Section 150. Exemptions

A. The commissioner may grant an exemption to any primary maximum contaminant level (PMCL) or treatment technique requirement by following the procedures set forth in this subsection. An exemption may be granted to a waterworks from any requirement with respect to a PMCL or treatment technique requirement upon a finding that:

1. The waterworks must be unable to implement measures to develop an alternative source of water supply;

2. The waterworks cannot reasonably make management or restructuring changes that will result in compliance or improve the quality of the drinking water;

3. Due to compelling factors (which may include economic factors), the waterworks is unable to comply with such contaminant level or treatment technique requirement;

4. The granting of the exemption will not result in an unreasonable risk to the health of persons served by the waterworks;

5. The waterworks was in operation on the effective date of such contaminant level or treatment technique requirement; and

6. The waterworks has not been granted a variance.

B. Application for exemption. A waterworks owner may request an exemption for a waterworks by submitting a written application to the appropriate field office for evaluation. All applications for an exemption shall include the following information:

1. A citation to the regulation from which the exemption is requested;

2. Nature and duration of the exemption requested;

3. Relevant analytical results of water quality sampling of the waterworks, including results of relevant tests conducted pursuant to the requirements of this chapter;

4. Explanation of the compelling factors such as time or economic factors which prevent such waterworks from achieving compliance;

5. Other information believed by the applicant to be pertinent to the application;

6. A proposed compliance schedule, including the date when each step toward compliance will be achieved; and

7. Such other information as may be required by the commissioner to make the determination.

C. Consideration of an exemption application.

1. The commissioner shall act on any exemption application submitted pursuant to subsection B of this section within 90 days of receipt of the application.

2. In the commissioner's consideration of whether the waterworks is unable to comply due to compelling factors, the commissioner shall consider such factors as the following:

a. Construction, installation, or modification of treatment equipment or systems;

b. The time needed to put into operation a new treatment facility to replace an existing waterworks which is not in compliance;

c. The economic feasibility of compliance;

d. The availability of Drinking Water State Revolving Fund assistance or any other federal or state program that is reasonably likely to be available within the period of the exemption;

e. The consideration of rate increases, accounting changes, the appointment of a licensed operator under the state operator's licensure program, or contractual agreements for joint operation with one or more waterworks;

f. The activities consistent with Virginia's capacity development strategy to help the waterworks acquire and maintain technical, financial, and managerial capacity to come into compliance;

g. The ownership changes, physical consolidation with another waterworks, or other feasible and appropriate means of consolidation that would result in compliance; and

h. The availability of an alternative source of drinking water, including the feasibility of partnerships with neighboring waterworks, as identified by the waterworks or by the commissioner consistent with the capacity development strategy.

D. Disposition of an exemption application.

1. The commissioner may reject any application for an exemption by sending a rejection notice to the applicant. The rejection notice shall be in writing and shall state the reasons for the rejection. A rejection notice constitutes a case decision. The applicant has the right to petition for a hearing within 60 days of the date of the rejection to challenge the rejection pursuant to 12VAC5-590-160 and 12VAC5-590-180.

2. If the commissioner grants the exemption, the applicant shall be notified in writing of this decision. Such notice shall identify the exemption and the waterworks covered and shall specify the termination date of the exemption. Such notice shall provide that the exemption shall be terminated when the waterworks comes into compliance with the applicable regulation and may be terminated upon a finding by the commissioner that the waterworks has failed to comply with any requirements of a final schedule issued pursuant to subsection F of this section.

3. The commissioner shall propose a schedule for:

a. Compliance (including increments of progress) by the waterworks with each contaminant level and treatment technique requirement covered by the exemption; and

b. Implementation by the waterworks of such control measures as the commissioner may require for each contaminant level and treatment technique requirement covered by the exemption.

4. The schedule shall be prescribed by the commissioner at the time the exemption is granted.

5. For a waterworks that serves a population of not more than 3,300 persons and that needs financial assistance for the necessary improvements under the initial compliance schedule, an exemption granted by the commissioner may be for one or more additional two-year periods, but not to exceed a total of six additional years, only if the commissioner establishes that the waterworks is taking all practicable steps to meet the requirements of the exemption and the established compliance period. The commissioner will document the findings in granting an extension under this subdivision.

E. Public hearings on exemptions and their schedules.

1. Notice of a public hearing shall be provided before an exemption and schedule proposed by the commissioner pursuant to subsection D of this section may take effect. A notice given pursuant to the preceding sentence may cover the granting of more than one exemption and a public hearing held pursuant to such notice shall include each of the exemptions covered by the notice.

2. Notice of a public hearing on an application for an exemption and its schedule shall be advertised in at least one major newspaper of general circulation in the region in which the waterworks is located.

3. The notice shall include a summary of the proposed exemption and its schedule and shall contain the time, date, and place of the public hearing.

F. Issuance of exemption.

1. Within 30 days after the public hearing, the commissioner shall, taking into consideration information obtained during such hearing, revise the proposed exemption as necessary and prescribe the final schedule for compliance and interim measures for the waterworks granted an exemption.

2. Such schedule shall establish the timetable by which the waterworks shall comply with each contaminant level and treatment technique requirement prescribed by this chapter. If the schedule for compliance exceeds five years from the date of issuance of the exemption, the commissioner shall document the rationale for the extended compliance period. Such schedule shall also consider if the waterworks is to become part of a regional waterworks.

G. Posting of exemptions. All exemptions granted to any waterworks are nontransferable. Each exemption must be attached to the permit of the waterworks to which it is granted. Each exemption is a condition to that permit and is revoked when the permit is revoked.

H. No exemption shall be granted to 12VAC5-590-380, 12VAC5-590-400, or 12VAC5-590-420 B 1 b.

Historical Notes

Derived from VR355-18-003.10 § 1.16, eff. August 1, 1991; amended, Volume 09, Issue 17, eff. June 23, 1993; Volume 19, Issue 24, eff. September 10, 2003; Volume 21, Issue 16, eff. May 18, 2005; Volume 33, Issue 03, eff. November 2, 2016.

Statutory Authority

§§ 32.1-12 and 32.1-170 of the Code of Virginia.