance for necessary improvements, either:

(A) The supplier has entered into an agreement to obtain financial assistance; or

(B) Within the period of the exemption, a federal or state program will likely be available.

11.43(5)Applications for Variances and Exemptions

(a) To be granted a variance or exemption, the owner or the owner's authorized representative listed with the Department must submit a completed and signed application.

(b) The application must include all of the following information:

(i) The nature and duration of the variance or exemption requested.

(ii) Relevant water quality sample results, including the results of relevant tests required under the Colorado Primary Drinking Water Regulations.

(iii) The interim measures to be continuously implemented during the requested variance or exemption period to adequately protect public health.

(iv) For a variance, an explanation of the compelling factors specified in 11.43(2) or 11.43(3).

(v) For an exemption, an explanation of the compelling factors specified in 11.43(4).

11.43(6)Public Notification and Meeting Requests

(a) The Department shall provide notice and the opportunity for a public hearing on the proposed variance or exemption and its respective schedule as specified in 11.43(9)(d)(iii).

(i) No later than 30 days after the Department has provided notice, any person may file a written request for the Department to hold a public meeting regarding the application for a variance or exemption.

(ii) No later than 30 days after the Department has provided notice, any person may submit written comments on the proposed variance or exemption and its schedule.

(b) For small system variances, the Department shall provide at least one public meeting on the small system variance no later than 15 days after the application is received.

11.43(7)Application Review for Variances and Exemptions

(a) If a submitted application is incomplete, the Department shall notify the supplier in writing no later than 20 days after receiving the application of items needed to complete the application.

(b) No later than 90 days after receiving a complete variance or exemption application, the Department shall make an initial determination to approve or deny the application.

(c) After making the initial determination:

(i) If a written request for a public meeting has not been received, the Department shall issue a final order granting or denying the variance or exemption as specified in 11.43(9).

(ii) If a written request for a public meeting has been received, the Department shall hold a public meeting as specified in 11.43(8).

(iii) If the Department makes an initial determination to deny the application, the Department shall notify the supplier in writing of the initial determination and the grounds on which the application is being denied.

(A) No later than 15 days after receiving the notice of the application's denial, the supplier may submit a response of intent to provide additional argument or information.

(iv) If the Department makes an initial determination to grant a small system variance to a system supplying greater than (>) 3,300 people and less than (<) 10,000 people, any consumer may petition the EPA Administrator to object to the granting of the variance no later than 30 days after the Department makes the initial determination.

(A) No later than 60 days after receiving the petition, the EPA Administrator shall respond to the petition and determine whether to object to the small system variance.

11.43(8)Public Meetings

(a) The Department shall hold a public meeting upon written request or as required by federal law.

(i) The Department may deny frivolous or insubstantial requests for a public meeting.

(b) At least 15 days before the public meeting, the Department shall arrange for publication of the notice of the public meeting.

(i) Notice of the public meeting shall include all of the following:

(A) Name, address, and telephone number of the system for which the variance or exemption is being requested.

(B) The provision of the Colorado Primary Drinking Water Regulations from which a variance or exemption is being requested.

(C) The initial determination of the Department regarding the variance or exemption.

(D) The Department's address and telephone number.

(E) A statement that a copy of the application is available for inspection at the Department during regular business hours.

(F) The date, time, and location of the public meeting.

(c) At the public meeting:

(i) Any person is permitted to submit oral or written statements concerning the variance or exemption application.

(ii) A representative of the Department shall preside and:

(A) Maintain a list of the name, address, and telephone number of each person who submits an oral or written statement.

(B) Has the discretion to set reasonable time limits for oral statements. (iii) The Department shall record the oral statements.

11.43(9)Final Order to Grant or Deny a Variance or Exemption

(a) In determining whether to grant or deny a variance or exemption, the Department shall consider all of the following:

(i) Whether the completed application complies with the criteria for a variance or exemption.

(ii) Any written comments regarding the application received by the Department no later than 30 days after the notice to the public was provided as specified in 11.43(6).

(iii) If the Department has made an initial determination to deny the application, any written response by the supplier as specified in 11.43(7)(c)(iii)(A).

(iv) If a public meeting is held regarding the application, any written or oral statements submitted at the public meeting.

