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RULES AND REGULATIONS

[25 PA. CODE CH. 109]

Interim Enhanced Surface Water Treatment Rule

[31 Pa.B. 3938]

   The Environmental Quality Board (Board) by this order amends Chapter 109 (relating to safe drinking water). The amendments pertain to filtration systems that serve at least 10,000 people and that use either surface water sources or groundwater sources that are under the direct influence of surface water. The amendments establish a 99% removal of Cryptosporidium; strengthened combined filter effluent turbidity standards and individual filter turbidity provisions; and disinfection benchmark provisions to assure continued levels of microbial protection while facilities take the necessary steps to comply with new disinfection byproduct standards.

   This order was adopted by the Board at its meeting of April 17, 2001.

A.  Effective Date

   These amendments will go into effect upon publication in the Pennsylvania Bulletin as final-form rulemaking.

B.  Contact Persons

   For further information, contact Jeffrey A. Gordon, Chief, Division of Drinking Water Management, P. O. Box 8467, Rachel Carson State Office Building, Harrisburg, PA 17105-8467, (717) 772-4018 or Pamela Bishop, 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 AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This rulemaking is available electronically through the Department of Environmental Protection's (Department) website (http://www.dep.state.pa.us).

C.  Statutory Authority

   This final-form rulemaking is being made under the authority of section 4 of the Pennsylvania Safe Drinking Water Act (35 P. S. § 721.4), which grants the Board the authority to adopt rules and regulations governing the provision of drinking water to the public, and sections 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. §§ 510-7 and 510-20).

D.  Background of the Amendments

   The Board promulgated the Pennsylvania Filter Rule in March of 1989 to address the rising number of waterborne disease outbreaks in this Commonwealth. The rule required public water systems with surface water sources to filter and disinfect, cover finished water reservoirs, perform treatment performance and water quality compliance monitoring, and provide public notification of violations. The rule also established design and performance standards for the filtration and disinfection treatment techniques intended to protect against the adverse health effects of exposure to Giardia lamblia, viruses and legionella, as well as many other pathogenic organisms. The Pennsylvania Filter Rule was promulgated in anticipation of the Federal Surface Water Treatment Rule (SWTR), which was promulgated by the United States Environmental Protection Agency (EPA) in 1989 under the Federal Safe Drinking Water Act.

   The Federal SWTR did not specifically address the protozoan Cryptosporidium parvum. In terms of occurrence, Cryptosporidium is common in the environment. Most surface water sources may contain, or are vulnerable to, Cryptosporidium contamination. Since some people are carriers, Cryptosporidium may enter the water via treated or untreated sewage. Other sources of Cryptosporidium contamination are those animals that live in or near water. Livestock are notorious carriers of Cryptosporidium. Runoff from watersheds allows transport of this pathogen into water bodies used as sources for drinking water treatment plants. Complicating this matter is Cryptosporidium's resistance to standard disinfection practices.

   In humans, Cryptosporidium may cause a severe gastrointestinal infection, termed cryptosporidiosis, that can last several weeks. It may cause death for individuals who have weakened immune systems due to age, cancer treatment, AIDS and antirejection organ replacement drugs. In 1993, Cryptosporidium caused over 400,000 people in Milwaukee to experience serious intestinal illness. More than 4,000 were hospitalized and at least 50 deaths were attributed to the cryptosporidiosis outbreak. There has also been cryptosporidiosis outbreaks in Nevada, Oregon and Georgia over the past several years.

   In 1992, the EPA initiated a rulemaking process to address public health concerns associated with disinfectants, disinfection byproducts (DBPs) and microbial pathogens. As part of this rulemaking process, the EPA established a Regulatory Negotiation (Reg/Neg) Committee which included representatives of state and local health and regulatory agencies, public water systems, elected officials, consumer groups and environmental groups.

