RULES AND REGULATIONS
Title 28--HEALTH
AND SAFETY
DEPARTMENT OF HEALTH
[28 PA. CODE CH. 18]
Public Swimming and Bathing Places
[34 Pa.B. 3695] The Department of Health (Department) amends Chapter 18 (relating to public swimming and bathing places) to read as set forth in Annex A. The final-form rulemaking includes requirements regarding the bacteriological monitoring of water at public bathing beaches to protect the public health while swimming and bathing.
I. Purpose
The final-form rulemaking provides enhanced public health protection to individuals who bathe and swim at public bathing beaches in this Commonwealth. The final-form rulemaking specifies the requirements for notifying the public when a bathing beach is closed, the type of bacteriological water testing that must be done, the level of disease-carrying organisms in the water that requires a beach to be closed, the procedures for collecting water samples and the laboratory testing procedures. Additional requirements for beaches located on Lake Erie are also included. The final-form rulemaking will improve detection of disease-carrying organisms in bathing beach water and reduce public exposure to those organisms.
The final-form rulemaking is consistent with recommendations of the United States Environmental Protection Agency (EPA) regarding bacteriological testing of water at public bathing beaches. The EPA recommends that water at public bathing beaches be tested each week for Escherichia coli (E. coli) to detect disease-carrying organisms in the water that may cause human illness such as gastroenteritis, salmonellosis, cholera, respiratory infections, hepatitis, giardiasis, dysentery, cryptosporidiosis, parasitic worms and lysteria. These illnesses can be mild to very serious or deadly. Ingesting even a small mouthful of contaminated water has the potential of causing any of these illnesses. Young children are especially at risk due to the greater likelihood of swallowing bathing water. Children, the elderly and people with weakened immune systems have a greater chance of getting sick if they come in contact with contaminated water.
The most frequent sources of disease-carrying organisms in bathing water are sewage overflows, animal waste, polluted storm runoff, sewage treatment plant and septic system malfunctions, boating waste, trash, pesticides and fertilizers. Pollution is also much higher during and following a rainstorm because stormwater draining into the beach may be carrying sewage from overflowing sewage treatment systems, runoff from farmland or animal waste from parks and forests. By frequent water testing, disease-carrying organisms that may be harmful to humans can be detected earlier and the source can be located and either corrected or a beach can be closed until the contamination is at a nonharmful level.
On October 10, 2000, the Federal Beaches Environmental Assessment and Coastal Health Act (BEACH Act) (Pub. L. No. 106-284) was passed and amended the Federal Water Pollution Control Act (33 U.S.C.A. §§ 1251--1387) to include significant new beach protections. The BEACH Act applies to coastal beaches on the Great Lakes, including those at Presque Isle State Park in Erie County. The BEACH Act requires that all states with coastal beaches adopt either the E. coli or the enterococci testing standard for Great Lakes beaches, as well as public notification of beach closure requirements. The new Federal law governs only Lake Erie beaches in this Commonwealth. However, the final-form rulemaking extend the same level of protection to all public bathing beaches in this Commonwealth to provide a more effective and consistent level of public health protection to all individuals using any of the Commonwealth's public bathing beaches.
Several formal and informal meetings and discussions were held prior to, and during, the drafting of the proposed rulemaking with consumer protection advocates, campground operators, municipal beach operators, health care professionals and local government agencies to present and discuss the Department's proposed rulemaking. A public meeting was held in August 2002 to review the proposed rulemaking, with invitations sent to 26 affected consumer, health care professional, beach operator and municipal organizations. In June 2003, the Department sent a mailer to all laboratories known to be performing bacterial testing of beaches informing them of the proposed rulemaking. In July 2003, the Department sent a representative to the Pennsylvania Association of Accredited Environmental Laboratories Conference in State College to answer questions regarding the proposed rulemaking and to receive additional stakeholder feedback. To further the effectiveness of the final-form rulemaking, the Department coordinated the final-form rulemaking with the Department of Environmental Protection (DEP) to assure compatibility with other regulations regarding water quality. The Department also discussed the proposed rulemaking with the Department of Conservation and Natural Resources to coordinate implementation issues regarding the State park beaches.
The Department published proposed rulemaking at 32 Pa.B. 4850 (October 5, 2002) and provided for a 30-day public comment period. The Department received no comments during the public comment period. The Department received a recommendation from the DEP after the close of the public comment period. The Department also received comments from the Office of Attorney General (OAG) and the Independent Regulatory Review Commission (IRRC). The Department's responses to these comments appear in the summary of this final-form rulemaking.
