REGISTER INFORMATION PAGE
Vol. 36 Iss. 6 - November 11, 2019

The Virginia Register OF REGULATIONS is an official state publication issued every other week throughout the year. Indexes are published quarterly, and are cumulative for the year. The Virginia Register has several functions. The new and amended sections of regulations, both as proposed and as finally adopted, are required by law to be published in the Virginia Register. In addition, the Virginia Register is a source of other information about state government, including petitions for rulemaking, emergency regulations, executive orders issued by the Governor, and notices of public hearings on regulations.

ADOPTION, AMENDMENT, AND REPEAL OF REGULATIONS

An agency wishing to adopt, amend, or repeal regulations must first publish in the Virginia Register a notice of intended regulatory action; a basis, purpose, substance and issues statement; an economic impact analysis prepared by the Department of Planning and Budget; the agency’s response to the economic impact analysis; a summary; a notice giving the public an opportunity to comment on the proposal; and the text of the proposed regulation.

Following publication of the proposal in the Virginia Register, the promulgating agency receives public comments for a minimum of 60 days. The Governor reviews the proposed regulation to determine if it is necessary to protect the public health, safety and welfare, and if it is clearly written and easily understandable. If the Governor chooses to comment on the proposed regulation, his comments must be transmitted to the agency and the Registrar no later than 15 days following the completion of the 60-day public comment period. The Governor’s comments, if any, will be published in the Virginia Register. Not less than 15 days following the completion of the 60-day public comment period, the agency may adopt the proposed regulation.

The Joint Commission on Administrative Rules (JCAR) or the appropriate standing committee of each house of the General Assembly may meet during the promulgation or final adoption process and file an objection with the Registrar and the promulgating agency. The objection will be published in the Virginia Register. Within 21 days after receipt by the agency of a legislative objection, the agency shall file a response with the Registrar, the objecting legislative body, and the Governor.

When final action is taken, the agency again publishes the text of the regulation as adopted, highlighting all changes made to the proposed regulation and explaining any substantial changes made since publication of the proposal. A 30-day final adoption period begins upon final publication in the Virginia Register.

The Governor may review the final regulation during this time and, if he objects, forward his objection to the Registrar and the agency. In addition to or in lieu of filing a formal objection, the Governor may suspend the effective date of a portion or all of a regulation until the end of the next regular General Assembly session by issuing a directive signed by a majority of the members of the appropriate legislative body and the Governor. The Governor’s objection or suspension of the regulation, or both, will be published in the Virginia Register. If the Governor finds that changes made to the proposed regulation have substantial impact, he may require the agency to provide an additional 30-day public comment period on the changes. Notice of the additional public comment period required by the Governor will be published in the Virginia Register.

The agency shall suspend the regulatory process for 30 days when it receives requests from 25 or more individuals to solicit additional public comment, unless the agency determines that the changes have minor or inconsequential impact.

A regulation becomes effective at the conclusion of the 30-day final adoption period, or at any other later date specified by the promulgating agency, unless (i) a legislative objection has been filed, in which event the regulation, unless withdrawn, becomes effective on the date specified, which shall be after the expiration of the 21-day objection period; (ii) the Governor exercises his authority to require the agency to provide for additional public comment, in which event the regulation, unless withdrawn, becomes effective on the date specified, which shall be after the expiration of the period for which the Governor has provided for additional public comment; (iii) the Governor and the General Assembly exercise their authority to suspend the effective date of a regulation until the end of the next regular legislative session; or (iv) the agency suspends the regulatory process, in which event the regulation, unless withdrawn, becomes effective on the date specified, which shall be after the expiration of the 30-day public comment period and no earlier than 15 days from publication of the readopted action.

A regulatory action may be withdrawn by the promulgating agency at any time before the regulation becomes final.

FAST-TRACK RULEMAKING PROCESS

Section 2.2-4012.1 of the Code of Virginia provides an exemption from certain provisions of the Administrative Process Act for agency regulations deemed by the Governor to be noncontroversial.  To use this process, Governor's concurrence is required and advance notice must be provided to certain legislative committees.  Fast-track regulations will become effective on the date noted in the regulatory action if no objections to using the process are filed in accordance with § 2.2-4012.1.

EMERGENCY REGULATIONS

Pursuant to § 2.2-4011 of the Code of Virginia, an agency, upon consultation with the Attorney General, and at the discretion of the Governor, may adopt emergency regulations that are necessitated by an emergency situation. An agency may also adopt an emergency regulation when Virginia statutory law or the appropriation act or federal law or federal regulation requires that a regulation be effective in 280 days or less from its enactment. The emergency regulation becomes operative upon its adoption and filing with the Registrar of Regulations, unless a later date is specified. Emergency regulations are limited to no more than 18 months in duration; however, may be extended for six months under certain circumstances as provided for in § 2.2-4011 D. Emergency regulations are published as soon as possible in the Register.

During the time the emergency status is in effect, the agency may proceed with the adoption of permanent regulations through the usual procedures. To begin promulgating the replacement regulation, the agency must (i) file the Notice of Intended Regulatory Action with the Registrar within 60 days of the effective date of the emergency regulation and (ii) file the proposed regulation with the Registrar within 180 days of the effective date of the emergency regulation. If the agency chooses not to adopt the regulations, the emergency status ends when the prescribed time limit expires.

STATEMENT

The foregoing constitutes a generalized statement of the procedures to be followed. For specific statutory language, it is suggested that Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia be examined carefully.

CITATION TO THE VIRGINIA REGISTER

The Virginia Register is cited by volume, issue, page number, and date. 34:8 VA.R. 763-832 December 11, 2017, refers to Volume 34, Issue 8, pages 763 through 832 of the Virginia Register issued on
December 11, 2017.

The Virginia Register of Regulations is published pursuant to Article 6 (§ 2.2-4031 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia.

Members of the Virginia Code Commission: John S. Edwards, Chair; James A. "Jay" Leftwich, Vice Chair; Ryan T. McDougle; Nicole Cheuk; Rita Davis; Leslie L. Lilley; Thomas M. Moncure, Jr.; Christopher R. Nolen; Charles S. Sharp; Samuel T. Towell; Malfourd W. Trumbo; Mark J. Vucci.

Staff of the Virginia Register: Karen Perrine, Registrar of Regulations; Anne Bloomsburg, Assistant Registrar; Nikki Clemons, Regulations Analyst; Rhonda Dyer, Publications Assistant; Terri Edwards, Senior Operations Staff Assistant.


PUBLICATION SCHEDULE AND DEADLINES
Vol. 36 Iss. 6 - November 11, 2019

December 2019 through December 2020

Volume: Issue

Material Submitted By Noon*

Will Be Published On

36:8

November 18, 2019 (Monday)

December 9, 2019

36:9

December 4, 2019

December 23, 2019

36:10

December 16, 2019 (Monday)

January 6, 2020

36:11

January 1, 2020

January 20, 2020

36:12

January 15, 2020

February 3, 2020

36:13

January 29, 2020

February 17, 2020

36:14

February 12. 2020

March 2, 2020

36:15

February 26, 2020

March 16, 2020

36:16

March 11, 2020

March 30, 2020

36:17

March 25, 2020

April 13, 2020

36:18

April 8, 2020

April 27, 2020

36:19

April 22. 2020

May 11, 2020

36:20

May 6, 2020

May 25, 2020

36:21

May 20, 2020

June 8, 2020

36:22

June 3, 2020

June 22, 2020

36:23

June 17, 2020

July 6, 2020

36:24

July 1, 2020

July 20, 2020

36:25

July 15, 2020

August 3, 2020

36:26

July 29, 2020

August 17, 2020

37:1

August 12, 2020

August 31, 2020

37:2

August 26, 2020

September 14, 2020

37:3

September 9, 2020

September 28, 2020

37:4

September 23, 2020

October 12, 2020

37:5

October 7, 2020

October 26, 2020

37:6

October 21, 2020

November 9, 2020

37:7

November 4, 2020

November 23, 2020

37:8

November 16, 2020 (Monday)

December 7, 2020

37:9

December 2, 2020

December 21, 2020

*Filing deadlines are Wednesdays unless otherwise specified.


PETITIONS FOR RULEMAKING
Vol. 36 Iss. 6 - November 11, 2019

TITLE 12. HEALTH

STATE BOARD OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES

Agency Decision

Title of Regulation: 12VAC35-105. Rules and Regulations for Licensing Providers by the Department of Behavioral Health and Developmental Services.

Statutory Authority: § 37.2-203 of the Code of Virginia.

Name of Petitioner: R.C. Carter.

Nature of Petitioner's Request: To amend 12VAC35-105-520 (Risk management) in accordance with the Virginia Court of Appeals in Gregory Allen Moyer v. Commonwealth of Virginia (2000), "when interpreting the law one must consider other sections of law in determining legislative intent," in order that the new Office of Licensing Associate Director of State Operations develop and coordinate the oversight of the interpretation and implementation of the additional 42 policies and procedures that providers are required to have in writing in accordance with the HIPAA Act under Risk Analysis and Risk Management which can be found under the following sections 45 CFR 164.306, 45 CFR 164.308, 45 CFR 164.310, 45 CFR 164.312, 45 CFR 164.314, and 45 CFR 164.316.

Agency Decision: No action.

Statement of Reason for Decision: The petition was considered by the board at the regular meeting held on Wednesday, October 9, 2019, at Western State Hospital in Staunton, Virginia. After reviewing all of the information received, the board declined to pursue the suggestions on the matter for the following reasons:

1. Regulation 12VAC35-105-870 B 4 already states that the provider's record management policy be consistent with applicable state and federal laws including the Health Insurance Portability and Accountability Act (HIPAA) (Public Law 104-191) and implementing regulations (45 CFR Parts 160, 162, and 164). Therefore, technically, compliance with these provisions is already required under DBHDS licensing regulations.

2. There are federal agencies tasked with enforcement of HIPAA including the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) and Centers for Medicare and Medicaid Services (CMS).

3. Currently, the way the Licensing Regulations (12VAC35-105) are written, any changes that occur at the federal level are automatically captured in the regulations because providers are only required compliance with the federal law and do not include specific provisions. If the regulations are changed to specifically include text from HIPAA, the regulations will have to be changed every time that the federal laws change.

Agency Contact: Ruth Anne Walker, Director of Regulatory Affairs, Department of Behavioral Health and Developmental Services, 1220 Bank Street, 11th Floor, Richmond, VA 23219, telephone (804) 225-2252, or email ruthanne.walker@dbhds.virginia.gov.

VA.R. Doc. No. R20-05 Filed October 17, 2019, 12:56 p.m.

Agency Decision

Title of Regulation: 12VAC35-105. Rules and Regulations for Licensing Providers by the Department of Behavioral Health and Developmental Services.

Statutory Authority: § 37.2-203 of the Code of Virginia.

Name of Petitioner: R.C. Carter.

Nature of Petitioner's Request: To develop a new regulation requiring providers to (i) obtain verification from the Virginia Employment Commission required under the Virginia Unemployment Compensation Act, § 60.2-212 C of the Code of Virginia and (ii) submit an SS-8 Form to the Internal Revenue Service.

Agency Decision: No action.

Statement of Reason for Decision: The petition was considered by the board at the regular meeting held on Wednesday, October 9, 2019, at Western State Hospital in Staunton, Virginia. After reviewing all of the information received, the board declined to pursue the suggestions on the matter for the following reasons:

1. DBHDS does not enforce compliance with the Virginia Unemployment Compensation Act, other state employment law, or federal tax law.

2. The Office of Regulatory Affairs conducted substantial research related to the use of contract employees (for the response to periodic review draft) and as a result, draft regulations propose amendments (during the planned response to periodic review 'overhaul' of the regulations) to account for the misuse of contract employees in licensed services.

Agency Contact: Ruth Anne Walker, Director of Regulatory Affairs, Department of Behavioral Health and Developmental Services, Jefferson Building, 1220 Bank Street, 11th Floor, Richmond, VA 23219, telephone (804) 225-2252, or email ruthanne.walker@dbhds.virginia.gov.

VA.R. Doc. No. R20-01 Filed October 17, 2019, 1:04 p.m.

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TITLE 16. LABOR AND EMPLOYMENT

SAFETY AND HEALTH CODES BOARD

Agency Decision

Title of Regulation: 16VAC25-60. Administrative Regulation for the Virginia Occupational Safety and Health Program.

Statutory Authority: §§ 40.1-6 and 40.1-22 of the Code of Virginia.

Name of Petitioner: Robert R. Payne, University of Alabama at Birmingham.

Nature of Petitioner's Request: 16VAC25-60-120 currently provides as follows: "The employer shall comply with the manufacturer's specifications and limitations applicable to the operation, training, use, installation, inspection, testing, repair and maintenance of all machinery, vehicles, tools, materials and equipment, unless specifically superseded by a more stringent corresponding requirement in 29 CFR Part 1910. The use of any machinery, vehicle, tool, material or equipment that is not in compliance with any applicable requirement of the manufacturer is prohibited, and shall either be identified by the employer as unsafe by tagging or locking the controls to render them inoperable or be physically removed from its place of use or operation." The petition requests the following language be added to the end of the current regulation: "Any employer who is using machinery, vehicles, tools, materials or equipment as part of a Process Safety Management (PSM) covered process, as defined in 29 CFR 1910.119, may adjust the operation, training, use, installation, inspection, testing, repair or maintenance after completion of the following:

• Documenting the adjustment from the Manufacturer's Specifications and Limitations (MS&L) in the Process Safety Information (PSI),

• Completing the Management of Change (MOC) requirement described in 29 CFR 1910.119(l) and

• Certification from a company executive that they have examined this adjustment and that to the best of their knowledge the information is true, accurate and complete."

Agency Decision: No action.

Statement of Reason for Decision: Having given due consideration to the December 8, 2017, petition to amend the referenced Virginia Occupational Safety and Health (VOSH) regulation, the Virginia Safety and Health Codes Board at its meeting on June 14, 2018, voted unanimously to deny the petition based on a briefing from the Commissioner of Labor and Industry.

Summary of the Petition to Amend Process: On December 8, 2017, Robert R. Payne, University of Alabama at Birmingham, submitted to the Department of Labor and Industry a petition to amend 16VAC25-60-120 B pursuant to § 2.2-4007 of the Code of Virginia (see Attachment A).

The Department of Labor and Industry's initial response to the petition was filed on the Virginia Regulatory Town Hall on December 18, 2017. The agency's plan to address the petition provided as follows: "In accordance with § 2.2-4007 B of the Code of Virginia, the petition has been filed with the Registrar of Regulations and will be published on January 8, 2018. Comment on the petition may be sent by email, regular mail or posted on the Virginia Regulatory Town Hall at www.townhall.virginia.gov. Comments will be requested until January 28, 2018. Following receipt of all comments on the petition to amend the regulation, the Safety and Health Codes Board will decide whether to make any changes to the regulatory language. This matter will be on the board's agenda for its next regularly scheduled meeting following the end of the comment period. The board does not currently have a meeting scheduled. The board will issue a written decision on the petition within 90 days of the close of the comment period, or within 14 days of its next meeting should the board not meet within the initial 90 day period."

The petition was published in the Virginia Register of Regulations on January 8, 2018, with a 21 day comment period ending January 28, 2018. No comments were received.

The board considered the petition at its meeting on June 14, 2018, (see pages 45-50 of the agenda posted to Town Hall from the June 14, 2018, SHCB meeting at: https://townhall.virginia.gov/L/GetFile.cfm?File=meeting\92\27752\Agenda_DOLI_27752_v3.pdf.)

Summary of the Petition: The petition seeks to amend 16VAC25-60-120 B, which provides as follows: "B. The employer shall comply with the manufacturer's specifications and limitations applicable to the operation, training, use, installation, inspection, testing, repair and maintenance of all machinery, vehicles, tools, materials and equipment, unless specifically superseded by a more stringent corresponding requirement in 29 CFR Part 1910. The use of any machinery, vehicle, tool, material or equipment that is not in compliance with any applicable requirement of the manufacturer is prohibited and shall either be identified by the employer as unsafe by tagging or locking the controls to render them inoperable or be physically removed from its place of use or operation."

The petition asks that the following language be added to 16VAC25-60-120 B: Any employer who is using machinery, vehicles, tools, materials or equipment as part of a Process Safety Management (PSM) covered process, as defined in 29 CFR (Code of Federal Regulations) 1910.119, may adjust the operation, training, use, installation, inspection, testing, repair or maintenance after completion of the following:

• Documenting the adjustment from the Manufacturer's Specifications and Limitations (MS&L) in the Process Safety Information (PSI)

• Completing the Management of Change (MOC) requirement described in 29 CFR 1910.119 (1) and

• Certification from a company executive that they have examined this adjustment and that to the best of their knowledge the information is true, accurate and complete.

Decision: The board finds the following:

1. While the petitioner has identified one or more scenarios where an employer operating a process safety management (PSM) work site may be negatively impacted by 16VAC25-60.120 B, he is incorrect in stating that VOSH regulations do not provide an option for employers to vary from the requirements of 16VAC25-60.120 B.

The VOSH Administrative Regulations describe procedures for employers to seek variances from VOSH regulations to address exactly the kind of situations described by the petitioner: 16VAC25-60-190 (General provisions), 16VAC25-60-210 (Permanent variances), and 16VAC25-60-220 (Interim order).

The variance procedures provide employers the opportunity to apply to the commissioner for either an interim order and/or a permanent variance from an existing VOSH regulation. The application requires no special form. The information can be forwarded by letter with attachments (e.g., written procedures, photographs, videos, diagrams, manufacturer's specifications, etc.).

16VAC25-60-190 through 16VAC25-60-220 explain the different forms of variances and describe the process for obtaining an interim order from the Commissioner of Labor and Industry. Permanent variances are addressed in 16VAC25-60-210. Temporary variances are addressed in 16VAC25-60-200, but are only used in special instances where an employer is unable to comply with a standard before its effective date.

Interim orders are addressed in 16VAC25-60-220 and can be obtained for a limited amount of time without going through the full notice and comment procedures required for a permanent variance. Because interim orders are not subject to public comment and receive expedited review by the commissioner, the burden of proof for the employer in support of its interim order request is higher than for a permanent variance (see 16VAC25-60-220 C which requires "clear and convincing evidence" that employees will be protected).

The variance application must address the general requirements contained in 16VAC25-60-190 B l to 16VAC25-60-190 B 3 concerning notification to employees and this department, and then specify the type of variance requested: permanent variance, temporary variance and/or interim order. The application must also address each of the documentation requirements listed in 16VAC25-60-210 B for permanent variances and, as applicable, the requirements in 16VAC25-60-220 B and 16VAC25-60-220 C for interim orders.

Once the commissioner issues a decision on the variance request, any party may, within 15 days, file a notice of appeal with the Safety and Health Codes Board.

2. Section 40.1-22(5) of the Code of Virginia provides that in deciding whether to adopt or amend a regulation the Safety and Health Codes Board shall take into consideration "experiences gained under this and other health and safety laws." The Process Safety Management of Highly Hazardous Chemicals (PSM) Standard, 1910.119, was originally adopted by OSHA and the Safety and Health Codes Board in 1992. 16VAC25-60-120 B was adopted by the board in 2006 after multiple notice and comment periods and a public hearing. To the knowledge of department staff, no Virginia employer responsible for operating a PSM covered work site has ever applied for a variance from 16VAC25-60-120 B or requested an interpretation of 16VAC25-60-120 B and its application to a PSM covered work site in Virginia. Nor does the petitioner identify a specific PSM work site in Virginia negatively impacted by 16VAC25-60-120 B.

Based on the "experiences gained" under § 1910.119 and 16VAC25-60-120 B, it does not appear that a significant enough number of PSM employers/employees are impacted negatively in Virginia by 16VAC25-60-120 B to warrant the undertaking of a potentially costly and time consuming regulatory amendment process; particularly when VOSH variance procedures discussed above may be used by PSM employers on a case-by-case basis to address the situations described by the petitioner. Should the department ultimately receive a significant number of variance requests on this issue, it stated that it will reconsider its recommendation on this petition to amend.

3. While the department has not researched in depth the ramifications of an amendment to 16VAC25-60-120 B that would permit an employer to violate manufacturer's specifications and limitations without first contacting the manufacturer and/or a governing body, such as the VOSH Program, it would appear that there would be significant legal and liability ramifications and complexities involved in any proposed rulemaking that could affect such a potentially broad range of manufactured items.

PSM facilities by their very nature also involve the handling of large amounts of highly hazardous chemicals, and in the event of a failure can result in catastrophic consequences for the worksite, its employees and potentially the surrounding community and the environment. The advantages of addressing the petitioner's concerns with employers on a case-by-case basis through a relatively stream-lined process, and one which includes the opportunity for interaction with the manufacturer, as well as notice and comment to affected employees and the general public, are apparent.

ATTACHMENT A

§ 2.2-4007 of the Code of Virginia. Petitions for new or amended regulations; opportunity for public comment.

A. Any person may petition an agency to request the agency to develop a new regulation or amend an existing regulation. The petition shall state (i) the substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections, and (ii) reference to the legal authority of the agency to take the action requested.

B. Within 14 days of receiving a petition, the agency shall send a notice identifying the petitioner, the nature of the petitioner's request and the agency's plan for disposition of the petition to the Registrar for publication in the Virginia Register of Regulations in accordance with the provisions of subsection B of § 2.2-4031 C of the Code of Virginia. A 21-day period for acceptance of written public comment on the petition shall be provided after publication in the Virginia Register. The agency shall issue a written decision to grant or deny the petitioner's request within 90 days following the close of the comment period. However, if the rulemaking authority is vested in an entity that has not met within that 90-day period, the entity shall issue a written decision no later than 14 days after it next meets. The written decision issued by the agency shall include a statement of its reasons and shall be submitted to the Registrar for publication in the Virginia Register of Regulations. Agency decisions to initiate or not initiate rulemaking in response to petitions shall not be subject to judicial review.

Agency Contact: Jay Withrow, Director, Division of Legal Support, VPP, ORA, OPP, Department of Labor and Industry, Main Street Centre, 600 East Main Street, Richmond, VA 23219, telephone (804) 786-9873, or email jay.withrow@doli.virginia.gov.

VA.R. Doc. No. R18-14 Filed October 9, 2019, 12:57 p.m.

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TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF MEDICINE

Initial Agency Notice

Title of Regulation: 18VAC85-80. Regulations Governing the Practice of Physician Assistants.

Statutory Authority: § 54.1-2400 of the Code of Virginia.

Name of Petitioner: Virginia Academy of Physician Assistants.

Nature of Petitioner's Request: To eliminate the requirement for the name of a patient care team physician to appear on a prescription written by a physician assistant for a controlled substance in Schedules II through V.

Agency Plan for Disposition of Request: In accordance with Virginia law, the petition has been filed with the Virginia Registrar of Regulations and will be published on November 11, 2019, and posted on the Virginia Regulatory Town Hall at www.townhall.virginia.gov. Comment on the petition will be requested until December 11, 2019, and may be posted on the Town Hall or sent to the board. Following receipt of all comments on the petition to amend regulations, the matter will be considered by the Advisory Board on Physician Assistants at its next meeting following the close of comment.

Public Comment Deadline: December 11, 2019.

Agency Contact: William L. Harp, M.D., Executive Director, Board of Medicine, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804)  367-4558, or email william.harp@dhp.virginia.gov.

VA.R. Doc. No. R20-14 Filed October 15, 2019, 8:53 a.m.

 


PERIODIC REVIEWS AND SMALL BUSINESS IMPACT REVIEWS
Vol. 36 Iss. 6 - November 11, 2019

TITLE 9. ENVIRONMENT

STATE AIR POLLUTION CONTROL BOARD

Report of Findings

Pursuant to § 2.2-4007.1 of the Code of Virginia, the State Air Pollution Control Board conducted a small business impact review of 9VAC5-91, Regulations for the Control of Motor Vehicle Emissions in the Northern Virginia Area, and determined that this regulation should be retained in its current form. The State Air Pollution Control Board is publishing its report of findings dated October 1, 2019, to support this decision in accordance with § 2.2-4007.1 F of the Code of Virginia.

The regulation continues to be needed. Motor vehicles are the single greatest source of pollutants in the northern Virginia area. This program helps to ensure that vehicles operate as cleanly as possible by periodically verifying vehicle emissions control systems are operating properly. Maintenance and repair of emissions control systems on vehicles minimizes the impact vehicle emissions have on air quality.

No comments were received during the comment period.

The regulations specify the requirements for motor vehicle emissions inspections in the northern Virginia area and include the frequency of inspection, the type of testing to be conducted, and the emission standards that must be met. Most newer vehicles subject to the program have their on-board diagnostic systems tested while other subject vehicles have their tailpipe emissions tested. Certain vehicles may also be tested using remote sensing technology and may be required to have a confirmation test conducted at an emissions inspection station based on their on-road emission results. Due to the numerous types of tests that may be used to evaluate a vehicle's emissions, the regulations may be viewed as complex.

The Clean Air Act Amendments passed by the U.S. Congress in 1990 required Virginia's Department of Environmental Quality (DEQ) to enhance the vehicle emissions inspection program in order to keep improving air quality and to reduce emissions further. In compliance with this federal mandate, DEQ has designed the program for maximum convenience, efficiency and reliability. Virginia's program does not conflict with federal or state laws or regulations.

These regulations were last amended in 2018 and were also amended in 2015, 2013, 2012, 2008, 2007, 2005, and 2002. These regulations have been periodically updated to maintain consistency with requirements of state law and to incorporate advancements in vehicle emissions testing technology.

These regulations contain a provision that allows certain vehicles to be tested using remote sensing technology. This provision helps minimize the impact the regulations have on some vehicle owners, including vehicles owned by small businesses.

Contact Information: Melissa Porterfield, Office of Regulatory Affairs, Department of Environmental Quality, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4238, FAX (804) 698-4019, or email melissa.porterfield@deq.virginia.gov.

STATE WATER CONTROL BOARD

Report of Findings

Pursuant to § 2.2-4007.1 of the Code of Virginia, the Board of Counseling conducted a small business impact review of 9VAC25-650, Closure Plans and Demonstration of Financial Capability, and determined that this regulation should be amended.

The fast-track regulatory action to amend 9VAC25-650, which is published in this issue of the Virginia Register, serves as the report of findings.

Agency Contact: Melissa Porterfield, Office of Regulatory Affairs, Department of Environmental Quality, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4238, FAX (804) 698-4019, or email melissa.porterfield@deq.virginia.gov.

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TITLE 12. HEALTH

STATE BOARD OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES

Agency Notice

Pursuant to Executive Order 14 (as amended July 16, 2018) and §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, 12VAC35-225, Requirements for Virginia Early Intervention System, is undergoing a periodic review. The review of this regulation will be guided by the principles in Executive Order 14 (as amended July 16, 2018).

The purpose of this review is to determine whether this regulation should be repealed, amended, or retained in its current form. Public comment is sought on the review of any issue relating to this regulation, including whether the regulation (i) is necessary for the protection of public health, safety, and welfare or for the economical performance of important governmental functions; (ii) minimizes the economic impact on small businesses in a manner consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.

Comments must include the commenter's name and address (physical or email) information in order to receive a response to the comment from the agency. Following the close of the public comment period, a report of both reviews will be posted on the Town Hall and a report of the small business impact review will be published in the Virginia Register of Regulations.

Contact Information: Catherine Hancock, Part C Administrator, Jefferson Building, State Board of Behavioral Health and Developmental Services, 1220 Bank Street, 9th Floor, Richmond, VA 23219, telephone (804) 371-6592, FAX (804) 371-7959, TDD (804) 371-8977, or email catherine.hancock@dbhds.virginia.gov.

