Current through Register 1531, September 27, 2024
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:
(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:
(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
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;
(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.
(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.
