5 Colo. Code Regs. § 1002-11.57
The following sections were affected by this rulemaking hearing: Adoption of 11.16 - Revised Total Coliform Rule, 11.28 - Storage Tank Rule, 11.39 - Backflow Prevention and Cross Connection Control Rule, and 11.41 - Water Hauler Rule, with amendments to Sections 11.3 , 11.4 , 11.5 , 11.8 , 11.11 , 11.11 , and 11.11(3)(d)(iii). The provisions of the Colorado Revised Statutes (CRS), section 25-1.5-202, provide specific statutory authority for adoption of these regulatory amendments. The Commission also adopted, in compliance with section 24-4-103(4), CRS, the following statement of basis and purpose.
BASIS AND PURPOSE
Background
All suppliers of drinking water in Colorado are subject to regulations adopted by the U.S. Environmental Protection Agency (EPA) under the Safe Drinking Water Act, (42 U.S.C. 300f et seq.) as well as regulations adopted by the Water Quality Control Commission. Colorado, with the Colorado Department of Public Health and Environment (the Department) as the administering agency, has been granted primary enforcement responsibility (primacy) for the public water system supervision program under the federal Safe Drinking Water Act. The Water Quality Control Division (Division) is part of the Department and is responsible for implementing and enforcing the drinking water regulations that are adopted by the Commission and applicable regulations adopted by the Board of Health. In order to maintain primacy from the EPA, states must also promulgate new regulations that are no less stringent than those adopted by the federal government. In this rulemaking the Commission is adopting the Revised Total Coliform Rule which is no less stringent than the federally-mandated Revised Total Coliform Rule. By retaining primacy, the Department is able to protect the public health by ensuring that public water systems provide safe drinking water to Colorado citizens and visitors.
In addition to adopting the federally-mandated Revised Total Coliform Rule to maintain primacy, this rulemaking also included Colorado-specific requirements for storage tanks, backflow prevention and cross connection control, water haulers, minimum chlorine residual disinfectant concentration in the distribution system, and various other editorial revisions and clarifications. The Commission adopted these revisions to address outstanding waterborne disease outbreak reduction strategies that were developed as a result of the Salmonella outbreak in Alamosa in 2008. As published in the November 2009 report "Waterborne Salmonella Outbreak in Alamosa, Colorado March and April 2008" the following strategies were identified and were addressed with these amendments:
* Revise regulations associated with controlling hazardous cross connections at water systems;
* Enhance oversight of total coliform sampling, water storage, and distribution systems during inspections, and collect inventory information on these facilities;
* Ensure compliance with the requirement for water systems to maintain residual chlorine levels in water distribution systems.
Additionally, with this rulemaking, the Commission adopted the federal revisions to the definition of "lead free" as specified in the Federal Reduction of Lead in Drinking Water Act.
Policies, Handbooks and Guidance and Regulation 11
The Division originally adopted WQCD Policy Number 1, Implementation Policy Framework (Policy 1) in November 2010 and the associated Procedure 1 in August 2012; both were prepared in accordance with the Colorado Administrative Procedures Act, Article 4, Title 24 of the CRS.
The Commission adopts regulations that create binding norms or legal obligations of the Department or regulated entities. The Department may develop implementation policies and guidance/handbooks where implementation of Regulation 11 may require interpretation, decision-making flexibility, or a stream-lined approach for meeting compliance requirements.
These amendments to Regulation 11 include references to guidance/handbooks that the Department intends to develop as part of ongoing implementation of Regulation 11.
Policy 1 specifically states that implementation policies and associated procedures are not binding regulations and are not to be applied as such. The referenced guidance/handbooks in these amendments are not requirements. Violations or other notices of non-compliance cannot be issued against a policy or guidance/handbook. Violations or other notices of non-compliance can, and will, only be issued for a failure to comply with Regulation 11 or an applicable statute (law) included in the CRS. Implementation policies and guidance/handbooks have no compliance expectation.