   The EPA's most significant concern in developing regulations for disinfectants and DBPs was the need to ensure that adequate treatment be maintained for controlling risks from microbial pathogens, such as Cryptosporidium. One of the major goals addressed in the rulemaking process was to develop an approach that would reduce the level of exposure from disinfectants and DBPs without undermining the control of microbial pathogens. The intention was to ensure that drinking water is microbiologically safe at the limits set for disinfectants and DBPs and that these chemicals do not pose an unacceptable health risk at these limits. Thus, the Reg/Neg Committee also considered a range of microbial issues and agreed that the EPA should also propose a companion microbial rule to the disinfection rule.

   Following months of intensive discussions and technical analysis, the Reg/Neg Committee recommended the development of three sets of rules: a two-stage rule to address disinfectants and DBPs (D/DBPs), the interim enhanced surface water treatment rule (IESWTR) and an Information Collection Rule (ICR). The approach used in developing these proposals considered the constraints of simultaneously treating water to control microbial contaminants, disinfectants and DBPs. The Reg/Neg Committee agreed that the schedule for the IESWTR should be linked to the schedule of the first stage of the D/DBP rule to assure simultaneous compliance and a balanced risk-risk based implementation. The Reg/Neg Committee also agreed that additional information on health risk, occurrence, treatment technologies, analytical methods needed to be developed in order to better understand the risk-risk tradeoff and how to accomplish an overall reduction in health risks to both pathogens and D/DBPs. Finally the Reg/Neg Committee agreed that to develop a reasonable set of rules and to understand more fully the limitations of the current Federal SWTR, additional field data were critical. Thus, a key component of the regulation negotiation agreement was the promulgation of the ICR.

   The Federal IESWTR (40 CFR Parts 9, 141 and 142) was promulgated on December 16, 1998, by the EPA. This rule is intended to improve the control of microbial pathogens, specifically the protozoan Cryptosporidium parvum, in drinking water. The Federal IESWTR applies to public water systems serving at least 10,000 people and which use either surface water sources or ground water sources that are under the direct influence of surface water. Key provisions of the Federal IESWTR include a 99% Cryptosporidium removal requirement for water systems that provide filtration; combined filter effluent turbidity standards that are more stringent than current standards; individual filter requirements that are designed to bring attention to filter plant optimization; and disinfection profiling/benchmarking provisions that are designed to assure continued levels of microbial protection while systems take the necessary steps to comply with new disinfection byproduct standards. Published concurrently with the IESWTR is the Federal D/DBPR. The D/DBPR is intended to regulate disinfection practices at public water systems in order to eliminate or minimize disinfectant levels and disinfection byproducts that may cause harmful health effects. The approach used in developing both the IESWTR and the D/DBPR considered the constraints of simultaneously treating water to control microbial contaminants, disinfectants and disinfection byproducts.

   On January 16, 2001, the EPA promulgated corrective amendments to both the D/DBPR and IESWTR. These corrective amendments are minor in nature (such as, change in compliance date from December 17, 2001, to January 1, 2002) and are reflected in this final-form rulemaking.

   Other Federal rules will be promulgated in the future as a follow-up to both the D/DBPR and the IESWTR. These rules will be the Stage 2 D/DBPR, the Long Term 1 Enhanced Surface Water Treatment Rule (LT1), the Long Term 2 Enhanced Surface Water Treatment Rule (LT2) and the Filter Backwash Rule (FBR). The LT1 and FBR rules are expected in 2001. The LT2 and Stage 2 D/DBPR rules are expected in 2002.

   The Board proposes to incorporate the provisions of both the Federal IESWTR and the January 16, 2001, Federal corrective amendments into Chapter 109 to obtain primary enforcement responsibility (primacy) for this rule.

   The proposed rulemaking was approved by the Board on July 18, 2000. The proposed rulemaking was at 30 Pa.B. 4611 (September 2, 2000). The 30-day public comment period concluded on October 2, 2000. No public meetings or hearings were held on the proposed rulemaking.

   The Technical Assistance Center Advisory Board (TAC) and the Water Resources Advisory Committee (WRAC) were each briefed on the comments received during the public comment period. The WRAC reviewed and discussed the final-form regulation on January 10, 2001. The WRAC had no comments and approved the final-form regulations for recommendation to the Board. The TAC reviewed and discussed the final-form regulations on January 25, 2001. TAC had no comments and approved the final-form regulations for recommendation to the Board.

