2L Variance - Project DH Request for review and comments on a Draft Guidance Document for Variance Requests under Title 15A NCAC 2L .0113

Please review the guidance and rov'd Section. Mr. Hance may be reached at tph d1de commb ents to David Hance in the DWQ-Plannino e a ress elow: ,=,
David Hance DENR-DWQ Pl . .
1636 M
·1 s • ' -annmg Section
a1 erv1ce Cent R 1 · h -' er, a e1g 'North Carolina 27699-1636
Phone: _(919) 715-6189; Fax: [phone]· '
E-Mail Add · D 'd ' ress, av1 .Hance @ncmail.net
If possible, the Planning Section would 1 ·
recommended changes on or before Wedn d ike to have your comments and any
develop a final draft for the upcomi A es_ ty, August 18, 2004. This will give them time to
August. If you wish to discuss this do:~me;~1 ~::rotectlion Section Supervisors meeting in late w1 me, p ease feel free to call 919-715-6172.
cc: Carl Bailey Boyd Devane
Othv ,,u,./ei}
(!) Lu.oe ,J r·,C'U8 fa# ";>rL r~ '11 r5si6le'' "r/,u,,uf.,_br; •
vJt,..,,... po -x-: b(p , ~ r...,_, ...d, we /; J...) ,,.,,ti ..,1-<f1-~ ; ,._f.ri .,_1.•,..._ .
@ ~ ~.t: o-1»-/ UM 1, MM -~ ft r.ud ,...r/ c-. k
r,ue.L,,,,.. "'-dc.e.i.Jlsf. ~ ,,_,f...;.... -~ =! ,;:._o/l--
5
. /
(4-,7, -'5 TP 4' 4
1
ftf· 1'" -s ) SJJ--
(1) ~4' ffe,,..r-r1-,-(>,V µ~ I-;i,.,,.1s, = ~~
c/4~ 9itf 6, ~ I,, ~,k,.f,&,t,r1'7' {6.;nJi?) ~ 4 ?<-efi /7,P rl~ ,.:,f,,. ~ 4-v,,_ ~fWf'..c_,•r,,~ ~
2
DRAFT 15A NCAC 2L Variance Guidance Permits and Incident Variances
• A site map showing the dimensions and shape of land area proposed for variance.
The dimensions of this area may be shown in square feet or in acres of land;
• A site map showing hydrogeologic contours through the site and the area for which
variance is requested and adjacent properties included. Groundwater monitoring
".fells, drinking water supply wells, observation wells, recovery wells, process water
supply wells, and other types of wells shall be located on this map. Buildings and
other land use features shall be shown as well. The land area for the proposed
variance needs to be noted on the map and the area where groundwater is known to
be contaminated should be shown as w~ll The map must show the direction of
groundwater flow through the site and th ugh the area proposed for variance. e.,J/c/4fl'/
)1 t,u./ ~ i,uc,lurk/ l',AA-f)~ t:_ 11 / .
• A site map showing groundwater monitoring wells with the most recent faM~ ;/ ~
concentration levels of substances found at the site; ~ ,Jj~J· fil
• A site map showing water well use within½ mile of the site around the sitl ¼.ot;7 j v-tUI-)
This includes both private and public water supply wells; l_fl'
• Site map(s) showing more details of utilities at the site. Wastewater treatment
systems, wastewater lines and water lines that run through the area of the variance
request must be located. This includes the areas where substances are expected to
migrate;
• A site map showing the location of properties immediately adjacent to the facility.
Please include the names of the property owners, addresses, and deed numbers of
these properties on the map, if possible;
• A map showing the horizontal boundaries of the area proposed for variance must be
submitted. r1,.--.Afii b-
~-v o/L.
• A map showing the vertical extent of substances within the j,l'ea of the proposed
variance may be used to support the variance request, if a, aitttrte. If the responsible
party has conducted modeling or other types of investigative work associated with a
.cleanup of this site or as a part of a CSA/CAP under 15A NCAC 2L .0106, this
information may be provided to support a variance request. The scale of this
diagram will be shown and it will show the dimensions area proposed for variance.
If the information on the vertical extent of substances beneath the site does not exist
or is inadequate to show the extent of substances, it is up to the discretion of the
Division to require this information.
• Any other important site specific map or feature that the person requesting the
variance and/or the regional office deems necessary for the Commission to
adequately review the variance request.
Created on 7/26/04 2:49 PM 4
DRAFT 15A NCAC 2L Variance Guidance Permits and Incident Variances
submitted must demonstrate that Surface Water Quality Standards in 15A NCAC 2B or
other guidance levels used by the DWQ will not be exceeded for the classification of surface
water bodies around the site. Surface water monitoring data must be included to support
the variance request. Note that impact to local wetlands should be included in the
assessment of surface water impacts since the Department considers these to be surface
waters.
The request shall also discuss the impact of granting a variance on sewer service
lines, bu.Ilding basements, telephone/cable television boxes, or other local utilities. These
types of structures may serve as a channel for contamination and the variance shall note
the depth of these utilities in relation to the depth of the substances and the expected
vertical and horizontal migration paths of these substances in groundwater. If there are
improperly abandoned wells at or near the site, the impacts of the variance on this type of
excavation needs to be discussed and, if there are impacts, efforts to mitigate these types of
wells need to discussed in the request.
Laboratory data to support the variance must show that the variance will not have
an adverse impact on health and the environment. With respect to any samples from
groundwater monitoring wells, surface water, drinking water wells, or soil sampling data
used to support this variance, laboratory information and sampling parameters must be
adequately assessed. The laboratory methods must be noted in the variance request for the
samples collected. Concentrations of the substances, the direction they will migrate, the
groundwater wells they have been found in, and the impact they have on groundwater
must be evaluated. This information may need a review of the toxic<;>logical and health
impacts by the Division of Public Health.
Health impacts information must show trends of what is occurring in groundwater.
Data in a tabular format shall • be provided depicting the media monitored, identification
number of the sampling site, substance and concentration. The concentration of the
substances that are found using that particular analytical method must be shown in the
table with the current Groundwater Quality Standard either listed in a column or shown in
a legend. The trend analysis is to show the behavior of substances within the land area
proposed for variance and may be shown on line or bar graphs in an appendix. This
analysis shall also show what direction the concentrations are anticipated to go (that is,
concentrations increasing or decreasing) as a result of the variance. Monitoring shall also
demonstrate what is expected to happen within the land area proposed for variance, if
granted by the Commission. Risk-based calculations or risk based levels for substances
from previous guidance may be used as comparisons as well, if these risk-based levels are
established. Available permittee monitoring data or special sampling data requested by the
Division of Water Quality may be used to support this request. If graphic information is
available, this can be provided as well to support the request. If any risk based
concentrations are provided for comparison, these should also be in the same units.
For analysis of organics, semi-volatiles, metals, non-metal inorganics, petroleum
related substances and base/neutral extractables, the tabular format should show the
substances in these appropriate categories. The date the sample was · taken and analysis
conducted should be shown in the table. The tabular data needs to clearly show if the
sample came from a monitoring well, recovery well, drinking water supply well, process
water supply well, or other type of well. The appropriate Groundwater Quality Standard
in 15A NCAC 2L .0202 or interim maximum allowable concentration should be shown in
Created on 7/26/04 2:49 PM 7
DRAFT 15A NCAC 2L Variance Guidance Permits and Incident Variances
discussion of additional costs for the implementation of cleanup technology shall be
itemized as follows:
• Capital costs for installation of new construction, machinery, control technology,
remediation technology, recovery wells, and other types of wells;
• (_)peration and maintenance of new technology;
• Utility costs;
• Personnel costs to operate the new technology, if applicable; and
• Other secondary costs associated with the new technology (i.e. costs to asphalt or
cover the site, cost for new roads or relocated roads or driveways, cost for removal of
buildings or other site structures, purchase or rental of additional land; landscaping/
grading of property, the cost for additional spray fields/land farming (permits only);
etc).
r~p;;:d§
The time frame for these costs must be noted as well and it is pt-red that the
information be provided as a cost in dollars per year. A total cost for each alternative
technology needs to be noted in this response.
F. Subp arag ra p h # 6: "Supporting information to establish that compliance would produce
serious financial hardship on the applicant. "
Required Information for # 6: The variance request must specify the type of
financial hardship the applicant will undergo and the effects of complying with 15A NCAC
2L .0106(j) and/or 15A NCAC 2L .0202. Effects on facility including operations, proposed
expansion, employment, and other impacts may be noted. ff pos!iiible,1Jiese costs should be
quantified. -=
G. Subparagraph # 7: "Supporting information to establish that compliance would produce
serious financial hardship without equal or greater public benefit. "
Required Information for # 7: The variance request must specify the financial
hardship of meeting 15A NCAC 2L .0106(j) and/or 15A NCAC 2L .0202 in the context of
lack. of any public benefit. A discussion of local economic, financial, and employment
conditions in the local jurisdiction may be included. If there are potential costs and budget
impacts to the company, proprietor, and/or owner by not granting a variance, these shall
be discussed in detail.
Created on 7 /26/04 2:49 PM 9
DRAFT 15A NCAC 2L Variance Guidance Permits and Incident Variances
H. Subp arag ra ph# 8: A co py o(an y Special Order that was issued in connection with
contaminants in the proposed area and supporting in fo rmation that the a pp licant has
com plied with the sp ecial order.
