PROPOSED RULEMAKING
DEPARTMENT OF HEALTH
[28 PA. CODE CH. 18]
Public Swimming and Bathing Places
[32 Pa.B. 4850] The Department of Health (Department) proposes to amend Chapter 18 (relating to public swimming and bathing places) to read as set forth in Annex A. The proposed rulemaking includes requirements relating to the bacteriological monitoring of water at public bathing beaches to protect the public health while swimming and bathing.
A. Purpose of the Proposed Rulemaking
The proposed rulemaking is intended to provide enhanced public health protection to individuals who bathe and swim at this Commonwealth's public bathing beaches. The proposed 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 effect of the proposed rulemaking will be improved detection of disease-carrying organisms in bathing beach water and reduced public exposure to these organisms.
The proposed rulemaking applies to 242 bathing beaches in this Commonwealth that are permitted by the Department, including those located at State parks, community locations and privately-owned campgrounds, resorts and camps. The scope of the proposed rulemaking includes 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.
The proposed rulemaking is consistent with recommendations of the Environmental Protection Agency (EPA) relating to 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 water draining into the beach may be carrying sewage from overflowing sewage treatment systems. 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 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 Federal statutory deadline for adopting state regulations is April 2004. The new Federal law governs only Lake Erie beaches in this Commonwealth; however, the proposed rulemaking extends the same level of protection to all public bathing beaches in this Commonwealth to provide a more effective level of public health protection to all individuals using any of this Commonwealth's public bathing beaches. Consistent with the Commonwealth's commitment to enhance tourism, the proposed rulemaking supports tourism by providing increased public health protections at this Commonwealth's beaches.
A comparison of requirements and practices of several other states was completed by the Department. States such as Illinois, Ohio and Michigan are already following the EPA standard for E. coli testing. Other states such as New York and Indiana are in the process of changing their laws and regulations to require the E. coli testing method.
Several formal and informal meetings and discussions have been held over the past 18 months 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. To further the effectiveness of the proposed rulemaking, the Department is coordinating the proposed rulemaking with the Department of Environmental Protection to assure compatibility with other Commonwealth regulations relating to water quality. The Department has also discussed the proposed rulemaking with the Department of Conservation and Natural Resources to coordinate implementation issues relating to the State park beaches.
B. Summary of the Proposed Rulemaking
The proposed 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 and documentation. Additional requirements for a beach located on Lake Erie are also included. Following is a summary of the specific proposed amendments:
Section 18.1. Definitions. The Department is proposing to add a definition of ''local health department'' to clarify the meaning of this term as used in § 18.30(h) (relating to water samples). The definition is based on the Local Health Administration Law (16 P. S. §§ 12001--12028). It tracks the definition of ''local health department'' found in other Department regulations. See 28 Pa. Code Chapter 27 (relating to communicable and noncommunicable diseases).
Section 18.28. Bathing beach contamination. Subsection (a) includes proposed amendments relating to the requirements for notifying the public if a beach is closed. The Department is proposing amendments to specify the size and the location of the posted signs. This requirement is consistent with the EPA's public notice requirement under the Beach Act. In discussions with this Commonwealth's beach operators, while public notice of beach closure is generally provided, the method of providing notice of closure and the actual signage varies across this Commonwealth. Some beaches post closings on websites as well as with visual signs at the beach. The Department is proposing to regulate the size and location of the signs to give clear public notice of a beach closing. The sign need only inform the public that the beach is closed and need not specify the reason for the closing.
Subsection (b)(2) proposes to amend the type of water testing from a fecal coliform test to an E. coli test in accordance with recommendations of the EPA. The current paragraph requires a weekly fecal coliform test. This paragraph has been in effect since 1971. The proposed amendment would not change the frequency of testing that is required, but rather change the type of laboratory test that must be completed. The proposed amendment would not require permittees to collect additional samples of water.
The Department is proposing this amendment in the type of laboratory test based on current information and data that establishes the E. coli test to be better at identifying disease-carrying organisms that may cause a risk to humans than the currently required fecal coliform test. Both the fecal coliform and the E. coli test are indicators that the water has been contaminated with disease-carrying organisms from sewage or human or animal waste. However, the data demonstrates that the E. coli test is a more reliable indicator of the presence of organisms that cause human illness than the fecal coliform test.
E. coli is a type of fecal coliform bacteria that is commonly found in the intestines of animals and humans. Because it lives in the intestines, the presence of E. coli in water is a strong indicator that the water has been contaminated with sewage or human or animal waste. This waste may carry other kinds of disease-causing organisms and may indicate the need for additional testing. Most of the hundreds of strains of E. coli are perfectly harmless and live inside human intestines and actually aid in digestion. However, one particular strain, E. coli 0157:H7, can cause an infection that may result in serious diarrhea and abdominal cramps and is potentially fatal in small children. In accordance with the EPA recommendations and research, the fecal coliform test that is currently required is less effective than the E. coli test at establishing the presence of disease-carrying organisms.
