Code of Massachusetts Regulations
310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION
Title 310 CMR 22.00 - Drinking Water
Section 22.13A - Small System Variances
Universal Citation: 310 CMR 22.00 MA Code of Regs 22.13A
Current through Register 1531, September 27, 2024
For compliance with a requirement specifying a Maximum Contaminant Level or treatment technique contained in 310 CMR 22.00.
(1) Size of Public Water System Eligible for a Small System Variance.
(a) The Department may
grant a small system variance to a Public Water System serving:
1. 3,300 persons or fewer, or
2. more than 3,300 persons, but fewer than
10,000 persons, with approval of the Administrator.
(b) In determining the number of persons
served by the Public Water System, the Department or the Administrator, as
applicable, will include in the number, all persons served by consecutive
Public Water System. A small system variance granted to a Public Water System
shall also apply to any consecutive Public Water System served by it.
(2) Small System Variances Availability.
(a) A
small system variance is not available under 310 CMR 22.13A for a national
primary drinking water regulation for a microbial contaminant (including a
bacterium, Virus, or other organism) or an indicator or Treatment Technique for
a microbial contaminant.
(b) A
small system variance under 310 CMR 22.13A is otherwise only available for
compliance with the requirement specifying a Maximum Contaminant Level or
Treatment Technique for a contaminant with respect to which;
1. a national primary drinking water
regulations was promulgated on or after January 1, 1986; and
2. the Administrator has published a small
system variance technology pursuant to the federal Safe Drinking Water Act,
§ 1412(b)(15).
(3) Timing of a Small System Variance. No variance can be granted under 310 CMR 22.13A by the Department until the later of the following:
(a) 90 days after the Department proposes to
grant the small system variance;
(b) If the Department is proposing to grant a
small system variance to a Public Water System serving 3,300 or fewer persons
and the Administrator objects to the small system variance, the date on which
the Department makes the recommended modifications or responds in writing to
each objection; or
(c) If the
Department is proposing to grant a small system variance to a Public Water
System serving a population more than 3,300 and fewer than 10,000 persons, the
date the Administrator must approve or disapprove the variance within 90 days
after it is submitted to the Administrator for review.
(4) Review of Small System Variance Applications.
(a) A
Public Water System requesting a small system variance must provide accurate
and correct information to the Department or the Administrator to issue a small
system variance in accordance with 310 CMR 22.13A. The Department may assist a
Public Water System in compiling information required for the Department or the
Administrator to issue a small system variance in accordance with 310 CMR
22.13A.
(b) Based upon an
application for a small system variance and other information, and before a
small system variance may be proposed under 310 CMR 22.13A, the Department or
the Administrator must find and document the following:
1. The small system is eligible for a small
system variance pursuant to 310 CMR 22.13A(1) and (2).
2. The Small Water System cannot afford to
comply, in accordance with affordability criteria established by the
Department, with the national primary drinking water regulations for which a
small system variance is sought, including by:
a. Treatment;
b. Alternative sources of water
supply;
c. Restructuring or
consolidation changes, including ownership change and/or physical consolidation
with another Public Water System; or
d. Obtaining financial assistance pursuant to
Drinking Water State Revolving Fund loan program,
310 CMR 45.00: DEP
Selection, Approval and Regulation of Drinking Water Projects Receiving
Financial Assistance from the State Revolving Fund or any other
Federal or State program.
3. The small system meets the source water
quality requirements for installing the small system variance technology
developed by the Administrator pursuant to guidance published under the federal
Safe Drinking Water Act, § 1412(b)(15) .
4. The small system has the technical,
managerial and financial capacity to install, operate and maintain the
applicable small system variance technology in compliance with
310
CMR 22.04; and
5. The terms and conditions of the small
system variance, as developed through compliance with 310 CMR 22.13A(5), ensure
adequate protection of human health, considering the following:
a. the quality of the source water for the
Public Water System; and
b. removal
efficiencies and expected useful life of the small system variance
technology.