Revised Total Coliform Rule
The Commission replaced the Total Coliform Rule in section 11.17 with the Revised Total Coliform Rule in section 11.16 . The Revised Total Coliform Rule increases public health protection by requiring a more proactive approach to identifying and fixing issues that make the distribution system vulnerable to microbial contamination, and therefore provide incentives for improved water system operation. The Revised Total Coliform Rule includes the following provisions of the federal regulations as published in the Federal Register, Volume 78, Number 30, February 13, 2013, pages 10270 through 10365, National Primary Drinking Water Regulations:
* Additional definitions and recordkeeping and reporting requirements.
* Treatment technique triggers for Level 1 and Level 2 assessments.
* Additions to the written sampling plan as part of the monitoring plan requirements in section 11.5.
* Start-up procedures for seasonal systems.
* Reporting requirements for E. coli-positive special purpose samples.
* Increased routine sampling requirements for non-community groundwater systems supplying less than or equal to ([LESS THAN EQUAL TO]) 1,000 people.
* Level 1 and Level 2 assessments.
* Treatment technique violations.
* Additional public notification requirements.
The amendments adopted by the Commission remain as stringent as the federal requirements for the Revised Total Coliform Rule while also establishing requirements that are more protective of public health. Examples of these requirements include the following:
* No allowance for reduced monitoring. Colorado did not adopt the allowance for reduced monitoring in the federal Total Coliform Rule and therefore not allowing reduced monitoring has historically been the Department's practice. Reducing the number of samples collected reduces the likelihood of detecting total coliforms and E. coli.
* No waivers will be granted from collecting three routine samples in the month following a total coliform-positive sample result. Collecting these additional routine samples helps identify whether the contamination is still present or if the previous month's activities fixed the problem. Granting a waiver from collecting these samples reduces the likelihood of detecting a persistent issue.
* No allowance for the supplier to forgo E. coli testing on a total coliform-positive sample in exchange for assuming that the sample is E. coli-positive. Certified laboratories automatically test total coliform-positive samples for E. coli. Also, having these data allow the Department to direct the appropriate follow-up activities in response to an E. coli-positive sample result.
* Adding a requirement that any special purpose sample that is E. coli-positive and is representative of water in the distribution system must be submitted to the Department but will not be used for compliance. This information will alert the Department to the potential of an acute contamination event and allow the Department to respond if necessary.
Minimum Distribution System Residual Disinfectant Concentration
The Centers for Disease Control and Prevention has called providing safe drinking water one of the greatest public health achievements of the 20th century. Colorado has long recognized the use of mandatory disinfection and the maintenance of a chlorine residual throughout distribution systems as necessary for the protection of public health from waterborne diseases. The Commission and the Department agree that the intent of the regulations has always been to actually have a chlorine residual present throughout all distribution systems.
Recently, two disease outbreaks occurred in Colorado - the 2008 salmonella outbreak in Alamosa and the Skyline Ranch norovirus outbreak in 2007. The Alamosa outbreak was particularly serious due to the large number of people who were sickened and one death associated with this particular disease outbreak. Alamosa had a disinfection waiver at the time of the outbreak (which has since been withdrawn) and, as a result, the city's drinking water was not being disinfected and the distribution system maintained no disinfectant residual. An extensive report was developed in the wake of the Alamosa outbreak. This report outlined a combined failure of physical, regulatory and human infrastructure all of which contributed to the outbreak. A key recommendation of this report was that all distribution systems should maintain appropriate disinfectant residual to maintain the final barrier to protect public health.
The Department presented evidence of the occurrence of E. coli within drinking water samples and found that there exists over a 300 percent rise in probability of a bacteria sample having E. coli when the chlorine residual is less than 0.2 mg/L. Furthermore, between eight and ten percent of samples taken in Colorado are at or below the proposed disinfectant residual limit.
Given the history and statewide practices of distribution system residual maintenance, the threat of waterborne illness, and to protect public health the Commission adopted a minimum allowable residual disinfectant concentration in the distribution system of 0.2 mg/L. The value of 0.2 mg/L includes only one significant digit and therefore any measurement of 0.15 mg/L or greater is compliant with this requirement.
