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RULES AND REGULATIONS

Title 25--ENVIRONMENTAL PROTECTION

ENVIRONMENTAL QUALITY BOARD

[25 PA. CODE CH. 109]

Safe Drinking Water; Filter Backwash Recycling Rule (FBRR)

[34 Pa.B. 1758]

   The Environmental Quality Board (Board) amends Chapter 109 (relating to safe drinking water). The final-form rulemaking in general pertains to public water systems (PWSs): using surface water or groundwater under direct influence of surface water (GUDI) sources; utilize direct or conventional filtration processes; and recycle backwash water, sludge thickener supernatant or liquid from dewatering processes.

   This final-form rulemaking is intended to further protect public health by requiring PWSs, where needed, to institute changes to the return of recycle flows to a plant's treatment process that may otherwise compromise microbial control. The FBRR requires that recycled filter backwash water, sludge thickener supernatant and liquids from dewatering processes must be returned to a location so that all processes of a PWS's conventional or direct filtration including coagulation, flocculation, sedimentation (conventional filtration only) and filtration, are employed. PWSs may apply to the Department of Environmental Protection (Department) for approval to recycle at an alternate location.

   This order was adopted by the Board at its meeting of December 16, 2003.

A.  Effective Date

   The final-form rulemaking will go into effect upon publication in the Pennsylvania Bulletin.

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 Marylou Barton, Assistant Council, Bureau of Regulatory Council, P. O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 787-7060. Information regarding submitting comments on this proposal appears in Section I of this preamble. Persons with a disability may use AT&T Relay Service, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This final-form rulemaking is available on the Department's website: www.dep.state. pa.us.

C.  Statutory Authority

   The 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 Final-Form Rulemaking

   The Board promulgated the Filtration Rule in March 1989 to address the rising number of waterborne disease outbreaks in this Commonwealth. The rule required PWSs with surface water sources to filter and disinfect the water before use by the public, 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 Board also promulgated the Interim Enhanced Surface Water Treatment Rule (IESWTR) on July 21, 2001. This rule is intended to improve the control of microbial pathogens, specifically including the protozoan Cryptosporidium parvum, in drinking water. The IESWTR applies to PWSs serving 10,000 or more people and which use surface water or GUDI sources. GUDI is any water beneath the surface of the ground with the presence of insects or other microorganisms, algae, organic debris or large diameter pathogens such as Giardia lamblia and Cryptosporidium, or significant and relatively rapid shifts in water characteristics such as turbidity, temperature, conductivity or pH which closely correlate to climatological or surface water conditions. Key provisions of the IESWTR include: 99% Cryptosporidium removal requirements for systems that filter; strengthened combined, and individual, filter effluent turbidity performance standards; disinfection benchmark provisions to assure continued levels of microbial protection while facilities take the necessary steps to comply with new disinfection byproduct standards; inclusion of Cryptosporidium in the definition of GUDI; and sanitary surveys for all surface water systems, regardless of size.

   Water treatment plants generate various waste streams during the water production process as well as during subsequent waste handling procedures. Waste streams can be large in volume, such as spent filter backwash water, which can make up more than 3% of plant production, or very small in volume, like streams of filtrate from a filter press, which may represent less than 0.1% of plant production. The waste streams can be handled in a variety of ways. Some treatment plants recycle the wastewater to the beginning of the treatment cycle, where the water will be treated again. Other plants waste it by sending into the local wastewater treatment plant. Still other plants obtain a discharge permit and release the water to a river or stream after some additional treatment. Increasingly stringent discharge requirements, expensive chemicals and conservation efforts have forced many plants to consider or implement recycling. Recycling of water treatment plant waste streams is an acceptable practice of good water conservation management. This rule does not mandate recycling nor is it intended to discourage the recycling of waste streams.

