Code of Massachusetts Regulations
310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION
Title 310 CMR 40.0000 - Massachusetts Contingency Plan
Subpart I - RISK CHARACTERIZATION
Section 40.0932 - Identification of Applicable Groundwater Categories

Universal Citation: 310 CMR 40.0000 MA Code of Regs 40.0932

Current through Register 1531, September 27, 2024

(1) The groundwater categories describe the potential for three different types of exposure. More than one category may apply to a single disposal site. In such cases all applicable categories shall be identified.

(2) Groundwater at all disposal sites shall be considered a potential source of discharge to surface water and shall be categorized, at a minimum, as category GW-3. The site, receptors, and exposure information identified in 310 CMR 40.0904 through 310 CMR 40.0929 shall be used in conjunction with the criteria listed below to determine if the groundwater shall also be categorized as GW-1 and/or GW-2.

(3) The appropriate groundwater category shall be identified for both:

(a) groundwater currently affected by the release of oil and/or hazardous materials, and

(b) any area to which the groundwater affected by the release is expected to migrate.

(4) Groundwater Category GW-1 Except as provided by 310 CMR 40.0932(5), groundwater shall be defined as GW-1 if the groundwater is located:

(a) within a Current Drinking Water Source Area; or

(b) within a Potential Drinking Water Source Area.

(5) Notwithstanding the provisions of 310 CMR 40.0932(4):

(a) Interim Wellhead Protection Area. Groundwater that is categorized as a Current Drinking Water Source Area, solely due to its location within an Interim Wellhead Protection Area, need not be so categorized if it is demonstrated that there is no hydrogeologic connection between the groundwater and the public water supply well on the basis of the following:
1. the groundwater is hydrogeologically downgradient of the public water supply well based on regional groundwater flow and gradient, and beyond the stagnation point. The determination of such a stagnation point shall be based on site-specific parameters and the highest daily approved pumping rate for the public water supply well; or

2. the disposal site is cross-gradient (perpendicular) to regional groundwater flow direction and at sufficient distance from the public water supply well such that it is outside of the zone of contribution for the public water supply well. The determination of such a zone of contribution shall be based on site-specific parameters and the highest daily approved pumping rate for the public water supply well; or

3. a hydrogeologic barrier exists between the groundwater at the disposal site and the public water supply well.

(b) Potential Drinking Water Source Area. Groundwater that is categorized as a Potential Drinking Water Source Area solely due to its location within an area defined as a Potentially Productive Aquifer need not be so categorized if:
1. site-specific information on the types and/or transmissivity of soils shows that the groundwater is not located within the true boundary of the medium or high yield aquifer(s) which comprise(s) the Potentially Productive Aquifer; or

2. the groundwater within the Potentially Productive Aquifer is naturally brackish, or has naturally high levels of metals, such that the development of the aquifer as a public water supply is currently technologically or economically infeasible.

(c) Case-specific Designation of a Non-potential Drinking Water Source Area.
1. One or more municipalities or private parties may petition the Department to change the categorization of groundwater within a Potentially Productive Aquifer from a Potential Drinking Water Source Area to a Non-potential Drinking Water Source Area because:
a. the groundwater is categorized as a Potential Drinking Water Source Area solely due to its location within a Potentially Productive Aquifer, and is not categorized as a Current Drinking Water Source Area;

b. the groundwater has been contaminated by one or more releases of oil and/or hazardous materials, and:
1. such releases exceed the reporting thresholds established by 310 CMR 40.0300; and

2. it is not feasible to achieve GW-1 standards for such groundwater (pursuant to 310 CMR 40.0860);

c. the land area overlying the groundwater does not meet the criteria established in the definition of "Non-potential Drinking Water Source Area" and is at least 100 acres in size; and

d. the municipality(ies) overlying the groundwater and any public water systems with existing legal authority to develop new sources of drinking water in the area affected by the petition have sufficient water from other sources to meet their needs for future drinking water supplies, and to fulfill any current contractual obligations for the provision of water to other parties.

