12 Va. Admin. Code § 5-590-540

Current through Register Vol. 40, No. 22, June 17, 2024

Section 12VAC5-590-540 - Public notices

A. The owner shall give public notice to (i) persons served by the waterworks and (ii) the owner of any consecutive waterworks to which it sells or otherwise provides water under the following circumstances.

1. Tier 1.

a. When E. coli are present in the distribution system, or when the waterworks fails to test for E. coli when any repeat sample tests positive for total coliform;

b. Violation of the PMCL for E. coli;

c. Violation of the PMCL for nitrate, nitrite, or total nitrate and nitrite;

d. Failure to collect a confirmation sample within 24 hours of the waterworks receipt of the first sample showing an exceedance of the nitrate or nitrite PMCL;

e. Exceedance of the nitrate PMCL by a noncommunity waterworks, where permitted to exceed the PMCL by the department;

f. Violation of the MRDL for chlorine dioxide when one or more samples collected in the distribution system the day following an exceedance of the MRDL at the entry point to the distribution system exceed the MRDL;

g. Failure to monitor chlorine dioxide residuals in the distribution system the day following an exceedance of the chlorine dioxide MRDL at the entrance to the distribution system;

h. Violation of the treatment technique requirements for filtration and disinfection resulting from a single exceedance of the maximum allowable turbidity limit, where the department determines after consultation that a Tier 1 notice is required;

i. Failure to consult with the department within 24 hours after the owner learns of the violation of the treatment technique requirements for filtration and disinfection resulting from a single exceedance of the maximum allowable turbidity limit;

j. Occurrence of a waterborne disease outbreak or other waterborne emergency (such as a failure or significant interruption in key water treatment processes, a natural disaster that disrupts the water supply or distribution system, or a chemical spill or unexpected loading of possible pathogens into the source water that significantly increases the potential for drinking water contamination);

k. Detection of E. coli in groundwater source samples; or

l. Other violations or situations with significant potential to have serious adverse effects on human health as a result of short-term exposure, as determined by the commissioner or department on a case-by-case basis.

2. Tier 2.

a. All violations of the PMCL, MRDL, and treatment technique requirements, except where a Tier 1 public notice is required or where the department determines that a Tier 1 notice is required instead per subdivision A 1 l of this section;

b. Violations of the monitoring and testing procedure requirements, where the department determines that a Tier 2 rather than a Tier 3 public notice is required instead, taking into account potential health impacts and persistence of the violation;

c. Failure to comply with the terms and conditions of any variance or exemption in place; or

d. Failure to take corrective action or failure to maintain at least 4-log treatment of viruses (using inactivation, removal, or an approved combination of 4-log virus inactivation and removal) before or at the first customer under the treatment technique requirements for waterworks with groundwater sources.

3. Tier 3.

a. Monitoring violations, except where a Tier 1 public notice is required per subdivisions A 1 d and A 1 g of this section, or where the department determines that a Tier 2 public notice is required instead per subdivision A 2 b of this section;

b. Failure to comply with a testing procedure, except where a Tier 1 notice is required per subdivision A 1 b of this section or where the department determines that a Tier 2 notice is required instead per subdivision A 2 b of this section;

c. Operation under a variance or an exemption to a PMCL or treatment technique requirement;

d. Availability of UC monitoring results; or

e. Exceedance of the fluoride SMCL.

4. The department may require public notice for violations or other situations not listed in this section or may require a higher tier of public notice for specific violations and situations listed in this section.

a. The content and extent of distribution of these public notices shall be determined by the department.

b. The owner shall provide the public notice certification required in subsection N of this section.

c. At least 90 days before initiating or discontinuing a program to provide the optimum fluoride ion concentration, a waterworks owner shall deliver written notice to the waterworks' consumers. Notice to consumers shall be consistent with 12VAC5-590-540 C 2 d.

