DAR File No. 37796

Environmental Quality, Drinking Water

Rule R309-400

Water System Rating Criteria

Notice of Proposed Rule

(Amendment)

DAR File No.: 37796
Filed: 06/27/2013 03:59:24 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The changes are in response to S.B. 21 and S.B. 11 passed in the 2012 General Legislative Session. Language was added to clarify there may be additional consequences with data falsification (revocation of certification, monetary penalties, etc.).

Summary of the rule or change:

Because of the realigning of responsibilities mandated by S.B. 21 (2012) the following changes, where appropriate, must be made to the Board's rules. When the words "Board" and "Executive Secretary" are used and refer to the performance of an executive task, they must be changed to "Division Director". Changes have also been made to the rule to accommodate S.B. 11 (2012) which covers the appeals process. Rule R309-400 deals with the Division's water system rating and the assessment of points for non-compliance with rules. It does not directly assess penalties. Language was added to clarify there may be additional consequences with data falsification (revocation of certification, monetary penalties, etc).

State statutory or constitutional authorization for this rule:

• Section 19-4-104

Anticipated cost or savings to:

the state budget:

No impact--This rule change clarifies additional consequences which were already in place.

local governments:

No impact--This rule change clarifies additional consequences which were already in place.

small businesses:

No impact--This rule change clarifies additional consequences which were already in place.

persons other than small businesses, businesses, or local governmental entities:

No impact--This rule change clarifies additional consequences which were already in place.

Compliance costs for affected persons:

This rule change will not affect the compliance cost for affected persons. The change clarifies additional consequences which were already in place.

Comments by the department head on the fiscal impact the rule may have on businesses:

The executive director agrees with the fiscal impacts detailed above.

Amanda Smith, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Environmental Quality
Drinking WaterRoom Third Floor
195 N 1950 W
SALT LAKE CITY, UT 84116-3085

Direct questions regarding this rule to:

• Patti Fauver at the above address, by phone at 801-536-4196, by FAX at 801-536-4211, or by Internet E-mail at pfauver@utah.gov
• Ken Bousfield at the above address, by phone at 801-536-4207, by FAX at 801-536-4211, or by Internet E-mail at kbousfield@utah.gov
• Jennifer Yee at the above address, by phone at 801-536-4216, by FAX at 801-536-4211, or by Internet E-mail at jyee@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

08/14/2013

This rule may become effective on:

11/12/2013

Authorized by:

Ken Bousfield, Director

R309. Environmental Quality, Drinking Water.

R309-400. Water System Rating Criteria.

R309-400-3. Definitions.

Approved - means that the public water system is operating in substantial compliance with all the Rules as measured by this rule.[

Board - means the Drinking Water Board.]

Community Water System - means a public water system which serves at least fifteen service connections used by year-round residents or regularly serves at least twenty-five year-round residents.

Contaminant - means any physical, chemical, biological, or radiological substance or matter in water.

Corrective Action - means a provisional rating for a public water system not in compliance with the Rules, but making all the necessary changes outlined by the [Executive Secretary]Director to bring them into compliance.

[Executive Secretary]Director - means the [Executive Secretary of the Drinking Water Board]Director of the Division of Drinking Water.

Major Bacteriological Routine Monitoring Violation- means that no routine bacteriological sample was taken as required by R309-210-5(1).

Major Bacteriological Repeat Monitoring Violation - means that no repeat bacteriological sample was taken as required by R309-210-5(2)(a).

Major Chemical Monitoring Violation - means that no initial background chemical sample was taken as required in R309-515-4(5).

Maximum Contaminant Level (MCL) - The maximum permissible level of a contaminant in water which is delivered to any user of a public water system. Individual maximum contaminant levels (MCLs) are listed in R309-200.

Minor Bacteriological Routine Monitoring Violation- means that not all of the routine bacteriological samples were taken as required by R309-210-5(1).

Minor Bacteriological Repeat Monitoring Violation - means that not all of the repeat bacteriological samples were taken as required by R309-210-5(2)(a).