2. The petitioner(s) shall provide a reasonable opportunity for public comment on the proposed petition. Such opportunity shall include, but not be limited to:
a. establishment of a specific period of time in which written public comment can be submitted to the party preparing the petition. Such comment period shall not be less than 30 calendar days;

b. a public meeting to be held within the public comment period for the purpose of hearing comments on the proposed petition. Such meeting shall be conducted at a time and place convenient to the public;

c. notice of the comment period and meeting shall be provided to:
i. the public using a public notice pursuant to 310 CMR 40.1403(2)(b) in a newspaper of general circulation in the municipalities in the river basin in which the aquifer is located and which are hydrologically connected and downgradient to the area affected by the petition;

ii. the public in the Environmental Monitor;

iii. the public by posting the notice on a publicly accessible location in the municipal office and on any local access cable television station that serves the municipalities described in 310 CMR 40.0932(5) c.1.;

iv. the Chief Municipal Official(s) of the municipality(ies) located within the boundaries of the river basin in which the groundwater is located and which are hydrologically connected and downgradient to the area affected by the petition, municipalities abutting the municipality containing the area proposed to be designated as a Non-potential Drinking Water Source Area and municipalities abutting the abutters;

v. any party with a currently effective contract with the municipality(ies) for sale or purchase of drinking water to or from the aquifer or portion thereof subject to the petition;

vi. any public water system providing water or operating a drinking water well within the municipality(ies) in which the groundwater is located and in downgradient municipalities in the subject aquifer; and

vii. any person holding a registration or permit under the Water Management Act (M.G.L. c. 21G) for withdrawal of water from the aquifer or portion thereof subject to the petition.

d. the notice required by 310 CMR 40.0932(5)(c)2.c. shall describe the designation sought, the area to which it would apply, the basis for the petition, how to obtain a copy of the proposed petition, the location and time of the public meeting, and how to submit comments. Such notice shall be provided no later than the first day of the comment period, and not less than 14 calendar days prior to the public meeting;

e. a summary of all comments received shall be prepared after the close of the comment period, noting which comments have been incorporated into the petition and providing an explanation of why others have not. A copy of such summary shall be provided to each person who submitted written comments, and submitted to the Department with the petition.

3. Petitions shall include:
a. a demonstration that the petition meets the criteria for a Case-specific Designation in 310 CMR 40.0932(5)(c)1.;

b. a water resource budget containing:
i. an inventory of current water supplies and authorized water withdrawal volumes pursuant to M.G.L. c. 21G from the aquifer or portion thereof subject to the petition;

ii. forecasts of water demands for the municipality(ies) in which the groundwater is located, any municipality in which the groundwater plume may be located in the future, and abutting municipalities (such forecasts shall be prepared using the methodology accepted for implementation of 310 CMR 36.00: Massachusetts Water Resources Management Program for forecasting future water needs, using the most current data available);

iii. a description of the water resources that will be used to meet the demands identified in 310 CMR 40.0932(5)(c)3.b.2., including the role of the aquifer subject to the petition in meeting such demands, and an analysis of the impact of the development of any future water supply on stream flow, fisheries and wildlife resources, agricultural and other water users;

iv. supporting data describing basin hydrology, land uses, existing interconnections to serve other municipalities, interconnections that have been approved, but not yet developed to serve other municipalities, and population trends;

c. documentation of technical and legal actions to protect existing and future drinking water sources;

d. a map of the aquifer showing the area proposed for exclusion from a Potential Drinking Water Source Area;

e. in those cases where the petition addresses a portion of the aquifer, a description of the hydrogeologic relationship between that portion and the larger aquifer (i.e., in terms of groundwater flow direction, presence of hydrogeologic barriers);

f. documentation of the public comment period and meeting, and a copy of the summary of comments received required by 310 CMR 40.0932(5)(c)2.e.;

g. one of the following:
i. a certification of concurrence by the Chief Municipal Officer of the municipality(ies) in which the groundwater subject to the petition is located and/or any public water systems with existing legal authority to develop new sources of drinking water in the area affected by the petition, stating "The [municipality(ies)] [public water system(s)] [has] [have] sufficient water from other sources to meet its [their] need for future drinking water supplies, including the fulfillment of any contractual obligations for the provision of water to other parties". Such certification shall also include a statement that (a) in the event that the groundwater will be used in the future as a public drinking water supply, an assessment shall be performed to determine whether additional response actions or wellhead treatment are needed to achieve GW-1 standards and such assessment shall be submitted to the Department with an application for a New Source Approval in accordance with 310 CMR 22.00: Drinking Water; and b) that any existing contractual obligations to provide water of potable quality from the groundwater subject to the petition to other parties will not be affected by approval of the petition; or

ii. a written statement describing the reasons for not supplying the certification in 310 CMR 40.0932(5)(c)3.g.1. by the municipality(ies) in which the groundwater subject to the petition is located or public water systems with existing legal authority to develop new sources of drinking water in the area affected by the petition; or

iii. a copy of a written request for the certification in 310 CMR 40.0932(5)(c)3.g.1.; evidence that such request was received by the appropriate entity(ies); and a certification by the petition sponsor that such certification has not been provided within a period of at least 90 days from the date of the written request.