These amendments replace the federal requirements for surface water systems and the Colorado-specific requirements for groundwater systems to maintain a detectable residual disinfectant concentration in the distribution system. The adopted minimum requirement for residual disinfectant concentration in the distribution system of 0.2 mg/L remains no less stringent than the federal standard of a detectable residual disinfectant concentration. The overall goal of these amendments is to further protect the public from microbial contamination and to correct the practice of maintaining less than a reasonable amount of chlorine in distribution systems. Amendments were made to sections 11.8, 11.11, 11.33 and 11.34.
The amendments included the following provisions:
* Replacement of the requirement that the disinfectant residual 'not be undetectable' with the requirement that public water systems maintain a minimum of 0.2 mg/L in the distribution system sampled at the same time as total coliform samples for all public water systems that are required to disinfect in sections 11.8 and 11.11.
* Establishment of a treatment technique violation for failure to comply with the minimum residual disinfectant concentration for only one monitoring period and maintenance of federal violation for failure to comply with the minimum residual disinfectant concentration for two consecutive monitoring periods in sections 11.8 and 11.11.
* Specific language requirements for public notification and consumer confidence reports in sections 11.33 and 11.34 when violations occur.
Backflow Prevention and Cross-connection Control Rule
The Commission amended Regulation 11 to include regulatory requirements for backflow prevention and cross-connection control in section 11.39 that replaces the Cross-connection Control Rule in section 11.37 . The Cross-connection Control Rule in section 11.37 was written approximately 30 years ago and provided compliance challenges for public water systems, and for Department staff to determine and assure compliance. The Cross-connection Control Rule in section 11.37 required 100 percent compliance with annual cross connection control device testing requirements. Very few public water systems were able to comply with this unrealistic requirement. These amendments address many outstanding issues with the 30 year old rule including issues brought up by stakeholders during the November 2013 rulemaking; the amendments included the following provisions in sections 11.39, 11.33, and 11.36:
* Development of a written backflow prevention and cross-connection control program.
* Required notification to the Department of any suspected or confirmed backflow contamination event.
* System survey requirements to determine if cross connections are present including a five year compliance schedule for public water systems to build toward full compliance.
* Installation of backflow prevention assemblies or methods on uncontrolled cross connections.
* Annual backflow prevention assembly testing requirements to determine if assemblies are properly functioning including a five year compliance schedule for public water systems to build towards full compliance.
* Annual backflow prevention method inspection requirements to determine if methods are properly functioning.
* Development of an annual backflow prevention and cross-connection control program report.
* Specific language requirements for public notification in section 11.33 when violations occur.
* Recordkeeping requirements.
In considering the above revisions to the Backflow Prevention and Cross-connection Control Rule, the Department took into consideration many of the stakeholder comments. Specifically, stakeholders felt that they should have latitude to develop alternative compliance schedules for controlling cross connections or for surveying their system. The adopted revisions reflect these stakeholder recommendations. In addition, the stakeholder community agreed that the cross connection rule is difficult to implement in either form, and so they concurred with the five year timeline to move into full compliance with the regulation with increasingly stringent performance each year. Stakeholders agreed with lessening the 100 percent compliance requirement to 90 percent compliance after the five year ramp-up period.
Through oversight of the cross connection control program the Division has discovered that many industrial facilities, including domestic wastewater treatment works, have cross connections within their facilities. The internal plumbing of these facilities is not covered by the plumbing code. These cross connections pose a serious health risk to both the employees at these facilities and also visitors to the facilities. The Division believes it is a best industry practice for these facilities to inspect the plumbing within their facilities and as soon as possible control or remove any cross connections.
Storage Tank Rule
The Commission amended Regulation 11 to include regulatory requirements for the inspection of finished water storage tanks in the Storage Tank Rule in section 11.28 . Storage tanks are infrastructure assets that require inspections and maintenance throughout their useful life. While EPA discussed including storage tank requirements when developing the Revised Total Coliform Rule, it ultimately did not directly address storage tank inspection and maintenance in the final Revised Total Coliform Rule. The Commission believes that the Storage Tank Rule provides increased public health protection, since storage tanks that lack inspection and maintenance can present a pathway for microbial contamination.
