401 KAR 8:060. Variances and exemptions.

401 KAR 8:060. Variances and exemptions.

RELATES TO: KRS Chapter 224, 21 C.F.R. Parts 110, 129, 165 (1996), 40 C.F.R. Part 142 (1995)

STATUTORY AUTHORITY: KRS 224.10-100, 224.10-110, 42 U.S.C. A 300f, 300g, 300j, 21 C.F.R. Parts 110, 129, 165 (1996), 40 C.F.R. Parts 141, 142 (1995)

NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-110 directs the cabinet to enforce administrative regulations adopted by the secretary for the regulation and control of the purification of water for public and semipublic use. The Safe Drinking Water Act, as amended by the Safe Drinking Water Act Amendments of 1986, provides for primary enforcement responsibility by states that have adopted regulations "no less stringent than the national primary drinking water regulations", as well as meeting other criteria stipulated by the Act. The Commonwealth of Kentucky has accepted and is currently exercising the primary enforcement responsibility. This administrative regulation provides for variances and exemptions from drinking water regulations which may be granted by the cabinet. It lists the requirements for applications for variances and exemptions and the conditions for approval or denial. This administrative regulation conforms to, and is no more stringent than, federal regulations.

Section 1. Variances. (1) When granted. The cabinet may grant variances to the maximum contaminant levels in 401 KAR 8:010 through 8:700, inclusive, upon its finding that:

(a) Because of characteristics of the raw water sources which are reasonably available to the system, the system cannot meet the applicable maximum contaminant levels after application of the best available technology, treatment techniques, or other means, as prescribed by 401 KAR 8:010 through 8:700, inclusive; and

(b) The granting of a variance will not result in an unreasonable risk to the health of any person. A variance may also be granted from the requirements as to treatment techniques contained in 401 KAR 8:010 through 8:700, inclusive, if the public water system applying for the variance has demonstrated that because of the nature of the raw water source of the system, the treatment techniques are not necessary to protect the health of persons. A variance granted under this paragraph shall be conditioned upon monitoring or other requirements prescribed by the cabinet.

(2) Variance request. A supplier of water may request a variance by submitting a written request to the cabinet. The request shall contain all the information and data required by the cabinet, concerning the biological and chemical makeup of the raw water, the treatment techniques which are in place, and a complete analysis of the finished water, design criteria of the plant and any other information pertinent to the variance. The request shall include a proposed compliance schedule and a statement that the system shall perform monitoring and other requirements prescribed by the cabinet as a condition to the variance. An approved compliance schedule (including increments of progress), an approved monitoring plan, and any other requirements of the cabinet shall be in place before a variance is granted. The proposed compliance schedule shall include the date by which arrangement for alternative raw water source or improvement of existing raw water source will be completed, the date of initiation of the connection of the alternative raw water source or improvement of existing raw water source, and the date by which final compliance is to be achieved.

(3) Factors considered. The cabinet may consider such factors as the availability and effectiveness of treatment techniques, costs, and other economic considerations, such as the cost of implementing other treatment techniques, improving source water quality, or using an alternate source. In considering a variance request to a required treatment technique, the cabinet may consider such factors as the quality of the water source and any source protection measures provided by the water system.

(4) Public hearing.

(a) Before a variance and compliance schedule will be granted, the applicant will notify the public of the opportunity for a public hearing on the variance and compliance schedule. The notice shall be published by the applicant when the variance request and compliance schedule are filed with the cabinet. Publication shall be in a manner which conforms to 401 KAR 8:070, Section 1(1)(a), (b) or (e), (2), or (3), whichever is applicable to the public water system. Repeat notices are not necessary. A copy of the notice shall be submitted to the cabinet within one (1) week of publication. The notice shall grant a period of at least thirty (30) days during which any person may request that a public hearing be held, and shall contain a summary of the proposed variance and schedule of compliance.

(b) Requests for public hearing may be submitted to the cabinet and shall include the name, address, and telephone number of the individual or organization requesting the hearing, along with the signature of the person or responsible official of the organization requesting the hearing.

