Chapter NR 809

subch. VI of ch. NR 809 Subchapter VI — Conditional Waivers and Variances

NR 809.90 NR 809.90 Conditional waivers.

NR 809.90(1) (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:

NR 809.90(1)(a) (a) One of the following situations exists:

NR 809.90(1)(a)1. 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.

NR 809.90(1)(a)2. 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.

NR 809.90(1)(b) (b) The public water system was in operation on the effective date of the maximum contaminant level or treatment technique requirement.

NR 809.90(1)(c) (c) Granting of a conditional waiver will not result in an unreasonable risk to public health.

NR 809.90(1)(d) (d) The public water system shall have entered into a consent order agreement with the department regarding the conditional waiver.

NR 809.90(2) (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:

NR 809.90(2)(a) (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.

NR 809.90(2)(b) (b) The technology used to comply with the maximum contaminant level or treatment technique is approved by the department.

NR 809.90(2)(c) (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).

NR 809.90(2)(d) (d) The small system is financially and technically capable of installing, operating and maintaining the applicable small system technology under par. (b).

NR 809.90(2)(e) (e) Granting of a conditional waiver will not result in an unreasonable risk to public health.

NR 809.90(2)(f) (f) The public water system shall have entered into a signed consent order agreement with the department regarding the conditional waiver.

NR 809.90(3) (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:

NR 809.90(3)(a) (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.

NR 809.90(3)(b) (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.

NR 809.90(4) (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:

NR 809.90(4)(a) (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.

NR 809.90(4)(b) (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.

NR 809.90(4)(c) (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.

NR 809.90(5) (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.

NR 809.90(6) (6) Additional waiver requirements. Additional requirements for conditional waivers shall include all of the following:

NR 809.90(6)(a) (a) Proof of proper and effective installation, operation and maintenance of any applicable treatment technologies.

NR 809.90(6)(b) (b) Department specified monitoring requirements for the contaminant for which the conditional waiver is sought.

NR 809.90(6)(c) (c) Other terms or conditions specified by the department to ensure adequate public health protection, including but not limited to all of the following:

NR 809.90(6)(c)1. 1. Public education requirements.

NR 809.90(6)(c)2. 2. Source water protection requirements.

NR 809.90(6)(c)3. 3. Quarterly conditional waiver compliance reports to the department.

NR 809.90(7) (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.

NR 809.90(8) (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:

NR 809.90(8)(a) (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.

NR 809.90(8)(b) (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.

NR 809.90(8)(c) (c) The water supplier is taking all practicable steps to meet the standard.

NR 809.90(9) (9) Renewal of waiver extensions. The department may renew an extension granted under sub. (8) if the water supplier establishes all of the following:

NR 809.90(9)(a) (a) The public water system does not serve more than 500 service connections.

NR 809.90(9)(b) (b) The public water system cannot meet a maximum contaminant level or treatment technique requirement without financial assistance for the necessary capital improvements.

NR 809.90(9)(c) (c) The public water system is taking all practicable steps to achieve compliance with a maximum contaminant level or treatment technique requirement.

NR 809.90 History History: CR 09-073: cr. Register November 2010 No. 659, eff. 12-1-10.

NR 809.905 NR 809.905 Conditional waivers from the maximum contaminant levels for uranium.

NR 809.905(1) (1) General requirements for uranium waivers. The department may grant conditional waivers from the maximum contaminant level for uranium if all of the following occur:

NR 809.905(1)(a) (a) The department has identified the best available technology, treatment techniques, or other means available for achieving compliance with the maximum contaminant levels for the radionuclides listed in ss. NR 809.50 (1) and 809.51, for the purposes of issuing a conditional waiver, as shown in s. NR 809.50 (3), Table B.

NR 809.905(1)(b) (b) The department identifies the best available technology, treatment techniques or other means available for achieving compliance with the maximum contaminant levels for the radionuclides listed in ss. NR 809.50 (1) and 809.51 for the purposes of issuing conditional waivers to small drinking water systems, defined as those serving 10,000 persons or fewer, as shown in s. NR 809.50 (4), Tables K and L.

NR 809.905(1)(c) (c) The water supplier has entered into a signed consent order agreement with the department regarding the conditional waiver.

NR 809.905(2) (2) Treatment as a condition of uranium waivers. The department shall require community water systems to install or use, or both install and use, any treatment technology identified in s. NR 809.50 (3), Table B, or in the case of community water systems that serve 10,000 persons or fewer, s. NR 809.50 (3), Table C and Table E, as a condition for granting a conditional waiver except as provided in sub. (3).

NR 809.905(3) (3) Waiver for alternative treatment if BATs are not effective. If a water supplier for a community water system can demonstrate through comprehensive engineering assessments, which may include pilot plant studies, that the treatment technologies identified in this section would only achieve a de minimus reduction in the contaminant level, the department may issue a schedule for compliance that requires the community water system being granted the conditional waiver to examine other treatment technologies as a condition of obtaining the conditional waiver.

NR 809.905(4) (4) Requirement to install alternative treatment. If the department determines that a treatment technology identified under sub. (3) is technically feasible, the department may require the public water system to install or use, or both install and use, that treatment technology in connection with a compliance schedule issued under s. NR 809.90. The department’s determination shall be based upon studies by the water supplier for the public water system and other relevant information.

NR 809.905(5) (5) Bottled water, point of entry, point of use or other means as a condition of granting a waiver. The department may require a community water system to use bottled water, point-of-use devices, point-of-entry devices or other means as a condition of granting a conditional waiver from the requirements of s. NR 809.50 or 809.51 to avoid an unreasonable risk to health.