Required Information for# 8: The rule is self-explanatory.
I. -Sub parag ra ph # 9: A list o[the names o fp ro p erty owners ...... ".
Required Information for # 9: Include the deed number and/or local tax
identification number for each property within the area proposed for variance, adjacent
property and other impacted properties. The names and mailing addresses of these owners
must be included. If the property is a rental property, please include the name and address
of the current resident, if local records reveal this. This is to include all residential,
industrial and commercial properties immediately around the site. The names, addresses,
and deed numbers for well owners within ½ mile of the site must also be included. In
addition, contact persons for utilities (i.e. NCDOT, railroads, and other utilities) that
traverse the area of the variance or are downgraidient from the facility must be notified as
well. If the facility or consultant has conducted a well survey, this information may be used
as well. It is up to the judgment of the Aquifer Protection Section Regional Supervisor if a
survey submitted to support a variance is complete, if any survey is necessary, or if an
additional survey should be required in order to meet requirements of the rule.
{NOTE: The above is basic information is common to most variance
requests where spills and releases have resulted or may result in
exceedences of lSA NCAC 2L .0202 standards in groundwater. The
Division of Water Quality may require the submittal of more
information from the responsible party or less information based on
the impact of substances at the site and other site specific factors)
••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
Created on 7/26/04 2:49 PM 10
QRAFT 15A NCAC 2L Variance Guidance Permits and Incident Variances
• the amount of acreage for the land area proposed for variance;
• the history of the permitted site;
• the reasons for the permit;
• the description and land area of the permitted boundaries under 15A NCAC 2L (i.e.
waste, review and compliance);
• the conditions at the site that will result or have resulted in a exceedence of
Groundwater Quality Standards in title 15A NCAC 2L .0202 within the area
proposed for variance;
• the activities and circumstances outside the compliance boundary that require land
be designated as under variance by the Environmental Management Commission;
• a revised compliance boundary if the variance request specifies that this will change
as a result of granting the variance; tv oJl ~ 11
o/1'1 "flW-1' ,lw~ ~p'1
• a description of a ~ter supply well impacted by the variance !! the operation
of that existing well is in violation of 15A NCAC 2L .0107( d:Mtnd ~
• any other land use features unique to these facilities. W,--t:,)"~~ ~~y-P.';'/.,
f.2-'-·~ ) r ~ vv-ex-x ~ ~
Also include a brief discussion of the interactions between the p~ee and thtf/1'7
Aquifer Protection Section with regard the need for variance. In addition to information
about the site, the variance request must include information on other known sources of
contamination that may impact the land area of the proposed variance at the permitted
operation. This may include other on-site and off-site sources of groundwater
contami!!ation (such as leaking UST tanks, solvent spills, etc.). If other permitted
operations are occurring on-site under a different permit number these must be discussed
as well. The impact of off-site permitted operations such as spray irrigation operations,
lagoons, CAFOs, and other non-discharge permitted operations must be included as well.
The variance request should also show the wastewater sewers lines, lift stations and other
wastewater treatment conveyances near the site. In reporting information on sources of
groundwater contamination at adjacent properties, please note the local tax identification
numbers or deed numbers for the properties where these sources are located. This
information can come from existing information in the Regional Office, the permit
application, the permitted facility, or other information sources that are currently
available. Existing reference information from GIS data may be included, if readily
accessible.
Created on 7/26/04 2:49 PM 12
DRAFT 15A NCAC 2L Variance Guidance Permits and Incident Variances
D.
properties. These items shall be discussed in the variance request narrative and they should
be submitted in appendices or attachments with the request.
Subparagraph # 4: "Supporting information to establish that the variance will not
endanger the public health, ad safety, ................ from exposure to groundwater
contaminants".
Required Information for # 4: The narrative for each of the sites shall discuss the
reasons why granting a variance will not impact health and the environment. Included in
this discussion shall be information showing that drinking water supplies would not be
impacted in or around th'e permitted operation. The vertical and horizontal dimensions of
substances within the land area proposed for variance must be delineated and described in
the variance request. The horizontal boundary of the compliance boundary shall also be
included in this discussion for reference. If a vertical boundary for the compliance
boundary is known to exist from permits monitoring or modeling efforts by the facilitie~
this should be discussed as well. / I d/ll'!_I. )
LL,7, .R>/} ,#KarcJ~
Groundwater monitoring data must demonstrate that substances are (1) not at
concentration levels that will adversely impact private and public drinking water wells
outside of area for variance; and (2) will not migrate to off site drieltmg wster supply wells
at concentration levels above applicable standards; 'oft.
If there are public water supply wells:
• within the proposed area of the variance;
• downgraidient from the property such that migrating substances may be impacted
by substances; or
• on the utilities property;
Then the following information is required:
The details of well construction including information on well depth, depth to water,
depth and type of casing, geologic information, lithologic information, well screen and
packing materials must be submitted. If concentrations of substances are above
Groundwater Quality Standards within the subsurface area of the well(s) or well field's
influence (i.e. "cone of depression", well drawdown, or other well pumping related
phenomenon) then available construction details must be submitted demonstrating that
granting the variance will not impact water quality.
If there are private water supplies, existing well construction records showing
construction details shall be provided to support the variance. Readily available
information on well depth, depth to water, depth of casing, geologic information, lithologic
information, well screen and packing materials shall be submitted in the variance. If
Created on 7/26/04 2:49 PM 15
DRAFT 15A NCAC 2L Variance Guidance Permits and Incident Variances
with appropriate designations. Note that impact to local wetlands should be included in the
assessment of surface water impacts since the Department considers these to be surface
waters.
The request shall also discuss the impact of granting a variance on sewer service
lines, building basements, telephone/cable television boxes; or other local utilities. These
types of structures may serve as a channel for contamination and the variance shall note
the depth of these utilities in relation to the depth of the substances and the expected
vertical and horizontal migration paths of these substances in groundwater.
Laboratory data to support the variance must show that the variance will not have
an adverse impact on health and the environment. With respect to any samples from
groundwater monitoring wells, surface water, drinking water wells, or soil sampling data
used to support this variance, laboratory information and sampling parameters must be
adequately assessed. The laboratory methods must be noted in the variance request for the
samples collected. If the permit specifies that certain metals, volatile organics, semi-volatile
organics, and other substances are in the waste stream and are under monitoring
requirements in the permit, the impact of these substances must be appropriately
evaluated. Concentrations of the substances, the direction they will migrate, the
groundwater wells they have been found in, and the impact they have on groundwater
must be evaluated. This information may need a review of the toxicological and health
impacts by the Division of Public Health.
Health impacts information must show trends of what is occurring in groundwater.
Data in a tabular format shall be provided depicting the media monitored, identification
number of the sampling site, substance and concentration. The concentration must be
shown in the table with the current Groundwater Quality Standard either listed in a
column or shown in a legend. The trend analysis is to show the behavior of substances
within the land area proposed for variance outside the compliance boundary. This analysis
shall also show what direction the concentrations are anticipated to go (that is increasing or
decreasing) as a result of the variance. Monitoring shall also demonstrate what is expected
to happen within the land area proposed for variance, if granted by the Commission. Risk-
based calculations or risk based levels for substances from previous guidance may be used
as comparisons as well, if these risk-based levels are established. Available permittee
monitoring data or special sampling data requested by the DWQ may be used to support
this request. If graphic information is available, this can be provided as well to support the
request. If any risk based concentrations are provided for comparison, these should also
be in the same units.
F&r analysis of substances that appear on a GW-59 Form the tabular format should
show the substances in these appropriate categories. The date the sample was taken and
analysis conducted should be shown in the table. The tabular data needs to clearly show if
the sample came from a monitoring well, recovery well, drinking water supply well, process
water supply well, or other type of well. The appropriate Groundwater Quality Standard
in 15A NCAC 2L .0202 or interim maximum allowable concentration should be shown in
the table for coinparison. It is optional to provide existing risk based calculations in a
separate column of the table to support the variance request. The well number and its
identifier as a certain type of well should be shown in the table (i.e. monitoring well,
recovery well, etc.). The concentration units for the substances in the table shall be in
milligrams per liter (mg/L) or in micrograms per liter (ug/L). Analytical methods used
Created on 7/26/04 2:49 PM 17
,DRAFT_ 15A NCAC 2L Variance Guidance Permits and Incident Variances
shall conform to the requirements of 15A NCAC 2L .0112 and other methods approved by
the Aquifer Protection Section. If there are other substances such as organics, semi-
volatiles, metals, non-metal inorganics, petroleum related substances and base/neutral
extractables for which monitoring requirements have been established in the permit, the
laboratory data will conform to the tabular format used for data collected for substances in
aGW-59.
If the variance has the potential to impact a surface water body, the analytical data
must be.shown in the same type of tabular format that is used for groundwater and/or soil
monitoring results. The tabular data must show the surface water sampling point from the
map submitted with the variance request and the substances found. The Surface Water
Quality Standard for substances found at the site or from other appropriate guidance must
also be shown in the table as well. Any additional notes may also be listed in the legend of
the table. The units for the concentration levels must correspond to what is required in 15A
NCAC 2B rules.
