RULES AND REGULATIONS
Title 25—ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[ 25 PA. CODE CH. 109 ]
Safe Drinking Water; General Update and Fees
[48 Pa.B. 4974]
[Saturday, August 18, 2018]The Environmental Quality Board (Board) amends Chapter 109 (relating to safe drinking water) to read as set forth in Annex A. This final-form rulemaking has three parts:
• Incorporate the remaining general update provisions that were separated from the proposed Revised Total Coliform Rule (RTCR) as directed by the Board on April 21, 2015, including revisions to treatment technique requirements for pathogens, clarifications to permitting requirements, and new requirements for alarms, shutdown capabilities and system service.
• Amend existing permit fees and add new annual fees to supplement Commonwealth costs and fill the funding gap ($7.5 million).
• Establish the regulatory basis for issuing general permits, clarify that noncommunity water systems (NCWS) require a permit or approval from the Department of Environmental Protection (Department) prior to construction and operation, and address concerns regarding gaps in the monitoring, reporting and tracking of back-up sources of supply.
Collectively, this final-form rulemaking will provide for the increased protection of public health by every public water system (PWS) in this Commonwealth, and ensure that the Department has adequate funding to enforce the applicable drinking water laws, meet State and Federal minimum program elements, and retain primacy (primary enforcement authority).
Safe drinking water is vital to maintaining healthy and sustainable communities. Proactively avoiding incidents such as waterborne disease outbreaks can prevent loss of life, reduce the incidents of illness and reduce health care costs. Proper investment in PWS infrastructure and operations helps ensure a continuous supply of safe drinking water, enables communities to plan and build future capacity for economic growth, and ensures their long-term sustainability.
One or more of these amendments will apply to all 8,521 PWSs in this Commonwealth.
This final-form rulemaking was adopted by the Board at its meeting of April 17, 2018.
A. Effective Date
This final-form rulemaking is effective upon publication in the Pennsylvania Bulletin. Based on advisory committee and public comments, this final-form rulemaking includes the following deferred implementation dates:
• The amended turbidity treatment technique requirements for membrane filtration are required 1 year after the effective date of this final-form rulemaking to allow additional time to achieve compliance.
• The amended turbidity monitoring requirements are required 1 year after the effective date of this final-form rulemaking.
• The amended monitoring requirements for reserve sources and entry points are required 1 year after the effective date of this final-form rulemaking.
• The new comprehensive monitoring plan requirements are required 1 year after the effective date of this final-form rulemaking.
• The new alarm and shutdown capability requirements are required 1 year after the effective date of this final-form rulemaking unless an alternate compliance schedule is approved in writing by the Department.
• The new system service requirements are required from 1 to 3 years after the effective date of this final-form rulemaking, based on system population.
• The new annual fees are required beginning January 1, 2019, to allow additional time for PWSs, boards and authorities to include the new fees in their 2019 budgets. Budgets for 2018 are already completed.
B. Contact Persons
For further information, contact Lisa D. Daniels, Director, Bureau of Safe Drinking Water, P.O. Box 8467, Rachel Carson State Office Building, Harrisburg, PA 17105-8467, (717) 787-9633; or William Cumings, Assistant Counsel, Bureau of Regulatory Counsel, P.O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the Pennsylvania AT&T Relay Service, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users).
C. Statutory Authority
This final-form rulemaking is being made under the authority of section 4(a) of the Pennsylvania Safe Drinking Water Act (SDWA) (35 P.S. § 721.4(a)), which authorizes the Board ''. . .to adopt such rules and regulations of the department, governing the provision of drinking water to the public, as it deems necessary for the implementation of the provisions of [the SDWA].'' With respect to the fees in §§ 109.1401—109.1409, section 4(c) of the SDWA authorizes and directs the Board to ''establish fees for permit applications, laboratory certification and other services.'' This final-form rulemaking is also being made under the authority of section 1920-A(b) of The Administrative Code of 1929 (71 P.S. § 510-20(b)), which authorizes the Board to promulgate rules and regulations necessary for the performance of the work of the Department.
D. Background and Purpose
The General Assembly found in section 2 of the SDWA (35 P.S. § 721.2) that it is ''in the public interest for the Commonwealth to assume primary enforcement responsibility under the Federal Safe Drinking Water Act.'' When the SDWA was passed, the purpose was to create a drinking water program to allow the Commonwealth to obtain legal primacy over the Federal program in this Commonwealth.
The Department is the agency that was delegated authority to implement the Safe Drinking Water Program (Program), including the Program elements necessary for the Commonwealth to assume and maintain primary (in other words, lead) administration and enforcement authority under the Federal Safe Drinking Water Act (42 U.S.C.A. §§ 300f—300j-27). See section 5(a) of the SDWA (35 P.S. § 721.5(a)). The Department, through the Bureau of Safe Drinking Water, provides services to over 8,500 PWSs serving 11.3 million citizens to ensure compliance with the SDWA and the Federal Safe Drinking Water Act. The Board adopted this final-form rulemaking to ensure the continued implementation of critical Program activities under applicable Federal and State law requirements.
Part I. General update provisions
This final-form rulemaking incorporates the remaining general update provisions that the Board previously determined should be proposed in a separate rulemaking. These general updates:
• Clarify the source water assessment, source water protection area and source water protection program elements and requirements.
• Amend the treatment technique requirements for pathogenic bacteria, viruses and protozoan cysts by adding specific turbidity performance requirements for membrane filtration.
• Amend the disinfection profiling and benchmarking requirements to clarify that all PWSs using filtered surface water or groundwater under the direct influence of surface water (GUDI) shall consult with the Department prior to making significant changes to disinfection practices to ensure adequate Giardia inactivation is maintained.
• Amend and clarify the monitoring, calibration, recording and reporting requirements for the measurement of turbidity.
• Amend the permit requirements to clarify the components that must be included in a permit application for a new source, including a source water assessment, a pre-drilling plan, an evaluation of water quantity and quality, and a hydrogeologic report.
• Amend the design and construction standards to require PWSs using surface water or GUDI sources to be equipped with alarm and shutdown capabilities. These provisions are required for a plant that is not staffed continuously while the plant is in operation.
• Clarify that treatment technologies shall be certified for efficacy through an approved third party.
• Update the system management requirements for community water systems (CWS) to strengthen system service and resiliency by requiring completion of an uninterrupted system service plan (USSP) which focuses on utilizing auxiliary power or a combination of alternate provisions such as finished water storage and interconnections.
• Clarify system management responsibilities relating to source water assessments and sanitary surveys.
• Amend the corrective action time frames in response to a significant deficiency for PWSs using groundwater and surface water sources to be consistent.
• Delete the provision that allows a PWS to avoid the requirement for a corrective action by collecting five additional source water samples after an E. coli-positive triggered source water sample.
Amendments to source water assessment and protection programs
The source water assessment and protection amendments will not only protect public health, but should also help to maintain, reduce or avoid drinking water treatment costs. Source water protection represents the first barrier to drinking water contamination. A vulnerable drinking water source puts a water utility and the community it serves at risk and at a disadvantage in planning and building future capacity for economic growth. Contamination of a CWS source is costly for the water supplier and the public. For example, it is estimated that the total cost of the May 2000 Walkerton, Ontario, E. coli contamination incident was $64.5 million. Livernois, J. (2001), ''The Economic Costs of the Walkerton Water Crisis.'' In addition to increased monitoring and treatment costs for the water system, a contaminated source may result in costs associated with containment or remediation, legal proceedings, adverse public health and environmental effects, reduced consumer confidence, diminished property values and costs to replace the contaminated source.
A case study in Texas showed that water suppliers in source water areas with chemical contaminants paid $25 more per million gallons to treat drinking water than suppliers in areas without chemical contaminant detections. Dearmont, D., McCarl, B.A. and Tolman, D.A. (1998), ''Costs of Water Treatment Due to Diminished Water Quality: A Case Study in Texas,'' Water Resources Research, 34(4), 849—853. A study by The Trust for Public Land showed that for every 4% increase in source water turbidity (an indicator of water quality degradation from sediment, algae and microbial pathogens), treatment costs increase by 1%. The Trust for Public Land (2002), ''The Cost of Not Protecting Source Waters.'' A study by the Legislative Budget and Finance Committee stated that ''reducing pollution inputs from pipes and land-based sources can reduce locality costs to treat drinking water sources to safe standards.'' Legislative Budget and Finance Committee (2013), ''A Cost Effective Alternative Approach to Meeting Pennsylvania's Chesapeake Bay Nutrient Reduction Targets.'' According to the Legislative Budget and Finance Committee study, a study by the Brookings Institute suggested that a 1% decrease in sediment loading will lead to a 0.05% reduction in water treatment costs. Source water assessments can support and enhance emergency response, improve land use planning and municipal decisions, complement sustainable infrastructure initiatives, and help prioritize and coordinate actions by Federal and Commonwealth agencies to better protect public health and safety.
Amendments to surface water treatment requirements
The United States Environmental Protection Agency (EPA) describes turbidity as ''a measure of the cloudiness of water. It is used to indicate water quality and filtration effectiveness (such as whether disease-causing organisms are present). Higher turbidity levels are often associated with higher levels of disease-causing microorganisms such as viruses, parasites and some bacteria. These organisms can cause symptoms such as nausea, cramps, diarrhea, and associated headaches.'' National Primary Drinking Water Regulations, EPA 816-F-09-004 (May 2009). This final-form rulemaking will ensure that PWSs consistently produce water that meets turbidity standards to help ensure the delivery of safe and potable water to all users.
The proposed rulemaking was intended to reduce the public health risks related to waterborne pathogens and waterborne disease outbreaks. Costs related to waterborne disease outbreaks are extremely high. For example, the total medical costs and productivity losses associated with the 1993 waterborne outbreak of cryptosporidiosis in Milwaukee, WI, was $96.2 million—$31.7 million in medical costs and $64.6 million in productivity losses. The average total cost per person with mild, moderate and severe illness was $116, $475 and $7,808. Corso, P.S., et al. (2003), ''Cost of Illness in the 1993 Waterborne Cryptosporidium Outbreak, Milwaukee, Wisconsin,'' Emerging Infectious Diseases, 9(4), 426—431.
When problems such as rapid changes in source water quality, treatment upsets requiring a filter backwash or other unforeseen circumstances occur at filter plants, an immediate response from water plant operators is needed. This final-form rulemaking is intended to ensure that operators are promptly alerted to major treatment problems or, if an operator is unable to respond, that the plant will automatically shut down when producing inadequately treated water. Therefore, this final-form rulemaking will prevent situations that pose an imminent threat to consumers, reduce PWS costs related to corrective actions and issuing public notice, reduce costs to the community and maintain consumer confidence.
While the Department favors establishing more stringent individual filter effluent (IFE) and combined filter effluent (CFE) turbidity compliance and trigger levels of 0.30 Nephelometric Turbidity Units (NTU) and 1.0 NTU for surface water filtration plants, in response to numerous comments from the Small Water Systems Technical Assistance Center Advisory Board (TAC) and public commentators, the Department is deferring these amendments until the EPA completes its 6-year review of the Federal turbidity requirements established under the Surface Water Treatment Rules. This will allow the Department to consider the EPA's proposed changes before moving forward with proposed amendments to applicable State regulatory requirements. Until that time, the Department encourages filter plant operators to voluntarily meet optimal water quality levels and respond to trends of increasing turbidity as quickly as possible. This can be accomplished through the use of the Department's existing programs, including the Area-Wide Optimization and Filter Plant Performance Evaluation (FPPE) and Partnership for Safe Water programs. Through these programs, the Program has always dedicated significant resources toward compliance assistance/violation prevention at surface water filtration plants.
Revisions to system service and auxiliary power requirements
The amendments to system service and auxiliary power requirements will strengthen system resiliency and ensure that safe and potable water is continuously supplied to consumers and businesses. A continuous and adequate supply of safe drinking water is vital to maintaining healthy and sustainable communities.
