
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 42USC300g-4]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
                    CHAPTER 6A--PUBLIC HEALTH SERVICE
 
             SUBCHAPTER XII--SAFETY OF PUBLIC WATER SYSTEMS
 
                      Part B--Public Water Systems
 
Sec. 300g-4. Variances


(a) Characteristics of raw water sources; specific treatment technique; 
        notice to Administrator, reasons for variance; compliance, 
        enforcement; approval or revision of schedules and revocation of 
        variances; review of variances and schedules; publication in 
        Federal Register, notice and results of review; notice to State; 
        considerations respecting abuse of discretion in granting 
        variances or failing to prescribe schedules; State corrective 
        action; authority of Administrator in a State without primary 
        enforcement responsibility; alternative treatment techniques

    Notwithstanding any other provision of this part, variances from 
national primary drinking water regulations may be granted as follows:
        (1)(A) A State which has primary enforcement responsibility for 
    public water systems may grant one or more variances from an 
    applicable national primary drinking water regulation to one or more 
    public water systems within its jurisdiction which, because of 
    characteristics of the raw water sources which are reasonably 
    available to the systems, cannot meet the requirements respecting 
    the maximum contaminant levels of such drinking water regulation. A 
    variance may be issued to a system on condition that the system 
    install the best technology, treatment techniques, or other means, 
    which the Administrator finds are available (taking costs into 
    consideration), and based upon an evaluation satisfactory to the 
    State that indicates that alternative sources of water are not 
    reasonably available to the system. The Administrator shall propose 
    and promulgate his finding of the best available technology, 
    treatment techniques or other means available for each contaminant 
    for purposes of this subsection at the time he proposes and 
    promulgates a maximum contaminant level for each such contaminant. 
    The Administrator's finding of best available technology, treatment 
    techniques or other means for purposes of this subsection may vary 
    depending on the number of persons served by the system or for other 
    physical conditions related to engineering feasibility and costs of 
    compliance with maximum contaminant levels as considered appropriate 
    by the Administrator. Before a State may grant a variance under this 
    subparagraph, the State must find that the variance will not result 
    in an unreasonable risk to health. If a State grants a public water 
    system a variance under this subparagraph, the State shall prescribe 
    at the the \1\ time the variance is granted, a schedule for--
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    \1\ So in original.
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            (i) compliance (including increments of progress) by the 
        public water system with each containment level requirement with 
        respect to which the variance was granted, and
            (ii) implementation by the public water system of such 
        additional control measures as the State may require for each 
        contaminant, subject to such contaminant level requirement, 
        during the period ending on the date compliance with such 
        requirement is required.