Minor Chemical Monitoring Violation - means that the required chemical sample(s) was not taken in accordance with R309-205, 210 or 215.

Non-Community Water System - means a public water system that is not a community water system or a non-transient non-community water system.

Non-Transient, Non-Community Water System - means a public water system that is not a community water system and that regularly serves at least 25 of the same persons for more than six months per year. Examples are separate systems serving workers and schools.

Not Approved - means the water system does not fully comply with the Rules as measured by this rule.

Public Water System - means a system, either publicly or privately owned, providing water for human consumption and other domestic uses which has at least fifteen service connections, or regularly serves an average of at least twenty-five individuals for at least sixty days out of the year. Such term includes collection, treatment, storage and distribution facilities under control of the operator and used primarily in connection with the system. Additionally, the term includes collection, pretreatment or storage facilities used primarily in connection with system but not under such control.

Routine Chemical Monitoring Violation - means no routine chemical sample(s) was taken as required in R309-205, 210 or 215.

Sanitary Seal - A cap that prevents contaminants from entering a well through the top of the casing.

Shall - means that a particular action is obliged and has to be accomplished.

 

R309-400-4. Water System Ratings.

(1) The [Executive Secretary]Director shall assign a rating to each public water system in order to provide a concise indication of its condition and performance. This rating shall be assigned based on the evaluation of the operation and performance of the water system in accordance with the requirements of the Rules. Points shall be assessed to Not Approved and Corrective Action rated water systems for each violation of these requirements (R309-100 through R309-705) as the requirements apply to each individual water system. The number of points that shall be assessed are outlined in the following sections of this rule. The number of points represent the threat to the quality of the water and thereby public health.

(2) Points are assessed in the following categories: Quality, Monitoring and Public Notification; Physical Deficiencies; Operator Certification; Cross Connection Control; Drinking Water Source Protection; Administrative Issues; and Reporting and Record Maintenance.

(3) Based upon the accumulation of points, the public water system shall be assigned one of the following ratings.

(a) Approved - In order to qualify for an Approved rating, the public water system must maintain a point total less than the following:

(i) Community water system - 150 points;

(ii) Non-Transient Non-Community water system - 120 points; and

(iii) Non-Community water system - 100 points.

(b) Not Approved - In order for a public water system to receive a Not Approved rating the accumulation of points for the water system must exceed the totals listed above.

(c) Corrective Action - In order to qualify for a Corrective Action rating the public water system must submit the following:

(i) A written agreement to the [Executive Secretary]Director stating a willingness to comply with the requirements set forth in the Rules; and

(ii) A compliance schedule and time table agreed upon by the [Executive Secretary]Director outlining the necessary construction or changes to correct any physical deficiencies or monitoring failures; and

(iii) Proof of the financial ability of the water system or that the financial arrangements are in place to correct the water system deficiencies.

(iv) The Corrective Action rating shall continue until the total project is completed or until a suitable construction inspection or sanitary survey is conducted to determine the effectiveness of the improvements or the accumulation of points drops below the threshold for a not approved rating whichever is later.

(4) The water system point accumulation shall be adjusted on a quarterly basis or as current information is available to the [Executive Secretary]Director. The appropriate water system rating shall then be adjusted to reflect the current point total.

(5) The [Executive Secretary]Director may at any time rate a water system not approved if an immediate threat to public health exists. This rating shall remain in place until such time as the threat is alleviated and the cause is corrected.

(6) Any water system may appeal its assigned rating or assessed points [to the Drinking Water Board by filing a request for a hearing with the Executive Secretary]as provided in R305-7.[ The Executive Secretary shall place this matter on the agenda of the next regular meeting and so inform the appellant. The request for a hearing must be received by the Executive Secretary at least 14 calendar days prior to a scheduled Board meeting in order to be placed on the Board's agenda.]

 

R309-400-5. Quality, Monitoring and Public Notification Violations.

(1) Bacteriologic: All points assessed to public water systems via this subsection are based on violations of the quality standards in R309-200-5(6); or the monitoring requirements in R309-210-5; and the associated public notification requirements in R309-220. The bacteriological assessments shall be updated on a monthly basis with the total number of points reflecting the most recent twelve month period or the most recent 4 quarters for those water systems that collect bacteriological samples quarterly.