4. The portions of the petition described in 310 CMR 40.0932(5)(c)3.a. through e. shall be available to the public no later than the date on which the public comment period begins.

5. Petitions shall be submitted to the Department, which shall review the petition and determine whether it is complete. Incomplete petitions will be returned to the applicant with a request for submittal of necessary information within a specified time period. If the requested information is not supplied within the specified time period, the application will be considered to be withdrawn.

6. The Commissioner shall request that the Massachusetts Water Resources Commission review complete applications. Such request shall be made at least 60 days prior to issuing a determination.

7. The Commissioner shall issue a determination not later than 30 days following receipt of a recommendation from the Water Resources Commission as to the disposition of the petition, based on whether the petition meets the criteria established by 310 CMR 40.0932(5)(c)1., as demonstrated by:
a. supporting documentation provided pursuant to 310 CMR 40.0932(5)(c)3.;

b. comments submitted during the public comment period pursuant to 310 CMR 40.0932(5)(c)2. and the petitioner's steps taken to address public concerns; and

c. any other information available to the Department and the Water Resources Commission.

8. The Commissioner may issue a draft determination and request additional public comment and/or review by the Water Resources Commission. Such tentative decision shall establish a timeframe for the additional public comment or Water Resources Commission review, and for issuing a final determination.

(d) Existing Private Wells. Groundwater that is categorized as a Current Drinking Water Source Area solely due to its location within 500 feet of a private water supply well need not be categorized as GW-1 if:
1. the private water supply well is removed from service as a source of drinking water and the following conditions are met:
a. written documentation has been submitted to the Department demonstrating that the property(ies) served by the private water supply well has been connected to a public water supply system; and

b. written documentation has been submitted to the Department demonstrating the absence of any unpermitted cross-connection between the private water supply well and public water system or that the private well has been properly abandoned; and

c. where the private well is maintained for uses other than as a private water supply, written documentation has been submitted to the Department in the risk characterization pursuant to 310 CMR 40.0900 demonstrating that such other uses are consistent with a level of No Significant Risk and a Notice of Activity and Use Limitation implemented in accordance with 310 CMR 40.1074 which identifies the use of the private well as a drinking water source as a use which is inconsistent with maintaining a level of No Significant Risk; and

d. copies of the written documentation described in 310 CMR 40.0932(5)(d)1.a. through c. are provided to the local Board of Health; or

2. it is demonstrated that there is no hydrogeologic connection between the groundwater and the private water supply well, based on an investigation and evaluation of sitespecific conditions including, but not limited to, as appropriate, the investigation and evaluation of site stratigraphic, potentiometric, and geochemical conditions, and the depth and construction of the private well. The absence of site contaminants in the private well does not, by itself, constitute such a demonstration.

3. the private water supply did not exist at the time of notification pursuant to 310 CMR 40.0300 or was not installed in conformance with applicable laws, bylaws or regulations.

(e) Zone A. Groundwater that is categorized as a Current Drinking Water Source Area solely due to its location within a Zone A need not be categorized as GW-1 if it is demonstrated that there is no hydrogeologic connection between the groundwater and the Class A surface drinking water source, based on an investigation and evaluation of sitespecific conditions including, but not limited to, as appropriate, an investigation and evaluation of site stratigraphic, potentiometric, and geochemical conditions.

(f) The provisions of 310 CMR 40.0932(5)(a) through (d) apply to specific criteria for the inclusion of an area in the GW-1 category. Nothing in 310 CMR 40.0932(5) shall limit the applicability of any other criteria described in 310 CMR 40.0932(4)(a) or (b) to the categorization of groundwater at a disposal site.

(6) Groundwater Category GW-2. Groundwater shall be defined to be in category GW-2 if it is located within 30 feet of an existing or planned building or structure that is or will be occupied, and the average annual depth to groundwater in that area is 15 feet or less. Category GW-2 groundwater is considered to be a potential source of vapors of oil and/or hazardous material to indoor air. Construction of a building in an area in which the average annual depth to groundwater is 15 feet or less will change the groundwater category at the site to include GW-2; change the activities, uses and/or exposures at the disposal site; and may negate the notification exemption described at 310 CMR 40.0317(17).

Disclaimer: These regulations may not be the most recent version. Massachusetts may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.