    Before a schedule prescribed by a State pursuant to this 
    subparagraph may take effect, the State shall provide notice and 
    opportunity for a public hearing on the schedule. A notice given 
    pursuant to the preceding sentence may cover the prescribing of more 
    than one such schedule and a hearing held pursuant to such notice 
    shall include each of the schedules covered by the notice. A 
    schedule prescribed pursuant to this subparagraph for a public water 
    system granted a variance shall require compliance by the system 
    with each contaminant level requirement with respect to which the 
    variance was granted as expeditiously as practicable (as the State 
    may reasonably determine).
        (B) A State which has primary enforcement responsibility for 
    public water systems may grant to one or more public water systems 
    within its jurisdiction one or more variances from any provision of 
    the national primary drinking water regulation which requires the 
    use of a specified treatment technique with respect to a contaminant 
    if the public water system applying for the variance demonstrates to 
    the satisfaction of the State 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. A variance granted under this 
    subparagraph shall be conditioned on such monitoring and other 
    requirements as the Administrator may prescribe.
        (C) Before a variance proposed to be granted by a State under 
    subparagraph (A) or (B) may take effect, such State shall provide 
    notice and opportunity for public hearing on the proposed variance. 
    A notice given pursuant to the preceding sentence may cover the 
    granting of more than one variance and a hearing held pursuant to 
    such notice shall include each of the variances covered by the 
    notice. The State shall promptly notify the Administrator of all 
    variances granted by it. Such notification shall contain the reason 
    for the variance (and in the case of a variance under subparagraph 
    (A), the basis for the finding required by that subparagraph before 
    the granting of the variance) and documentation of the need for the 
    variance.
        (D) Each public water system's variance granted by a State under 
    subparagraph (A) shall be conditioned by the State upon compliance 
    by the public water system with the schedule prescribed by the State 
    pursuant to that subparagraph. The requirements of each schedule 
    prescribed by a State pursuant to that subparagraph shall be 
    enforceable by the State under its laws. Any requirement of a 
    schedule on which a variance granted under that subparagraph is 
    conditioned may be enforced under section 300g-3 of this title as if 
    such requirement was part of a national primary drinking water 
    regulation.
        (E) Each schedule prescribed by a State pursuant to subparagraph 
    (A) shall be deemed approved by the Administrator unless the 
    variance for which it was prescribed is revoked by the Administrator 
    under subparagraph (G) or the schedule is revised by the 
    Administrator under such subparagraph.
        (F) Not later than 18 months after the effective date of the 
    interim national primary drinking water regulations the 
    Administrator shall complete a comprehensive review of the variances 
    granted under subparagraph (A) (and schedules prescribed pursuant 
    thereto) and under subparagraph (B) by the States during the one-
    year period beginning on such effective date. The Administrator 
    shall conduct such subsequent reviews of variances and schedules as 
    he deems necessary to carry out the purposes of this subchapter, but 
    each subsequent review shall be completed within each 3-year period 
    following the completion of the first review under this 
    subparagraph. Before conducting any review under this subparagraph, 
    the Administrator shall publish notice of the proposed review in the 
    Federal Register. Such notice shall (i) provide information 
    respecting the location of data and other information respecting the 
    variances to be reviewed (including data and other information 
    concerning new scientific matters bearing on such variances), and 
    (ii) advise of the opportunity to submit comments on the variances 
    reviewed and on the need for continuing them. Upon completion of any 
    such review, the Administrator shall publish in the Federal Register 
    the results of his review together with findings responsive to 
    comments submitted in connection with such review.
        (G)(i) If the Administrator finds that a State has, in a 
    substantial number of instances, abused its discretion in granting 
    variances under subparagraph (A) or (B) or that in a substantial 
    number of cases the State has failed to prescribe schedules in 
    accordance with subparagraph (A), the Administrator shall notify the 
    State of his findings. In determining if a State has abused its 
    discretion in granting variances in a substantial number of 
    instances, the Administrator shall consider the number of persons 
    who are affected by the variances and if the requirements applicable 
    to the granting of the variances were complied with. A notice under 
    this clause shall--
            (I) identify each public water system with respect to which 
        the finding was made,
            (II) specify the reasons for the finding, and
            (III) as appropriate, propose revocations of specific 
        variances or propose revised schedules or other requirements for 
        specific public water systems granted variances, or both.