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TITLE 16. LABOR AND EMPLOYMENT

SAFETY AND HEALTH CODES BOARD

Report of Findings

Pursuant to § 2.2-4007.1 of the Code of Virginia, the Safety and Health Codes Board conducted a small business impact review of 16VAC25-35, Regulation Concerning Certified Lead Contractors Notification, Lead Project Permits and Permit Fees, and determined that this regulation should be retained in its current form. The Safety and Health Codes Board is publishing its report of findings dated September 18, 2019, to support this decision in accordance with § 2.2-4007.1 F of the Code of Virginia.

The regulation has three goals:

1. Reduce the incidence of material impairment of the health of Virginians due to exposure to lead in the workplace or as an environmental pollutant.

2. Require certified lead abatement contractors to notify the government of lead abatement projects and pay fees to cover the cost of administering the program.

3. The protection of the public's health, safety, and welfare with the least possible cost and intrusiveness.

The regulation provides the identification of certain lead abatement projects and the tracking of active projects. Section 40.1-51.21 of the Code of Virginia requires that at least once a year, during an actual project, the Department of Labor and Industry conduct an on-site, unannounced inspection of each certified lead abatement contractor's procedures in regard to the removal of lead-based paint. This inspection ensures protection of the health of the work. The regulation provides the identification of certain lead abatement projects and the tracking of active projects. Section 40.1-51.21 of the Code of Virginia requires that at least once a year, during an actual project, the Department of Labor and Industry conduct an on-site, unannounced inspection of each certified lead abatement contractor's procedures in regard to the removal of lead-based paint. This inspection ensures protection of the health of the workers and also the health of the general public by controlling the release of lead into the environment or residence.

The regulation also provides a concise procedure for the notification and payment of fees associated with lead projects. The fees generated are designed to cover the costs associated with the compliance inspections conducted by the Department.

This regulation is not overly complex and does not overlap, duplicate, or conflict with federal or state law or regulation. The regulation is clearly written and easily understandable.

The regulation also provides a concise procedure for the notification and payment of fees associated with lead projects. The fees generated are designed to cover the costs associated with the compliance inspections conducted by the department.

Contact Information: Jay Withrow, Director of Legal Support, VPP, ORA, OPP, OWP, Safety and Health Codes Board, 600 East Main Street, Suite 207, Richmond, VA 23233, telephone (804) 786-9873, or email jay.withrow@doli.virginia.gov.

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TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD FOR ARCHITECTS, PROFESSIONAL ENGINEERS, LAND SURVEYORS, CERTIFIED INTERIOR DESIGNERS, AND LANDSCAPE ARCHITECTS

Report of Findings

Pursuant to § 2.2-4007.1 of the Code of Virginia, the Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers, and Landscape Architects conducted a small business impact review of 18VAC10-11, Public Participation Guidelines, and determined that this regulation should be retained in its current form. The Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers, and Landscape Architects is publishing its report of findings dated September 25, 2019, to support this decision in accordance with § 2.2-4007.1 F of the Code of Virginia.

The current regulation is necessary for the board to comply with § 2.2-4007.02 of the Code of Virginia. No public comments were received. The regulation is not complex in nature. The regulation does not overlap, duplicate, or conflict with federal or state laws or regulations. No small business impact has been identified. The last periodic review of the regulation occurred March, 2016.

On September 10, 2019, the board reviewed the regulation and determined that the regulation should not be amended or repealed, but retained in its current form.

Contact Information: Kathleen R. Nosbisch, Executive Director, Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers, and Landscape Architects, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8514, FAX (866) 465-6206, or email apelscidla@dpor.virginia.gov.

Report of Findings

Pursuant to § 2.2-4007.1 of the Code of Virginia, the Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers, and Landscape Architects conducted a small business impact review of 18VAC10-20, Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers, and Landscape Architects Regulations, and determined that this regulation should be retained in its current form. The Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers, and Landscape Architects is publishing its report of findings dated September 25, 2019, to support this decision in accordance with § 2.2-4007.1 F of the Code of Virginia.

Section 54.1-201.5 of the Code of Virginia mandates that the Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers, and Landscape Architects promulgate regulations. The continued need for the regulation is established in statute. Repeal of the regulation would remove the current public protections provided by the regulation. The Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers, and Landscape Architects provides protection to the safety and welfare of the citizens of the Commonwealth by ensuring that only those individuals and businesses who meet specific criteria set forth in the statutes and regulations are eligible to receive a license, certification, or registration. The board is also tasked with ensuring that its regulants meet standards of practice that are set for the in the regulations.

No comments or complaints were received during the public comment period. The regulation is clearly written, easily understandable, and does not overlap, duplicate, or conflict with federal or state law or regulation. The most recent periodic review of the regulation occurred in 2015.

On September 10, 2019, the board discussed the regulation and for the reasons stated in this section, determined that regulation should not be amended or repealed, but retained in its current form.

Contact Information: Kathleen R. Nosbisch, Executive Director, Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers, and Landscape Architects, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8514, FAX (866) 465-6206, or email apelscidla@dpor.virginia.gov.

AUCTIONEERS BOARD

Report of Findings

Pursuant to § 2.2-4007.1 of the Code of Virginia, the Auctioneers Board conducted a small business impact review of 18VAC25-11, Public Participation Guidelines, and determined that this regulation should be retained in its current form. The Auctioneers Board is publishing its report of findings dated October 10, 2019, to support this decision in accordance with § 2.2-4007.1 F of the Code of Virginia.

The current regulation is necessary for the board to comply with § 2.2-4007.02 of the Code of Virginia. No public comments were received. The regulation is not complex in nature. The regulation does not overlap, duplicate, or conflict with federal or state laws or regulations. No small business impact has been identified. The last periodic review of the regulation occurred January, 2016.

On October 8, 2019, the board reviewed the regulation and, for the reasons stated in this section, determined that the regulation should not be amended or repealed, but retained in its current form.

Contact Information: Kathleen R. Nosbisch, Executive Director, Auctioneer's Board, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8514, FAX (866) 465-6206, email auctioneers@dpor.virginia.gov.

Report of Findings

Pursuant to § 2.2-4007.1 of the Code of Virginia, the Auctioneers Board conducted a small business impact review of 18VAC25-21, Regulations of the Virginia Auctioneers Board, and determined that this regulation should be retained in its current form. The Auctioneers Board is publishing its report of findings dated October 10, 2019, to support this decision in accordance with § 2.2-4007.1 F of the Code of Virginia.

Section 54.1-201.5 of the Code of Virginia mandates the Auctioneers Board promulgate regulations. The continued need for the regulation is established in statute. Repeal of the regulation would remove the current public protections provided by the regulation. The Auctioneers Board provides protection to the safety and welfare of the citizens of the Commonwealth by ensuring that only those individuals and businesses who meet specific criteria set forth in the statutes and regulations are eligible to receive a license. The board is also tasked with ensuring that its regulants meet standards of practice that are set for the in the regulations.

No comments or complaints were received during the public comment period. The regulation is clearly written, easily understandable, and does not overlap, duplicate, or conflict with federal or state law or regulation. The most recent periodic review of the regulation occurred in 2016.

On October 8, 2019, the board discussed the regulation and for the reasons stated in this section, determined that regulation should not be amended or repealed, but retained in its current form.

Contact Information: Kathleen R. Nosbisch, Executive Director, Auctioneer's Board, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8514, FAX (866) 465-6206, email auctioneers@dpor.virginia.gov.

BOARD FOR BRANCH PILOTS

Report of Findings

Pursuant to § 2.2-4007.1 of the Code of Virginia, the Board for Branch Pilots conducted a small business impact review of 18VAC45-11, Public Participation Guidelines, and determined that this regulation should be retained in its current form. The Board for Branch Pilots is publishing its report of findings dated September 25, 2019, to support this decision in accordance with § 2.2-4007.1 F of the Code of Virginia.

The current regulation is necessary for the board to comply with § 2.2-4007.02 of the Code of Virginia. No public comments were received. The regulation is not complex in nature. The regulation does not overlap, duplicate, or conflict with federal or state laws or regulations. No small business impact has been identified. The last periodic review of the regulation occurred January, 2016.

On September 13, 2019, the board reviewed the regulation and, for the reasons stated in this section, determined that the regulation should not be amended or repealed, but retained in its current form.

Contact Information: Kathleen R. Nosbisch, Executive Director, Board for Branch Pilots, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8514, FAX (866) 465-6206, or email branchpilots@dpor.virginia.gov.

Report of Findings

Pursuant to § 2.2-4007.1 of the Code of Virginia, the Board for Branch Pilots conducted a small business impact review of 18VAC45-20, Board for Branch Pilots Regulations, and determined that this regulation should be retained in its current form. The Board for Branch Pilots is publishing its report of findings dated September 25, 2019, to support this decision in accordance with § 2.2-4007.1 F of the Code of Virginia.

Section 54.1-201.5 of the Code of Virginia mandates the Board for Branch Pilots promulgate regulations. The continued need for the regulation is established in statute. Repeal of the regulation would remove the current public protections provided by the regulation. The Board for Branch Pilots provides protection to the safety and welfare of the citizens of the Commonwealth by ensuring that only those individuals who meet specific criteria set forth in the statutes and regulations are eligible to receive a license. The board is also tasked with ensuring that its regulants meet standards of practice that are set for the in the regulations.

No comments or complaints were received during the public comment period. The regulation is clearly written, easily understandable, and does not overlap, duplicate, or conflict with federal or state law or regulation. The most recent periodic review of the regulation occurred in 2015.

On September 13, 2019, the board discussed the regulation and for the reasons stated in this section, determined that regulation should not be amended or repealed, but retained in its current form.

Contact Information: Kathleen R. Nosbisch, Executive Director, Board for Branch Pilots, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8514, FAX (866) 465-6206, or email branchpilots@dpor.virginia.gov.

BOARD OF COUNSELING

Report of Findings

Pursuant to § 2.2-4007.1 of the Code of Virginia, the Board of Counseling conducted a small business impact review of 18VAC115-40, Regulations Governing the Certification of Rehabilitation Providers, and determined that this regulation should be amended.

The Notice of Intended Regulatory Action to amend 18VAC115-40, which is published in this issue of the Virginia Register, serves as the report of findings.

Agency Contact: Jaime Hoyle, Executive Director, Board of Counseling, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4406, or email jaime.hoyle@dhp.virginia.gov.

REAL ESTATE APPRAISER BOARD

Report of Findings

Pursuant to § 2.2-4007.1 of the Code of Virginia, the Real Estate Appraiser Board conducted a small business impact review of 18VAC130-11, Public Participation Guidelines, and determined that this regulation should be retained in its current form. The Real Estate Appraiser Board is publishing its report of findings dated October 9, 2019, to support this decision in accordance with § 2.2-4007.1 F of the Code of Virginia.

Section 2.2-4007.02 of the Code of Virginia mandates the agency to solicit the input of interested parties in the formation and development of its regulations. Therefore, the continued need for the regulation is established in statute. The regulation is necessary to protect public health, safety, and welfare by establishing public participation guidelines that promote public involvement in the development, amendment, or repeal of an agency's regulation. By soliciting the input of interested parties, the agency is better equipped to effectively regulate the occupation or profession.

No comments or complaints were received during the public comment period. The regulation is clearly written, easily understandable, and does not overlap, duplicate, or conflict with federal or state law or regulation. The most recent periodic review of the regulation occurred in 2015.

On October 8, 2019, the board discussed the regulation and, for the reasons stated in this section, determined that the regulation should not be amended or repealed, but retained in its current form.

Contact Information: Christine Martine, Executive Director, Real Estate Appraiser Board, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8552, FAX (866) 826-8863, or email reappraisers@dpor.virginia.gov.

Report of Findings

Pursuant to § 2.2-4007.1 of the Code of Virginia, the Real Estate Appraiser Board conducted a small business impact review of 18VAC130-20, Real Estate Appraiser Board Rules and Regulations, and determined that this regulation should be retained in its current form. The Real Estate Appraiser Board is publishing its report of findings dated October 9, 2019, to support this decision in accordance with § 2.2-4007.1 F of the Code of Virginia.

Section 54.1-201.5 of the Code of Virginia mandates the Real Estate Appraiser Board to promulgate regulations. The continued need for the regulation is established in statute. Repeal of the regulation would remove the current public protections provided by the regulation. The Real Estate Appraiser Board provides protection to the safety and welfare of the citizens of the Commonwealth by ensuring that only those individuals that meet specific criteria set forth in the statutes and regulations are eligible to receive a real estate appraiser license and business registration. The board is also tasked with ensuring that its regulants meet standards of practice that are set forth in the regulations.

No comments or complaints were received during the public comment period. The regulation is clearly written, easily understandable, and does not overlap, duplicate, or conflict with federal or state law or regulation. The most recent periodic review of the regulation occurred in 2015.

On October 8, 2019, the board discussed the regulation and, for the reasons stated in this section, determined that the regulation should not be amended or repealed, but retained in its current form.

Contact Information: Christine Martine, Executive Director, Real Estate Appraiser Board, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8552, FAX (866) 826-8863, or email reappraisers@dpor.virginia.gov.

Report of Findings

Pursuant to § 2.2-4007.1 of the Code of Virginia, the Real Estate Appraiser Board conducted a small business impact review of 18VAC130-30, Appraisal Management Company Regulations, and determined that this regulation should be retained in its current form. The Real Estate Appraiser Board is publishing its report of findings dated October 9, 2019, to support this decision in accordance with § 2.2-4007.1 F of the Code of Virginia.

Section 54.1-201.5 of the Code of Virginia mandates the Real Estate Appraiser Board to promulgate regulations. The continued need for the regulation is established in statute. Repeal of the regulation would remove the current public protections provided by the regulation. The Real Estate Appraiser Board provides protection to the safety and welfare of the citizens of the Commonwealth by ensuring that only those persons that meet specific criteria set forth in the statutes and regulations are eligible to receive an appraisal management company license. The board is also tasked with ensuring that its regulants meet standards of practice that are set forth in the regulations.

No complaints were received during the public comment period. The regulation is clearly written, easily understandable, and does not overlap, duplicate, or conflict with federal or state law or regulation.

This is the first periodic review of the regulation. On October 8, 2019, the board discussed the regulation and, for the reasons stated in this section, determined that the regulation should not be amended or repealed, but retained in its current form.

Contact Information: Christine Martine, Executive Director, Real Estate Appraiser Board, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8552, FAX (866) 826-8863, or email reappraisers@dpor.virginia.gov.

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TITLE 22. SOCIAL SERVICES

STATE BOARD OF SOCIAL SERVICES

Report of Findings

Pursuant to § 2.2-4007.1 of the Code of Virginia, the State Board of Social Services conducted a small business impact review of 22VAC40-680, Virginia Energy Assistance Program - Low Income Home Energy Assistance Program (LIHEAP), and determined that this regulation should be retained in its current form. The State Board of Social Services is publishing its report of findings dated July 17, 2019, to support this decision in accordance with § 2.2-4007.1 F of the Code of Virginia.

Because this regulation makes revenue available to over 500 vendors, the impact of the regulation on small business is positive. The regulation provides eligible Energy Assistance Program (EAP) vendors, which includes vendors from the small business community, access to revenue made available through the federally funded LIHEAP. The regulation is not complex and does not overlap, duplicate, or conflict with other federal or state laws or regulations. The last evaluation of this regulation occurred in 2015. Business entities that provide EAP goods and services are eligible to participate as vendors in the EAP. Payments to vendors are determined by their respective products, self-designated service areas, and by customer selection. There is no need to amend or repeal the regulation to minimize the economic impact on small businesses.

Contact Information: Denise Surber, Energy Assistance Program Consultant, State Board of Social Services, 801 East Main Street, Richmond, VA 23219, telephone (804) 726-7386, FAX (804) 726-7358, or email denise.t.surber@dss.virginia.gov.

Report of Findings

Pursuant to § 2.2-4007.1 of the Code of Virginia, the State Board of Social Services conducted a small business impact review of 22VAC40-780, Eligibility for Direct Social Services, and determined that this regulation should be retained in its current form. The State Board of Social Services is publishing its report of findings dated October 16, 2019, to support this decision in accordance with § 2.2-4007.1 F of the Code of Virginia.

This regulation is necessary in that it provides the authority for local departments of social services to provide direct services to children and families. There were no complaints or comments received from the public concerning this regulation. This regulation does not conflict with federal or state law or regulations and there are no requirements that exceed applicable federal requirements. This regulation was last reviewed and amended in 2015. There are no impacts on small businesses.

Contact Information: Nikki Clarke Callaghan, Program Manager, Legislation and Regulations, State Board of Social Services, 801 East Main Street, Richmond, VA 23219, telephone (804) 726-7943, FAX (804) 726-7499, or email nikki.clarke@dss.virginia.gov.

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TITLE 24. TRANSPORTATION AND MOTOR VEHICLES

DEPARTMENT OF MOTOR VEHICLES

Report of Findings

Pursuant to § 2.2-4007.1 of the Code of Virginia, the Department of Motor Vehicles (DMV) conducted a small business impact review of 24VAC20-121, Virginia Driver Training Schools Regulations, and determined that this regulation should be retained in its current form. The Department of Motor Vehicles is publishing its report of findings dated October 7, 2019, to support this decision in accordance with § 2.2-4007.1 F of the Code of Virginia.

DMV did not receive any comments during the comment period indicating a need to repeal or amend the regulation to minimize the economic impact on small businesses. DMV has determined to retain the regulation at this time. DMV has determined that the regulation is not overly complex and conforms to the Code of Virginia. DMV has also determined that the regulation does not overlap, duplicate, or conflict with federal or state law or regulation. DMV considered the degree to which technology, economic conditions, or other factors have changed in the area affected by the regulation and has determined that no changes are necessary at this time.

Contact Information: Domica Winstead, Senior Policy Analyst, Department of Motor Vehicles, 2300 West Broad Street, Suite 724, Richmond, VA 23220, telephone (804) 367-1864, FAX (804) 367-4336, or email domica.winstead@dmv.virginia.gov.

MOTOR VEHICLE DEALER BOARD

Agency Notice

Pursuant to Executive Order 14 (as amended July 16, 2018) and §§ 2.2-4007.1 and 2.2-4017 of the Code of Virginia, the listed regulations are undergoing a periodic review. The review of these regulations will be guided by the principles in Executive Order 14 (as amended July 16, 2018).

24VAC22-11, Public Participation Guidelines

24VAC22-20, Motor Vehicle Dealer Fees

24VAC22-30, Motor Vehicle Dealer Advertising Practices and Enforcement Regulations

24VAC22-40, Independent Motor Vehicle Dealer Operator Recertification Regulations

The purpose of this review is to determine whether each regulation should be repealed, amended, or retained in its current form. Public comment is sought on the review of any issue relating to each regulation, including whether each regulation (i) is necessary for the protection of public health, safety, and welfare or for the economical performance of important governmental functions; (ii) minimizes the economic impact on small businesses in a manner consistent with the stated objectives of applicable law; and (iii) is clearly written and easily understandable.

Comments must include the commenter's name and address (physical or email) information in order to receive a response to the comment from the agency. Following the close of the public comment period, a report of both reviews will be posted on the Town Hall and a report of the small business impact review will be published in the Virginia Register of Regulations.

Contact Information: William Childress, Executive Director, Motor Vehicle Dealer Board, 2201 West Broad Street, Suite 104, Richmond, VA 23220, telephone (804) 367-6745, FAX (804) 367-1053, or email william.childress@mvdb.virginia.gov.

NOTICES OF INTENDED REGULATORY ACTION
Vol. 36 Iss. 6 - November 11, 2019

TITLE 9. ENVIRONMENT
Groundwater Withdrawal Regulations
Notice of Intended Regulatory Action

Notice is hereby given in accordance with § 2.2-4007.01 of the Code of Virginia that the State Water Control Board intends to consider amending 9VAC25-610, Groundwater Withdrawal Regulations and adopting a new chapter, 9VAC25-910, General Permit for Use of Surficial Aquifer on the Eastern Shore. The purpose of the proposed action is to authorize the development of a general permit and create a new general permit regulation to promote use of the surficial aquifer on the Eastern Shore for nonpotable purposes.

The agency does not intend to hold a public hearing on the proposed action after publication in the Virginia Register.

Statutory Authority: § 62.1-262.1 of the Code of Virginia.

Public Comment Deadline: January 6, 2020.

Agency Contact: Scott Kudlas, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4456, or email scott.kudlas@deq.virginia.gov.

VA.R. Doc. No. R20-6091; Filed October 22, 2019, 12:08 p.m.
TITLE 9. ENVIRONMENT
General Permit for Use of Surficial Aquifer on the Eastern Shore
Notice of Intended Regulatory Action

Notice is hereby given in accordance with § 2.2-4007.01 of the Code of Virginia that the State Water Control Board intends to consider amending 9VAC25-610, Groundwater Withdrawal Regulations and adopting a new chapter, 9VAC25-910, General Permit for Use of Surficial Aquifer on the Eastern Shore. The purpose of the proposed action is to authorize the development of a general permit and create a new general permit regulation to promote use of the surficial aquifer on the Eastern Shore for nonpotable purposes.

The agency does not intend to hold a public hearing on the proposed action after publication in the Virginia Register.

Statutory Authority: § 62.1-262.1 of the Code of Virginia.

Public Comment Deadline: January 6, 2020.

Agency Contact: Scott Kudlas, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4456, or email scott.kudlas@deq.virginia.gov.

VA.R. Doc. No. R20-6091; Filed October 22, 2019, 12:08 p.m.
TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
Regulations Governing the Certification of Rehabilitation Providers
Notice of Intended Regulatory Action

Notice is hereby given in accordance with § 2.2-4007.01 of the Code of Virginia that the Board of Counseling intends to consider amending 18VAC115-40, Regulations Governing the Certification of Rehabilitation Providers. The purpose of the proposed action is to update regulations, clarify language, and achieve some consistency among standards of practice and renewal requirements for certified and registered professions. The board will consider requiring hours of continuing education for renewal and adding grounds for disciplinary actions that are found in all other chapters for other professions regulated by the board.

This Notice of Intended Regulatory Action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

The agency intends to hold a public hearing on the proposed action after publication in the Virginia Register.

Statutory Authority: § 54.1-2400 of the Code of Virginia.

Public Comment Deadline: December 11, 2019.

Agency Contact: Jaime Hoyle, Executive Director, Board of Counseling, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4406, FAX (804) 527-4435, or email jaime.hoyle@dhp.virginia.gov.

VA.R. Doc. No. R20-6208; Filed October 15, 2019, 3:39 p.m.

REGULATIONS
Vol. 36 Iss. 6 - November 11, 2019

TITLE 1. ADMINISTRATION
STATE BOARD OF ELECTIONS
Final Regulation

Title of Regulation: 1VAC20-90. Campaign Finance and Political Advertisements (adding 1VAC20-90-30).

Statutory Authority: § 24.2-103 of the Code of Virginia.

Effective Date: January 1, 2020.

Agency Contact: David Nichols, Director of Election Services, Department of Elections, 1100 Bank Street, Richmond, VA 23219, telephone (804) 864-8952, or email david.nichols@elections.virginia.gov.

Summary:

The amendment adopts a definition of "express advocacy."

Summary of Public Comments and Agency's Response: No public comments were received by the promulgating agency.

1VAC20-90-30. Express advocacy.

When used in Chapter 9.3 (§ 24.2-945 et seq.) and Chapter 9.5 (§ 24.2-955 et seq.) of Title 24.2 of the Code of Virginia, "expressly advocating" or any variation thereof shall mean any communication that uses phrases such as "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," "reject," or any variation thereof or any communication when taken as a whole and with limited reference to external events, such as the proximity to the election, that could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidates because (i) the electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning and (ii) reasonable minds could not differ as to whether it encourages actions to elect or defeat one or more clearly identified candidates.

VA.R. Doc. No. R19-5607; Filed October 23, 2019, 11:08 a.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Final Regulation

REGISTRAR'S NOTICE: The Marine Resources Commission is claiming an exemption from the Administrative Process Act in accordance with § 2.2-4006 A 11 of the Code of Virginia; however, the commission is required to publish the full text of final regulations.

Title of Regulation: 4VAC20-490. Pertaining to Sharks (amending 4VAC20-490-40).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: November 1, 2019.

Agency Contact: Jennifer Farmer, Regulatory Coordinator, Marine Resources Commission, 380 Fenwick Road, Fort Monroe, VA 23651, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.

Summary:

The amendments increase the recreational minimum size limits for shortfin mako sharks to 83 inches straight line fork length for females and 71 inches straight line fork length for males.

4VAC20-490-40. Recreational harvest limitations.

A. Recreational fishing vessels are allowed a maximum possession limit of one recreationally permitted shark, excluding smooth dogfish, per trip, regardless of the number of people on board the vessel. In addition, each recreational vessel angler may possess one bonnethead and one Atlantic sharpnose per trip. The possession aboard a vessel of more than one recreationally permitted shark, excluding smooth dogfish, or the possession of more than one Atlantic sharpnose shark or one bonnethead shark, per person, shall constitute a violation of this regulation. When fishing from any boat or vessel where the entire catch is held in a common hold or container, the possession limits for Atlantic sharpnose shark or bonnethead shark shall be for the boat or vessel and shall be equal to the number of persons on board legally eligible to fish, plus one additional recreationally permitted shark. The captain or operator of the boat or vessel shall be responsible for any boat or vessel possession limits.

B. A recreational shore angler is allowed a maximum possession limit of one recreationally permitted shark, excluding smooth dogfish, per calendar day. In addition, a recreational shore angler may harvest one additional bonnethead and one additional Atlantic sharpnose per calendar day. The possession of more than one recreationally permitted shark, excluding smooth dogfish, or the possession of more than one bonnethead and one Atlantic sharpnose, by any person, shall constitute a violation of this regulation.

C. It shall be unlawful for any person to possess any recreationally prohibited shark.

D. It shall be unlawful for any person to possess any recreationally permitted shark landed under the recreational harvest limitations described in this section that is less than 54 inches in fork length except as described in subdivisions 1, 2, and 2 3 of this subsection:

1. It shall be unlawful for any person to possess any recreationally caught female shortfin mako shark that is less than 83 inches in fork length or any male shortfin mako shark that is less than 71 inches in fork length.

2. It shall be unlawful for any person to possess any recreationally caught great hammerhead, scalloped hammerhead, or smooth hammerhead shark that is less than 78 inches in fork length.

2. 3. Atlantic sharpnose, bonnethead, finetooth, blacknose, and smooth dogfish sharks are exempt from the recreational size limit described in this subsection.

E. It shall be unlawful for any person to take, harvest, land, or possess any blacktip, bull, great hammerhead, lemon, nurse, scalloped hammerhead, smooth hammerhead, spinner or tiger shark from May 15 through July 15 of any calendar year.

F. All sharks must have heads, tails and fins attached naturally to the carcass. Anglers may gut and bleed the carcass as long as the head and tail are not removed. Filleting any shark is prohibited until that shark is offloaded at the dock or on shore.

VA.R. Doc. No. R20-6220; Filed October 23, 2019, 10:41 a.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Final Regulation

REGISTRAR'S NOTICE: The Marine Resources Commission is claiming an exemption from the Administrative Process Act in accordance with § 2.2-4006 A 11 of the Code of Virginia; however, the commission is required to publish the full text of final regulations.

Title of Regulation: 4VAC20-510. Pertaining to Amberjack and Cobia (amending 4VAC20-510-25).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: October 23, 2019.

Agency Contact: Jennifer Farmer, Regulatory Coordinator, Marine Resources Commission, 380 Fenwick Road, Fort Monroe, VA 23651, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.

Summary:

The amendment establishes closure of the commercial cobia fishery on October 1, 2019.

4VAC20-510-25. Commercial fishery possession limits and season.