One person died and 1,300 people got sick during the Alamosa outbreak including about 40 percent of the infants in the city. The outbreak cost millions of dollars and storage tank defects were the likely cause of that outbreak.
The rule is in response to the 2008 Alamosa outbreak as well as hundreds of preventable significant deficiencies that have been identified at storage tanks during sanitary surveys since 2008. The Storage Tank Rule makes it clear that uncorrected sanitary defects in storage tanks are violations and suppliers are required to develop and implement a plan to properly inspect and maintain their storage tanks. This rule is a measured, flexible and appropriate response that was developed with stakeholders and represents best practices that are already in place at many Colorado public water systems.
The adopted revisions, in response to stakeholder concerns, only apply to finished water storage tanks. The Commission believes that raw groundwater tanks and finished water clearwells may still need to be regulated; however the Department will evaluate the need for this as it implements the Storage Tank Rule.
The amendments included the following provisions in sections 11.28, 11.33, and 11.36:
* Development of a written plan for storage tank inspections.
* Requirements to conduct periodic and comprehensive inspections of all finished water storage tanks.
* Requirements to correct sanitary defects identified during periodic and comprehensive inspections.
* Specific language requirements for public notification in section 11.33 when violations occur.
* Recordkeeping requirements.
Water Hauler Rule
The Commission amended Regulation 11 to include regulatory requirements for water haulers which are defined as public water systems that transport drinking water using a vehicle, in section 11.41 . On November 26, 1976 EPA published EPA Water System Guidance 6A: "Applicability of the Safe Drinking Water Act to Water Haulers" that clarified that water haulers are public water systems under the Safe Drinking Water Act and therefore are subject to the National Primary Drinking Water Regulations. In May, 1986 the Water Quality Control Division adopted policy DWT-8: "Monitoring Requirements for Water Haulers" to establish specific requirements for water haulers which address their unique drinking water operations. In addition to the policy, the Department has historically applied Regulation 11 to these types of public water systems. The amendments adopted in this rulemaking add regulatory requirements to address the unique operations of water haulers. It is not intended that water haulers not previously regulated will be regulated as a result of these amendments but the Commission does believe that the addition of these requirements to the regulations, instead of in policy, will make the water hauler industry more aware of the applicability of Regulation 11 to their industry.
The amendments adopted include many aspects of policy DWT-8 as well as provisions to comply with Department-approved operational standards.
The amendments included the following provisions in sections 11.16, 11.17, 11.36, and 11.41:
* Total Coliform Rule monitoring.
* Residual disinfectant concentration monitoring.
* Compliance with an Operational Plan.
* Recordkeeping requirements.
During the stakeholder process, water haulers were generally in agreement with the proposed rule. Based on stakeholder input, the adopted revisions include terminology that is consistent with and understood by the water hauler community.
Additional Amendments
The Commission made the following amendments to be consistent with Department practices, to add clarity, or update outdated requirements:
* 11.3(38) - Revisions to the lead free definition to be consistent with the new Federal Reduction of Lead in Drinking Water Act.
* 11.4(2) - Revisions to the siting requirements for waterworks.
* 11.5(3)(a)(iv)(A)(V) - Revisions to the requirements for master meters to be included in the monitoring plan.
* 11.8(3)(f)(iii) - Removal of the allowance for the supplier of a surface water system to not submit entry point chlorine residual measurements.
* 11.11(3)(c)(i)(B), 11.11(3)(c)(iii), and 11.11(3)(d)(iii) - Removal of the allowance for the supplier of a groundwater system to use membrane filters for virus treatment credit.
* All requirements incorporated by reference from 40 CFR 141 were updated to reference 40 CFR 141 as amended on July 1, 2014.
* Typographical errors, renumbering, and updated cross references were revised as necessary throughout Regulation 11.
PARTIES TO THE RULEMAKING
5 CCR 1002-11.57