Exemptions

The Department may, upon receipt of an application, exempt any public water system from any maximum contaminant level prescribed in 310 CMR 22.06 through 22.09A, or from any prescribed treatment technique, or from both, but only subject to the following conditions: 22.14: continued (1) The Department shall not grant any exemption unless the Department finds all of the following: (a) Due to compelling factors, which may include economic factors, the public water system is unable to comply with the maximum contaminant level requirement or the treatment technique requirement; or to implement measures to develop an alternative source of water supply; (b) The public water system was in operation on the effective date of such maximum contaminant level requirement or treatment technique requirement; or for a public water system that was not in operation by that date, no reasonable alternative source of drinking water is available to such new public water system; (c) The granting of the exemption will not result in an unreasonable risk to health. The Department shall make this finding in consultation with the Massachusetts Department of Public Health; and (d) Management or restructuring changes (or both) cannot reasonably be made that: 1. will result in compliance with 310 CMR 22.00, taking into consideration the circumstances specified in 40 C.F.R. 142.20(b)(1)(i) (effective September 14, 1998), incorporated by reference); or 2. if compliance cannot be achieved, will improve the quality of the drinking water. (e) The system has the technical, managerial, and financial capacity to adhere to 310 CMR 22.04(3), as determined by the Department. (2) No exemption shall be granted unless the public water system established that it is taking all practicable steps to meet the standards, and (a) The public water system cannot meet the standard without capital improvements that cannot be completed prior to the date established pursuant to 40 C.F.R. 142.50(b)(1) (effective September 14, 1998). (b) In the case of a public water system which needs financial assistance for the necessary improvements, the public water system has entered into an agreement to obtain such financial assistance or assistance provided pursuant to the Drinking Water State Revolving Fund loan program, 310 CMR 45.00: DEP Selection, Approval and Regulation of Drinking Water Projects Receiving Financial Assistance from the State Revolving Fund, or any other federal or state Program that is reasonably likely to be available within the period of the exemption; or (c) The public water system has entered into an enforceable agreement to become a part of a regional public water system. (3) A public water system may not receive an exemption under 310 CMR 22.14, if the public water system was granted a variance under 310 CMR 22.13A. (4) A public water system may submit a joint request for exemptions when it seeks similar exemptions under similar circumstances. (5) Any written request for an exemption or exemptions pursuant to 310 CMR 22.14, shall include the following information: (a) The nature and duration of exemption requested; (b) Relevant analytical results of water quality sampling of the system, including results of relevant tests conducted pursuant to the requirements of 310 CMR 22.00; (c) Explanation of the compelling factors such as time or economic factors which prevent such system from achieving compliance; (d) Other information, if any, believed by the applicant to be pertinent to the application; (e) A proposed compliance schedule, including the date when each step toward compliance will be achieved; (f) Such other information as the Department my require. (6) The Department shall act on any exemption request submitted pursuant to 310 CMR 22.14 within 90 days of receipt of the request. (7) In the Department’s consideration of whether the public water system is unable to comply due to compelling factors pursuant to 310 CMR 22.14, the Department shall consider such factors as the following: 22.14: continued (a) Construction, installation, or modification of the treatment equipment or system; (b) The time needed to put into operation a new treatment facility to replace an existing system, this is not in compliance; (c) Economic feasibility of compliance. (8) If the Department decides to deny the application for an exemption, the Department shall notify the applicant in writing of the Department’s intention to issue a denial. Such notice shall include a statement of reasons for the proposed denial, and shall offer the applicant an opportunity to present, within 30 days of receipt of the notice, additional information or argument in writing to the Department. The Department shall make a final determination on the request within 30 days after receiving any such additional written information or argument. If no additional information or argument is submitted by the applicant in writing to the Department, the application shall be denied. (9) If the Department grants an exemption request submitted pursuant to 310 CMR 22.14, the Department shall notify the applicant of the Department’s decision in writing. Such notice shall identify the facility covered, and shall specify the termination date of the exemption. Such notice shall provide that the exemption will be terminated when the system comes into compliance with the applicable regulation, and may be terminated upon a finding by the Department that the system has failed to comply with any requirements of the final schedule issued pursuant to 310 CMR 22.14. (10) The Department shall propose a schedule for: (a) Compliance, including increments of progress or measure to develop an alternative source of water supply, by the public water system with each maximum contaminant level requirement and treatment technique requirement with respect to which the exemption was granted; and (b) Implementation by the public water system of such control measures, as the Department may require for each contaminant, subject to the maximum contaminant level requirement or treatment technique requirement, during the period ending on the date compliance with such requirement is required. (11) The schedule shall be prescribed by the Department at the time the exemption is granted, in accordance with provision of opportunity for a hearing pursuant to 310 CMR 22.14(12). (12) Before a schedule proposed by the Department pursuant to 310 CMR 22.14(11) may take effect the Department shall provide notice and opportunity for a public hearing on the schedule. (a) Public notice of an opportunity for hearing on an exemption schedule shall be circulated in a manner designed to inform interested and potentially interested persons of the proposed schedule, and shall include a least the following: 1. Posting of a notice in the principal post office of each municipality or area served by the public water system, and publishing of a notice in a newspaper or newspapers of general circulation in the area served by the public water system. 