PWS sources and treatment facilities in this Commonwealth are susceptible to emergency situations resulting from natural and manmade disasters. Examples of emergencies from recent years include tropical storms, flooding, high winds, ice, snow, industrial chemical plant runoff, pipeline ruptures and transportation corridor spills. These emergencies have resulted in significant impacts to consumers and businesses due to inadequate water quantity or quality, and required water supply warnings and advisories. For example, in 2011, Hurricane Irene and Tropical Storm Lee caused flooding, water line ruptures and power outages resulting in mandatory water restrictions and boil water advisories (BWA) at 32 PWSs in this Commonwealth. In 2012, Hurricane Sandy caused similar problems at 85 CWSs. Most of the impacted systems were small systems where redundancy and back-up systems were lacking. By comparison, systems with redundancy and adequate planning maintained operations until the power was restored with little negative impact to their customers. Countless incidents at individual CWSs have occurred due to localized emergencies with interruptions in potable drinking water service that could have been prevented if adequate preparation and equipment were available.
In addition, numerous wastewater treatment plants were forced to send untreated sewage to waterways in this Commonwealth during these major weather events. PWSs that use these waterways as a source of supply for drinking water were at an increased risk due to extremely elevated turbidity levels and pathogen loading. Effectively treating drinking water during and after emergencies requires increased vigilance and operational control.
Water outages caused by power failures or other emergencies can cause additional adverse effects including:
• Lack of water for basic sanitary purposes, such as handwashing and flushing toilets.
• Increased risk to public health when water systems experience a sharp reduction in supply, which can result in low or no pressure situations within the distribution system. Low pressure can allow intrusion of contaminants into distribution system piping from leaks and backflow from cross connections.
• Dewatering of the distribution system can result in physical damage to pipes when the system is re-pressurized. This situation is exacerbated due to the Nationwide problem with aging infrastructure.
This final-form rulemaking improves the reliability of service provided to all consumers by requiring the development of a feasible plan to consistently supply an adequate quantity of safe and potable water during emergency situations. More specifically, water suppliers will need to provide onsite auxiliary power sources (specifically, generators) or connection to at least two independent power feeds from separate substations, or develop a plan for alternate provisions, such as interconnections with neighboring water systems or finished water storage capacity. Ideally, water systems will implement a combination of options to improve their redundancy and resiliency.
After significant consideration of comments regarding the proposed rulemaking, the Department has made several revisions in this final-form rulemaking. The Department expanded the alternate provision options even further to include ''a combination of alternate provisions,'' ''access to portable generators'' and a category of ''other'' alternate provisions. Within the ''other'' alternate provisions category, system specific alternate provisions may be proposed to insure uninterrupted system service. Additionally, due to the variety of system specific challenges, the Department included the option to submit a schedule for necessary improvements which have not been completed by the compliance deadlines specified in § 109.708(a) (relating to system service and auxiliary power) for submittal of the USSP. This new approach requires certification of completion of the USSP form created by the Department by the deadlines specified in § 109.708(a). However, if the USSP identifies that deficiencies exist which prevent a continuous supply of safe and potable water as specified in § 109.708(a), and the CWS has not fully addressed those deficiencies by the deadline for USSP submittal, a schedule will need to be submitted within 6 months which includes detailed corrective actions and corresponding completion dates. These significant revisions will help enable the cost for compli-ance with these provisions to be spread out over a longerperiod of time. Additionally, these revisions will provide water suppliers with more flexibility in choosing the approach that best suits their particular water systems and adequate time to implement that plan in the most effective manner.
Part II. New annual fees and amended permit fees
Funding necessary to provide services
The Department is required to adopt and implement a public water supply program under section 5(a) of the SDWA that includes maximum contaminant levels (MCL) or treatment technique requirements establishing drinking water quality standards, monitoring, reporting, recordkeeping and analytical requirements, requirements for public notification, standards for construction, operation and modification to PWSs, emergency procedures, standards for laboratory certification, and compliance and enforcement procedures. These functions and services are required to have an approvable program and maintain primacy from the EPA. Services provided by the Department to maintain compliance with section 5(b) of the SDWA, as well as regulations in Chapter 109 and permits issued, include: monitoring and inspections; maintaining an inventory of PWSs in this Commonwealth; conducting systematic sanitary surveys of PWSs; assuring the availability of laboratories certified to analyze drinking water for all contaminants specified in the drinking water standards; reviewing and approving plans and specifications for the design and construction of new or substantially modified PWSs to deliver water that complies with drinking water standards with sufficient volume and pressure to users of the systems; and issuing orders and taking other actions necessary and appropriate for enforcement of drinking water standards.
The fees in this final-form rulemaking are necessary to ensure adequate funding for the Department to carry out its responsibilities under the SDWA and the Federal Safe Drinking Water Act. This Commonwealth is ranked third in the United States in terms of the number of PWSs, with 8,521 PWSs across this Commonwealth. The Department is responsible for regulating all PWSs in this Commonwealth and ensuring that safe and potable drinking water is continuously supplied to the 11.3 million customers the PWSs serve.
The Department's appropriations from the General Fund for the Program have steadily decreased in recent years while the cost of staff salaries and benefits, as well as other operation costs, have increased. The result has been an overall 25% decrease in staffing for the Program since 2009. As discussed in more detail in the preamble of the proposed rulemaking published at 47 Pa.B. 4986 (August 26, 2017)), these staff reductions have led to a steady decline in the Department's performance of services necessary to ensure compliance with SDWA requirements.
The current funding available to administer the Program from State and Federal sources is $19.7 million, as shown in the following chart. The fees are expected to generate approximately $7.5 million, which will allow the Program to restore staffing levels and reverse the decline in services that has occurred since 2009. The fees will provide nearly 50% of the Commonwealth's share of funding for the Program. The remaining portion of the Commonwealth's share ($7.7 million) is expected to be provided through annual General Fund appropriations. If appropriations from the General Fund do not keep pace with Program costs, a funding gap could remain even with this final-form rulemaking.
Federal sources currently provide approximately $11.2 million to fund the Program, including:
• Public Water System Supervision grant ($4.1 million)—used for personnel costs, lab costs and staff training
• State Revolving Fund Set-asides grant ($7.1 million)—used for personnel costs, capability enhancement programs (training, technical assistance and optimization programs), source water assessment and protection, the Pennsylvania Drinking Water Information System (PADWIS) and assistance grants/contracts
The Commonwealth currently provides approximately $8.5 million to fund the Program through the following sources:
• General Fund appropriations (~$7.7 million)—used for personnel costs
• Operator Certification fees ($0.8 million)—used for Operator Certification Program implementation costs
With the addition of the $7.5 million expected to be generated from this final-form rulemaking, the funds available for the Program should total $27.2 million.
The minimum critical services that the Program must provide to administer the SDWA and its regulations include:
• Conducting surveillance activities, such as sanitary surveys and other inspections.
• Collecting and analyzing drinking water samples.
• Determining compliance with the regulations, a permit or an order.
• Taking appropriate enforcement actions to compel compliance.
• Reviewing applications, plans, reports, feasibility studies and special studies.
• Issuing permits.
• Conducting evaluations, such as FPPEs and other site surveys.
• Tracking, updating and maintaining water supply inventory, sample file and enforcement data in various data management systems.
• Meeting and assuring compliance with all Commonwealth and Federal recordkeeping and reporting requirements.
• Conducting training.
• Providing technical assistance.
• Responding to water supply emergencies.
Failure to provide these fundamental services may result in an increased risk to public health, as well as the loss of approval from the EPA for the Department to serve as the primary enforcement agency for the administration of the Program in this Commonwealth under Federal law.
The Board has the authority and is directed under section 4(c) of the SDWA to establish fees for services that bear a reasonable relationship to the actual cost of providing the services. The Board must also consider the impacts of the proposed fees on small businesses as part of the regulatory analysis required under section 5 of the Regulatory Review Act (71 P.S. § 745.5). Sixty-eight percent of the PWSs in this Commonwealth are considered small businesses.
The fees in this final-form rulemaking will provide the Department with funding necessary to properly administer the SDWA while bearing a reasonable relationship to the actual cost of services provided and in a manner that minimizes the adverse impact on water systems with fewer customers to bear the cost.
The fees will allow the Department to restore sanitarian (field inspector) positions and lower the workload of PWSs/sanitarian to an acceptable level (~100—125 per a workload analysis) as follows:
Number of PWSs Number of Sanitarians Sanitarian Workload (Number of PWSs/Sanitarians) Region 2009 2015 2017 2009 2015 With New Fees 2009 2015 With New Fees 1 SERO 1,062 911 895 9 6 8 118 152 112 2 NERO 2,973 2,559 2,481 23 19 23 129 135 108 3 SCRO 2,596 2,408 2,353 21 13 21 124 185 112 4 NCRO 1,115 941 894 10 6 8 112 157 112 5 SWRO 879 694 667 10 6 7 88 105 95 6 NWRO 1,302 1,205 1,281 11 7 12 118 158 107 Totals
9,927 8,718 8,521 84 57 79 118
Average153
Average108
Average
New annual fee and permit fee increases
The amended fees apply to all 8,521 PWSs, which include 1,952 CWSs, 6,397 NCWSs and 172 bottled and vended water systems, retail water facilities and bulk water hauling systems (BVRB). The new annual fees range from $250 to $40,000 for CWSs, $50 to $1,000 for NCWSs and $1,000 to $2,500 for BVRBs. If passed on to their customers, these annual fees would result in an increase in cost ranging from $0.35 to $10 per year, depending on the water system size. Further explanation of the annual fees is provided in Section E under the discussion of § 109.1402 (relating to annual fees). The increased permit fees range from $100 to $10,000 depending on the population served and whether the permit is for major or minor construction. The former permit fees ranged from $125 to $1,750. This final-form rulemaking provides for a review of the fee structure every 3 years to ensure that the fees continue to adequately supplement the cost of maintaining the Program.
As provided in section 14 of the SDWA (35 P.S. § 721.14), all fees will be paid into the State Treasury into a special restricted revenue account in the General Fund known as the Safe Drinking Water Account administered by the Department. The funds may only be used for purposes as authorized under the SDWA.
Comparison to other states annual fees
As described in preamble of the proposed rulemaking, at least 26 states charge annual fees to augment the cost of their drinking water programs. Some states charge a flat fee based on the PWS type and size. Other states charge a fee based on population served or the number of service connections. Annual fees for these 26 states range from $25 to $160,000 and were summarized in the preamble of the proposed rulemaking.
Part III. Amendments
The remaining component of this final-form rulemaking consists of amendments to other sections of Chapter 109 to:
• Establish in § 109.511 (relating to general permits) the regulatory basis for the issuance of general permits for high volume, low risk modifications or activities to streamline the permitting process.
• Clarify in § 109.505(a)(2)(ii) (relating to requirements for noncommunity water systems) that NCWSs that are not required to obtain a permit shall still obtain Department approval of the facilities prior to construction and operation.
• Address in § 109.301(15) (relating to general monitoring requirements) and final-form § 109.718 (relating to comprehensive monitoring plan) (proposed § 109.717) concerns related to gaps in the monitoring, reporting and tracking of back-up water sources, and entry points. Per State regulations in § 109.301 and § 109.303 (relating to sampling requirements) and Federal regulations in 40 CFR 141.23(a), 141.24(f) and (h) and 141.26(a) (relating to inorganic chemical sampling and analytical requirements; organic chemicals, sampling and analytical requirements; and monitoring frequency and compliance requirements for radionuclides in community water systems), all sources and entry points shall be included in routine compliance monitoring to ensure water quality meets safe drinking water standards. Sources and entry points that do not provide water continuously are required to be monitored when used. However, monitoring requirements for back-up sources are not currently tracked, which means verifiable controls are not in place to ensure that all sources and entry points meet safe drinking water standards. Some of these sources have not been used in at least 5 years and, therefore, the Department does not know the water quality for these sources. In addition, the treatment facilities and other appurtenances associated with these sources may have gone unused as well, and may no longer be in good working order. This final-form rulemaking will ensure that all sources and entry points are monitored at least annually, or when in use. PWSs will also be required to document in a comprehensive monitoring plan how routine compliance monitoring will include all sources and entry points.