B. If a waterworks has a violation, failure, exceedance, or situation in a portion of the distribution system that is physically or hydraulically isolated from other parts of the distribution system, the department may allow the owner to limit distribution of the public notice to only those persons served by the portion of the waterworks that is out of compliance. The decision granting limited distribution of the public notice shall be issued in writing.

C. Public notice distribution requirements.

1. For Tier 1 violations, exceedances, or situations, the owner shall:

a. Provide a public notice as soon as practical but no later than 24 hours after the owner learns of the violation, exceedance, or situation;

b. Initiate consultation with the department as soon as practical, but no later than 24 hours after the owner learns of the violation, exceedance, or situation, to determine additional public notice requirements;

c. Comply with any additional public notice requirements, including any repeat notices or direction on the duration of the posted notices that are established as a result of the consultation with the department. These requirements may include the timing, form, manner, frequency, and content of repeat notices (if any) and other actions designed to reach all persons served; and

d. Provide the public notice in a form and manner reasonably calculated to reach all persons served. The form and manner shall fit the specific situation, and shall be designed to reach residential, transient, and nontransient users of the waterworks. To reach all persons served, owners shall use, at a minimum, one or more of the following forms of delivery:

(1) Appropriate broadcast media (such as radio and television);

(2) Posting of the public notice in conspicuous locations throughout the area served by the waterworks;

(3) Hand delivery of the public notice to persons served by the waterworks; or

(4) Another delivery method approved in writing by the department.

2. For Tier 2 violations, exceedances, or situations, the owner shall:

a. Provide the public notice as soon as practical, but no later than 30 days after the owner learns of the violation, exceedance, or situation. The department may allow, on a case-by-case determination, additional time for the initial notice of up to three months from the date the owner learns of the violation, exceedance, or situation; however, the department shall not grant an extension to the 30-day deadline for any unresolved violation, exceedance, or situation.

b. Repeat the public notice every three months as long as the violation, exceedance, or situation persists, unless the department determines that appropriate circumstances warrant a different repeat notice frequency. In no circumstance shall the repeat notice be given less frequently than once per year. Repeat notice frequency less than every three months shall not be allowed for (i) a violation as specified in 12VAC5-590-380 B and 12VAC5-590-392 F; (ii) a treatment technique violation for filtration and disinfection; and (iii) other ongoing violations, exceedances, or situations.

c. Consult with the department as soon as practical but no later than 24 hours after the owner learns of a violation of the treatment technique requirements for filtration and disinfection resulting from a single exceedance of the maximum allowable turbidity limit to determine whether a Tier 1 public notice is required to protect public health. If consultation does not take place within the 24-hour period, then the owner shall distribute a Tier 1 public notice of the violation within the next 24 hours (i.e., no later than 48 hours after the owner learns of the violation).

d. Provide the initial public notice and any repeat notices in a form and manner that is reasonably calculated to reach persons served in the required time period.

(1) For a community waterworks, the owner shall:

(a) Mail or otherwise directly deliver the public notice to each customer receiving a bill and to other service connections to which water is delivered by the waterworks; and

(b) Use any other distribution method reasonably calculated to reach other persons regularly served by the waterworks, if they would not normally be reached by the notice required in subdivision C 2 d (1) (a) of this section. These persons may include those who do not pay water bills or do not have service connection addresses (e.g., house renters, apartment dwellers, university students, nursing home patients, prison inmates, etc.). Other methods may include (i) publication in a local newspaper; (ii) delivery of multiple copies for distribution by customers that provide their drinking water to others (e.g., apartment building owners or large private employers); (iii) posting in public places served by the waterworks or on the Internet; or (iv) delivery to community organizations.

