42 U.S.C. § 300g–5 — Exemptions

(a) Requisite findings A state with primary enforcement responsibility can exempt a water system from a maximum contaminant level, a treatment-technique rule, or both, in a national drinking water regulation — but only after finding all four of the following: (1) because of compelling factors (which can include economic factors, such as qualifying as a system serving a disadvantaged community under section 300j–12(d)), the system can't comply with the level or technique, or can't put an alternative water source in place; (2) the system was already operating when that rule took effect, or, for a system that wasn't yet operating, no reasonable alternative drinking water source is available to it; (3) granting the exemption won't create an unreasonable health risk; and (4) no management or restructuring changes, alone or together, can reasonably bring the system into compliance or, if compliance isn't possible, improve the water's quality. (b) Compliance schedule and implementation of control measures (1) When a state grants an exemption under (a), it must set, at the same time, a schedule for (A) the system's compliance — including steps or plans to develop an alternative water source — with the level or technique the exemption covers, and (B) any control measures the state requires in the meantime. Before this schedule takes effect, the state must give notice and hold a public hearing; one notice and hearing can cover several schedules. (2)(A) The schedule must require the system to comply as fast as the state can reasonably require, but no later than 3 years after the compliance date otherwise set by section 300g–1(b)(10). (2)(B) No exemption can be granted unless the system establishes that (i) it can't meet the standard without capital improvements that can't be finished by the date set under section 300g–1(b)(10); (ii) if it needs financial assistance for those improvements, it has arranged that assistance — under section 300j–12 or another federal or state program — or such a program is reasonably likely to be available during the exemption; or (iii) it has a binding agreement to join a regional water system — and, in every case, is taking all practical steps to meet the standard. (2)(C) For a system serving 3,300 people or fewer that needs financial assistance for improvements, an exemption granted under (B)(i) or (ii) can be renewed for one or more additional 2-year periods, up to 6 years total, if the system keeps showing it's taking all practical steps to meet the requirements of (B). (2)(D) Limitation: a system cannot get an exemption under this section if it already has a small-system variance under section 300g–4(e). (3) Each exemption a state grants under (a) is conditioned on the system following the schedule the state set under this subsection. States enforce that schedule under their own laws, and it can also be enforced under section 300g–3 as if it were part of a national primary drinking water regulation. (4) A schedule set under this subsection counts as approved by the Administrator unless the Administrator later revokes the exemption under (d)(2) or revises the schedule under that same subsection. (c) Notice to Administrator Any state that grants an exemption under (a) must promptly notify the Administrator. The notice must state the reasons for the exemption — including the basis for the health finding required under (a)(3) — and document why the exemption is needed. (d) Review of exemptions and schedules (1) Within 18 months after the interim national drinking water regulations take effect, the Administrator must fully review the exemptions and schedules states granted during the first year those rules were in effect, then keep reviewing them as needed, but at least once every 3 years after that first review. Before each review, the Administrator must publish notice in the Federal Register explaining where to find the relevant data and inviting public comments. After each review, the Administrator must publish the results, together with responses to the comments received. (2)(A) If the Administrator finds that a state has, in a substantial number of cases, abused its discretion in granting exemptions under (a) or failed to set schedules under (b), the Administrator must notify the state — weighing how many people are affected and whether the legal requirements were followed. The notice must (i) name each exempt system involved, (ii) explain the reasons for the finding, and (iii) propose, as appropriate, revoking specific exemptions or requiring revised schedules, or both. (2)(B) The Administrator must give reasonable notice and hold a public hearing on each such notice. Afterward, the Administrator must either (i) withdraw the finding and promptly notify the state, or (ii) adopt (with any changes the Administrator thinks appropriate) the proposed revocations and revised schedules. The Administrator must finish the hearing and act within 180 days of the original notice. (2)(C) If a state is notified of a finding and, before a revocation or revised schedule takes effect, fixes the problem in a way that makes the finding no longer apply, the Administrator must cancel the finding for that exemption or schedule. No revocation or revised schedule can take effect until at least 90 days after the notice proposing it. (e) "Treatment technique requirement" defined In this section, "treatment technique requirement" means a rule in a national primary drinking water regulation that lists, for a contaminant, every treatment technique the Administrator knows of that reduces the contaminant enough to satisfy section 300g–1(b) of this title. (f) Authority of Administrator in a State without primary enforcement responsibility If a state doesn't have primary enforcement responsibility for public water systems, the Administrator has the same power to exempt systems in that state — under the same conditions and in the same way — that the state would have had. (g) Applications for exemptions When someone applies for an exemption under this section, the state (or the Administrator, if the Administrator is handling it) must act on the application within a reasonable time, as set by the Administrator's regulations.