NR 809.905(6) (6) Requirements for bottled water use. Community water systems that use bottled water as a condition for receiving a conditional waiver from s. NR 809.50 or 809.51 shall meet the requirements in either s. NR 809.90 (4) (a) or (b) and (c).

NR 809.905(7) (7) Conditions for using point of use or point of entry devices. Community water systems that use point-of-use or point-of-entry devices as a condition for obtaining a conditional waiver from the uranium MCL shall meet the conditions in ss. NR 809.50 (4) (b) and 809.90 (3).

NR 809.905 History History: CR 09-073: cr. Register November 2010 No. 659, eff. 12-1-10.

NR 809.91 NR 809.91 Nitrate variances.

NR 809.91(1) (1) Variances for non-community water systems. A non-community water system is eligible for a variance from the nitrate as nitrogen maximum contaminant level if all of the following are met:

NR 809.91(1)(a) (a) The department determines that because of the characteristics of the raw water sources which are reasonably available, the non-community water system cannot comply with the maximum contaminant level for nitrate as nitrogen.

NR 809.91(1)(b) (b) The non-community water system has not had a nitrate as nitrogen sample which exceeds 20 mg/l, confirmed by a check sample.

NR 809.91(1)(c) (c) The water supplier continuously posts a department approved notice at all water taps supplied with water by the non-community water system. The notice shall state that the nitrate as nitrogen level exceeds 10 mg/l and describe the potential health effects of exposure.

NR 809.91(1)(d) (d) The water supplier ensures that water from their public water system will not be available to children under 6 months of age and provides bottled water which complies with all maximum contaminant levels for such children.

NR 809.91(1)(e) (e) No adverse health effects will result.

NR 809.91(2) (2) Variances for community water systems. A community water system serving a nursing home, prison or mental health care facility, is eligible for a variance from the nitrate as nitrogen maximum contaminant level if all of the following are met:

NR 809.91(2)(a) (a) The water supplier for the institution does not permit infants under 6 months of age as residents.

NR 809.91(2)(b) (b) The community water system has not had a nitrate as nitrogen sample which exceeds 20 mg/l, confirmed by a check sample.

NR 809.91(2)(c) (c) The water supplier for the institution continuously posts a department approved notice at all water taps supplied with water by the community water system. The notice shall state that the nitrate as nitrogen level exceeds 10 mg/l and describe the potential health effects of exposure.

NR 809.91(2)(d) (d) The water supplier for the institution ensures that water from its public water system will not be available to children under 6 months of age and provides bottled water which complies with all maximum contaminant levels for such children.

NR 809.91(2)(e) (e) No adverse health effects will result.

NR 809.91(3) (3) Control measures for variances. The department may condition the issuance of a variance under this section on compliance with such control measures as it deems necessary. Failure to comply with any term or condition of a variance granted by the department under this section voids the variance.

NR 809.91 History History: CR 09-073: cr. Register November 2010 No. 659, eff. 12-1-10.

subch. VII of ch. NR 809 Subchapter VII — Public Notification of Drinking Water Violations

NR 809.950 NR 809.950 General public notification requirements.

NR 809.950(1) (1) General requirements. All water suppliers for public water systems shall comply with the requirements in this subchapter.

NR 809.950(2) (2) Who shall give public notice. Each water supplier for a public water system including, community water systems, non-transient non-community water systems, and transient non-community water systems, shall give notice for all violations of national primary drinking water regulations (NPDWR) and for other situations, as listed in sub. (3). The term “NPDWR violations” is used in this subchapter to include violations of the maximum contaminant level, maximum residual disinfection level, treatment technique, monitoring requirements, and testing procedures in this chapter. Appendix A to this subchapter identifies the tier assignment for each specific violation or situation requiring a public notice.

NR 809.950(3) (3) Violation categories and other situations requiring a public notice.

NR 809.950(3)(a) (a) All of the following NPDWR violations require a public notice:

NR 809.950(3)(a)1. 1. Failure to comply with an applicable maximum contaminant level or maximum residual disinfectant level.

NR 809.950(3)(a)2. 2. Failure to comply with a treatment technique prescribed by this chapter.

NR 809.950(3)(a)3. 3. Failure to perform water quality monitoring, as required by the drinking water regulations.

NR 809.950(3)(a)4. 4. Failure to comply with testing procedures as prescribed in this chapter or by a drinking water regulation.

NR 809.950(3)(b) (b) Conditional waiver to public notice requirements under subch. VI, including all of the following, require a public notice:

NR 809.950(3)(b)1. 1. Operation under a conditional waiver.

NR 809.950(3)(b)2. 2. Failure to comply with the requirements of any schedule that has been set under a conditional waiver.

NR 809.950(3)(c) (c) Special public notices, including all of the following, require a public notice:

NR 809.950(3)(c)1. 1. Occurrence of a waterborne disease outbreak or other waterborne emergency.

NR 809.950(3)(c)2. 2. Exceedance of the nitrate MCL by non-community water systems, if granted permission by the department under s. NR 809.11 (3).

NR 809.950(3)(c)3. 3. Exceedance of the secondary maximum contaminant level for fluoride.

NR 809.950(3)(c)4. 4. Availability of unregulated contaminant monitoring data.

NR 809.950(3)(c)5. 5. Other violations and situations determined by the department to require a public notice under this subchapter, not listed in Appendix A.

NR 809.950(4) (4) Type of public notice required for each violation or situation.

NR 809.950(4)(a) (a) Public notice tiers. Public notice requirements are divided into 3 tiers, to take into account the seriousness of the violation or situation and of any potential adverse health effects that may be involved. The public notice requirements for each violation or situation listed in sub. (3) are determined by the tier to which it is assigned. The definition of each tier is provided in par. (b). Appendix A identifies the tier assignment for each specific violation or situation.