(2) For a noncommunity waterworks, the owner shall:

(a) Post the public notice in conspicuous locations throughout the distribution system frequented by persons served by the waterworks, or by mail or direct delivery to each customer and service connection (where known); and

(b) Use any other method reasonably calculated to reach other persons served by the system if they would not normally be reached by the notice required in subdivision C 2 d (2) (a) of this section. These persons may include those served who may not see a posted notice because the posted notice is not in a location they routinely pass by. Other methods may include (i) publication in a local newspaper or newsletter distributed to customers; (ii) use of email to notify employees or students; or (iii) delivery of multiple copies in central locations (e.g., community centers).

e. Maintain a posted public notice in place for as long as the violation, exceedance, or situation persists, but in no case for less than seven days, even if the violation, exceedance, or situation is resolved.

3. For Tier 3 violations, exceedances, or situations the owner shall:

a. Provide the public notice not later than one year after the owner learns of the violation, exceedance, or situation or begins operating under a variance or exemption.

b. Repeat the public notice annually for as long as the violation, exceedance, variance, exemption, or other situation persists.

c. Maintain a posted public notice in place for as long as the violation, exceedance, variance, exemption, or other situation persists, but in no case less than seven days even if the violation, exceedance, or situation is resolved.

d. Instead of individual Tier 3 public notices, the owner may use an annual report detailing all violations, exceedances, and situations that occurred during the previous 12 months, as long as the timing requirements of subdivision C 3 a of this section are met. For a community waterworks, the CCR may be used as a vehicle for the initial Tier 3 public notice and all required repeat notices, provided that:

(1) The CCR is provided to persons served by the waterworks no later than 12 months after the owner learns of the violation, exceedance, or other situation.

(2) The Tier 3 public notice contained in the CCR meets the content requirements in subsection D of this section.

(3) The CCR is distributed in a manner meeting the delivery requirements in subdivision C 3 e (1) of this section.

e. For a community waterworks, the owner shall:

(1) Mail or otherwise directly deliver the public notice to each customer receiving a bill and to other service connections to which water is delivered by the waterworks; and

(2) Use any other method reasonably calculated to reach other persons regularly served by the waterworks if they would not normally be reached by the notice required in subdivision C 3 e (1) of this section. These persons may include those who do not pay water bills or do not have service connection addresses (e.g., house renters, apartment dwellers, university students, nursing home patients, prison inmates, etc.). Other methods may include (i) publication in a local newspaper, (ii) delivery of multiple copies for distribution by customers that provide their drinking water to others (e.g., apartment building owners or large private employers), (iii) posting in public places or on the Internet, or (iv) delivery to community organizations.

f. For a noncommunity waterworks the owner shall:

(1) Post the public notice in conspicuous locations throughout the distribution system frequented by persons served by the waterworks, or by mail or direct delivery to each customer and service connection (where known); and

(2) Use any other method reasonably calculated to reach other persons served by the waterworks, if they would not normally be reached by the notice required in subdivision C 3 f (1) of this section. These persons may include those who may not see a posted notice because the notice is not in a location they routinely pass by. Other methods may include (i) publication in a local newspaper or newsletter distributed to customers, (ii) use of email to notify employees or students, or (iii) delivery of multiple copies in central locations (e.g., community centers).

D. Public notice contents.

1. Each public notice for PMCL, MRDL, and TT violations and other situations requiring a public notice shall include the following elements:

a. A description of the violation, exceedance, or situation, including the contaminants of concern, and (as applicable) the contaminant levels;

b. When the violation, exceedance, or situation occurred;

c. Any potential adverse health effects from the violation, exceedance, or situation, including the standard language under subdivision 5 a or 5 b of this subsection, whichever is applicable;

d. The population at risk, including subpopulations particularly vulnerable if exposed to the contaminant in their drinking water;

e. Whether alternative water supplies should be used;

f. What actions consumers should take, including when they should seek medical help, if known;

g. What the owner is doing to correct the violation, exceedance, or situation;

h. When the owner expects the waterworks to return to compliance or resolve the situation;

i. The name, business address, and phone number of the owner, operator, or designee as a source of additional information concerning the notice; and

j. A statement to encourage the notice recipient to distribute the public notice to other persons served, using the standard language under subdivision 5 c of this subsection, where applicable.

