De Minimis Nitrogen Load Exemption

(1) Any Local Government Unit may apply for a De Minimis Nitrogen Load Exemption. Within 28 days of filing the application, the applicant shall publish notice of the suspension of any applicable Title 5 upgrade and New Construction requirements under 310 CMR 15.215(2) in the forthcoming Environmental Monitor; on the applicant's official website; in the town hall where similar notices are published; and in a local or regional newspaper with the largest readership distribution within the area that may be affected by the exemption. In municipalities with Environmental Justice Populations where the preceding method for publishing public notice does not specifically serve the Environmental Justice Population(s), the applicant must also provide the preceding notice to at least one additional news organization that primarily serves the Environmental Justice Population(s) within the area that may be affected by the designation. The public notice shall be translated into other languages that are prevalent in areas with persons of limited English proficiency. (2) Contents of an Application. The application shall contain sufficient information for the Department to evaluate whether it meets the applicable review criteria. At a minimum, the application shall include: (a) A complete application form provided by the Department for such purpose; (b) Any planning documents, such as a CWMP, TWMP, or equivalent wastewater planning document applicable to the area for which the exemption is sought, if available; (c) Sufficient evidence (e.g., MEP, TMDL, or other Scientific Evaluation) to show that the Baseline Nitrogen Load attributed to the applicable watershed or sub-watershed area, as applicable, is less than or equal to 3% of the Controllable Attenuated Nitrogen Load for the entire watershed or sub-watershed, as applicable; and (d) Sufficient evidence (e.g., records of water usage, building permits, zoning information, census data and, if necessary, modelling) demonstrating that the applicant's Updated Nitrogen Load does not exceed 3% of the Controllable Attenuated Nitrogen Load for the watershed or sub-watershed, as applicable. (3) Approval of a De Minimis Nitrogen Load Exemption. The Department shall approve a De Minimis Nitrogen Load Exemption application and issue an exemption approval letter to the applicant if it satisfies the requirements of 314 CMR 21.12(1) and (2). (4) Conditions for De Minimis Nitrogen Load Exemption. The exemption shall continue unless it is terminated by the Department or the Local Government Unit and shall be conditioned on the following requirements: (a) Upon request by the Department, the exempt Local Government Unit shall provide: 1. the Department with all requested information that is pertinent to nitrogen loading in the exempt area and within the Local Government Unit's possession, custody, or control and 2. access to inspect the exempt area to verify compliance. (b) The Local Government Unit shall not increase its Updated Nitrogen Load. (c) If the Local Government Unit gains knowledge of any increase in the Updated Nitrogen Load, it shall promptly report that to the Department. The report shall include an assessment (deemed sufficient by the Department) of the extent to which the Updated Nitrogen Load has increased or may increase in the future. 1. If the assessment demonstrates the Updated Nitrogen Load has increased after considering any proposed attenuated load reduction strategies, the exemption shall terminate. 2. Such termination shall operate to cause any applicable mandatory Title 5 upgrade and New Construction requirements in 310 CMR 15.215(2)(d) to become effective. (d) If the De Minimis Nitrogen Load Exemption operated to suspend the effectiveness of the Title 5 upgrade and New Construction requirements under 310 CMR 15.215(2), then within 28 days of the Department issuing a notice of termination to the exempt Local Government Unit or the Department receiving notice that the exempt Local Government Unit has terminated the exemption, the Department will publish notice of the termination and that the mandatory Title 5 upgrade and New Construction requirements in 310 CMR 15.215(2)(d) are invoked, effective on the date the Department issues the notice of termination to the Local Government Unit. The Department shall publish notice of the termination and invocation of the Title 5 upgrade and New Construction requirements: in the forthcoming Environmental Monitor; on the Department's website; in the town hall where similar notices are published; and in a local or regional newspaper with the largest readership distribution within the area that may be affected by the Title 5 upgrade requirement. In municipalities with Environmental Justice Populations where the preceding method for publishing public notice does not specifically serve the Environmental Justice Population(s), the Department must also provide the preceding notice to at least one additional news organization that primarily serves the Environmental Justice Population(s) within the area that may be affected by the designation. The public notice shall be translated into other languages that are prevalent in areas with persons of limited English proficiency. (5) Withdrawal or Denial. If the applicant withdraws from the De Minimis Nitrogen Load Exemption application process or is denied an exemption, the Department will issue notice of the withdrawal or denial and invocation of the mandatory Title 5 upgrade and New Construction requirements under 310 CMR 15.215(2), if applicable, in conformity with the notice publication requirements in 314 CMR 21.12(4)(d).