6. The small
system has the technical, managerial, and financial capacity to operate its
system, as determined by the Department.
(5) Terms and Conditions. The terms and conditions of the small system variance shall include, at a minimum, the following requirements:
(a) proper and effective installation,
operation and maintenance of the applicable small system variance technology in
accordance with guidance published by the Administrator pursuant to the federal
Safe Drinking Water Act, § 1412(b)(15), taking into consideration any
relevant source water characteristics and any other site-specific conditions
that may affect proper and effective operation and maintenance of the
technology;
(b) monitoring
requirement for the contaminant for which a small system variance is sought, as
specified at
310 CMR
22.00; and
(c) any other terms or conditions that are
necessary to ensure adequate protection of public health, which may include:
1. Public education requirements;
and
2. Source water protection
requirements.
(d) the
Department or the Administrator shall establish a schedule for the Public Water
System to comply with the terms and conditions of the small system variance
which must include, at a minimum, the following requirements:
1. increments of progress, such as milestone
dates for the Public Water System to apply for financial assistance and begin
capital improvements;
2. quarterly
reporting to the Department or Administrator, as applicable, of the public
system's compliance with the terms and conditions of the small system
variance;
3. schedule for the
Department or the Administrator to review the small system variance under 310
CMR 22.13A(5)(e); and
4. compliance
with the terms and conditions of the small system variance as soon as
practicable but not later than three years after the date on which the small
system variance is granted. The Administrator or the Department may allow up to
two additional years in the Administrator of the Department determines that
additional time is necessary for the Public Water System to;
a. complete necessary capital improvements to
comply with small system variance technology, secure an alternative source of
water or restructure or consolidate; or
b. obtain financial assistance provided
pursuant to the Drinking Water State Revolving Funds loan program,
310 CMR 45.00: DEP
Selection, Approval and Regulation of Drinking Water Projects Receiving
Financial Assistance from the State Revolving Fund or any other
federal or state Program.
(e) The Department or the Administrator must
review each small system variance granted not less often than every five years
after the compliance date established in the small system variance to determine
whether the Public Water System continues to meet the eligibility criteria and
remains eligible for the small system variance and is complying with the terms
and conditions of the small system variance. If the Public Water System would
no longer be eligible for a small system variance, the Department or the
Administrator must determine whether continuing the variance is in the public
interest. If the Department or the Administrator finds that continuing the
variance is not in the public interest, the variance shall be
withdrawn.
(6) Public Participation.
(a) At least 15 days before the date of
variance proposal, and at least 30 days prior to a public meeting to discuss
the proposed small system variance, the small waster system as directed by the
Department or Administrator, must provide notice to all Persons served by the
Public Water System. For billed customers, identified in 310 CMR
22.13A(6)(a)1., this notice must include the information listed in 310 CMR
22.13A(6)(c). For other Persons regularly served by the system, identified in
310 CMR 22.13A(6)(a)2., the notice shall include the information identified in
310 CMR 22.13A(6)(d). Notice must be provided to all Persons served by:
1. Direct mail or other home delivery to
billed customers or other service connections; and
2. Any other method reasonable calculated to
notify, in a brief and concise manner, other Persons regularly served by the
system. Such methods may include publication in a local newspaper, posting in
public places or delivery to community organizations.
(b) At the time of proposal, the Department
will publish a notice in the State Register or a newspaper or
newspapers of wide circulation in the State, or in the case of the
Administrator, in the Federal Register. This notice shall
include the information listed in 310 CMR 22.13A(6)(c).
