310 CMR, § 22.13 - Variances

The Department upon receipt of an application from the Public Water System, may grant variances from the requirements of 310 CMR 22.05 through 22.09A, but only subject to the following conditions:

(1) The Department may grant one or more variances to one or more Public Water Systems:
(a) which, because of characteristics of the raw water sources which are reasonably available to the system(s), cannot comply with a prescribed Maximum Contaminant Level or levels despite application of the best technology, Treatment Techniques, or other means, which the Department finds are generally available, taking costs into consideration. The Department shall not grant a variance pursuant to 310 CMR 22.13(1)(a) unless the Department finds in consultation with the Massachusetts Department of Public Health that the variance will not result in an unreasonable risk to health. If the Department grants a Public Water System a variance pursuant to 310 CMR 22.13(1)(a) the Department shall prescribe at the time the variance is granted, a compliance schedule for:
1.
a. Compliance, within the shortest practicable time feasible under the circumstances but not to exceed five years, except as provided in 310 CMR 22.13(1)(a)2., including increments of progress by the Public Water System with each Maximum Contaminant Level requirement with respect to which the variance was granted; and
b. Implementation by the Public Water System of such control measures as the Department may require for each contaminant, that is subject to the Maximum Contaminant Level requirement, during the period ending on the date compliance with such requirement is required.
2. If the compliance schedule exceeds five years from the date of issuance, then the public notice issued pursuant to 310 CMR 22.13(2) shall include a discussion of the rationale for the extension. In no event shall any compliance schedule exceed the shortest practicable time schedule feasible under the circumstances.
(b) from any provision of 310 CMR 22.13 which requires the use of a specified Treatment Technique with respect to a contaminant if the Public Water System applying for the variance demonstrates to the Department's satisfaction that such Treatment Technique is not necessary to protect the health of Persons because of the nature of the raw water source of such system. A variance granted pursuant to 310 CMR 22.13(1)(b) shall be conditioned on such monitoring and other requirements as the Department may prescribe.
(2) Before the Department grants any variance, or prescribes any schedule pursuant to any variance, the Department shall give notice and opportunity for public hearing to the public, to the Massachusetts Department of Public Health, and to the Agency. A notice given pursuant to 310 CMR 22.13(2) may cover the granting of more than one variance or the prescribing of more than one schedule, and a hearing held pursuant to such notice shall include each of the variances and schedules covered by the notice.
(3) The Department shall not accept any application for a variance unless the Public Water System applying for the variance agrees in writing to all of the following:
(a) Pay in full the cost of all notices and hearings required by 310 CMR 22.13(2);
(b) Comply with any schedule prescribed pursuant to 310 CMR 22.13(1)(a) as expeditiously as possible;
(c) Comply with any monitoring or other requirement prescribed pursuant to 310 CMR 22.13(1)(b);
(d) Report to the Department, in the manner prescribed in 310 CMR 22.15, the results of all tests, measurements and analyses made in compliance with the variance, and with the schedule and/or monitoring requirements prescribed pursuant to the variance;
(e) Report to the Department, in the manner prescribed in 310 CMR 22.15, any failure to comply with the terms of the variance, or with the schedule and/or monitoring requirements prescribed pursuant to the variance;
(f) Notify the public, in the manner prescribed in 310 CMR 22.16 of the granting of the variance;
(g) Notify the public, in the manner prescribed in 310 CMR 22.16 of any failure to comply with the variance or with any requirement of any schedule or monitoring requirement prescribed pursuant to the variance; and
(h) Maintain all the records prescribed in 310 CMR 22.17 in the manner prescribed;
(i) The system has the technical, managerial, and financial capacity to adhere to 310 CMR 22.04(3), as determined by the Department.
(4) Every variance issued by the Department shall be conditioned on compliance by the Public Water System with the requirements set forth in 310 CMR 22.13(3)(a) through (h). Said requirements shall have the same force and effect they would have if specifically set forth in 310 CMR 22.00.
(5) The Department shall promptly report to the Administrator or to the Administrator's designee, every variance granted by the Department. Such notification shall contain all of the following:
(a) The reason for the variance;
(b) The basis for the Department's finding that the granting of the variance will not result in an unreasonable risk to health, in those cases where the Department must make such a finding before granting a variance; and
(c) Documentation of the need for the variance.
(6) All applications for variances shall be made on forms prescribed by the Department.
(7) Best Available Technologies (BATs).
(a) BATs for Organic Compounds. The following technologies listed in 310 CMR 22.13(7)(a)1. through 54. are identified by the EPA Administrator, pursuant to the federal Safe Drinking Water Act, § 1415(a) (1)(A), (effective August 6, 1996) as the best technology, Treatment Techniques, or other means available for achieving compliance with the Maximum Contaminant Levels for organic chemicals as listed in 310 CMR 22.07A(1) and 22.07B(1).