A. It shall be unlawful for any person fishing commercially to possess more than two amberjack or more than two cobia at any time, except as described in 4VAC20-510-33. Any amberjack or cobia caught after the possession limit has been reached shall be returned to the water immediately. When fishing from any boat or vessel where the entire catch is held in a common hold or container, the possession limit shall be for the boat or vessel and shall be equal to the number of valid commercial fisherman registration licensees on board multiplied by two, except there is a maximum vessel limit of six cobia per vessel per day. The captain or operator of the boat or vessel shall be responsible for any boat or vessel possession limit.

B. In 2018 2019 it shall be unlawful for any person fishing commercially to harvest or possess any cobia after September 30.

VA.R. Doc. No. R20-6183; Filed October 23, 2019, 9:53 a.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Emergency Regulation

Title of Regulation: 4VAC20-910. Pertaining to Scup (Porgy) (amending 4VAC20-910-45).

Statutory Authority: §§ 28.2-201 and 28.2-210 of the Code of Virginia.

Effective Dates: October 23, 2019, through November 22, 2019.

Agency Contact: Jennifer Farmer, Regulatory Coordinator, Marine Resources Commission, 380 Fenwick Road, Fort Monroe, VA 23651, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.

Preamble:

The amendment decreases the landing limit per trip for the October 1 through December 31 commercial scup fishery to 27,000 pounds.

4VAC20-910-45. Possession limits and harvest quotas.

A. During the Winter I period January 1 through April 30 of each year, it shall be unlawful for any person to do any of the following:

1. Possess aboard any vessel in Virginia more than 50,000 pounds of scup;

2. Land in Virginia more than a total of 50,000 pounds of scup during each consecutive seven-day landing period, with the first seven-day period beginning on January 1; or

3. When it is projected and announced that 80% of the coastwide quota for the Winter I period has been attained, possess aboard any vessel or land in Virginia more than a total of 1,000 pounds of scup.

B. During the Winter II period October 1 through December 31 of each year, it shall be unlawful for any person to possess aboard any vessel or to land in Virginia more than 28,500 27,000 pounds of scup.

C. During the Summer period May 1 through September 30 of each year, the commercial harvest and landing of scup in Virginia shall be limited to 14,296 pounds, and it shall be unlawful for any person to possess aboard any vessel in Virginia more than 5,000 pounds of scup.

D. For each of the time periods set forth in this section, the Marine Resources Commission will give timely notice to the industry of calculated poundage possession limits and quotas and any adjustments thereto. It shall be unlawful for any person to possess or to land any scup for commercial purposes after any winter period coastwide quota or summer period Virginia quota has been attained and announced as such.

E. It shall be unlawful for any buyer of seafood to receive any scup after any commercial harvest or landing quota has been attained and announced as such.

F. It shall be unlawful for any person fishing with hook and line, rod and reel, spear, gig, or other recreational gear to possess more than 30 scup. When fishing is from a boat or vessel where the entire catch is held in a common hold or container, the possession limit shall be for the boat or vessel and shall be equal to the number of persons on board legally eligible to fish multiplied by 30. The captain or operator of the boat or vessel shall be responsible for any boat or vessel possession limit. Any scup taken after the possession limit has been reached shall be returned to the water immediately.

VA.R. Doc. No. R20-6218; Filed October 23, 2019, 10:02 a.m.
TITLE 4. CONSERVATION AND NATURAL RESOURCES
MARINE RESOURCES COMMISSION
Final Regulation

REGISTRAR'S NOTICE: The Marine Resources Commission is claiming an exemption from the Administrative Process Act in accordance with § 2.2-4006 A 11 of the Code of Virginia; however, the commission is required to publish the full text of final regulations.

Title of Regulation: 4VAC20-960. Pertaining to Tautog (amending 4VAC20-960-10, 4VAC20-960-20, 4VAC20-960-45; adding 4VAC20-960-48, 4VAC20-960-49, 4VAC20-960-60).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: January 1, 2020.

Agency Contact: Jennifer Farmer, Regulatory Coordinator, Marine Resources Commission, 380 Fenwick Road, Fort Monroe, VA 23651, telephone (757) 247-2248, or email jennifer.farmer@mrc.virginia.gov.

Summary:

The amendments establish a tautog commercial permit and Atlantic States Marine Fisheries Commission mandated tagging system.

4VAC20-960-10. Purpose.

The purpose of this chapter is to (i) reduce fishing mortality in the tautog fishery to assure that overfishing does not occur and, (ii) increase the spawning stock biomass, and (iii) establish criteria for monitoring commercially harvested tautog.

4VAC20-960-20. Definitions.

The following words and terms, when used in this chapter, shall have the following meaning unless the context clearly indicates otherwise.

"Commercial fishing" or "fishing commercially" or "commercial purposes" means fishing by any person where the catch is for sale, barter, or trade or is intended for sale, barter, or trade.

"Commission" means the Marine Resources Commission.

"Land" or "landing" means to move finfish, shellfish, crustaceans, or other marine seafood from the water to the land.

"Snout" means the most forward projection from a fish's head that includes the upper and lower jaw.

"Tautog" means any fish of the species Tautoga onitis.

"Total length" means the length of a fish measured from the most forward projection of the snout, with the mouth closed, to the tip of the longer lobe of the tail (caudal) fin, measured with the tail compressed along the midline, using a straight-line measure, not measured over the curve of the body.

4VAC20-960-45. Recreational fishing season and possession limits.

A. It shall be unlawful for any person fishing with hook and line, rod and reel, spear, gig or other recreational gear to possess more than four tautog. When fishing is from a boat or vessel where the entire catch is held in a common hold or container, the possession limit shall be for the boat or vessel and shall be equal to the number of persons on board legally eligible to fish multiplied by four. The captain or operator of the boat or vessel shall be responsible for any boat or vessel possession limit. Any tautog taken after the possession limit has been reached shall be returned to the water immediately.

B. Possession of any quantity of tautog that exceeds the possession limit described in subsection A of this section shall be presumed to be for commercial purposes.

C. B. The recreational fishing season shall be closed from May 16 through June 30.

D. C. It shall be unlawful for any person fishing recreationally to take, catch, or possess any tautog during any closed recreational fishing season.

4VAC20-960-48. Commercial permitting and tagging requirements.

A. It shall be unlawful for any registered commercial fisherman to take, catch, or possess any tautog without obtaining a valid Tautog Commercial Permit.

B. It shall be unlawful to land or possess for commercial purposes any tautog that has not been identified with a tag issued by the commission for the current calendar year, applied by the following conditions, except as specified in subsections D and E of this section:

1. Tags must be affixed to the bony portion of the gill cover (operculum) of a whole fish such that the tag number faces outward from the body.

2. Processed or filleted tautog must be accompanied by the tags removed from the fish when processed.

C. It shall be unlawful for any dealer to buy, sell, barter, or trade or offer to buy, sell, barter, or trade any untagged tautog.

D. After the last day of February of the current calendar year, it shall be unlawful for any dealer to buy, sell, barter, or trade or offer to buy, sell, barter, or trade any tautog with a tag issued for any previous calendar year, except to the final consumer.

E. Any person, other than the original harvester, may only possess tautog with a tag issued by a state other than Virginia provided that it is for the purpose of resale and is accompanied by a bill of sale that shall include the name of the seller and the permit or license number of the seller if such permit or license is required in the jurisdiction of harvest.

F. Tags are valid only for use by the permittee to whom the tags were allotted. The permittee shall be on board the vessel when tautog are harvested and tags are applied.

G. It shall be unlawful for any person to possess tags on board a vessel during a closed season or that were issued for any year other than the current calendar year.

H. Possession of any quantity of tautog that exceeds the recreational possession limit described in 4VAC20-960-45 shall be presumed to be for commercial purposes. The possession of any untagged tautog shall be prima facie evidence of a violation of this chapter and subject to the provisions of 4VAC20-960-50 and 4VAC20-960-60.

I. It shall be unlawful for a person to possess commercially harvested tautog in a quantity greater than the number of tags in the person's possession. If a permittee violates this section, the entire amount of untagged tautog shall be confiscated or returned to the water.

J. Altering or attempting to alter any tag for the purpose of reuse shall constitute a violation of this chapter.

K. An annual fee of $25 for tags shall be assessed prior to an individual being eligible for a Tautog Commercial Permit.

L. A tautog commercial permittee shall be required to have returned all unused tags from the previous calendar year to the commission by February 15 of the current calendar year. Any unused tags that cannot be returned shall be accounted for by the harvester submitting a notarized affidavit that explains the disposition of the tags. Each individual with any unused tags that are not returned shall be required to pay a processing fee of $25, plus $0.28 per tag.

4VAC20-960-49. Commercial reporting.

A. All permitted commercial harvesters shall report daily harvest of tautog to the commission in accordance with 4VAC20-610, specifying the number of tags used each day on forms provided by the commission. Such reports shall be submitted to the commission no later than the fifth day of the following month.

B. Harvest of tautog from beyond Virginia's tidal waters and sold to a federally permitted dealer shall be reported through the mandatory harvest reporting program as provided by subsection A of this section and is not subject to the exemption in 4VAC20-610-60 K.

4VAC20-960-60. Sanctions.

A. Any person failing to submit any report or account for any unused tags as required by this chapter shall be denied a Tautog Commercial Permit until the person complies with the requirements of 4VAC20-960-48 L and 4VAC20-960-49.

B. It shall be unlawful for any person who has been found guilty of violating any provision of this chapter to receive additional tag distributions as described in 4VAC20-960-48.

C. Any person found guilty of violating any provision of this chapter may have his permit revoked at any time upon review by the commission as provided for in § 28.2-232 of the Code of Virginia.

NOTICE: Forms used in administering the regulation have been filed by the agency. The forms are not being published; however, online users of this issue of the Virginia Register of Regulations may click on the name of a form with a hyperlink to access it. The forms are also available from the agency contact or may be viewed at the Office of the Registrar of Regulations, 900 East Main Street, 11th Floor, Richmond, Virginia 23219.

FORMS (4VAC20-960)

Mandatory Reporting Form (eff. 12/2009)

VA.R. Doc. No. R20-6221; Filed October 23, 2019, 10:56 a.m.
TITLE 9. ENVIRONMENT
STATE WATER CONTROL BOARD
Notice of Effective Date

Title of Regulation: 9VAC25-260. Water Quality Standards (amending 9VAC25-260-140, 9VAC25-260-170).

Statutory Authority: § 62.1-44.15 of the Code of Virginia; Clean Water Act (33 USC § 1251 et seq.); 40 CFR Part 131.

Effective Date: October 21, 2019.

On August 21, 2018, the State Water Control Board adopted revisions to the Water Quality Standards in 9VAC25-260-140 and 9VAC25-260-170. The revisions related to freshwater aquatic life criteria for cadmium and 94 human health criteria in 9VAC25-260-140 and bacteria criteria in 9VAC25-260-170.

The amendments were published as final regulations on June 24, 2019, in Volume 35, Issue 22 of the Virginia Register (35:22 VA.R. 2559-2582 June 24, 2019) to be effective upon the agency filing notice of U.S. Environmental Protection Agency (EPA) approval with the Registrar of Regulations. The State Water Control Board received approval of all of the amendments from the EPA by letter dated October 18, 2019, and filed notice with the Registrar.

Copies are available online at http://www.deq.virginia.gov/Programs/Water/WaterQualityInformationTMDLs, by calling toll free at (800) 592-5482 ext. 4121 or local at (804) 698-4121, or by written request or email request to the agency contact.

Agency Contact: David Whitehurst, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4121, FAX (804) 698-4032, or email david.whitehurst@deq.virginia.gov.

VA.R. Doc. No. R18-2148; Filed October 21, 2019, 2:28 p.m.
TITLE 9. ENVIRONMENT
STATE WATER CONTROL BOARD
Fast-Track Regulation

Title of Regulation: 9VAC25-650. Closure Plans and Demonstration of Financial Capability (amending 9VAC25-650-70, 9VAC25-650-90).

Statutory Authority: §§ 62.1-44.15 and 62.1-44.18:3 and of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 11, 2019.

Effective Date: December 26, 2019.

Agency Contact: Melissa Porterfield, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4238, FAX (804) 698-4019, or email melissa.porterfield@deq.virginia.gov.

Basis: The State Water Control Board is directed by § 62.1-44.18:3 of the Code of Virginia to adopt regulations that require privately owned sewerage systems and sewerage treatment works that discharge more than 1,000 gallons per day and less than 40,000 gallons per day to develop closure plans and provide financial assurance for closure of the sewerage systems or sewage treatment works.

Purpose: This regulation is being amended to revise financial assurance requirements related to the transfer of the permit to a new owner or operator. Currently the previous owner or operator is required to provide financial assurance until the new owner or operator provides financial assurance. The regulation is being amended to require the new owner or operator to provide financial assurance prior to the transfer of the permit. This change is consistent with the requirement for a new facility to provide financial assurance prior to the facility beginning to operate. This change will reduce the regulatory burden on former permit holders by requiring the new owner or operator to provide financial assurance before the permit transfer occurs.

The regulation is also being revised to include a missing word in 9VAC25-650-90.

Rationale for Using Fast-Track Rulemaking Process: The agency conducted a periodic review for this regulation and recommended this regulation be amended to address financial assurance requirements related to the transfer of the permit to a new owner or operator. Currently the previous owner or operator is required to provide financial assurance until the new owner or operator provides financial assurance. The regulation is being amended to require the new owner or operator to provide financial assurance prior to the transfer of the permit. This change is consistent with the requirement for a new facility to provide financial assurance prior to the facility beginning to operate.

This amendment is expected to be noncontroversial since it reduces the regulatory burden on former owners and operators to continue to provide financial assurance after the permit has been transferred to a new owner or operator.  The new owner or operator was previously required to provide financial assurance within six months of the permit transfer. This regulatory change makes the new owner or operator provide financial assurance prior to the permit transfer occurring. This maintains consistency with the requirement for an owner or operator of a new permit to provide financial assurance prior to starting operation of the privately owned sewerage systems and sewerage treatment works.

Substance: The regulation is being amended to require the new owner or operator to provide financial assurance prior to the transfer of the permit. 9VAC25-650-90 is also being amended to include a missing word.

Issues: The primary advantage to the public is protection from closure costs associated with the abandonment of a privately owned sewerage systems and sewerage treatment works that discharge more than 1,000 gallons per day and less than 40,000 gallons per day. The financial assurance provision of this regulation provides funding for the costs to close the facility in the event the facility is abandoned. Former owners and operators would also benefit from this change since they would be no longer be required to maintain financial assurance after they have transferred the permit to another entity.

Requiring financial assurance to be demonstrated by the new owner or operator is consistent with the requirements placed on owners or operators seeking a permit to operate sewerage systems and sewerage treatment works that discharge more than 1,000 gallons per day and less than 40,000 gallons per day.

There are no disadvantages to the public, agency, or Commonwealth.

Small Business Impact Review Report of Findings: This fast-track regulatory action serves as the report of the findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Water Control Board (Board) proposes to revise financial assurance requirements related to the transfer of a Virginia Pollutant Discharge Elimination System (VPDES) permit to a new owner or operator.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Section 9VAC25-650-20 of the regulation states that:

The purpose of this regulation is to require owners or operators of certain privately owned sewerage systems2 that treat sewage from private residences to file with the board a plan to abate, control, remove, or contain any substantial or imminent threat to public health or the environment that is reasonably likely to occur if the facility ceases operations. For the purposes of this regulation, such a plan shall be termed a closure plan. Such plan shall also include the demonstration of financial assurance …

The financial assurance is to ensure that the costs associated with protecting public health and the environment are recovered from the owner or operator in the event that the facility ceases operation. Financial assurance can be demonstrated by one or a combination of the following mechanisms: trust agreement, surety bond, letter of credit, certificate of deposit, corporate financial test, and corporate guarantee.

The current regulation requires that when a transfer of ownership or operational control occurs,

the old owner or operator shall comply with the requirements of this chapter until the new owner or operator has demonstrated that he is complying with the requirements of this chapter. The new owner or operator shall demonstrate compliance with this chapter within six months of the date of the change of ownership or operational control of the facility.

The Board proposes to instead require that the "new owner or operator shall demonstrate compliance with this chapter and the board shall approve the financial mechanism prior to the transfer of the permit." Former owners and operators would benefit from this change since they would no longer be required to maintain financial assurance after they have transferred the permit to another entity. The public would benefit in that there would be assurance prior to the transfer that new owners are financially capable of covering the costs associated with protecting public health and the environment in the event that the facility ceases operation. New owners would have to incur the expense of acquiring a trust agreement, surety bond, letter of credit, certificate of deposit, corporate financial test, or corporate guarantee sooner under the proposed language. However, that could be taken into account in the agreed on price in the sale of the facility.

Businesses and Entities Affected. The proposed amendments potentially affect current owners of the 32 privately owned sewerage systems and sewerage treatment works that discharge more than 1,000 gallons per day and less than 40,000 gallons per day, as well as potential future owners.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments would not likely significantly affect the use and value of private property.

Real Estate Development Costs. The proposed amendments are unlikely to affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendments are unlikely to significantly affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments do not adversely affect businesses.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendments do not adversely affect other entities.

___________________________

2Privately owned sewerage systems subject to the Virginia Pollutant Discharge Elimination System Permit Regulation (9VAC25-31) that treat sewage generated by private residences and discharge more than 1,000 gallons per day and less than 40,000 gallons per day to state waters.

Agency's Response to Economic Impact Analysis: The department has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

The amendments require a new owner or operator of a privately owned sewerage system or sewerage treatment works that discharges more than 1,000 gallons per day and less than 40,000 gallons per day to provide financial assurance prior to the transfer of the permit issued by the State Water Control Board to the new owner or operator.

9VAC25-650-70. Transfer of ownership or permit.

A. If a privately owned sewerage system subject to this regulation is to be sold or if ownership is to be transferred in the normal course of business, the owner or operator shall notify the board, in written form through certified mail, of such intended sale or transfer at least 30 days prior to such sale or transfer. The notification shall provide the full name, address, and telephone number of the person to whom the facility is to be sold or transferred. The notice shall include a written agreement between the existing and the new permittee containing a specific date for transfer of permit responsibilities, coverage, and liabilities between them.

B. Changes in the ownership or operational control of a facility may be made as a minor modification with prior written approval of the board in accordance with 9VAC25-31-380, except as otherwise provided in this section. When a transfer of ownership or operational control occurs, the old owner or operator shall comply with the requirements of this chapter until the new owner or operator has demonstrated that he is complying with the requirements of this chapter. The new owner or operator shall demonstrate compliance with this chapter within six months of the date of the change of ownership or operational control of the facility. new owner or operator shall demonstrate compliance with this chapter and the board shall approve the financial mechanism prior to the transfer of the permit. Upon demonstration to the board by the new owner or operator of compliance with this chapter, the board shall notify the old owner or operator that he or she the old owner or operator no longer needs to comply with this chapter as of the date of demonstration.

9VAC25-650-90. Trust Agreement.

A. An owner or operator of a privately owned sewerage system may satisfy the requirements of this chapter by establishing an irrevocable trust fund that conforms to the requirements of this section and by submitting an originally signed duplicate of the trust agreement to the board. The trustee shall be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal agency or the State Corporation Commission (Commonwealth of Virginia).

B. The trust agreement shall be irrevocable and shall continue until terminated at the written direction of the grantor, the trustee, and the board, or by the trustee and the board if the grantor ceases to exist. Upon termination of the trust, all remaining trust property, less final administration expenses, shall be delivered to the grantor. The wording of the trust agreement shall be identical to the wording as follows, except that instructions in parentheses are to be replaced with the relevant information and the parentheses deleted. The trust agreement shall be accompanied by a formal letter of certification of acknowledgement as specified in this chapter.

TRUST AGREEMENT

Trust agreement, the "Agreement," entered into as of (date) by and between (name of the owner or operator), a (name of state) (insert "corporation," "partnership," "association," "proprietorship," or appropriate identification of type of entity), the "Grantor," and (name of corporate trustee), (insert "Incorporated in the state of ________" or "a national bank"), the "Trustee."

Whereas, the State Water Control Board of the Commonwealth of Virginia has established certain regulations applicable to the Grantor, requiring that an owner or operator of a private sewage treatment facility shall provide assurance that funds will be available when needed for implementation of a closure plan. The attached Schedule A contains the name and address of the facility covered by this trust agreement;

Whereas, the Grantor, acting through its duly authorized officers, has selected the Trustee to be the trustee under this agreement, and the Trustee is willing to act as trustee;

Now, therefore, the Grantor and the Trustee agree as follows:

Section 1. Definitions. As used in this Agreement:

(a) The term "Grantor" means the owner or operator who enters into this Agreement and any successors or assigns of the Grantor.

(b) The term "Trustee" means the Trustee who enters into this Agreement and any successor Trustee.

Section 2. Establishment of Fund.

The Grantor and the Trustee hereby establish a trust fund, the "Fund," for the benefit of the Department of Environmental Quality of the Commonwealth of Virginia. The Grantor and the Trustee intend that no third party have access to the Fund. Payments made by the provider of financial assurance pursuant to the Director of the Department of Environmental Quality's instruction are transferred to the Trustee and are referred to as the Fund, together with all earnings and profits thereon, less any payments or distributions made by the Trustee pursuant to this Agreement. The Fund shall be held by the Trustee, IN TRUST, as hereinafter provided. The Trustee shall not be responsible nor shall it undertake any responsibility for the amount or adequacy of, nor any duty to collect from the Grantor as provider of financial assurance, any payments necessary to discharge any liability of the Grantor established by the State Water Control Board.

Section 3. Payment for Implementation of the Closure Plan.

The Trustee shall make payments from the Fund as the Director, Department of Environmental Quality shall direct, in writing, to provide for the payment of the costs of implementation of the closure plan for the facility covered by the financial assurance mechanism identified in this Agreement.

The Trustee shall reimburse the Grantor, or other persons as specified by the State Water Control Board, from the Fund for implementation of the closure plan in such amounts as the Director of the Department of Environmental Quality shall direct in writing. In addition, the Trustee shall refund to the Grantor such amounts as the Director of the Department of Environmental Quality specifies in writing. Upon refund, such funds shall no longer constitute part of the Fund as defined herein.

Section 4. Payments Comprising the Fund.

Payments made to the Trustee for the Fund shall consist of cash and securities acceptable to the Trustee.

Section 5. Trustee Management.

The Trustee shall invest and reinvest the principal and income of the Fund and keep the Fund invested as a single fund, without distinction between principal and income, in accordance with general investment policies and guidelines which the Grantor may communicate in writing to the Trustee from time to time, subject, however, to the provisions of this Section. In investing, reinvesting, exchanging, selling, and managing the Fund, the Trustee shall discharge his duties with respect to the trust fund solely in the interest of the beneficiaries and with the care, skill, prudence, and diligence under the circumstances then prevailing which persons of prudence, acting in a like capacity and familiar with such matters, would use in the conduct of an enterprise of a like character and with like aims; except that:

(i) Securities or other obligations of the Grantor, or any other operator of the facility, or any of their affiliates as defined in the Investment Company Act of 1940, as amended, 15 USC § 80a-2(a), shall not be acquired or held, unless they are securities or other obligations of the federal or a state government;

(ii) The Trustee is authorized to invest the Fund in time or demand deposits of the Trustee, to the extent insured by an agency of the federal or state government; and

(iii) Trustee is authorized to hold cash awaiting investment or distribution uninvested for a reasonable time and without liability for the payment of interest thereon.

Section 6. Commingling and Investment.

The Trustee is expressly authorized in its discretion:

(a) To transfer from time to time any or all of the assets of the Fund to any common, commingled, or collective trust fund created by the Trustee in which the Fund is eligible to participate, subject to all of the provisions thereof, to be commingled with the assets of other trusts participating therein; and

(b) To purchase shares in any investment company registered under the Investment Company Act of 1940, 15 USC § 80a-1 et seq., including one which may be created, managed, underwritten, or to which investment advice is rendered or the shares of which are sold by the Trustee. The Trustee may vote such shares in its discretion.

Section 7. Express Powers of Trustee.

Without in any way limiting the powers and discretions conferred upon the Trustee by the other provisions of this Agreement or by law, the Trustee is expressly authorized and empowered:

(a) To sell, exchange, convey, transfer, or otherwise dispose of any property held by it, by public or private sale. No person dealing with the Trustee shall be bound to see to the application of the purchase money or to inquire into the validity or expediency of any such sale or other disposition;

(b) To make, execute, acknowledge, and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted;

(c) To register any securities held in the Fund in its own name or in the name of a nominee and to hold any security in bearer form or in book entry, or to combine certificates representing such securities with certificates of the same issue held by the Trustee in other fiduciary capacities, or to deposit or arrange for the deposit of such securities in a qualified central depository even though, when so deposited, such securities may be merged and held in bulk in the name of the nominee of such depository with other securities deposited therein by another person, or to deposit or arrange for the deposit of any securities issued by the United States Government, or any agency or instrumentality thereof, with a Federal Reserve bank, but the books and records of the Trustee shall at all times show that all such securities are part of the Fund;

(d) To deposit any cash in the Fund in interest-bearing accounts maintained or savings certificates issued by the Trustee, in its separate corporate capacity, or in any other banking institution affiliated with the Trustee, to the extent insured by an agency of the federal or state government; and

(e) To compromise or otherwise adjust all claims in favor of or against the Fund.

Section 8. Taxes and Expenses.

All taxes of any kind that may be assessed or levied against or in respect of the Fund and all brokerage commissions incurred by the Fund shall be paid from the Fund. All other expenses incurred by the Trustee in connection with the administration of this Trust, including fees for legal services rendered to the Trustee, the compensation of the Trustee to the extent not paid directly by the Grantor, and all other proper charges and disbursements of the Trustee shall be paid from the Fund.

Section 9. Advice of Counsel.

The Trustee may from time to time consult with counsel, who may be counsel to the Grantor, with respect to any questions arising as to the construction of this Agreement or any action to be taken hereunder. The Trustee shall be fully protected, to the extent permitted by law, in acting upon the advice of counsel.

Section 10. Trustee Compensation.

The Trustee shall be entitled to reasonable compensation for its services as agreed upon in writing from time to time with the Grantor.

Section 11. Successor Trustee.

The Trustee may resign or the Grantor may replace the Trustee, but such resignation or replacement shall not be effective until the Grantor has appointed a successor trustee and this successor accepts the appointment. The successor trustee shall have the same powers and duties as those conferred upon the Trustee hereunder. Upon the successor trustee's acceptance of the appointment, the Trustee shall assign, transfer, and pay over to the successor trustee the funds and properties then constituting the Fund. If for any reason the Grantor cannot or does not act in the event of the resignation of the Trustee, the Trustee may apply to a court of competent jurisdiction for the appointment of a successor trustee or for instructions. The successor trustee shall specify the date on which it assumes administration of the trust in writing sent to the Grantor and the present Trustee by certified mail 10 days before such change becomes effective. Any expenses incurred by the Trustee as a result of any of the acts contemplated by this Section shall be paid as provided in Section 9.

Section 12. Instructions to the Trustee.

All orders, requests, and instructions by the Grantor to the Trustee shall be in writing, signed by such persons as are designated in the attached Schedule B or such other designees as the Grantor may designate by amendment to Schedule B. The trustee shall be fully protected in acting without inquiry in accordance with the Grantor's orders, requests, and instructions. All orders, requests and instructions by the State Water Control Board to the Trustee shall be in writing, signed by the Director of the Department of Environmental Quality, and the Trustee shall act and shall be fully protected in acting in accordance with such orders, requests, and instructions. The Trustee shall have the right to assume, in the absence of written notice to the contrary, that no event constituting a change or a termination of the authority of any person to act on behalf of the Grantor or the State Water Control Board hereunder has occurred. The Trustee shall have no duty to act in the absence of such orders, requests, and instructions from the Grantor and/or the State Water Control Board, except as provided for herein.

Section 13. Irrevocability and Termination.