(a) For each major bacteriological routine monitoring violation 35 points shall be assessed. For each failure to perform the associated public notification 5 points shall be assessed.

(b) For each minor bacteriological routine monitoring violation 10 points shall be assessed. For each failure to perform the associated public notification 2 points shall be assessed.

(c) For each major bacteriological repeat monitoring violation 40 points shall be assessed. For each failure to perform the associated public notification 5 points shall be assessed.

(d) For each minor bacteriological repeat monitoring violation 10 points shall be assessed. For each failure to perform the associated public notification 2 points shall be assessed.

(e) For each additional monitoring violation (R309-210-5(2)(e)) 10 points shall be assessed. For each failure to perform the associated public notification 2 points shall be assessed.

(f) For each non-acute bacteriological MCL violation (R309-200-5(6)(a)) 40 points shall be assessed. For each failure to perform the associated public notification 10 points shall be assessed.

(g) For each acute bacteriological MCL violation (R309-200-5(6)(b)) 50 points shall be assessed. For each failure to perform the associated public notification 10 points shall be assessed.

(2) Chemical: All points assessed to public water systems via this subsection are based on violations of the quality standards in R309-200-5; or the monitoring requirements in R309-205, 210 and 215; and the associated public notification requirements in R309-220. The chemical assessments shall be updated on a quarterly basis with the total number of points reflecting the most recent compliance period unless otherwise specified. Points for any chemical MCL violation shall remain on record until the quality issue is resolved. Points for any monitoring violation shall be deleted as the required chemical samples are taken and the analytical results are reported to the [Executive Secretary]Director.

(a) Inorganic and Metal Contaminants:

(i) For each major chemical monitoring violation for inorganic and metal contaminants 20 points shall be assessed. For each failure to perform the associated public notification 3 points shall be assessed.

(ii) For each minor chemical monitoring violation for inorganic and metal contaminants 10 points shall be assessed. For each failure to perform the associated public notification 1 point shall be assessed.

(iii) For each MCL exceedance for inorganic and metal contaminants 30 points shall be assessed. For each failure to perform the associated public notification 5 points shall be assessed.

(b) Sulfate (for non-community water systems only):

(i) For each major chemical monitoring violation for sulfate 20 points shall be assessed. For each failure to perform the associated public notification 3 points shall be assessed.

(ii) For each minor chemical monitoring violation for sulfate 10 points shall be assessed. For each failure to perform the associated public notification 1 point shall be assessed.

(iii) For each MCL exceedance for sulfate 30 points shall be assessed. For each failure to perform the associated public notification 5 points shall be assessed.

(c) Radiologic Contaminants:

(i) For each major chemical monitoring violation for radiological contaminants 20 points shall be assessed. For each failure to perform the associated public notification 3 points shall be assessed.

(ii) For each minor chemical monitoring violation for radiological contaminants 10 points shall be assessed. For each failure to perform the associated public notification 1 point shall be assessed.

(iii) For each MCL exceedance for radiological contaminants 30 points shall be assessed. For each failure to perform the associated public notification 5 points shall be assessed.

(d) Asbestos Contaminants:

(i) For each major chemical monitoring violation for source water or distribution system asbestos 20 points shall be assessed. For each failure to perform the associated public notification 3 points shall be assessed.

(ii) For each minor chemical monitoring violation for source water or distribution system asbestos 10 points shall be assessed. For each failure to perform the associated public notification 1 point shall be assessed.

(iii) For each MCL exceedance for source water or distribution system asbestos 30 points shall be assessed. For each failure to perform the associated public notification 5 points shall be assessed.

(e) Nitrate:

(i) For each routine chemical monitoring violation for nitrate 35 points shall be assessed. For each failure to perform the associated public notification 5 points shall be assessed.

(ii) For each MCL exceedance of nitrate 50 points shall be assessed. For each failure to perform the associated public notification 10 points shall be assessed.

