Rhode Island Code of Regulations › Title 216 - Department of health › Chapter 50 - Environmental health › Subchapter 05 - Water Quality › Part 1 - Public Drinking Water (216-RICR-50-05-1) › Section 216-RICR-50-05-1.15 - Variances and Exemptions

Current through June 14, 2024
1.15.1
General Provisions for Variances and Exemptions
A. Variances and exemptions to this Part may
				  be granted by the Director in accordance with R.I. Gen Laws Chapter 42-35 and
				  if deemed applicable by the Director the provisions of 42 U.S.C. §§
				  300g.4and 300g.5 et seq.
B.
				  Variances pursuant to 42 U.S.C. § 300g.4 may be granted as follows:
1. The Director may grant variances from an
				  applicable national primary drinking water regulation to a PWS which, because
				  of characteristics of the raw water sources which are reasonably available to
				  the PWS, cannot meet the requirements respecting the maximum contaminant levels
				  of such drinking water regulation. A variance may be issued to a PWS on
				  condition that the PWS install the best technology, treatment techniques, or
				  other means, which the Director finds are available (taking costs into
				  consideration) and based upon an evaluation satisfactory to the Director that
				  indicates that alternative sources of water are not reasonably available to the
				  PWS. Before the Director may grant a variance under §1.15.1(B)(1) of this
				  Part, the Director must find that the variance will not result in an
				  unreasonable risk to health. If the Director grants a PWS a variance under
				  §1.15.1(B)(1) of this Part, the Director shall prescribe at the time the
				  variance is granted, a schedule for:
a.
				  Compliance (including increments of progress) by the PWS with each contaminant
				  level requirement with respect to which the variance was granted, and
b. Implementation by the PWS of such
				  additional control measures as the State may require for each contaminant,
				  subject to such contaminant level requirement, during the period ending on the
				  date compliance with such requirement is required. Before a schedule prescribed
				  pursuant to §1.15.1(B)(1) of this Part, may take effect, the Director
				  shall provide notice and opportunity for a public hearing on the schedule. A
				  schedule prescribed pursuant to §1.15.1(B)(1) of this Part, for a PWS
				  granted a variance shall require compliance by the PWS with each contaminant
				  level requirement with respect to which the variance was granted as
				  expeditiously as practicable.
2. The Director may grant variances from any
				  provisions of a national primary drinking water regulation which requires the
				  use of a specified treatment technique with respect to a contaminant if the PWS
				  applying for the variance demonstrates to the satisfaction of the Director that
				  such treatment technique is not necessary to protect the health of persons
				  because of the nature of the raw water source of such PWS. A variance granted
				  under §1.15.1(B)(2) of this Part shall be conditioned on such monitoring
				  and other requirements as the Director may prescribe.
3. Before a variance proposed to be granted
				  by the Director under §§1.15.1(B)(1) or (2) of this Part may take
				  effect, the Director shall provide notice and opportunity for public hearing on
				  the proposed variance. The Director shall promptly notify the Administrator of
				  all variances that are granted. Such notification shall contain the reason for
				  the variance [and in the case of a variance under §1.15.1(B)(1) of this
				  Part, the basis for the finding required by §1.15.1(B)(1) of this Part,
				  before the granting of the variance] and documentation of the need for the
				  variance.
4. Each PWS's variance
				  granted under §1.15.1(B)(1) of this Part shall be conditioned upon
				  compliance by the PWS with the schedule prescribed by the Director pursuant to
				  that Subparagraph.
5. For such
				  variance issued under this Subparagraph, the Director
a. Must document all findings that are
				  required under 42 U.S.C. § 300g.4(a).
b. If the Director prescribes a schedule
				  pursuant to §1.15.1(B)(1) of this Part requiring compliance with a
				  contaminant level for which the variance is granted later than five (5) years
				  from the date of issuance of the variance the Director must:
(1) document the rationale for the extended
				  compliance schedule;
(2) discuss
				  the rationale for the extended compliance schedule in the required public
				  notice and opportunity for public hearing; and
(3) provide the shortest practicable time
				  schedule feasible under the circumstances.