Subject to the right of the parties to amend this Agreement as provided in Section 17, this Trust shall be irrevocable and shall continue until terminated at the written direction of the Grantor and the Trustee, or by the Trustee and the Director of the Department of Environmental Quality, if the Grantor ceases to exist. Upon termination of the Trust, all remaining trust property, less final trust administration expenses, shall be delivered to the Grantor.

Section 14. Immunity and Indemnification.

The Trustee shall not incur personal liability of any nature in connection with any act or omission, made in good faith, in the administration of this Trust, or in carrying out any directions by the Grantor or the State Water Control Board issued in accordance with this Agreement. The Trustee shall be indemnified and saved harmless by the Grantor, from and against any personal liability to which the Trustee may be subjected by reason of any act or conduct in its official capacity, including all expenses reasonably incurred in its defense in the event the Grantor fails to provide such defense.

Section 15. Choice of Law.

This Agreement shall be administered, construed, and enforced according to the laws of the Commonwealth of Virginia.

Section 16. Amendment of Agreement.

This Agreement may be amended by an instrument executed in writing executed by the Grantor, the Trustee, and the Director of the Department of Environmental Quality, Commonwealth of Virginia, or by the Trustee and the Director of the Department of Environmental Quality, Commonwealth of Virginia, if the Grantor ceases to exist.

Section 17. Annual Valuation.

The Trustee will annually, at the end of the month coincident with or preceding the anniversary date of establishment of the Fund, furnish the Grantor and to the Director of the Department of Environmental Quality, Commonwealth of Virginia, a statement confirming the value of the Trust. Any securities in the Fund will be valued at market value as of no more than 30 days prior to the date of the statement. The failure of the Grantor to object in writing to the Trustee within 90 days after the statement has been furnished to the Grantor and the Director of the Department of Environmental Quality, Commonwealth of Virginia will constitute a conclusively binding assent by the Grantor, barring the Grantor from asserting any claim or liability against the Trustee with respect to matters disclosed in the statement.

Section 18. Interpretation.

As used in this Agreement, words in the singular include the plural and words in the plural include the singular. The descriptive headings for each section of this Agreement shall not affect the interpretation or the legal efficacy of this Agreement.

In Witness whereof the parties have caused this Agreement to be executed by their respective officers duly authorized and their corporate seals (if applicable) to be hereunto affixed and attested as of the date first above written. The parties below certify that the wording of this Agreement is identical to the wording specified in 9VAC25-650-90 B as such regulations were constituted on the date written above.

(Signature of Grantor)

(Name of the Grantor)

(Title)

Attest:

(Signature of Trustee)

(Name of the Trustee)

(Title)

(Seal)

(Signature of Witness)

(Name of Witness)

(Title)

(Seal)

CERTIFICATE OF ACKNOWLEDGMENT

State of ______________________________

County of ______________________________

On this (date), before me personally came (owner's or operator's representative) to me known, who, being by me duly sworn, did depose and say that she/he resides at (address), that she/he is (title) of (corporation), the corporation described in and which executed the above instrument; that she/he knows the seal of said corporation; that the seal affixed to such instrument is such corporate seal; that is was so affixed by order of the Board of Directors of said corporation; and that she/he signed her/his name thereto by like order.

(Signature of Notary Public)

(Name of Notary Public)

My Commission expires:___________________

SCHEDULE A

Name of Facility

Address of facility

Closure Cost Estimate

VPDES Permit Number

C. The irrevocable trust fund, when established, shall be funded for the full required amount of coverage, or funded for part of the required amount of coverage and used in combination with other mechanism(s) mechanisms that provide the remaining required coverage. Schedule A of the trust agreement shall be updated within 60 days after a change in the amount of the approved cost estimate covered by the agreement.

D. If the value of the trust fund is greater than the required amount of coverage, the owner or operator may submit a written request to the board for release of the excess.

E. If other financial assurance as specified in this chapter is substituted for all or part of the trust fund, the owner or operator may submit a written request to the Director director for release of the excess.

F. Within 60 days after receiving a request from the owner or operator for release of funds as specified in subsection D or E of this section, the board will instruct the trustee to release to the owner or operator such funds, if any, that the board determines to be eligible for release and specifies in writing.

G. Whenever the cost estimate changes, the owner or operator shall compare the new estimate with the trustee's most recent annual valuation of the trust fund. If the value of the fund is less than the amount of the new cost estimate, the owner or operator shall, within 10 days of the change in the approved cost estimate, deposit a sufficient amount into the trust so that its value after payment at least equals the amount of the new estimate, or obtain other financial assurance as specified in this article to cover the difference. If the value of the trust fund is greater than the total amount of the cost estimate, the owner or operator may submit a written request to the board for release of the amount that is in excess of the cost estimate.

H. After beginning implementation of the closure plan, an owner or operator or any other person authorized to implement the closure plan, may request reimbursement for implementation expenditures by submitting itemized bills to the board. Within 60 days after receiving bills for plan implementation activities, the board shall instruct the trustee to make reimbursements in those amounts as the board determines are in accordance with the closure plan or are otherwise justified.

I. The board shall agree to terminate the trust when:

1. The owner or operator substitutes alternate financial assurance as specified in this article; or

2. The board notifies the owner or operator that he is no longer required to maintain financial assurance for the implementation of the closure plan.

VA.R. Doc. No. R20-5633; Filed October 22, 2019, 10:26 a.m.
TITLE 11. GAMING
VIRGINIA RACING COMMISSION
Final Regulation

REGISTRAR'S NOTICE: The Virginia Racing Commission is claiming an exemption from the Administrative Process Act pursuant to § 2.2-4002 A 17 of the Code of Virginia regarding the promulgation of technical regulations governing actual live horse racing at race meetings licensed by the commission and § 2.2-4002 B 12 of the Code of Virginia, which exempts agency action relating to instructions for application or renewal of a license, certificate, or registration required by law.

Title of Regulation: 11VAC10-60. Participants (amending 11VAC10-60-15).

Statutory Authority: § 59.1-369 of the Code of Virginia.

Effective Date: January 1, 2020.

Agency Contact: Kimberly Mackey, Regulatory Coordinator, Virginia Racing Commission, 5707 Huntsman Road, Suite 201-B, Richmond, VA 23250, telephone (804) 966-7406, or email kimberly.mackey@vrc.virginia.gov.

Summary:

The amendments eliminate horse racing permit fees in 11VAC10-60-15.

11VAC10-60-15. Fee schedule for permit holders.

Type of Permit

Fee

Apprentice Jockey

$25 $0

Assistant General Manager

$25 $0

Assistant Racing Secretary

$25 $0

Assistant Starter

$25 $0

Assistant Trainer

$25 $0

Authorized Agent

$25 $0

Claims Clerk

$25 $0

Clerk of Scales

$25 $0

Clerk of the Course

$25 $0

Clocker

$25 $0

Concessionaire/Vendor

$25 $0

Concessionaire/Vendor Employee

$25 $0

Custodian of Jockeys' Room

$25 $0

Director of Security

$25 $0

Driver

$25 $0

Entry Clerk

$25 $0

Exercise Rider

$25 $0

Farrier

$25 $0

Foreman

$25 $0

Gap Attendant

$25 $0

General Manager

$25 $0

Groom/Hotwalker

$10 $0

Horse Identifier

$25 $0

Horsemen's Bookkeeper

$25 $0

Horse Owner

$25 $0

Jockey

$25 $0

Jockey Agent

$25 $0

Licensee-Administrative Employee

$25 $0

Licensee-Marketing Employee

$25 $0

Licensee-Medical Employee

$25 $0

Licensee-Operations Employee

$25 $0

Licensee-Plant Employee

$25 $0

Licensee-Staff Employee

$25 $0

Mutuel Clerk

$25 $0

Mutuel Manager

$25 $0

Outrider

$25 $0

Paddock Judge

$25 $0

Patrol Judge

$25 $0

Photo-Finish Camera Operator

$25 $0

Placing Judge

$25 $0

Pony Rider

$25 $0

Program Director

$25 $0

Racing Secretary

$25 $0

Security Officer

$25 $0

Stable Name

$25 $0

Stall Superintendent

$25 $0

Starter

$25 $0

Timer

$25 $0

Track Superintendent

$25 $0

Trainer

$25 $0

Trainer/Driver (Harness Racing)

$25 $0

Valet

$25 $0

Veterinarian (Licensee)

$25 $0

Veterinarian (Private Practice)

$25 $0

Video Patrol Personnel

$25 $0

VA.R. Doc. No. R20-6181; Filed October 10, 2019, 10:42 a.m.
TITLE 12. HEALTH
STATE BOARD OF HEALTH
Final Regulation

REGISTRAR'S NOTICE: The State Board of Health is claiming an exemption from Article 2 of the Administrative Process Act in accordance with § 2.2-4006 A 4 a of the Code of Virginia, which excludes regulations that are necessary to conform to changes in Virginia statutory law or the appropriation act where no agency discretion is involved. The State Board of Health will receive, consider, and respond to petitions by any interested person at any time with respect to reconsideration or revision.

Title of Regulation: 12VAC5-80. Regulations for Administration of the Virginia Hearing Impairment Identification and Monitoring System (amending 12VAC5-80-10, 12VAC5-80-80, 12VAC5-80-85, 12VAC5-80-90; adding 12VAC5-80-150).

Statutory Authority: § 32.1-64.1 of the Code of Virginia.

Effective Date: September 1, 2020.

Agency Contact: Robin Buskey, Policy Analyst, Virginia Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 864-7253, or email robin.buskey@vdh.virginia.gov.

Summary:

As required by Chapter 423 of the 2019 Acts of Assembly, the amendments require hospitals and other birthing centers to screen for congenital cytomegalovirus in newborns who fail the newborn hearing screen and include changing the notification time for results to the infant's primary care provider and the department to one week after birth.

12VAC5-80-10. Definitions.

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

"ABR" means an objective, electrophysiologic measurement of the brainstem's response to acoustic stimulation of the ear.

"At risk" means considered to be in a status with a significant probability of having or developing hearing loss as a result of the presence of one or more factors identified or manifested at birth.

"Audiological evaluation" means those physiologic and behavioral procedures required to evaluate and diagnose hearing status.

"Audiologist" means an audiologist as defined in § 54.1-2600 of the Code of Virginia.

"Board" means the State Board of Health.

"CDC" means the Centers for Disease Control and Prevention.

"CMV" means cytomegalovirus infection.

"Chief medical officer" means the highest position of authority on the medical staff of the hospital or other birthing place or center as defined in the organization's bylaws or applicable governance structure.

"Child" means any person from birth to 18 years of age.

"Commissioner" means the State Health Commissioner, his duly designated officer, or agent.

"Congenital cytomegalovirus" or "cCMV" means when an infant is born with cytomegalovirus infection.

"Department" means the Virginia Department of Health.

"Discharge" means release from the hospital after birth to the care of the parent or guardian.

"EHDI" means early hearing detection and intervention.

"Failed newborn hearing screening" means the final newborn hearing screening that resulted in a refer or fail in one or both ears prior to discharge from hospital or other birthing place or center.

"Family-to-family support" means the provision of information and peer support among families having experience with family members having hearing loss.

"Guardian" means a parent-appointed, court-appointed, or clerk-appointed guardian of the person.

"Hearing screening" means an objective physiological measure to be completed in order to determine the likelihood of hearing loss.

"Hospital" means any facility as defined in § 32.1-123 of the Code of Virginia.

"Infant" means a child under the age of one year.

"Neonatal intensive care services" means those services provided by a hospital's newborn services that are designated as either specialty level or subspecialty level as defined in 12VAC5-410-443 B 3 and B 4 of the Regulations for the Licensure of Hospitals in Virginia.

"Newborn" means an infant who is 28 days old or less.

"Newborn services" means care for infants in one or more of the service levels designated in 12VAC5-410-443 B of the Regulations for the Licensure of Hospitals in Virginia.

"OAE" means an objective, physiologic response from the cochlea. This term may include transient evoked otoacoustic emissions and distortion product otoacoustic emissions.

"Other birthing place or center" means a place or facility outside of a hospital that provides maternity services.

"Parent" means a biological or parent, adoptive parent, or a stepparent.

"Part C" means the state early intervention services program that provides medically necessary speech and language therapy, occupational therapy, physical therapy, and assistive technology services and devices for children from birth to age three who are eligible for services under Part C of the Individuals with Disabilities Education Act (20 USC §§ 1431-1444) and Virginia law.

"Primary health care provider" means the person to whom the infant will go for primary health care following hospital discharge.

"Resident" means an individual who resides within the geographical boundaries of the Commonwealth.

"Risk indicator" means a factor known to place an infant at increased risk for being born with or developing a hearing loss.

"Title V" means the U.S. Department of Health and Human Services, Health Resources and Services Administration, Maternal and Child Health Services Block Grant (Title V (42 USC 701 et seq.) of the Social Security Act).

"Virginia Hearing Impairment Identification and Monitoring System" means a coordinated and comprehensive group of services including education; screening; follow up follow-up; diagnosis; appropriate early intervention including treatment, therapy, training, and education; and program evaluation managed by the department's Virginia Early Hearing Detection and Intervention Program for safeguarding the health of children born in Virginia.

12VAC5-80-80. Responsibilities of the chief medical officer of hospitals.

The chief medical officer of a hospital providing newborn services or his designee shall:

1. Cause all infants to be given a hearing screening test prior to discharge after birth as appropriate for the level of newborn services provided as defined in 12VAC5-410-443 B of the Regulations for the Licensure of Hospitals in Virginia.

a. Infants in general or intermediate newborn services shall have both ears screened at the same time for hearing using either ABR or OAE testing prior to discharge after birth, but no later than one month of age.

b. Infants in neonatal intensive care services who receive this level of newborn service care for more than five days shall have both ears screened at the same time using ABR testing prior to discharge after birth or transfer to a lower level of newborn services. Infants should receive newborn hearing screening as early as development or medical stability will permit such screening. The hearing screening performed for infants requiring neonatal intensive care services for more than five days using ABR testing shall be reported as the initial hearing screen regardless of whether the infant is transferred to another lower level of newborn services within the same facility or to another facility.

c. Infants in neonatal intensive care services who receive this level of newborn service care for five days or less shall have both ears screened at the same time for hearing using either ABR or OAE testing prior to discharge after birth, but no later than one month of age.

2. Identify all infants who fail hearing screening in one or both ears.

a. Infants who fail hearing screening in one or both ears using ABR testing shall not be rescreened using OAE testing. These infants shall be referred for an audiological evaluation.

b. Infants who fail hearing screening in one or both ears using OAE testing may be rescreened using ABR testing. If the infant fails subsequent ABR testing in one or both ears, the infant shall be referred for an audiological evaluation.

3. Identify all infants not receiving an appropriate hearing screening test.

a. For infants who did not receive a hearing screening test due to transfer to another facility, written notification shall be made upon transfer to the health care provider in charge of the infant's care that testing was not completed. The hospital discharging the infant after birth is responsible for conducting an appropriate hearing screening test, except for infants who have been transferred to a lower level of newborn service care from another facility providing neonatal intensive care services to that infant for more than five days.

b. For infants who did not receive a hearing screening test prior to discharge after birth, inform the parent prior to discharge of the need for hearing screening and provide a mechanism by which screening can occur at no additional cost to the family.

c. For infants who did not receive screening due to refusal by the parent or guardian because the screening conflicts with religious convictions, documentation shall be made in the medical record.

4. Cause all infants to be assessed for risk indicators associated with hearing loss prior to discharge after birth as defined in 12VAC5-80-75. For infants who are found to have one or more risk indicators associated with hearing loss, inform the parent of the need for a diagnostic audiological assessment by 24 months of age.

5. Provide written information to the parent or guardian of each infant that includes purposes and benefits of newborn hearing screening, risk indicators of hearing loss, procedures used for hearing screening, results of the hearing screening, recommendations for further testing, where further testing can be obtained, and contact information for the Virginia EHDI program;

6. Notify the infant's primary health care provider, within two weeks one week of discharge after birth, of (i) the status of the hearing screening including if the infant was not tested, (ii) procedures used for hearing screening, (iii) identified risk indicators associated with hearing loss as defined in 12VAC5-80-75, (iv) the results of the hearing screening, and (v) the recommendations for further testing in writing or through an electronically secure method that meets all applicable state and federal privacy laws;

7. Provide the department with information, as required by the board pursuant to § 32.1-64.1 F of the Code of Virginia and in a manner devised by the department, which may be electronic, on the hearing screening and risk indicator status of infants born at their hospital. This information shall be provided within two weeks one week of discharge after birth unless otherwise stated and includes, but may not be limited to:

a. Demographic information on infants including name, date of birth, race, ethnicity, and gender;

b. Primary contact information including address, telephone number, and relationship type;

c. Primary health care provider name, address, and telephone number;

d. Risk indicators identified as defined in 12VAC5-80-75;

e. Special circumstances regarding infants as needed by the department to provide follow-up;

f. Screening methodology used, date screened, and both right and left ear results;

g. Screening status for pass with risk indicator, fail, unable to test, refusal, and inconclusive results;

h. Status of infants not screened prior to discharge that includes, but may not be limited to, infants who were transferred to other facilities and parents who refused screening;

i. Hearing rescreening information including date, type of screening methodology used, results in both left and right ears, and further recommendations within two weeks after the hospital rescreening date; and

j. Confirmatory data on the status of all infants born in the hospital facility. The department shall receive confirmation that infants not reported as passed with risk, failed, transferred, refused testing, not tested prior to discharge, expired, or other final disposition have had a negative assessment for risk indicators and that physiological hearing screening was conducted with passing results in both ears within 30 days after birth; and

k. cCMV screening results if performed as defined in 12VAC5-80-150.

8. Report to the department, on a yearly basis, hospital specific information including (i) the test procedures used by the newborn hearing screening program, (ii) the name of the program director, (iii) the name of the advising audiologist, (iv) equipment calibration records, (v) screening protocols, and (vi) referral procedures;

9. Develop written policies and procedures to implement hearing screening in their the chief medical officer's facility in accordance with 12VAC5-80 including separate protocols for specialty and subspecialty newborn services; and

10. Ensure that training of staff on newborn hearing screening test procedures, follow up follow-up, and reporting requirements is implemented in a way that an adequately trained and knowledgeable workforce is maintained to conduct hearing screening program requirements.

12VAC5-80-85. Responsibilities of other birthing places or centers.

The chief medical officer of other birthing places or centers or his designee or the attending practitioner shall:

1. Cause all infants to be assessed for risk indicators associated with hearing loss as defined in 12VAC5-80-75;

2. Provide written information to the parent or guardian of each infant that includes purposes and benefits of newborn hearing screening, risk indicators for hearing loss, procedures used for hearing screening, providers where hearing screening can be obtained, and contact information for the Virginia EHDI program;

3. Notify the infant's primary health care provider, within two weeks one week after birth, of (i) the status of the hearing screening including if the infant was not tested, (ii) identified risk indicators associated with hearing loss as defined in 12VAC5-80-75, and (iii) the recommendations for testing in writing or through an electronically secure method that meets all applicable state and federal privacy laws; and

4. Provide the department with information, as required by the board pursuant to § 32.1-64.1 F of the Code of Virginia and in a manner devised by the department on the hearing screening and risk indicator status of infants born at the other birthing place or center. This information shall be provided within two weeks one week after birth unless otherwise stated and includes, but may not be limited to:

a. Demographic information on infants including name, date of birth, race, ethnicity, and gender;

b. Primary contact information including address, telephone number, and relationship type;

c. Primary health care provider name, address, and telephone number;

d. Risk indicators identified as defined in 12VAC5-80-75;

e. Special circumstances regarding infants as needed by the department to provide follow-up;

f. Screening methodology used, date screened, and both right and left ear results if applicable;

g. Screening status for pass with risk indicator, failures, unable to test, refusals, and inconclusive results if applicable;

h. Status of infants not screened that includes, but may not be limited to, infants who were transferred to other facilities and parents who refused screening;

i. Hearing rescreening information including date, type of screening methodology used, results in both left and right ears, and further recommendations within two weeks after the rescreening date if applicable; and

j. Confirmatory data on the status of all infants born in the birthing place or center. The department shall receive confirmation that infants not reported with a screening status have had a negative assessment for risk indicators and have been referred for a hearing screening; and

k. cCMV screening results if performed as defined in 12VAC5-80-150.

12VAC5-80-90. Scope and content of Virginia Early Hearing Detection and Intervention Program.

A. The mission of the Virginia EHDI program is to identify hearing loss at the earliest possible age and to assure that appropriate early intervention services are received to reduce the risk of developmental delays.

B. The scope of the Virginia EHDI program shall include the following:

1. Provide hospitals and other birthing places or centers with a secure reporting system, which may be electronic, that meets all applicable federal and state privacy laws. This electronic system may include existing demographic data captured by other department population-based systems and the commissioner may authorize hospitals required to report to view existing data to facilitate accurate reporting and increase the department's ability to conduct successful follow up follow-up and identify infants at risk for hearing loss pursuant to § 32.1-127.1:04 of the Code of Virginia;

2. Collect, maintain and evaluate hospital newborn hearing screening data in a database including, but not limited to, initial screening, risk indicators, rescreening, and diagnostic audiological evaluations, in a secure data management information system;

3. Provide follow-up of results of screening for cCMV and for infants whose results indicate screening failure, identified risk indicators, inconclusive or missing results, or other circumstances requiring follow up. Follow-up includes, but is not limited to:

a. Communicating with the parent or guardian for those infants who failed the hearing screening, those who were not screened, and those who are at risk for progressive hearing loss in order to advise of the need for audiological services as well as to provide information on locating an approved center that provides diagnostic audiological services or a licensed audiologist;

b. Communicating with audiologists, hospitals, other birthing places or centers, primary health care providers, and others as needed to ascertain follow up status and receive results of audiological evaluations and intervention referrals, including Part C services;

c. Communicating with the parent or guardian for any child found to have a hearing loss in order to provide information about hearing loss and appropriate resources including family-to-family support and referral to the Part C program; and

d. Communicating to the Part C program regarding any child found to have hearing loss in order to facilitate early intervention services;

4. Provide training and technical assistance to hospitals and other birthing places or centers;

5. Develop and disseminate protocols for hospitals, audiologists, and primary health care providers;

6. Develop and disseminate parent education materials;

7. Maintain an approved list of audiological providers meeting program criteria;

8. Evaluate Virginia Hearing Impairment Identification and Monitoring System components, including but not limited to screening, referral and follow-up rates, referral mechanisms and tracking indicators;

9. Communicate critical performance data to hospitals and other birthing places or centers on a quarterly basis; and

10. Collect and report data required annually for Title V national performance measures, CDC national EHDI goals, and other funding sources as needed that measure how well the system functions.

C. Title V national performance measures and the CDC national EHDI goals, as required by the Government Performance and Results Act (GPRA; Public Law Pub. L. 103-62), shall be used to establish newborn hearing screening goals. The goals are:

1. All infants who are born in Virginia hospitals shall be screened for hearing loss prior to hospital discharge. Residents of Virginia who do not pass screening, do not receive screening, or who have an identified risk indicator shall receive appropriate evaluation, diagnostic, follow up follow-up, and early intervention services. Infants who are not residents of Virginia and who do not pass screening, do not receive screening, or who have an identified risk indicator will be referred to their state of residence for appropriate evaluation, diagnostic, follow up, and early intervention services;

2. All infants born in Virginia shall receive a hearing screening prior to one month of age;

3. Infants who are referred shall receive a diagnostic audiological evaluation before three months of age; and

4. All infants identified with a hearing loss shall receive appropriate early intervention services before six months of age.

The goals shall change as needed to be consistent with federally required performance measures.

12VAC5-80-150. Screening for congenital cytomegalovirus.

A. If a newborn has a failed newborn hearing screening, the discharging hospital or other birthing center shall collect and submit a sample for cCMV testing prior to discharge. If the newborn is under the care of a specialty level or subspecialty level nursery, the cCMV screening shall be performed in accordance with the protocols.

To ensure full implementation of cCMV testing, the department may establish contracts with a designated testing laboratory to ensure testing, and the established contracts shall comply with all federal assurances.

B. The department shall develop or approve and publish informational materials for the general public, healthcare providers, women who may become pregnant, expectant parents, and parents of infants regarding:

1. The incidence of CMV;

2. The transmission and prevention of CMV to pregnant women and women who may become pregnant;

3. Birth defects caused by cCMV;

4. Methods of diagnosing cCMV;

5. Potential benefits of screening for and diagnosis of cCMV;

6. Available methods of treating cCMV; and

7. Resources available for families of children born with cCMV.

C. Healthcare providers providing prenatal care are encouraged to provide patients with information about cCMV.

D. Birthing facilities providing care to an infant who was screened for cCMV are required to report to the Department of Health identification and monitoring system within one week of discharge.

VA.R. Doc. No. R20-6070; Filed October 22, 2019, 10:22 a.m.
TITLE 12. HEALTH
STATE BOARD OF HEALTH
Fast-Track Regulation

Title of Regulation: 12VAC5-90. Regulations for Disease Reporting and Control (amending 12VAC5-90-10, 12VAC5-90-80, 12VAC5-90-90, 12VAC5-90-103, 12VAC5-90-107, 12VAC5-90-140, 12VAC5-90-215, 12VAC5-90-225, 12VAC5-90-280, 12VAC5-90-370).

Statutory Authority: §§ 32.1-12, 32.1-35, and 32.1-42 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 11, 2019.

Effective Date: December 26, 2019.

Agency Contact: Kristin Collins, Policy Analyst, Office of Epidemiology, Virginia Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 864-7298, or email kristin.collins@vdh.virginia.gov.

Basis: Chapter 2 of Title 32.1 of the Code of Virginia, §§ 32.1-12 and 32.1-35 through 32.1-73, contains mandatory language authorizing the State Board of Health to promulgate the regulations.

Specifically, § 32.1-35 directs the Board of Health to promulgate regulations specifying which diseases occurring in the Commonwealth are to be reportable and the method by which they are to be reported.

Further, § 32.1-42 of the Code of Virginia authorizes the Board of Health to promulgate regulations and orders to prevent a potential emergency caused by a disease dangerous to public health. The Board of Health is empowered to adopt such regulations as are necessary to carry out provisions of laws of the Commonwealth administered by the state health commissioner by § 32.1-12 of the Code of Virginia

Purpose: The changes are essential to protect the health and safety of citizens because the changes will improve the ability of the Virginia Department of Health (VDH) to conduct surveillance and implement disease control for conditions of public health concern. The changes will position the agency to better detect and respond to these illnesses to protect the health of the public.

Rationale for Using Fast-Track Rulemaking Process: The impetus for this regulatory action is a board decision to bring the regulations into compliance with recent changes in the field of communicable disease detection and control and to provide greater flexibility with respect to reporting requirements.

This regulatory action is being promulgated as a fast-track rulemaking action because the changes are expected to be noncontroversial. The changes assure timelier reporting of diseases while at the same time reducing the overall burden of disease reporting.