E. Subparagraph # 5: "Supporting information to establish the requirements of the Rule
cannot be achieved by providing the best available technology economically reasonable . .,
Required Information for # 5: The response must discuss the types of "best
available technology" applicable to an individual facility and the costs to comply with 15A
NCAC 2L .0107 and/or 15A NCAC 2L .0202. Information may be obtained from the
facility, industry sources, or other state agencies. Reports from local and/or state budgets,
memoranda from the permittee or other sources may be used to establish these estimates.
Cost estimates for use of a particular technology must be provided with a discussion of the
reasons why it is anticipated that use of that technology will be no more effective than
variance. The discussion of additional costs for the implementation of additional
treatment or cleanup technology shall be itemized as follows:
•
•
•
•
•
Capital costs for installation of new machinery, control technology,
treatment technology and construction;
Operation and maintenance of new technology;
Utility costs;
Personnel costs to operate the new technology, if applicable; and
Other secondary costs associated with the new technology (i.e. 11eedfor new
roads, purchase or rental of additio11al land; need for additional spray
fields/I.and farming,· and landscaping/grading of property).
Created on 7/26/04 2:49 PM 18
DRAFT 15A NCAC 2L Variance Guidance Permits and Incident Variances
..
well. If the facility or other party has conducted a well survey, this information may be
used as well. It is up to the judgment of the Aquifer Protection Section Regional
Supervisor if a survey submitted to support a varfance is complete, if any survey is
necessary, or if an additional survey should be required in order to meet requirements of
the rule.
(NOTE: The above is basic information is common to most variance
requests for permitted operations. The Division of Water Quality may
require the submittal of more information from the permittee or less
information based on the impact of substances outside of compliance
boundaries at the facilities and other site specific factors)
••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
Created on 7/26/04 2:49 PM 20
Summary of Comments from the DWQ Aquifer Protection
Section Staff on the Proposed
"Guidance on Information Required to Obtain a Variance
under Title 15A NCAC 2L .0202(c) (1-9)"
A. Proposed Edits and Changes to the Document:
1. The proposed adoption of title ISA NCAC 2T (Wastes Not Discharged to Surface Waters) and
the removal of some of the provisions of ISA NCAC 2H will allow some permittees to request
a more stringent compliance boundary. This revision may negate the need for variances to
compliance boundary requirements. (Debra Watts)
2. Many qualifiers are included in this guidance such as "preferred", "if possible", if available"
and "when possible". These should be deleted from the guidance. If it is not required in the
document, the Division will not likely get the information. (Jay Zimmerman).
3. The use of bullet lists in this guidance is appropriate. It gives staff a checklist to go by. Bullets
need to be used more consistently in the guidance document. (Jay Zimmerman).
4. The portion of the document concerning variances at permitted locations is repetitive with
respect to the section on variances at groundwater incident sites. The section on GW Incidents
can be referenced here where they are the same. Where they differ, that information can be
included in the section of the document governing variances at permitted sites. (Jay
Zimmerman)
5. The words "Subparagraph" should be replaced with the citation of the rule throughout the
document such as "15A NCAC 2L .Ol 13(c)(_)". (Jay Zimmerman)
6. Under Roman Numeral (l)(B) of the guidance, the bullets that discuss soil vapor recovery,
pump and treat cleanup, best available technology, and reasons that the variance should be
applied in lieu of a KLM Corrective Action Plan should be moved to Roman Numeral (l)(E)
that discusses supporting information to establish that the " ... requirements of the rule cannot
be achieved by providing the Best Available Technology economically reasonable ... ". (Jay
Zimmerman)
7. On page# 3 of the guidance under Roman Numeral (l)(B), the types of surface structures that
should be included in a site map are required in this rule and discussed here (i.e. buildings,
water supply lines, streams, wastewater treatment facilities, etc.). Utility conduits also need to
be included in this list. (Jay Zimmerman)
8. Going to page # 4 and continuing the discussion of the site map, one of the bullets discusses
the map that is to show "hydrogeologic contours" through the site. This map should also show
1
the maximum predicted extent plume of groundwater contamination in the future including its
horizontal and vertical dimensions.
9. On page # 5 at the top paragraph where it says "All maps must show all features 360
degrees ... " change this sentence to read as follows: "All maps must feature a le gend and
show all features 360 degrees ... ". (Jay Zimmerman)
10. In the same paragraph in the third sentence states; "If placing all the information requested on
one map would make the map difficult to read, you may use individual maps .... " Change the
work "may" to "must". (Jay Zimmerman)
11. On page # 5 and under Roman Numeral (I)(D) of the guidance document, the next to last
sentence of that discusses supporting information in the variance that shows that substances
migrating off site will not impact " ... off site water supply wells". Include with this surface
waters as well. (Jay Zimmerman)
12. Still on page# 5 under Roman Numeral (l)(D), at the end of the paragraph, a new sentence
needs to be inserted that states the following: "Must include narrative description of any
anticipated future movement of the plume and its potential for impacts". (Jay
Zimmerman)
13. The Subparagraph # 4 or 15A NCAC 2L .Ol 13(c)(4) section that discusses the information
submittal to establish that the variance will not endanger health and safety is a very long and
wordy narrative. It would be easier to read if this section was broken down into a bullet list and
would serve as a good checklist for staff. This is found on page # 5 of the guidance. (Jay
Zimmerman)
14. On page# 6 of the guidance under the narrative that discusses the requirements for 15A NCAC
2L .0113(c)(4), the paragraph at the top of the page discusses "cross sectional diagrams" that
show subsurface soils, subsurface materials and rock types. The guidance states that these
should be supplied " ... if they exist". Add to the end of the sentence the statement "or can be
created." (Jay Zimmerman)
15. Still on page# 6 in the third paragraph where it discusses the "Guidelines for the Investigation
and Remediation of Soil and Groundwater (July 2000)". Add to the end of that sentence the
following statement: "or the most currently available version of the soil guidance". In
addition, this statement also needs to be inserted in the second paragraph on page# 8. (Jay
Zimmerman)
16. On page # 9 under Roman Numeral (I)(E) that discusses supporting information to establish
that the requirements of the rule cannot be achieved with best available technology, the last
paragraph in this section has the word "preferred" in it. Change this word to "required". (Jay
Zimmerman)
2
17. On page # 9 under Roman Numeral (l)(F) that discusses supporting information to establish
that compliance would produce serious financial hardship on the applicant, the last sentence
under the required information states: "If possible, these costs should be ... ". Remove the
words "if possible" and start the sentence with the word "These costs should be ... " . (Jay
Zimmerman)
18. On page# 12 under Roman Numeral (Il)(B) there is bulleted item that asks for a description of
public water supply well impacted by a variance, if granted. Note that 15A NCAC 2L .0107(d)
specifies " ... no water supply well ... " is to be within a compliance boundary. Water supply
wells include residential, public, irrigation, and any other well used for water supply. (Jay
Zimmerman)
19. The document is very repetitive between section Roman Numeral I that discuses variance
requests for incidents and Roman Numeral II that discusses variance requests for permitted
sites. These documents need to be merged together and differences noted. (Andrew Pitner)
20. Under Roman Numeral (l)(B) on page # 1 and page # 2, the bulleted items that discuss the
groundwater incident number, county tax numbers, and deed numbers for property should go
under Roman Numeral (I)(C) on page# 3, where it discusses the description of the proposed
area for the variance and requested maps. (Andrew Pitner)
21. Under Roman Numeral (I)(B) on page# 2, bulleted items that discuss Soil Vapor Extraction,
pump and treat cleanup, Best Available Technology, and KLM Corrective Action Plans and/or
CAP implementation need to be placed under Roman Numeral (l)(E) starting on page # 8.
(Andrew Pitner)
22. Under Roman Numeral (l)(B) on page# 2, the guidance must require that the responsible party
clearly reference all the other reports that he is relying on to support the variance request
including Initial Site Assessments, Comprehensive Site Assessment, Corrective Action Plan or
other relevant reports. (Andrew Pitner)
23. Under Roman Numeral (l)(C) on page# 3, maps are a key way that the site is described and
there should be some narrative to accompany them. We might be able to borrow language from
the Comprehensive Site Assessment Guidance. (Andrew Pitner)
24. The guidance document should reference other guidance in existing reports and highlight the
points that are different with respect to a variance. An example is where the UST rules requires
the RPs conduct well surveys out to 1,500 feet whereas the 15A NCAC 2L .0113 variance
rules specify ½ mile. (Andrew Pitner)
3
B. Changes From the DWO Staff that May Need further Discussion and/or
Work to Finalized the Guidance:
1. In the second paragraph of the "preamble portion" of the first page, there is a sentence that
implies that if the information is submitted that staff would agree with the petitioner's
supporting information and thus agree that the conclusions drawn are correct. This may not
necessarily be so when the variance is actually reviewed. The phrase " ... the requirements of
the rule should be met" ... needs to be changed such that it makes this clear. (Jay
Zimmerman)
2. Roman Numeral (l)(E) is found on Page 8 of the guidance. This section discusses the
information submittal to establish that the requirements of the rule cannot be achieved by
providing the best available technology needs to include a reference to the technology, cost to
continue operation, and effectiveness of that technology. Poorly engineered and operation
cleanup systems may impact a variance. (Jay Zimmerman)
3. Roman Numeral (Il)(C) is found on Page 14 of the guidance and discusses the map that shows
the vertical extent of substances within the area of the proposed variance. This bulleted item
does not mention that fact that if there is a violation of standards " ... in groundwater
occurring in bedrock ... " the permittee is required to take action (such as cleanup, recovery, or
containment) unless they can demonstrate that the substances " ... will not adversely affect, or
have the potential to adversely affect a water supply well." The other exception is limestone
deposits found in Coastal Plain sediments. The guidance needs to be changed to reflect this
clearly for variance requests at non-discharge facilities. (Jay Zimmerman)
4. On Page# 15 under Roman Numeral (Il)(D), the paragraph discusses the vertical boundary for
a compliance boundary, monitoring and modeling efforts. That boundary needs to include a
discussion of where the plume is located in relation to the "top of the basement". (Jay
Zimmerman)
5. Roman Numeral (Il)(G) on Page 19 that discusses the information to establish that compliance
would produce a serious financial hardship on the applicant without equal or greater public
benefit. An explanation of available funding sources that have (or have not) been considered.
