5 Colo. Code Regs. § 1002-11.61
The following sections were affected by this rulemaking hearing: Regulation 11 Table of Contents, 11.28 - Storage Tank Rule, 11.33 - Public Notification Rule, 11.38 - Sanitary Survey Rule, 11.39 - Backflow Prevention and Cross-Connection Control Rule. 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 the 2015 rulemaking when the Commission adopted the Revised Total Coliform Rule, the commission 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 primarily 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 the 2015 rule 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.
Since 2016, the Division has regulated cross connections (Section 11.39) and finished water storage tanks (Section 11.28) under the new regulations. During the last four years of implementation, the Division worked with stakeholders to understand the effectiveness of the rules. Based on this work, the Division proposed adjusting regulatory requirements based both on the Division's and water systems' implementation of the rules. The Commission agrees that these adjustments will allow a more even and reasonable approach to implementing the rules and allow water systems and the Division to focus resources on public health protection.
Revisions to the Storage Tank Rule (Regulation 11.28)
In 2015, the Commission added Section 11.28 of the Colorado Primary Drinking Water Regulations to include the Storage Tank Rule to further protect public health and public water systems from potential contamination associated with unprotected storage tanks within the public water system's drinking water distribution system. The Water Quality Control Division committed during the rulemaking process to continue to engage with stakeholders, solicit input and further evaluate the adopted rule, while providing appropriate protection of the public health and public water systems.
The intent of the storage tank inspections portion of the rulemaking is to provide additional flexibility to water systems while continuing to protect public health and public water systems from potential contamination associated with storage tanks. Prior to this rulemaking, Section 11.28 of the Storage Tank Rule required quarterly periodic inspections of all finished water storage. If a public water system could not perform quarterly periodic inspections of finished water storage, they would have to document an alternative schedule in the finished water storage tank inspection plan. In the subsequent 4 years, the Division has reviewed numerous alternative tank inspection schedules at less frequent than quarterly inspection frequencies. In many parts of the state, due to weather or other reasons, quarterly inspections are not practical and can be a safety hazard to operators. Based on this finding, the Division has determined that assessing a treatment technique violation if a public water system misses a single quarter periodic tank inspection may cause undue burden on the public water system without adding the corresponding public health protection. The Division also agreed with stakeholders that missing a single periodic inspection should result in a storage tank rule violation resulting in a Tier 3 public notice rather than a treatment technique violation provided that a water system never goes beyond a 12 month window without inspecting their storage tanks. However, if a water system goes 12 months without performing a periodic inspection at a storage tank, it is the Division's perspective that public health is unreasonably put at risk and issuing a treatment technique violation is merited. Industry best practice is still to perform periodic inspections quarterly, and the Division asserts that quarterly inspections are the recommended best practice. Once this regulatory update takes effect, the Division will evaluate the regulatory changes going forward to determine that public health continues to be protected. If any unforeseen public health issues arise from these changes to the tank inspection schedules, the Division may recommend that the Commission switch back to a quarterly inspection schedule to better protect public health, as needed.
Therefore, the Commission has amended Section 11.28 to require water systems to perform a minimum of two periodic inspections each calendar year and to indicate that inspections may be conducted more frequently than this requirement. A storage tank rule violation will be assessed if a water system fails to perform at least two inspections per calendar year, and a treatment technique violation will be assessed if a water system fails to perform at least one periodic inspection in each 12 month period. The Commission encourages systems to perform periodic inspections quarterly if practicable.
Revisions to Cross-Connection Control Rule (Regulation 11.39)
In 2015, the Commission amended Section 11.39 of the Colorado Primary Drinking Water Regulations' Backflow Prevention Cross-Connection Control Rule to further protect public health and public water systems from potential contamination associated with cross-connections and ensure public water system compliance with Section 25.1.114 & 25.1.114.1 of the Colorado Revised Statutes. The Water Quality Control Division committed during the rulemaking process to continue to engage with stakeholders, solicit input and further evaluate the adopted rule, while providing appropriate protection of the public health and public water systems. In 2018, the Commission amended Section 11.39 in relation to single family homes and duplexes as a direct result of working with suppliers of water on implementing the rules to be equally protective of public health and without being overly burdensome.