Substance: Amendments to current regulations:

1. Add, remove, and update definitions to enhance clarity;

2. Specify new timelines for submission of isolates or specimens for state public health laboratory testing;

3. Remove the list of isolates or specimens that must be forwarded for public health laboratory testing from 12VAC5-90-90 because the list was added to 12VAC5-90-80 in a separate regulatory action effective November 14, 2018;

4. Remove the requirement that physicians and directors of medical care facilities submit weekly counts of cases of influenza;

5. Replace reporting by way of the Form Epi-1, Confidentiality Morbidity Report, with reporting through the online morbidity reporting portal of VDH;

6. Add language that states that if a laboratory ascertains that the reference laboratory that tests a specimen reports to VDH electronically, then those reference laboratory findings do not need to be reported by the laboratory of origin;

7. Add language that clarifies that if a facility director reports on behalf of the laboratory, the laboratory is still responsible for submitting isolates or specimens for public health testing unless the laboratory has submitted an exemption request that has been approved by the department, thereby providing a process for opting out of the specimen forwarding requirement;

8. Remove language referencing the commissioner's role in enforcement of isolation and quarantine to conform to the Code of Virginia;

9. Modify language to refer only to medications that are available in the United States for the treatment of ophthalmia neonatorum;

10. Clarify that confirmatory testing is not required for blood lead levels that are below the Centers for Disease Control and Prevention (CDC) reference range on screening test;

11. Limit the reporting of select agents to only an annual report and those scenarios in which such agents are released, lost, or stolen; and

12. Require that health care facilities share with VDH any data they supply to CDC as a result of a requirement of the Centers for Medicare and Medicaid Services and not limited to the Hospital Inpatient Quality Reporting Program of that agency.

Issues: The primary advantages to the public are the improved ability of the agency to control the risk of disease in the community based on timelier reporting through the VDH online morbidity reporting portal as well as removing the requirement to report weekly influenza counts or to report routine, nonemergency changes in select agent inventory.

The primary advantage to the agency is that the proposed changes improve the focus of surveillance and ability of VDH to conduct surveillance and implement disease control for conditions of public health concern in a timely manner. The changes will position the agency to better detect and respond to these illnesses to protect the health of the public.

No disadvantages to the public or the agency have been identified.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Board of Health (Board) proposes to: 1) reduce the required time within which laboratories must submit specimens to the Division of Consolidated Laboratory Services when specified diseases are detected, 2) amend the frequency of influenza reporting, 3) require laboratories to submit results of tests for tuberculosis infection, 4) change the required method of reporting morbidity (electronic rather than paper), 5) eliminate redundant reporting, 6) amend one of the criteria for testing a child's blood level, and 7) make several clarifying amendments.

Background. The Regulations for Disease Reporting and Control provide information about the process and procedures for reporting diseases to the Virginia Department of Health (VDH), including what diseases must be reported, who must report them and other details related to reporting and disease control.

Estimated Benefits and Costs. Under the current regulation, when a laboratory identifies evidence of any of numerous conditions listed in the regulation, it must submit the initial isolate (preferred) or other initial specimen to the Division of Consolidated Laboratory Services within seven days of identification. The Board proposes to instead require that the initial isolate be submitted within five days or the clinical specimen within two days of a positive result.

Under the current regulation, each individual case of influenza does not need to be reported to VDH (only the number of cases). Under the proposed regulation, each individual confirmed case of influenza would need to be reported to VDH.

The Board also proposes to newly require that laboratories submit results of tests for tuberculosis infection. VDH does not believe that this will require significant additional staff time. As the majority of major hospital systems and commercial labs in Virginia report to VDH electronically, these systems would need to update their algorithm to include results of tests for tuberculosis infection in the reports that they send.

These three proposed changes are moderately more burdensome for regulated entities, but enable VDH to more quickly be aware of disease outbreaks and to take appropriate action.

The Board proposes to change the required method of reporting morbidity from paper to electronic. According to VDH, the time required to complete a report through their electronic portal is comparable to that required to complete the paper form. Reporters are able to save time and money as entering into the portal removes the need to mail the paper form.

The current regulation requires that laboratory directors report any laboratory examination of any clinical specimen, whether performed in-house or referred to a reference laboratory, which yields evidence, by the laboratory method(s) indicated or any other confirmatory test, of diseases specified in the regulation. The Board proposes to no longer require that the director of the laboratory of origin report to VDH if the laboratory director ascertains that the reference laboratory that tests a specimen reports to VDH electronically. This would save staff time for the laboratory of origin, and have no negative impact.

The Regulations for Disease Reporting and Control state that every child shall be tested to determine the blood lead level at 12 months and 24 months of age if the health care provider determines that the child meets any of the criteria listed in the regulation. Additionally, children 25 months through 72 months of age who present for medical care and meet any of the specified criteria shall also be tested if they have either not previously been tested for blood lead level or were previously tested but experienced a change since testing that has resulted in an increased risk of lead exposure. One of the criteria under the current regulation is "The child is living in or regularly visiting a house, apartment, dwelling, structure, or child care facility built before 1960." The Board proposes to replace "1960" with "1950." According to VDH, this change is based upon the U.S. Centers for Disease Control and Prevention's determination that it is the homes built before 1950 that have high lead risk.

Businesses and Other Entities Affected. The proposed amendments potentially affect the 654 medical laboratories, 4,471 physician offices, 188 hospitals, 291 nursing homes, 184 assisted living facilities, and correctional facilities in Virginia, as well as the directors of these facilities, physicians, and administrative staff.2 To the extent that the proposed amendments improve public health, all citizens of the Commonwealth are potentially affected.

The proposals to reduce the required time within which laboratories must submit specimens, and to newly require that laboratories submit results of tests for tuberculosis infection, would moderately increase costs for labs. The proposal to require that each individual confirmed case of influenza be reported would moderately increase costs for physician offices and other medical facilities. The proposal to change the required method of reporting morbidity from paper to electronic would save reporting entities time and money as entering into the portal removes the need to mail the paper form. The proposal to no longer require that the director of the laboratory of origin report to VDH if the laboratory director ascertains that the reference laboratory that tests a specimen reports to VDH electronically would save staff time for the laboratory of origin.

Localities3 Affected.4 The proposed amendments potentially affect all localities, and are not known to disproportionally affect particular localities. To the extent that some of the affected entities may be associated with local governments, the proposed amendments that affect costs, either positively or negatively as described above, would affect local governments.

Projected Impact on Employment. The proposed amendments do not appear to substantially affect total employment.

Effects on the Use and Value of Private Property. The proposed amendments do not substantially affect the use and value of private property. The proposed amendments do not affect real estate development costs.

Adverse Effect on Small Businesses5:

Types and Estimated Number of Small Businesses Affected. The proposed amendments potentially affect the 651 small medical laboratories, 4,466 small physician offices, 134 small hospitals, 290 small nursing homes, 180 small assisted living facilities, and correctional facilities in the Commonwealth, as well as the directors of these facilities, physicians, and administrative staff.6

Costs and Other Effects. The proposals to reduce the required time within which laboratories must submit specimens, and to newly require that laboratories submit results of tests for tuberculosis infection, would moderately increase costs for small labs. The proposal to require that each individual confirmed case of influenza be reported would moderately increase costs for small physician offices and other small medical facilities.

Alternative Method that Minimizes Adverse Impact. There are no clear alternative methods that both reduce adverse impact and meet the intended policy goals.

_____________________________

2Data source: Virginia Employment Commission

3"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

4§ 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

5Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

6Data source: Virginia Employment Commission

Agency's Response to Economic Impact Analysis: The economic impact analysis prepared by the Department of Planning and Budget for the fast-track amendment to the Regulations for Disease Reporting and Control, 12VAC5-90, reported an adverse impact resulting from the regulations. The "Adverse Effect on Small Businesses" section of the economic impact analysis indicates that the amendments could potentially impact assisted living and correctional facilities. The regulations specify that assisted living and correctional facilities have requirements specified in 12VAC5-90-90 subsection D, which require them to report immediately to the local health department the presence or suspected presence in this program, service, facility, school, child care center, or summer camp of persons who have common symptoms suggesting an outbreak situation. Additionally, the regulations require that these types of facilities must notify the person practicing funeral services or the person's agent when transferring a dead body that was known to have an infectious disease that may be transmitted through exposure to any bodily fluids, as indicated in 12VAC5-90-90 subsection F. There were no amendments made to either of these subsections; therefore, the Virginia Department of Health (VDH) does not anticipate that there will be any effect on the directors of assisted living and correctional facilities, their physicians, or their administrative staff.

The regulations previously required that any suspected or confirmed case of influenza be reported to VDH (12VAC5-90-80 subsection A); however, the regulations clarified in 12VAC5-90-90 subsections A and C that "each physician who treats or examines any person who is suffering from or who is suspected of having a reportable disease or condition shall report" the information specified, except that "influenza should be reported by number of cases only (and type of influenza, if available)." In the fall of 2018, VDH submitted an amendment to the regulations, which among other things, changed the requirement in 12VAC5-90-80 subsection A so that only confirmed cases of influenza were required to be reported to VDH. This amendment was approved and went into effect October 15, 2018. The intent of this amendment was to reduce the influenza reporting burden, but the change created confusion because the requirements in 12VAC5-90-90 subsections A and C still included language about reporting suspected number of cases. As a result, providers and facilities continued to send weekly influenza reports to VDH, which included cases that have not been confirmed. The amendments made during this regulatory action seek to reduce confusion and reduce the reporting burden by removing any language that causes the persons responsible for reporting to believe they need to submit weekly counts of influenza diagnoses. The economic impact analysis indicates that "the proposal to require that each individual confirmed case of influenza be reported would moderately increase costs for physician offices and other medical facilities." VDH believes that the amendments will actually reduce the costs for physician offices and other medical facilities by clarifying that there is no longer a requirement to send weekly counts of influenza, rather only laboratory confirmed cases of influenza.

Summary:

The amendments include (i) updating and clarifying terms and definitions; (ii) specifying new timelines for submission of isolates or specimens for state public health laboratory testing; (iii) removing the list of isolates or specimens that must be forwarded for public health laboratory testing from 12VAC5-90-90 to avoid redundancy with 12VAC5-90-80; (iv) removing the requirement to report weekly counts of influenza diagnoses; (v) establishing morbidity reporting through the Virginia Department of Health (VDH) online reporting portal instead of reporting by way of the Form Epi-1, Confidentiality Morbidity Report; (vi) providing that reference laboratory findings do not need to be reported by the laboratory of origin if the laboratory ascertains that the reference laboratory reports to VDH electronically; (vii) clarifying that if a facility director reports on behalf of the laboratory, the laboratory is still responsible for submitting isolates or specimens for public health testing unless the laboratory has submitted an exemption request that has been approved by the department; (viii) referring only to medications that are available in the United States for the treatment of ophthalmia neonatorum; (ix) clarifying that confirmatory testing is not required for blood lead levels that are below the Centers for Disease Control and Prevention (CDC) reference range on screening test; (x) limiting the reporting of select agents to only an annual report and those scenarios in which such agents are released, lost, or stolen; and (xi) requiring that health care facilities share with VDH data supplied to CDC due as a result of a requirement of the Centers for Medicare and Medicaid Services and not limited to the Hospital Inpatient Quality Reporting Program of that agency.

Part I
Definitions

12VAC5-90-10. Definitions.

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

"Affected area" means any part or the whole of the Commonwealth, which that has been identified as where persons reside, or may be located, who are known to have been exposed to or infected with, or who are reasonably suspected to have been exposed to or infected with, a communicable disease of public health threat. "Affected area" shall include, but not be limited to, cities, counties, towns, and subsections of such areas, public and private property, buildings, and other structures.

"Arboviral infection" means a viral illness that is transmitted by a mosquito, tick, or other arthropod. This includes, but is not limited to, chikungunya (CHIK), dengue, eastern equine encephalitis (EEE), LaCrosse encephalitis (LAC), also known as California encephalitis, St. Louis encephalitis (SLE), West Nile virus (WNV), and Zika virus (Zika) infection.

"Board" means the State Board of Health.

"Cancer" means all carcinomas, sarcomas, melanomas, leukemias, and lymphomas excluding localized basal and squamous cell carcinomas of the skin, except for lesions of the mucous membranes.

"CDC" means the Centers for Disease Control and Prevention of the U.S. Department of Health and Human Services.

"Child care center" means a child day center, child day program, family day home, family day system, or registered family day home as defined by § 63.2-100 of the Code of Virginia, or a similar place providing day care of children by such other name as may be applied.

"Clinic" means any facility, freestanding or associated with a hospital, that provides preventive, diagnostic, therapeutic, rehabilitative, or palliative care or services to outpatients.

"Commissioner" means the State Health Commissioner or his duly designated officer or agent, unless stated in a provision of this chapter that it applies to the State Health Commissioner in his sole discretion.

"Communicable disease" means an illness due to an infectious agent or its toxic products which that is transmitted, directly or indirectly, to a susceptible host from an infected person, animal, or arthropod or through the agency of an intermediate host or a vector or through the inanimate environment.

"Communicable disease of public health significance" means an illness caused by a specific or suspected infectious agent that may be transmitted directly or indirectly from one individual to another. This includes but is not limited to infections caused by human immunodeficiency viruses, bloodborne pathogens, and tubercle bacillus. The State Health Commissioner may determine that diseases caused by other pathogens constitute communicable diseases of public health significance.

"Communicable disease of public health threat" means an illness of public health significance, as determined by the State Health Commissioner in accordance with this chapter, caused by a specific or suspected infectious agent that may be reasonably expected or is known to be readily transmitted directly or indirectly from one individual to another and has been found to create a risk of death or significant injury or impairment; this definition shall not, however, be construed to include human immunodeficiency viruses or the tubercle bacilli, unless used as a bioterrorism weapon.

"Companion animal" means, consistent with the provisions of § 3.2-6500 of the Code of Virginia, any domestic or feral dog, domestic or feral cat, nonhuman primate, guinea pig, hamster, rabbit not raised for human food or fiber, exotic or native animal, reptile, exotic or native bird, or any feral animal or any animal under the care, custody, or ownership of a person or any animal that is bought, sold, traded, or bartered by any person. Agricultural animals, game species, or any animals regulated under federal law as research animals shall not be considered companion animals for the purpose of this chapter.

"Condition" means any adverse health event, such as a disease, an infection, a syndrome, or as indicated by a procedure (including but not limited to the results of a physical exam, laboratory test, or imaging interpretation) suggesting that an exposure of public health importance has occurred.

"Contact" means a person or animal known to have been in such association with an infected person or animal as to have had an opportunity of acquiring the infection.

"Contact services" means a broad array of services that are offered to persons with infectious diseases and their contacts. Contact services include contact tracing, providing information about current infections, developing risk reduction plans to reduce the chances of future infections, and connecting to appropriate medical care and other services.

"Contact tracing" means the process by which an infected person or health department employee notifies others that they may have been exposed to the infected person in a manner known to transmit the infectious agent in question.

"Coronavirus infection, severe" means suspected or confirmed infection with severe acute respiratory syndrome (SARS)-associated coronavirus (SARS-CoV), Middle East respiratory syndrome (MERS)-associated coronavirus (MERS-CoV), or another coronavirus causing a severe acute illness.

"Decontamination" means the use of physical or chemical means to remove, inactivate, or destroy hazardous substances or organisms from a person, surface, or item to the point that such substances or organisms are no longer capable of causing adverse health effects and the surface or item is rendered safe for handling, use, or disposal.

"Department" means the State Department of Health, also referred to as the Virginia Department of Health (VDH) or VDH.

"Designee" or "designated officer or agent" means any person, or group of persons, designated by the State Health Commissioner, to act on behalf of the commissioner or the board.

"Ehrlichiosis/Anaplasmosis" means human infections caused by Ehrlichia chaffeensis (formerly included in the category "human monocytic ehrlichiosis" or "HME"), Ehrlichia ewingii, or Anaplasma phagocytophilum (formerly included in the category "human granulocytic ehrlichiosis" or "HGE").

"Epidemic" means the occurrence in a community or region of cases of an illness clearly in excess of normal expectancy.

"Essential needs" means basic human needs for sustenance including but not limited to food, water, clothing, and health care (e.g., medications, therapies, testing, and durable medical equipment).

"Exceptional circumstances" means the presence, as determined by the commissioner in his sole discretion, of one or more factors that may affect the ability of the department to effectively control a communicable disease of public health threat. Factors to be considered include but are not limited to: (i) characteristics or suspected characteristics of the disease-causing organism or suspected disease-causing organism such as virulence, routes of transmission, minimum infectious dose, rapidity of disease spread, the potential for extensive disease spread, and the existence and availability of demonstrated effective treatment; (ii) known or suspected risk factors for infection; (iii) the potential magnitude of the effect of the disease on the health and welfare of the public; and (iv) the extent of voluntary compliance with public health recommendations. The determination of exceptional circumstances by the commissioner may take into account the experience or results of investigation in Virginia, another state, or another country.

"Foodborne outbreak" means two or more cases of a similar illness acquired through the consumption of food contaminated with chemicals or an infectious agent or its toxic products. Such illnesses include but are not limited to heavy metal intoxication, staphylococcal food poisoning, botulism, salmonellosis, shigellosis, Clostridium perfringens food poisoning, hepatitis A, and Shiga toxin-producing Escherichia coli infection.

"Healthcare-associated infection" (also known as nosocomial infection) means a localized or systemic condition resulting from an adverse reaction to the presence of an infectious agent or agents or its toxin or toxins that (i) occurs in a patient in a health care setting facility (e.g., a hospital medical care facility or outpatient clinic), and (ii) was not found to be present or incubating at the time of admission unless the infection was related to a previous admission to the same setting, and (iii) if the setting is a hospital, meets the criteria for a specific infection site as defined by CDC.

"Hepatitis C, acute" means the following clinical characteristics are met: (i) discrete onset of symptoms indicative of viral hepatitis and (ii) jaundice or elevated serum aminotransferase levels and the following laboratory criteria are met: (a) serum alanine aminotransferase levels (ALT) greater than 200 IU/L; (b) IgM anti-HAV negative (if done); (c) IgM anti-HBc negative (if done); and (d) hepatitis C virus antibody (anti-HCV) positive, HCV antigen positive, or HCV RNA positive by nucleic acid test.

"Hepatitis C, chronic" means that the laboratory criteria specified in clauses (b), (c) and (d) listed above for an acute case are met but clinical signs or symptoms of acute viral hepatitis are not present and serum alanine aminotransferase (ALT) levels do not exceed 200 IU/L. This category will include cases that may be acutely infected but not symptomatic.

"Immunization" means a procedure that increases the protective response of an individual's immune system to specified pathogens.

"Independent pathology laboratory" means a nonhospital or a hospital laboratory performing surgical pathology, including fine needle aspiration biopsy and bone marrow specimen examination services, which that reports the results of such tests directly to physician offices, without reporting to a hospital or accessioning the information into a hospital tumor registry.

"Individual" means a person or companion animal. When the context requires it, "person or persons" shall be deemed to include any individual.

"Infection" means the entry and multiplication or persistence of a disease-causing organism (prion, virus, bacteria, fungus, parasite, or ectoparasite) in the body of an individual. An infection may be inapparent (i.e., without recognizable signs or symptoms but identifiable by laboratory means) or manifest (clinically apparent).

"Influenza A, novel virus" means infection of a human with an influenza A virus subtype that is different from currently circulating human influenza H1 and H3 viruses. Novel subtypes include H2, H5, H7, and H9 subtypes or influenza H1 and H3 subtypes originating from a nonhuman species or from genetic reassortment of human and animal influenza viruses.

"Invasive" means the organism is affecting a normally sterile site, including but not limited to blood or cerebrospinal fluid.

"Investigation" means an inquiry into the incidence, prevalence, extent, source, mode of transmission, causation of, and other information pertinent to a disease occurrence.

"Isolation" means the physical separation, including confinement or restriction of movement, of an individual or individuals who are is infected with, or are is reasonably suspected to be infected with, a communicable disease in order to prevent or limit the transmission of the communicable disease to uninfected and unexposed individuals.

"Isolation, complete" means the full-time confinement or restriction of movement of an individual or individuals infected with, or reasonably suspected to be infected with, a communicable disease in order to prevent or limit the transmission of the communicable disease to uninfected and unexposed individuals.

"Isolation, modified" means a selective, partial limitation of freedom of movement or actions of an individual or individuals infected with, or reasonably suspected to be infected with, a communicable disease. Modified isolation is designed to meet particular situations and includes but is not limited to the exclusion of children from school, the prohibition or restriction from engaging in a particular occupation or using public or mass transportation, or requirements for the use of devices or procedures intended to limit disease transmission.

"Isolation, protective" means the physical separation of a susceptible individual or individuals not infected with, or not reasonably suspected to be infected with, a communicable disease from an environment where transmission is occurring, or is reasonably suspected to be occurring, in order to prevent the individual or individuals from acquiring the communicable disease.

"Laboratory" means a clinical laboratory that examines materials derived from the human body for the purpose of providing information on the diagnosis, prevention, or treatment of disease.

"Laboratory director" means any person in charge of supervising a laboratory conducting business in the Commonwealth of Virginia.

"Law-enforcement agency" means any sheriff's office, police department, adult or youth correctional officer, or other agency or department that employs persons who have law-enforcement authority that is under the direction and control of the Commonwealth or any local governing body. "Law-enforcement agency" shall include, by order of the Governor, the Virginia National Guard.

"Lead, reportable levels" means any detectable blood lead level in children 15 years of age and younger and levels greater than or equal to 5 µg/dL in a person older than 15 years of age.

"Least restrictive" means the minimal limitation of the freedom of movement and communication of an individual while under an order of isolation or an order of quarantine that also effectively protects unexposed and susceptible individuals from disease transmission.

"Medical care facility" means any hospital or nursing home licensed in the Commonwealth, or any hospital operated by or contracted to operate by an entity of the United States government or the Commonwealth of Virginia.

"Midwife" means any person who is licensed as a nurse midwife by the Virginia Boards of Nursing and Medicine or who is licensed by the Board of Medicine as a certified professional midwife.

"National Healthcare Safety Network" or "NHSN" means a surveillance system created by the CDC for accumulating, exchanging, and integrating relevant information on infectious adverse events associated with health care delivery.

"Nucleic acid detection" means laboratory testing of a clinical specimen to determine the presence of deoxyribonucleic acid (DNA) or ribonucleic acid (RNA) specific for an infectious agent using any method, including hybridization, sequencing, or amplification such as polymerase chain reaction.

"Nurse" means any person licensed as a professional nurse or as a licensed practical nurse by the Virginia Board of Nursing.

"Occupational outbreak" means a cluster of illness or disease that is indicative of a work-related exposure. Such conditions include but are not limited to silicosis, asbestosis, byssinosis, pneumoconiosis, and tuberculosis.

"Outbreak" means the occurrence of more cases of a disease than expected.

"Period of communicability" means the time or times during which the etiologic agent may be transferred directly or indirectly from an infected person to another person, or from an infected animal to a person.

"Physician" means any person licensed to practice medicine or osteopathy by the Virginia Board of Medicine.

"Quarantine" means the physical separation, including confinement or restriction of movement, of an individual or individuals who are is present within an affected area or who are is known to have been exposed, or may reasonably be suspected to have been exposed, to a communicable disease and who do not yet show signs or symptoms of infection with the communicable disease in order to prevent or limit the transmission of the communicable disease of public health threat to unexposed and uninfected individuals.

"Quarantine, complete" means the full-time confinement or restriction of movement of an individual or individuals who do does not have signs or symptoms of infection but may have been exposed, or may reasonably be suspected to have been exposed, to a communicable disease of public health threat in order to prevent the transmission of the communicable disease of public health threat to uninfected individuals.

"Quarantine, modified" means a selective, partial limitation of freedom of movement or actions of an individual or individuals who do does not have signs or symptoms of the infection but have has been exposed to, or are is reasonably suspected to have been exposed to, a communicable disease of public health threat. Modified quarantine may be designed to meet particular situations and includes but is not limited to limiting movement to the home, work, or one or more other locations, the prohibition or restriction from using public or mass transportation, or requirements for the use of devices or procedures intended to limit disease transmission.

"Reportable disease" means an illness due to a specific toxic substance, occupational exposure, or infectious agent, which that affects a susceptible individual, either directly, as from an infected animal or person, or indirectly through an intermediate host, vector, or the environment, as determined by the board.

"School" means (i) any public school from kindergarten through grade 12 operated under the authority of any locality within the Commonwealth,; (ii) any private or religious school that offers instruction at any level or grade from kindergarten through grade 12; and (iii) any private or religious nursery school or preschool, or any private or religious child care center required to be licensed by the Commonwealth.

"Serology" means the testing of blood, serum, or other body fluids for the presence of antibodies or other markers of an infection or disease process.

"Surveillance" means the ongoing systematic collection, analysis, and interpretation of outcome-specific data for use in the planning, implementation, and evaluation of public health practice. A surveillance system includes the functional capacity for data analysis as well as the timely dissemination of these data to persons who can undertake effective prevention and control activities.

"Susceptible individual" means a person or animal who is vulnerable to or potentially able to contract a disease or condition. Factors that affect an individual's susceptibility include but are not limited to physical characteristics, genetics, previous or chronic exposures, chronic conditions or infections, immunization history, or use of medications.

"Toxic substance" means any substance, including any raw materials, intermediate products, catalysts, final products, or by-products byproducts of any manufacturing operation conducted in a commercial establishment, that has the capacity, through its physical, chemical or biological properties, to pose a substantial risk of death or impairment either immediately or over time, to the normal functions of humans, aquatic organisms, or any other animal but not including any pharmaceutical preparation which that deliberately or inadvertently is consumed in such a way as to result in a drug overdose.

"Tubercle bacilli" means disease-causing organisms belonging to the Mycobacterium tuberculosis complex and includes Mycobacterium tuberculosis, Mycobacterium bovis africanum, and Mycobacterium africanum bovis, Mycobacterium canetti, Mycobacterium microti, Mycobacterium caprae, or other members as may be established by the commissioner.

"Tuberculin skin test (TST)" means a test for demonstrating infection with tubercle bacilli, performed according to the Mantoux method, in which 0.1 ml of 5 TU strength tuberculin purified protein derivative (PPD) is injected intradermally on the volar surface of the arm. Any reaction is observed 48-72 hours after placement and palpable induration is measured across the diameter transverse to the long axis of the arm. The measurement of the indurated area is recorded in millimeters and the significance of the measured induration is based on existing national and department guidelines.

"Tuberculosis" means a disease caused by tubercle bacilli.

"Tuberculosis, active disease" (also "active tuberculosis disease" and "active TB disease"), as defined by § 32.1-49.1 of the Code of Virginia, means a communicable disease caused by an airborne microorganism and characterized by the presence of either (i) a specimen of sputum or other bodily fluid or tissue that has been found to contain tubercle bacilli as evidenced by culture or nucleic acid amplification, including preliminary identification by rapid methodologies; (ii) a specimen of sputum or other bodily fluid or tissue that is suspected to contain tubercle bacilli as evidenced by smear, and where sufficient clinical and radiographic evidence of active tuberculosis disease is present as determined by a physician licensed to practice medicine in Virginia; or (iii) sufficient clinical and radiographic evidence of active tuberculosis disease as determined by the commissioner is present, but a specimen of sputum or other bodily fluid or tissue containing, or suspected of containing, tubercle bacilli is unobtainable.

"Tuberculosis infection in children age <4 years" means a significant reaction resulting from a tuberculin skin test (TST) or other approved test for latent infection without positive result from a test for tuberculosis infection without clinical or radiographic other evidence of active tuberculosis disease, in children from birth up to their fourth birthday.

"Vaccinia, disease or adverse event" means vaccinia infection or serious or unexpected events in persons who received the smallpox vaccine or their contacts, including but not limited to bacterial infections, eczema vaccinatum, erythema multiforme, generalized vaccinia, progressive vaccinia, inadvertent inoculation, post-vaccinial encephalopathy or encephalomyelitis, ocular vaccinia, and fetal vaccinia.

"Waterborne outbreak" means two or more cases of a similar illness acquired through the ingestion of or other exposure to water contaminated with chemicals or an infectious agent or its toxic products. Such illnesses include but are not limited to giardiasis, viral gastroenteritis, cryptosporidiosis, hepatitis A, cholera, and shigellosis. A single case of laboratory-confirmed primary amebic meningoencephalitis or of waterborne chemical poisoning is considered an outbreak.

Part III
Reporting of Disease

12VAC5-90-80. Lists of diseases that shall be reported.