II. Summary
The DEP raised a concern about the effectiveness of the proposed language in § 18.31 (relating to laboratory testing) requiring laboratories to be registered with the DEP. To make the final-form rulemaking more effective, the DEP suggested language changes requiring laboratories to be registered with the DEP for the testing of drinking water samples and that the laboratory be in compliance with 27 Pa.C.S. Chapter 41 (relating to environmental laboratory accreditation) known as the Environmental Laboratory Accreditation Act, and the regulations promulgated thereunder These changes were intended to ensure that only qualified laboratories subject to the DEP enforcement actions would be performing beach bacterial standards. The Department has accepted these recommendations and incorporated them into the final-form rulemaking.
The OAG requested that the Department provide the method by which the EPA recommended the E. coli standard and asked whether this was Federal statute, regulation, guideline or other publication. The BEACH Act requires that all states with coastal beaches adopt the EPA's recommended bacterial monitoring standards for recreational waters. The term ''coastal beaches'' is defined in the BEACH Act to include beaches on the Great Lakes, including those at Presque Isle State Park on Lake Erie. The EPA's recommendation for bacterial monitoring is published in the guidance document ''Ambient Water Quality Criteria for Bacteria'' and is available on the EPA's website: www.epa.gov/ost/standards/bacteria/.
The OAG also asked whether the permittee would have to obtain approval from the EPA for whatever method the permittee is using and whether the EPA has published a list of preapproved methods.
The permittee will not have to obtain approval from the EPA for the method used. The laboratory selected by the permittee will have the option of using the method described in Standard Methods for the Examination of Water and Wastewater or by using a method that has been preapproved by the EPA. Currently, the EPA has approved one testing method, the modified mTEC test, for testing for E. coli at beaches. The EPA is developing additional testing methods and is expected to grant approval for their use in the future. When approved for use, the additional test will be published on the EPA's website.
Finally, IRRC requested that the Department revise § 18.30 (relating to water samples) of the proposed rulemaking to require that the Department give written notification to the permittee in the event that additional bacterial samples may be required. The Department has accepted this recommendation and incorporated it into the final-form rulemaking.
III. Affected Persons
The final-form rulemaking applies to 328 public bathing beaches that have a fresh water source or flow, including natural and manmade lakes and ponds and beaches located on rivers and streams, which are permitted by the Department. Bathing beaches located at State parks, community locations and privately owned campgrounds, resorts and organized camps are included. Of the 328 bathing beaches, the majority of them are located in the northern part of this Commonwealth with 50% in the northeast, 20% in the northwest and 8% in the north central part of this Commonwealth. Only 22% of the bathing beaches are located in the southeast, southwest and south central parts of this Commonwealth.
The final-form rulemaking also applies to laboratories that perform bacterial testing of water at public bathing places, requiring them to adopt the E. coli testing method for bacterial method and to report all positive bacterial samples. In addition, the final-form rulemaking requires that laboratories performing testing of water samples from public bathing places are properly accredited under 27 Pa.C.S. Chapter 41.
IV. Cost and Paperwork Estimates
A. Cost
The final-form rulemaking will have little fiscal effect on the Commonwealth, local government, the private sector or the general public. The requirement for the frequency of water sampling has not been changed. There is no cost increase for completing the E. coli test as opposed to the currently required fecal coliform test. The Department conducted a study of laboratory test fees in August 2002. Thirty-eight laboratories across this Commonwealth, New Jersey, Maryland, Ohio and Delaware that are used currently to complete water testing were contacted to compare fees for the new E. coli tests with the current fecal coliform tests. Of the 38 laboratories contacted, 19 charged the same for each test. Three charged slightly less for the E. coli test than the coliform test and three charged slightly more for the E. coli test than the coliform test. Ten of the laboratories do not currently conduct the E. coli test. The Department has contacted these laboratories to explain the new requirements and to encourage the provision of the new test. It is fully expected that additional laboratories will offer the E. coli test once public demand is present.
B. Additional Paperwork
Prior to the amendment of § 18.30, a permittee was required to maintain records of bacterial tests onsite for a minimum of 2 years. While the final-form rulemaking requires laboratories to report positive results to the Department, or the local health department within whose jurisdiction the bathing beach is located, most laboratories were already voluntarily complying with this reporting requirement. The laboratory may report a positive bacterial test result to the Department by phone, fax or e-mail. Therefore, it is not anticipated that the final-form rulemaking will cause any significant increase in paperwork.
V. Effectiveness/Sunset Date
The final-form rulemaking will become effective upon publication in the Pennsylvania Bulletin. No sunset date has been established. The Department will monitor the effectiveness of the regulations on an ongoing basis through its annual health and safety inspections of public swimming and bathing places.
VI. Statutory Authority
The Department's authority to promulgate regulations regarding public swimming and bathing places is established under the Public Bathing Law (35 P. S. §§ 672--680d), the Local Health Administration Law (16 P. S. §§ 12001--12028) and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).
