Section 809.90. Conditional waivers.

 

(1)   General application requirements . A water supplier for a public water system may apply to the department for a conditional waiver for nonmicrobial contaminants respecting compliance with a maximum contaminant level or treatment technique requirement for a period up to 3 years if all of the following apply:

(a) One of the following situations exists:

1. Because of the characteristics of the raw water sources which are reasonably available, the public water system cannot comply with a maximum contaminant level despite application of best technology, treatment techniques or other means generally available, taking costs into consideration.

2. Compelling factors, which may include economic factors, indicate that the public water system cannot comply with a maximum contaminant level or treatment technique requirement for a limited period of time.

(b) The public water system was in operation on the effective date of the maximum contaminant level or treatment technique requirement.

(c) Granting of a conditional waiver will not result in an unreasonable risk to public health.

(d) The public water system shall have entered into a consent order agreement with the department regarding the conditional waiver.

(2)   Small system application requirements. Water suppliers for small systems serving less than 3,300 persons, may apply for a conditional waiver for nonmicrobial contaminants only when all of the following conditions are met:

(a) The contaminant or treatment technique to be waived has a maximum contaminant level or treatment technique requirement established in national primary drinking water regulations promulgated on or after January 1, 1986.

(b) The technology used to comply with the maximum contaminant level or treatment technique is approved by the department.

(c) Compliance with maximum contaminant levels or treatment techniques is not reasonably affordable through restructuring or consolidation changes, including ownership change or physical consolidation or both with another public water system, or obtaining financial assistance through the Wisconsin drinking water state revolving loan fund (DWSRF).

(d) The small system is financially and technically capable of installing, operating and maintaining the applicable small system technology under par. (b) .

(e) Granting of a conditional waiver will not result in an unreasonable risk to public health.

(f) The public water system shall have entered into a signed consent order agreement with the department regarding the conditional waiver.

(3)   General waiver requirements. The department may grant a conditional waiver if the water supplier has established that the criteria of sub. (1) or (2) have been met. Any conditional waiver granted shall require all of the following:

(a) Compliance, including increments of progress, by the water supplier with each maximum contaminant level or treatment technique requirement within the time frame specified by the department in the compliance schedule.

(b) Implementation by the water supplier of control measures the department deems necessary until compliance with the maximum contaminant level or treatment technique requirement is achieved.

(4)   Bottled water use as a requirement of a waiver. Public water systems that use bottled water as a requirement for receiving a conditional waiver shall meet all of the following requirements:

(a) The department shall require and approve a monitoring program for bottled water. The water supplier shall develop and put in place a monitoring program that provides reasonable assurances that the bottled water meets all MCLs. The water supplier shall monitor a representative sample of the bottled water for all contaminants regulated under ss. NR 809.24 (1) and (2) and 809.11 during the first 3-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) The water supplier shall receive a certification from the bottled water company that the bottled water supplied meets all requirements of s. 97.34 , Stats., and s. ATCP 70.26 . The water supplier shall provide the certification to the department the first quarter after it supplies bottled water and annually thereafter.

(c) The water supplier shall be 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.

(5)   Point of entry treatment as a requirement of a waiver. If the department approves the use of a point-of-entry device as a requisite for granting a conditional waiver, the water supplier shall provide documentation that the device will not cause increased corrosion of plumbing materials which could increase contaminant levels at the consumer's tap.

(6)   Additional waiver requirements. Additional requirements for conditional waivers shall include all of the following:

(a) Proof of proper and effective installation, operation and maintenance of any applicable treatment technologies.

(b) Department specified monitoring requirements for the contaminant for which the conditional waiver is sought.

(c) Other terms or conditions specified by the department to ensure adequate public health protection, including but not limited to all of the following:

1. Public education requirements.

2. Source water protection requirements.

3. Quarterly conditional waiver compliance reports to the department.

(7)   Public notice of waivers. Before the department may grant a conditional waiver under this section, a class 1 public notice under ch. 985 , Stats. , and opportunity for a public hearing on the proposed conditional waiver shall be provided by the department. A hearing held pursuant to a request under this subsection is a class 1 hearing and shall be conducted in accordance with ch. 227 , Stats.

(8)   Extension of waivers. The department may extend a compliance deadline not to exceed 3 years, or 2 years for a small system conditional waiver under sub. (2) , beyond the expiration date of the original conditional waiver if the water supplier establishes all of the following:

(a) The public water system cannot meet the maximum contaminant level or treatment technique requirement without capital improvements which cannot be completed within the period of the conditional waiver.

(b) The water supplier has entered into an enforceable agreement to become part of a regional public water system or, if the water supplier needs financial assistance for the necessary capital improvements, the water supplier has entered into an agreement to obtain the financial assistance.

(c) The water supplier is taking all practicable steps to meet the standard.

(9)   Renewal of waiver extensions. The department may renew an extension granted under sub. (8) if the water supplier establishes all of the following:

(a) The public water system does not serve more than 500 service connections.

(b) The public water system cannot meet a maximum contaminant level or treatment technique requirement without financial assistance for the necessary capital improvements.

(c) The public water system is taking all practicable steps to achieve compliance with a maximum contaminant level or treatment technique requirement.

CR 09-073 : cr. Register November 2010 No. 659 , eff. 12-1-10.