(b) For systems supplying greater than (>) 3,300 people and less than (<) 10,000 people if the supplier has requested a small system variance, the EPA Administrator must approve the small system variance request before the Department may issue a final order to grant the small system variance.

(i) The EPA Administrator shall grant or deny the small system variance no later than 90 days after the Department submits the request for approval.

(c) If there is no compelling evidence to change the Department's initial determination, the Department shall issue a final order to either grant or deny the variance or exemption according to the initial determination.

(d) If the variance or exemption is granted, the final order will include all of the following:

(i) The provision of the Colorado Primary Drinking Water Regulations from which the exemption or variance is granted.

(ii) The duration of the variance or exemption.

(iii) A schedule for all of the following:

(A) Achieving compliance with the MCL or treatment technique from which the variance or exemption was granted, including increments of progress.

(B) The date by which compliance with the MCL or treatment technique is required. For variances and exemptions, compliance must be achieved as soon as the Department determines possible.

(I) For exemptions, this must be no later than three years after the otherwise applicable compliance date for the MCL or treatment technique requirement for which the exemption was granted.

(II) For small system variances, this must be no later than three years after the small system variance is granted. If the Department determines that additional time is necessary for capital improvements, or to allow for financial assistance from a federal or state program, the Department may allow up to two additional years to comply with a variance technology, secure an alternative source, restructure or consolidate.

(C) Implementation of any Department-required control measures, including any Department-required control measures ending on the date when compliance with the MCL or treatment technique is required.

(e) A copy of the Department's final order will be mailed to all of the following people:

(i) The applicant.

(ii) All of those who submitted written comments that were received by the Department no later than 30 days after the notice to the public as specified in 11.43(6).

(iii) If a public meeting was held, all of those who submitted statements at the public meeting regarding the variance or exemption.

(f) If granted, the variance or exemption will become effective 90 days after the Department issues the final order.

(g) Any person adversely affected or aggrieved by the Department's final order may request an adjudicatory hearing on the final order.

(i) The hearing request must be filed in writing no later than 60 days after the effective date of the Department's final order granting the variance or exemption, or no later than 60 days after service of the order denying the variance or exemption.

(A) If granted, the variance or exemption will remain in effect until a determination is made at the hearing.

(ii) The hearing shall be conducted as specified in section 24-4-105, Colorado Revised Statutes.

11.43(10)Operation with a Variance or Exemption

(a) To maintain the variance or exemption, the supplier must comply with the Department-issued final order including the schedule specified in 11.43(9)(d)(iii).

(b) For small system variances, the supplier must install, operate, and maintain the small system variance technology in accordance with guidance or regulations issued by the EPA Administrator.

(c) The Department may enforce any requirement of the schedule, variance, or exemption as if it were a requirement of the Colorado Primary Drinking Water Regulations.

(d) If the supplier fails to comply with the final order granting the variance or exemption, the Department may revoke the variance or exemption pursuant to section 24-4-104, Colorado Revised Statutes, and will conduct hearings regarding such revocations as specified in section 24-4-105, Colorado Revised Statues.

(e) The supplier must distribute Tier 3 public notice as specified in 11.33.

(f) The supplier must distribute consumer notice as specified in 11.34.

(g) To determine whether the supplier remains eligible for a small system variance, the Department shall review each small system variance at least every five years after the compliance date established in the small system variance.

(h) For systems that have been granted an exemption and supply less than or equal to ([LESS THAN EQUAL TO]) 3,300

people, and need financial assistance for necessary improvements, the Department may renew an exemption granted under 11.43(4)(d)(i) or 11.43(4)(d)(iii) for no more than three additional two-year periods if the supplier establishes that all practical steps are taken to meet the MCL or treatment technique requirement.

5 CCR 1002-11.43

38 CR 07, April 10, 2015, effective 4/30/2015

41 CR 11, June 10, 2018, effective 6/30/2018

41 CR 23, December 10, 2018, effective 12/30/2018

43 CR 07, April 10, 2020, effective 4/30/2020

43 CR 17, September 10, 2020, effective 9/30/2020

45 CR 24, December 25, 2022, effective 1/14/2023