This may include but not be limited to state/federal grants, financing, tax revenue, etc. (Jay
Zimmerman)
25. Under Roman Numeral (l)(E) on Page# 8, it would be helpful to have a single example of a
specific situation that would involve the cleanup technology that is discussed in the variance
rather than discussing two different types of technologies. (Andrew Pitner)
4
26. Under Roman Numeral (I)(D) on Page # 5, can we used the requirement that specifies that
"Supporting infonnation to establish that the variance will not endanger the public health, and
safety .... " as a means of implementing institutional controls? A variance may not be readily
recognized as an institutional control if the property. changes hands. What kinds of things
should be included as institutional controls for variances? (Andrew Pitner)
27. Under Roman Numeral (I)(D) on Page# 5, there is no reference to potential vapor transport
issues from sites. That needs to be discussed in the guidance. (Andrew Pitner)
28. Per title 15A NCAC 2L .0113(c)(5), most variance requests specify natural remedial processes
be relied in lieu of Best Available Technology (BAT) as proof that the cleanup requirements of
Subchapter 2L cannot be met. In the past we have accepted qualitative site information,
groundwater time of travel calculations, and plume modeling data as scientific information
supporting that natural remedial and attenuation processes are at work at these sites. A variance
request from Rowan County is under review by DWQ and the APS in the Mooresville
Regional Office. As a part of the supporting data for this request, this variance included
monitoring data showing 'geochemical indicators' in monitoring wells as supporting
information for the variance. The variance package showed parameters such as pH, Oxidation-
Reduction Potential (ORP), Dissolved Oxygen, Nitrate, Ferrous Iron, Sulfate, and Methane
from groundwater well data along with standard organic analysis for substances that were
released. It would be appropriate to encourage variance applicants to include this information
and to provide this analysis with the required analysis for substances when they apply for a
variance. The supervisors need to discuss which circumstances under which this data would be
appropriate for incidents and for permitted facilities. (David Hance)
29. If new remediation technology is implemented as part of or as a condition of getting a variance
request approved, the supervisors need to discuss general guidance as to applicability of new
technologies to variances. Post activity monitoring requirements should also be addressed here
as well. A proposed variance in the Mooresville Regional Office (Kaiser Fluid Technology,
Incorporated) is a primary example of this. (David Hance)
30. The following comments related to tone of the document. Some parts of the first draft of this
guidance document require that the person petition for the variance submit some very specific
things. In Jay Zimmerman's comments, he has suggested language changes in certain parts of
the proposed guidance to strengthen the language such that staff will mandate the submittal of
the information. In February 2006, the Division of Water Quality Planning Section staff
participated in the Administrative Procedures Act Rulemaking Training. Among the items
discussed was some guidance as to what type of language constitutes a rule and what
constitutes guidance. The guidance received from this DENR training seminar-informed us
that "Nonbinding interpretive statements within the delegated authority of an agency that
merely define, interpret, or explain the meaning of a statute or a rule. " The guidance went on
to say that case law concerning the definition of a rule excludes policy documents " ... unless
they create a binding standard affecting the rights and duties of a person". Back in 1997
5
when the UST Risk Based Rules went to the Rules Review Commission, the staff wanted to
incorporate federal requirements in the guidance document and refer to it in the rule. The RRC
did not agree and required that the federal information, including a number of tables be place in
the rule since the guidance document implied a "binding standard" on responsible parties.
Since technical guidance is under development for variance requests and since most variances
involve site-specific information, it would be most appropriate to keep this in mind in the
language that is used in this document. The second version of this will reflect this guidance
especially with respect to the use of certain words like "May versus Must" and "Should versus
Shall". (David Hance)
6
P rocess to B egin and Complete a Variance
R equest under 15A N CA C 2L .0113
1. As required by 15A NCAC 2L .0113(b), the variance request is sent by the responsible
party or consultant to the Director of the Division of Water Quality and is addressed to
the Chairman of the Environmental Management Commission;
2. The Division of Water Quality places a log number on the req~est and sends copies to
the appropriate agency for technical review and review to meet the requirements of 15A
NCAC 2L .0113(d). If the variance has a Division of Waste Management -UST Section
Site Number, it will be sent to them. If it .has a Groundwater Incident Number, the
request will be sent to the Groundwater Section.
3. The appropriate Section will conduct technical review of the request and a review to
determine if the request meets all the requirements under 15A NCAC 2L .0113(c). The
UST Section may request comments from the Groundwater Section with respect to the
protection of groundwater quality and protection of water supplies. The Groundwater
Section may request comments from the UST Section if there is a UST present on the
site and information is needed about it's condition or status. Both Division staffs may
also request a risk assessment from the Division of Public Health for their respective
variance requests;
4. Upon completing the review under Number # 3, the variance request and
recommendation is sent to the Director of the Division of Water Quality to determine if
the variance is complete pursuant to 15A NCAC 2L .0113(d). A memoranda detailing
items 15A NCAC 2L .0113(c)(l-9) greatly expedites Director's review of the request;
5. Upon completing the Director's review as required in 15A NCAC 2L .0113(d), the
Director gives public notice of this variance pursuant to NCGS 143-215.4(b) and 15P.
NCAC 2L .0113(e). The Sectio:p. staff responsible for the . variance usually develops
these notices for the· public. Notice must be circulated at least thirty-days prior to public
hearing as specified in Subparagraph (1) of this rule;
6. The appropriate Section appoints a hearing officer from the Environmental Management
Commission or from its own staff outside of the Regional Office from which the
variance originated to preside over the hearing;
7. Hearing is held within the county where the release of substances has occurred. At this
hearing, oral statements and written comments are accepted at hearing by the hearing
officer. Appropriate staff from the Regional Office and Raleigh Central Office may
participate as support staff, as deemed necessary ·by management in the UST Section or
~e GW Section;
1
8. The hearing record remains open for thirty days after the hearing and all written
comments received during that time are made a part of the hearing record. The
Commission must consider these comments prior to taking final action on the variance
as required under 15A NCAC 2L .0l 13(f);
9. The hearing officer completes the review of the variance request and comments from the
public in accordance with a schedule determined by the appropriate section supervisor.
A hearing officers report is completed with a recommendation to approve or deny the
10.
11.
12.
13.
proposed variance; •
The variance request is placed on the Environmental Management Commission's (EMC)
Groundwater Committee Agenda at a regularly scheduled meeting for review. The
appropriate section submits a summary page that includes the agenda title, explanation,
and recommendation with the hearing officer's report and other supporting information
for the variance. The information is sent to the Groundwater Committee's support staff
in the Division of Water Quality Groundwater Section (David Hance{919-715-6189} );
Assuming that the EMC Groundwater Committee approves the variance request, it is
forwarded to the full Environmental Management Commission at the next regularly
scheduled meeting for consideration. The Commission normally requires a waiting
period of at least thirty days after the Groundwater Committee recommends approval;
The Division of Water Quality in Raleigh is contacted to place the proposed variance,
with the hearing officer's recommendation, on the Environmental Management
Commission agenda for the next regularly scheduled meeting. The appropriate section
staff contacts Jennie Odette at the Division of Water Quality (919-733-7015) to get this
item on the Commission's agenda. Supporting information for the variance request is
also sent to the Division for the Commissioners information packets;
Environmental Management Commission takes final action on the variance application
pursuant to the requirements of 15A NCAC 2L .0113(f) and 15A NCAC 2L .0l 13(g);
14. If the Commission's final decision is unacceptable to the applicant, he may file a
petition for a contested case with the Office of Administrative Hearings as specified
under 15A NCAC 2L .0113(h).
2
Re: Variances and Proposed Draft Variance Guidance Document If ...
2 of2 4/7/2005 5:34 PM
Re: Variances a11tf Proposed Draft Variance Guidance Document If...
(
2 of2
I have read 2L.0 113 that states what the applicant should send, how the person is to review it (to check
for completeness), but then it seems to me that 2L indicates that once the variance application is
complete, we go right into public hearing. Is that true or are we suppose to provide comments to the
Director first, especially if we don't agree.