2. Each public notice for a waterworks that has been granted a variance or exemption shall include the following elements:

a. An explanation of the reasons for the variance or exemption;

b. The date on which the variance or exemption was issued;

c. A brief status report on the steps the owner is taking to install treatment, find alternative sources of source water, or otherwise comply with the terms and schedules of the variance or exemption; and

d. A notice of any opportunity for public input in the evaluation of the variance or exemption.

3. Each public notice for a waterworks that violates the conditions of a variance or an exemption shall contain the 10 elements listed in subdivision D 1 of this section.

4. Each public notice shall:

a. Be displayed in a conspicuous way when printed or posted;

b. Not contain overly technical language or very small print;

c. Not be formatted in a way that defeats the purpose of the notice;

d. Not contain language that nullifies the purpose of the notice; and

e. Contain information in the appropriate languages, for waterworks serving a large proportion of non-English-speaking consumers, regarding the importance of the notice or contain a telephone number or address where persons served may contact the owner to obtain a translated copy of the notice or to request assistance in the appropriate language.

5. The public notice shall include the following standard language:

a. For PMCL or MRDL violations, treatment technique violations, and violations of the condition of a variance or an exemption, use standard health effects language as specified in 12VAC5-590-546 corresponding to each PMCL, MRDL, and treatment technique violation and for each violation of a condition of a variance or an exemption. For violation of the treatment technique requirement, the public notice shall also include one or both of the following statements, as appropriate:

(1) "We failed to conduct the required assessment."

(2) "We failed to correct all sanitary defects that were identified during the assessment."

b. For monitoring and testing procedure violations including failure to monitor for total coliform bacteria or E. coli before serving water from a seasonal waterworks, use standard language as specified below, including the language necessary to fill in the blanks:

"We are required to monitor your drinking water for specific contaminants on a regular basis. Results of regular monitoring are an indicator of whether or not your drinking water meets health standards. During (compliance period), we (did not monitor or test or did not complete all monitoring or testing) for (contaminants) and therefore cannot be sure of the quality of your drinking water during that time."

c. For all public notices, use standard language (where applicable), as specified in this subdivision c:

"Please share this information with all the other people who drink this water, especially those who may not have received this notice directly (e.g., people in apartments, nursing homes, schools, and businesses). You can do this by posting this notice in a public place or distributing copies by hand or mail."

d. For total coliform bacteria treatment technique violations the public notice shall include the following statement: "We found coliforms indicating the need to look for potential problems in our waterworks. When this occurs, we are required to conduct assessments to identify problems and correct any problems that are found." The public notice shall also include the following statements, as appropriate:

(1) "We failed to conduct the required assessment."

(2) "We failed to correct all sanitary defects that were identified during the assessment."

e. For E. coli treatment technique violations the public notice shall include the following statement: "We violated the standard for E. coli, indicating the need to look for potential problems in our waterworks. When this occurs, we are required to conduct a detailed assessment to identify problems and to correct any problems that are found." The public notice shall also include the following statements, as appropriate:

(1) "We failed to conduct the required assessment."

(2) "We failed to correct all sanitary defects that were identified during the assessment."

E. Public notice to new billing units or customers.

1. For a community waterworks, the owner shall give a copy of the most recent public notice for any continuing violation, exceedance, variance, exemption, or other ongoing situation requiring a public notice to all new billing units or new customers before or at the time service begins.

2. For a noncommunity waterworks, the owner shall continuously post the public notice in conspicuous locations to inform new consumers of any continuing violation, exceedance, variance, exemption, or other situation requiring a public notice for as long as the violation, exceedance, variance, exemption, or other situation persists.

F. Special notice of the availability of UC monitoring results.

1. The owner of a community waterworks or a NTNC shall notify persons served by the waterworks of the availability of the results of the sampling no later than 12 months after the monitoring results are known.

