S.C. Code Regs. § § 61-58.9.B

Current through Register Vol. 48, 12, December 27, 2024

Section 61-58.9.B - Variances

(1) Requirements for a variance.

(a) The Department may grant one or more variances to any public water system within the State from any requirement respecting a maximum contaminant level of an applicable State primary drinking water regulation upon a finding that:

(i) Because of characteristics of the raw water sources which are reasonably available to the system, the system cannot meet the requirements respecting the maximum contaminant levels of such drinking water regulations despite application of the best technology, treatment techniques, or other means, which the Department finds are generally available (taking costs into consideration); and,

(ii) The granting of a variance will not result in an unreasonable risk to the health of persons served by the system.

(b) The Department may grant one or more variances to any public water system within the State from any requirement of a specific treatment technique or an applicable State primary drinking water regulation upon a finding that the public water system applying for the variance has demonstrated 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.

(2) Requests for a variance.

A supplier of water may request the granting of a variance by submitting a request for a variance in writing to the Department. Suppliers of water may submit a joint request for variances when they seek similar variances under similar circumstances. Any written request for a variance or variances shall include the following information:

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

(b) Relevant analytical results of water quality sampling of the system, including results of relevant tests conducted pursuant to the requirements of these regulations.

(c) For any request made under paragraph (1)(a) above:

(i) Explanation in full and evidence of the best available treatment technology and techniques.

(ii) Economic and legal factors relevant to ability to comply.

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

(iv) A proposed compliance schedule, including the date each step toward compliance will be achieved. Such 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.

(v) 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.

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

(d) For any request made under paragraph (1)(b) above, a statement that the system will perform monitoring and other reasonable requirements prescribed by the Department as a condition to the variance.

(e) Other information, if any, believed to be pertinent by the applicant.

(f) Such other information as the Department may require.

(3) Consideration of a variance request.

(a) The Department will act on any variance request submitted pursuant to paragraph (2) above within 90 days of receipt of the request.

(b) In its consideration of whether the public water system is unable to comply with a contaminant level required by these regulations because of the nature of the raw water source, the Department will consider such factors as the following:

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

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

(c) A variance may be issued to a system only after the system's application of the best technology, treatment techniques, or other means, which the Department finds are available (taking costs into consideration).

(d) In its consideration of whether a public water system should be granted a variance to a required treatment technique because such treatment is unnecessary to protect the public health, the Department will consider such factors as the following:

(i) Quality of the water source including water quality data and pertinent sources of pollution.

(ii) Source protection measures employed by the public water system.

(4) Disposition of a variance request.

(a) If the Department decides to deny the application for a variance, it will notify the applicant of its intention to issue a denial. Such 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 within 30 days after receiving any such additional information or argument. If no additional information or argument is submitted by the applicant, the application will be denied.

(b) If the Department proposes to grant a variance request submitted pursuant to paragraph (2) above, it shall notify the applicant of its decision in writing. Such notice will identify the variance, the facility covered, and will specify the period of time for which the variance will be effective.

(i) For the type of variance specified in paragraph (1)(a) above, such notice will provide that the variance will be terminated when the system comes into compliance with the applicable regulation, and may be terminated upon a finding by the Department that the system has failed to comply with any requirements of a final schedule issued pursuant to paragraph (5) below.

(ii) For the type of variance specified in paragraph (1)(b) above, such notice will 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 specified treatment technique for which the variance was granted is necessary to protect the health of persons, or upon a finding that the public water system has failed to comply with monitoring and other requirements prescribed by the Department as a condition to the granting of the variance.

(c) For a variance specified in paragraph (1)(a)(i) above, the Department will propose a schedule for:

(i) Compliance (including increments of progress) by the public water system with each contaminant level requirement covered by the variance; and,

(ii) Implementation by the public water system of such additional control measures as the Department may require for each contaminant covered by the variance.

(d) The proposed schedule for compliance will specify dates by which steps toward compliance are to be taken, including at the minimum, where applicable:

(i) The date by which arrangement for an alternative raw water source or improvement of existing raw water source will be completed.

(ii) The date of initiation of the connection for the alternative raw water source or improvement of the existing raw water source.

(iii) The date by which final compliance is to be achieved.

(e) The proposed schedule may, if the public water system has no access to an alternative raw water source and can effect or anticipate no adequate improvement of the existing raw water source, specify an indefinite time period for compliance until a new and effective treatment technology is developed at which time a new compliance schedule will be prescribed by the Department.

(f) The proposed schedule for implementation of additional interim control measures during the period of variance will specify interim treatment techniques, methods and equipment, and dates by which steps toward meeting the additional interim control measures are to be met.

(g) The schedule will be prescribed by the Department at the time of the granting of the variance, subsequent to provision of opportunity for hearing pursuant to paragraph (5) below.

(5) Public notice and opportunity for hearing.

(a) Before a variance and schedule proposed by the Department pursuant to paragraph (4) above may take effect, the Department will provide notice and opportunity for public hearing on the variance and schedule. A notice given pursuant to the preceding section may cover the granting of more that one variance and a hearing held pursuant to such notice will include each of the variances covered by the notice.

(b) Public notice of an opportunity for hearing on a variance and schedule will be circulated in a manner designed to inform interested and potentially interested persons of the proposed variance and schedule, and will include at least the following:

(i) Posting of a notice in the principal post office of each municipality or area served by the public water system, and publishing of a notice in a newspaper or newspapers of general circulation in the area served by the public water system; and,

(ii) Such notice will include a summary of the proposed variance and schedule and shall inform interested persons that they may request a public hearing on the proposed variance and schedule.

(c) Requests for hearing may be submitted by any interested person. Frivolous or insubstantial requests for hearing may be denied by the Department. Requests must be submitted to the Department within 30 days after issuance of the public notice provided for in paragraph (b) of this section. Such requests shall include the following information:

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

(ii) A brief statement of the interest of the person making the request in the proposed variance and schedule, and of information that the requester intends to submit at such hearing.

(iii) 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.

(d) The Department will give notice of any hearing to be held pursuant to a request submitted by an interested person or on its own motion. Notice will be given and such hearing conducted in accordance with the Department's administrative procedures.

(e) The variance and schedule will become effective 30 days after notice of opportunity for hearing is given pursuant to paragraph (b) of this section if no timely request for a hearing is submitted and the Department does not determine to hold a public hearing on its own motion.

(6) Action after hearing. If a public hearing is held pursuant to paragraph (5) above, the Department will take into consideration information obtained during such hearing and confirm, revise or rescind the proposed variance and schedule.

(7) Variance for alternative treatment techniques. The Department may grant a variance from any treatment technique requirement of a state primary drinking water regulation to a supplier of water upon a showing from the supplier 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.

S.C. Code Regs. § 61-58.9.B