The Commission has further revised the Cross-Connection Control Rule to provide additional flexibility to water systems while continuing to protect public health and public water systems from potential contamination associated with cross-connections. The Division recommended that the Commission maintain a stringent requirement for surveying the distribution system to find cross connections, but that requirement not be classified as a treatment technique violation as long as the water system was maintaining a good faith effort to survey their entire system. Also, the ability for the Division to grant alternative schedules for surveying expired on December 31, 2019. The Division and stakeholders agreed that with proper justification, systems should be able to apply and receive alternative schedules as long as those schedules are justified. Also, the Division and stakeholders believed that it would be protective of public health to allow water systems 120 days instead of the previous 60 days to repair failed backflow assemblies and methods. This is primarily a result of many requests from water systems to extend the timeline to install backflow assemblies when installation on the prescribed timeline is not practical. Having the burden to repair a failed assembly be more burdensome than installing a new assembly on a discovered cross connection is not logical. This change makes the regulation more cohesive and still protects public health.
The Division also recommended that the Commission amend the due dates within the rule for achieving 100% survey completion of the drinking water distribution system and for achieving 90% assembly testing. These due dates under the 2015 version of Regulation 11 were both December 31, 2020. The proposal was to keep the 2019 performance metrics for 2020 and extend the requirement to achieve 100% survey compliance and 90% assembly testing requirements out to December 31, 2021. Based on disruptions in the ability to survey properties, enforce backflow assembly testing requirements, and find backflow assembly testers (renewal testing was halted) all resulting from the COVID-19 outbreak in the spring of 2020, the Division recommended this 1 year extension. The Commission believes this extension will adequately protect public health due to the fact that most water systems have made substantial progress both on system surveys and on assembly testing while the extension will simultaneously acknowledge the real challenges that public water systems face during this time of national crisis.
The Commission agrees with the Water Quality Control Division that the survey requirement no longer be classified as a treatment technique violation. When Section 11.39 was amended in 2015 there was a considerable public health threat due to the fact that many water systems had never surveyed any of their systems to find cross connections. However, after four years of implementation, most water systems have surveyed large portions, if not all of their system, and the potential public health threat has been reduced. Since the public health threat has been reduced the Commission agrees with the Water Quality Control Division that it was appropriate to change the classification of the violation. If a water systems efforts to survey their system are deemed to pose a health risk the division can still classify this as a significant deficiency. If a significant deficiency is not resolved within 120 days the Division can issue a violation for failure to resolve the significant deficiency. That violation would require a Tier 2, 30-day public notice therefore in egregious cases the public will be informed in relatively short order if a system is failing to properly correct issues. By removing the survey requirement as a treatment technique violation while still allowing the Division to find a significant deficiency where a water system's failure to survey is creating a public health risk, the revisions give the Division the flexibility to allow water systems that are working hard to meet the survey requirements to continue that work, while also ensuring that public health is protected from systems that do not survey their distribution system for cross connections.
Revisions to Public Notification Rule (Regulation 11.33)
The Public Notification Rule, section 11.33, specifies that for each applicable MCL, MRDL, treatment technique violation, or other situation requiring tier 2 public notification, the supplier must include in the public notice the corresponding health effects language specified in Table 11.33-VI. Such language was inadvertently omitted during the 2015 rulemaking.
The Commission has revised the standard health effects language in Table 11.33-VI for treatment technique violations identified in the Backflow Prevention and Cross-Connection Control Rule, the Storage Tank Rule and the Sanitary Survey Rule.
For a backflow prevention and cross-connection control rule treatment technique violation, the previous language in Table 11.33-VI did not inform the consumer about potential health effects that consumers may experience and did not explain terms that readers may be unfamiliar with, such as "cross connection." The Commission revised the language in Table 11.33-VI to include this missing information. Also, the Commission removed the examples of sentences that the water system could pick from to describe the violation. The explanations for the violations are not explanations of health effects and the Commission felt that these did not belong in Table 11.33-VI. The water system is still required to include their own, accurate description of the violation, as is required for all public notices, according to the "10 Required Elements" of section 11.33 of the Public Notification Rule.
For a storage tank rule treatment technique violation, there was previously no health effects language specified in Table 11.33-VI. Therefore, the Commission added standard health effects language to Table 11.33-VI.
For a failure to correct a significant deficiency treatment technique violation, there was previously no health effects language specified in Table 11.33-VI. Therefore, the Commission added standard health effects language to Table 11.33-VI.
Revisions to the Sanitary Survey Rule (Regulation 11.38)
In the Sanitary Survey Rule, the Commission made a minor edit to avoid water systems receiving multiple, unnecessary violations when violations are discovered on a sanitary survey. Water systems will still be subject to violations during sanitary survey, but with this change they will no longer also violate the sanitary survey rule, which was an unintended consequence and causes undue administrative burden on water systems and the Department without further protecting public health.
5 CCR 1002-11.61