(f) Nitrite:

(i) For each routine chemical monitoring violation for nitrite 35 points shall be assessed. For each failure to perform the associated public notification 5 points shall be assessed.

(ii) For each MCL exceedance of nitrite 50 points shall be assessed. For each failure to perform the associated public notification 10 points shall be assessed.

(g) Volatile Organic Chemicals:

(i) For each major chemical monitoring violation for volatile organic chemical contaminants 20 points shall be assessed. For each failure to perform the associated public notification 3 points shall be assessed.

(ii) For each minor chemical monitoring violation for volatile organic chemical contaminants 10 points shall be assessed. For each failure to perform the associated public notification 1 point shall be assessed.

(iii) For each MCL exceedance for volatile organic chemical contaminants 30 points shall be assessed. For each failure to perform the associated public notification 5 points shall be assessed.

(h) Pesticides/PCBs/SOCs

(i) For each major chemical monitoring violation for pesticide/PCB/SOC contaminants 20 points shall be assessed. For each failure to perform the associated public notification 3 points shall be assessed.

(ii) For each minor chemical monitoring violation for pesticide/PCB/SOC contaminants 10 points shall be assessed. For each failure to perform the associated public notification 1 point shall be assessed.

(iii) For each MCL exceedance for pesticide/PCB/SOC contaminants 30 points shall be assessed. For each failure to perform the associated public notification 5 points shall be assessed.

(i) Disinfection Byproducts:

(i) Total Trihalomethanes:

(A) For each routine chemical monitoring violation for total trihalomethanes 10 points shall be assessed. For each failure to perform the associated public notification 1 point shall be assessed.

(B) For each MCL exceedance for total trihalomethanes 30 points shall be assessed. For each failure to perform the associated public notification 5 points shall be assessed.

(ii) Haloacetic Acids (HAA5):

(A) For each routine chemical monitoring violation for HAA5 10 points shall be assessed. For each failure to perform the associated public notification 1 point shall be assessed.

(B) For each MCL exceedance for HAA5 30 points shall be assessed. For each failure to perform the associated public notification 5 points shall be assessed.

(iii) Bromate:

(A) For each routine chemical monitoring violation for bromate 10 points shall be assessed. For each failure to perform the associated public notification 1 point shall be assessed.

(B) For each MCL exceedance for bromate 30 points shall be assessed. For each failure to perform the associated public notification 5 points shall be assessed.

(iv) Chlorite:

(A) For each routine chemical monitoring violation for chlorite 10 points shall be assessed. For each failure to perform the associated public notification 1 point shall be assessed.

(B) For each MCL exceedance for chlorite 30 points shall be assessed. For each failure to perform the associated public notification 5 points shall be assessed.

(j) Disinfectant Residuals:

(i) Chlorine:

(A) For each routine chemical monitoring violation for chlorine 10 points shall be assessed. For each failure to perform the associated public notification 1 point shall be assessed.

(B) For each MCL exceedance for chlorine 30 points shall be assessed. For each failure to perform the associated public notification 5 points shall be assessed.

(ii) Chloramines:

(A) For each routine chemical monitoring violation for chloramines 10 points shall be assessed. For each failure to perform the associated public notification 1 point shall be assessed.

(B) For each MCL exceedance for chloramines 30 points shall be assessed. For each failure to perform the associated public notification 5 points shall be assessed.

(iii) Chlorine Dioxide:

(A) For each routine monitoring violation for chlorine dioxide 10 points shall be assessed. For each failure to perform the associated public notification 1 point shall be assessed.

(B) For each non-acute chlorine dioxide MCL violation 30 points shall be assessed. For each failure to perform the associated public notification 5 points shall be assessed.

(C) For each acute chlorine dioxide MCL violation 50 points shall be assessed. For each failure to perform the associated public notification 10 points shall be assessed.

(k) Lead and Copper:

(i) For each major chemical monitoring violation for lead and copper contaminants 20 points shall be assessed. For each failure to perform the associated public notification 3 points shall be assessed.

(ii) For each minor chemical monitoring violation for lead and copper contaminants 10 points shall be assessed. For each failure to perform the associated public notification 1 point shall be assessed.