The EPA has conducted studies at marine and freshwater bathing beaches designed to determine if swimming in sewage and waste contaminated water carries a health risk for bathers, and, if so, for what type of illness. The significant swimming-associated rates for gastroenteritis were always observed at the more polluted beaches at each study location. Statistically significant swimming-associated gastroenteritis rates were not observed at any of the relatively unpolluted beaches. The research confirmed that total coliforms and fecal coliforms showed very weak correlations to gastroenteritis. The research showed that testing for either E. coli or enterococci did correlate highly to swimming-associated gastroenteritis in freshwater to indicate that these two tests are equally efficient for monitoring water quality in fresh water. The Department is proposing to use the E. coli test versus the enterococci test because the E. coli test is more available and less costly than the enterococci test; further research has proven that there is no greater level of protection in the enterococci test for freshwater beaches. The EPA research supports the premise that E. coli has a very strong correlation between positive results and incidence of people getting sick. The correlation for fecal coliforms, according to this research, is close to zero.
Subsection (b)(2) includes a proposed amendment to the level requiring a necessary beach closing from 1,000 per 100 milliliters for fecal coliform to 235 per 100 milliliters for E. coli in accordance with recommendations of the EPA. The EPA recommends various levels of protection based on water usage. The level suggested by the EPA for a designated freshwater beach area is 235 per 100 milliliters. The Department is proposing to adopt this standard. The EPA has other protection levels for marine water, infrequent bathing use and for other water uses such as boating or water sports which are not under the authority of the Department's public bathing place program.
Subsection (b)(3) includes a proposed amendment to the level requiring a necessary beach closing from 200 per 100 milliliters for fecal coliform to a level that exceeds a geographic mean of 126 per 100 milliliters for E. coli for any 30-day period, consistent with the recommendations of the EPA. This requirement for a study of the test results over a 30-day period is not new. It is required so that a comprehensive look at the test results over a 1-month period can be studied in addition to the 1-day levels. This is necessary to detect and correct long-term contamination problems at the beach.
Section 18.30. Water samples. Proposed subsection (b) is new. It includes a proposed amendment to require a sample be taken each year within 1 week prior to opening the beach for the season for all beaches. This is important so that any contamination that may have occurred over the fall, winter and spring seasons be detected prior to public use of the beach for the swimming season. The text of current subsection (b) is redesignated as subsection (c).
Proposed subsection (d) is also new. It addresses all bathing beaches, including those located on Lake Erie, and specifies the location within the swimming area from which the water sample must be drawn. Proposed subsection (d) would require the sample to be taken from water that is approximately 30 inches in depth and half-way down between the surface and the bottom of the water. This is consistent with current practice. Subsection (d)(3) would clarify the Department's existing authority to require additional analysis and water samples included in current subsection (b) (proposed subsection (c)). Proposed subsection (d)(3) states that the Department may require additional samples to be taken based on factors such as bather load, weather conditions and bacteriological history.
Proposed subsection (e) is new and applies only to Lake Erie beaches. The proposed requirements are mandated for Lake Erie under the Beach Act. Proposed subsection (e) would address multiple samplings for each Lake Erie beach applying an arithmetic mean and would prohibit sampling during high wave activity. These requirements have already been partially implemented by the Erie County Health Department for the 2002 swimming season. Proposed subsection (e)(4) would also allow the Erie County Health Department to adopt additional standards that are more stringent than the proposed rulemaking.
Proposed subsection (f) is new and would clarify that swimming pools are still sampled and monitored in accordance with the current regulations requiring total coliform testing. No changes to the swimming pool requirements are included in this proposed rulemaking. The total coliform test for swimming pools is considered appropriate for swimming pools because of the different nature of the water. Swimming pool water is chemically treated and disinfected continuously. Bathing beaches must rely on the natural water flow to remove contamination. Therefore, the risk of disease transmission is much lower in a swimming pool than at a beach.
The current subsection (c) is redesignated as subsection (g).
Proposed subsection (h) is new. It includes a requirement for laboratories to report test results exceeding the limits in this section to the appropriate district office of the Department and to the appropriate local health department. This is important so the Department, or local health department in whose jurisdiction the bathing beach is located, can monitor compliance with this chapter and address long-term problems at bathing beaches. Most laboratories currently report in accordance with this requirement.
Section 18.31. Laboratory testing. Subsection (a) includes a proposed amendment requiring laboratories to perform tests of water samples in accordance with the 20th edition of the Standard Methods for the Examination of Water and Wastewater, as amended, or with another method approved by the EPA. This is necessary to stay abreast with current methods of water testing.