        (ii) The Administrator shall provide reasonable notice and 
    public hearing on the provisions of each notice given pursuant to 
    clause (i) of this subparagraph. After a hearing on a notice 
    pursuant to such clause, the Administrator shall (I) rescind the 
    finding for which the notice was given and promptly notify the State 
    of such rescission, or (II) promulgate (with such modifications as 
    he deems appropriate) such variance revocations and revised 
    schedules or other requirements proposed in such notice as he deems 
    appropriate. Not later than 180 days after the date a notice is 
    given pursuant to clause (i) of this subparagraph, the Administrator 
    shall complete the hearing on the notice and take the action 
    required by the preceding sentence.
        (iii) If a State is notified under clause (i) of this 
    subparagraph of a finding of the Administrator made with respect to 
    a variance granted a public water system within that State or to a 
    schedule or other requirement for a variance and if, before a 
    revocation of such variance or a revision of such schedule or other 
    requirement promulgated by the Administrator takes effect, the State 
    takes corrective action with respect to such variance or schedule or 
    other requirement which the Administrator determines makes his 
    finding inapplicable to such variance or schedule or other 
    requirement, the Administrator shall rescind the application of his 
    finding to that variance on schedule or other requirement. No 
    variance revocation or revised schedule or other requirement may 
    take effect before the expiration of 90 days following the date of 
    the notice in which the revocation or revised schedule or other 
    requirement was proposed.
        (2) If a State does not have primary enforcement responsibility 
    for public water systems, the Administrator shall have the same 
    authority to grant variances in such State as the State would have 
    under paragraph (1) if it had primary enforcement responsibility.
        (3) The Administrator may grant a variance from any treatment 
    technique requirement of a national primary drinking water 
    regulation upon a showing by any person 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.

(b) Enforcement of schedule or other requirement

    Any schedule or other requirement on which a variance granted under 
paragraph (1)(B) or (2) of subsection (a) of this section is conditioned 
may be enforced under section 300g-3 of this title as if such schedule 
or other requirement was part of a national primary drinking water 
regulation.

(c) Applications for variances; regulations: reasonable time for acting

    If an application for a variance under subsection (a) of this 
section is made, the State receiving the application or the 
Administrator, as the case may be, shall act upon such application 
within a reasonable period (as determined under regulations prescribed 
by the Administrator) after the date of its submission.

(d) ``Treatment technique requirement'' defined

    For purposes of this section, the term ``treatment technique 
requirement'' means a requirement in a national primary drinking water 
regulation which specifies for a contaminant (in accordance with section 
300f(1)(C)(ii) of this title) each treatment technique known to the 
Administrator which leads to a reduction in the level of such 
contaminant sufficient to satisfy the requirements of section 300g-1(b) 
of this title.

(e) Small system variances

                           (1) In general

        A State exercising primary enforcement responsibility for public 
    water systems under section 300g-2 of this title (or the 
    Administrator in nonprimacy States) may grant a variance under this 
    subsection for compliance with a requirement specifying a maximum 
    contaminant level or treatment technique contained in a national 
    primary drinking water regulation to--
            (A) public water systems serving 3,300 or fewer persons; and
            (B) with the approval of the Administrator pursuant to 
        paragraph (9), public water systems serving more than 3,300 
        persons but fewer than 10,000 persons,

    if the variance meets each requirement of this subsection.

                    (2) Availability of variances

        A public water system may receive a variance pursuant to 
    paragraph (1), if--
            (A) the Administrator has identified a variance technology 
        under section 300g-1(b)(15) of this title that is applicable to 
        the size and source water quality conditions of the public water 
        system;
            (B) the public water system installs, operates, and 
        maintains, in accordance with guidance or regulations issued by 
        the Administrator, such treatment technology, treatment 
        technique, or other means; and
            (C) the State in which the system is located determines that 
        the conditions of paragraph (3) are met.

                (3) Conditions for granting variances

        A variance under this subsection shall be available only to a 
    system--
            (A) that cannot afford to comply, in accordance with 
        affordability criteria established by the Administrator (or the 
        State in the case of a State that has primary enforcement 
        responsibility under section 300g-2 of this title), with a 
        national primary drinking water regulation, including compliance 
        through--
                (i) treatment;
                (ii) alternative source of water supply; or
                (iii) restructuring or consolidation (unless the 
            Administrator (or the State in the case of a State that has 
            primary enforcement responsibility under section 300g-2 of 
            this title) makes a written determination that restructuring 
            or consolidation is not practicable); and

            (B) for which the Administrator (or the State in the case of 
        a State that has primary enforcement responsibility under 
        section 300g-2 of this title) determines that the terms of the 
        variance ensure adequate protection of human health, considering 
        the quality of the source water for the system and the removal 
        efficiencies and expected useful life of the treatment 
        technology required by the variance.