Advisory committee review
This final-form rulemaking was presented to TAC on December 7, 2017. Final written comments were received on December 22, 2017. The TAC Board made ten recommendations:
• Five of the recommendations were incorporated into this final-form rulemaking.
• The TAC recommended that electronic submission of Consumer Confidence Reports to the Department be allowed as an environmentally prudent option. The Department continues to investigate options for water suppliers to submit reports electronically, and intends to move forward with promulgating a regulation to implement this recommendation as soon as a system is available to accept electronic submissions.
• The TAC made three recommendations regarding NSF International (NSF) certification requirements under § 109.606 (relating to chemicals, materials and equipment). These recommendations were not incorporated because NSF certification is an existing requirement. NSF certification has been a long-standing requirement to ensure the safety and efficacy of materials and equipment. NSF certification ensures that harmful metals such as cadmium, chromium and lead do not leech from materials and equipment. NSF certification also ensures that water treatment devices can meet manufacturers' claims and effectively treat the water. However, the Department clarifies in this final-form rulemaking that NSF certification requirements apply to materials and equipment that come in contact with the water. In other words, these requirements apply to the wetted parts of materials and equipment, and exclude motors, casings, and the like which do not come into contact with the water. Finally, § 109.606 allows the use of other standards to meet these criteria. For example, the use of materials, such as concrete and stainless steel, which meet American Water Works Association standards would be acceptable to the Department.
• The TAC made recommendations regarding the elimination of the fees and whether the fees bear a reasonable relationship to the cost of services. These recommendations are addressed in Section E, particularly in the discussion regarding § 109.1402.
• Section E includes more information about the TAC Board's recommendations.
Summary of major comments and responses
The Independent Regulatory Review Commission (IRRC) submitted several comments. A summary of the IRRC's major comments and the Board's responses to those comments follow. For more information about the comments received and the Department's responses, refer to the comment and response document for this final-form rulemaking.
Comment: The current state of the Program, which is the cumulative result of numerous decisions made over many years, is cause for serious concern regarding protection of the public health, safety and welfare. The SDWA envisions and directs the Board to establish fees to cover services. IRRC questioned the Department's decision to cut services rather than gradually increase fees as appropriations from the General Fund decreased in recent years. IRRC asked the Board to explain why the statutory directive to establish fees to cover services was not used to sustain the Program. IRRC asked the Board to explain how the Program's budget will be monitored in the future to ensure that revenues are in place to meet SDWA requirements before a budget shortfall exposes the public to the risk of unsafe drinking water.
Response: The Department attempted to increase permit fees and establish new annual fees in 2010 when Program resources and performance first began to decline. A draft proposed rulemaking (Safe Drinking Water Program Fees) was presented to TAC on March 9, 2010, with further discussion on June 18, 2010. The proposed rulemaking was presented to the Board at its November 16, 2010, meeting, where it was approved to move forward as a proposed rulemaking. However, due to circumstances beyond the control of the Department at that time, the draft proposed rulemaking was prohibited from moving forward beyond that point in the regulatory process.
Regarding the Department's protocols that will ensure the proper monitoring of the Program's performance and budget in the future, the 3-year review of fees specified under § 109.1413 (relating to evaluation of fees) will ensure ongoing monitoring and tracking. There are several additional levels of accountability within the Program. At the Federal level, the Department is accountable to the EPA to ensure that the Program meets all primacy and grant conditions and is at least as stringent as the Federal program. The Department provides several updates to the EPA throughout the year including quarterly enforcement updates, semiannual updates on grant commitments and Program performance, and annual and triennial reports on Program implementation. The Department's performance is also tracked by the Governor's Office and the General Assembly through the annual budget process and through the reporting and tracking of annual performance measures. The Department is accountable to the citizens of this Commonwealth through advisory committees, public meetings and publicly-accessible web applications. Currently, the Department provides on the Drinking Water Reporting System web site all compliance monitoring results, violations and enforcement actions, and inspection results for all 8,500 PWSs. See http://www.drinkingwater.state.pa.us/dwrs/HTM/Welcome.html. The fees in this final-form rulemaking will provide the Department with funding necessary to properly administer the SDWA while bearing a reasonable relationship to the actual cost of services provided by the Department and while achieving a reasonable cost to the customers served.
Comment: Public comments opposing the proposed fees, and even those supporting them, challenged the Board's methodology for assessing the fees. The commentators questioned whether fees based on parameters including population served, PWS identification number and system construction bear a reasonable relationship to the actual cost of the services provided by the Department. IRRC recommended that the Board re-evaluate the basis of the fees in the final-form rulemaking, including consideration of the recommendation from the TAC. IRRC asked the Board to explain in the preamble of the final-form rulemaking how the chosen method of assessment of fees bears a reasonable relationship to the actual cost of providing each service, and to explain why the TAC recommendation is not in the public interest if it is not adopted.
Response: The Department retained the assessment of fees by population served. Nearly all aspects of the State and Federal drinking water programs are governed by system size (population). System population is used to determine monitoring requirements (the number of samples and the frequency of monitoring), implementation due dates (many rules phase-in effective dates by system size) and treatment techniques (some treatment techniques only apply to certain system sizes), among other things. System population is used as a surrogate for system complexity—medium and large systems are generally more complex than small systems, with more overall facilities (namely, sources, entry points, interconnections and storage tanks, among others) and types of treatment technologies. Medium and large systems often face additional challenges with maintaining simultaneous compliance, which factor heavily into Department services. For these reasons, it is appropriate to use system population to determine the various fee categories and Department costs. Refer to the discussion regarding § 109.1402 in Section E for more information about the appropriateness of the fees.
Comment: The Board notes that several areas of the proposed rulemaking were more stringent than Federal requirements, and commentators took issue with the increased regulation relative to lack of staff and increased fees. IRRC asked the Board to explain the reasonableness of expanding regulatory requirements which would result in increased demands on the Department's staff and funding during a time when both staff and funding are decreasing.
Response: The Department revised several provisions in response to TAC and public comments. Several provisions that were more stringent were either revised or deleted, including the turbidity requirements under §§ 109.202 and 109.701 (relating to State MCLs, MRDLs and treatment technique requirements; and reporting and recordkeeping), the monitoring and reporting requirements for ''back-up'' sources and entry points under §§ 109.301 and 109.303, final-form § 109.718 (proposed § 109.717) and § 109.703 (relating to facilities operation), and the system service and auxiliary power requirements under § 109.708. The remaining more stringent provisions are designed to help reduce the occurrence of violations, treatment breakdowns and water supply emergencies, thereby improving system resiliency and reliability and reducing the need for Department staff resources to respond to these emergency situations. Refer to Section E for more information on the revisions to these sections.
Comment: IRRC asked the Board to ensure that the final-form rulemaking and the Regulatory Analysis Form for this final-form rulemaking make clear who is required to comply with the regulations and how the final-form rulemaking affects the various segments of the regulated community. IRRC asked the Board to consider regulatory methods to minimize adverse impacts on small businesses or explain the reasonableness of not considering alternatives.
Response: The various definitions and types of PWSs that shall comply with the SDWA and regulations are not being amended in this final-form rulemaking. The existing State and Federal regulatory definitions and guidance provide more information about the types of water systems. In general, nontransient NCWSs include facilities that serve 25 or more of the same people, but are not residential facilities. This includes schools and places of business with 25 or more employees. Transient NCWSs generally serve a transient population and include restaurants and campgrounds. Finally, the fees for small water systems and businesses were established to bear a reasonable relationship to the actual cost of services provided and in a manner that minimizes the adverse impact on water systems with fewer customers to bear the cost. Refer to Section F and to the responses to Questions 17, 24, 26 and 27 in the Regulatory Analysis Form for this final-form rulemaking for more information about who is required to comply with the regulations, how this final-form rulemaking affects the various segments of the regulated community, the costs for the various segments of the regulated community, including small businesses, and for the consideration of alternative regulatory approaches.
Comment: IRRC strongly encouraged the Department to organize additional stakeholder meetings with representatives from all segments of the regulated community to develop final-form regulations that are clear, reasonable and have the least adverse economic impact while protecting the public health, safety and welfare. IRRC asked the Board to address the reasonableness, economic impact and implementation of revisions made to these sections of the final-form rulemaking in this preamble.
Response: The fees and other proposed amendments were thoroughly discussed with the TAC and other stakeholders through several advisory committee meetings and a public webinar. Advisory committee meetings were announced publicly and are open to the public. As previously mentioned, several general update provisions were either revised or deleted in response to TAC and public comments. In addition, several options were evaluated using all available data to determine the best method of assessing fees to ensure the fees bear a reasonable relationship to the actual cost of services provided by the Department and in a manner that minimizes the adverse impact on water systems with fewer customers to bear the cost. Refer to Sections E and F for more information about the reasonableness, economic impact and implementation of revisions to this final-form rulemaking.
Comment: The Board proposed to reduce acceptable turbidity levels, making the maximum level more stringent than Federal standards. IRRC asked the Board to explain the reasonableness and economic impact of making this requirement more stringent than Federal standards.
Response: The Department deleted these provisions from this final-form rulemaking. Refer to the discussion of the amendments to §§ 109.202 and 109.701 in Section E for more information.
Comment: Proposed § 109.301(11)(ii) stated that ''at a minimum, all entry points shall provide water to the public on an annual basis to ensure all sources and entry points are included in routine compliance monitoring.'' IRRC asked the Board to address in this preamble the economic impact and feasibility of requiring all entry points to provide water to the public, as well as the implementation schedule. IRRC asked the Board to define ''entry points'' in this final-form rulemaking. IRRC asked the Board to clarify ''back-up sources'' and define the term in § 109.1 (relating to definitions), and to clarify how interconnections will be affected in the final-form rulemaking.
Response: The Department deleted proposed § 109.301(11)(ii) in response to TAC and public comments. Revisions were made to include the designation ''reserve'' in § 109.301(15) and final-form § 109.718 (proposed § 109.717), rather than define ''back-up sources'' in § 109.1, to allow select sources and entry points to remain off-line until needed. Section 109.1 already defines ''entry point.'' ''Back-up'' source is not used in the regulations, so a definition is not needed. Refer to the discussion of §§ 109.301, 109.303 and 109.703 and final-form § 109.718 (proposed § 109.717) in Section E for more information, including an explanation of how interconnections will be affected.
Comment: IRRC asked the Board to clarify the pre-drilling plan and source water assessment requirements of § 109.503(a)(1) (relating to public water system construction permits) in this final-form rulemaking. IRRC asked the Board to explain the reasonableness of this requirement.
Response: Pre-drilling plans and source approvals are coordinated with other agencies such as the Susquehanna River Basin Commission, the Delaware River Basin Commission (DRBC), and the like. The individual components of a pre-drilling plan and subsequent approvals of potential production well site locations have been required as part of the permitting process since at least 1997. The individual components are listed in § 109.503(a)(1)(iii) and are required to be submitted to the Department as part of a construction permit application. However, with these amendments, the pre-drilling plan will now be required to be submitted to the Department for review and approval prior to drilling the well. Revisions were not made in this final-form rulemaking to § 109.503(a).
Test wells and exploratory activities would be undertaken first to determine potential production well site locations; the Department does encourage these valuable data gathering activities. Potential production well sites would then be addressed by the pre-drilling plan.