(c) The notice in 310 CMR 22.13A(6)(a)1. and
(b) must include, at a minimum, the following:
1. Identification of the contaminant(s) for
which a small system variance is sought;
2. A brief statement of the health effects
associated with the contaminant(s) for which a small system variance is sought
using the applicable language contained in
310 CMR
22.16A(27);
3. The address and telephone number at which
interested Persons may obtain further information concerning the contaminant
and the small system variance;
4. A
brief summary, in easy understandable terms, of the terms and conditions of the
small system variance;
5. A
description of the consumer petition process under 310 CMR 22.13A(8)(a) and
information on contacting the EPA Regional Office;
6. A brief statement announcing the public
meeting required under 310 CMR 22.13A(7)(a), including a statement of the
purpose of the meeting, information regarding the time and location for the
meeting, and the address and telephone number at which interested Persons may
obtain further information concerning the meeting; and
7. In communities with a large proportion of
non-English-speaking residents, as determined by the Department, information in
the appropriate language regarding the content and importance of the
notice.
(d) The notice
in 310 CMR 22.13A(6)(a)2. must provide sufficient information to alert readers
to the proposed variance and direct them where to receive additional
information.
(e) At its option, the
Department or the Administrator may choose to issue separate notices or
additional notices related to the proposed small system variance, provided that
the requirements in 310 CMR 22.13A(5)(a) through (d) are satisfied.
(f) Prior to promulgating the final variance,
the Department or the Administrator must respond in writing to all significant
public comments received relating to the small system variance. Response to
public comment and any other documentation supporting the issuance of a
variance must be made available to the public after final
promulgation.
(7) Public Meeting Requirements.
(a) The Department or the Administrator must
provide for at least one public meeting on the small system variance no later
than 15 days after the small system variance is proposed.
(b) At the time of the public meeting, the
Department or Administrator must prepare and make publicly available, in
addition to the information listed in 310 CMR 22.13A(6)(c), either;
1. The proposed small system variance, if the
public meeting occurs after proposal of the small system variance; or
2. A draft of the proposed small system
variance, if the public meeting occurs prior to proposal of the proposed small
system variance.
3. Notice of the
public meeting must be provided in the manner required under 310 CMR 22.13A(6)
at least 30 days in advance of the public meeting. The notice shall be provided
by the Public Water System, as directed by the Department or
Administrator.
(8) Consumer Petition Process.
(a) Any Person served
by the small system may petition the Administrator to object to the granting of
a small system variance within 30 days after the Department proposes to grant a
small system variance for a Public Water System.
(b) The Administrator must respond to a
petition filed by any Person served by the small system and determine whether
to object to the small system variance under 310 CMR 22.13A(9), no later than
60 days after the receipt of the petition.
(9) EPA Review and Approval of Small System Variances.
(a) At
the time the Department proposes to grant a small system variance under 310 CMR
22.13A, the Department must submit to the Administrator the proposed small
system variance and all supporting information, including any written public
comments received prior to proposal.
(b) The Administrator may review and object
to any proposed small system variance within 90 days of receipt of the proposed
small system variance. The Administrator must notify the Department in writing
of each basis for the objection and propose a modification to the small system
variance to resolve the concerns of the Administrator. The Department must make
the recommended modification, respond in writing to each objection, or withdraw
the proposal to grant the small system variance.
(c) If the Department issues the small system
variance without resolving the concerns of the Administrator, the Administrator
may overturn the Department's decision to grant the variance if the
Administrator determines the Department's decision does not comply with the
federal Safe Drinking Water Act, or
40 CFR
142.301 through
142.313.
(10) EPA action on a small system variance to a Public Water System serving a population of more than 3,300 and fewer than 10,000 persons.
(a) At the time the
Department proposes to grant a small system variance to a small system serving
a population of more than 3,300 and fewer than 10,000 persons, the Department
must submit the proposed small system variance and all supporting information,
including public comments received prior to proposal, to the
Administrator.
(b) The
Administrator must approve or disapprove the small system variance within 90
days of receipt of the proposed small system variance and supporting
information. The Administrator must approve the small system variance if it
meets each requirement within the federal Safe Drinking Water Act, and
40 CFR
142.301 through
142.313.
(c) If the Administrator disapproves the
small system variance, the Administrator must notify the Department in writing
of the reasons for disapproval and the small system variance does not become
effective. The Department may resubmit the small system variance for review and
approval with modifications to address the objections stated by the
Administrator.
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