A. Reportable disease list. The board declares suspected or confirmed cases of the following named diseases, toxic effects, and conditions to be reportable by the persons enumerated in 12VAC5-90-90. Conditions identified by an asterisk (*) require immediate communication to the local health department by the most rapid means available upon suspicion or confirmation, as defined in subsection C of this section. Other conditions should be reported within three days of suspected or confirmed diagnosis, unless otherwise specified in this section. Neonatal Abstinence Syndrome abstinence syndrome shall be reported as specified in subsection E of this section.

Amebiasis (Entamoeba histolytica)

*Anthrax (Bacillus anthracis)

Arboviral infections (e.g., CHIK, dengue, EEE, LAC, SLE, WNV, Zika)

Babesiosis (Babesia spp.)

*Botulism (Clostridium botulinum)

*Brucellosis (Brucella spp.)

Campylobacteriosis (Campylobacter spp.)

Candida auris, infection or colonization

Carbapenemase-producing organism, infection or colonization

Chancroid (Haemophilus ducreyi)

Chickenpox (Varicella virus)

Chlamydia trachomatis infection

*Cholera (Vibrio cholerae O1 or O139)

*Coronavirus infection, severe

Cryptosporidiosis (Cryptosporidium spp.)

Cyclosporiasis (Cyclospora spp.)

*Diphtheria (Corynebacterium diphtheriae)

*Disease caused by an agent that may have been used as a weapon

Ehrlichiosis/Anaplasmosis (Ehrlichia spp., Anaplasma phagocytophilum)

Giardiasis (Giardia spp.)

Gonorrhea (Neisseria gonorrhoeae)

Granuloma inguinale (Calymmatobacterium granulomatis)

*Haemophilus influenzae infection, invasive

Hantavirus pulmonary syndrome

Hemolytic uremic syndrome (HUS)

*Hepatitis A

Hepatitis B (acute and chronic)

Hepatitis C (acute and chronic)

Hepatitis, other acute viral

Human immunodeficiency virus (HIV) infection

Influenza, confirmed

*Influenza-associated deaths if younger than 18 years of age

Lead, blood levels

Legionellosis (Legionella spp.)

Leprosy (Hansen's disease) (Mycobacterium leprae)

Leptospirosis (Leptospira interrogans)

Listeriosis (Listeria monocytogenes)

Lyme disease (Borrelia spp.)

Lymphogranuloma venereum (Chlamydia trachomatis)

Malaria (Plasmodium spp.)

*Measles (Rubeola)

*Meningococcal disease (Neisseria meningitidis)

Mumps

Neonatal abstinence syndrome (NAS)

Ophthalmia neonatorum

*Outbreaks, all (including foodborne, health care-associated, occupational, toxic substance-related, waterborne, and any other outbreak)

*Pertussis (Bordetella pertussis)

*Plague (Yersinia pestis)

*Poliovirus infection, including poliomyelitis

*Psittacosis (Chlamydophila psittaci)

*Q fever (Coxiella burnetii)

*Rabies, human and animal

Rabies treatment, post-exposure

*Rubella, including congenital rubella syndrome

Salmonellosis (Salmonella spp.)

Shiga toxin-producing Escherichia coli infection

Shigellosis (Shigella spp.)

*Smallpox (Variola virus)

Spotted fever rickettsiosis (Rickettsia spp.)

Streptococcal disease, Group A, invasive or toxic shock

Streptococcus pneumoniae infection, invasive if younger than five years of age

Syphilis (Treponema pallidum) report *congenital, *primary, *secondary, and other

Tetanus (Clostridium tetani)

Toxic substance-related illness

Trichinosis (Trichinellosis) (Trichinella spiralis)

*Tuberculosis, active disease (Mycobacterium tuberculosis complex)

Tuberculosis infection

*Tularemia (Francisella tularensis)

*Typhoid/Paratyphoid infection (Salmonella Typhi, Salmonella Paratyphi)

*Unusual occurrence of disease of public health concern

*Vaccinia, disease or adverse event

Vancomycin-intermediate or vancomycin-resistant Staphylococcus aureus infection

*Vibriosis (Vibrio spp.)

*Viral hemorrhagic fever

*Yellow fever

Yersiniosis (Yersinia spp.)

B. Conditions reportable by directors of laboratories. Laboratories shall report all test results indicative of and specific for the diseases, infections, microorganisms, conditions, and toxic effects specified in this subsection for humans. Such tests include microbiological culture, isolation, or identification; assays for specific antibodies; and identification of specific antigens, toxins, or nucleic acid sequences. Additional condition-specific requirements are noted in this subsection and subsection D of this section. Conditions identified by an asterisk (*) require immediate communication to the local health department by the most rapid means available upon suspicion or confirmation, as defined in subsection C of this section. Other conditions should be reported within three days of suspected or confirmed diagnosis.

Amebiasis (Entamoeba histolytica)

*Anthrax (Bacillus anthracis)

Arboviral infection, for example, CHIK, dengue, EEE, LAC, SLE, WNV, or Zika

Babesiosis (Babesia spp.)

*Botulism (Clostridium botulinum)

*Brucellosis (Brucella spp.)

Campylobacteriosis (Campylobacter spp.)

Candida auris - Include available antimicrobial susceptibility findings in report.

Carbapenemase-producing organism - Include available antimicrobial susceptibility findings in report.

Chancroid (Haemophilus ducreyi)

Chickenpox (Varicella virus)

Chlamydia trachomatis infection

*Cholera (Vibrio cholerae O1 or O139)

*Coronavirus infection, severe (e.g., SARS-CoV, MERS-CoV)

Cryptosporidiosis (Cryptosporidium spp.)

Cyclosporiasis (Cyclospora spp.)

*Diphtheria (Corynebacterium diphtheriae)

Ehrlichiosis/Anaplasmosis (Ehrlichia spp., Anaplasma phagocytophilum)

Giardiasis (Giardia spp.)

Gonorrhea (Neisseria gonorrhoeae) - Include available antimicrobial susceptibility findings in report.

*Haemophilus influenzae infection, invasive

Hantavirus pulmonary syndrome

*Hepatitis A

Hepatitis B (acute and chronic) - For All hepatitis B patients, also report available results of serum alanine aminotransferase (ALT) and all available results from the hepatitis panel.

Hepatitis C (acute and chronic) - For all patients with any positive HCV test, also report all results of HCV viral load tests, including undetectable viral loads and report available results of serum alanine aminotransferase (ALT) and all available results from the hepatitis panel.

Hepatitis, other acute viral - Any finding indicative of acute infection with hepatitis D, E, or other cause of viral hepatitis. For any reportable hepatitis finding, submit all available results from the hepatitis panel.

Human immunodeficiency virus (HIV) infection - For HIV-infected patients, report all results of CD4 and HIV viral load tests, including undetectable viral loads. For HIV-infected patients, report all HIV genetic nucleotide sequence data associated with HIV drug resistance tests by electronic submission. For children younger than three years of age, report all tests regardless of the test findings (e.g., negative or positive).

Influenza, confirmed - By culture, antigen detection by direct fluorescent antibody (DFA), or nucleic acid detection.

Lead, blood levels - All lead results from tests of venous or capillary blood performed by a laboratory certified by the Centers for Medicare and Medicaid Services in accordance with 42 USC § 263a, the Clinical Laboratory Improvement Amendment of 1988 (CLIA-certified).

Legionellosis (Legionella spp.)

Leptospirosis (Leptospira interrogans)

Listeriosis (Listeria monocytogenes), invasive or if associated with miscarriage or stillbirth from placental or fetal tissue

Lyme disease (Borrelia spp.)

Malaria (Plasmodium spp.)

*Measles (Rubeola)

*Meningococcal disease (Neisseria meningitidis), invasive - Include identification of gram-negative diplococci.

Mumps

*Mycobacterial diseases - (See 12VAC5-90-225 B) Report any of the following:

1. Acid fast bacilli;

2. M. tuberculosis complex or any other mycobacteria; or

3. Antimicrobial susceptibility results for M. tuberculosis complex.

*Pertussis (Bordetella pertussis)

*Plague (Yersinia pestis)

*Poliovirus infection

*Psittacosis (Chlamydophila psittaci)

*Q fever (Coxiella burnetii)

*Rabies, human and animal

*Rubella

Salmonellosis (Salmonella spp.)

Shiga toxin-producing Escherichia coli infection

Shigellosis (Shigella spp.)

*Smallpox (Variola virus)

Spotted fever rickettsiosis (Rickettsia spp.)

Streptococcal disease, Group A, invasive or toxic shock

Streptococcus pneumoniae infection, invasive if younger than five years of age

*Syphilis (Treponema pallidum)

Toxic substance-related illness - By blood or urine laboratory findings above the normal range, including heavy metals, pesticides, and industrial-type solvents and gases. When applicable and available, report speciation of metals when blood or urine levels are elevated in order to differentiate the chemical species (elemental, organic, or inorganic).

Trichinosis (Trichinellosis) (Trichinella spiralis)

Tuberculosis infection

*Tularemia (Francisella tularensis)

*Typhoid/Paratyphoid infection (Salmonella Typhi, Salmonella Paratyphi A, Salmonella Paratyphi B, Salmonella Paratyphi C)

*Vaccinia, disease or adverse event

Vancomycin-intermediate or vancomycin-resistant Staphylococcus aureus infection - Include available antimicrobial susceptibility findings in report.

*Vibriosis (Vibrio spp., Photobacterium damselae, Grimontia hollisae), other than toxigenic Vibrio cholera O1 or O139, which are reportable as cholera

*Viral hemorrhagic fever

*Yellow fever

Yersiniosis (Yersinia spp.)

C. Reportable diseases requiring rapid communication. Certain of the diseases in the list of reportable diseases because of their extremely contagious nature, potential for greater harm, or availability of a specific intervention that must be administered in a timely manner require immediate identification and control. Reporting of persons confirmed or suspected of having these diseases, listed in this subsection, shall be made immediately by the most rapid means available, preferably by telephone to the local health department. (These same diseases are also identified by an asterisk (*) in subsections A and B, where applicable, of this section.)

Anthrax (Bacillus anthracis)

Botulism (Clostridium botulinum)

Brucellosis (Brucella spp.)

Cholera (Vibrio cholerae O1 or O139)

Coronavirus infection, severe

Diphtheria (Corynebacterium diphtheriae)

Disease caused by an agent that may have been used as a weapon

Haemophilus influenzae infection, invasive

Hepatitis A

Influenza-associated deaths if younger than 18 years of age

Influenza A, novel virus

Measles (Rubeola virus)

Meningococcal disease (Neisseria meningitidis)

Outbreaks, all

Pertussis (Bordetella pertussis)

Plague (Yersinia pestis)

Poliovirus infection, including poliomyelitis

Psittacosis (Chlamydophila psittaci)

Q fever (Coxiella burnetii)

Rabies, human and animal

Rubella, including congenital rubella syndrome

Smallpox (Variola virus)

Syphilis, congenital, primary, and secondary (Treponema pallidum)

Tuberculosis, active disease (Mycobacterium tuberculosis complex)

Tularemia (Francisella tularensis)

Typhoid/Paratyphoid infection (Salmonella Typhi, Salmonella Paratyphi (all types))

Unusual occurrence of disease of public health concern

Vaccinia, disease or adverse event

Vibriosis (Vibrio spp., Photobacterium damselae, Grimontia hollisae), other than toxigenic Vibrio cholerae O1 or O139, which are reportable as cholera

Viral hemorrhagic fever

Yellow fever

D. Submission of initial isolate or other specimen for further public health testing. A laboratory identifying evidence of any of the conditions in this subsection shall notify the local health department of the positive culture or other positive test result within the timeframes specified in subsection B of this section and submit the initial isolate (preferred) or other initial specimen within five days or the clinical specimen within two days of a positive result to the Division of Consolidated Laboratory Services or other public health laboratory where specified in this subsection within seven days of identification. All specimens must be identified with the patient and physician information required in 12VAC5-90-90 B.

Anthrax (Bacillus anthracis)

Botulism (Clostridium botulinum)

Brucellosis (Brucella sp.)

Candida auris

Candida haemulonii

Carbapenem-resistant Enterobacteriaceae

Carbapenem-resistant Pseudomonas aeruginosa

Cholera (Vibrio cholerae O1 or O139)

Coronavirus infection, severe (e.g., SARS-CoV, MERS-CoV)

Diphtheria (Corynebacterium diphtheriae)

Haemophilus influenzae infection, invasive

Influenza, unsubtypeable

Listeriosis (Listeria monocytogenes)

Meningococcal disease (Neisseria meningitidis)

Plague (Yersinia pestis)

Poliovirus infection

Q fever (Coxiella burnetii)

Salmonellosis (Salmonella spp.)

Shiga toxin-producing E. coli infection (Laboratories that identify a Shiga toxin but do not perform simultaneous culture for Shiga toxin-producing E. coli should forward all positive stool specimens or positive enrichment broths to the Division of Consolidated Laboratory Services for confirmation and further characterization.)

Shigellosis (Shigella spp.)

Streptococcal disease, Group A, invasive

Tuberculosis (A laboratory identifying Mycobacterium tuberculosis complex (see 12VAC5-90-225) shall submit a representative and viable sample of the initial culture to the Division of Consolidated Laboratory Services or other laboratory designated by the board to receive such specimen.)

Tularemia (Francisella tularensis)

Typhoid/Paratyphoid infection (Salmonella Typhi, Salmonella Paratyphi (all types))

Vancomycin-intermediate or vancomycin-resistant Staphylococcus aureus infection

Vibriosis (Vibrio spp., Photobacterium damselae, Grimontia hollisae)

Yersiniosis (Yersinia spp.)

Other diseases as may be requested by the health department.

E. Neonatal abstinence syndrome. Neonatal abstinence syndrome shall be reported by physicians and directors of medical care facilities when a newborn has been diagnosed with neonatal abstinence syndrome, a condition characterized by clinical signs of withdrawal from exposure to prescribed or illicit drugs. Reports shall be submitted within one month of diagnosis by entering the information into the Department of Health's online Confidential Morbidity Report portal (http://www.vdh.virginia.gov/clinicians).

F. Outbreaks. The occurrence of outbreaks or clusters of any illness that may represent a group expression of an illness that may be of public health concern shall be reported to the local health department immediately by the most rapid means available, preferably by telephone.

G. Toxic substance-related illnesses. All toxic substance-related illnesses, including pesticide and heavy metal poisoning or illness resulting from exposure to an occupational dust or fiber or radioactive substance, shall be reported.

If such illness is verified or suspected and presents an emergency or a serious threat to public health or safety, the report of such illness shall be made immediately by the most rapid means available, preferably by telephone.

H. Unusual occurrence of disease of public health concern. Unusual or emerging conditions of public health concern shall be reported to the local health department immediately by the most rapid means available, preferably by telephone. In addition, the commissioner or the commissioner's designee may establish surveillance systems for diseases or conditions that are not on the list of reportable diseases. Such surveillance may be established to identify cases (delineate the magnitude of the situation), to identify the mode of transmission and risk factors for the disease, and to identify and implement appropriate action to protect public health. Any person reporting information at the request of the department for special surveillance or other epidemiological studies shall be immune from liability as provided by § 32.1-38 of the Code of Virginia.

12VAC5-90-90. Those required to report.

A. Physicians. Each physician who treats or examines any person who is suffering from or who is suspected of having a reportable disease or condition shall report, at a minimum, that person's name, address, age, date of birth, race, sex, and pregnancy status for females; name of disease diagnosed or suspected; the date of onset of illness; available laboratory tests and results; and the name, address, and telephone number of the physician and medical facility where the examination was made, except that influenza should be reported by number of cases only (and type of influenza, if available). Reports are to be made to the local health department serving the jurisdiction where the physician practices. A physician may designate someone to report on his behalf, but the physician remains responsible for ensuring that the appropriate report is made. Any physician, designee, or organization making such report as authorized herein shall be immune from liability as provided by § 32.1-38 of the Code of Virginia.

Such reports shall be made on a Form Epi-1, a computer generated printout containing the data items requested on Form Epi-1, within the timeframes specified in 12VAC5-90-80 to the local health department serving the jurisdiction in which the facility is located. Reports shall be made via the Department of Health's online Confidential Morbidity Report portal (http://www.vdh.virginia.gov/clinicians) or a CDC or VDH disease-specific surveillance form that provides the same information and shall be made within three days of the suspicion or confirmation of disease except that those identified in 12VAC5-90-80 C shall be reported immediately by the most rapid means available, preferably by telephone, to the local health department serving the jurisdiction in which the facility is located. Reporting may be done by means of secure electronic transmission upon agreement of the physician and the department.

Additional elements are required to be reported for individuals with confirmed or suspected active tuberculosis disease. Refer to Part X (12VAC5-90-225 et seq.) for details on these requirements.

B. Directors of laboratories. Laboratory directors shall report any laboratory examination of any clinical specimen, whether performed in-house or referred to an out-of-state laboratory, which that yields evidence, by the laboratory method(s) indicated or any other confirmatory test, of a disease listed in 12VAC5-90-80 B. Laboratory directors shall report results that are performed in-house or referred to a reference laboratory, with the following exception: if the laboratory director ascertains that the reference laboratory that tests a specimen reports to the department electronically, then those reference laboratory findings do not need to be reported by the laboratory of origin.

Each report shall give the source of the specimen and the laboratory method and result; the name, address, age, date of birth, race, sex, and pregnancy status for females (if known) of the person from whom the specimen was obtained; and the name, address, and telephone number of the physician at whose request and medical facility at which the examination was made. When the influenza virus is isolated, the type should be reported, if available. Reports shall be made within three days of identification of evidence of disease, except that those identified in 12VAC5-90-80 C shall be reported immediately by the most rapid means available, preferably by telephone, the timeframes specified in 12VAC5-90-80 to the local health department serving the jurisdiction in which the laboratory is located. Reports shall be made on Form Epi-1 via the Department of Health's online Confidential Morbidity Report portal at http://www.vdh.virginia.gov/surveillance-and-investigation/commonwealth-of-virginiastate-board-of-health/ or on the laboratory's own form if it the form includes the required information. Computer generated reports containing the required information may be submitted. Reporting may be done by means of secure electronic transmission upon agreement of the laboratory director and the department. Reports of HIV genetic nucleotide sequence data associated with HIV drug resistance tests must be submitted electronically. Any person making such report as authorized herein shall be immune from liability as provided by § 32.1-38 of the Code of Virginia.

A laboratory identifying evidence of any of the following conditions shall notify the local health department of the positive culture or other positive test result within the timeframes specified in 12VAC5-90-80 and submit the initial isolate or other initial specimen to the Division of Consolidated Laboratory Services within seven days of identification. All specimens must be identified with the patient and physician information required in this subsection.

Anthrax

Botulism

Brucellosis

Cholera

Diphtheria

E. coli infection, Shiga toxin-producing. (Laboratories that use a Shiga toxin EIA methodology but do not perform simultaneous culture for Shiga toxin-producing E. coli should forward all positive stool specimens or positive enrichment broths to the Division of Consolidated Laboratory Services for confirmation and further characterization.)

Haemophilus influenzae infection, invasive

Influenza A, novel virus

Listeriosis

Meningococcal disease

Pertussis

Plague

Poliovirus infection

Q fever

Salmonellosis

Shigellosis

Streptococcal disease, Group A, invasive

Tuberculosis (A laboratory identifying Mycobacterium tuberculosis complex (see 12VAC5-90-225) shall submit a representative and viable sample of the initial culture to the Division of Consolidated Laboratory Services or other laboratory designated by the board to receive such specimen.)

Tularemia

Typhoid/Paratyphoid fever

Vancomycin-intermediate or vancomycin-resistant Staphylococcus aureus infection

Vibrio infection, including infections due to Photobacterium damselae and Grimontia hollisae

Yersiniosis

Other diseases as may be requested by the health department

When a clinical specimen yields evidence indicating the presence of a select agent or toxin as defined by federal regulations in 42 CFR Part 73, the person in charge of the laboratory shall contact the Division of Consolidated Laboratory Services and arrange to forward an isolate for confirmation. If a select agent or toxin has been confirmed in a clinical specimen, the laboratory director shall consult with Division of Consolidated Laboratory Services or CDC regarding isolate transport or destruction.

Laboratories operating within a medical care facility shall be considered to be in compliance with the requirement to notify the local health department when the director of that medical care facility assumes the reporting responsibility; however, laboratories are still required to submit isolates to the Division of Consolidated Laboratory Services or other designated laboratory as noted in this subsection 12VAC5-90-80 D unless the laboratory has submitted an exemption request that has been approved by the department.

C. Persons in charge of a medical care facility. Any person in charge of a medical care facility shall make a report to the local health department serving the jurisdiction where the facility is located of the occurrence in or admission to the facility of a patient with a reportable disease listed in 12VAC5-90-80 A unless he has evidence that the occurrence has been reported by a physician. Any person making such report as authorized herein shall be immune from liability as provided by § 32.1-38 of the Code of Virginia. The requirement to report shall include all inpatient, outpatient, and emergency care departments within the medical care facility. Such report shall contain the patient's name, address, age, date of birth, race, sex, and pregnancy status for females; name of disease being reported; available laboratory tests and results; the date of admission; hospital chart number; date expired (when applicable); and attending physician. Influenza should be reported by number of cases only (and type of influenza, if available). Reports shall be made within three days of the suspicion or confirmation of disease except that those identified in 12VAC5-90-80 C shall be reported immediately by the most rapid means available, preferably by telephone, the timeframes specified in 12VAC5-90-80 to the local health department serving the jurisdiction in which the facility is located. Reports shall be made on Form Epi-1, a computer generated printout containing the data items requested on Form Epi-1, via the Department of Health's online Confidential Morbidity Report portal (http://www.vdh.virginia.gov/clinicians), or a CDC or VDH disease-specific surveillance form that provides the same information. Reporting may be done by means of secure electronic transmission upon agreement of the medical care facility and the department.

A person in charge of a medical care facility may assume the reporting responsibility on behalf of the director of the laboratory operating within the facility.

D. Persons in charge of a residential or day program, service, or facility licensed or operated by any agency of the Commonwealth, or a school, child care center, or summer camp. Any person in charge of a residential or day program, service, or facility licensed or operated by any agency of the Commonwealth, or a school, child care center, or summer camp as defined in § 35.1-1 of the Code of Virginia shall report immediately to the local health department the presence or suspected presence in his program, service, facility, school, child care center, or summer camp of persons who have common symptoms suggesting an outbreak situation. Such persons may report additional information, including identifying and contact information for individuals with communicable diseases of public health concern or individuals who are involved in outbreaks that occur in their facilities, as necessary to facilitate public health investigation and disease control. Any person so reporting shall be immune from liability as provided by § 32.1-38 of the Code of Virginia.

E. Local health directors. The local health director shall forward any report of a disease or report of evidence of a disease which that has been made on a resident of his jurisdiction to the Office of Epidemiology within three days of receipt. This report shall be submitted immediately by the most rapid means available if the disease is one requiring rapid communication, as required in 12VAC5-90-80 C. All such rapid reporting shall be confirmed in writing and submitted to the Office of Epidemiology, by either a paper report or entry into a shared secure electronic disease surveillance system, within three days. Furthermore, the local health director shall immediately forward to the appropriate local health director any disease reports on individuals residing in the latter's appropriate local health director's jurisdiction or to the Office of Epidemiology on individuals residing outside Virginia. The Office of Epidemiology shall be responsible for notifying other state health departments of reported illnesses in their residents and for notifying CDC as necessary and appropriate.

F. Persons in charge of hospitals, nursing facilities or nursing homes, assisted living facilities, and correctional facilities. In accordance with § 32.1-37.1 of the Code of Virginia, any person in charge of a hospital, nursing facility or nursing home, assisted living facility, or correctional facility shall, at the time of transferring custody of any dead body to any person practicing funeral services, notify the person practicing funeral services or his agent if the dead person was known to have had, immediately prior to death, an infectious disease which that may be transmitted through exposure to any bodily fluids. These include any of the following infectious diseases:

Creutzfeldt-Jakob disease

Human immunodeficiency virus (HIV) infection

Hepatitis B (acute and chronic)

Hepatitis C (acute and chronic)  

Rabies

Smallpox (Variola virus)

Syphilis, infectious (Treponema pallidum)

Tuberculosis, active disease (Mycobacterium tuberculosis complex)

Vaccinia, disease or adverse event

Viral hemorrhagic fever

G. Employees, conditional employees, and persons in charge of food establishments. 12VAC5-421-80 of the Food Regulations requires a food employee or conditional employee to notify the person in charge of the food establishment when diagnosed with certain diseases that are transmissible through food and requires the person in charge of the food establishment to notify the regulatory authority. Refer to 12VAC5-421-80 for further guidance and clarification regarding these reporting requirements.

12VAC5-90-103. Isolation for communicable disease of public health threat.

A. Application. The commissioner, in his sole discretion, may invoke the provisions of Article 3.02 (§ 32.1-48.05 et seq.) of Chapter 2 of Title 32.1 of the Code of Virginia and may declare the isolation of any individual or individuals upon a determination that:

1. Such individual or individuals are is known to have been infected with or are is reasonably suspected to have been infected with a communicable disease of public health threat;

2. Exceptional circumstances render the procedures of Article 3.01 (§ 32.1-48.01 et seq.) of Chapter 2 of Title 32.1 of the Code of Virginia to be insufficient, or the individual or individuals have has failed or refused to comply voluntarily with the control measures directed by the commissioner in response to a communicable disease of public health threat; and

3. Isolation is the necessary means to contain a communicable disease of public health threat, to ensure that such isolated individual or individuals receive receives appropriate medical treatment subject to the provisions of § 32.1-44 of the Code of Virginia, or to protect health care providers and others who may come into contact with such an infected individual or individuals.

The commissioner, in his sole discretion, may also order the isolation of an affected area if, in addition to the above, the Governor has declared a state of emergency for such affected area of the Commonwealth.

B. Documentation. For isolation for a communicable disease of public health threat, information about the infection or suspected infection, the individual, individuals, and/or or affected area, and the nature or suspected nature of the exposure shall be duly recorded by the local health department in consultation with the Office of Epidemiology. This information shall be sufficient to enable documenting a record of findings and to enable the commissioner to prepare the order of isolation, including the information required in § 32.1-48.12 of the Code of Virginia. In addition, sufficient information on individuals shall be maintained by the local health department to enable appropriate follow-up of individuals for health status evaluation and treatment as well as compliance with the order of isolation.

The commissioner shall ensure that the protected health information of any individual or individuals subject to the order of isolation is disclosed only in compliance with state and federal law.

C. Means of isolation. The local health department shall assess the situation, and in consultation with the Office of Epidemiology, identify the least restrictive means of isolation that effectively protects unexposed and susceptible individuals. The place of isolation selected shall allow the most freedom of movement and communication with family members and other contacts without allowing disease transmission to other individuals and shall allow the appropriate level of medical care needed by isolated individuals to the extent practicable. The commissioner, in his sole discretion, may order the isolated individual or individuals to remain in their residences his residence, to remain in another place where they are present he is present, or to report to a place or places designated by the commissioner for the duration of their the individual's isolation.

The commissioner's order of isolation shall be for a duration consistent with the known period of communicability of the communicable disease of public health threat or, if the course of the disease is unknown or uncertain, for a period anticipated as being consistent with the period of communicability of other similar infectious agents. In the situation where an area is under isolation, the duration of isolation shall take into account the transmission characteristics and known or suspected period of communicability.

D. Delivery. The local health department shall deliver the order of isolation, or ensure its delivery by an appropriate party such as a law-enforcement officer or health department employee, to the affected individual or individuals in person to the extent practicable. If, in the opinion of the commissioner, the scope of the notification would exceed the capacity of the local health department to ensure individual notification in a timely manner, then print, radio, television, Internet, and/or or other available means shall be used to inform those affected.