The clarifications to existing requirements for preliminary source water assessments in § 109.503(a)(1)(iii)(A) do not involve water quality monitoring and are primarily to determine potential sources of contamination and the susceptibility of the production water source to contamination, not to assess existing water quality in the well. In addition, the Groundwater Monitoring Guidance Manual is used by the Department and multiple agencies to address groundwater sampling/monitoring issues. Refer to the Benefits portion of Section F for more information.
Comment: Regarding the proposed amendments to § 109.606, IRRC suggested that the Board should define ''equipment,'' clarify its intent regarding certification and explain the reasonableness of the expanded certification, including addressing economic impacts.
Response: The Board revised § 109.606 to clarify that chemicals, materials and equipment that come in contact with the water or may affect the quality of the water must be acceptable to the Department. In other words, this section applies to the wetted parts of materials and equipment, and excludes motors, casings, and the like that do not come in contact with the water. The Department believes that this clarification should alleviate the need for a definition for ''equipment.''
According to NSF, a 2016 survey of members of the Association of State Drinking Water Administrators (ASDWA) found that 48 states have legislation, regula-tions or policies requiring compliance with NSF standards. NSF International (2016), ''Survey of ASDWA Members on the Use of NSF/ANSI Standards'' (2016 survey). In this Commonwealth, NSF certification requirements under § 109.606 are long-standing and are intended to ensure the safety and efficacy of chemicals, materials and equipment that come into contact with water. NSF certification ensures that harmful metals such as cadmium, chromium and lead do not leech from materials and equipment. NSF certification also ensures that water treatment devices can meet manufacturer's claims and effectively treat the water. The intent of the revisions to § 109.606 is to clarify that ''equipment'' has always been included, as evidenced by the fact that ''equipment'' has always been part of the heading of § 109.606. Under existing Department protocols, water systems shall take all steps necessary to identify and propose the use of NSF-approved equipment. If NSF-certified equipment is not available, the Department, on a case-by-case basis, will allow the use of other equipment, provided the equipment does not pose an increased risk to public health. The Department is not expanding the scope of equipment for which NSF certification requirements apply; therefore, additional costs are not expected to be incurred.
Comment: Regarding §109.1303 (relating to triggered monitoring requirements for groundwater sources) and the proposed deletion of the opportunity to collect five additional E. coli source water samples to confirm if there is a problem, IRRC asked the Board to address the reasonableness and economic impacts of eliminating the opportunity for further testing to prevent false positives, if the deletion is maintained in the final-form rulemaking.
Response: The EPA approves analytical methods based on the reliability of a method to have a low risk of samples being false positive or false negative. In the preamble to the proposed Federal Ground Water Rule, the EPA states ''that, in the interest of public health, a positive sample by any of the methods listed in Table III-4 should be regarded as a fecal indicator-positive source water sample.'' See 65 FR 30194 (May 10, 2000). The proposed and final Federal rules along with the Department's revisions to Chapter 109 provide a means for the laboratory or a state to invalidate samples. Although the EPA allowed the five additional samples as a concession regarding the rare event that a sample is false positive, the EPA's commentary in the preamble to this final rule states ''that in most cases these five additional samples should capture the fecal contamination event since the samples are taken within 24 hours.'' See 71 FR 65574 (November 8, 2006). This statement acknowledges that a risk to public health exists because the five additional samples may miss detecting the fecal contamination. In other words, the fecal contamination that was detected in the original sample was a true positive; however, because contamination is neither constant nor immobile, the five additional samples may miss detecting the contamination event. This risk of missing the event is the main rationale for the Department's decision to delete the five additional samples.
Regarding economic impact, water systems will no longer be required to collect the five additional E. coli samples, which will result in a potential cost savings. Further, all bottled water systems are already required to provide continuous disinfection. If 4-log treatment istriggered, additional capital costs will not be incurred—treatment already exists. However, some bottled watersystems will need to modify operational practices using existing treatment and improve associated monitoring and reporting practices, as specified in revised operations permits, to insure adequate 4-log treatment is maintained.
E. Summary of Revisions to the Proposed Rulemaking
§ 109.202. State MCLs, MRDLs and treatment technique requirements
Proposed subsection (c)(1)(i)(A)(V) was deleted in response to TAC and public comments and will be considered in a future rulemaking. The Department decided to defer these proposed amendments until after the EPA completes its 6-year review of the Federal turbidity requirements established under the Surface Water Treatment Rules. This will allow the Department to consider the EPA's proposed changes before moving forward with proposed amendments to applicable State regulatory requirements. During the interim, the Department, through its existing programs, including the Area-Wide Optimization, FPPE and Partnership for Safe Water programs, will continue to recommend and encourage filter plant operators to voluntarily meet optimal water quality levels and respond to trends of increasing turbidity as quickly as possible. Through these programs, the Program has always dedicated significant resources toward compliance assistance/violation prevention at surface water filtration plants.
Additionally, the proposed alarm and shutdown capability amendments under § 109.602 (relating to acceptable design) remain in this final-form rulemaking, which are also targeted at surface water filtration plants. The automated plant shut down requirements are intended to prevent poor quality water from reaching customers, which will protect public health, reduce PWS costs related to corrective actions and issuing public notice, reduce costs to the community and maintain consumer confidence. Therefore, the improved alarm and shutdown capabilities that will occur as a result of systems complying with this final-form rulemaking are a very important interim public health protection measure which will be in place while the Department awaits the EPA's future actions on potentially more stringent turbidity provisions.
Section 109.202(c)(1)(i)(C) includes specific treatment technique requirements for membrane filtration. These standards are consistent with the results of pilot testing conducted throughout this Commonwealth, recommendations by the EPA in the Membrane Filtration Guidance Manual (EPA 815-R-06-009, November 2005), as well as recommendations made by equipment manufacturers. These standards were previously applied through special permit conditions. Certified operators have consistently maintained the proposed levels of performance at membrane filter plants throughout this Commonwealth. When deviations from this performance have occurred, follow-up investigations revealed the need for repairs to this treatment barrier.
§ 109.301. General monitoring requirements
Proposed paragraph (11)(ii) was deleted in this final-form rulemaking in response to TAC and public comments. This proposed subparagraph was revised and moved to paragraph (15) and to the comprehensive monitoring plan requirements under final-form § 109.718 (proposed § 109.717).
These revisions are intended to clarify the monitoring requirements for entry points that do not provide water continuously and address concerns related to gaps in the monitoring, reporting and tracking of back-up water sources and entry points. Per State regulations in §§ 109.301 and 109.303 and Federal regulations in 40 CFR 141.23(a), 141.24(f) and (h) and 141.26(a), all sources and entry points shall be included in routine compliance monitoring to ensure water quality meets safe drinking water standards. Currently, sources and entry points that do not provide water continuously are required to be monitored when used. However, monitoring requirements for back-up sources are not currently tracked, which means no verifiable controls are in place to ensure that all sources and entry points meet safe drinking water standards.
These concerns were most recently highlighted by the EPA's Office of Inspector General in the 2010 report ''EPA Lacks Internal Controls to Prevent Misuse of Emergency Drinking Water Facilities'' (2010 report) (Report No. 11-P-0001). Note: The term ''emergency'' is often used to describe sources other than permanent sources. In this Commonwealth, some of these back-up sources have not been used in at least 5 years and, therefore, the Department does not know the water quality for these sources.
To better understand the scope of the problem in this Commonwealth, the following data was retrieved from PADWIS.
Entry Points
PWS Type Total Number of
Entry PointsNumber of Permanent Entry Points Number of Nonpermanent Entry Points Percentage of Nonpermanent Entry Points CWSs 3,330 3,003 327 10% Others 7,880 7,760 120 2% Total
11,210 10,763 447 4% An entry point is the place at which finished water representative of each source enters the distribution system. Routine compliance monitoring is not tracked at nonpermanent entry points. Nonpermanent entry points include the existing categories of seasonal, interim, reserve and emergency entry points.
Based on the data, CWSs provide finished water to consumers through a total of 3,330 entry points, 327 (or 10%) of which are nonpermanent. Therefore, as many as 10% of all entry points may not be included in all required monitoring prior to serving water to consumers.
The numbers are even higher at the individual source level.
Water Supply Sources (Wells, Springs, Surface Water Intakes, and the Like)
PWS Type Total Number of Sources Number of Permanent Sources Number of Nonpermanent Sources Percentage of Nonpermanent Sources CWSs 5,252 4,634 618 12% Others 8,604 8,297 307 4% Total
13,856 12,931 925 7% For CWSs, as many as 12% of all sources may not be included in routine compliance monitoring, yet these sources can be used at any time.
The Department also reviewed the monitoring history of the 447 nonpermanent entry points previously mentioned.
Nonpermanent Entry Points
PWS Type Number of
Entry PointsNumber and Percentage of
Entry Points with No
Monitoring Data (Since 1992)Number of Entry Points
with Some Monitoring DataCWSs 327 143 (44%) 184 (of these entry points, 47 were sampled in 2016, 37 were sampled during the 2012—2015 monitoring period and the remaining 101 were sampled prior to 2012) Others 120 7 (6%) 113 (55 entry points have recent data (2016)) Total
447 150 (34%)
For CWSs, 143 (or 44%) of all nonpermanent entry points have no monitoring data since 1992. Of the 184 entry points with some data, most of the data are 5 to 10 years old.
The use of unmonitored sources and entry points could adversely impact basic water quality, including pH, alkalinity, turbidity, corrosivity and lead solubility, dissolved inorganic carbon and natural organic matter. Water suppliers may have limited information about how these sources or entry points will impact treatment efficacy and distribution system water quality. In addition, back-up or emergency sources may have poor water quality or MCL exceedances. The use of these sources without proper monitoring and verifiable controls could lead to an increased risk to public health.
Finally, treatment facilities and other appurtenances associated with these sources may no longer be in good working order. Back-up sources and entry points with unknown water quality or that have not been used or are no longer in good working order provide a false sense of security in terms of system resiliency and emergency response. While the Department understands that many facilities are not used on a 24/7 basis, these amendments will ensure that all permitted sources and entry points are monitored at least annually, or when in use.
The Department anticipates that select purchased interconnections will be able to retain the ''emergency'' designation if the following criteria are met. The Department anticipates proposing technical guidance in the near future that addresses these criteria. As previously noted, ''emergency'' is often used to describe sources other than permanent sources.
• Using the last 3 years of historical water use data, the water supplier can demonstrate that the purchased interconnection has only been used for emergency purposes.
• Emergency use has not occurred more than 14 days per year, excluding use under State or Federal emergency declarations.
• The Department has conducted an annual compliance check using reported water use data.
On a case-by-case basis, the Department may allow the use of the ''reserve'' designation for select sources and entry points, without conducting routine annual compliance monitoring, if documentation is provided to the Department that supports the use of this designation. Select sources and entry points that meet these criteria will be covered by a special condition in the permit that requires Department notification and completion of compliance monitoring prior to use.
Paragraph (15) is added in this final-form rulemaking to clarify the monitoring requirements for reserve sources and reserve entry points to ensure these facilities are properly monitored prior to and during each use.
§ 109.303. Sampling requirements
Subsection (a)(4) is revised in this final-form rulemaking in response to TAC and public comments. The proposed amendments to clarify the monitoring requirements when sources are blended or alternated prior to the entry point were deleted from this paragraph, revised and added to final-form § 109.718 (proposed § 109.717).
Subsection (i) is revised to delete unnecessary language.
§ 109.503. Public water system construction permits
Subsection (b)(2) is revised in this final-form rulemaking to clarify that a change to a source designation may be considered a minor amendment.
§ 109.602. Acceptable design
Subsections (f) and (g) are revised in this final-form rulemaking in response to TAC and public comments to allow the Department to approve an alternate compliance schedule if the water supplier submits a written request with supporting documentation.