   The Federal Safe Drinking Water Act (42 U.S.C.A. § 300g-2(a)) requires that primary enforcement responsibility states, such as the Commonwealth, adopt EPA regulations no later than 2 years after EPA promulgation. The EPA may approve an extension of up to 2 years for states that: 1) lack legislative or regulatory authority to enforce the new regulations; or 2) lack program capability to implement the new regulations; or 3) are adopting two or more EPA regulations at the same time.

   On November 28, 2000, the Department submitted a primacy extension request to the EPA to adopt regulations implementing both the Federal IESWTR and the Federal D/DBPR by no later than August 31, 2001. It is expected that the EPA will grant the extension because the Commonwealth is adopting two or more EPA regulations at the same time, which is one of the criteria specified for the EPA to grant an extension. If the EPA grants the August 31, 2001, extension, then failure to adopt the IESWTR by this extension date may result in the Commonwealth losing its primary enforcement responsibility.

E.  Summary of Comments and Responses on the Proposed Rulemaking and Changes to the Proposed Rulemaking

   The amendments reflect, and are no more stringent than, both the new Federal IESWTR requirements and the January 16, 2001, Federal corrective amendments.

§ 109.1.  Definitions.

   A commentator asserted that the definition of ''CPE'' contains substantive provisions that should be moved to proposed § 109.205 (relating to filter profile, filter self-assessment and comprehensive performance evaluations). The Board declined to make this amendment because the definition is identical to the Federal definition of ''CPE'' in 40 CFR 141.2. The Board feels that amending the definition would jeopardize the Department's goal of obtaining primary enforcement responsibility for the IESWTR.

   A commentator requested clarification in the definition of ''disinfection profile.'' Specifically, the commentator requested that an exact reference to the EPA ''procedures and measurement methods'' be provided in the definition. The Board has amended the definition of ''disinfection profile'' to replace the EPA reference with a Chapter 109 reference. Since Chapter 109 contains references to the aforementioned EPA ''procedures and measurement methods,'' the Board feels that this amendment is sufficient and appropriate.

   The definition of ''GUDI'' was amended to correct a typographical error.

§ 109.202(c).  Treatment technique requirements for pathogenic bacteria, viruses and protozoan cysts.

   A commentator asked what the circumstances would be for the Department to require water systems using ''other filtration technologies'' to comply with performance criteria that is more stringent than the criteria for conventional and direct filtration plants, as specified in § 109.202(c)(1)(i)(C). The Department will specify more stringent performance criteria when it deems that the results of pilot plant or onsite studies support action. The Board has amended § 109.202(c)(1)(i)(C) to clarify this basis of onsite studies.

§ 109.204.  Disinfection profiling and benchmarking.

   A commentator asked what format is acceptable to the Department for submitting disinfection profiling and benchmarking data, as specified in § 109.204. The format for the submission of disinfection profiling and benchmarking data is specified by the Department field offices and through Department-issued guidance and policy.

§ 109.205.  Filter profile, filter self-assessment and comprehensive performance evaluations.

   The Board has deleted this section. The Board feels that the provisions of this section were inappropriate for Subchapter B (relating to MCLs or treatment technique requirements). The Board also feels that this section was redundant with the addition of § 109.714 (relating to filter profile, filter self-assessment and comprehensive performance evaluations) and was unnecessary. To ensure that no provisions are lost from the deletion of this section, the Board has also amended § 109.714 to include all the provisions that were contained in proposed § 109.205.

§ 109.301.  General monitoring requirements.

   A commentator requested that § 109.301(1)(iv) be amended to account for the fact that continuous turbidity monitors can record turbidity more frequently than every 15 minutes. The commentator suggested that the individual filter turbidity results be recorded ''. . . at least every 15 minutes.'' The Board agrees and has amended § 109.301(1)(iv) accordingly.