                      (4) Compliance schedules

        A variance granted under this subsection shall require 
    compliance with the conditions of the variance not later than 3 
    years after the date on which the variance is granted, except that 
    the Administrator (or the State in the case of a State that has 
    primary enforcement responsibility under section 300g-2 of this 
    title) may allow up to 2 additional years to comply with a variance 
    technology, secure an alternative source of water, restructure or 
    consolidate if the Administrator (or the State) determines that 
    additional time is necessary for capital improvements, or to allow 
    for financial assistance provided pursuant to section 300j-12 of 
    this title or any other Federal or State program.

                      (5) Duration of variances

        The Administrator (or the State in the case of a State that has 
    primary enforcement responsibility under section 300g-2 of this 
    title) shall review each variance granted under this subsection not 
    less often than every 5 years after the compliance date established 
    in the variance to determine whether the system remains eligible for 
    the variance and is conforming to each condition of the variance.

                   (6) Ineligibility for variances

        A variance shall not be available under this subsection for--
            (A) any maximum contaminant level or treatment technique for 
        a contaminant with respect to which a national primary drinking 
        water regulation was promulgated prior to January 1, 1986; or
            (B) a national primary drinking water regulation for a 
        microbial contaminant (including a bacterium, virus, or other 
        organism) or an indicator or treatment technique for a microbial 
        contaminant.

                    (7) Regulations and guidance

        (A) In general

            Not later than 2 years after August 6, 1996, and in 
        consultation with the States, the Administrator shall promulgate 
        regulations for variances to be granted under this subsection. 
        The regulations shall, at a minimum, specify--
                (i) procedures to be used by the Administrator or a 
            State to grant or deny variances, including requirements for 
            notifying the Administrator and consumers of the public 
            water system that a variance is proposed to be granted 
            (including information regarding the contaminant and 
            variance) and requirements for a public hearing on the 
            variance before the variance is granted;
                (ii) requirements for the installation and proper 
            operation of variance technology that is identified 
            (pursuant to section 300g-1(b)(15) of this title) for small 
            systems and the financial and technical capability to 
            operate the treatment system, including operator training 
            and certification;
                (iii) eligibility criteria for a variance for each 
            national primary drinking water regulation, including 
            requirements for the quality of the source water (pursuant 
            to section 300g-1(b)(15)(A) of this title); and
                (iv) information requirements for variance applications.

        (B) Affordability criteria

            Not later than 18 months after August 6, 1996, the 
        Administrator, in consultation with the States and the Rural 
        Utilities Service of the Department of Agriculture, shall 
        publish information to assist the States in developing 
        affordability criteria. The affordability criteria shall be 
        reviewed by the States not less often than every 5 years to 
        determine if changes are needed to the criteria.

                   (8) Review by the Administrator

        (A) In general

            The Administrator shall periodically review the program of 
        each State that has primary enforcement responsibility for 
        public water systems under section 300g-2 of this title with 
        respect to variances to determine whether the variances granted 
        by the State comply with the requirements of this subsection. 
        With respect to affordability, the determination of the 
        Administrator shall be limited to whether the variances granted 
        by the State comply with the affordability criteria developed by 
        the State.

        (B) Notice and publication

            If the Administrator determines that variances granted by a 
        State are not in compliance with affordability criteria 
        developed by the State and the requirements of this subsection, 
        the Administrator shall notify the State in writing of the 
        deficiencies and make public the determination.

                      (9) Approval of variances

        A State proposing to grant a variance under this subsection to a 
    public water system serving more than 3,300 and fewer than 10,000 
    persons shall submit the variance to the Administrator for review 
    and approval prior to the issuance of the variance. The 
    Administrator shall approve the variance if it meets each of the 
    requirements of this subsection. The Administrator shall approve or 
    disapprove the variance within 90 days. If the Administrator 
    disapproves a variance under this paragraph, the Administrator shall 
    notify the State in writing of the reasons for disapproval and the 
    variance may be resubmitted with modifications to address the 
    objections stated by the Administrator.

