42 U.S.C. § 300g–4 — Variances

(a) Variances in general (1)(A) A state that has primary enforcement responsibility for public water systems can grant one or more water systems a variance from a national drinking water rule. This only works when the system's raw water source has traits that make the rule impossible to meet. The system must install the best treatment, technique, or other method that the EPA Administrator says is available, taking cost into account. Whenever the Administrator sets a maximum contaminant level for a substance, the Administrator must also announce what the best available treatment is for that substance. That finding can differ depending on how many people a system serves, or based on engineering and cost issues. Before granting the variance, the state must find that it will not create an unreasonable risk to health. When a state grants this variance, it must set, at the same time, a schedule for (i) the system's step-by-step compliance with the rule the variance covers, and (ii) any extra safety measures the state requires in the meantime. Before that schedule can take effect, the state must give notice and hold a public hearing; one notice and hearing can cover several schedules at once. The schedule must require the system to comply as fast as the state can reasonably require. (1)(B) A state can also grant a variance from a rule that requires one specific treatment technique (rather than a contaminant level), if the system proves to the state that the technique isn't needed to protect health, given the nature of its raw water source. This variance comes with monitoring and other conditions set by the Administrator. (1)(C) Before a variance under (A) or (B) takes effect, the state must give notice and hold a public hearing; one hearing can cover several variances. The state must promptly tell the Administrator about every variance it grants, including the reasons and, for (A) variances, the health finding behind it. (1)(D) A variance granted under (A) requires the system to follow the state's compliance schedule. States enforce that schedule under their own laws, and it can also be enforced under section 300g–3 as if it were part of a national drinking water rule. (1)(E) A schedule set under (A) counts as approved by the Administrator unless the Administrator later revokes the variance or revises the schedule under (G). (1)(F) Within 18 months after the interim national rules take effect, the Administrator must fully review the (A) and (B) variances and schedules that states granted during the first year those rules were in effect. The Administrator must keep reviewing variances and schedules as often as needed, but at least once every 3 years after that first review. Before each review, the Administrator must publish notice in the Federal Register explaining where to find the relevant data and inviting public comments. After finishing a review, the Administrator must publish the results and responses to the comments received. (1)(G) If the Administrator finds that a state has, in a substantial number of cases, abused its discretion in granting variances under (A) or (B), or failed to set schedules under (A), the Administrator must notify the state. To decide whether a state abused its discretion, the Administrator considers how many people are affected by the variances and whether the legal requirements were followed. The notice must (I) name each affected water system, (II) explain the reasons for the finding, and (III) propose, as appropriate, revoking specific variances or requiring revised schedules or other requirements, or both. The Administrator must give reasonable notice and hold a public hearing on each such notice. After the hearing, the Administrator must either (I) withdraw the finding and promptly tell the state, or (II) adopt (with any changes the Administrator thinks appropriate) the proposed revocations and revised schedules or requirements. The Administrator must finish the hearing and act within 180 days of the original notice. If a state is notified of a finding and, before a revocation or revision takes effect, fixes the problem in a way that makes the finding no longer apply, the Administrator must cancel the finding for that variance or schedule. No revocation or revised schedule can take effect until at least 90 days after the notice proposing it. (2) If a state does not have primary enforcement responsibility for public water systems, the Administrator has the same power to grant variances in that state as the state would have had. (3) The Administrator can grant a variance from any treatment-technique rule if someone shows that an alternative treatment technique, not covered by the rule, works at least as well at lowering the contaminant the rule targets. This variance requires the system to actually use that alternative treatment. (b) Enforcement of schedule or other requirement Any schedule or other requirement attached to a variance granted under (a)(1)(B) or (a)(2) can be enforced under section 300g–3 of this title, the same as if it were part of a national primary drinking water regulation. (c) Applications for variances When someone applies for a variance under (a), the state (or the Administrator, if the Administrator is handling it) must act on the application within a reasonable time, as set by the Administrator's regulations. (d) "Treatment technique requirement" defined In this section, "treatment technique requirement" means a rule in a national primary drinking water regulation that lists, for a contaminant, every treatment technique the Administrator knows of