216 R.I. Code R. 216-RICR-50-05-1.15

Current through December 26, 2024

Section 216-RICR-50-05-1.15 - Variances and Exemptions

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.4 and 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

(4) 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.

(5) 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.

1.15.2Variances or exemptions from Maximum Contaminant Level (MCL) to total coliforms or from any of the treatment technique requirements of § 1.6 of this Part will not be granted.

A. Exceptions to § 1.15.2 of this Part, with respect to the MCL for total coliforms can be granted if the PWS can demonstrate to the Director that:

1. The violation of the total coliform MCL is due to a persistent growth of total coliforms in the distribution system;

2. No fecal or pathogenic contamination exists;

3. No treatment lapse or deficiency has occurred;

4. No problem in the operation or maintenance of the distribution system exists.

1.15.3Variances and exemptions from the MCLs for organic and inorganic contaminants, radionuclides and the treatment technique for lead and copper

A. Community PWS and non-transient, non-community PWS shall be required to install and/or use any treatment method identified in §§ 1.16.1(R), 1.16.2(C) and 1.16.5(H) of this Part as a condition for granting a variance except as provided in § 1.15.3(A)(1) of this Part. If, after the PWS's installation of the treatment method, the PWS cannot meet the MCL, that PWS shall be eligible for a variance.

1. If a PWS can demonstrate through comprehensive engineering assessments, which may include pilot plant studies, that the treatment methods identified in §§ 1.16.1(R), 1.16.2(C) and 1.16.5(H) of this Part would only achieve a de minimis reduction in contaminants, the Director may issue a schedule of compliance that requires the PWS being granted the variance to examine other treatment methods as a condition of obtaining the variance.

2. If the Director determines that a treatment method identified in § 1.15.3(B)(1) of this Part is technically feasible, the PWS will be required to install and/or use that treatment method in connection with a compliance schedule. The Director's determination shall be based upon studies by the PWS and other relevant information.

1.15.4Additional Requirements

A. In addition to the requirements of § 1.15.3 of this Part, a PWS may be required to use bottled water, point-of-use devices, point-of-entry devices or other means as a condition of granting a variance or an exemption to avoid an unreasonable risk to health. The Director may require a PWS to use bottled water and point-of-use devices or other means, but not point-of-entry devices, as a condition for granting an exemption from corrosion control treatment requirements for lead and copper in §§ 1.7.2 and 1.7.3 of this Part, to avoid an unreasonable risk to health. The Director may require a PWS to use point-of entry devices as a condition for granting an exemption for the source water and lead service line replacement requirements for lead and copper under §§ 1.7.4 or 1.7.5 of this Part to avoid an unreasonable risk to health.

B. A PWS that uses bottled water as a condition for receiving a variance or an exemption from the requirements of §§ 1.16.1, 1.16.2(A), 1.16.2(B) and 1.16.5 of this Part or an exemption from the requirements of §§ 1.7.2 through § 1.7.5 of this Part must use bottled water that is approved by the Director.

C. In requiring the use of a point-of-entry device as a condition for granting an exemption from the treatment requirements for lead and copper under §§ 1.7.4 or 1.7.5 of this Part, the Director must be assured that use of the device will not cause increased corrosion of lead and copper bearing materials located between the device and the tap that could increase contaminant levels at the tap.

1.15.5Allowable Nitrate Levels

A. At the discretion of the Director, nitrate levels not to exceed twenty (20) mg/l may be allowed in a non-community PWS if the supplier of water demonstrates to the satisfaction of the Director that:

1. Such water will not be available to children under six (6) months of age; and

2. The non-community PWS is meeting the public notification requirements under § 1.16.6 of this Part, including continuous posting of the fact that nitrate levels exceed 10 mg/l and the potential health effects of exposure; and

3. Local and state public health authorities will be notified annually of nitrate levels that exceed 10 mg/l; and

4. No adverse health effects shall result.

216 R.I. Code R. 216-RICR-50-05-1.15

Amended effective 9/18/2024