E. Enforcement. Upon finding that there is probable cause to believe that any individual or individuals who are subject to an order of isolation may fail or refuse to comply with such order, the commissioner in his sole discretion may include in the order a requirement that such individual or individuals are to be taken immediately into custody by law-enforcement agencies and detained for the duration of the order of isolation or until the commissioner determines that the risk of noncompliance is no longer present. For any individual or individuals identified as, or for whom probable cause exists that he the individual may be, in violation of any order of isolation, or for whom probable cause exists that he the individual may fail or refuse to comply with any such order, the enforcement authority directed by the commissioner to law-enforcement agencies shall include but need not be limited to the power to detain or arrest.

Any individual or individuals so detained shall be held in the least restrictive environment that can provide any required health care or other services for such individual. The commissioner shall ensure that law-enforcement personnel responsible for enforcing an order or orders of isolation are informed of appropriate measures to take to protect themselves from contracting the disease of public health threat.

F. Health status monitoring. The local health department shall monitor the health of those under isolation either by regular telephone calls, visits, self-reports, or by reports of caregivers or healthcare health care providers or by other means.

G. Essential needs. Upon issuance of an order of isolation to an individual or individuals by the commissioner, the local health department shall manage the isolation, in conjunction with local emergency management resources, such that individual essential needs can be met to the extent practicable. Upon issuance of an order of isolation by the commissioner for an affected area, existing emergency protocols pursuant to Chapter 3.2 (§ 44-146.13 et seq.) of Title 44 of the Code of Virginia shall be utilized for mobilizing appropriate resources to ensure essential needs are met.

H. Appeals. Any individual or individuals subject to an order of isolation or a court-ordered confirmation or extension of any such order may file an appeal of the order of isolation in accordance with the provisions of § 32.1-48.13 of the Code of Virginia. An appeal shall not stay any order of isolation.

I. Release from isolation. Once the commissioner determines that an individual or individuals no longer pose poses a threat to the public health, the order of isolation has expired, or the order of isolation has been vacated by the court, the individual or individuals under the order of isolation shall be released immediately. If the risk of an infected individual transmitting the communicable disease of public health threat to other individuals continues to exist, an order of isolation may be developed to extend the restriction prior to release from isolation.

J. Affected area. If the criteria in subsection A of this section are met and an area is known or suspected to have been affected, then the commissioner shall notify the Governor of the situation and the need to order isolation for the affected area during the known or suspected time of exposure. In order for an affected area to be isolated, the Governor must declare a state of emergency for the affected area.

If an order of isolation is issued for an affected area during the known or suspected time of exposure, the commissioner shall cause the order of isolation to be communicated to the individuals residing or located in the affected area. The use of multiple forms of communication, including but not limited to radio, television, internet, and/or or other available means, may be required in order to reach the individuals who were in the affected area during the known or suspected time of exposure.

The provisions for documentation, means of isolation, enforcement, health status monitoring, essential needs, and release from isolation described above will apply to the isolation of affected areas. Appropriate management of a disease of public health threat for an affected area may require the coordinated use of local, regional, state, and national resources. In specifying one or more affected areas to be placed under isolation, the objective will be to protect as many people as possible using the least restrictive means. As a result, defining the precise boundaries and time frame of the exposure may not be possible, or may change as additional information becomes available. When this occurs, the commissioner shall ensure that the description of the affected area is in congruence with the Governor's declaration of emergency and shall ensure that the latest information is communicated to those in or exposed to the affected area.

12VAC5-90-107. Quarantine.

A. Application. The commissioner, in his sole discretion, may invoke the provisions of Article 3.02 (§ 32.1-48.05 et seq.) of Chapter 2 of Title 32.1 of the Code of Virginia and may order a complete or modified quarantine of any individual or individuals upon a determination that:

1. Such individual or individuals are is known to have been exposed to or are is reasonably suspected to have been exposed to a communicable disease of public health threat;

2. Exceptional circumstances render the procedures of Article 3.01 (§ 32.1-48.01 et seq.) of Chapter 2 of Title 32.1 of the Code of Virginia to be insufficient, or the individual or individuals have has failed or refused to comply voluntarily with the control measures directed by the commissioner in response to a communicable disease of public health threat; and

3. Quarantine is the necessary means to contain a communicable disease of public health threat to which an individual or individuals have has been or may have been exposed and thus may become infected.

The commissioner, in his sole discretion, may also order the quarantine of an affected area if, in addition to the above, the Governor has declared a state of emergency for such affected area of the Commonwealth.

B. Documentation. For quarantine for a communicable disease of public health threat, information about the infection or suspected infection; the individual, individuals, and/or or affected area; and the nature or suspected nature of the exposure shall be duly recorded by the local health department, in consultation with the Office of Epidemiology. This information shall be sufficient to enable documenting a record of findings and enable the commissioner to prepare a written order of quarantine, including the information required in § 32.1-48.09 of the Code of Virginia. In addition, sufficient information on individuals shall be maintained by the local health department to enable appropriate follow-up of individuals for health status evaluation and treatment as well as compliance with the order of quarantine.

The commissioner shall ensure that the protected health information of any individual or individuals subject to the order of quarantine is disclosed only in compliance with state and federal law.

C. Means of quarantine. The local health department shall assess the situation, and in consultation with the Office of Epidemiology, shall recommend to the commissioner the least restrictive means of quarantine that effectively protects unexposed and susceptible individuals. The place of quarantine selected shall allow the most freedom of movement and communication with family members and other contacts without allowing disease transmission to others.

The commissioner, in his sole discretion, may order the quarantined individual or individuals to remain in their residences his residence, to remain in another place where they are the individual is present, or to report to a place or places designated by the commissioner for the duration of their his quarantine.

The commissioner's order of quarantine shall be for a duration consistent with the known incubation period of the communicable disease of public health threat or, if the incubation period is unknown or uncertain, for a period anticipated as being consistent with the incubation period for other similar infectious agents. In the situation where an area is under quarantine, the duration of quarantine shall take into account the transmission characteristics and known or suspected incubation period.

D. Delivery. The local health department shall deliver the order of quarantine, or ensure its delivery by an appropriate party such as a law-enforcement officer or health department employee, to the affected individual or individuals in person to the extent practicable. If, in the opinion of the commissioner, the scope of the notification would exceed the capacity of the local health department to ensure notification in a timely manner, then print, radio, television, Internet, and/or or other available means shall be used to inform those affected.

E. Enforcement. Upon finding that there is probable cause to believe that any individual or individuals who are subject to an order of quarantine may fail or refuse to comply with such order, the commissioner in his sole discretion may include in the order a requirement that such individual or individuals are to be taken immediately into custody by law-enforcement agencies and detained for the duration of the order of quarantine or until the commissioner determines that the risk of and from noncompliance is no longer present. For any individual or individuals identified as, or for whom probable cause exists that he may be, in violation of any order of quarantine, or for whom probable cause exists that he may fail or refuse to comply with any such order, the enforcement authority directed by the commissioner to law-enforcement agencies shall include but need not be limited to the power to detain or arrest.

Any individual or individuals so detained shall be held in the least restrictive environment that can provide any required health care or other services for such individual. The commissioner shall ensure that law-enforcement personnel responsible for enforcing an order or orders of quarantine are informed of appropriate measures to take to protect themselves from contracting the disease of public health threat.

F. Health status monitoring. The local health department shall monitor the health of those under quarantine either by regular telephone calls, visits, self-reports, or by reports of caregivers or healthcare health care providers or by other means. If an individual or individuals develop develops symptoms compatible with the communicable disease of public health threat, then 12VAC5-90-103 would apply to the individual or individuals.

G. Essential needs. Upon issuance of an order of quarantine to an individual or individuals by the commissioner, the local health department shall manage the quarantine, in conjunction with local emergency management resources, such that individual essential needs can be met to the extent practicable. Upon issuance of an order of quarantine by the commissioner for an affected area, existing emergency protocols pursuant to Chapter 3.2 (§ 44-146.13 et seq.) of Title 44 of the Code of Virginia shall be utilized for mobilizing appropriate resources to ensure essential needs are met.

H. Appeals. Any individual or individuals subject to an order of quarantine or a court-ordered confirmation or extension of any such order may file an appeal of the order of quarantine in accordance with the provisions of § 32.1-48.10 of the Code of Virginia. An appeal shall not stay any order of quarantine.

I. Release from quarantine. Once the commissioner determines that an individual or individuals are is no longer at risk of becoming infected and pose poses no risk of transmitting the communicable disease of public health threat to other individuals, the order of quarantine has expired, or the order of quarantine has been vacated by the court, the individuals individual under the order of quarantine shall be released immediately. If the risk of an individual becoming infected and transmitting the communicable disease of public health threat to other individuals continues to exist, an order of quarantine may be developed to extend the restriction prior to release from quarantine.

J. Affected area. If the criteria in subsection A of this section are met and an area is known or suspected to have been affected, then the commissioner shall notify the Governor of the situation and the need to order quarantine for the affected area. In order for an affected area to be quarantined, the Governor must declare a state of emergency for the affected area.

If an order of quarantine is issued for an affected area, the commissioner shall cause the order of quarantine to be communicated to the individuals residing or located in the affected area. The use of multiple forms of communication, including but not limited to radio, television, Internet, and/or or other available means, may be required in order to reach the individuals who were in the affected area during the known or suspected time of exposure.

The provisions for documentation, means of quarantine, enforcement, health status monitoring, essential needs, and release from quarantine described above will apply to the quarantine of affected areas. Appropriate management of a disease of public health threat for an affected area may require the coordinated use of local, regional, state, and national resources. In specifying one or more affected areas to be placed under quarantine, the objective will be to protect as many people as possible using the least restrictive means. As a result, defining the precise boundaries and time frame of the exposure may not be possible, or may change as additional information becomes available. When this occurs, the commissioner shall ensure that the description of the affected area is in congruence with the Governor's declaration of emergency and shall ensure that the latest information is communicated to those in or exposed to the affected area.

Part VII
Prevention of Blindness from Ophthalmia Neonatorum

12VAC5-90-140. Procedure for preventing ophthalmia neonatorum.

The physician, nurse, or midwife in charge of the infant's care after delivery of a baby shall ensure that one of the following is administered in each eye of that newborn baby as soon as possible after birth: (i) two drops of a 1.0% silver nitrate solution; (ii) a 1-cm ribbon of 1.0% tetracycline ophthalmic ointment; or (iii) a 1-cm ribbon of 0.5% erythromycin ophthalmic ointment is administered in each eye of that newborn baby as soon as possible. This treatment shall be recorded in the medical record of the infant.

Part X
Protocol for Identification of Children with Elevated Blood Lead Levels

12VAC5-90-215. Schedule and criteria for and confirmation of blood lead testing and information to be provided.

A. Schedule for testing. Every child shall be tested to determine the blood lead level at 12 months and 24 months of age if the health care provider determines that the child meets any of the criteria listed in subsection B of this section. Children 25 months through 72 months of age who present for medical care and meet any of criteria of subsection B of this section shall also be tested if they have either not previously been tested for blood lead level or were previously tested but experienced a change since testing that has resulted in an increased risk of lead exposure based on the criteria listed in subsection B of this section.

B. Criteria for testing.

1. The child is eligible for or receiving benefits from Medicaid or the Special Supplemental Nutrition Program for Women, Infants and Children (WIC);

2. The child is living in or regularly visiting a house, apartment, dwelling, structure, or child care facility built before 1960 1950;

3. The child is living in or regularly visiting a house, apartment, dwelling, structure, or child care facility built before 1978 that has(i)peeling or chipping paint or (ii)recent (within the last six months) ongoing or planned renovations;

4. The child is living in or regularly visiting a house, apartment, dwelling, or other structure in which one or more persons have blood lead testing yielding evidence of lead exposure;

5. The child is living with an adult whose job, hobby, or other activity involves exposure to lead;

6. The child is living near an active lead smelter, battery recycling plant, or other industry likely to release lead;

7. The child's parent, guardian, or other person standing in loco parentis requests the child's blood be tested due to any suspected exposure; or

8. The child is a recent refugee or immigrant or is adopted from outside of the United States.

C. Exceptions. A child who does not meet any of the schedule or criteria provided in subsection A or B of this section is considered to be at low risk, and testing is not required but may be conducted at the discretion of the health care provider. The testing requirement shall be waived if the parent, guardian, or other person standing in loco parentis of a child objects to the testing on the basis that the procedure conflicts with his religious tenets or practices.

D. Confirmation of blood lead levels. Blood lead level testing shall be performed on venous or capillary blood. Tests of venous blood performed by a laboratory certified by the federal Centers for Medicare & and Medicaid Services in accordance with 42 USC § 263a, the Clinical Laboratory Improvement Amendment of 1988 (CLIA-certified), are considered confirmatory. Tests of venous blood performed by any other laboratory and tests of capillary blood shall be confirmed by a repeat blood test, preferably venous, performed by a CLIA-certified laboratory. Such confirmatory testing shall be performed in accordance with the following schedule:

1. Confirmatory testing is not required if the result of the capillary test is below CDC's reference value.

1. 2. Within one to three months if the result of the capillary test is at or above the CDC's reference value and up to 9 micrograms of lead per deciliter of whole blood (µg/dL).

2. 3. Within one week to one month if the result of the capillary test is 10-44 µg/dL. The higher this test result, the more urgent the need for a confirmatory test.

3. 4. Within 48 hours if the result of the capillary test is 45-59 µg/dL.

4. 5. Within 24 hours if the result of the capillary test is 60-69 µg/dL.

5. 6. Immediately as an emergency laboratory test if the result of the capillary test is 70 µg/dL or higher.

E. Information to be provided. As part of regular well-check visits for all children, the health care provider shall make available to parents, guardians, or other persons standing in loco parentis information on the dangers of lead poisoning, potential sources of lead and ways to prevent exposure, and a list of available lead-related resources. When blood lead level testing is performed, the health care provider shall share the child's blood lead level test result with the child's parent, guardian, or other person standing in loco parentis and report to the local health department in accordance with the requirements of 12VAC5-90-80.

Part XI
Tuberculosis Control

12VAC5-90-225. Additional data to be reported related to persons with active tuberculosis disease (confirmed or suspected).

A. Physicians and directors of medical care facilities are required to submit all of the following:

1. An initial report to be completed when there are reasonable grounds to suspect that a person has active TB disease, but no later than when antituberculosis drug therapy is initiated. The reports must include the following: the affected person's name; age; date of birth; gender; address; pertinent clinical, radiographic, microbiologic and pathologic reports, whether pending or final; such other information as may be needed to locate the patient for follow-up; and name, address, and telephone number of the treating physician.

2. A secondary report to be completed simultaneously or within one to two weeks following the initial report. The report must include: (i) the date, method, and results of tuberculin skin test (TST) tests for tuberculosis infection; (ii) the date and results of the initial and any follow-up chest radiographs; (iii) the dates and results of bacteriologic or pathologic testing, the antituberculosis drug regimen, including names of the drugs, dosages and frequencies of administration, and start date; (iv) the date and results of drug susceptibility testing; (v) HIV status; (vi) contact screening information; and (vii) name, address, and telephone number of treating physician.

3. Subsequent reports are to be made when updated information is available. Subsequent reports are required when: clinical status changes, the treatment regimen changes; treatment ceases for any reason; or there are any updates to laboratory results, treatment adherence, name, address, and telephone number of current provider, patient location or contact information, or other additional clinical information.

4. Physicians and/or or directors of medical care facilities responsible for the care of a patient with active tuberculosis disease are required to develop and maintain a written treatment plan. This plan must be in place no later than the time when antituberculosis drug therapy is initiated. Patient adherence to this treatment plan must be documented. The treatment plan and adherence record are subject to review by the local health director or his designee at any time during the course of treatment.

5. The treatment plan for the following categories of patients must be submitted to the local health director or his designee for approval no later than the time when antituberculosis drug therapy is started or modified:

a. For individuals who are inpatients or incarcerated, the responsible provider or facility must submit the treatment plan for approval prior to discharge or transfer.

b. Individuals, whether inpatient, incarcerated, or outpatient, who also have one of the following conditions:

(1) HIV infection.

(2) Known or suspected active TB disease resistant to rifampin, rifabutin, rifapentine or other rifamycin with or without resistance to any other drug.

(3) A history of prior treated or untreated active TB disease, or a history of relapsed active TB disease.

(4) A demonstrated history of nonadherence to any medical treatment regimen.

B. Laboratories are required to submit the following:

1. Results of smears that are positive for acid fast bacilli.

2. Results of cultures positive for any member of the Mycobacterium tuberculosis complex (i.e., M. tuberculosis, M. bovis, M. africanum) or any other mycobacteria.

3. Results of rapid methodologies, including acid hybridization or nucleic acid amplification, which are indicative of M. tuberculosis complex or any other mycobacteria.

4. Results of tests for antimicrobial susceptibility performed on cultures positive for tubercle bacilli M. tuberculosis complex.

5. Results of tests for tuberculosis infection.

5. 6. Laboratories, whether testing is done in-house or referred to an out-of-state laboratory, shall submit a representative and viable sample of the initial culture positive for any member of the M. tuberculosis complex to the Virginia Division of Consolidated Laboratory Services or other laboratory designated by the board to receive such specimen.

Part XIII
Reporting of Dangerous Microbes and Pathogens

12VAC5-90-280. Reporting of dangerous microbes and pathogens.

A. Definitions. The following words and terms term when used in this part shall have the following meanings meaning unless the context clearly indicates otherwise:

"Biologic agent" means any microorganism (including, but not limited to, bacteria, viruses, fungi, rickettsiae, or protozoa), or infectious substance, or any naturally occurring, bioengineered, or synthesized component of any such microorganism or infectious substance, capable of causing death, disease, or other biological malfunction in a human, an animal, a plant, or other living organism; deterioration of food, water, equipment, supplies, or material of any kind; or deleterious alteration of the environment.

"CDC" means the Centers for Disease Control and Prevention of the U.S. Department of Health and Human Services.

"Diagnosis" means the analysis of specimens for the purpose of identifying or confirming the presence or characteristics of a select agent or toxin, provided that such analysis is directly related to protecting the public health or safety.

"Proficiency testing" means a sponsored, time-limited analytical trial whereby one or more analytes, previously confirmed by the sponsor, are submitted to the testing laboratory for analysis and where final results are graded, scores are recorded and provided to participants, and scores for participants are evaluated.

"Responsible official" means any person in charge of directing or supervising a laboratory conducting business in the Commonwealth of Virginia. At colleges and universities, the responsible official shall be the president of the college or university or his designee. At private, state, or federal organizations, the responsible official shall be the laboratory director or a chief officer of the organization or his designee.

"Select agent or toxin" or "select agent and toxin" means all those biological agents or toxins as defined by federal regulations in 42 CFR Part 73, including Health and Human Services select agents and toxins and overlap select agents and toxins. "Dangerous microbes and pathogens" will be known as "select agents and toxins."

"Toxin" means the toxic material or product of plants, animals, microorganisms (including but not limited to bacteria, viruses, fungi, rickettsiae, or protozoa); or infectious substances; or a recombinant or synthesized molecule, whatever the origin and method of production; and includes any poisonous substance or biological product that may be engineered as a result of biotechnology or produced by a living organism; or any poisonous isomer or biological product, homolog, or derivative of such a substance.

"Verification" means the process required to assure the accuracy, precision, and the analytical sensitivity and specificity of any procedure used for diagnosis.

B. Administration. The dangerous microbes and pathogens will be known as "select agents and toxins." The select agent and toxin registry will be maintained by the Virginia Department of Health, Office of Epidemiology, Division of Surveillance and Investigation.

C. Reportable agents. The board declares the select agents and toxins and overlap select agents and toxins outlined in 42 CFR Part 73 to be reportable and adopts it herein by reference including subsequent amendments and editions. The select agents and toxins are to be reportable by the persons enumerated in subsection F of this section.

D. B. Items to report. Each report shall be made on a form determined by the department and shall contain the following: name, source, and characterization information on select agents and toxins and quantities held; objectives of the work with the agent; location (including building and room) where each select agent or toxin is stored or used; identification information of persons with access to each agent; identification information of the person in charge of each of the agents; and the name and address of the laboratory and the name, position, and identification information of one responsible official as a single point of contact for the organization. The report shall also indicate whether the laboratory is registered with the CDC Select Agent Program and may contain additional information as required by 42 CFR Part 73 or the department.

E. C. Timing of reports. Reports shall be made to the department within seven calendar days of submission of an application to the CDC Select Agent Program. By January 31 of every year, laboratories the responsible official at a laboratory as designated by the federal select agent program shall provide a written update to the department, which shall include a copy of the federal registration certificate received through the CDC Select Agent Program Division of Surveillance and Investigation in the VDH Office of Epidemiology containing the information specified in subsection B of this section.

In the event that a select agent or toxin that has previously been reported to the department is destroyed, a copy of federal forms addressing the destruction of the select agent or toxin must be submitted to the department within seven calendar days of submission to the CDC Select Agent Program.

In the event that a select agent or toxin, or a specimen or isolate from a specimen containing a select agent or toxin, has previously been reported to the department and is subsequently transferred to a facility eligible for receiving the items, a copy of federal forms addressing the transfer of the select agent or toxin must be submitted to the department within seven calendar days of submission to the CDC Select Agent Program.

In the event of a suspected release, loss, or theft of any select agent or toxin, the responsible official at a laboratory as designated by the federal select agent program shall make a report to the department immediately by the most rapid means available, preferably by telephone. The report shall be submitted to the Division of Surveillance and Investigation in the VDH Office of Epidemiology. The rapid report shall be followed up by a written report within seven calendar days and shall include the following information:

1. The name of the biologic agent and any identifying information (e.g., strain or other characterization information);

2. An estimate of the quantity released, lost, or stolen;

3. An estimate of the time during which the release, loss, or theft occurred; and

4. The location (building, room) from or in which the release, loss, or theft occurred. The report may contain additional information as required by 42 CFR Part 73 or the department.

If a release has occurred, the report shall also include the nature, environment, and location of the release; number, names, and position of exposed individuals; and actions taken as a result of the release.

The department shall be notified in writing of any change to information previously submitted to the department. If a new application or an amendment to an existing application is filed with the CDC Select Agent Program, a copy of the application or amendment shall be submitted to the department within seven calendar days of submission to the CDC Select Agent Program.

F. Those required to report. The laboratory director shall be responsible for annual reporting of select agents and toxins to the Virginia Department of Health and for the reporting of any changes within the time periods as specified within these regulations. Such reports shall be made on forms to be determined by the department. Any person making such reports as authorized herein shall be immune from liability as provided by § 32.1-38 of the Code of Virginia.

G. Exemption from reporting. A person who detects a select agent or toxin for the purpose of diagnosing a disease, verification, or proficiency testing and either transfers the specimens or isolates containing the select agent or toxin to a facility eligible for receiving them or destroys them on site is not required to make a report except as required by 12VAC5-90-80 and 12VAC5-90-90. Proper destruction of the agent shall take place through autoclaving, incineration, or by a sterilization or neutralization process sufficient to cause inactivation. The transfer or destruction shall occur within seven calendar days after identification of a select agent or toxin used for diagnosis or testing and within 90 calendar days after receipt for proficiency testing.

Any additional exemptions from reporting under 42 CFR Part 73, including subsequent amendments and editions, are also exempt from reporting under this regulation; however, the department shall be notified of the exemption by submitting a copy of federal forms addressing the exemption within seven calendar days of submission to the CDC Select Agent Program.

H. D. Release of reported information. Reports submitted to the select agent and toxin registry shall be confidential and shall not be a public record pursuant to the Freedom of Information Act, regardless of submitter. Release of information on select agents or toxins shall be made only by order of the State Health Commissioner to the CDC and state and federal law-enforcement agencies in any investigation involving the release, theft, or loss of a select agent or toxin required to be reported to the department under this regulation. Any person making such reports as authorized in 12VAC5-90-90 shall be immune from liability as provided by § 32.1-38 of the Code of Virginia.

Part XIV
Reporting of Healthcare-Associated Infections

12VAC5-90-370. Reporting of healthcare-associated infections.

A. Reportable infections. Facilities Health care facilities that report data into the Centers for Disease Control and Prevention's National Healthcare Safety Network (NHSN) for as a requirement of the Centers for Medicare and Medicaid Services Hospital Inpatient Quality Reporting Program shall share the data, through the NHSN, with the department.

B. Liability protection and data release. Any person making such report as authorized herein shall be immune from liability as provided by § 32.1-38 of the Code of Virginia. Infection rate data may be released to the public by the department upon request. Data shall be aggregated to ensure that no individual patient may be identified.

FORMS (12VAC5-90)

Confidential Morbidity Report, Epi-1 (rev. 10/2011)

Virginia Cancer Registry Reporting Form (rev. 1/1998)

VA.R. Doc. No. R20-5357; Filed October 9, 2019, 2:52 p.m.
TITLE 12. HEALTH
STATE BOARD OF HEALTH
Forms

REGISTRAR'S NOTICE: Forms used in administering the regulation have been filed by the agency. The forms are not being published; however, online users of this issue of the Virginia Register of Regulations may click on the name of a form with a hyperlink to access it. The forms are also available from the agency contact or may be viewed at the Office of the Registrar of Regulations, 900 East Main Street, 11th Floor, Richmond, Virginia 23219.

Title of Regulation: 12VAC5-408. Certificate of Quality Assurance of Managed Care Health Insurance Plan Licensees.

Contact Information: Rebekah Allen, Senior Policy Analyst, Office of Licensure and Certification, Virginia Department of Health, 9960 Mayland Drive, Suite 401, Richmond, VA 23233, telephone (804) 367-2157, or email rebekah.allen@vdh.virginia.gov.

FORMS (12VAC5-408)

Application for Certificate of Quality Assurance – Managed Care Health Insurance Plan Licensee (eff. 12/99).

Application for Certificate of Quality Assurance, OLC-4210-F (eff. 11/2019)

VA.R. Doc. No. R20-6162; Filed October 9, 2019, 4:30 p.m.
TITLE 12. HEALTH
STATE BOARD OF HEALTH
Proposed Regulation

Title of Regulation: 12VAC5-590. Waterworks Regulations (amending 12VAC5-590-10, 12VAC5-590-40, 12VAC5-590-50, 12VAC5-590-70, 12VAC5-590-100 through 12VAC5-590-150, 12VAC5-590-190 through 12VAC5-590-270, 12VAC5-590-290 through 12VAC5-590-392, 12VAC5-590-405, 12VAC5-590-421, 12VAC5-590-430, 12VAC5-590-440, 12VAC5-590-450, 12VAC5-590-470 through 12VAC5-590-580, 12VAC5-590-600, 12VAC5-590-610, 12VAC5-590-630, 12VAC5-590-640, 12VAC5-590-660, 12VAC5-590-670, 12VAC5-590-680, 12VAC5-590-700, 12VAC5-590-720, 12VAC5-590-730, 12VAC5-590-760, 12VAC5-590-770, 12VAC5-590-790, 12VAC5-590-810, 12VAC5-590-820, 12VAC5-590-840, 12VAC5-590-850, 12VAC5-590-860, 12VAC5-590-880, 12VAC5-590-900 through 12VAC5-590-960, 12VAC5-590-990 through 12VAC5-590-1020, 12VAC5-590-1040, 12VAC5-590-1050, 12VAC5-590-1080, 12VAC5-590-1090, 12VAC5-590-1110 through 12VAC5-590-1180, 12VAC5-590-1210, 12VAC5-590-1220, 12VAC5-590-1230; adding 12VAC5-590-35, 12VAC5-590-45, 12VAC5-590-55, 12VAC5-590-115, 12VAC5-590-372, 12VAC5-590-373, 12VAC5-590-374, 12VAC5-590-376, 12VAC5-590-377, 12VAC5-590-378, 12VAC5-590-382, 12VAC5-590-383, 12VAC5-590-384, 12VAC5-590-388, 12VAC5-590-391, 12VAC5-590-395, 12VAC5-590-401, 12VAC5-590-411, 12VAC5-590-415, 12VAC5-590-461, 12VAC5-590-475, 12VAC5-590-476, 12VAC5-590-515, 12VAC5-590-531, 12VAC5-590-532, 12VAC5-590-546, 12VAC5-590-565, 12VAC5-590-725, 12VAC5-590-865, 12VAC5-590-871 through 12VAC5-590-875, 12VAC5-590-881, 12VAC5-590-882, 12VAC5-590-883, 12VAC5-590-895, 12VAC5-590-975, 12VAC5-590-985, 12VAC5-590-1001 through 12VAC5-590-1005, 12VAC5-590-1065, 12VAC5-590-1081, 12VAC5-590-1082, 12VAC5-590-1235; repealing 12VAC5-590-20, 12VAC5-590-30, 12VAC5-590-60, 12VAC5-590-80, 12VAC5-590-160, 12VAC5-590-170, 12VAC5-590-180, 12VAC5-590-280, 12VAC5-590-400, 12VAC5-590-410, 12VAC5-590-420, 12VAC5-590-425, 12VAC5-590-460, 12VAC5-590-590, 12VAC5-590-620, 12VAC5-590-650, 12VAC5-590-690, 12VAC5-590-710, 12VAC5-590-740, 12VAC5-590-750, 12VAC5-590-780, 12VAC5-590-800, 12VAC5-590-870, 12VAC5-590-890, 12VAC5-590-970, 12VAC5-590-980, 12VAC5-590-1030, 12VAC5-590-1060, 12VAC5-590-1070, 12VAC5-590-1100, 12VAC5-590-1190, 12VAC5-590-1200, 12VAC5-590-1240 through 12VAC5-590-1280, Appendices A through E, Appendix G, Appendix I, Appendix L through P).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 10, 2020.