6. General Provisions for Small Systems
				  Variances
a. Small system variances are
				  variances from the requirement to comply with a maximum contaminant level or
				  treatment technique to PWSs serving fewer than 10,000 persons. The purpose of
				  this subpart is to provide the procedures and criteria for obtaining these
				  variances.
b. Only the Director can
				  issue a small system variance under this part.
c. Requirements to receive a small system
				  variance
(1) The Director may grant a small
				  system variance to PWSs serving 3,300 or fewer persons.
(2) With the approval of the EPA Regional
				  Administrator, the Director may grant a small system variance to PWSs serving
				  more than 3,300 persons but fewer than 10,000 persons.
(3) In determining the number of persons
				  served by the PWS, persons served by consecutive PWSs must be included. A small
				  system variance granted to a PWS would also apply to any consecutive PWS served
				  by it.
d. Regulatory
				  requirements for a small system variance
(1)
				  A small system variance is not available under §
														1.15   of this Part for a
				  national primary drinking water regulation for a microbial contaminant
				  (including total coliform, E. coli, a bacterium, virus, or other organism) or
				  an indicator or treatment technique for a microbial contaminant.
(2) A small system variance under §
														1.15   of this Part, is
				  otherwise only available for compliance with a requirement specifying a maximum
				  contaminant level or treatment technique for a contaminant with respect to
				  which:
(AA) A national primary drinking water
				  regulation was promulgated on or after January 1, 1986; and
(BB) The Administrator has published a small
				  system variance technology pursuant to 42 U.S.C. § 300g.1(b)(15). Small
				  system variances are not available for any PWS above the pre-1986 maximum
				  contaminant level even if subsequently revised. If the agency revises a
				  pre-1986 maximum contaminant level and makes it more stringent, then a variance
				  would be available for that contaminant, but only up to the pre-1986 maximum
				  contaminant level.
e. No small system variance can be granted by
				  the Director until the later of the following:
(1) Ninety (90) days after the Director
				  proposed to grant the small system variance;
(2) If the Director is proposing to grant a
				  small system variance to a PWS serving 3,300 or fewer persons and the
				  Administrator objects to the small system variance, the date on which the
				  Director makes the recommended modifications or responds in writing to each
				  objection; or
(3) If the Director
				  is proposing to grant a small system variance to a PWS serving a population
				  more than 3,300 and fewer than 10,000 persons, the date the Administrator
				  approves the small system variance. The Administrator must approve or
				  disapprove the variance within ninety (90) days after it is submitted to the
				  Administrator for review.
f. Responsibilities of the PWS, Director, and
				  the Administrator in ensuring that sufficient information is available and for
				  evaluation of a small system variance application
(1) A PWS requesting a small system variance
				  must provide accurate and correct information to the Director to issue a small
				  system variance in accordance with this subpart.
(2) Based upon an application for a small
				  system variance and other information, and before a small system variance may
				  be proposed under this subpart, the Director must find and document the
				  following:
(AA) The PWS is eligible for a
				  small system variance pursuant to §§1.15.1(B)(6)(c) (i.e., the PWS
				  serves a population of fewer than 10,000 persons) and (d) of this Part (i.e.,
				  the contaminant for which the small system variance is sought is not excluded
				  from variance eligibility);
(BB)
				  The PWS cannot afford to comply, in accordance with the affordability criteria
				  established by the Director, with the national primary drinking water
				  regulation for which a small system variance is sought, including by:
(i) Treatment;
(ii) Alternative sources of water
				  supply;
(iii) Restructuring or
				  consolidation changes, including ownership change and/or physical consolidation
				  with another PWS; or
(iv) Obtaining
				  financial assistance;
(CC) The PWS meets the source water quality
				  requirements for installing the small system variance technology;
(DD) The PWS is financially and technically
				  capable of installing, operating and maintaining the applicable small system
				  variance technology; and
(EE) The
				  terms and conditions of the small system variance, as developed through
				  compliance with §1.15.1(B)(6)(g) of this Part, ensure adequate protection
				  of human health, considering the following:
(i) The quality of the source water for the
				  PWS; and
(ii) Removal efficiencies
				  and expected useful life of the small system variance technology.
g. Terms and
				  conditions of a small system variance
(1) The
				  Director must clearly specify enforceable terms and conditions of a small
				  system variance.