(d) If a hearing is requested or if the cabinet determines a hearing is desirable, the cabinet will notify the public water system of the time and place of the hearing. The public water system shall notify the public of the time and place of the hearing, at least fifteen (15) days prior to the hearing, in a manner consistent with paragraph (a) of this subsection.

(e) The variance and compliance schedule will become effective when the cabinet confirms or revises the variance and compliance schedule, or will not become effective if the cabinet denies the variance and compliance schedule. The cabinet's decision will be based upon the hearing recommendations, if any, and other relevant information.

(5) Time limitations. No variance and compliance schedule shall be for a period exceeding one (1) year, but may be renewed in one (1) year increments with opportunity for public hearing on the renewals, in accordance with subsection (4) of this section.

Section 2. Exemptions. (1) When granted. The cabinet may exempt a public water system from any requirement respecting a maximum contaminant level or any treatment technique requirement, or both, of 401 KAR 8:010 through 8:700, inclusive, upon a determination by the cabinet that, due to compelling factors, which may include economic factors:

(a) The public water system is unable to comply with the contaminant level or treatment technique requirement;

(b) The public water system was in operation on the effective date of the contaminant level or treatment technique requirement, or, if the system was not in operation by that date, no reasonable alternative source of drinking water is available to the new public water systems; and

(2) Exemption request. A supplier of water may request an exemption from any requirement of 401 KAR 8:010 through 8:700, inclusive, respecting a maximum contaminant level or treatment technique requirement, or both, by submitting a written request for exemption to the cabinet. The request shall specify the nature and duration of exemption requested; relevant analytical results of water quality sampling of the system, including samples of raw and finished water and samples required by 401 KAR 8:010 through 8:700, inclusive; an explanation of the compelling factors, such as time or economic factors which prevent the system from achieving compliance; and other information pertinent to the application, including a proposed compliance schedule.

(3) Consideration of an exemption request. In its consideration of an exemption request, the cabinet may consider factors such as the construction, installation or modification of treatment equipment or systems; the time needed to put into operation a new treatment facility to replace an existing system which is not in compliance; and the economic feasibility of compliance.

(4) Compliance schedule. An exemption shall not be granted if the request does not include a compliance schedule, including increments of progress, for each contaminant level or treatment technique for which the exemption is granted. The compliance schedule may include control measures or other requirements of the cabinet to maintain the validity of the exemption.

(5) Public hearing. No exemption and compliance schedule (including an extension of any existing exemption and compliance schedule) shall become effective without the opportunity for a public hearing. Procedures for requesting and conducting a public hearing for an exemption shall be the same as those for variances as set forth in Section 1(4) of this administrative regulation.

(6) Time limitations. Exemptions shall not exceed twelve (12) months. The cabinet may extend an exemption for up to three (3) years, if it finds that the public water system must install capital improvements to comply and cannot complete the improvements without an extension; or that the water system has entered into an enforceable agreement to become part of another public water system; and if it finds that the water system is taking all practicable steps to comply with the administrative regulations. Systems serving fewer than 500 service connections may receive further renewals in increments of two (2) years, if the system needs financial assistance to comply and is taking all practical steps to meet the requirements of 401 KAR 8:010 through 8:700, inclusive.

Section 3. Disposition of a Variance or Exemption Request. The cabinet will act on any variance or exemption request submitted to it, within (90) days of receipt of the request.

(1) Variance or exemption denied. If the cabinet makes a preliminary determination to deny the application for a variance or exemption, it will notify the applicant of its intention to issue a denial. The notice will include a statement of reasons for the proposed denial and will offer the applicant an opportunity to present, within thirty (30) days of receipt of the notice, additional information or argument to the cabinet. The cabinet will make a final determination to grant or deny the request within thirty (30) days after receiving any additional information or argument. If no additional information or argument is submitted by the applicant, the application shall be denied.

(2) Variance or exemption granted:

(a) If the cabinet proposes to grant a variance or exemption, it will notify the applicant of its preliminary determination. The notice shall identify the variance or exemption, the facility covered, and the conditions under which the variance or exemption may be terminated; and will specify the proposed termination date of the variance or exemption, unless otherwise terminated.

(b) No variance or exemption shall be effective until the opportunity is provided for a public hearing on the proposed variance or exemption.