VII. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 25, 2002, the Department submitted a copy of the notice of proposed rulemaking, published at 32 Pa.B. 4850, to IRRC and the Chairpersons of the House Health and Human Services Committee and the Senate Public Health and Welfare Committee for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the DEP and the OAG.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on May 26, 2004, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on May 27, 2004, and approved the final-form rulemaking. The Office of Attorney General approved the regulations on June 28, 2004.
VIII. Contact Person
Questions regarding the final-form rulemaking should be submitted to Dennis C. Wilson, Environmental Health Administrator, Department of Health, Bureau of Community Health Systems, Room 628 Health and Welfare Building, P. O. Box 90, Harrisburg, PA, 17108-0090, (717) 787-4366. Persons with disabilities may submit questions in alternative formats (such as audio tape or Braille) or by using V/TT (717) 783-6514 for speech and/or hearing impaired persons or the Pennsylvania AT&T Relay Service at (800) 654-5984 (TT). Persons who require an alternative format of this document should contact Dennis C. Wilson at the previous address or telephone numbers so that necessary arrangements can be made.
IX. Findings
The Department, with the approval of the Board, finds that:
(a) Public notice of the intention to adopt the amendments adopted by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202), and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(b) A public comment period was provided as required by law and all comments were considered.
(c) The adoption of amendments in the manner provided by this order is necessary and appropriate for the administration of the authorizing statutes.
X. Order
The Department, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 28 Pa. Code Chapter 18, are amended by amending §§ 18.1, 18.28, 18.30 and 18.31 to read as set forth in Annex A.
(b) The Secretary shall submit this order and Annex A to the Office of General Counsel and the OAG for approval as required by law.
(c) The Secretary shall submit this order, Annex A and a Regulatory Analysis Form to IRRC, the House Committee on Health and Human Services and the Senate Committee on Public Health and Welfare for their review and action as required by law.
(d) The Secretary of Health shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(e) This order shall take effect upon publication in the Pennsylvania Bulletin.
CALVIN B. JOHNSON, M.D., M.P.H.,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 34 Pa.B. 3078 (June 12, 2004).)
Fiscal Note: Fiscal Note 10-170 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 28. HEALTH AND SAFETY
PART II. LOCAL HEALTH
Chapter 18. PUBLIC SWIMMING AND BATHING PLACES
GENERAL PROVISIONS § 18.1. Definitions.
The following word and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Air gap--The unobstructed vertical distance through the free atmosphere between the lowest opening from a pipe or faucet supplying water to a tank, plumbing fixture or other device and the flood level rim of the receptacle.
Backflow--The flow of water or other liquids, mixtures or substances into the distributing pipes of a potable supply of water from a source other than the approved source.
Bathing beach--A body of natural water, impounded or flowing, of a size in relation to the bathing load that the quality and quantity, confined or flowing, need be neither mechanically controlled for the purpose of purification nor contained in an impervious structure.
Cross connection--A physical connection or arrangement between two otherwise separate piping systems, one of which contains potable water and the other steam, gas, a chemical or water of unknown or questionable safety, whereby there may be a flow from one system to the other, the direction depending on the pressure differential between the two systems.
Garbage--Putrescible wastes, except sewage and body waste, including animal and vegetable offal.
Local health department--Each county department of health under the Local Health Administration Law (16 P. S. §§ 12001--12028), and each department of health in a municipality approved for a Commonwealth grant to provide local health services under section 25 of the Local Health Administration Law (16 P. S. § 12025).
National Electrical Code--The National Electrical Code published by the National Fire Protection Association, 470 Atlantic Avenue, Boston, Massachusetts, 02210.
Person--An individual, partnership, corporation, association, municipality, county, authority, the Commonwealth or other private or public entity.
Public bathing place--An outdoor or indoor place used for amateur, professional or recreative swimming or bathing whether or not a fee is charged for admission or for the use of the place, exclusive of a bathing place at a private, single-family residence which is used solely by the owner of the residence, his family and their personal guests.
Refuse--Nonputrescible wastes generally regarded and classified as rubbish, trash, junk and similar designations which have been rejected by the owner or possessor thereof as useless or worthless to him.
Sewage--A substance which contains the waste products or excrements or other discharges from the bodies of human beings or animals and a noxious or deleterious substance being harmful or inimical to the public health, or to animal or aquatic life, or to the use of water for domestic water supply or for recreation.
Sewerage system--A community or individual system, whether publicly or privately owned, for the collection and disposal of sewage or industrial wastes of a liquid nature, including various devices for the treatment of sewage or industrial wastes.
Source--A well, spring, cistern, infiltration gallery, stream, reservoir, pond or lake from which, by any means, water is taken either intermittently or continuously for use by the public.
Swimming pool--A body of water of a size in relation to the bathing load that the quality and quantity of the water confined must be mechanically controlled for the purpose of purification and contained in an impervious structure.