   When a facility recycles filter backwash water, it reintroduces contaminants back into treatment processes. Poor recycle practices can degrade influent water quality and impair treatment process performance. The 1996 Amendments to the Federal Safe Drinking Water Act required the Untied States Environmental Protection Agency (EPA) to promulgate a regulation governing the recycling of filter backwash water. The EPA promulgated the Federal FBRR on June 8, 2001. The Federal FBRR addresses filter backwash water and two additional recycle streams of concern, sludge thickener supernatant and liquids from dewatering processes. The EPA believes that establishing a regulation will improve performance at filtration plants by reducing the opportunity for recycle practices to adversely affect plant performance in a way that would allow microbes such as Cryptosporidium to pass through into finished water. While the Pennsylvania Filtration Rule and the IESWTR contained treatment technique requirements designed to address microbial pathogens such as Giardia and Cryptosporidium, neither the Pennsylvania Filtration Rule nor the IESWTR addressed filter backwash recycling practices. About 120 surface water treatment plants using conventional or direct filtration practice some form of waste stream recycling in this Commonwealth.

   The Department is incorporating the provisions of the Federal FBRR into the Pennsylvania Safe Drinking Water regulations to retain primacy for enforcement responsibility of safe drinking water. The amendment will provide additional protection against disease-causing organisms (pathogens) in drinking water. This action would address risks associated with certain recycle practices in the least burdensome, most effective and simplest means possible. The amendment will allow recycle practices to be conducted in a manner that does not upset the chemical treatment and coagulation process vital to the performance and contaminant removal capability of a filtration plant. The amendment will also assure that Cryptosporidium oocysts in recycled water, as well as source water, receive the full benefit of well-operated treatment processes to achieve at least 99% Cryptosporidium removal.

   The rule will improve public health by increasing the level of protection from exposure to Cryptosporidium and other pathogens in drinking water supplies through improvements in recycling processes at water treatment plants. This will decrease the likelihood of endemic illness from Cryptosporidium by several thousand cases annually in the United States, thus reducing health care costs. Implementation of these provisions is expected to reduce the potential for oocysts getting into the finished water and causing cases of cryptosporidiosis. Exposure to other pathogenic protozoa, such as Giardia, or other emerging microbial pathogens is likely to be reduced by this rule as well.

   In terms of occurrence, Cryptosporidium is common in the environment. Most surface water sources contain or are vulnerable to Cryptosporidium oocyst contamination at one time or another. Since some people are carriers, oocysts may enter the water through treated and untreated sewage outfall. Other sources of Cryptosporidium contamination are those animals that live in or near the water who are likely to deposit oocysts directly into the drinking water supplies. 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 infection that can last several weeks. It may cause the death of individuals who have a weaker immune system 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 Cryptosporidium outbreak. There have also been cryptosporidiosis outbreaks in Nevada, Oregon and Georgia over the past several years.

   The Technical Assistance Center for Small Water Systems Advisory Board (TAC) reviewed the draft final-form rulemaking at its meeting on August 14, 2003. The TAC endorsed the changes to Chapter 109.

   The Water Resources Advisory Committee (WRAC) reviewed the draft final-form rulemaking at its meeting on September 10, 2003. The WRAC endorsed the changes to Chapter 109 with a recommendation that the Department review the definition of ''capital improvement'' to be sure there are no legal implications.

E.  Summary of Changes to the Proposed Rulemaking

§ 109.1 (relating to definitions)

   Subparagraph (ii) in the definition of ''recycle flows'' was deleted since the term ''recycle streams'' is synonymous with recycle flows.

§ 109.202(h)(1) and (2) (relating to State MCLs, MRDLs and treatment technique requirements)

   Paragraph (1) was reworded to clarify the exception in paragraph (2) and the term ''recycled'' was added to indicate the flows that should be returned through the system's existing filtration processes. Paragraph (2) requires PWSs requiring capital improvements to modify the recycle location to complete all capital improvements by June 8, 2006. A typographical error was corrected.

§ 109.202(h)(3)

   This subsection was modified to remove ''or expenditure'' from the definition of ''capital improvements.''

F.  Summary of Comments and Responses on the Proposed Rulemaking

   The Department received comments only from the Independent Regulatory Review Commission (IRRC).

§ 109.1

   IRRC suggested that subparagraph (ii) of the ''recycle flows'' definition be deleted to avoid confusion. The change was made as suggested since ''recycle flows'' is the term generally used in the final-form rulemaking.

§ 109.202

   IRRC commented on a typographical error in subsection (h)(2) as printed in the Pennsylvania Bulletin. Subsection (h)(2) has been revised to add the word ''paragraph'' before the designate (1).

