Section 22.13A - Small System VariancesFor 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, or2. 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; and2. 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: b. Alternative sources of water supply;c. Restructuring or consolidation changes, including ownership change and/or physical consolidation with another Public Water System; ord. 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; and5. 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; andb. 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; and2. 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); and4. 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; orb. 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; and2. 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; and7. 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; or2. 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.Amended by Mass Register Issue 1309, eff. 3/25/2016.Amended by Mass Register Issue 1427, eff. 10/2/2020.