Subsection (i)(2)(iii) is revised in this final-form rulemaking in response to TAC and public comments to change ''clearwell water levels'' to ''water levels to maintain adequate CT for Giardia inactivation.'' This revision is necessary because not all water systems use the clearwell as a disinfection segment for Giardia inactivation contact time (CT). After consideration of comments, the Department deleted proposed subsection (i)(2)(iv) to establish alarm and shutdown capabilities for ''any other operational parameter determined by the Department as necessary for the system to maintain compliance.'' Commentators were concerned that this language may be overly broad and lead to inconsistent implementation. With this deletion, the universe of required alarms is reduced, thereby, allowing potential for additional cost savings. The basis for this deletion was the concern that this particular requirement may be too far reaching and cost prohibitive. Rather than include this language, the Department will rely on appropriate water system personnel (for example, properly certified operators and consulting engineers) to carefully evaluate what additional operational parameters may require alarms for the particular filter plant to consistently comply with regulatory requirements. Additionally, if lack of an alarm is linked to risk of treatment breakdown, the Department will address these issues through a system-specific permit or order on a case-by-case basis.
These new requirements are added to define new requirements for alarm and shutdown capabilities. Alarm and shutdown capabilities are intended to prevent unsafe water from reaching customers.
The TAC recommended that the Department should provide accurate cost estimates for compliance with these provisions and evaluate whether 12 months is adequate time for systems to comply given the costs associated overall with the regulatory package and the addition of fees. The TAC expressed concerns that proposed subsection (i)(2)(iv), regarding other operational parameters that the Department may determine necessary for compliance, may be too far reaching and cost prohibitive.
To address the TAC's concerns about costs, the Department conducted additional cost estimate research. The Department estimates that 10% of the 353 filter plants in this Commonwealth will need to install an auto-dialer. The Department estimates that the cost to achieve the automatic alarm and shutdown capabilities ranges from $8,860 to $11,980 per treatment plant, depending on the options chosen, with annual maintenance costs of $600. A detailed discussion of these estimated costs is included in Section F.
Overall, the Department notes that the alarm and shutdown amendments will be cost-effective in comparison to staffing costs incurred by systems that maintain physical staffing of the facility. Several states have regulations that do not allow unattended operation of surface water filtration plants. These revisions provide a reasonable alternative to mandating the presence of a certified operator at all times in all water systems in this Commonwealth.
§ 109.606. Chemicals, materials and equipment
In response to public comments, subsections (a)—(d) are revised in this final-form rulemaking to clarify that chemicals, materials and equipment that come in contact with the water or may affect the quality of the water must be acceptable to the Department. In other words, these requirements apply to the wetted parts of materials and equipment, and exclude motors, casings, and the like, that do not come in contact with the water.
According to NSF, the 2016 survey of ASDWA members found that 48 states have legislation, regulations or policies requiring compliance with NSF standards. In this Commonwealth, NSF certification requirements in § 109.606 have been long-standing and are intended to ensure the safety and efficacy of chemicals, materials and equipment that come into contact with water. NSF certification ensures that harmful metals such as cadmium, chromium and lead do not leech from materials and equipment. NSF certification also ensures that water treatment devices can meet manufacturers' claims and effectively treat the water. The intent of the revisions to § 109.606 is to clarify that ''equipment'' has always been included, as evidenced by the fact that ''equipment'' has always been part of the heading of §109.606. Under existing Department protocols, water systems shall take all steps necessary to identify and propose the use of NSF-approved equipment. If NSF-certified equipment is not available, the Department, on a case-by-case basis, will allow the use of other equipment, provided the equipment does not pose an increased risk to public health. The Department is not expanding the scope of equipment for which NSF certification requirements apply. Therefore, additional costs are not expected to be incurred.
Section 109.606 allows the use of other standards to meet these criteria. For example, the use of materials, such as concrete and stainless steel, which meet American Water Works Association standards would be acceptable to the Department.
§ 109.612. POE devices
Subsection (b) is revised in this final-form rulemaking in response to the TAC's recommendation that the Department change ''and'' to ''or.''
§ 109.701. Reporting and recordkeeping
In response to comments from the TAC and other commentators, subsection (a)(2)(i)(A)(VIII) and (IX) has been revised in this final-form rulemaking to delete more stringent turbidity performance standards for conventional, direct, slow sand and diatomaceous earth filtration technologies.
Subsection (e)(2) is amended to add a citation to clarify which systems are required to report individual filter turbidity monitoring. The trigger levels specified in subsection (e)(2)(i)—(iv) were proposed to be replaced by lower trigger levels for IFE reporting requirements for all filtration technologies as specified in proposed subparagraphs (v)—(viii). These proposed turbidity reporting requirements have been deleted in this final-form rulemaking. Therefore, existing requirements in subsection (e)(2)(i)—(iv) remain unchanged.
Through the rulemaking process, the TAC commented that the ''ramifications of these turbidity reductions include additional reporting, self-assessments and comprehensive performance evaluations, as well as possible public notifications.'' The TAC recommended that the Department ''should provide rationale, science and methodology, cost vs. benefits, public health benefit, etc. and data to support the proposed changes.'' These comments mirror previous comments regarding significant figures and reducing IFE turbidity standards significantly.
In response to the TAC's comments, the Department explains the following. IFE is a primary compliance monitoring location. As with CFE, IFE turbidity is the surrogate measurement for pathogen breakthrough, primarily the acute pathogen Cryptosporidium. Turbidity breakthrough on individual filters often provides an indication of water quality problems before CFE turbidity is significantly impacted. As IFE turbidity increases, risk of particle breakthrough on that particular filter increases; this science is supported by existing regulations and industry experts. Most filter plants in this Commonwealth typically produce IFE water quality <0.10 NTU. Therefore, exceedances of the proposed lower turbidity levels will occur only when water systems are experiencing significant increases in turbidity from an individual filter. Multiple peer reviewed research papers indicate that as turbidity significantly increases from the baseline levels, the risk of pathogen breakthrough increases. Huck, P.M., et al. (2002), ''Effects of Filter Operation on Cryptosporidium Removal,'' Journal—American Water Works Association, 94(6), 97—111. Emelko, M.B., Huck, P.M. and Douglas, I.P. (2003), ''Cryptosporidium and Microsphere Removal During Late In-Cycle Filtration,'' Journal—American Water Works Association, 95(5), 173—182.
The real-world impact to operational practices at filter plants in this Commonwealth under the proposed amendments would have been that water suppliers would take important corrective actions sooner (such as removing the filter from service, consulting with the Department and notifying customers). This was intended to enable suppliers to identify physical integrity issues within an individual filter before CFE water quality is impacted, or before problems within one filter occur in other filters. The Department has documented breakdowns in treatment and the presence of pathogens (such as Giardia or Cryptosporidium) in the IFE of water treatment plants in this Commonwealth that complied with the current IFE turbidity standards. This has been documented both with continuous turbidity monitoring and Microscopic Particulate Analysis cartridges. Therefore, strengthening the current IFE turbidity standards was proposed to provide an additional level of protection.
As previously noted, the Department favors establishing more stringent IFE and CFE turbidity compliance and trigger levels for surface water filtration plants. However, in responding to numerous TAC and public comments, the Department is deferring amendments until the EPA completes its 6-year review of the Federal turbidity requirements established under the Surface Water Treatment Rules. This will allow the Department to consider the EPA's proposed changes before moving forward with proposed amendments to applicable State regulatory requirements. Until that time, the Department encourages filter plant operators to voluntarily meet optimal water quality levels and respond to trends of increasing turbidity as quickly as possible. This can be accomplished through the use of the Department's existing programs, including the Area-Wide Optimization and FPPE and Partnership for Safe Water programs. Through these programs, the Program has always dedicated significant resources toward compliance assistance/violation prevention at surface water filtration plants.
Subsection (n) is added in this final-form rulemaking to set forth additional reporting requirements for systems using reserve sources, reserve treatment plants or reserve entry points. These requirements are needed to ensure proper tracking and oversight of these facilities. While these facilities are in use, additional monitoring is required. Timely notification that the facility is no longer in use will allow the Department to modify the monitoring requirements in PADWIS accordingly.
§ 109.703. Facilities operation
Subsection (d) is added in this final-form rulemaking in response to TAC and public comments to specify the requirements for requesting Department approval to use a reserve source, reserve treatment plant or reserve entry point. This revision is necessary to ensure that the use of reserve facilities is properly tracked and monitored prior to each use.
§ 109.706. System map
In response to public comments, subsection (a) is revised in this final-form rulemaking to clarify that the requirement for a system distribution map does not apply to BVRBs.
§ 109.708. System service and auxiliary power
This Commonwealth is susceptible to natural disasters, such as ice storms, tropical storms and hurricanes, which can lead to massive and extended flooding or power outages, or both. As previously noted, this Commonwealth's drinking water sources and treatment facilities are susceptible to emergency situations resulting from natural and manmade disasters. Therefore, all CWSs shall have effective options to provide consistent system service during these emergencies. Despite long-standing efforts to encourage water systems to develop feasible plans for the continuous provision of adequate and safe water quantity and quality during emergency circumstances, many water suppliers are still inadequately prepared. The Department estimates that more than 400 CWSs do not have an up-to-date emergency response plan. This has resulted in significant impacts to consumers in the form of inadequate water quantity or quality, or both, and the resulting consumption advisories.
Flooding events caused by localized heavy rains, hurricanes and tropical storms result in elevated public health risks. Source water turbidity and pathogen loading can increase dramatically during these events. Additionally, when power outages cause interruptions in water system operations, water systems can experience a sharp reduction in supply, which results in low or no pressure within the distribution system. This results in increased risk to public health, because low pressure can allow intrusion of contaminants into distribution system piping from backflow and cross connections. Some customers may also experience inadequate supply of water for basic sanitary purposes, flushing toilets and potable uses.
Several other Mid-Atlantic and Northeastern states are considering promulgating, or have already promulgated, regulations for auxiliary power. New Jersey and New York have existing design standards for auxiliary power. New York requires standby power through incorporation of standards recommended by the Great Lakes—Upper Mississippi River Board of State and Provincial Public Health and Environmental Managers (known as the 10 States Standards). New Jersey's requirements are in N.J.S.A. 58:12A-4(c) and N.J.A.C. 7:10-11.6(i). New Jersey recently evaluated its regulations and issued additional guidance and best management practices regarding auxiliary power, available at http://www.nj.gov/dep/watersupply/pdf/guidance-ap.pdf. Connecticut is in the process of updating its regulations to incorporate generator and emergency contingency and response plan requirements, available at http://www.ct.gov/dph/lib/dph/public_health_code/pending_regulations/proposed_regulation--generators.pdf.
The TAC commented that the Department should not be prescribing the methods by which a public water supplier obtains auxiliary power. The TAC further claimed that: the Department has not sufficiently evaluated the cost of providing auxiliary power; secondary power feeds may not be attainable in rural areas or may be extremely cost prohibitive; and the Department has not properly evaluated the total cost for implementing generator power. Also, the TAC stated that systems may avail themselves of the resources from the Pennsylvania Water and Wastewater Agency Response Network (PaWARN) to meet auxiliary power demands. The TAC recommended that this provision be addressed in emergency response plans and not in regulation.
This final-form rulemaking does not prescribe a specific method by which a system shall comply. Rather, this final-form rulemaking requires that a feasible plan be in place to ensure safe and potable water is continuously supplied to users. The water supplier will determine which option or combination of options it will use to comply. Ideally, suppliers will implement a combination of options to improve their redundancy and resiliency.
This information should be incorporated into emergency response plans, as the TAC suggests. However, despite long-standing efforts to encourage water systems to develop feasible plans for the continuous provision of adequate and safe water quantity and quality during emergency circumstances, many water suppliers are still inadequately prepared. The Department estimates that more than 400 CWSs in this Commonwealth do not have an up-to-date emergency response plan.
