WSR 03-03-078

PROPOSED RULES

DEPARTMENT OF HEALTH


[ Filed January 15, 2003, 9:26 a.m. ]

Original Notice.

Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

Title of Rule: WAC 246-290-060 Variances, exemptions and waivers.

Purpose: To revise the requirements due to federal Safe Drinking Water Act (SDWA) amendments of 1998.

Other Identifying Information: As the primacy agency, the Department of Health is responsible for implementing rules no less stringent than EPA rules and regulations.

Statutory Authority for Adoption: RCW 43.20.050 (2) and (3).

Statute Being Implemented: RCW 70.119A.080.

Summary: The revisions provide implementation guidance to states and include more detail and description of what a primacy state must consider before either granting a variance or an exemption to a public water system. Environmental Protection Agency (EPA) has reduced the requirements for water systems serving fewer than 10,000 people to obtain a variance (small system variance).

Reasons Supporting Proposal: The revised regulations are necessary to strengthen the criteria the Department of Health must follow to allow a public water system to obtain a variance or exemption and continue to protect public health.

Name of Agency Personnel Responsible for Drafting: Theresa Phillips, Tumwater, (360) 236-3147; Implementation and Enforcement: Richard Siffert, Tumwater, (360) 236-3146.

Name of Proponent: Environmental Health Programs, governmental.

Rule is necessary because of federal law, 40 C.F.R. Parts 141 and 142, Federal Register Vol. 63, No. 157, August 14, 1998, Final Rule.

Explanation of Rule, its Purpose, and Anticipated Effects: The proposed rule will achieve compliance with the new federal requirements to maintain state primacy and clarifies what factors the state must review to grant a variance or an exemption to a public water system. The new requirements will allow a public water system more time to comply with the rules due to economic reasons, best available treatment techniques, and other compelling factors while protecting public health.

Proposal Changes the Following Existing Rules: Adds the federal citations to WAC 246-290-060, clarifies the language and eliminates redundancies.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule revision is exempt from the small business impact statement requirement under RCW 19.85.025(3) because it adopts federal requirements without material change.

RCW 34.05.328 does not apply to this rule adoption. Under RCW 34.05.328 (5)(b)(iii) and (iv), RCW 34.05.328 does not apply to rule adoption because this rule adopts federal requirements without material change.

Hearing Location: Department of Health, 20435 72nd Avenue South, Suite 200, Kent, WA 98032, on February 25, 2003, at 1:00 p.m.

Assistance for Persons with Disabilities: Contact Theresa Phillips by February 14, 2003, TDD (800) 833-6388 or (360) 236-3147.

Submit Written Comments to: Department of Health, Theresa Phillips, P.O. Box 47822, Olympia, WA 98504-7822, fax (360) 236-2253, by February 25, 2003.

Date of Intended Adoption: March 26, 2003.

January 13, 2003

Mary C. Selecky

Secretary

OTS-5895.2


AMENDATORY SECTION(Amending WSR 99-07-021, filed 3/9/99, effective 4/9/99)

WAC 246-290-060   Variances, exemptions, and waivers.   (1) General.

(a) The state board of health may grant variances, exemptions, and waivers of the requirements of this chapter according to the procedures outlined in subsection (5) of this section. See WAC 246-290-300 (4)(g) and (7)(f) for monitoring waivers.

(b) Consideration by the board of requests for variances, exemptions, and waivers shall not be considered adjudicative proceedings as that term is defined in chapter 34.05 RCW.

(c) Statements and written material regarding the request may be presented to the board at or before the public hearing wherein the application will be considered. Allowing cross-examination of witnesses shall be within the discretion of the board.

(d) The board may grant a variance, exemption, or waiver if it finds:

(i) Due to compelling factors, the public water system is unable to comply with the requirements; and

(ii) The granting of the variance, exemption, or waiver will not result in an unreasonable risk to the health of consumers.

(2) Variances.

(a) MCL.

(i) The board may grant a MCL variance to a public water system that cannot meet the MCL requirements because of characteristics of the source water that is reasonably available to the system.

(ii) A MCL variance may only be granted ((after the system has applied the best available technology (BAT), treatment techniques, or other means as identified by the environmental protection agency (EPA) and still cannot meet an MCL standard as specified in section 1415, Public Law 93-523 (federal Safe Drinking Water Act) as amended by Public Law 99-339 (SDWA amendments of 1986), and Public Law 104-182 (SDWA amendments of 1996), as codified at 42 USC 300g-4)) in accordance with 40 CFR 141.4.

(iii) A variance shall not be granted from the MCL for presence of total coliform under WAC 246-290-310(2).

(b) Treatment techniques.

(i) The board may grant a treatment technique variance to a public water system if the system demonstrates that the treatment technique is not necessary to protect the health of consumers because of the nature of the system's source water.

(ii) A treatment technique variance ((shall not be)) granted ((from any treatment technique requirement under Part 6 of chapter 246-290 WAC)) in accordance with 40 CFR 141.4.