                    (10) Objections to variances

        (A) By the Administrator

            The Administrator may review and object to any variance 
        proposed to be granted by a State, if the objection is 
        communicated to the State not later than 90 days after the State 
        proposes to grant the variance. If the Administrator objects to 
        the granting of a variance, the Administrator shall notify the 
        State in writing of each basis for the objection and propose a 
        modification to the variance to resolve the concerns of the 
        Administrator. The State shall make the recommended modification 
        or respond in writing to each objection. If the State issues the 
        variance without resolving the concerns of the Administrator, 
        the Administrator may overturn the State decision to grant the 
        variance if the Administrator determines that the State decision 
        does not comply with this subsection.

        (B) Petition by consumers

            Not later than 30 days after a State exercising primary 
        enforcement responsibility for public water systems under 
        section 300g-2 of this title proposes to grant a variance for a 
        public water system, any person served by the system may 
        petition the Administrator to object to the granting of a 
        variance. The Administrator shall respond to the petition and 
        determine whether to object to the variance under subparagraph 
        (A) not later than 60 days after the receipt of the petition.

        (C) Timing

            No variance shall be granted by a State until the later of 
        the following:
                (i) 90 days after the State proposes to grant a 
            variance.
                (ii) If the Administrator objects to the variance, the 
            date on which the State makes the recommended modifications 
            or responds in writing to each objection.

(July 1, 1944, ch. 373, title XIV, Sec. 1415, as added Pub. L. 93-523, 
Sec. 2(a), Dec. 16, 1974, 88 Stat. 1669; amended Pub. L. 99-339, title 
I, Sec. 104, June 19, 1986, 100 Stat. 649; Pub. L. 104-182, title I, 
Secs. 102(c)(1), 115, 116, title V, Sec. 501(a)(3), Aug. 6, 1996, 110 
Stat. 1621, 1641, 1691.)


                               Amendments

    1996--Subsec. (a)(1)(A). Pub. L. 104-182, Sec. 501(a)(3), inserted 
``the'' before ``time the variance is granted,'' in introductory 
provisions.
    Pub. L. 104-182, Sec. 115, in second sentence, substituted ``be 
issued to a system on condition that the system install'' for ``only be 
issued to a system after the system's application of'' and inserted ``, 
and based upon an evaluation satisfactory to the State that indicates 
that alternative sources of water are not reasonably available to the 
system'' after ``(taking costs into consideration)''.
    Subsec. (d). Pub. L. 104-182, Sec. 102(c)(1), substituted ``section 
300g-1(b)'' for ``section 300g-1(b)(3)''.
    Subsec. (e). Pub. L. 104-182, Sec. 116, added subsec. (e).
    1986--Subsec. (a)(1)(A). Pub. L. 99-339, Sec. 104(1)-(3), 
substituted ``such drinking water regulation. A variance may only be 
issued to a system after the system's application'' for ``such drinking 
water regulation despite application'', struck out ``generally'' after 
``finds are'', inserted provisions relating to proposal and promulgation 
by Administrator of a finding on best available technology, treatment 
techniques or other means available for each contaminant at time of 
proposal and promulgation of maximum contaminant levels, and substituted 
``at the time'' for ``within one year of the date''.
    Subsec. (a)(1)(A)(ii). Pub. L. 99-339, Sec. 104(4), substituted 
``water system of such additional control'' for ``water system of such 
control''.

                  Section Referred to in Other Sections

    This section is referred to in sections 300g, 300g-1, 300g-2, 300g-
3, 300g-5, 300g-9, 300j-2, 300j-4, 300j-7, 300j-8 of this title.