that reduces the contaminant enough to satisfy section 300g–1(b) of this title. (e) Small system variances (1) A state with primary enforcement responsibility (or the Administrator, in states without it) can grant a variance under this subsection from a maximum-contaminant-level or treatment-technique rule to (A) water systems serving 3,300 people or fewer, and (B) with the Administrator's approval under paragraph (9), systems serving more than 3,300 but fewer than 10,000 people — as long as the variance meets every requirement of this subsection. (2) A system can get this variance only if (A) the Administrator has identified, under section 300g–1(b)(15), a "variance technology" that fits the system's size and source-water quality; (B) the system installs, runs, and maintains that technology as the Administrator's guidance or regulations require; and (C) the state where the system sits determines that the conditions in paragraph (3) are met. (3) This variance is available only to a system (A) that cannot afford to comply — under affordability rules set by the Administrator, or by the state if the state has primary enforcement responsibility — whether compliance would come through treatment, an alternative water source, or restructuring or consolidation (unless the Administrator or state makes a written finding that restructuring or consolidation isn't practical); and (B) for which the Administrator or state determines that the variance's terms still adequately protect human health, considering the source water's quality and how well the required treatment technology removes contaminants and how long it lasts. (4) A variance under this subsection must require the system to meet its conditions no later than 3 years after the variance is granted. The Administrator (or the state) can allow up to 2 more years — for capital improvements, securing an alternative water source, or restructuring or consolidating — if more time is genuinely needed, or to allow for financial assistance under section 300j–12 or another federal or state program. (5) The Administrator (or the state) must review each variance under this subsection at least once every 5 years after its compliance date, to check whether the system is still eligible and is meeting every condition. (6) This variance is never available for (A) any maximum contaminant level or treatment technique for a contaminant whose national rule was set before January 1, 1986; or (B) any national rule for a microbial contaminant (bacteria, virus, or other organism), or for an indicator or treatment technique tied to a microbial contaminant. (7)(A) Within 2 years of August 6, 1996, and working with the states, the Administrator must issue regulations for granting these variances. At minimum, the regulations must set (i) procedures for granting or denying variances, including notice to the Administrator and to the system's consumers before a variance is proposed, and a public hearing before it's granted; (ii) requirements for properly installing and running the variance technology for small systems, including operator training and certification; (iii) eligibility rules for each national drinking water regulation, including source-water quality requirements under section 300g–1(b)(15)(A); and (iv) what information a variance application must include. (7)(B) Within 18 months of August 6, 1996, the Administrator — working with the states and the Department of Agriculture's Rural Utilities Service — must publish information to help states write their own affordability criteria. States must review their affordability criteria at least once every 5 years. (8)(A) The Administrator must periodically review each state's variance program for compliance with this subsection. On affordability specifically, the Administrator only checks whether the state's variances match the state's own affordability criteria. (B) If the Administrator finds that a state's variances don't comply with its affordability criteria or with this subsection, the Administrator must notify the state in writing about the problems and make that finding public. (9) Before granting a variance to a system serving more than 3,300 and fewer than 10,000 people, a state must submit the variance to the Administrator for review and approval. The Administrator must approve it if it meets every requirement of this subsection, and must approve or deny it within 90 days. If the Administrator denies it, the Administrator must explain the reasons in writing, and the state can resubmit a revised version addressing them. (10)(A) The Administrator can review and object to any variance a state proposes to grant, as long as the objection reaches the state within 90 days of the state's proposal. If the Administrator objects, the Administrator must explain each reason in writing and propose a fix. The state must either make the recommended change or respond in writing to each objection. If the state issues the variance anyway without resolving the Administrator's concerns, the Administrator can overturn the state's decision if it doesn't comply with this subsection. (10)(B) Within 30 days after a state with primary enforcement responsibility proposes a variance, anyone served by that system can petition the Administrator to object to it. The Administrator must respond to the petition and decide whether to object within 60 days of receiving it. (10)(C) No variance can be granted until the later of (i) 90 days after the state proposes it, or (ii) if the Administrator objects, the date the state makes the recommended changes or responds in writing to each objection.