Therefore, the Department believes that these revisions are necessary. Wastewater treatment plants have been required to have back-up power supplies for many years. These revisions provide consistency within the drinking water and wastewater industry. It is not feasible to develop these plans under an emergency. Rather, plans must be in place before an emergency occurs. It is only a matter of time before another natural or manmade disaster significantly impacts water systems in this Commonwealth. If these revisions were not adopted, a large number of CWSs would likely not be able to provide a consistent supply of safe and potable water.
In response to the TAC's comment that systems can use the services of PaWARN to comply, the Department fully recognizes the importance of PaWARN and encourages membership in this valuable mutual aid network. For this reason, PaWARN is listed as one critical component of a complete plan to provide uninterrupted system service. In the draft certification form (USSP) which shall be completed to comply with the amendments to § 109.708, PaWARN is listed as one ''alternate provision'' option (along with finished water storage capacity, interconnections with neighboring water systems and rental agreements for generators). As of December 2017, PaWARN had approximately 104 members, approximately 92 of those members manage CWSs throughout this Commonwealth. This is a very small subset of the 1,952 CWSs in this Commonwealth. PaWARN membership should prove valuable during small scale events.
After significant consideration of comments, the Department made several revisions to the proposed rulemaking. First, the Department expanded the alternate provision options further to include ''a combination of alternate provisions,'' ''portable generators'' and a category of ''other'' alternate provisions. Within the ''other'' alternate provisions category, system specific alternate provisions may be proposed to insure uninterrupted system service. Additionally, due to the variety of system specific challenges, the Department includes in final-form subsection (c) the option to submit a corrective action schedule for necessary improvements that have not been completed by the compliance deadlines specified in subsection (a) for submittal of the USSP. More specifically, this new approach requires certification of completion of the USSP form created by the Department by the deadlines in subsection (a). However, if the USSP identifies that deficiencies exist that prevent a continuous supply of safe and potable water as specified in subsection (a), and the community water supplier has not addressed those deficiencies by the deadline for USSP submittal, a schedule shall be submitted within 6 months which includes detailed corrective actions and corresponding completion dates. These significant revisions will help enable the cost for compliance with these provisions to be spread out over a longer period of time. Additionally, these revisions provide water suppliers with more flexibility in choosing the approach that best suits their particular water system, and adequate time to implement that plan in the most effective manner.
Final-form § 109.718. Comprehensive monitoring plan (proposed § 109.717)
This section is revised in this final-form rulemaking in response to TAC and public comments to defer the compliance date of the new comprehensive monitoring plan requirements until 1 year after the effective date of this final-form rulemaking.
This section was also revised to incorporate recommended changes that allow the use of the designation ''reserve'' for select sources and entry points if certain conditions are met. Reserve sources and reserve entry points will be identified in the water system's permit, require notification to the Department and monitoring prior to use.
These requirements will ensure that all sources and entry points are included in routine compliance monitoring at the entry point and within the distribution system, or are properly monitored prior to use. The plan must be specific to the system and include details about the various sources and entry points, and how the facilities are operated. The operation of each source and entry point will dictate how compliance monitoring is conducted to ensure that all sources and entry points are included in routine compliance monitoring.
§ 109.1402. Annual fees
This section is revised in this final-form rulemaking in response to TAC and public comments to defer the effective date of the fees until January 1, 2019, to provide more time for budgeting. Water system boards and authorities have already completed and authorized their budgets for 2018.
Subsection (a)(1)—(3) is revised in this final-form rulemaking to change the number of people in the population served for the smallest category of PWSs. The proposed rulemaking outlined the annual fees for PWSs serving populations of 25 to 100 people. The population numbers are revised in this final-form rulemaking to apply to PWSs serving a population of 100 people or less. These revisions are made because a PWS is defined in § 109.1 as a ''system which provides water to the public for human consumption which has at least 15 service connections or regularly serves an average of at least 25 individuals daily at least 60 days out of the year.'' In this Commonwealth, there are some PWSs that serve at least 15 service connections, but still serve a population of less than 25 people. Therefore, the population number was revised to account for those PWSs.
This section was also revised to change the fee schedule due dates as follows:
Population Served Submit Annual Fee by Expected Quarterly Revenue* 3,301 or more March 31 $1,314,875 501—3,300 June 30 $2,527,275 101—500 September 30 $1,830,425 100 or less December 31 $1,978,175 Total
$7,650,750 *The expected quarterly revenue assumes that most systems paying $6,500 or more will request the quarterly payment option.
The larger systems will be billed during the first quarter, with the smaller systems receiving invoices later in the year. This amendment will ensure:
• Receipt of all annual fees (including quarterly payments for larger systems) within the same calendar year.
• A more even distribution of revenue throughout the year.
• Additional time for small systems to budget for the fees.
This section is revised in this final-form rulemaking in response to TAC and public comments to allow a lower threshold for systems that may request quarterly payments. The threshold was lowered from $10,000 to $6,500.
The preamble to the proposed rulemaking included an extensive explanation regarding the appropriateness of the fees, and how the fees bear a reasonable relationship to the actual cost of services provided.
The following table summarizes the annual fees for CWSs, which are based on population and range from $250 to $40,000. The per-person costs range from $0.35 to $10/person/year.
CWS Annual Fees (Based on Population)
Population Served Annual Fee Cost/Person/Year 100 or less $250 $2.50—$10.00 101—500 $500 $1.00—$4.95 501—1,000 $1,000 $1.00—$2.00 1,001—2,000 $2,000 $1.00—$2.00 2,001—3,300 $4,000 $1.21—$2.00 3,301—5,000 $6,500 $1.30—$1.97 5,001—10,000 $10,000 $1.00—$2.00 10,001—25,000 $20,000 $0.80—$2.00 25,001—50,000 $25,000 $0.50—$1.00 50,001—75,000 $30,000 $0.40—$0.60 75,001—100,000 $35,000 $0.35—$0.47 100,001 or more $40,000 ≤ $0.40 The Department analyzed the cost of providing services to administer the SDWA and its regulations. The cost of some services can be estimated, while the cost of other services depends on the specific circumstances and will vary widely. The following table summarizes the Department's costs of providing those services that can be estimated for CWSs serving various populations. The hourly rate was provided by the Department's fiscal office and includes salary, benefits and in-direct costs (such as supplies, and the like).
Department Cost of Services that Can be Estimated Activity Hours/Activity/Year for CWSs Serving the Following Population <750 750—5,000 5,000—50,000 >50,000 Conduct sanitary surveys 7.5 10 25 37.5 Conduct other inspections 2.5 3.3 5 10 Determine compliance 12 12 15 15 Maintain PADWIS/eFACTS 7.5 7.5 10 10 Review plans/reports 7.5 10 15 15 Provide technical assistance/training 7.5 7.5 10 10 Total Hours
44.5 50.3 80 97.5 at $49/Hour =
$2,180 $2,465 $3,920 $4,778 Examples of other services and costs that involve variable circumstances and preclude a single estimate for the services include the following:
1. Sanitary surveys that take longer to conduct due to the complexity or size of the water system. Examples of actual hours expended and costs to complete more complicated sanitary surveys at large water systems (namely those serving populations >50,000) are as follows:
System A (population = 57,000): 40.5 hours at a cost of $1,984
System B (population = 66,500): 40 hours at a cost of $1,960
System C (population = 87,000): 49 hours at a cost of $2,401
System D (population = 105,000): 60 hours at a cost of $2,940
System E (population = 120,000): 60 hours at a cost of $2,940
System F (population = 747,500): 103 hours at a cost of $5,047
System G (population = 1.6 million): 124 hours at a cost of $6,076
2. Additional follow-up actions taken by the Department in response to a violation. When a drinking water standard is exceeded, Department staff are responsible for: consulting with and providing direction to the water system; ensuring that public notice is complete, timely and repeated as needed; tracking, reviewing and approving follow-up and corrective actions (such as collecting confirmation or additional samples, repairing/replacing/installing water treatment or taking contaminated sources offline); and determining when the system has returned to compliance.
For example, in 2016, monitoring results for a large water system in this Commonwealth indicated the 90th percentile lead value exceeded the action level established in the Lead and Copper Rule. This triggered lead service line replacement actions. Department staff spent at least 116 1/2 hours working to address this important issue. Services provided by the Department to achieve compliance included meetings, file reviews, drafting compliance documents, follow-up action reviews and letters. The approximate cost for these services was $5,708.
3. Additional follow-up, corrective and emergency actions taken by the Department in response to a water supply emergency. Water supply emergencies occur each year and require substantial resources from the Department. The following are examples of emergencies and associated costs for services provided by the Department.
In spring 2011, unexpected damage to a very large water main resulted in a major leak, loss of significant water quantity and pressure. The result was closure of multiple businesses and government agencies in a large city in the Commonwealth for 3 days due to lack of a potable water supply. This emergency spanned approximately 5 consecutive days with approximately 66,500 customers impacted. The Department provided a variety of onsite support services at the site of the break, and at the drinking water filtration plant. Department cost for services provided during this event equates to approximately 160 hours of staff time and a cost of $7,840.
In summer 2012, significant construction delays in completing critical renovations and upgrades to a water filter plant threatened the ability to provide an adequate quantity of drinking water to approximately 210,000 customers. Department staff provided a variety of specialized engineering and operational support services over the course of several weeks. Total cost estimate of Department services provided during this event includes 600 hours of staff time costing approximately $29,400.
In summer 2015, runoff from a large fire at an industrial facility severely contaminated the intakes for two PWSs thereby rendering their normal source of surface water untreatable for almost 3 months. Together, the 2 public water suppliers impacted provided drinking water to approximately 43,000 customers. Several Department staff were involved in providing a wide variety of emergency support services, over the course of several months, to the water suppliers affected. Department cost estimates for this event include 515 staff hours ($25,235) and emergency sampling costs ($17,818). The total cost of Department services provided was approximately $43,053.
In winter 2016, an equipment failure resulted in flooding at a surface water filtration plant which provides water to approximately 20,000 customers. This immobilized treatment and pumping capabilities for 6 consecutive days. The filter plant did not resume normal operations for approximately 2 weeks. Without combined efforts by the water system, the Department and neighboring water systems, 20,000 customers could have endured consecutive days without an adequate supply of water. Department services included coordination with neighboring water systems to identify alternate sources of water, emergency permit considerations, site assessments, engineering and operational support. Additionally, the Department loaned the PWS critical water quality monitoring equipment (valued at approximately $24,000) for approximately 10 weeks to help verify that safe water was consistently provided. The total cost estimate of Department services provided during this event also includes 300 hours of staff time, which cost approximately $14,700.
4. The cost of samples collected by the Department during inspections and FPPEs, in response to complaint investigations, and to assess water quality and protect public health during water supply emergencies. These sampling costs range from $30 for inorganic analyses to $400 for pesticides to $1,200 for analysis of Cryptosporidium and Giardia to $2,968 for a complete emergency sampling suite. Total Department lab costs average approximately $680,000 per year.
5. The costs associated with additional training when new regulations are promulgated. One example is the numerous training sessions that were developed and delivered in 2015-2016 to roll-out implementation of the RTCR adopted to conform to Federal requirements. This training included 8 different training courses, workshops and webinars that were presented 160 times across this Commonwealth for a total of 482 hours of training. The cost to deliver 482 hours of training was $23,618.
6. The costs associated with specific follow-up actions established in new regulations. The Federal RTCR became effective on April 1, 2016, and the Department and the EPA shared enforcement of the Federal rule until the Commonwealth's regulations were adopted at 46 Pa.B. 6005 (September 24, 2016). As part of the Department's enforcement responsibilities during this interim period, staff conducted Level 2 assessments at PWSs. A Level 2 assessment is triggered when a public water supply has an E. coli MCL violation or when two total coliform triggers occur during a 12-month period. During this interim period, Department staff completed 94 Level 2 assessments at more than 85 regulated PWSs. These assessments identified over 400 defects that have already been, or are being, corrected thereby improving public health protection. Estimated costs for services provided by the Department were approximately $3,000 per assessment for a total cost of $282,000.