(iii) A system which fails to install, by the designated deadline, optimal corrosion control if the lead or copper action level has been exceeded shall be assessed 35 points. For each failure to perform the associated public notification 10 point shall be assessed.

(iv) A system which fails to install source water treatment if the source waters exceed the lead or copper action level shall be assessed 35 points. For each failure to perform the associated public notification 10 points shall be assessed.

(v) A system which fails to complete public notification/education if the lead/copper action levels have been exceeded shall be assessed 10 points for each calendar quarter that the system fails to provide public notification/education.

(vi) A system which still exceeds the lead action level and is not on schedule for lead line replacement shall be assessed 5 points annually. For each failure to perform the associated public notification 2 point shall be assessed.

(l) Groundwater Turbidity:

(i) For each monitoring violation for turbidity 35 points shall be assessed. For each failure to perform the associated public notification 5 points shall be assessed.

(ii) For each confirmed MCL exceedance of turbidity 50 points shall be assessed. For each failure to perform the associated public notification 10 points shall be assessed.

(m) Surface Water Treatment:

(i) For water systems having sources which are classified as under direct influence from surface water and which fail to abandon, retrofit or provide conventional complete treatment or it's equivalent within 18 months of notification shall be assessed 150 points. For the associated failure to perform public notification 10 points shall be assessed. The points shall be assessed as the failure occurs and shall remain on record until adequate treatment is provided or the source is physically disconnected.

(ii) Quality and Monitoring: The surface water treatment assessments shall be updated on a monthly basis with the total number of points reflecting the most recent twelve month period.

(A) Turbidity:

(I) For each turbidity exceedance which requires tier 1 notification under R309-220-5(1)(e) or (f) 50 points shall be assessed. For the associated failure to perform public notification 10 points shall be assessed.

(II) For each turbidity exceedance which requires tier 2 notification under R309-220-5(1)(e) or (f) 35 points shall be assessed. For the associated failure to perform public notification 10 points shall be assessed.

(III) For each month where the percentage of turbidity interpretations meeting the treatment plant limit is less than 95 percent 25 points shall be assessed. For the associated failure to perform public notification 10 points shall be assessed.

(IV) For any period of time which exceeds 4 hours where the system fails to continuously measure (or perform grab samples) the combined filter effluent turbidity 50 points shall be assessed. For the associated failure to perform public notification 10 points shall be assessed.

(V) For a water system which failure to repair continuous turbidity monitoring equipment within 5 working days 50 points shall be assessed.

(B) Disinfection:

(I) For each instance where the disinfectant level in water entering the distribution system is less than 0.2 milligrams per liter for more than 4 hours 25 points shall be assessed. For the associated failure to perform public notification 5 points shall be assessed.

(II) For each instance where there is insufficient disinfectant contact time 35 points shall be assessed. For the associated failure to perform public notification 5 points shall be assessed.

(iii) Treatment Process Control:

(A) For each instance a treatment facility exceeds the assigned filter rates 30 points shall be assessed.

(B) For each month a water system fails to verify calibration of the plant turbidimeters 5 points shall be assessed.

(C) For each month a water system fails to submit a water treatment plant report 50 points shall be assessed.

 

R309-400-11. Administrative Issues.

Points in this area shall be assessed at the time that the failure occurs or upon notification of the [Executive Secretary]Director and shall remain until the issue is resolved unless otherwise specified.

(1) Administrative Data -

(a) A water system which has not designated a person or organizational official responsible for the system including a current address and phone number shall be assessed 10 points.

(b) A water system project constructed without proper plan approval shall be assessed 1 to 50 points based on an evaluation of the project which shall include the structural or engineering integrity of the project; whether the plans and specifications were prepared and stamped by a licensed professional engineer; the adequacy of the materials used and the impact on the operation of the water system (good or bad). The points assessed shall remain on record for a period of one year.

(2) A water system with a current written Emergency Response Program shall be credited 10 points that shall remain on record as long as the Program remains current.