2. Mailing of a notice to the, the Massachusetts Department of Public Health, the local or regional public health agency in which the system is located and to other appropriate State or local agencies at the Department's discretion. 3. Such notices shall include a summary of the proposed schedule and shall inform interested persons that they may request a public hearing on the proposed schedule. (b) Requests for a hearing may be submitted by any interested person. Frivolous or insubstantial request for hearing may be denied by the Department. Request must be submitted to the Department within 30 days after issuance of the public notices provided for in 310 CMR 22.14(12)(a). Such request shall include the following: 1. The name, address and telephone number of the individual, organization or other entity requesting a hearing; 2. A brief statement of the interest of the person making the request in the proposed schedule and of the information that the requesting person intends to submit at such hearing; and 22.14: continued 3. The signature of the individual making the request, or, if the request is made on behalf of an organization or other entity, the signature of a responsible official of the organization or other entity. (c) The Department shall give notice in the manner set forth in 310 CMR 22.14(12)(b) of any hearing to be held pursuant to a request submitted by an interested person or on his own motion. Notice of the hearing shall also be sent to the person requesting the hearing, in any, Notice of the hearing shall include a statement of the purpose of the hearing, information regarding the time and location of the hearing, and the address and telephone number of an office at which interested persons may obtain further information concerning the hearing. All hearing locations specified in the public notice shall be within the state. Notice of the hearing shall be given not less than 15 days prior to the time scheduled for the hearing. (d) A public hearing convened pursuant to 310 CMR 22.14(12)(d) shall be conducted before a hearing officer to be designated by the Department. The hearing shall be conducted by the hearing officer in an informal, orderly and expeditious manner. The hearing officer shall have authority to call witnesses, receive oral and written testimony and take such action as may be necessary to assure the fair and efficient conduct of the hearing. Following the conclusion of the hearing, the hearing officer shall forward the record of the hearing to the Department. (13) A notice given pursuant to 310 CMR 22.14(12) may cover the granting of more than one exemption or the prescribing of more than one schedule, and a hearing held pursuant to such notice shall include each of the exemptions and schedules covered by the notice. (14) Final Schedule. Within 30 days after the termination of the public hearing pursuant to 310 CMR 22.14(12), the Department shall, taking into consideration information obtained during such hearing, revise the proposed schedule as necessary and prescribe the final schedule for compliance and interim measures for the public water system granted an exemption under 310 CMR 22.14. (15) The final schedule pursuant to 310 CMR 22.14(14) must require compliance with each contaminant level and treatment technique requirement with respect to which the exemption was granted as expeditiously as practicable but not later than three years after the otherwise applicable compliance date established in the federal Safe Drinking Water Act, 1412(b)(10). (16) Extension of Date for Compliance. In the case of a public water system which serves a population of not more than 3,300 persons and which needs financial assistance for the necessary improvements, an exemption granted under 310 CMR 22.14(2)(a) or (b) may be renewed for one or more additional two-year periods, but not to exceed a total of six additional years, if the public water system established that the public water system is taking all practicable steps to meet the requirements of 310 CMR 22.14(2) and the established compliance schedule. (17) The Department shall not accept any application for an exemption unless the public water system applying for the exemption agrees in writing to all of the following: (a) Pay in full the cost of all notices and hearings required by 310 CMR 22.14(3); (b) Comply with any schedule prescribed pursuant to 310 CMR 22.14(2) as expeditiously as possible, and in no event by later than the deadlines prescribed in 310 CMR 22.14(5); (c) Report to the department, in the manner prescribed in 310 CMR 22.15, the results of all tests, measurements, and analyses made in compliance with the exemption, and with the schedule prescribed pursuant to the exemption; (d) Report to the Department, in the manner prescribed in 310 CMR 22.15, any failure to comply with the terms of the exemption, or with the schedule prescribed pursuant to the exemption; (e) Notify the public, in the manner prescribed in 310 CMR 22.16 of the granting of the exemption; (f) Notify the public, in the manner prescribed in 310 CMR 22.16, of any failure to comply with the exemption or with any requirement of any schedule prescribed pursuant to the exemption; 22.14: continued (g) Maintain all the records prescribed in 310 CMR 22.17 in the manner