The additional costs described in items 1—4 are more evident in medium and large water systems due to their size, age, complexity and number of customers at risk. Because these additional costs are variable, it is not possible to establish an average cost for these services. However, these additional costs were considered when determining the annual fees for the medium and large water systems.
The annual fees could have been based solely on the costs for the services that could be estimated. However, that approach would have resulted in a disproportionate impact on the smallest CWSs and would have failed to account for the additional costs incurred by the Department to provide services that cannot be readily estimated, such as those previously described, which result in substantially higher costs for medium and large water systems. Thus, the annual fees were developed to bear a reasonable relationship to the actual costs of the services provided while achieving a reasonable cost to the 11.3 million customers served.
As discussed in the preamble to the proposed rulemaking, the Department considered alternatives to assessing fees. However, the other options would have resulted in further disparity between the fees and Department costs for services for the very small and very large water systems. The Department retained the fee structure based on population served because it was the best option to comply with section 4(c) of the SDWA that directs the Board to establish fees for services that bear a reasonable relationship to the actual costs of the services provided. The Board emphasizes that the SDWA requires that the fees assessed by the Department ''bear a reasonable relationship'' to the actual costs of the services provided, not that the fees be the exact costs for the services provided.
The Department requested and will continue to request additional funding from the General Fund during the annual budget process to support the Program. The decrease in funding has caused the need for the new annual fees. If funding becomes available, the Department will evaluate the continuing need for the annual fees. As for the cost to customers of small versus medium and large water systems and businesses, the annual fees provide a reasonable relationship to the actual costs of the services provided by the Department when considering the minimum costs that can be estimated in advance and the cost of services that arise on a case-by-case basis previously discussed.
The Department has streamlined its operations in nearly all areas. In response to many years of staffing and resource shortfalls, the Program has been reduced to only those activities that are mandated by State and Federal laws, regulations and primacy requirements. If other efficiencies are developed in the future, the ongoing 3-year review of fees will be updated accordingly.
Regarding the other annual fees in subsection (a), fees for nontransient noncommunity water systems (NTNCWS) range from $100 to $1,000, annual fees for transient noncommunity water systems (TNCWS) range from $50 to $500, annual fees for bottled water systems are $2,500 and annual fees for vended, retail and bulk water systems are $1,000.
These fees were determined using the same criteria as previously discussed and are illustrated in the following table. The total hours for services that can be estimated were as follows:
• For NTNCWSs, the total hours ranged from 16 to 22 hours.
• For TNCWSs, the total hours ranged from 8 to 13 hours.
• For BVRBs, the total hours ranged from 21 to 26 hours.
Annual Fees vs. Cost Per Person Per Year Population Served Annual Fee Cost Per Person
Per YearEstimated Cost
of ServicesCost Per Person
Per YearNTNCWS 100 or less $100 $1.00—$4.00 $784 $7.84—$31.36 101—500 $250 $0.50—$2.48 $784 $1.57—$7.76 501—1,000 $500 $0.50—$1.00 $784 $0.78—$1.56 1,001—3,300 $750 $0.23—$0.75 $1,078 $0.33—$1.08 3,301 or more $1,000 $0.30 or less $1,078 $0.33 or less TNCWS 100 or less $50 $0.50—$2.00 $392 $3.92—$15.68 101—500 $100 $0.20—$0.99 $392 $0.78—$3.88 501—1,000 $200 $0.20—$0.40 $392 $0.39—$0.78 1,001 or more $500 $0.50 or less $392 $0.39 or less BVRB Bottled $2,500 N/A $1,274 N/A Vended $1,000 N/A $1,029 N/A Retail $1,000 N/A $1,029 N/A Bulk $1,000 N/A $1,029 N/A
§ 109.1404. Community and noncommunity water system permitting fees
A minor revision is made in this final-form rulemaking to replace ''BVRB'' with ''bottled water or vended water system, retail water facility or bulk water hauling system facility,'' as BVRB is not a defined term.
Subsections (a) and (b) are revised in this final-form rulemaking to change the number of people in the population served for the smallest category of PWSs. The proposed rulemaking outlined the permit fees for CWSs and NCWSs serving populations of 25 to 100 people. The population numbers are revised in this final-form rulemaking to apply to CWSs and NCWSs serving a population of 100 people or less. These revisions are made because a PWS, which includes a CWS and an NCWS, is defined in § 109.1 as a ''system which provides water to the public for human consumption which has at least 15 service connections or regularly serves an average of at least 25 individuals daily at least 60 days out of the year.'' In this Commonwealth, there are some PWSs that serve at least 15 service connections, but still serve a population of less than 25 people. Therefore, the population number is revised to account for those PWSs.
§ 109.1406. Permitting fees for bottled water and vended water systems, retail water facilities and bulk water hauling systems
Subsections (a) and (b) are revised in this final-form rulemaking to change the number of people in the population served for the smallest category of PWSs in the same manner as discussed in the revisions to § 109.1404 (relating to community and noncommunity water system permitting fees).
§ 109.1407. Feasibility study
This section is revised in this final-form rulemaking to change the number of people in the population served for the smallest category of PWSs in the same manner as discussed in the revisions to § 109.1404.
F. Benefits, Costs and Compliance
Benefits
One or more of these amendments will affect the 8,521 PWSs serving approximately 11.3 million people in this Commonwealth. The residents of this Commonwealth will benefit from: 1) the avoidance of a full range of adverse health effects from the consumption of contaminated drinking water such as acute and chronic illness, endemic and epidemic disease, waterborne disease outbreaks and death; 2) the continuity of a safe and adequate supply of potable water; and 3) the protection of public drinking water sources, which will result in maintaining the highest source water quality available, thereby minimizing drinking water treatment costs.
This final-form rulemaking will protect public health by providing increased protection from microbial pathogens and chemical contaminants in PWSs and strengthen system resiliency. Safe drinking water is vital to maintaining healthy and sustainable communities. Proactively avoiding incidents such as waterborne disease outbreaks can prevent loss of life, reduce the incidents of illness and reduce health care costs. Proper investment in PWS infrastructure and operations helps ensure a continuous supply of safe drinking water, enables communities to plan and build future capacity for economic growth, and ensures their long-term sustainability for years to come.
Source water assessment, protection and permitting requirements. The benefits of the source water assessment and protection program amendments are discussed in Section D under ''amendments to source water assessment and protection programs.''
In addition to those benefits, the amendments regarding new sources of supply in § 109.503 more clearly define the requirements regarding the proper order of the permitting process for developing a new PWS source. These clarifications are needed to help insure that the proper level of treatment is designed and installed in a timely manner, thereby resulting in less delay for permitting a new source that may be needed to meet public health protection requirements, or provide redundancy in the event of contamination of existing sources. These amendments should result in cost savings due to the avoidance of expensive permitting mistakes.
West Virginia and Virginia, also in EPA Region III, require source water assessments for new sources. In Virginia, the goal is to have a source water assessment completed by Virginia drinking water program staff before the operations permit is issued. Under West Virginia's new statute on source water protection, an assessment is included as part of a local source water protection plan and shall be completed by the water supplier prior to operation for a surface water source.
Regarding the development of local source water protection programs, Delaware and West Virginia have requirements for source water protection by statute. Under these amendments, the development of a local source water protection program will remain voluntary in this Commonwealth.
Turbidity and filtration requirements. Some of the amendments to the monitoring, calibration, recording and reporting requirements for the measurement of turbidity are more stringent than Federal requirements. These amendments will benefit more than 8 million people in this Commonwealth that are supplied water by PWSs using filtration technologies. These amendments are based on Department inspections and the evaluation of more than 1,250 filters through the FPPE program. These evaluations have documented that existing requirements are not sufficient to prevent turbidity spikes or the shedding of particles and microbial pathogens into the finished water, which puts consumers at risk of exposure to microbial pathogens. Costs related to waterborne disease outbreaks are discussed in Section D under ''amendments to surface water treatment requirements.''
Existing § 109.301(1)(i) requires turbidity monitoring of the CFE once every 4 hours. This period of intermittent sample review allows the production of significant volumes of water that are not monitored for compliance with the maximum allowable turbidity limit. The amendments for CFE turbidity monitoring will require continuous monitoring and recording of the results every 15 minutes. This will also enable operators to identify problematic water quality trends and respond more quickly with necessary process control adjustments.
Health effects associated with microbial contaminants tend to be due to short-term, single dose exposure rather than long-term exposure. Therefore, if a short duration single turbidity exceedance of the existing maximum allowable turbidity limit occurs and goes unnoticed, consumers are at risk of exposure to microbial pathogens. By requiring continuous monitoring and recording of the results at least every 15 minutes for CFE at all filter plants, water suppliers will be better able to identify problems before an exceedance occurs and determine compliance with the maximum allowable turbidity limit at all times.
An additional revision will require all surface water filtration plants to implement a filter bed evaluation program that assesses the overall integrity of each filter to identify and correct problems before a turbidity exceedance or catastrophic filter failure occurs. Filters are the final barrier for removal of acute pathogens, and are therefore critical to public health protection. For many systems in this Commonwealth and across the United States, this infrastructure is aging, and the revision to require a physical inspection once per year is a necessary minimum preventative action item.
All of these filter plant performance provisions are part of a multibarrier approach to ensure treatment is adequate to provide safe and potable water to all users.
Thirty states responded to a survey conducted by the ASDWA on behalf of the Commonwealth. Twenty states require continuous turbidity monitoring and recording of CFE and 14 states require continuous IFE monitoring and recording for all filtration types.
Automatic alarms and shutdown capabilities. Filter plants are complex and dynamic. In response to many circumstances, the water plant operator shall take an immediate action to protect public health, such as when source water quality changes, chemical feed pumps malfunction, filters require backwashing or other unforeseen circumstances occur. Water plant operators are often required to perform other duties, which leave water plants unattended, and which limit operators' ability to respond immediately to treatment needs.
Automated alarms and shutdown capabilities play an important role in modern water treatment and public health protection. Many water suppliers have already taken advantage of readily available technology to reduce personnel costs while still providing safe water to their customers. The amendments will ensure that all surface water filtration plants have the minimum controls in place to ensure that operators are immediately alerted to major treatment problems. The amendments will also ensure that unmanned filter plants are automatically shut down when the plant is producing water that is not safe to drink, which prevents contaminated water from being provided to customers for extended periods of time. These alarms and shutdown capabilities will allow operators at attended and unattended filtration plants to promptly respond to the water quality problems and treatment needs of the plant. The automated plant shutdown is intended to prevent poor quality water from reaching customers, which will protect public health, reduce PWS costs related to corrective actions and issuing public notice, reduce costs to the community and maintain consumer confidence.
Based on an ASDWA survey, 12 states responded that they require filter plants to be attended at all times while in operation. Of the 12 states that require attended operation, 7 states have regulations that establish standards for plant automation, alarms and shutdowns. The Commonwealth's amendments are less stringent than 12 other states since attended operation is not being required. In addition, the amendments regarding plant automation, alarms and shutdown capabilities are less stringent than the standards from the Great Lakes—Upper Mississippi River Board of State and Provincial Public Health and Environmental Managers (10 States Standards). See Recommended Standards for Water Works (2012 Edition) Great Lakes—Upper Mississippi River Board of State and Provincial Public Health and Environmental Managers.
Filter-to-waste requirements. The Department's FPPE program has evaluated approximately 1,250 filters since 1999. The results of these evaluations show that filters are most likely to shed turbidity, particles and microbial organisms at the beginning of a filter run when the filter is first placed into service following filter backwash or maintenance, or both. The amendments will require all filter plants that have the ability to filter-to-waste to do so following filter backwash or maintenance, or both, and before placing the filter into service. Filtering to waste will reduce the likelihood of pathogens passing through filters and into the finished drinking water.