   IRRC commented that the definition of ''capital improvement'' contains the vague phrases ''nonrecurring, significant modification'' and ''nonroutine, long-term physical improvements.'' These criteria do not clearly indicate which projects would qualify. The final-form rulemaking should identify the specific criteria, such as a cost threshold or the time needed to complete the project, which would allow a PWS to use the later compliance date.

   The Department believes that it is difficult to place a time limit or a cost on defining ''capital improvement'' as they can differ considerably among water systems, even for similar modifications. Costs and completion timeframes are generally unique to each water system. However, the definition of capital improvement in subsection (h)(3) was revised to delete the phrase ''or expenditure'' to provide clarity.

G.  Benefits, Costs and Compliance

Benefits

   The final-form rulemaking will benefit customers of PWSs, which utilize direct or conventional filtration, use surface water or GUDI sources and practice recycling. Currently, there are about 120 systems in this Commonwealth serving water to about 5,178,300 people that meet these criteria.

   The economic benefits of the FBRR derive from the increased level of protection to public health. The primary benefits of the final-form rulemaking come from reductions in the risk of illness from microbial pathogens in drinking water. In particular, the FBRR focuses on reducing the risk associated with disinfection resistant pathogens, such as Cryptosporidium.

   Available literature research demonstrates that increased hydraulic loading or disruptive hydraulic currents, such as may be experienced when plants exceed operating capacity or when recycle is returned directly into the sedimentation basin, can disrupt filter and sedimentation performance. The 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 bacterial or viral pathogens) in drinking water supplies through improvements in the recycling process at water systems. Implementation of these provisions is expected to reduce the potential for oocysts getting into the finished water and causing cases of cryptosporidiosis. Exposure to other pathogenic protozoa, such as Giardia, or other emerging microbial pathogens is likely to be reduced by this rule as well.

   In addition to preventing illnesses, the final-form rulemaking is expected to have other nonhealth related benefits. These benefits result from avoiding nonhealth related costs associated with waterborne disease outbreaks. During an outbreak, local governments and water systems must issue warnings and alerts and may need to provide an alternative source of water. Systems also face negative publicity and possible legal costs. The monetary costs associated with an outbreak can be difficult to quantify and will vary with a host of criteria. However, one study of a Giardia outbreak in Luzerne County estimated these nonhealth related costs to be quite significant. This study estimated losses to individuals due to actions taken to avoid the contaminated water at between $19 million and $49 million, in 1984 dollars ($31 million--$81 million in 2000 dollars). Losses due to averting actions for restaurants and bars totaled $1 million and $0.6 million for schools and other businesses, in 1984 dollars. The burden for government agencies was $230,000 and the outbreak cost the water utility an estimated $1.8 million, in 1984 dollars.

Compliance Costs

   Increased costs will be borne by the regulated community for systems making capital improvements to modify recycle location. Additional training, permitting, surveillance and compliance assistance costs will also be borne by the Department.

   The consumers of water supplied by about 120 affected PWSs using surface water or GUDI sources, utilize direct or conventional filtration processes and recycle backwash water, sludge thickener supernatant or liquid from dewatering processes may experience higher water use rates associated with costs for capital improvements to modify recycle locations. The actual increase in water use rates will depend on a number of factors, including population served and type of improvements done.

Compliance Assistance Plan

   The Safe Drinking Water Program utilizes the Commonwealth's Pennsylvania Infrastructure Investment Authority Program to offer financial assistance to eligible PWSs. This assistance is in 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.

Paperwork Requirements

   The Department's current data forms will facilitate any additional monitoring and reporting or paperwork.

H.  Sunset Review

   This final-form rulemaking will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulation effectively fulfills the goals for which it was intended.

I.  Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on February 21, 2003, the Department submitted a copy of the notice of proposed rulemaking, published at 33 Pa.B. 1234 (March 8, 2003), to IRRC and the Chairpersons of the Senate and House 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 the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.

   Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on February 25, 2004, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on February 26, 2004, and approved the final-form rulemaking.

J.  Findings

   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, 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)  The final-form rulemaking does not enlarge the purpose of the proposal published at 33 Pa.B. 1234.

   (4)  The final-form rulemaking is necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C.

K.  Order

   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 and 109.701 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.

   (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 shall submit this order and Annex A to IRRC and the Senate and House 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.

KATHLEEN A. MCGINTY,   
Chairperson

   (Editor's Note:  For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 34 Pa.B. 1525 (March 13, 2004).)