   The EPA questioned why the proposed regulation does not include the provision of 40 CFR 141.173(a)(3) which allows turbidity samples from lime softening plants to be acidified using an approved protocol. The Department provides for this option by way of reference in § 109.304 wherein the Department requires that sampling, monitoring and analytical techniques be acceptable to either the EPA or the Department.

§ 109.701(e).  Reporting requirements for public water systems required to perform individual filter monitoring under § 109.301(1)(iv).

   A commentator questioned if the records that are required under § 109.701(e) are subject to the recordkeeping requirements of § 109.701(d). The commentator also questioned if the requirements of § 109.701(d) meet EPA requirements. The records that are required under § 109.701(e) are subject to the specific recordkeeping requirements of § 109.701(d)(2). The requirements of § 109.701(d)(2) meet the EPA requirements.

   The EPA requested that § 109.701(e) be amended to include the Federal requirement that systems conducting individual filter monitoring must maintain this data for at least 3 years. The Board declined to make this amendment because the existing provisions in § 109.701(d)(2) already require that water systems retain monitoring records for a minimum of 3 years. These monitoring records will include individual filter monitoring data.

   Section 109.701(e) was amended at EPA's request to include the requirement that systems conducting individual filter monitoring must report that they have conducted this monitoring within 10 days following the end of each month. The amended language is now consistent with the Federal requirements. Sections 109.701(e)(1) and (2) were then renumbered to § 109.701(e)(2) and (3), respectively, due to the inclusion of this amendment. Several text references in § 109.701(e)(3) (formerly § 109.701(e)(2)) were changed due to this renumbering.

   Section 109.701(e)(2) (formerly § 109.701(e)(1)) was amended to specify that water systems required to perform individual filter monitoring were subject to the provisions of this paragraph, not water systems providing filtration and disinfection. Accordingly, the phrase ''providing filtration and disinfection of surface sources'' was deleted and replaced with the phrase ''required to perform individual monitoring.'' The amended language is now consistent with the Federal requirements.

§ 109.714.  Filter profile, filter self-assessment and comprehensive performance evaluations.

   The EPA requested that this section should include the requirement that the comprehensive performance evaluation (CPE) be completed within 90 days of the triggering event. The Board decided to amend this entire section in order to both clarify it and to capture all of the associated provisions that were deleted with proposed § 109.205. One of these provisions was the 90-day completion deadline for CPEs. Accordingly, the amended language contains this 90-day completion deadline, as well as all other Federal requirements.

   A commentator expressed confusion over the 30-day CPE deadline and the 90-day CPE deadline. Systems must make arrangements with the Department within 30 days following the CPE triggering event. These arrangements are for the planning of the CPE. The system must then ensure that the CPE has been completed by no later than 90 days following the CPE triggering event.

F.  Benefits, Costs and Compliance

   Executive Order 1996-1 requires a cost/benefit analysis of the final-form regulations.

Benefits

   The amendments will benefit customers of public water systems serving at least 10,000 people and which use either surface water sources or ground water sources that are under the influence of surface water. Currently, there are almost 120 systems in this Commonwealth serving water to over 8.1 million people that meet these criteria.

   The economic benefits of the IESWTR will derive from the increased level of protection to public health. The primary goal of the amendments is to improve public health by increasing the level of protection from exposure to Cryptosporidium and other pathogens (that is, Giardia, or other waterborne bacteria or viral pathogens) in drinking water supplies through improvements in filtration at water systems. The amendments are expected to reduce the level of Cryptosporidium and other pathogenic contamination in finished drinking water supplies through improvements in filtration at water systems, such as revised turbidity requirements. In this case, benefits will accrue due to the decreased likelihood of endemic incidences of cryptosporidiosis, giardiasis and other waterborne diseases, and the avoidance of resulting health costs. The provisions are expected to reduce the likelihood of the occurrence of cryptosporidiosis outbreaks and their associated economic costs.