Section 4. Termination of a Variance or Exemption. Any variance or exemption granted by the cabinet pursuant to this administrative regulation shall terminate at the earliest of the following dates:

(1) The termination date specified when the variance or exemption is issued;

(2) The date the system comes into compliance with 401 KAR 8:010 through 8:700, inclusive;

(3) The date the cabinet determines that the system has failed to comply with the finalized schedule;

(4) The date the cabinet determines that the raw water source requires a specified treatment technique to protect the health of persons served (applicable to a variance only); and

(5) The date the cabinet finds that the water system has failed to comply with monitoring and other requirements prescribed by the cabinet as a condition to the granting of the variance (applicable to a variance only).

Section 5. Best Available Technology for Variances and Exemptions from the Maximum Contaminant Levels for Organic and Inorganic Chemicals. (1) The following are the best available technologies for achieving compliance with the maximum contaminant levels for organic and volatile organic chemicals listed in 401 KAR 8:400 and 8:420:

BEST AVAILABLE TECHNOLOGIES
CONTAMINANT	PTA¹	GAC²	OX³
(a) Benzene	X	X
(b) Carbon tetrachloride	X	X
(c) 1,2-Dichloroethane	X	X
(d) Trichloroethylene	X	X
(e) para-Dichlorobenzene	X	X
(f) 1,1-Dichloroethylene	X	X
(g) 1,1,1-Trichloroethane	X	X
(h) Vinyl chloride	X
(i) cis-1,2-Dichloroethylene	X	X
(j) 1,2-Dichloropropane	X	X
(k) Ethylbenzene	X	X
(l) Monochlorobenzene	X	X
(m) o-Dichlorobenzene	X	X
(n) Styrene	X	X
(o) Tetrachloroethylene	X	X
(p) Toluene	X	X
(q) trans-1,2-Dichloroethylene	X	X
(r) Xylenes (total)	X	X
(s) Alachlor		X
(t) Aldicarb		X
(u) Aldicarb sulfoxide		X
(v) Aldicarb sulfone		X
(w) Atrazine		X
(x) Carbofuran		X
(y) Chlordane		X
(z) Dibromochloropropane	X	X
(aa) 2,4-D		X
(bb) Ethylene dibromide	X	X
(cc) Heptachlor		X
(dd) Heptachlor epoxide		X
(ee) Lindane		X
(ff) Methoxychlor		X
(gg) PCBs		X
(hh) Pentachlorophenol		X
(ii) Toxaphene		X
(jj) 2,4,5-TP		X
(kk) Benzo(a)pyrene		X
(ll) Dalapon		X
(mm) Dichloromethane	X
(nn) Di(2-ethylhexyl)adipate	X	X
(oo) Di(2-ethylhexyl)phthalate		X
(pp) Dinoseb		X
(qq) Diquat		X
(rr) Endothall		X
(ss) Endrin		X
(tt) Glyphosate			X
(uu) Hexachlorobenzene	X
(vv) Hexachlorocyclopentadiene	X	X
(ww) Oxamyl (Vydate)		X
(xx) Picloram		X
(yy) Simazine		X
(zz) 1,2,4-Trichlorobenzene	X	X
(aaa) 1,1,2-Trichloroethane	X	X
(bbb) 2,3,7,8-TCDD (Dioxin)		X
¹ Packed Tower Aeration
² Granular Activated Carbon
³ Oxidation (Chlorination or Ozonation)

(2) The following are hereby identified as the best technology, treatment techniques, or other means available for achieving compliance with the maximum contaminant levels for the inorganic chemicals listed in 401 KAR 8:250:

CHEMICAL NAME	BAT
Antimony	2,7
Asbestos	2,3,8
Barium	5,6,7,9
Beryllium	1,2,5,6,7
Cadmium	2,5,6,7
Chromium	2,5,6²,7
Cyanide	5,7,10
Mercury	2¹,4,6¹,7¹
Nickel	5,6,7
Nitrate	5,7,9
Nitrite	5,7
Selenium	1,2³,6,7,9
Thallium	1,5

¹ BAT only if influent Hg concentrations less than or equal to ten (10) microgram/liter.