   Fiscal Note:  Fiscal Note 7-382 remains valid for the final adoption of the subject regulations.

Annex A

TITLE 25. ENVIRONMENTAL PROTECTION

PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION

Subpart C. PROTECTION OF NATURAL RESOURCES

ARTICLE II. WATER RESOURCES

CHAPTER 109. SAFE DRINKING WATER

Subchapter A. GENERAL PROVISIONS

§ 109.1. Definitions.

   The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

*      *      *      *      *

   Liquid from dewatering processes--A stream containing liquids generated from a unit used to concentrate solids for disposal.

*      *      *      *      *

   Recycle--The act of returning recycle streams to a conventional or direct filtration plant's treatment process.

   Recycle flows--Any water, solid or semi-solid generated by a conventional or direct filtration plant's treatment process and residual treatment processes that is returned to the plant's treatment process.

*      *      *      *      *

   Spent filter backwash water--A stream containing particles dislodged from filter media when the filter is backwashed to clean the filter.

*      *      *      *      *

   Thickener supernatant--A stream containing the decant from a clarifier, sedimentation basin, or other unit used to treat water, solids or semi-solids from the primary treatment process.

*      *      *      *      *

Subchapter B. MCLs, MRDLs OR TREATMENT TECHNIQUE REQUIREMENTS

§ 109.202. State MCLs, MRDLs and treatment technique requirements.

*      *      *      *      *

   (h)  Recycling of waste stream.

   (1)  Except as provided in paragraph (2), a public water system that uses surface water source or GUDI and provides conventional filtration or direct filtration treatment and recycles spent filter backwash water, thickener supernatant, or liquids from dewatering processes shall return these recycled flows through the processes of the system's existing conventional or direct filtration system as defined in § 109.1 (relating to definitions) or at an alternate location approved by the Department by June 8, 2004.

   (2)  If capital improvements are required to modify the recycle location to meet the requirement of paragraph (1), the capital improvements shall be completed by June 8, 2006.

   (3)  Capital improvement means a nonrecurring, significant modification for nonroutine, long-term physical improvements to any part of a public water system, including, but not limited to, construction activities, renovation activities, demolition activities, source development, treatment process modifications, storage modifications, distribution system modifications, waste-processing modifications and all associated design costs.

Subchapter G. SYSTEM MANAGEMENT RESPONSIBILITIES

§ 109.701. Reporting and recordkeeping.

*      *      *      *      *

   (h)  Reporting and record maintenance requirements for systems recycling their waste streams.

   (1)  Public water systems using surface water or GUDI sources and providing conventional filtration or direct filtration treatment and that recycle spent filter backwash water, thickener supernatant, or liquids from dewatering processes shall notify the Department in writing by December 8, 2003. This notification shall include the following information:

   (i)  A plant schematic showing the origin of all flows that are recycled (including, but not limited to, spent filter backwash water, thickener supernatant and liquids from dewatering processes), the hydraulic conveyance used to transport them and the location where they are reintroduced back into the treatment plant.

   (ii)  Typical recycle flow in gallons per minute (gpm), the highest observed plant flow experienced in the previous year (gpm), design flow for the treatment plant (gpm) and Department-approved operating capacity for the plant.

   (2)  Record maintenance. Beginning June 8, 2004, public water systems using surface water or GUDI sources and providing conventional filtration or direct filtration and recycling spent filter backwash water, thickener supernatant, or liquids from dewatering processes shall collect and retain on file recycle flow information specified in this paragraph. This information is for the previous year of recycling and shall be available to the Department for review and evaluation at the Department's request:

   (i)  A copy of the recycle notification and information submitted to the Department under subsection (h).

   (ii)  A list of all recycle flows and the frequency with which they are returned.

   (iii)  Average and maximum backwash flow rate through the filters and the average and maximum duration of the filter backwash process in minutes.

   (iv)  Typical filter run length and a written summary of how filter run length is determined.

   (v)  The type of treatment provided for the recycle flow.

   (vi)  Data on the physical dimensions of the equalization or treatment units, or both, typical and maximum hydraulic loading rates, type of treatment chemicals used and average dose and frequency of use, and frequency at which solids are removed, if applicable.

[Pa.B. Doc. No. 04-551. Filed for public inspection April 2, 2004, 9:00 a.m.]



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