Please advise. djw
David Hance wrote:
_To Aquifer Protection Section Supervisors and Program Leaders in the DWQ APS: _
On February 11th, I was informed that the DWQ-Aquifer Protection Section (APS) Supervisors
met last week for a regular quarterly meeting to discuss issues relevant to your operations.
It is my understanding that the Draft 2004 Variance Guidance Document for Variances under 15A
NCAC 2L .0113 was discussed by the APS Regional Supervisors and Parker Lincoln Staff at this
meeting.
You will recall that the draft variance guidance document had been sent out to APS Supervisors in
August 2004 with a request for comments. You will also recall that during the reorganization in the
late summer and fall, the highest work priority at the APS was addressing changes to the Section as a
result of dealing the DWQ Reorganization. I was told by my management at the time to cease work
on the Variance Document until those matters had been fully dealt with and until I was informed that
the APS staff was ready to address this issue again.
I have now been informed that the APS staff is ready to re-examine that document that I wrote on
7/26/04.
Attached is this document and the memorandum from Ted Bush that went out on August 4, 2004. All
of these documents are in word for windows.
I am again re-sending this to you with a request for comments and changes you think would be
appropriate. I have comments from two of the regional offices from that time. If you have comments
or additional comments, please get them to me. Once I have all of the comments then they will be
reviewed and all necessary changes will be addressed. Ifl need additional information or assistance,
APS staff will be contacted. I would prefer to get your comments to the document electronically as
an email attachment since these are more easily handed.
/*If possible, I would greatly appreciate getting comments back from you on the attachment on or
before 5 PM; Wednesday, March 23, 2005. */
David Hance
DWQ-Planning Section
Archdale Bldg. Room -625K
work phone: [phone] x. 587
Fax: [phone]
4/7/2005 5:35 PM
Re: Variances and Proposed Draft Variance Guidance Document/ f..
1 of2
Subject: Re: Variances and Proposed Draft Variance Guidance Document/ for APS Comment and discussion
From: David Hance <[e-mail]>
Date: Thu, 07 Apr 2005 17:33:06 -0400
To: Debra Watts <[e-mail]>
DW,
You should have a copy of the October 9, 2002 Information Packet for staff. If you don't have it let me know .
You got this a while back.
Generally, variances start in the regional offices for technical review. I oversee the work governing the
Director's "determination of completeness" before the Director sees anything. Central Office gets involved
upon request on a case by case basis.
I am still the "go to guy" on GW Variances for the Division of Water Quality.
I am tracking about 5 of them right now and two are in the MRO. Please Answer the following questions I
have:
• What variance request is this? What Company and who/what is the RP?
• What is the incident number?
• Who is the consultant?
• Where is this located (street and city)?
Let me know the answer to these questions first and then we can know what to do with it.
If this is a variance under the types of things DWQ handles (i.e. solvent spills, compliance boundaries, ASTs,
etc.) and there is no knowledge of this by me or MRO, safe to say is is a new one.
Note that if there is a UST incident number for this and the DWQ-APS/Regional Office has not accepted
responsibility for this variance .... then ..... it must go to the UST Section for processing.
This happened since the split. The Division of Water Quality Planning and APS no longer do UST variances.
If Grover's people get a variance request, they can go through the same process as we do in rule .0113 and use
their own staff for it. Because a Risk Based Rules this has not come up.
david hance
****************************************************************************************'
Debra Watts wrote:
David/Carl,
This email is _ not_ to comment on the attached document ( sorry). This is just to ask who processed 2L
variances when Groundwater was a Section? so that we can do something similar now. We have received
a 2L variance for a CAP in the MRO and I'm not sure if the CO reviews it? the Regions review it? or
both? and what happens to it after that?
4/7/2005 5:35 PM
DRAFT 15A NCAC 2L Variance Guidance Permits and Incident Variances
• A site map showing the dimensions and shape of land area proposed for variance.
The dimensions of this area may be shown in square feet or in acres of land;
• A site map showing hydrogeologic contours through the site and the area for which
variance is requested and adjacent properties included. Groundwater monitoring
".Vells, drinking water supply wells, observation wells, recovery wells, process water
supply wells, and other types of wells shall be located on this map. Buildings and
other land use features shall be shown as well. The land area for the proposed
variance needs to be noted on the map and the area where groundwater is known to
be contaminated should be shown as w~ll The map must show the direction of
groundwater flow through the site and th ugh the area _propose~ for ~ariance. ~c.&/
/1wfl~~lud$/~µ.a~ t:_ /1/.
• A site map showing groundwater monitoring wells with the most recent _kd✓ ~ a-e4· ~
concentration levels of substances found at the site; O /J. p~ ~ol-
• A s.it~ map showing w_ater well use ':ithin ½ mile of the site around the sit~-~,-? / j/-€,lj )
This mcludes both private and pubhc water supply wells; l._v' ·
• Site map(s) showing more details of utilities at the site. Wastewater treatment
systems, wastewater lines and water lines that run through the area of the variance
request must be located. This includes the areas where substances are expected to
migrate;
• A site map showing the location of properties immediately adjacent to the facility.
Please include ·the names of the property owners, addresses, and deed numbers of
these properties on the map, if possible;
• A map showing the horizontal boundaries of the area proposed for variance must be
submitted. r',~.Atf,,b,
~-v i>IL-
• A map showing the vertical extent of substances within the .9rea of the proposed
variance may be used to support the variance request., if a vaa'1:>te. If the responsible
party has conducted modeling or other types of investigative work associated with a
.cleanup of this site or as a part of a CSA/CAP under 15A NCAC 2L .0106, this
information may be provided to support a variance request. The scale of this
diagram will be shown and it will show the dimensions area proposed for variance.
If the information on the vertical extent of substances beneath the site does not exist
or is inadequate to show the extent of substances, it is up to the discretion of the
Division to require this information.
• Any other important site specific map or feature that the person requesting the
variance and/or the regional office deems necessary for the Commission to
adequately review the variance request.
Created on 7/26/04 2:49 PM 4
DRAFT 15A NCAC 2L Variance Guidance Permits and Incident Variances
packing materials, grouting, shall be submitted in the variance. If feasible, simple
groundwater modeling may be conducted to show that the variance will not impact health.
Cross sectional diagrams showing well construction of both private and public
jO,( water supply wells with local subsurface soils, materials and rock types shall be submitted,
C ~r'J_;..------i f'tlfey--exis\, This will assist in making the determination that substances will not impact or
all pJ migrate su'ch that Groundwater Quality Standards will be exceeded outside the area r/' c{/ propose~ for variance. If there is groundwater quality monitoring data from recovery wells
or other types of wells that will assist in determining if a variance shall be granted, this
data with the well identification information and laboratory results will also need to be
submitted. If the responsible party has conducted groundwater modeling, this may be used
as well. Water supply wells and other wells at the site should be noted and shown on a
scaled map or diagram. It is at the discretion of the Regional Office as to the efficacy of · j
modeling for a particular variance request. \j
If there are site-specific features that mitigate the impacts of substances at the site 1·
these details need to be discussed in the request. Information such as well construction
details, subsurface soils and rock types, hydrogeology, the occurrence of natural
remediation or attenuation of substances within the area of the variance must be submitted ~
to support the variance request and to allow substances to remain in place without ~
treatment or remediation. i
If there are soils impacted by substances within the proposed area of the variance, j ·
the location of these soils and concentration levels shall be noted. If soils at the site have
been deemed a "secondary pollution source" under 15A NCAC 2L .0106 (f) and threaten J\1'
the quality of groundwater, these soils must be removed, treated or controlled pursuant to
the rule. Soils-to-groundwater risk based levels may be used as a comparison to determine
if substances in soils will not impact groundwater quality outside of the land area proposed
for variance and/or off site wells and receptors. The assessment of impact of contaminated 'i
soils includes surface soils, deep soils, and unconsolidated materials within the area y
proposed for variance. If site information reveals that substances located in this area will '91
degrade or attenuate such that there are no impacts to groundwater and drinking wate7 f
supplies, this information must be provided to support the request. If cleanup activi ies
have been conducted on contaminated soils, the information submitted must shm the
remediation activities met the requirements of the "Guider nvestioation and
Remediation of Soil and Groundwater Jul 2000 " no action has occurred at the site
with respect to remediation or removal of contam· ated soils, the responsible party must
demonstrate that residual levels of substances in the soils and subsurface materials will not
impact human health or degrade groundwater quality outside of the land area proposed
for variance.
If the responsible party(s) intends to conduct other activities to reduce the
infiltration of rainwater into soils and groundwater, such as capping the sites with concrete
or asphalt, this action needs to be noted in the variance request. Maps and cross sectional
diagrams of soil sampling points should be included in the attachments to the request.
The variance request must demonstrate that granting the variance will not impact
surface waters. This demonstration must show that the variance will not (1) pose a health
hazard or significantly degrade the quality of surface water supplies used for drinking; and
(2) pose health or environmental hazards with other "best uses" of surface waters (i.e.
drinking water supply, recreation, bathing, swimming, fishing, etc.). Documentation
Created on 7/26/04 2:49 PM 6
DRAFT 15A NCAC 2L Variance Guidance Pennits and Incident Variances
submitted must demonstrate that Surface Water Quality Standards in 15A NCAC 2B or
other guidance levels used by the DWQ will not be exceeded for the classification of surface
water bodies around the site. Surface water monitoring data must be included to support
the variance request. Note that impact to local wetlands should be included in the
assessment of surface water impacts since the Department considers these to be surface
waters.