(2) The terms and
				  conditions of a small system variance issued under this subpart must include,
				  at a minimum, the following requirements:
(AA) Proper and effective installation,
				  operation, and maintenance of the applicable small system variance technology
				  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;
(BB) Monitoring requirements, for the
				  contaminant for which a small system variance is sought; and
(CC) Any other terms or conditions that are
				  necessary to ensure adequate protection of public health, which may include:
(i) Public education requirements;
				  and
(ii) Source water protection
				  requirements.
(3) The Director must establish a schedule
				  for the PWS to comply with the terms and conditions of the small system
				  variance which must include, at a minimum, the following requirements:
(AA) Increments of progress, such as
				  milestone dates for the PWS to apply for financial assistance and begin capital
				  improvements;
(BB) Quarterly
				  reporting to the Director of the PWS's compliance with the terms and conditions
				  of the small system variance;
(CC)
				  Schedule for the Director to review the small system variance under §
															1.15(B)(4)
				    of this Part; and
(DD) Compliance
				  with the terms and conditions of the small system variance as soon as
				  practicable but not later than three (3) years after the date on which the
				  small system variance is granted. The Director may allow up to two (2)
				  additional years if the Director determines that additional time is necessary
				  for the PWS to:
(i) Complete necessary
				  capital improvements to comply with the small system variance technology,
				  secure an alternative source of water, or restructure or consolidate;
				  or
(ii) Obtain financial
				  assistance.
(4) The Director must review each small
				  system variance granted not less often than every five (5) years after the
				  compliance date established in the small system variance to determine whether
				  the PWS 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 PWS would no longer be eligible for a small
				  system variance, the Director must determine whether continuing the variance is
				  in the public interest. If the Director finds that continuing the variance is
				  not in the public interest, the variance must be withdrawn.
h. Public Participation
(1) Required public notice prior to issuance
				  of small system variance
(AA) At least
				  fifteen (15) days before the date of proposal, and at least thirty (30) days
				  prior to a public meeting to discuss the proposed small system variance, the
				  Director, or PWS as directed by the Director, must provide notice to persons
				  served by the PWS. For billed customers, identified in §1.15.1(B)(1) of
				  this Part, this notice must include the information listed in
				  §1.15.1(B)(3) of this Part. For other persons regularly served by the
				  system, identified in §1.15.1(B)(2) of this Part, the notice shall include
				  the information identified in §1.15.1(B)(4) of this Part. Notice must be
				  provided to all persons served by:
(i) Direct
				  mail or other home delivery to billed customers or other service connections;
				  and
(ii) Any other method
				  reasonably 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.
(BB) At
				  the time of proposal, the Director must publish a notice in a newspaper or
				  newspapers of wide circulation in the State. This notice shall include the
				  information listed in §1.15.1(B)(3) of this Part.
(CC) The notice in §§1.15.1(B)(1)
				  and (2) of this Part, must include, at a minimum, the following:
(i) Identification of the contaminant(s) for
				  which a small system variance is sought;
(ii) A brief statement of the health effects
				  associated with the contaminant(s) for which a small system variance is sought
				  using language in §1.16.12 of this Part;
(iii) The address and telephone number at
				  which interested persons may obtain further information concerning the
				  contaminant and the small system variance;
(iv) A brief summary, in easily
				  understandable terms, of the terms and conditions of the small system
				  variance;
(v) A description of the
				  consumer petition process under §1.15.1(B)(6)(h)(3) of this Part, and
				  information on contacting the EPA Regional Office;
(vi) A brief statement announcing the public
				  meeting required under §1.15.1(B)(6)(h)(2)(AA) of this Part, 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
(vii) In communities with a
				  large proportion of non-English-speaking residents, as determined by the
				  Director, information in the appropriate language regarding the content and
				  importance of the notice.
(DD) The notice in §1.15.1(B)(1)(b) of
				  this Part, must provide sufficient information to alert readers to the proposed
				  variance and direct them where to receive additional information.