2. The special notice shall meet the requirements of a Tier 3 public notice and shall identify a person and telephone number to contact for information on the monitoring results.

G. Special notice for exceedance of the SMCL for fluoride.

1. A community waterworks that exceeds the SMCL of 2 mg/L but does not exceed the PMCL of 4 mg/L for fluoride shall provide public notice to persons served as soon as practical but no later than 12 months from the day the owner learns of the exceedance.

2. A copy of the notice shall be sent to all new billing units and new customers at the time service begins and to the department.

3. The owner shall repeat the notice at least annually for as long as the SMCL is exceeded.

4. If the public notice is posted, then the notice shall remain in place for as long as the SMCL is exceeded, but in no case less than seven days even if the exceedance is eliminated.

5. On a case-by-case basis, the department may require an initial notice sooner than 12 months and repeat notices more frequently than annually.

6. The form and manner of the public notice (including repeat notices) shall meet the requirements of a Tier 3 public notice.

7. The public notice shall contain the following language, including the language necessary to fill in the blanks:

"This is an alert about your drinking water and a cosmetic dental problem that might affect children under nine years of age. At low levels, fluoride can help prevent cavities, but children drinking water containing more than 2 milligrams per liter (mg/L) of fluoride may develop cosmetic discoloration of their permanent teeth (dental fluorosis). The drinking water provided by your community waterworks (name) has a fluoride concentration of (insert value) mg/L. Dental fluorosis, in its moderate or severe forms, may result in a brown staining and/or pitting of the permanent teeth. This problem occurs only in developing teeth, before they erupt from the gums. Children under nine should be provided with alternative sources of drinking water or water that has been treated to remove the excess fluoride to avoid the possibility of staining and pitting of their permanent teeth. You may also want to contact your dentist about proper use by young children of fluoride-containing products by young children. Older children and adults may safely drink the water. Drinking water containing more than 4 mg/L of fluoride (the U.S. Environmental Protection Agency's drinking water standard) can increase your risk of developing bone disease. Your drinking water does not contain more than 4 mg/L of fluoride, but we are required to notify you when we discover that the fluoride levels in your drinking water exceed 2 mg/L because of this cosmetic dental problem. For more information, please call (name of water system contact) of (name of community waterworks) at (phone number). Some home water treatment units are also available to remove fluoride from drinking water. To learn more about available home water treatment units, you may call NSF International at 1-877-867-3435 or email info@nsf.org."

H. Special notice for nitrate exceedances above PMCL by a noncommunity waterworks.

1. The owner of a noncommunity waterworks granted permission by the department to exceed the nitrate PMCL shall provide public notice to persons served meeting the requirements of a Tier 1 notice.

2. The public notice shall be posted continuously and shall indicate the fact that nitrate levels exceed 10 mg/L and the potential health effects of exposure, meeting the requirements of Tier 1 public notice delivery and content.

I. Special notice for repeated failure to conduct sampling of the source water for Cryptosporidium.

1. The owner who is required to sample source water shall provide public notice to persons served when the owner has failed to collect any three months of required samples. The form and manner of the public notice shall satisfy the requirements of a Tier 2 notice, and the notice shall be repeated in accordance with the requirements of a Tier 2 notice.

2. The notice shall contain the following language, including the language to fill in the blanks:

"We are required to monitor the source of your drinking water for Cryptosporidium. Results of the monitoring are to be used to determine whether water treatment at the [blank - fill in treatment plant name] is sufficient to adequately remove Cryptosporidium from your drinking water. We are required to complete this monitoring and make this determination by [blank - fill in required bin determination date]. We "did not monitor" or "did not complete all monitoring or testing" on schedule and, therefore, we may not be able to determine by the required date what treatment modifications, if any, shall be made to ensure adequate Cryptosporidium removal. Missing this deadline may, in turn, jeopardize our ability to have the required treatment modifications, if any, completed by the deadline required, [blank - fill in date].