prescribed in 310 CMR 22.17. (18) The Department shall promptly report to the Administrator or to the Administrator's designee every exemption or extension of an exemption granted by the Department. Such notification shall contain all of the following: (a) The reason for the exemption or extension of the exemption; (b) The basis for the Department's finding that the granting of the exemption or extension of the exemption will not result in an unreasonable risk to health; and (c) Documentation of the need for the exemption or extension of the exemption. (19) All applications for exemptions shall be made on forms prescribed by the Department. (20) Exemptions from the requirements set forth at 310 CMR 22.06 through 22.09A will be granted only in accordance with the federal Safe Drinking Water Act, § 1416, (effective August 6, 1996), and with 40 C.F.R. 142.62 (effective January 23, 2006). (21) No exemptions from the requirements set forth in 310 CMR 22.20A(3)(a)3. and 310 CMR 22.20A(3)(b)2. to provide disinfection are allowed. (22) No exemptions from the maximum contaminant level for total coliforms in 310 CMR 22.05(8) are allowed. (23) Bottled Water, Point-of-use, and Point of Entry Devices. The Department may require a public water system to use bottled water, point-of-use devices, point-of-entry devices as a condition of granting an exemption from the requirements of 310 CMR 22.06, 22.06B, 22.07A and 22.07B to avoid an unreasonable risk to health. The Department may require a public water system to use bottled water and point-of-use devices or other means, but not point of entry devices, as a condition for granting an exemption for corrosion control treatment required for lead and copper in 310 CMR 22.06B(2) and (3) to avoid an unreasonable risk to health. The Department may require a public water system to use point-of-entry devices as a condition for granting an exemption from the source water treatment and lead service line replacement requirements for lead and copper under 310 CMR 22.06B(4) and (5) to avoid an unreasonable risk to health. (24) Public water systems using bottled water as a condition of obtaining an exemption from the requirements of 310 CMR 22.06(16), 22.07A or 22.07B(1) must meet the requirements in 310 CMR 22.14(25) (25) Bottled Water. Public water systems that use bottled water as a condition for receiving a variance or an exemption from the requirements of 310 CMR 22.06(2), 22.07(A)(1) or 22.07B(1) must meet the requirements specified in either 310 CMR 22.14(25)(a) or (b) and (c): (a) Monitoring Program. The Department will require and approve a monitoring program for bottled water. The public water system must develop and put in place a monitoring program that provides reasonable assurances that the bottled water meets all MCLs. The public water system must monitor a representative sample of the bottled water for all contaminants regulated under 310 CMR 22.06(2), 22.07A(1) and 22.07B(1) during the first three-month period that it supplies the bottled water to the public, and annually thereafter. Results of the monitoring program shall be provided to the Department annually. (b) Certification. The public water system must receive a certification from the bottled water company that the bottled water supplied has been taken from an "approved source" as defined in 21 CFR 129.3(a); the bottled water company has conducted monitoring in accordance with 21 CFR 129.80(g)(1) through (3); and the bottled water does not exceed any MCLs or quality limits as set out in 21 CFR 103.35, 110, and 129. The public water system shall provide the certification to the Department the first quarter after it supplies bottled water and annually thereafter. At the Department's option a public water system may satisfy the requirements of 310 CMR 22.14(25) if an approved monitoring program is already in place in another State. 22.14: continued (c) Responsibility. The public water system is fully responsible for the provision of sufficient quantities of bottled water to every person supplied by the public water system via door-to-door bottled water delivery. (26) Public water systems that use point-of-use or point-of-entry devices as a condition of receiving an exemption must meet the requirements in 310 CMR 22.14(27). (27) Public water systems that use point-of-use or point-of-entry devices as a condition for obtaining a variance or and exemption from 310 CMR 22.00 must meet the following requirements: (a) It is the responsibility of the public water system to operate and maintain the point-of- use and/or point-of-entry treatment system. (b) Before point-of-use or point-of-entry devices are installed, the public water system must obtain the approval of monitoring plan which ensures that the devices provided health protection equivalent to the provided by central water treatment. (c) The public water system must apply effective technology under the Department approved plan. The microbiological safety of the water must be maintained at all times. (d) The Department will require adequate certification of performance, filed testing, and, if not included the certification process, a rigorous engineering design review of the point-of- use and/or point-of-entry devices. (e) The design and application of the point-of-use and/or point-of-entry devices must consider the potential for increasing concentrations of heterotrophic bacteria in water treated with activated carbon. It may be necessary to use frequent backwashing, post-contractor disinfection, and Heterotrophic Plant Count monitoring to ensure that the microbiological safety of the water is no compromised. (f) Point-of-use or point-of-entry devices that are properly installed, maintained, and monitored such that all consumers will be protected. (g) In requiring the use of a point-of entry device as a condition of granting an exemption form the treatment requirement for lead and copper under 310 CMR 22.06B, the Department must be assured that use of the device will not cause increased corrosion of lead and copper bearing materials located between the devices and the tap that could increase contaminates levels at the tap.