Compliance Costs

   Approximately 120 public water systems will be affected by these amendments. These systems will incur increased costs as a result of improved turbidity treatment and disinfection benchmark monitoring. The customers of these affected water systems may experience higher water rates as a result of these increased costs. The actual increase in water rates will depend on a number of factors, including population served and the filtration technology utilized. According to EPA studies conducted Nationally, 92% of the households affected by the rule will incur a cost of less than $1 per month. Seven percent of the affected households will face an increase in cost of $1 to $5 per month. The highest increase in cost will be approximately $8 per month and will be faced by approximately 23,000 households Nationally.

   The assumptions and structure of the EPA's analysis tend to overestimate the highest costs. To incur these higher costs, a system would have to implement all, or almost all, of the treatment activities. These systems, however, might seek less costly alternatives, such as connecting to a larger regional water system.

   The estimated total annual cost that will be borne by the regulated community in this Commonwealth will be about $10.3 million. Many filtration plants evaluated in this Commonwealth currently meet the IESWTR turbidity requirements and, possibly, may not incur additional expense for improved turbidity removal. The benefits that may result from this rulemaking in this Commonwealth may range from $20 to $100 million per year using a valuation of $2,000 in health damages avoided per cryptosporidiosis illness prevented.

Compliance Assistance Plan

   The Safe Drinking Water Program utilizes the Commonwealth's Pennsylvania Infrastructure Investment Authority Program to offer financial assistance to eligible public water systems. This assistance is in the form of a low-interest loan, with some augmenting grant funds for hardship cases. Eligibility is based upon factors such as public health impact, compliance necessity and project/operational affordability.

   The Safe Drinking Water Program has established a network of regional and central office training staff that is responsive to identifiable training needs. The target audience in need of training may be either program staff or the regulated community.

   In addition to this network of training staff, the Bureau of Water Supply and Wastewater Management has a division dedicated to providing both training and outreach support services to public water system operators. The Department's Internet site also contains the Drinking Water & Wastewater Treatment System Operator Information Center Internet site, which provides a bulletin board of timely, useful information for treatment plant operators.

Paperwork Requirements

   The amendments will require public water systems to monitor and report individual filter turbidity. It is anticipated that the Department's current data reporting forms should facilitate this additional monitoring and reporting and that little, if any, additional data or paperwork will be necessary.

G.  Sunset Review

   These final-form regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.

H.  Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on August 8, 2000, the Department submitted a copy of the notice of proposed rulemaking, published at 30 Pa.B. 4611 to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House and Senate Environmental Resources and Energy Committees for review and comment.

   Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing these final-form regulations, the Department has considered all comments from IRRC, the Committees and the public.

   Under section 5.1(d) of the Regulatory Review Act (71 P. S. § 745.5a(d)), on May 29, 2001, these final-form regulations were deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on June 7, 2001, and approved the final-form regulations.

I.  Findings of the Board

   The Board finds that:

   (1)  Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder in 1 Pa. Code §§ 7.1 and 7.2.

   (2)  A public comment period was provided as required by law, and all comments were considered.

   (3)  These final-form regulations do not enlarge the purpose of the proposal published at 30 Pa.B. 4611.

   (4)  These final-form regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble.

J.  Order of the Board

   The Board, acting under the authorizing statutes, orders that:

   (a)  The regulations of the Department, 25 Pa. Code Chapter 109, are amended by amending §§ 109.1, 109.202, 109.301, 109.605, 109.701, 109.703 and 109.710; and by adding §§ 109.204 and 109.714, to read as set forth in Annex A published at 31 Pa.B. 3895 (July 21, 2001).

   (b)  The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form, as required by law.

   (c)  The Chairperson of the Board shall submit this order and Annex A to IRRC and the House and Senate Environmental Resources and Energy Committees as required by the Regulatory Review Act.

   (d)  The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.

   (e)  This order shall take effect immediately upon publication in the Pennsylvania Bulletin.

DAVID E. HESS,   
Chairperson

   (Editor's Note:  For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 31 Pa.B. 3370 (June 23, 2001.)

   Fiscal Note:  Fiscal Note 7-358 remains valid for the final adoption of the subject regulations.

[Pa.B. Doc. No. 01-1305. Filed for public inspection July 20, 2001, 9:00 a.m.]



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