For more information, please call [blank - fill in name of waterworks contact] of [blank - fill in name of waterworks] at [blank - fill in phone number]."

3. The notice shall contain a description of what the owner is doing to correct the violation and when the owner expects the waterworks to return to compliance or resolve the situation.

J. Special notice for failure to determine bin classification or mean Cryptosporidium level.

1. The owner that is required to determine a bin classification or to determine mean Cryptosporidium level shall provide public notice to persons served when the determination has not been made as required. The form and manner of the public notice shall satisfy the requirements of a Tier 2 notice, and the notice shall be repeated in accordance with the requirements of a Tier 2 notice. However, a public notice is not required if the owner is complying with a schedule to address the violation approved by the department.

2. The notice shall contain the following language, including the language to fill in the blanks:

"We are required to monitor the source of your drinking water for Cryptosporidium in order to determine by [blank - fill in date] whether water treatment at the [blank - fill in treatment plant name] is sufficient to adequately remove Cryptosporidium from you drinking water. We have not made this determination by the required date. Our failure to do this may jeopardize our ability to have the required treatment modifications, if any, completed by the required deadline of [blank - fill in date]. For more information, please call [blank - fill in name of waterworks contact] of [blank - fill in name of waterworks] at [blank - fill in telephone number]."

3. The notice shall contain a description of what the owner is doing to correct the violation and when the owner expects the waterworks to return to compliance or resolve the situation.

K. Special notice for significant deficiencies by a noncommunity groundwater system.

1. An owner of a noncommunity groundwater system that has not corrected a significant deficiency within one year of being notified by the department shall provide public notice to the consumers.

2. The form and manner of the public notice shall satisfy the requirements of a Tier 2 notice.

3. The owner shall continue to notify the public annually until the requirements of 12VAC5-590-421 have been satisfied. The notice shall include:

a. The nature of the significant deficiency and the date it was identified by the department; and

b. The department approved plan and schedule for correcting the significant deficiency including interim measures, progress to date, and which of the interim measures have been completed.

4. For a noncommunity groundwater system with a large proportion of non-English-speaking consumers, the notice shall contain information in the appropriate languages regarding the importance of the notice or contain a telephone number or address where the consumers may contact the owner to obtain a translated copy of the notice or assistance with the appropriate language.

5. If directed by the department, the owner of a noncommunity groundwater system with significant deficiencies that have been corrected shall inform the consumers of the significant deficiencies, how the deficiencies were corrected, and the date of correction.

L. The department may give notice to the public required by this section on behalf of the owner as long as the notice complies with the requirements of this section. However, the owner remains legally responsible for ensuring that the requirements of this section are met.

M. The department may require an owner to provide public notice for significant changes in water quality.

N. Within 10 days of completion of each initial and repeat public notice, the owner shall provide the department with the following:

1. A certification that the owner has fully complied with the public notice requirements; and

2. A representative copy of each type of notice that was distributed, published, posted, and made available to the persons served by the waterworks and to the media.

O. The owner shall maintain copies of each public notice and certification for at least three years after issuance.

12 Va. Admin. Code § 5-590-540

Derived from VR355-18-005.10 §2.21, eff. August 1, 1991; amended, Virginia Register Volume 9, Issue 17, eff. June 23, 1993; Volume 12, Issue 2, eff. November 15, 1995; Volume 18, Issue 19, eff. July 3, 2002; Volume 19, Issue 24, eff. September 10, 2003; Volume 21, Issue 13, eff. April 6, 2005; Volume 22, Issue 15, eff. May 3, 2006; Volume 25, Issue 5, eff. December 10, 2008; Volume 28, Issue 5, eff. December 7, 2011; Amended, Virginia Register Volume 33, Issue 3, eff. 11/2/2016; Amended, Virginia Register Volume 37, Issue 20, eff. 6/23/2021.

Statutory Authority: §§ 32.1-12 and 32.1-170 of the Code of Virginia.