The request shall also discuss the impact of granting a variance on sewer service
lines, ·butlding basements, telephone/cable television boxes, or other local utilities. These
types of structures may serve as a channel for contamination and the variance shall note
the depth of these utilities in relation to the depth of the substances and the expected
vertical and horizontal migration paths of these substances in groundwater. If there are
improperly abandoned wells at or near the site, the impacts of the variance on this type of
excavation needs to be discussed and, if there are impacts, efforts to mitigate these types of
wells need to discussed in the request
Laboratory data to support the variance must show that the variance will not have
an adverse impact on health and the environment. With respect to any samples from
groundwater monitoring wells, surface water, drinking water wells, or soil sampling data
used to support this variance, laboratory information and sampling parameters must be
adequately assessed. The laboratory methods must be noted in the variance request for the
samples collected. Concentrations of the substances, the direction they will migrate, the
groundwater wells they have been found in, and the impact they have on groundwater
must be evaluated. This information may need a review of the toxicological and health
impacts by the Division of Public Health.
Health impacts information must show trends of what is occurring in groundwater.
Data in a tabular format shall be provided depicting the media monitored, identification
number of the sampling site, substance and concentration. The concentration of the
substances that are found using that particular analytical method must be shown in the
table with the current Groundwater Quality Standard either listed in a column or shown in
a legend. The trend analysis is to show the behavior of substances within the land area
proposed for variance and may be shown on line or bar graphs in an appendix. This
analysis shall also show what direction the concentrations are anticipated to go (that is,
concentrations increasing or decreasing) as a result of the variance. Monitoring shall also
demonstrate what is expected to happen within the land area proposed for variance, if
granted by the Commission. Risk-based calculations or risk based levels for substances
from previous guidance may be used as comparisons as well, if these risk-based levels are
established. Available permittee monitoring data or special sampling data requested by the
Division of Water Quality may be used to support this request. If graphic information is
available, this can be provided as well to support the request. If any risk based
concentrations are provided for comparison, these should also be in the same units.
For analysis of organics, semi-volatiles, metals, non-metal inorganics, petroleum
related substances and base/neutral extractables, the tabular format should show the
substances in these appropriate categories. The date the sample was taken and analysis
conducted should be shown in the table. The tabular data needs to clearly show if the
sample came from a monitoring well, recovery well, drinking water supply well, process
water supply well, or other type of well. The appropriate Groundwater Quality Standard
in 15A NCAC 2L .0202 or interim maximum allowable concentration should be shown in
Created on 7/26/04 2:49 PM 7
DRAFT 15A NCAC 2L Variance Guidance Permits and Incident Variances
discussion of additional costs for the implementation of cleanup technology shall be
itemized as follows:
• Capital costs for installation of new construction, machinery, control technology,
remediation technology, recovery wells, and other types of wells;
• Operation and maintenance of new technology;
• Utility costs;
• Personnel costs to operate the new technology, if applicable; and
• Other secondary costs associated with the new technology (i.e. costs to asphalt or
cover the site, cost for new roads or relocated roads or driveways, cost for removal of
buildings or other site structures, purchase or rental of additional land; landscaping/
grading of property, the cost for additional spray fields/I.and farming (permits only);
etc).
r~_,,.,;.J~
The time frame for these costs must be noted as well and it isefe1 red that the
information be provided as a cost in dollars per year. A total cost for each alternative
technology needs to be noted in this response.
F. Subparagraph # 6: "Supporting information to establish that compliance would produce
serious financial hardship on the applicant. "
Required Information for # 6: The variance request must specify the type of
financial hardship the applicant will undergo and the effects of complying with 15A NCAC
2L .01060) and/or 15A NCA.C 2L .0202. Effects on facility including operations, proposed
expansion, employment, and other impacts may be noted. ff ponible,1Iiese costs should be
quantified. ~
G. Subparagraph # 7: "Supporting information to establish that compliance would produce
serious financial hardship without equal or greater public benefit. "
Required Information for # 7: The variance request must specify the financial
hardship of meeting lSA NCAC 2L .01060) and/or lSA NCAC 2L .0202 in the context of
lack of any public benefit. A discussion of local economic, financial, and employment
conditions in the local jurisdiction may be included. If there are potential costs and budget
impacts to the company, proprietor, and/or owner by not granting a variance, these shall
be discussed in detail.
Created on 7/26/04 2:49 PM 9
DRAFT_ 15A NCAC 2L Variance Guidance Permits and Incident Variances
H. Sub parag ra ph # 8: A co py of an y Special Order that was issued in connection with
contaminants in the pro posed area and supp orting in fo rmation that the app licant has
com plied with the s pecial order.
Required Information for# 8: The rule is self-explanatory.
I. ·Sub parag ra ph # 9: A list o(the names o fp ro perty owners ...... ".
Required Information for # 9: Include the deed number and/or local tax
identification number for . each property within the area proposed for variance, adjacent
property and other impacted properties. The names and mailing addresses of these owners
must be included. If the property is a rental property, please include the name and address
of the current resident, if local records reveal this. This is to include all residential,
industrial and commercial properties immediately around the site. The names, addresses,
and deed numbers for well owners within ½ mile of the site must also be included. In
addition, contact persons for utilities (i.e. NCDOT, railroads, and other utilities) that
traverse the area of the variance or are downgraidient from the facility must be · notified as
well. If the facility or consultant has conducted a well survey, this information may be used
as well. It is up to the judgment of the Aquifer Protection Section Regional Supervisor if a
survey submitted to support a variance is complete, if any survey is necessary, or if an
additional survey should be required in order to meet requirements of the rule.
{NOTE: The above is basic information is common to most variance
requests where spills and releases have resulted or may result in
exceedences of 15A NCAC 2L . 0202 standards in groundwater. The
Division of Water Quality may require the submittal of more
information from the responsible partr or less information based on
the impact of substances at the site and other site specific factors)
••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
Created on 7/26/04 2:49 PM 10
DRAFT_ ISA NCAC 2L Variance Guidance Permits and Incident Variances
• the amount of acreage for the land area proposed for variance;
• the history of the permitted site;
• the reasons for the permit;
• the description and land area of the permitted boundaries under 15A NCAC 2L (i.e.
waste, review and compliance);
• the conditions at the site that will result or have resulted in a exceedence of
Groundwater Quality Standards in title 15A NCAC 2L .0202 within the area
proposed for variance;
• the activities and circumstances outside the compliance boundary that require land
be designated as under variance by the Environmental Management Commission;
• a revised compliance boundary if the variance request specifies that this will change
as a result of granting the variance; , • D ,IA''
W,!) tv ,:V-" ,/)~ a,Jl)P""'
0 11'1 ttfl ,tw[(iµI qµfr
• a description of a ~ter supply well impacted by the variance !f the operation
of that existing well is in violation of 15A NCAC 2L .0107( d)Jtnd . ~{JI
• any other land use features unique to these facilities. _t,I)~)"~ ~:~lfc
(:t.. ~1 a. 1 r~ v,.;-e,u .,c: o-1. ~, Ac>fl''i w:
Also include a brief discussion of the interactions between the permittee and the
Aquifer Protection Section with regard the need for variance. In addition to information
about the .site, the variance request must include information on other known sources of
contamination that may impact the land area of the proposed variance at the permitted
operation. This may include other on-site and off-site sources of groundwater
contami!!ation (such as leaking UST tanks, solvent spills, etc.). If other permitted
operations are occurring on-site under a different permit number these must be discussed
as well. The impact of off-site permitted operations such as spray irrigation operations,
lagoons, CAFOs, and other non-discharge permitted operations must be included as well.
The variance request should also show the wastewater sewers lines, lift stations and other
wastewater treatment conveyances near the site. In reporting information on sources of
groundwater contamination at adjacent properties, please note the local tax identification
numbers or deed numbers for the properties where these sources are located. This
information can come from existing information in the Regional Office, the permit
application, the permitted facility, or other information sources that are currently
available. Existing reference information from GIS data may be included, if readily
accessible.
Created on 7 /26/04 2:49 PM 12
DRAFT 15A NCAC 2L Variance Guidance Permits and Incident Variances
D.
properties. These items shall be discussed in the variance request narrative and they should
be submitted in appendices or attachments with the request.
Subp arag ra ph # 4: "Supporting information to establish that the variance will not
endanger the public health, ad safety, ................ from exposure to groundwater
contaminants".
Required Information for # 4: The narrative for each of the sites shall discuss the
reasons why granting a variance will not impact health and the environment. Included in
this discussion shall be i~formation showing that drinking water supplies would not be
impacted in or around the permitted operation. The vertical and horizontal dimensions of
substances within the land area proposed for variance must be delineated and described in
the variance request. The horizontal boundary of the compliance boundary shall also be
included in this discussion for reference. If a vertical boundary for the compliance
boundary is known to exist from permits monitoring or modeling efforts by the faciliti~
this should be discussed as well. / / o/Ji'-/ . 1 )
L~•'j• ,Q>/'} ~n:,~
Groundwater monitoring data must demonstrate that substances are (1) not at
concentration levels that will adversely impact private and public drinking water wells
outside of area for variance; and (2) will not migrate to off site drialtie.g water supply wells
at concentration levels above applicable standards; 'o fiC.
