26.04.01.04

.04 Requirements for an Exemption, Granting an Exemption, and Public Hearings.

A. The Approving Authority may grant exemptions to public water systems, after documentation and consideration of findings, as specified in 40 CFR §§142.20 and 142.50. The Approving Authority may not issue an exemption to a public water system granted a variance under 1415(e) of the Safe Drinking Water Act. Exemptions may not be granted for the maximum contaminant level for total coliforms, and E. coli. The Approving Authority may exempt any supplier of water from any other requirement respecting a maximum contaminant level or treatment technique requirement, or both, of this regulation, upon a finding that:

(1) Due to compelling factors, which may include economic factors, the supplier of water is unable to:

(a) Comply with the contaminant level requirement or treatment technique requirement; or

(b) Implement measures to develop an alternative source of water supply;

(2) The public water system was in operation on the effective date of the contaminant level requirement or treatment technique requirement or, for a water system that was not in operation by the effective date, a reasonable alternative source of drinking water is not available;

(3) The granting of the exemption will not result in an unreasonable risk to health; and

(4) Management or restructuring changes cannot reasonably be made that will result in compliance with the regulation, or improve the quality of the drinking water if compliance cannot be achieved.

B. A supplier of water may request the granting of an exemption under this regulation for a public water system by submitting a request for exemption in writing to the Approving Authority. The written request shall include the following information:

(1) The nature and duration of the exemption requested;

(2) Relevant analytical results of water quality sampling of the system including results of relevant tests conducted pursuant to the requirements of this regulation;

(3) Explanation in full of compelling factors such as time or economic factors which prevent the supplier of water from achieving compliance;

(4) Other information, if any, believed by the applicant to be pertinent to the application;

(5) A proposed compliance schedule, including the date when each step toward compliance will be achieved; and

(6) Other information as the Approving Authority may require.

C. The Approving Authority shall act on any exemption request submitted under §B of this regulation, within 90 days after the receipt of the request and all necessary information. In consideration of whether the supplier of water is unable to comply, the Approving Authority shall consider the following factors:

(1) Construction, installation, modification, and operation of treatment equipment systems;

(2) The time needed to put into operation a new treatment facility to replace an existing system which is not in compliance; and

(3) Economic feasibility of compliance.

D. Disposition of an Exemption Request.

(1) If the Approving Authority decides to deny the application for an exemption, the applicant shall be so notified. The notice includes a statement of the reasons for the proposed denial, and offers the applicant an opportunity to present, within 30 days of receipt of the notice, additional information or argument to the Approving Authority. The Approving Authority shall make a final determination on the request within 30 days after receiving any additional information or argument. If additional information or argument is not submitted by the applicant, the application shall be denied.

(2) Upon granting an exemption request submitted under B of this regulation, the Approving Authority notifies the applicant of the action in writing. The notice identifies the facility covered, and specifies the termination date of the exemption. The notice provides that the exemption will be terminated when the supplier of water comes into compliance with the applicable standard, and may be terminated upon a finding by the Approving Authority that the supplier of water has failed to comply with any requirements of a final schedule issued under F of this regulation.

(3) The Approving Authority shall propose a schedule for:

(a) Compliance, including increments of progress or measures to develop an alternative source of water supply, by the supplier of water with each contaminant level requirement and treatment technique requirement covered by the exemption; and

(b) Implementation by the supplier of water of control measures the Approving Authority may require for each contaminant covered by the exemption.

(4) The schedule shall be prescribed by the Approving Authority at the time the exemption is granted, subsequent to the provision of the opportunity for a hearing under §E, of this regulation.

E. Before a schedule prescribed by the Approving Authority under §D may take effect, the Approving Authority shall provide public notice of an opportunity for hearing on an exemption schedule in a manner designed to inform interested and potentially interested persons of the proposed schedule, as set forth in Regulation .03G and H of this chapter. All hearings that are held regarding exemptions shall be in accordance with Regulations .03I and J of this chapter. If a timely request for a public hearing is not made and the Approving Authority determines not to hold a public hearing, then the schedule becomes effective 30 days after notice for a hearing is given.

F. Time of Compliance.

(1) Within 30 days after the termination of the public hearing under §§D and E, of this regulation, the Approving Authority shall revise the proposed schedule as necessary and prescribe a final schedule for compliance and interim measures for the supplier of water which was granted an exemption under §C of this regulation.

(2) The schedule shall require compliance by the supplier of water with each contaminant level and treatment technique requirement as expeditiously as practicable but not to exceed 3 years after the compliance date in §1412(b)(10) of the Safe Drinking Water Act.

(3) If a supplier of water does not serve more than 3,300 persons and needs financial assistance for the necessary improvements, an exemption granted under §A of this regulation may be renewed for one or more additional 2-year periods, but not to exceed a total of 6 additional years, if the supplier of water establishes that it is taking all practicable steps to meet the requirements of the standard, and the established compliance schedule.

G. Bottled Water and Point-of-Use Devices. A supplier of water using:

(1) Bottled water as a condition of obtaining an exemption from the requirements of Regulation .07D of this chapter shall meet the requirements set out in Regulation .03-1B of this chapter;

(2) Point-of-use devices as a condition of obtaining an exemption from the requirements of Regulation .07D of this chapter shall meet the requirements set out in Regulation .03-1C of this chapter.