Variance

(A) The Board of Health may grant a variance from the provisions of 105 CMR 445.000 for any public or semi-public bathing beach not operated by the Commonwealth. The Department may grant a variance for any bathing beach operated by the Commonwealth. In granting a variance, the Board of Health and the Department shall review available epidemiological data and a written sanitary survey of the bathing beach, as provided by the operator. The survey shall include: (1) All possible sources of contamination, both bacterial and chemical on the watershed tributary to the bathing beach including the location and volume of: (a) sewage and industrial waste water discharges; (b) storm water overflows; (c) bird and animal populations; and (d) commercial and agricultural drainage. (2) The volume and quality of the diluting water, water depth, water surface area, tides and confluence of tributaries, water currents and prevailing winds. (B) Any variance granted by the Board of Health shall specify the required bacteriological testing schedule, provided that the frequencyof bacteriological testing shall not be less than once prior to the bathing season and at least every 30 days thereafter throughout the duration of the bathing season. (C) Any variance granted by a Board of Health or the Department shall expire: (1) at any time as determined by the Board of Health or the Department, but in no instance greater than four years, at which time the operator may apply for an extension; or (2) at any time the results of bacterial test exceed the levels at 105 CMR 445.031. (D) No variance from the requirement of weekly testing shall be granted until the applicant provides the Board of Health or the Department with water quality data collected for at least two complete and consecutive bathing seasons. (E) In granting a variance, the Board of Health or the Department must determine that the enforcement of 105 CMR 445.000 would not serve a significant public health purpose and that the granting of the variance will not conflict with the intent and spirit of these minimum standards. Any variance or other modification authorized to be made by 105 CMR 445.000 may be subject to such qualification, revocation, suspension, or other expiration as the Board of Health or the Department expresses in its grant. A variance or other modification authorized to be made by 105 CMR 445.000 may otherwise be revoked, modified, or suspended in whole or in part, only after the holder thereof has been notified in writing and has been given the opportunity to be heard.