If there are public water supply wells:
• within the proposed area of the variance;
• downgraidient from the property such that migrating substances may be impacted
by substances; or
• on the utilities property;
Then the following information is required:
The details of well construction including information on well depth, depth to water,
depth and type of casing, geologic information, lithologic information, well screen and
packing materials must be submitted. If concentrations of substances are above
Groundwater Quality Standards within the subsurface area of the well(s) or well field's
influence (i.e. "cone of depression", well drawdown, or other well pumping related
phenomenon) then available construction details must be submitted demonstrating that
granting the variance will not impact water quality.
If there are private water supplies, existing well construction records showing
construction details shall be provided to support the variance. Readily available
information on well depth, depth to water, depth of casing, geologic information, lithologic
information, well screen and packing materials shall be submitted in the variance. If
Created on 7/26/04 2:49 PM 15
DRAFT ISA NCAC 2L Variance Guidance Permits and Incident Variances
with appropriate designations. Note that impact to local wetlands should be included in the
assessment of surface water impacts since the Department considers these to be surface
waters.
The request shall also discuss the impact of granting a variance on sewer service
lines, building basements, telephone/cable television boxes, or other local utilities. These
types of structures may serve as a channel for contamination and the variance shall note
the depth of these utilities in relation to the depth of the substances and the expected
vertical and horizontal migration paths of these substances in groundwater.
Laboratory data to support the variance must show that the variance will not have
an adverse impact on health and the environment. With respect to any samples from
groundwater monitoring wells, surface water, drinking water wells, or soil sampling data
used to support this variance, laboratory information and sampling parameters must be
adequately assessed. The laboratory methods must be noted in the variance request for the
samples collected. If the permit specifies that certain metals, volatile organics, semi-volatile
organics, and other substances are in the waste stream and are under monitoring
requirements in the permit, the impact of these substances must be appropriately
evaluated. Concentrations of the substances, the direction they will migrate, the
groundwater wells they have been found in, and the impact they have on groundwater
must be evaluated. This information may need a review of the toxicological and health
impacts by the Division of Public Health.
Health impacts information must show trends of what is occurring in groundwater.
Data in a tabular format shall be provided depicting the media monitored, identification
number of the sampling site, substance and concentration. The concentration must be
shown in the table with the current Groundwater Quality Standard either listed in a
column or shown in a legend. The trend analysis is to show the behavior of substances
within the land area proposed for variance outside the compliance boundary. This analysis
shall also show what direction the concentrations are anticipated to go (that is increasing or
decreasing) as a result of the variance. Monitoring shall also demonstrate what is expected
to happen within the land area proposed for variance, if granted by the Commission. Risk-
based calculations or risk based levels for substances from previous guidance may be used
as comparisons as well, if these risk-based levels are established. Available permittee
monitoring data or special sampling data requested by the DWQ may be used to support
this request. If graphic information is available, this can be provided as well to support the
request. If any risk based concentrations are provided for comparison, these should also
be in the same units.
For analysis of substances that appear on a GW-59 Form the tabular format should
show the substances in these appropriate categories. The date the sample was taken and
analysis conducted should be shown in the table. The tabular data needs to clearly show if
the sample came from a monitoring well, recovery well, drinking water supply well, process
water supply well, or other type of well. The appropriate Groundwater Quality Standard
in 15A NCAC 2L .0202 or interim maximum allowable concentration should be shown in
the table for comparison. It is optional to provide existing risk based calculations in a
separate column of the table to support the variance request. The well number and its
identifier as a certain type of well should be shown in the table (i.e. monitoring well,
recovery well, etc.). The concentration units for the substances in the table shall be in
milligrams per liter (mg/L) or in micrograms per liter (ug/L). Analytical methods used
Created on 7 /26/04 2 :49 PM 17
DRAFT_ 15A NCAC 2L Variance Guidance Permits and Incident Variances
well. If the facility or other party has conducted a well survey, this information may be
used as well. It is up to the judgment of the Aquifer Protection Section Regional
Supervisor if a survey submitted to support a variance is complete, if any survey is
necess?ry, or if an additional survey should be required in order to meet requirements of
the rule.
(NOTE: The · above is basic information is common to most variance
requests for permitted operations. The Division of Water Quality may
require the submittal of more information from the permittee or less
information based on the impact of substances outside of compliance
boundaries at the facilities and other site specific factors)
••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
Created on 7 /26/04 2 :49 PM 20
re: Variances and Proposed Draft Variance Guidance Document I fo ...
. ')
I of2
Subject: re: Variances and Proposed Draft Variance Guidance Document / for APS Comment and
discussion
From: David Hance <[e-mail]>
Date: Mon, 14 Feb 2005 12:18:13 -0500
To: Andrew Pitner <[e-mail]>, Betty Wilcox <[e-mail]>,
[e-mail], [e-mail], [e-mail],
[e-mail], [e-mail], [e-mail], Ted Bush
<[e-mail]>, Debra Watts <[e-mail]>, Kim Colson
<[e-mail]>
CC: Jeff Manning <j [e-mail]>
To A quifer Protection Section Sup ervisors and Pro gram Leaders in the DWQ APS:
On February 11th, I was informed that the DWQ-Aquifer Protection Section (APS) Supervisors met
last week for a regular quarterly meeting to discuss issues relevant to your operations.
It is my understanding that the Draft 2004 Variance Guidance Document for Variances under 15A
NCAC 2L .0113 was discussed by the APS Regional Supervisors and Parker Lincoln Staff at this
meeting.
You will recall that the draft variance guidance document had been sent out to APS Supervisors in
August 2004 with a request for comments. You will also recall that during the reorganization in the
late summer and fall, the highest work priority at the APS was addressing changes to the Section as a
result of dealing the DWQ Reorganization. I was told by my management at the time to cease work
on the Variance Document until those matters had been fully dealt with and until I was informed that
the APS staff was ready to address this issue again.
I have now been informed that the APS staff is ready to re-examine that document that I wrote on
7/26/04.
Attached is this document and the memorandum from Ted Bush that went out on August 4, 2004. All
of these documents are in word for windows.
I am again re-sending this to you with a request for comments and changes you think would be
appropriate. I have comments from two of the regional offices from that time. If you have comments
or additional comments, please get them to me. Once I have all of the comments then they will be
reviewed and all necessary changes will be addressed. If I need additional information or assistance,
APS staff will be contacted. I would prefer to get your comments to the document electronically as an
email attachment since these are more easily handed.
If possible, I would greatly appreciate getting comments back from you on the attachment on or
before 5 PM; Wednesday, March 23, 2005.
David Hance
DWQ-Planning Section
Archdale Bldg. Room -625K
2/14/2005 12:19 PM
re: Variances and Proposed Draft Variance Guidance Document I fo ...
2 of2
.,. • )>.
work phone: [phone] x. 587
Fax:[phone]
Content-Type: application/msword
V3-guidanceforVariancesinNC.doc Content-Encoding: base64
" .. ·-·----. •· ... i --·· -· .. -.... ·············::j······-. ····•··.
ll
Content-Type: application/msword
IettoROsReqcomment-Guidance.doc . b 6 Content-Encoding: ase 4
----------............. •'••. ,,,.,, ····· --··· ... "' -··-··----......:_ ·---.•. ·-... .
2/14/2005 12:19 PM
Re: Regarding: Variance Guidance Document/the Aquifer Protection ...
1 ofl
Subject: Re: Regarding: Variance Guidance Document/the Aquifer Protection Section (Groundwater)
Supervisors Meeting you just attended/Question?
From: Carl Bailey <[e-mail]>
Date: Mon, 13 Sep 2004 10:54:22 -0400
To: David Hance <[e-mail]>
David,
I think you should wait.
Carl
David Hance wrote:
Carl:
How about if I check with them in January 2005 on this?
Should I get the changes I have from Jay and Andrew in a second version or should I
wait?
dh
***************************************************************************************
Car.l Bailey wrote:
At this point David, we can consider this work to be on hold. The supervisors liked
the effort so far, but they are somewhat busy with other critical reorg things , so
it may take some time before they can make this guidance document a priority.
e a r l
David Hance wrote:
Carl,
You will recall that I have a Variance Guidance Document out in the Regions. You
remember that you were going to bring this item up at the APS Supervisors Meeting
that they just held in the Asheville Region.
Question: */Will I be getting any more comments from the Supervisors or Staff on
this document? /*You will recall that I have Jay's input and also Andrew's but
nobody else. Only 2 of 7 regions and no Central Office comments.
Please let me know.
david hance
9/13/2004 11:19 AM
Regarding: Variance Guidance Document/the Aquifer Protection Secti ...
1 of 1
Subject: Regarding: Variance Guidance Document/the Aquifer Protection Section (Groundwater)
Supervisors Meeting you just attended/Question?
From: David Hance <[e-mail]>
Date: Fri, 10 Sep 2004 13:06:37 -0400
To: Carl Bailey <[e-mail]>
CC: Boyd Devane <[e-mail]>
Carl,
You will recall that I have a Variance Guidance Document out in the Regions. You remember that you
were going to bring this item up at the APS Supervisors Meeting that they just held in the Asheville
Region.