(3) A water system with a written Financial Management Plan including an appropriate rate structure, infra-structure replacement fund, and master plan shall be credited 10 points that shall remain on record as long as the Plan is current.

(4) Sampling Site Plans:

(a) A water system which does not have an adequate bacteriological sampling site plan shall be assessed 5 points.

(b) A water system which does not have a lead/copper sampling site plan shall be assessed 10 points.

(5) Customer Complaint:

(a) 1 to 100 points may be assessed for valid and documented customer complaints. The customer complaints include but are not limited to the following:

(i) Turbidity;

(ii) Pressure;

(iii) Taste and Odor;

(iv) Sickness (water suspected); and

(v) Waterborne Disease Outbreak (R309-104-9).

(vi) Periods of Water Outage

(b) The number of points shall be based upon the extent and documentation of the problem and the potential impact to public health. The documentation shall consist of an investigation by Department of Environmental Quality, Department of Health or Local Health Department personnel and may include an epidemiological study linking the drinking water to reported outbreaks of illness where appropriate.

(c) In the case of a documented waterborne disease outbreak the water system shall automatically be rated Not Approved for at least the duration of the threat to the quality of the drinking water and as long as it takes the water system to correct any deficiency that caused the outbreak.

(d) Points shall only be assessed once per issue and shall not be additive based on the number of calls per issue. These points shall be assessed and updated upon verification of the complaint by the [Executive Secretary]Director and shall remain on record until the issue or deficiency no longer exists. Points may have already been assessed in other areas as appropriate.

(6) (a) [Agency Directives - When a directive consistent with the authority of the Drinking Water Board is not complied with 1 to 100 points may be assessed to a water system.] The Director may issue [Agency] directives to a water system that include but are not limited to the following:

([a]i) Administrative Orders;

([b]ii) Rule defined action;

([c]iii) Rule defined compliance schedule;

([d]iv) Variance/Exemption requirements; and

([e]v) Bilateral Compliance Agreement.

(b) If the water system does not comply with the directive, the Director may assess 1 to 100 points to the water system. Points shall be assessed based upon the severity of the non-compliance, the threat to public health and the underlying basis for the original directive.

(7) Data Falsification - The [Executive Secretary]Director may assess a water system points for data falsification. The water system may be assessed 1 to 50 points for each occurrence based upon:

(a) the severity of the falsification;

(b) the threat to public health;

(c) the intent of the water system personnel; and

(d) the type of falsification.

(i) Reports only good data

(ii) Doctored results from the laboratory

(iii) Non-valid sample

Data reported to the [Executive Secretary]Director includes but is not limited to Water Treatment Plant Reports, Disinfection Reports, bacteriological and chemical analyses, and Annual Reports. This assessment of points shall be in addition to any other penalty provided by law.

(8) Water Hauling:

(a) For a community water system that is hauling water as a permanent method of culinary water distribution 150 points shall be assessed.

(b) For a non-community system that is hauling water as a permanent method of culinary water distribution when there is alternate means of supplying quality drinking water 150 points shall be assessed.

(c) For a water system which has been granted an exception to haul water, if any part of the water hauling guidelines are not followed 50 points shall be assessed.

 

R309-400-12. Reporting and Record Maintenance Issues.

Points may be assessed for failure to provide required reports to the [Executive Secretary]Director by the reporting deadline. The points shall be assigned as the failure occurs and shall remain on record for a period of one year.

(1) Monthly Reports:

(a) For each failure to report the monthly water treatment plant report 10 points shall be assessed.

(2) Quarterly Repots:

(a) For each failure to report the quarterly disinfection report 10 points shall be assessed.

(3) Annual Reports:

(a) For failure to provide the annual report 2 points shall be assessed.

(b) For a community water system that fails to prepare or distribute a consumer confidence report as required in R309-225 2 points shall be assessed.

 

KEY: drinking water, environmental protection, water system rating, [administrative procedures]penalties

Date of Enactment or Last Substantive Amendment: [March 6, 2007]2013

Notice of Continuation: March 22, 2010

Authorizing, and Implemented or Interpreted Law: 19-4-104[; 63G-4-202]