The Department proposes to add subsection (b) to clarify existing language in current subsection (a) relating to laboratory documentation of the method used to complete the tests of the water samples.
C. Statutory Authority
The Department's authority to promulgate regulations related to public swimming and bathing places is established under the Public Bathing Law (35 P. S. §§ 672--680d) and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).
D. Persons and Entities Affected
The proposed rulemaking would apply to 242 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 camps would be included. Specifically, those bathing beaches include: 47 State park beaches operated by the Department of Conservation and Natural Resources; 77 beaches operated by private campgrounds and resorts; 50 beaches operated by organized camps; 44 beaches operated by municipalities; and 4 Army Corps of Engineer Beaches. Of the 242 bathing beaches, the majority are located in the northern part of this Commonwealth with 40% in the northeast, 24% in the northwest and 10% in north central region of this Commonwealth. Only 26% of the bathing beaches are located in the southeast, southwest and south central parts of this Commonwealth.
E. Cost and Paperwork Estimates
The proposed rulemaking will have little fiscal effect on the Commonwealth, local government, the private sector or on the general public. The requirement for the frequency of water sampling has not been changed. There will be 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 tests. The Department will contact these laboratories, explain the new Commonwealth requirements and encourage the provision of the new tests. It is fully expected that additional laboratories will offer the E. coli tests once public demand is present.
It is not anticipated that there will be additional beach closings due to the new testing that would result in loss to the local economy or beach operator revenue. A study conducted by the Department of Environmental Protection in 2001-2002 of State park beaches comparing the results of fecal coliform and E. coli testing shows that, at the majority of beaches, similar numbers of closings would occur under either testing method. The Department does not anticipate a large number of additional closings. In the Department of Environmental Protection study, in a few incidences (6% of the total sample of 253), the exceedance level was reached for E. coli but not for fecal coliform. This data may indicate that there may be a few additional beach closures using the E. coli test. However, the public health protection provided by requiring the more reliable E. coli tests outweighs the minimal economic loss of a few potential added beach closures.
There is no additional paperwork required by the proposed rulemaking. While the proposed rulemaking would require laboratories to report positive results to the Department, or the local health department within whose jurisdiction the bathing beach is located, most laboratories already comply with this reporting requirement.
F. Effective/Sunset Dates
The proposed rulemaking would be effective upon publication of final-form rulemaking in the Pennsylvania Bulletin.
No sunset date has been established. The Department will monitor the effectiveness of these regulations on an ongoing basis through its annual health and safety inspections of public swimming and bathing places.
G. 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 this proposed rulemaking to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House Health and Human Services Committee and the Senate Public Health and Welfare Committee. In addition to submitting the proposed rulemaking, the Department has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Department in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, if IRRC has objections to any portion of the proposed rulemaking, it will notify the Department within 10 days of the close of the Committees' review period. The notification shall specify the regulatory review criteria that have not been met by the portion of the proposed rulemaking to which an objection is made. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor of objections raised.
H. Contact Person
Interested persons are invited to submit written comments, suggestions or objections relating to the proposed rulemaking 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, within 30 days after publication of this notice in the Pennsylvania Bulletin. Persons with a disability may submit comments, suggestions or objections to Dennis Wilson in alternative formats, such as by audiotape or Braille, or by using V/TT (717) 783-6514 or the Pennsylvania AT&T Relay Services at (800)654-5984 (TT) for persons with speech or language impairments.
Persons with a disability who would like to obtain this document in an alternative format should contact Dennis Wilson so that necessary arrangements may be made.
ROBERT S. ZIMMERMAN, Jr.,
SecretaryFiscal Note: 10-170. No fiscal impact; (8) recommends adoption.
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:
* * * * * 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).
* * * * *
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:
* * * * * (2) [The fecal coliform density of a sample collected at a bathing beach exceeds 1,000 per 100 milliliters.] The E. coli density of a water sample taken from the bathing beach exceeds 235 per 100 milliliters.
(3) [The fecal coliform density in at least five consecutive samples of the water taken over not more than a 30-day period exceeds a geometric mean of 200 per 100 milliliters.] 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.
* * * * * (b) A sample shall be taken within 1 week prior to the opening of the bathing beach for the season.
(c) * * *
(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).
* * * * * [(c)] (g) * * *
(h) The laboratory conducting the bacteriological testing shall report test results exceeding the criteria specified in §§ 18.27 and 18.28 (relating to swimming pool contamination; and bathing beach contamination) 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) Laboratory tests of water samples shall be performed by competent personnel at an environmental laboratory that is registered by the Department of Environmental Protection in accordance with the procedure provided in the [12th edition of] 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 a method approved by the Environmental Protection Agency for the testing of water samples. [Conformity to these standards shall be evidenced by a statement from the laboratory to such effect.]
(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. 02-1734. Filed for public inspection October 4, 2002, 9:00 a.m.]
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