Variances for Increased Flow to Existing System

(1) Local Approving Authorities or the Department may vary the application of any provisions of 310 CMR 15.000 with respect to any particular case involving increased flow to an existing system only when in the opinion of the Department or the Local Approving Authority all of the conditions in 310 CMR 15.414(2) through (4) are met. A showing by the person requesting a variance that the proposed variance would satisfy the maximum feasible compliance provisions as set forth in 310 CMR 15.404 and 15.405 shall not presumptively entitle such person to a variance. (2) The person requesting a variance has established that strict enforcement of the provision of 310 CMR 15.000 from which a variance is sought would be manifestly unjust, considering all the relevant facts and circumstances of the individual case including, at a minimum, the following: (a) the owners of any such system for which permit applications were filed after March 31, 1995 shall be deemed to have had knowledge that full compliance with the requirements applicable to new construction is preferred; (b) the costs of full compliance with the requirements applicable to new construction shall be compared to the costs of compliance with a variance; and (c) whether an upgrade in full compliance with 310 CMR 15.000 is feasible without increased flow. (3) The system cannot be brought into full compliance through any of the following: (a) an upgraded system which is in full compliance with 310 CMR 15.100 through 15.293; (b) an alternative system which has been approved for such use pursuant to 310 CMR 15.284 (remedial use), 15.285 (piloting), 15.286 (provisional approval), or 15.288 (certification for general use); (c) a shared system which has been approved for such use pursuant to 310 CMR 15.290 and 15.291; or (d) connection to a sewer system. (4) The upgraded system with the increased flow provides better protection of public health and safety and the environment than the existing system with no increase in flow. Increased flows not in compliance with 310 CMR 15.000 will rarely provide better protection than existing flows to a system designed and constructed in compliance with the 1978 Code or 310 CMR 15.000, but are more likely to constitute improvements over nonconforming or failed systems.