(iii) A variance shall not be granted from any treatment technique requirement under Part 6 of chapter 246-290 WAC.

(c) The board shall condition the granting of a variance upon a compliance schedule as described in subsection (6) of this section.

(3) Exemptions.

(a) The board may grant a MCL or treatment technique exemption to a public water system that cannot meet an MCL standard or provide the required treatment in a timely manner, or both, ((as specified under section 1416, Public Law 93-523 (federal Safe Drinking Water Act) as amended by Public Law 99-339 (SDWA amendments of 1986), and Public Law 104-182 (SDWA amendments of 1996), as codified at 42 USC 300g-4)) in accordance with 40 CFR 141.4.

(b) ((An exemption may be granted for up to one year if the system was:

(i) In operation on the effective date of the MCL or treatment technique requirement; or

(ii) Not in operation on the effective date, and no reasonable alternative source of drinking water is available.

(c))) No exemption shall be granted from:

(i) The requirement to provide a residual disinfectant concentration in the water entering the distribution system under WAC 246-290-662 or 246-290-692; or

(ii) The MCL for presence of total coliform under WAC 246-290-310(2).

(((d))) (c) The board shall condition the granting of an exemption upon a compliance schedule as described in subsection (6) of this section.

(4) Waivers. The board may grant a waiver to a public water system if the system cannot meet the requirements of these regulations pertaining to any subject not covered by EPA variance and/or exemption regulations.

(5) Procedures.

(a) For variances and exemptions. The board shall consider granting a variance or exemption to a public water system ((upon completion of the following actions:

(i) The purveyor applies in writing to the department. The application, which may be in the form of a letter, shall clearly state the reason for the request and what actions the purveyor has taken to meet the requirement;

(ii) The purveyor provides notice of the purveyor's application to consumers and provides proof of such notice to the department;

(iii) The department prepares recommendations, including a compliance schedule for the board's consideration;

(iv) The board provides notice for and conducts a public hearing on the purveyor's request; and

(v) EPA reviews any variance or exemption granted by the board for concurrence, revocation, or revision as provided under sections 1415 and 1416 of Public Law 93-523 (federal Safe Drinking Water Act), as amended, codified at 42 USC 300g-4)) in accordance with 40 CFR 141.4.

(b) For waivers. The board shall consider granting a waiver upon completion of the following actions:

(i) The purveyor applies to the department in writing. The application, which may be in the form of a letter, shall clearly state the reason for the request;

(ii) The purveyor provides notice of the purveyor's application to consumers and provides proof of such notice to the department;

(iii) The department prepares a recommendation to the board; and

(iv) The board provides notice for and conducts a public hearing on the purveyor's request.

(6) Compliance schedule.

(a) The board shall condition the granting of a variance or exemption based on a compliance schedule. The compliance schedule shall include:

(i) Actions the purveyor shall undertake to comply with a MCL or treatment technique requirement within a specified time period; and

(ii) A description and time-table for implementation of interim control measures the department may require while the purveyor completes the actions required in (a)(i) of this subsection.

(b) The purveyor shall complete the required actions in the compliance schedule within the stated time frame.

(7) Extensions to variances and exemptions.

(a) The board may extend the final date of compliance prescribed in the compliance schedule for a ((period of up to three years after the date the exemption was granted upon a finding that the water system:

(i) Cannot meet the MCL or treatment technique requirements without capital improvements that cannot be completed within the original exemption period;

(ii) Has entered into an agreement to obtain needed financial assistance for necessary improvements; or

(iii) Has entered into an enforceable agreement to become part of a regional public water system and the system is taking all practicable steps to meet the MCL.

(b) The board may extend the final date of compliance prescribed in the compliance schedule of an exemption for one or more additional two-year periods if the purveyor:

(i) Is a community water system providing water to less than five hundred service connections;

(ii) Needs financial assistance for the necessary improvements; and

(iii) Is taking all practicable steps to meet the compliance schedule.

(c) Procedures listed in subsection (5) of this section shall be followed in the granting of extensions to exemptions)) variance and/or exemption in accordance with 40 CFR 141.4.

[Statutory Authority: RCW 43.02.050. 99-07-021, 246-290-060, filed 3/9/99, effective 4/9/99. Statutory Authority: RCW 43.20.050. 94-14-001, 246-290-060, filed 6/22/94, effective 7/23/94; 93-08-011 (Order 352B), 246-290-060, filed 3/25/93, effective 4/25/93; 91-02-051 (Order 124B), recodified as 246-290-060, filed 12/27/90, effective 1/31/91. Statutory Authority: P.L. 99-339. 89-21-020 (Order 336), 248-54-055, filed 10/10/89, effective 11/10/89. Statutory Authority: RCW 34.04.045. 88-05-057 (Order 307), 248-54-055, filed 2/17/88. Statutory Authority: RCW 43.20.050. 83-19-002 (Order 266), 248-54-055, filed 9/8/83.]

Legislature Code Reviser 

Register

Washington State Code Reviser's Office