Provisional Approval of Alternative System

(1) Provisional approval is intended to evaluate alternative systems that appear technically capable of providing levels of protection at least equivalent to those of standard on-site disposal systems, to determine whether, under actual field conditions in Massachusetts with broader usage than a controlled pilot setting, general use of the alternative system will provide such protection, and to determine whether any additional conditions addressing long term operation, maintenance and monitoring considerations are necessary to ensure that such protection will be provided. (2) The Department shall grant provisional approval for use of an alternative system where connection to a sewer is not feasible if the applicant demonstrates that the alternative system is likely to provide a level of environmental protection at least equivalent to that of a system designed and constructed in accordance with 310 CMR 15.100 through 15.255. The Department shall grant provisional approval for use of an alternative system where connection to a sewer is feasible if the applicant demonstrates that the alternative system is likely to provide a level of environmental protection at least equivalent to that of a sewer in the following manner: (a) evidence, satisfactory to the Department, of effective past performance of the alternative system over a period of at least two years of general usage in one or more states where relevant physical and climatological conditions are comparable to those in Massachusetts; or (b) successful completion of piloting pursuant to 310 CMR 15.285, or equivalent piloting in one or more states where relevant physical and climatological conditions are comparable to those in Massachusetts. Piloting shall be considered successful when at least 75% of piloted systems have performed at the relevant level for at least 12 months. When relying on system performance in other state’s, all available information including but not limited to a copy of the other state’s written approval, testing and performance data shall be provided. (3) The Department may establish any special conditions deemed necessary to ensure adequate protection of public health, safety and the environment, and to ensure appropriate evaluation and testing of the alternative system in the provisional use approval. Such conditions may include without limitation: specification of site or effluent characteristics; flow limitations; monitoring, testing, and reporting requirements; operation and maintenance contracting requirements; and financial assurance mechanisms. The Department may also specify changes or modifications of requirements otherwise applicable to conventional systems that are appropriate for use of the alternative system. (4) The Approving Authority may allow the use of a provisionally approved system, subject to any special conditions established pursuant to 310 CMR 15.286(3), in any of the following situations: (a) the proposed use of the alternative system is for upgrade of an existing system that has failed, is failing, or is nonconforming; provided there is no increase in design flow to the system. If connection of the facility to a sewer is feasible, provisional use shall be allowed only if the Department has determined that the alternative system is likely to provide a level of environmental protection at least equivalent to that of a sewer; (b) the proposed use of the alternative system is for new construction or increased flow to serve a facility where access to a sewer is not feasible and for which an on site sewage disposal system in compliance with 310 CMR 15.000 exists on site, or for which a site evaluation for an on site system in compliance with 310 CMR 15.100 through 15.255 has been approved by the Approving Authority; (c) the proposed use of the alternative system is for new construction or increased flow to serve a facility which has access to a municipal sewer, as evidenced by a local connection or discharge permit, and to which any discharge from the proposed system will be made should the alternative system fail, if the Department has determined that the alternative system is likely to provide a level of environmental protection at least equivalent to that of a sewer; or (d) the site is owned or controlled by an agency of the Commonwealth or of the federal government and has been approved by the Department for use of the provisionally approved system. (5) A Local Approving Authority may impose additional conditions on the use of alternative systems approved for provisional use under 310 CMR 15.000 only in accordance with regulations adopted pursuant to 310 CMR 15.003(3). (6) Prior to making a determination on an application for provisional use approval of a technology pursuant to 310 CMR 15.286, the applicant shall publish notice of the application in the MEPA Environmental Monitor. (7) The proponent of a provisionally approved alternative system shall conduct a performance evaluation of at least the first three years of operation of at least the first 50 systems installed pursuant to the provisional approval, and a representative sampling of additional systems installed during this period in accordance with a plan approved by the Department pursuant to 310 CMR 15.287(2). The evaluation plan shall be designed to identify promptly any failure of the alternative system to provide the expected level of environmental protection, and to identify the cause if possible. The plan shall provide for reporting to the Department or an agent authorized by the Department at periodic intervals. (8) Upon receipt of the performance evaluation conducted pursuant to 310 CMR 15.286(7), the Department may: certify the alternative system for general use pursuant to 310 CMR 15.288; determine that additional evaluation in accordance with 310 CMR 15.286 is required; or disapprove use of the alternative system. (9) If the Department determines that additional evaluation is required, it may require any modifications or adjustments to the alternative system, or impose such other requirements, as are necessary. (10) Should the Department disapprove general use of the alternative system which was provisionally approved, any person wishing to use such system may file a permit application for use of the alternative system pursuant to 314 CMR 5.00: Ground Water Discharge Permit Program. Disapproval under 310 CMR 15.286 shall not prejudice any action on an application pursuant to 314 CMR 5.00: Ground Water Discharge Permit Program. (11) The conditions established in 310 CMR 15.287 apply to any use of a provisionally- approved alternative system. (12) If at any time the Local Approving Authority or the Department determines that an alternative system that has been installed pursuant to a provisional approval is failing or has failed, enforcement action may be taken. (13) It shall be a violation of 310 CMR 15.000 to make a false representation that an alternative system has been approved for provisional use.