Best Available Technologies

Contaminant

PTA1

GAC2

OX3

1. Benzene

X

X

2. Carbon tetrachloride

X

X

3. 1,2-Dichloroethane

X

X

4. Trichloroethylene

X

X

5. para-Dichlorobenzene

X

X

6. 1,1-Dichloroethylene

X

X

7. 1,1,1-Trichloroethane

X

X

8. Vinyl chloride

X

9. cis-1,2-Dichloroethylene

X

X

10. 1,2-Dichloropropane

X

X

11. Ethylbenzene

X

X

12. Monochlorobenzene

X

X

13. o-Dichlorobenzene

X

X

14. Styrene

X

X

15. Tetrachloroethylene

X

X

16. Toluene

X

X

17. trans-1,2-Dichloroethylene

X

X

18. Xylenes (total)

X

X

19. Alachlor

X

20. Aldicarb

X

21. Aldicarb sulfoxide

X

22. Aldicarb sulfone

X

23. Atrazine

X

24. Carbofuran

X

25. Chlordane

X

26. Dibromochloropropane

X

X

27. 2,4-D

X

28. Ethylene dibromide

X

X

29. Heptachlor

X

30. Heptachlor epoxide

X

31. Lindane

X

32. Methoxychlor

X

33. PCBs

X

34. Pentachlorophenol

X

35. Toxaphene

X

36. 2,4,5-TP

X

37. Endrin

X

38. Benzo(a)pyrene

X

39. Dalapone

X

40. Dichloromethane

X

41. Di(2-ethylhex)adipate

X

X

42. Di(2-ethylhexyl)phthalate

X

43. Dinoseb

X

44. Diquat

X

45. Endothall

X

46. Glphosate

X

47. Hexachlorobenzene

X

48. Hexachlorocyclopentadiene

X

X

49. Oxamyl

X

50. Picloram

X

51. Simazine

X

52. 1,2,4-Trichlorobenzene

X

X

53. 1,1,2-Trichloroethane

X

X

54. 2,3,7,8-TCDD(Dioxin)

X
(b) BATs for Inorganic Compounds. The EPA Administrator, pursuant to the federal Safe Drinking Water Act, § 1415(a)(1)(A), (effective August 6, 1996), hereby identifies the following as the best technology, Treatment Techniques, or other means available for achieving compliance with the Maximum Contaminant Levels for the inorganic contaminants listed in 310 CMR 22.13(7)(b):

BAT FOR INORGANIC CONTAMINANTS LISTED IN 310 CMR 22.06(2)

CHEMICAL NAME

BAT(s)

Antimony

2, 7

Asbestos

2, 3, 8

Barium

5, 6, 7, 9

Beryllium

1, 2, 5, 6, 7

Cadmium

2, 5, 6, 7

Chromium

2, 5, 62, 7

CHEMICAL NAME

BAT(s)

Cyanide

5, 7, 10

Mercury

21, 4, 61, 71

Nitrate

5, 7, 9

Nitrite

5, 7

Selenium

1, 23, 6, 7, 9

Thallium

1, 5

Key to BATs in Table

1 = Activated Alumina

2 = Coagulation/Filtration (Not BAT for Systems <500 service connections)

3 = Direct and Diatomite Filtration

4 = Granular Activated Carbon

5 = Ion Exchange Electrodialysis

6 = Lime Softening (not BAT for systems <500 service connections)

7 = Reverse Osmosis

8 = Corrosion Control

9 = Electrodialysis

10 = Chlorine

11 = Ultraviolet

1BAT only if influent Hg concentrations < 10 µg/l.

2BAT for Chromium III only

3BAT for Selenium IV only

(c) Best Available Technologies (BATs) for Radionuclides. The Department shall require Community Water Systems to install and/or use any treatment technology identified in 310 CMR 22.09A: Table C, or in the case of Small Water Systems (those serving 10,000 persons or fewer), 310 CMR 22.09A: Table D and Table E, as a condition for granting a variance under 310 CMR 22.13 or 22.13A, Small System Variances, except as provided in 310 CMR 22.13(7)(e).
(d) Requirement to Install BAT. The Department shall require Community Water Systems and Non-transient, Non-community Water Systems to install and/or use any treatment method identified in 310 CMR 22.13(7)(a) and (b) as a condition for granting a variance except as provided in 310 CMR 22.13(7)(e). If, after the system's installation of the treatment method, the system cannot meet the MCL, that system shall be eligible for a variance under the provisions of 310 CMR 22.13 or 22.13A, if the system serves fewer than 10,000 persons.
(e) Engineering Assessment Option. If a system can demonstrate through comprehensive engineering assessments, which may include pilot plant studies, that the treatment methods identified in 310 CMR 22.13(7)(a) through (c), or (g), would only achieve a de minimis reduction in contaminants, the Department may issue a schedule of compliance that requires the system being granted the variance to examine other treatment methods as a condition of obtaining the variance.
(f) Compliance Schedule. If the Department determines that a treatment method identified in 310 CMR 22.13(7)(e) is technically feasible, the Department may require the system to install and/or use that treatment method in connection with a compliance schedule issued under the provisions of the federal Safe Drinking Water Act, § 1415(a)(1)(A), (effective August 6, 1996), incorporated in 310 CMR 22.13(7) by reference. The Department's determination shall be based upon studies by the system and other relevant information.
(g) Best Available Technologies (BATs) for PFAS. Any Public Water System subject to 310 CMR 22.07G, as a condition for granting a variance under 310 CMR 22.13 or 22.13A, shall first install and use any of the following treatment technologies, except as provided in 310 CMR 22.13(7)(e):
1. granular activated carbon;
2. powdered activated carbon;
3. ion exchange resins;
4. nanofiltration; and
5. reverse osmosis.
(8) No variances from the requirements set forth in 310 CMR 22.20A are allowed.

Notes

310 CMR, § 22.13
Amended by Mass Register Issue 1309, eff. 3/25/2016. Amended by Mass Register Issue 1427, eff. 10/2/2020. Amended by Mass Register Issue 1461, eff. 1/21/2022.

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