Question: Will I be getting any more comments from the Supervisors or Staff on this document? You
will recall that I have Jay's input and also Andrew's but nobody else. Only 2 of 7 regions and no Central
Office comments.
Please let me know.
david hance
9/10/2004 1:06 PM
Groundwater Related Issue: The GW or Aquifer Protection Section( ...
1 of 1
Subject: Groundwater Related Issue: The GW or Aquifer Protection Section (APS) Supervisors Meeting
you are going to Next Week/ Variances/ questions on the New Draft Variance Guidance/Comments on
this
From: David Hance <[e-mail]>
Date: Thu, 26 Aug 2004 15:43:54 -0400
To: Carl Bailey <[e-mail]>
CC: Boyd Devane <[e-mail]>
You will recall that on August 4, 2004, Ted Bush has sent a memorandum out to the GW Supervisors
concerning the Draft Variance Guidance document. This is the Draft document I constructed to give the
staff more guidance on developing the information required for variances under 15A NCAC 2L .0113.
We did this to improve the Variance process and help regional staff know what to do. It may even get the
RPs and permittees to use the variance process more. We sent this out for comment to the RO staff and
CO staff that work with permits and with gw incidents.
Comments were due from the APS RO Supervisors, Debra Watts at the DWQ/APS/GPU, and Kim
Colson on August 18th.
I have only received comments from Andrew Pitner and Jay Zimmerman thus far. That is 2 of the 7
regions. No comments came from the Central Office APS in the PL Building.
Am I going to get any more? I would like all of them at once so I can get the next draft done.
That leads me to another question ..... Andrew's comments in his email he sent me looked like he talking
about examining the variance process in light of a more detailed approach. He seemed to want to steer
this document such that it has more precise and extensive hydrogeology in it. Sounds like he wants the
Variance Document to the direction of a "Soils Remediation Guidance document". I think this would be
great and get at the goal of making it easier to know the information required for a variance.
But ..... If that is the case---should not the Regional Staff supervisors and/or hydros take a closer
look at this from their area of science before this document is finalized? Is an D WQ-APS workgroup
needed?
You recall that you informed me that you would be attending the APS Supervisors Meeting in the
Asheville Region as a part of the "Transition" and intend to bring this item up to the Staff that is going to
be there.
Let me know how the discussion went at the APS Supervisors Meeting. If you wish to share this email
with the APS supervisors --before the APS Supervisors Meeting , please feel free to do so.
dh
8/26/2004 3:44 PM
variance guidelines -first cut comments
1 of2
Subject: variance guidelines -first cut comments
Date: Thu, 12 Aug 2004 16:45:29 -0400
From: Andrew Pitner <[e-mail]>
To: david hance <[e-mail]>
David,
I'm providing my first impression comments on the variance guidance.
I've started circulating it among MRO staff involved in related program
areas, but I don't know if it will make the full circle in the time you
had hoped to get comments back. As soon as I get the rest of their
comments I will let you know what they are. As always, these comments
are offered in the spirit of being constructive.
First off, I think it's a great idea to get something like this together
as we've been facing an increasing number of calls and inquiries about
the variance process. I often try to answer some of their basic
questions and refer them to you for more details, which, of course, may
be why you've generated this. Potentially, the variance process could
help solve some of the problems faced by the innumerable incidents that
have occurred that don't pose a significant threat to groundwater users.
In terms of the structure of the document (1 section for incidents and 1
for permits), it would be better to merge the two together and point out
any differences between the two in the subsections where the differences
might be significant. Right now, it seems very repetitive. Also, in
terms of document structure, this effectively reads like a laundry list
of the items that people need to submit -the list is a great start, but
I think the guidance ought to provide more clear background/introduction
and define what we interpret as the intent or spirit of the requirements
before presenting a list of things that we think meets that
interpretation.
In terms of some specifics, under #2 several bulleted points probably
belong under a different section number. 1st & 2nd bullets would seem
to be more appropriate for #3; the last two bullets on page 2 would seem
to be part of #5. The bullets in the middle of page 2 describing SVE
and pump & treat, also are probably better placed into #5, but I would
question why we need to be specific to these technologies in this
instance. To me, the idea of guidance would be to present the process
to people that they would apply to their specific situation (which could
certainly be SVE/P&T/or anything else). I would suggest that it might
be appropriate to use a single example such as pump & treat to
demonstrate the kinds of information we are looking for rather than
calling out specifics on two technologies. Also, under section #2,
there should be reference to the kinds of documents that, presumably,
the RP has already prepared (i.e. ISA/CSA/CAP) that contain much of the
site's descriptive information. This guidance might be able to
reference our other guidance on these kinds of reports and simply
highlight the points that are unique to variance rules (i.e. 1/2 mile
well survey vs. 1500' for CSA).
Under #3, while maps are certainly a key way that the site is described,
there should also be some narrative to accompany them, and again, you
might be able to borrow much of the language from CSA guidance.
Under #4, one question that I have is can we use this requirement not to
endanger health/safety as a means to require institutional controls such
as deed recordation and others (effectively a variance is a form of
institutional control, but it may not be readily recognized should the
property change hands). If that's the case, we probably need to have a
much wider discussion of what kinds of things we'd like to do along
these lines. Also under #4, there's no reference to potential vapor
transport issues.
That's about all I've got right now. I'll let you know when I get more
and I'll look forward to the next version and hopefully some discussion
of this topic at the next supervisor's meeting.
8/12/04 5:21 PM
variance guidelines -first cut comments
2 of2
Andrew
• Andrew Pitner, P.G. -Andrew [e-mail]
Regional Supervisor
Aquifer Protection Section
.North Carolina Dept. of Environment & Natural Resources
919 North Main Street
Mooresville, NC 28115
Ph: [phone] Fax: [phone]
Website: http ://mro.enr.state.nc.us /g w/
8/12/04 5:21 PM
variance guidelines -first cut comments
1 of2
Subject: variance guidelines -first cut comments
Date: Thu, 12 Aug 2004 16:45:29 -0400
From: Andrew Pitner <[e-mail]>
To: david hance <[e-mail]>
David,
I'm providing my first impression comments on the variance guidance.
I've started circulating it among MRO staff involved in related program
areas, but I don't know if it will make the full circle in the time you
had hoped to get comments back. As soon as I get the rest of their
comments I will let you know what they are. As always, these comments
.are offered in the spirit of being constructive.
First off, I think it's a great idea to get something like this together
as we've been facing an increasing number of calls and inquiries about
the variance process. I often try to answer some of their basic
questions and refer them to you for more details, which, of course, may
be why you've generated this. Potentially, the variance process could
help solve some of the problems faced by the innumerable incidents that
have occurred that don't pose a significant threat to groundwater users.
In terms of the structure of the document (1 section for incidents and 1
for permits), it would be better to merge the two together and point out
any differences between the two in the subsections where the differences
might be significant. Right now, it seems very repetitive. Also, in
terms of document structure, this effectively reads like a laundry list
of the items that people need to submit -the list is a great start, but
I think the guidance ought to provide more clear background/introduction
and define what we interpret as the intent or spirit of the requirements
before presenting a list of things that we think meets that
interpretation.
In terms of some specifics, under #2 several bulleted points probably
belong under a different section number. 1st & 2nd bullets would seem
to be more appropriate for #3; the last two bullets on page 2 would seem
to be part of #5. The bullets in the middle of page 2 describing SVE
and pump & treat, also are probably better placed into #5, but I would
question why we need to be specific to these technologies in this
instance. To me, the idea of guidance would be to present the process
to people that they would apply to their specific situation (which could
certainly be SVE/P&T/or anything else). I would suggest that it might
be appropriate to use a single example such as pump & treat to
demonstrate the kinds of information we are looking for rather than
calling out specifics on two technologies. Also, under section #2,
there should be reference to the kinds of documents that, presumably,
the RP has already prepared (i.e. ISA/CSA/CAP) that contain much of the
site's descriptive information. This guidance might be able to
reference our other guidance on these kinds of reports and simply
highlight the points that are unique to variance rules (i.e. 1/2 mile
well survey vs. 1500' for CSA).
Under #3, while maps are certainly a key way that the site is described,
there should also be some narrative to accompany them, and again, you
might be able to borrow much of the language from CSA guidance.
Under #4, one question that I have is can we use this requirement not to
endanger health/safety as a means to require institutional controls such
as deed recordation and others (effectively a variance is a form of
institutional control, but it may not be readily recognized should the
property change hands). If that's the case, we probably need to have a
much wider discussion of what kinds of things we'd like to do along
these lines. Also under #4, there's no reference to potential vapor
transport issues.
That's about all I've got right now. I'll let you know when I get more
and I'll look forward to the next version and hopefully some discussion
of this topic at the next supervisor's meeting.
8/12/04 5:32 PM
variance guidelines -first cut comments
2 of2
Andrew
Andrew Pitner, P.G. [e-mail]
Regional Supervisor
Aquifer Protection Section
.North Carolina Dept. of Environment & Natural Resources
919 North Main Street
Mooresville, NC 28115
Ph: [phone] Fax: [phone]
Website: htt p ://mro.enr.state.nc .us /g w/
8/12/04 5:32 PM