(EE) At his or her option, the Director or
				  the Administrator may choose to issue separate notices or additional notices
				  related to the proposed small system variance, provided that the requirements
				  in §§1.15.1(B)(1) through (4) of this Part are satisfied.
(FF) Prior to promulgating the final
				  variance, the Director 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.
(2) Public Meeting Requirements for proposal
				  of a small variance system
(AA) The Director
				  must provide for at least one (1) public meeting on the small system variance
				  no later than fifteen (15) days after the small system variance is
				  proposed.
(BB) At the time of the
				  public meeting, the Director must prepare and make publicly available, in
				  addition to the information listed in §1.15.1(B)(6)(h)(1)(CC) of this
				  Part, either:
(i) The proposed small system
				  variance, if the public meeting occurs after proposal of the small system
				  variance; or
(ii) A draft of the
				  proposed small system variance, if the public meeting occurs prior to proposal
				  of the proposed small system variance.
(CC) Notice of the public meeting must be
				  provided in the manner required under §1.15.1(B)(6)(h)(1) of this Part, at
				  least thirty (30) days in advance of the public meeting. This notice must be
				  provided by the Director or the PWS as directed by the Director.
(3) Obtaining EPA review of a
				  small system variance proposed by the Director
(AA) Any person served by the PWS may
				  petition the Administrator to object to the granting of a small system variance
				  within thirty (30) days after the Director proposes to grant a small system
				  variance for a PWS.
(BB) The
				  Administrator must respond to a petition filed by any person served by the PWS
				  and determine whether to object to the small system variance no later than
				  sixty (60) days after the receipt of the petition.
i. EPA Review and Approval of
				  Small System Variances
(1) Administrator
				  objections to a proposed small system variance or overturn of a granted small
				  system variance for a PWS serving 3,300 or fewer persons
(AA) At the time the Director proposes to
				  grant a small system variance under this subpart, the Director must submit to
				  the Administrator the proposed small system variance and all supporting
				  information, including any written public comments received prior to
				  proposal.
(BB) The Administrator
				  may review and object to any proposed small system variance within ninety (90)
				  days of receipt of the proposed small system variance. The Administrator must
				  notify the Director 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 Director must make the recommended modification, respond in
				  writing to each objection, or withdraw the proposal to grant the small system
				  variance.
(CC) If the Director
				  issues the small system variance without resolving the concerns of the
				  Administrator, the Administrator may overturn the decision to grant the
				  variance if the Administrator determines that the Director's decision does not
				  comply with the Safe Drinking Water Act or this rule.
(2) EPA action necessary when the Director
				  proposes to grant a small system variance to a PWS serving a population of more
				  than 3,300 and fewer than 10,000 persons
(AA)
				  At the time the Director proposes to grant a small system variance to a PWS
				  serving a population of more than 3,300 and fewer than 10,000 persons, the
				  Director must submit the proposed small system variance and all supporting
				  information, including public comments received prior to proposal, to the
				  Administrator.
(BB) The
				  Administrator must approve or disapprove the small system variance within
				  ninety (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 Act and this rule.
(CC) If the Administrator disapproves the
				  small system variance, the Administrator must notify the Director in writing of
				  the reasons for disapproval and the small system variance does not become
				  effective. The Director may resubmit the small system variance for review and
				  approval with modifications to address the objections stated by the
				  Administrator
C. Exemptions Pursuant to 42 U.S.C. §
				  300g.5 of the Safe Drinking Water Act.
1.
				  Exemptions may be granted by the Director from any requirement respecting a
				  maximum contaminant level or any treatment technique requirement, or from both,
				  of an applicable national primary drinking water regulation upon a finding
				  that:
a. Due to compelling factors (which may
				  include economic factors, including qualification of the PWS as a system
				  serving a disadvantaged community), the PWS is unable to comply with such
				  contaminant level or treatment technique requirement or to implement measures
				  to develop an alternative source of water supply;
b. The PWS was in operation on the effective
				  date of such contaminant level or treatment technique requirement or for a PWS
				  that was not in operation by that date, only if no reasonable alternative
				  source of drinking water is available to such new PWS;
c. The granting of the exemption will not
				  result in an unreasonable risk to health; and
d. Management or restructuring changes (or
				  both) cannot reasonably be made that will result in compliance or, if
				  compliance cannot be achieved, improve the quality of the drinking
				  water.