Turnover period--The number of hours required to completely replenish the water in a pool, or recirculate a quantity of water equal to the capacity of the pool.
Wading pool--A body of water designed for use by children which is not deeper than 3 feet and of a size in relation to the bathing load that the quality and quantity of the water confined must be mechanically controlled for the purpose of purification and contained in an impervious structure.
Waters of this Commonwealth--Rivers, streams, creeks, rivulets, lakes, dammed water, ponds, springs and other bodies of surface and underground water, or parts thereof, whether natural or artificial, within or on the boundaries of this Commonwealth.
Water supply--A source or sources of water, as well as, water treatment, storage, transmission and distribution facilities.
WATER SUPPLY § 18.28. Bathing beach contamination.
(a) Use of a bathing beach found to be contaminated shall be discontinued until written approval to reopen the bathing beach for swimming or bathing is obtained from the Department. The permittee shall prominently post legible signs measuring at least 8" by 11" at all entrances to the bathing beach area informing the public that the bathing beach is closed and that swimming or bathing is prohibited. The approval will be given by the Department when the Department finds that the waters of the bathing beach are no longer contaminated.
(b) The water in bathing beaches will be considered contaminated for bathing purposes when one of the following conditions exists:
(1) The Department determines that a substance is being discharged or may be discharged into the water and is or may be hazardous to the health of persons using the bathing beach.
(2) The E. coli density of a water sample taken from the bathing beach exceeds 235 per 100 milliliters.
(3) The E. coli density in all water samples taken from the bathing beach, in any 30-day period during the bathing beach's operating season, exceeds a geometric mean of 126 per 100 milliliters.
§ 18.30. Water samples.
(a) The permittee shall be responsible for the collection and examination of samples for the purity of the water used for swimming or bathing. The samples shall be examined by a laboratory which complies with § 18.31 (relating to laboratory testing).
(b) A sample shall be taken within 1 week prior to the opening of the bathing beach for the season.
(c) The permittee shall have a bacteriological analysis made at least once each week of a sample collected during the period of maximum use of the public bathing place. The permittee shall furnish additional analyses of samples as described under subsection (d)(3) upon written notification by the Department.
(d) Bathing water shall be sampled in accordance with the following requirements:
(1) Each sample shall be taken from water that is approximately 30 inches deep and at a midpoint between the bottom and the surface of the water.
(2) Each sample shall be tested individually for E. coli in accordance with § 18.31.
(3) The Department may require additional samples be taken based upon the size of the bathing area, bather loads, weather conditions, the bacteriological history of the water, as well as other factors that may influence the quality of the water.
(e) For a bathing beach located on Lake Erie, the bathing water shall be sampled in accordance with subsections (a), (b) and (d) and the following additional requirements:
(1) At least three samples of water shall be taken from each beach at least once a week. One sample shall be taken from approximately 50 feet from each end of the beach and the third sample shall be taken from the center of the beach.
(2) The arithmetic mean of the three samples from each beach shall be used to determine if the beach water is contaminated using the standards described in § 18.28 (relating to bathing beach contamination).
(3) A sample may not be taken when the beach is closed due to high wave activity, but shall be taken the day the beach is reopened for swimming and bathing.
(4) The Erie County Department of Health may impose additional requirements that are equal to or more stringent than the requirements of this section.
(f) For a swimming pool, specialty pool, spa and hot tub the bathing water shall be sampled at least once a week from the area of average depth, in accordance with § 18.27 (relating to swimming pool contamination).
(g) Copies of reports of analyses shall be maintained by the permittee for at least 2 years and made available to the Department upon request.
(h) The laboratory conducting the bacteriological testing shall report test results exceeding the criteria specified in §§ 18.27 and 18.28 to the appropriate district office of the Department or the local health department within 24 hours of the availability of the laboratory result.
§ 18.31. Laboratory testing.
(a) Testing and analysis of water samples shall be performed by competent personnel at a drinking water environmental laboratory that is required to register with the Department of Environmental Protection and is in compliance with 27 Pa.C.S. Chapter 41 (relating to environmental laboratory accreditation), known as the Environmental Laboratory Accreditation Act, and the regulations promulgated thereunder. Testing of the water samples shall be performed in accordance with the procedure provided in the Standard Methods for the Examination of Water and Wastewater, 20th edition, published jointly by the American Public Health Association and the American Water Works Association, as amended, or in accordance with any other method approved by the United States Environmental Protection Agency for the testing of E. coli in water samples taken from waters designated for primary contact recreation.
(b) The laboratory shall document the method used to complete the tests of the water samples and make the documentation available to the Department upon request.
[Pa.B. Doc. No. 04-1280. Filed for public inspection July 16, 2004, 9:00 a.m.]
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