All 30 states responding to an ASDWA survey require some of their filter plants to filter-to-waste. This final-form rulemaking is not expected to negatively affect this Commonwealth because implementation is not expected to require any capital improvements.
Strengthen resiliency through auxiliary power or alternate provisions. The revisions to system service and auxiliary power requirements will strengthen system resiliency and ensure that safe and potable water is continuously supplied to consumers and businesses. A continuous and adequate supply of safe drinking water is vital to maintaining healthy and sustainable communities.
PWS sources and treatment facilities in this Commonwealth are susceptible to emergency situations resulting from natural and manmade disasters. Examples of emergencies from recent years include tropical storms, flooding, high winds, ice, snow, industrial chemical plant runoff, pipeline ruptures and transportation corridor spills. These emergencies have resulted in significant impacts to consumers and businesses due to inadequate water quantity or quality, and in water supply warnings and advisories. Examples of emergencies that have occurred in this Commonwealth and demonstrate the benefit of these amendments are provided in Section D under ''revisions to system service and auxiliary power requirements.''
New annual fees and amended permit fees. To improve Program performance, this final-form rulemaking will supplement Commonwealth costs for administering the Program by filling the funding gap. The fees will total approximately $7.5 million annually and will account for nearly 50% of the Program's Commonwealth funding. The fees will augment the Program funding currently coming from the General Fund ($7.7 million).
The annual fees range from $250 to $40,000 for CWSs, $50 to $1,000 for NCWSs and $1,000 to $2,500 for BVRBs. The fees will most likely be passed on to the 11.3 million customers of these PWSs as a user fee. Per person costs are expected to range from $0.35 to $10 per year, depending on the water system size.
Refer to Sections D and E for more information about the benefits and costs associated with the fees.
General permits. The amendments will establish the regulatory basis for the issuance of general permits for high volume, low risk modifications or activities to streamline the permitting process. General permits provide a cost-effective method for a PWS to obtain a permit and for the Department to regulate these activities.
Requirements for NCWSs. These amendments will clarify that NCWSs that are not required to obtain a permit shall still obtain Department approval of the facilities prior to construction and operation. The Department's public water supply well construction standards are measures that can prevent pollution from surface runoff and shallow aquifer zones that are above the source aquifer used for public water supply. Obtaining approval prior to constructing a source and associated water system facilities (such as treatment and storage) ensures the facility is planning and constructing a source and water system facilities that meet the Commonwealth's construction standards. This will avoid the costs for rehabilitating an improperly constructed source and avoid delays in obtaining approvals to operate the water system.
Address gaps in monitoring, reporting and tracking back-up sources. The amendments will address concerns related to gaps in the monitoring, reporting and tracking of back-up water sources and entry points. Per State regulations in §§ 109.301 and 109.303 and Federal regulations in 40 CFR 141.23(a), 141.24(f) and (h) and 141.26(a), all sources and entry points must be included in routine compliance monitoring to ensure water quality meets safe drinking water standards. Sources and entry points that do not provide water continuously are required to be monitored when used. However, monitoring requirements for back-up sources are not currently tracked, which means that verifiable controls are not in place to ensure that all sources and entry points meet safe drinking water standards. Some of these sources have not been used in 5 to 10 years and, therefore, the Department does not know the water quality for these sources. These concerns were most recently highlighted by the EPA's 2010 report. These amendments will ensure that all sources and entry points are monitored at least annually. PWSs will also be required to document in a comprehensive monitoring plan how routine compliance monitoring will include all sources and entry points.
The use of unmonitored sources and entry points could adversely impact basic water quality, including pH, alkalinity, turbidity, corrosivity and lead solubility, dissolved inorganic carbon and natural organic matter. Water suppliers may have limited information about how these sources or entry points will impact treatment efficacy and distribution system water quality. In addition, many sources may be offline due to poor water quality or MCL exceedances. The use of these back-up or emergency sources, without proper monitoring and verifiable controls, could lead to an increased risk to public health.
Treatment facilities and other appurtenances associated with these sources may also have gone unused and may no longer be in good working order. Back-up sources and entry points with unknown water quality or that are no longer in good working order provide a false sense of security in terms of system resiliency and emergency response. While the Department understands that many facilities are not used on a 24/7 basis, these amendments will ensure that all permitted sources and entry points are monitored at least annually, or when in use.
Compliance Costs
The general update provisions will increase public health protection and system resiliency. Safe drinking water is vital to maintaining healthy and sustainable communities. Proactively avoiding incidents such as waterborne disease outbreaks can prevent loss of life, reduce the incidents of illness and reduce health care costs. For example, it is estimated that the total cost of the May 2000 E. coli contamination incident in Walkerton, Ontario, was $64.5 million. Costs related to the 1993 waterborne outbreak of cryptosporidiosis in Milwaukee, WI, were $96.2 million. Waterborne disease outbreaks result in significant economic and health impacts and can have long-term impacts due to the loss of trust in PWSs.
Proper investment in PWS infrastructure and operations helps ensure a continuous supply of safe drinking water, enables communities to plan and build future capacity for economic growth, and ensures their long-term sustainability for years to come.
The fees are necessary to improve Program performance and will supplement Commonwealth costs for administering the Program. Program costs are directly tied to the resources needed to meet Federal and State mandates for minimum program elements and for the administration of an effective Program. Failure to meet minimum program elements may result in an increased risk to public health and the loss of primacy for the Program and associated Federal funding.
Source water protection and permitting requirements. Per the Department's records, approximately 30 new CWS sources are permitted each year. The Department estimates that an additional 8 hours of work completed for the CWS by a professional geologist will be needed to comply with the new source permitting amendments. This extra time will amount to approximately $1,176 per source permitted, based on current hourly rates charged by consulting firms.
Revisions to turbidity monitoring, recording and reporting requirements. Filter plants that need to install continuous monitoring and recording devices will need to spend about $3,000 to $4,000 per monitoring site (includes turbidimeter, controller and installation), with estimated annual costs for maintenance and calibration of $500 per plant. It is estimated that 21 filter plants will need to install this equipment on individual filters and 52 filter plants will need to install this equipment at their CFE monitoring sites.
• IFE and CFE monitoring costs. Costs have been derived from vendors of HACH brand turbidimeters, the most commonly used turbidimeter in this Commonwealth. If the water supplier prefers a different brand of equipment, the cost may change. Some per instrument cost savings may occur when multiple instruments are purchased. The following table, provided for illustrative purposes, shows costs related to installing and maintaining one HACH continuous monitoring and recording device:
White Light Turbidimeter (Analog) and Chart Recorder (Analog) Items Initial Cost for
First Turbidimeter and RecorderEstimated Annual Calibration and
Maintenance CostAdditional Turbidimeter
and RecorderHACH 1720E and SC200 (analog signal) $2,881 $2,881 Calibration Cylinder $89 20 NTU StablCal × (4) Calibrations $556 Lamp Assembly Replacement $62 Chart Recorder—Duel Pen $1,657 $1,657 Chart Recorder Paper $60 Chart Recorder Replacement Pens $79 Installation $1,000 Total (not including tax and shipping) $5,627 $757 $4,538
Laser Turbidimeter (Digital) and Chart Recorder (Analog) Items Initial Cost for First Laser Turbidimeter and Recorder Estimated Annual
Calibration and
Maintenance CostAdditional Turbidimeter
and RecorderHACH TU5400 Laser Turbidimeter (includes flow sensor RFID and System Check) $6,142 $6,142 HACH SC200 (includes flow sensor input, RFID, and Modbus)) $2,596 $2,596 Maintenance/Calibration Kit (includes primary standards) $1,100 ($349 to replace the primary standards that are included in
the kit)Replacement Desiccant Cartridge $17 Chart Recorder—Duel Pen $1,657 $1,657 Chart Recorder Paper $60 Chart Recorder Replacement Pens $79 Installation $1,000 Total (not including tax and shipping) $11,395 $1,256 (1st year)
$505 (subsequent year)$10,395
• IFE monitoring. This Commonwealth has 353 filter plants, of which 263 are currently required to continuously monitor and record their IFE and already have instrumentation installed. The amendments will require the remaining 90 filter plants to comply with the IFE monitoring requirements of which 69 already have the needed instrumentation. Therefore, 21 filter plants will need to install 1 or more monitoring and recording devices. The majority of these 21 filter plants only have 2 filters. The estimated cost for a water supplier having two filters to install IFE monitoring and recording equipment is expected to be $10,165 for white light turbidimeters or $21,790 for laser turbidimeters. The annual maintenance cost for the monitoring and recording equipment on two filters is estimated to be $757 for the white light turbidimeters or $505 for laser turbidimeters. The cumulative cost for the installation of the IFE monitoring and recording equipment at all 21 filter plants is estimated to be $213,465 for white light turbidimeters or $457,590 for laser turbidimeters. The cumulative cost for maintaining the monitoring and recording equipment at all 21 filter plants is estimated to be $15,897 per year for white light turbidimeters and $10,605 per year for laser turbidimeters.
• CFE monitoring. The majority of filter plants in this Commonwealth already continuously monitor and record their CFE. The exact number of filtration plants without this capability is not known, but based on a review of 90 filtration plants, it is estimated to be 15% of the 353 filter plants in this Commonwealth. The estimated cost to install CFE monitoring and recording equipment is $5,627 per plant for white light turbidimeters and recorders or $11,395 per plant for laser turbidimeters and recorders. The annual maintenance cost for the monitoring and recording equipment is estimated to be $757 for the white light turbidimeters or $505 for laser turbidimeters. The cumulative cost for an estimated 52 filter plants to install continuous monitoring and recording equipment is estimated to be $292,604 for white light or $592,540 for laser turbidimeters. The cumulative cost for maintaining the monitoring and recording equipment at all 52 filter plants is estimated to be $39,364 per year for white light turbidimeters or $26,260 per year for laser turbidimeters.
Annual filter inspection program. Significant additional costs are not expected to be associated with implementation of a filter inspection program.
Filter-to-waste requirements. No expected costs are associated with the filtering to waste amendments.
Automatic alarms and shutdown capabilities. Depending on options chosen, systems may incur $8,860 to $11,980 per treatment plant with annual maintenance costs of $600. It is estimated that 317 of the 353 filter plants already meet these provisions and therefore will not incur any additional costs.
The following information is provided as example cost estimates related to adding automated alarm and shutdown capabilities at a small surface/GUDI water filtration plant. The costs include the monitor, controller and alarm dial-out system. It is assumed that the existing filtration plant will already have the chlorine residual analyzer, turbidity analyzer and clear-well level or other disinfection segment water level transmitter. These instruments are required to maintain compliance with existing regulations. An estimated cost for the equipment installation is provided. However, systems could save costs if they install the equipment using in-house staff or a local contract electrician.
The controller and monitor will include adjustable alarm set-points with time delay for a relay output which can be wired to the plant for shutdown of the filter system upon the following conditions: water levels needed to maintain adequate Giardia CT; high or low entry point chlorine residual; and high CFE turbidity.
The monitor and controller can be configured to send a pre-shutdown warning to allow operators the opportunity to go to the plant to try to resolve the problem before reaching the shutdown set-point. If the process value reaches the shutdown set-point, the filter plant shut-down command will occur and a shutdown alarm message will be sent to the plant operator by text message, e-mail or voice message.
If the facility already has an alarm dialer with capacity for three additional alarm inputs, the alarm dialer can be eliminated from the package. A deduction is shown for this on each equipment option. If the system is staffed continuously, then only alarm capabilities are necessary. This can be accomplished for a lower cost, or possibly no additional cost, depending on the capability of existing filter plant supervisory control and data acquisition equipment The Department describes the types of monitor and alarm systems, with associated cost estimates, as follows.
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