2. If the Director
				  grants a PWS an exemption under §1.15.1(C)(1) of this Part, the exemption
				  shall include a schedule which includes the items listed in this Paragraph.
				  Before a schedule prescribed by the Director pursuant to this subsection may
				  take effect, the Director shall provide notice and opportunity for a public
				  hearing on the schedule.
a. The Director
				  shall prescribe, at the time the exemption is granted, a schedule for:
(1) Compliance (including increments of
				  progress or measures to develop an alternative source of water supply) by the
				  PWS with each contaminant level requirement or treatment technique requirement
				  with respect to which the exemption was granted, and
(2) Implementation by the PWS of such control
				  measures as the Director may require for each contaminant, subject to such
				  contaminant level requirement or treatment technique requirement, during the
				  period ending on the date compliance with such requirement is
				  required.
b. A schedule
				  prescribed pursuant to this subsection for a PWS granted an exemption under
				  §1.15.1(C)(1) of this Part shall require the following:
(1) Compliance by the PWS with each
				  contaminant level and treatment technique requirement with respect to which the
				  exemption was granted as expeditiously as practicable but not later than three
				  (3) years after the otherwise applicable compliance date.
(2) No exemption shall be granted unless the
				  PWS establishes that the PWS is taking all practicable steps to meet the
				  standard; and
(AA) the PWS cannot meet the
				  standard without capital improvements which cannot be completed prior to the
				  otherwise applicable compliance date;
(BB) in the case of a PWS which needs
				  financial assistance for the necessary improvements, the PWS has entered into
				  an agreement to obtain such financial assistance or assistance is reasonably
				  likely to be available within the period of the exemption; or
(CC) the PWS has entered into an enforceable
				  agreement to become a part of a regional PWS.
(3) In the case of a PWS which does not serve
				  more than a population of 3,300 and which needs financial assistance for the
				  necessary improvements, an exemption granted under clause (AA) or (BB) of
				  §1.15.1(C)(2)(b)(2) of this Part, may be renewed for one (1) or more
				  additional two (2)-year periods, but not to exceed a total of 6 years, if the
				  PWS establishes that it is taking all practicable steps to meet the
				  requirements of §1.15.1(C)(2)(b)(2) of this Part.
(4) Limitation - A PWS may not receive an
				  exemption under this Section if the PWS was granted a variance under
				  §1.15.1(B) of this Part.
c. Each PWS's exemption granted by the
				  Director under §1.15.1(C)(1) of this Part shall be conditioned upon
				  compliance by the PWS with the schedule prescribed pursuant to this
				  subsection.
3. The
				  Director shall promptly notify the Administrator of the granting of all
				  exemptions. Such notification shall contain the reasons for the exemption and
				  document the need for the exemption.
4. The Director must document all findings
				  that are required under 42 U.S.C. § 300g.5 of the Act:
a. Before finding that management and
				  restructuring changes cannot be made, the Director must consider the following
				  measures, and the availability of State Revolving Loan Fund assistance, or any
				  other Federal or State program, that is reasonably likely to be available
				  within the period of the exemption to implement these measures:
(1) Consideration of rate increases,
				  accounting changes, the appointment of a State certified operator under the
				  State's Operator Certification program, contractual agreements for joint
				  operation with one (1) or more PWSs;
(2) Activities consistent with the State's
				  Capacity Development Strategy to help the PWS acquire and maintain technical,
				  financial, and managerial capacity to come into compliance; and
(3) Ownership changes, physical consolidation
				  with another PWS, or other feasible and appropriate means of consolidation
				  which would result in compliance;
b. The Director must consider the
				  availability of an alternative source of water, including the feasibility of
				  partnerships with neighboring PWSs, as identified by the PWS or by the Director
				  consistent with the Capacity Development Strategy.