Agency Contact: Dwayne Roadcap, Office Director, Office of Drinking Water, Virginia Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 864-7522, or email dwayne.roadcap@vdh.virginia.gov.

Basis: Section 32.1-169 of the Code of Virginia provides that the State Board of Health shall have general supervision and control over all water supplies and waterworks in the Commonwealth insofar as the bacteriological, chemical, radiological, and physical quality of waters furnished for human consumption may affect the public health and welfare and may require that all water supplies be pure water. In exercising such supervision and control, the board shall recognize the relationship between an owner's financial, technical, managerial, and operational capabilities and capacity to comply with state and federal drinking water standards.

Section 32.1-170 of the Code of Virginia authorizes the board to promulgate regulations to govern waterworks, water supplies, and pure water to protect the public health and promote the public welfare. Sections 32.1-167 and 32.1-168 and §§ 32.1-171 through 32.1-176 of the Code of Virginia provide additional details regarding the board's authority and responsibilities for regulating waterworks in Virginia.

Purpose: The purpose of this action is to amend the Waterworks Regulations to update and clarify the requirements for waterworks. The proposed amendments will provide the requirements necessary for waterworks to protect public health, safety, and welfare by supplying safe drinking water to Virginians.

The State Board of Health promulgated the Waterworks Regulations in 1991 and significantly amended them in 1993. Since 1993, sections of the Waterworks Regulations, primarily the definitions (12VAC5-590-10) and Part II (12VAC5-590-340 et seq.), have been amended to incorporate federal requirements in the Safe Drinking Water Act (42 USC § 300f et seq.) and National Primary Drinking Water Regulations (40 CFR Parts 141, 142, and 143). The Virginia Department of Health (VDH) completed the most recent amendment in November 2016 to incorporate the requirements in the Revised Total Coliform Rule (40 CFR 141.851 through 141.861) into the Waterworks Regulations. These amendments were necessary for the state to retain primary enforcement responsibility for waterworks in Virginia. From 1993 to the present, the balance of the Waterworks Regulations have remained largely unchanged and as a result have become outdated and inefficient for the regulated community to use.

The VDH Office of Drinking Water, the Waterworks Advisory Committee, and a regulatory advisory panel consisting of waterworks stakeholders collectively recommend that Parts I (12VAC5-590-10 et seq.) and III (12VAC5-590-640 et seq.) of the Waterworks Regulations be updated in the areas of permitting, design, and construction, and Part II be amended to clarify operating requirements and improve overall readability. As part of the agency's effort to clarify provisions and improve the readability of the Waterworks Regulations, VDH is addressing consistent use of defined terms and technical terms across the entire chapter. The current regulatory action follows these recommendations and also incorporates the following: current water treatment technologies, current monitoring and control technologies, changes to water consumption patterns resulting from shifts in consumer use and water-saving plumbing fixtures, changes to source water quality and availability due to increased water demands, and new state laws and regulations governing source water supply planning and withdrawal.

Substance: The proposed amendments reorganize provisions, add new sections to expand or clarify existing requirements or incorporate new ones, remove obsolete information and duplication, update citations, and correct sentence structure, grammar, spelling, and typographical errors. VDH reviewed and revised technical terms and word use to improve consistency throughout the Waterworks Regulations. No new federal mandates are included. Substantive changes include:

In Part I (General Framework for Waterworks Regulations), proposed amendments (i) revise, add, or delete definitions; (ii) add units of measurement; (iii) add new sections regarding the Waterworks Advisory Committee, the relationship to the Uniform Statewide Building Code, and administrative proceedings and enforcement requirements, all to be more consistent with statute; (iv) clarify and streamline the permit process, including the requirements for obtaining a construction permit; and (v) add requirements and circumstances for issuance of a temporary operation permit.

In Part II (Operation Regulations for Waterworks), proposed amendments (i) consolidate all water quality standards, maximum contaminant levels, action levels, treatment techniques, and maximum disinfectant levels and goals; (ii) revise and clarify the procedure for determining surface water influence of groundwater sources; (iii) reorganize content of five large sections into several smaller sections; (iv) revise and clarify the classification of waterworks, operator requirements, and operator attendance; (v) add new sections for abandoning and reactivating wells; (vi) reorganize operation report content requirements; and (vii) revise and clarify cross-connection control program requirements.

In Part III (Manual of Practice for Waterworks Design), proposed amendments (i) update design water demand and waterworks capacity requirements; (ii) revise and clarify metering, building design, layout, laboratory design, and new source development requirements for groundwater sources, including springs; (iii) clarify well construction requirements and classification; (iv) distinguish and clarify construction, testing, and capacity requirements for wells located in designated groundwater management areas; (iv) revise and clarify water treatment processes by adding new sections for membrane filtration, bag and cartridge filtration, pre-engineered package treatment units, powdered activated carbon, disinfection processes using chloramines, chlorine dioxide, ultraviolet light, and ozone; (v) clarify design requirements for pump stations and equipment; (vi) distinguish atmospheric and pressure storage tank design requirements; (vii) add a new section on water loading stations; and (viii) generally reorganize content into new, smaller sections.

In Part IV (Exceptions for Noncommunity Waterworks) and the appendices, proposed amendments move applicable requirements into Part II or III and repeal.

Issues: The majority of the proposed amendments to the Waterworks Regulations update and clarify existing requirements. In many cases, the changes reflect current practices and technologies for treatment, monitoring, and reporting, which are changes waterworks have already implemented but because the last significant revision was 25 years ago, requirements that have not been incorporated into the Waterworks Regulations. VDH has worked with stakeholder groups to make changes that are both protective of public health and reflect best practices for the regulated community. However, several specific areas upon which the stakeholders, VDH, and the citizens of the Commonwealth may not be in complete agreement exist, including cross-connection control, source water capacity evaluation, operator classification, point-of-use devices, reduced monitoring for bacteriological contaminants at certain transient noncommunity waterworks (TNCs), and the addition of fluoride to drinking water to reduce dental caries.

Community waterworks are required to take measures to reduce the possibility of cross-connections and to prevent backflow, both of which can lead to contamination of drinking water. A number of waterworks owners requested changes to the Waterworks Regulations that reflect their current practices to track and monitor cross-connection and backflow prevention devices, to educate consumers, and conditions that result in greater risk of contamination. An advantage of the proposed amendments is that they are based mostly on input from stakeholders. However, the amendments do not and cannot take into account all stakeholder concerns. VDH believes the amendments clarify requirements for cross-connection control programs and provide a great deal of flexibility for waterworks to meet program requirements, and they are no less protective of public health than the current practices and requirements. While individual waterworks may have issues with the changes, VDH does not view any disadvantages to the changes.

Determination of waterworks source water capacity and how much can be withdrawn is a concern to stakeholders. Waterworks with wells located in a Virginia Groundwater Management Area may be subject to regulation by the Department of Environmental Quality (DEQ) based on the quantity of water that is withdrawn and require a Groundwater Withdrawal Permit prior to construction. Waterworks with surface water sources may also be subject to regulation by DEQ, depending on the amount the waterworks withdraws and when the withdrawal commenced. 12VC5-590-830 does not reflect VDH practices for evaluating a permit application that involves a surface water withdrawal. However, efforts to reach a consensus among stakeholders about how to revise this section were unsuccessful. Consequently, VDH proposes no amendments to 12VC5-590-830 in this action.

The operator classification and minimum attendance requirements may be an issue for a small subset of waterworks, particularly those with the Class 4, 5, and 6 designations, which are differentiated by the type of treatment provided and by the population served. This change establishes regulatory requirements that VDH has been implementing by policy. Placing the operator classification and attendance requirements in the Waterworks Regulations will give the regulated community a sense of security that the requirements will not be subject to change without going through a rulemaking process. The advantage to the regulatory change is that waterworks will be required to have properly trained and licensed operators, and the operators will have standards for training. For owners, the disadvantage will be the cost to train operators and, in some areas, the difficulty of finding trained, licensed operators. For the agency and the Commonwealth, having qualified operators in responsible charge of waterworks is critical to ensuring that waterworks can consistently and reliably provide drinking water that meets regulatory standards and preserves public health.

VDH will allow point-of-use (POU) or point-of-entry (POE) devices for long-term compliance with primary maximum contaminant level (PMCL); except that POU devices are still prohibited for achieving compliance with microbial contaminant treatment technique requirements. This action will provide waterworks additional flexibility, allowing owners and operators the option to employ POU and POE devices to meet PMCLs.

VDH incorporated the federal Revised Total Coliform Rule into the Waterworks Regulations in 2016. At the time, VDH did not include the option in the rule to reduce the monitoring frequency for bacteriological contaminants at certain TNCs from quarterly to annually. To reduce the burden of collecting and submitting quarterly bacteriological samples at qualified well-operated TNCs, VDH proposes adding this option to the Waterworks Regulations. U.S. Environmental Protection Agency Region 3 determined that the changes to the Waterworks Regulations that are related to reduced monitoring at TNCs are no less stringent than and do not differ materially from the federal rule. For VDH, the change requires the agency to increase its site visit frequency at those TNCs that qualify for reduced monitoring from every three years to every year. However, VDH believes the change will be a benefit for the TNCs that qualify because it will reduce their monitoring costs.

Although the benefits of adding fluoride to drinking water, which does not contain naturally occurring fluoride, to prevent tooth decay are widely accepted in the United States, some individuals and groups strongly oppose the practice. VDH is changing the Waterworks Regulations to clearly state that the State Board of Health recommends that all community waterworks maintain an optimal level of fluoride in drinking water and to require notice to the commissioner and consumers prior to any operational changes that either initiate or permanently stop programs to provide community water fluoridation. The main advantage of these changes is that they align the recommended level of fluoridation with the U.S. Department of Health and Human Resource guidelines and ensure that VDH and the public will be notified about proposed changes in fluoridation before they take effect. Groups who oppose fluoridation may be resistant to any statement in the Waterworks Regulations that the practice is effective or recommended. VDH sees advantages to receiving notice about proposed changes in fluoridation programs and allowing the recommended level, currently 0.7 parts per million, to be established by the U.S. Department of Health and Human Resources.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Board of Health (Board) proposes to comprehensively update the Waterworks Regulations.

Result of Analysis. For most proposed amendments, the benefits likely exceed the costs. For one amendment, whether the benefits exceed the costs depend on the policy views of the observer.

Estimated Economic Impact.2 The regulation establishes requirements and procedures for the issuance of permits, minimum standards for water quality (including requirements for waterworks owners to submit regular analytical results of sampling for biological, chemical, radiological, physical, and other tests), requirements for recordkeeping, reporting, public notice, and consumer confidence reports, requirements for inspections, and criteria for the siting, design, and construction of waterworks. The regulation has not been significantly revised since 1993. Consequently, it contains obsolete language. The Board proposes to eliminate the obsolete language.

Technology and knowledge about best practices have changed over the last 26 years. Reflecting this, the Virginia Department of Health (VDH) has put some requirements and options in guidance documents (sometimes called policy), and has allowed some other activities in practice. The Board proposes to put many of the requirements and options that have been in guidance documents, or allowed in practice, into the regulation. According to VDH, there have been no problems with compliance to the rules in guidance documents. Thus, adding this language to the regulation would not have a large impact in practice.

The Board also proposes to make numerous changes to improve clarity. Eliminating obsolete language, adding text to reflect requirements and options that have been adhered to and allowed in practice, and amending language to improve clarity all would be beneficial in that there would be reduced likelihood that those affected by the regulation and other interested members of the public misunderstand or are under-informed concerning waterworks requirements and options.

Waterworks Advisory Committee:

The Waterworks Advisory Committee (WAC) is formed by the State Health Commissioner (Commissioner) to provide peer review of the regulatory, policy, and legislative aspects of VDH authorities. Under the current regulation, the WAC is appointed by the Commissioner and consists of thirteen appointed members and three ex officio members, including one individual each from the following:

… a member of the Virginia Section American Water Works Association; a member of the Virginia Society of Professional Engineers; a member of the Virginia Water Well Association, Inc.; a member of the Consulting Engineers Council; a water treatment plant operator having a valid license of the highest classification in waterworks issued by the State Board for Waterworks and Wastewater Works Operators; a faculty member of a state university or college whose principal field of teaching is Environmental Engineering; a community waterworks owner; a nontransient noncommunity (NTNC) representative; a representative from Virginia Rural Water Association; a representative from Virginia Water Projects, Inc.; a representative from the Virginia Municipal League; a representative from the Virginia Association of Counties; and a citizen representative. Ex officio members shall consist of the Director, Office of Water Programs, who shall act as chairman; Director, Division of Water Supply Engineering; and Director, Division of Consolidated Laboratory Services or their designees.

The membership for the WAC under the proposed regulation are the following: 

… industry professionals employed outside the department with longstanding expertise or vested interest in waterworks operations and who represent a diverse group of stakeholders. Members shall be experts in the fields of water treatment technologies, public health, water quality, economics, environmental science, public utilities, community development, or industry regulations. A minimum of nine persons shall be appointed to the committee by the commissioner.

More flexibility is available for membership under the proposed language. According to VDH, some interested qualified individuals have not been able to participate under the current definition. Thus, the proposed amendment would likely be beneficial.

Permits:

Amongst the Board's proposed clarifying changes is new language concerning permit requirements. Though there are no changes to current requirements, VDH believes that the clarifying of these existing requirements may increase participation in the general permit process. A general permit allows the waterworks to review and approve waterline projects in-house or by their contract engineer (on behalf of VDH), which is much simpler and quicker than sending waterline projects to VDH for review and approval. Essentially, the waterworks assumes control of the plan review process by agreement with VDH through a general permit. General permits apply only to waterline extension projects.

VDH estimates that a general permit, as compared to a construction permit, would save a total of 4 hours per project for VDH and 4 hours per project for the waterworks. Assuming an estimated cost of $60 per hour of engineering review for VDH, the agency would save $240 per engineering review. Assuming an estimated cost of $150 per hour for engineering review and engineering services for the waterworks, there would be a savings of $600 per project per year for waterworks. VDH estimates that 5 to 20 additional general permit projects per year could occur with improved regulatory clarifications, resulting in a possible savings of $3,000 to $12,000 per year for the waterworks community and $1,200 to $4,800 per year for the agency.

Monitoring Requirements for Transient Noncommunity Waterworks:

Community waterworks are waterworks that serve at least 15 service connections used by year-round residents or regularly serve at least 25 year-round residents. A noncommunity waterworks is a waterworks that is not a community waterworks but operates at least 60 days out of the year. A nontransient noncommunity waterworks is a waterworks that is not a community waterworks and that regularly serve at least 25 of the same persons over six months out of the year. A transient noncommunity waterworks (TNC) is a noncommunity waterworks that is not a nontransient noncommunity waterworks. A TNC serves at least 25 persons daily for at least 60 days out of the year.

The Board proposes to add provisions to allow qualified, well-operated TNCs to reduce the bacteriological monitoring frequency from quarterly to annually. Allowing qualified well-operated TNCs to reduce the monitoring frequency for bacteriological contaminants from quarterly to annual would reduce the burden of collecting and submitting bacteriological samples for these waterworks. The savings would be approximately $100 annually for each TNC. Assuming that there is not a significant increase in health risk with the less frequent monitoring, this amendment would likely produce a net benefit.

TNCs are owned by state and local governmental agencies, corporations, small businesses and nonprofit organizations. VDH estimates that 885 of the TNCs are privately owned.

Groundwater under the Direct Influence of Surface Water:

Groundwater under the direct influence of surface water (GUDI) is defined as any water beneath the surface of the ground with (i) significant occurrence of insects or other macroorganisms, algae, or large-diameter pathogens such as Giardia lamblia, or Cryptosporidium or (ii) significant and relatively rapid shifts in water characteristics such as turbidity, temperature, conductivity, or pH that closely correlate to climatological or surface water conditions. The regulation requires that all waterworks supplied by surface water or GUDI sources provide both disinfection and filtration.

The regulation requires that a groundwater source utilized by a waterworks, including wells, springs, and infiltration galleries, be evaluated by VDH and that a determination of surface water influence be made by the agency. The waterworks owner must provide to the agency all necessary information to make this determination. In the current regulation, there is a two-step procedure to determine if there is surface water influence. The Board proposes to add a third step to provide greater assurance. If the source has been confirmed to be GUDI at the second step, the third step and its associated cost can be foregone. Groundwater sources determined to be GUDI require significantly more treatment, monitoring, and reporting. Without treatment, water from GUDI sources can be unsafe to drink.

According to VDH, the cost for a Step 3 GUDI evaluation is approximately $7,480. The agency estimates that up to 10 waterworks per year may trigger the Level 3 GUDI evaluation. To the extent that the Step 3 requirement makes a significant difference in detecting and treating unsafe drinking water, the benefits of this proposed amendment likely exceeds the cost.

The owners of the groundwater waterworks could include (but need not be limited to) water authorities, state agencies, county or local governments, corporations, small businesses, and nonprofit organizations. For privately owned entities, VDH estimates that this proposal potentially applies to the 854 TNC, 258 NTNC, and 305 community waterworks.

Fluoride Notification:

Waterworks owners that add fluoride to drinking water are required to provide notice to the Commissioner and consumers if they intend to permanently stop their fluoridation program. They are also required to provide notice if they intend to start a fluoridation program. The Board proposes to require that waterworks owners provide the Commissioner at least 90 days prior written notice of the intent to initiate or discontinue a program to provide the optimum fluoride ion concentration. Whether the benefits exceed the costs for this proposed amendment depend on the policy views of the observer. Not allowing waterworks owners to change their fluoridation policy for at least 90 days after they choose to do so reduces their flexibility to act and go forward with what they believe to be the best decision. On the other hand, it enables greater public participation in the decision-making process.

This proposal affects owners of community waterworks. VDH estimates 317 community waterworks are privately owned.

Treatment Process Selection:

The Board proposes to allow point-of-use (POU) and point-of-entry (POE) water treatment devices in specified circumstances. A POU device is a water treatment device applied to a single tap for the purpose of reducing contaminants in the water at that one tap. A POE device is a water treatment device applied to the water entering a house or building for the purpose of reducing contaminants in the water distributed throughout the house or building. According to VDH, POU and POE devices have proven effective for short-term compliance with water quality standards. Using POU and POE devices in place of centralized treatment can create significant cost savings.

The most likely waterworks to use POUs and POEs would be small noncommunity waterworks. Based on a single POU installation at a small noncommunity waterworks, VDH estimates that capital cost savings of approximately $21,800 per installation and operations and maintenance savings of $600 per year could be achieved in comparison to a central treatment unit. Given that it is believed that these devices are effective in protecting water quality, this amendment should provide a net benefit.

Owners that could take advantage of this alternative include state and local governmental agencies, corporations, small businesses and nonprofit organizations. VDH estimates that this proposal applies to 1,115 privately owned waterworks.

Metering:

The current regulation requires that all waterworks provide metering of total water production. The Board proposes to no longer require metering for noncommunity waterworks with design capacities less than 300,000 gallons per month and with no treatment. This change would apply only to new waterworks or new sources for existing waterworks to be constructed after the effective date of the amended regulation. The change would allow the owner of a new waterworks or an existing waterworks adding a new source (such as a well) to avoid a cost of approximately $300 for each source.

Businesses and Entities Affected. Proposed amendments particularly affect VDH, the Department of Professional and Occupational Regulation, the Department of Transportation, the Department of Corrections, the Department of Conservation and Recreation, local governments, restaurants, convenience stores, recreation areas, golf courses, day care facilities, schools, and other businesses that own and operate community or noncommunity waterworks, as well as all Virginians in that all drink water.

Localities Particularly Affected. All waterworks using groundwater sources (wells and springs) are required to complete a GUDI evaluation at least once when a source is constructed and possibly in the future if water quality monitoring indicates a potential problem. Localities that own and operate community or noncommunity waterworks that make use of groundwater sources and are required to complete a Level 3 assessment would be particularly affected.

According to VDH, existing wells and springs serving waterworks are located in the following localities: Accomack, Albemarle, Alleghany, Amelia, Amherst, Appomattox, Augusta, Bath, Bedford County, Bland, Botetourt, Brunswick, Buckingham, Campbell, Caroline, Carroll, Charles City, Charlotte, Chesterfield, Clarke, Craig, Culpeper, Cumberland, Dickenson, Dinwiddie, Essex, Fairfax County, Fauquier, Floyd, Fluvanna, Franklin County, Frederick, Giles, Gloucester, Goochland, Grayson, Greene, Greensville, Halifax, Hanover, Henrico, Henry, Highland, Isle of Wight, James City, King and Queen, King George, King William, Lancaster, Loudoun, Louisa, Lunenburg, Madison, Mathews, Mecklenburg, Middlesex, Montgomery, Nelson, New Kent, Northampton, Northumberland, Nottoway, Orange, Page, Patrick, Pittsylvania, Powhatan, Prince Edward, Prince George, Prince William, Pulaski, Rappahannock, Richmond County, Roanoke County, Rockbridge, Rockingham, Russell, Scott, Shenandoah, Smyth, Southampton, Spotsylvania, Stafford, Surry, Sussex, Tazewell, Warren, Washington, Westmoreland, Wise, Wythe, York, Buena Vista City, Chesapeake, Franklin City, Newport News, Norfolk, Portsmouth, Roanoke City, Suffolk, Virginia Beach, Waynesboro, and Williamsburg.

Allowing qualified well-operated TNCs to reduce the monitoring frequency for bacteriological contaminants from quarterly to annually will reduce the burden of collecting and submitting bacteriological samples. This change could reduce the burden for localities that own and operate TNCs that make use of groundwater sources. This could include TNCs at local parks and recreation areas.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect total employment.

Effects on the Use and Value of Private Property. The proposals to: 1) add provisions to allow qualified, well-operated TNCs to reduce the bacteriological monitoring frequency from quarterly to annually, 2) allow POU and POE water treatment devices in specified circumstances, 3) no longer require metering for noncommunity waterworks with design capacities less than 300,000 gallons per month and with no treatment, and 4) clarify general permit requirements, would likely reduce costs for some privately owned waterworks, potentially altering operations and increasing net value.

The proposal to add a third step in the determination of whether groundwater sources are GUDI would increase costs for small privately owned waterworks. This would increase costs for some privately owned waterworks, potentially altering operations and decreasing net value.

Real Estate Development Costs. The proposed clarifying of existing general permit requirements that is expected to increase participation in the general permit process would reduce waterline extension project costs for about 5 to 20 projects a year. 

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed clarifying of existing general permit requirements that is expected to increase participation in the general permit process may reduce waterline extension project costs for some small privately owned waterworks. The proposals to: 1) add provisions to allow qualified, well-operated TNCs to reduce the bacteriological monitoring frequency from quarterly to annually, 2) allow POU and POE water treatment devices in specified circumstances, and 3) no longer require metering for noncommunity waterworks with design capacities less than 300,000 gallons per month and with no treatment would also likely reduce costs for some small firms.

The proposal to add a third step in the determination of whether groundwater sources are GUDI would increase costs for small privately owned waterworks that are utilizing or plan to utilize a groundwater source that has not already been determined to be GUDI.

Alternative Method that Minimizes Adverse Impact

There are no clear alternative methods that both reduce adverse impact and meet the intended policy goals.

Adverse Impacts:

Businesses. The proposal to add a third step in the determination of whether groundwater sources are GUDI would increase costs for privately owned waterworks that are utilizing or plan to utilize a groundwater source that has not already been determined to be GUDI.

Localities. The proposal to add a third step in the determination of whether groundwater sources are GUDI would increase costs for locality-owned waterworks that are utilizing or plan to utilize a groundwater source that has not already been determined to be GUDI.

Other Entities. The proposal to add a third step in the determination of whether groundwater sources are GUDI would increase costs for waterworks owned by other entities that are utilizing or plan to utilize a groundwater source that has not already been determined to be GUDI.

_________________________________

2All data are provided by Virginia Department of Health.

Agency's Response to Economic Impact Analysis: The Virginia Department of Health concurs with the findings of the Department of Planning and Budget's economic impact analysis.

Regarding the determination of whether a groundwater source is under the direct influence of surface water (GUDI), VDH estimates that of approximately 100 GUDI determinations that waterworks will complete each year, no more than 10 waterworks will trigger the requirement to proceed to Step 3. VDH concurs with the assessment that the benefits of the Step 3 requirements likely exceed the cost.

Summary:

The proposed amendments reorganize provisions; add new sections to expand or clarify existing requirements or incorporate new ones; remove obsolete information and duplication; update citations; correct sentence structure, grammar, spelling, and typographical errors; and improve consistency.

In Part I (General Framework for Waterworks Regulations), proposed amendments (i) revise, add, or delete definitions; (ii) add units of measurement; (iii) add new sections regarding the Waterworks Advisory Committee, the relationship of the Waterworks Regulations to the Uniform Statewide Building Code, and administrative proceedings and enforcement requirements; (iv) clarify and streamline the permit process, including the requirements for obtaining a construction permit; and (v) add requirements and circumstances for issuance of a temporary operation permit.

In Part II (Operation Regulations for Waterworks), proposed amendments (i) consolidate all water quality standards, maximum contaminant levels, action levels, treatment techniques, and maximum disinfectant levels and goals; (ii) revise and clarify the procedure for determining surface water influence of groundwater sources; (iii) revise and clarify the classification of waterworks, operator requirements, and operator attendance; (iv) add new sections for abandoning and reactivating wells; (v) reorganize operation report content requirements; (vi) revise and clarify cross-connection control program requirements; and (vii) generally reorganize content into smaller sections.

In Part III (Manual of Practice for Waterworks Design), proposed amendments (i) update design water demand and waterworks capacity requirements; (ii) revise and clarify metering, building design, layout, laboratory design, and new source development requirements for groundwater sources, including springs; (iii) clarify well construction requirements and classification; (iv) distinguish and clarify construction, testing, and capacity requirements for wells located in designated groundwater management areas; (iv) revise and clarify water treatment processes by adding new sections for membrane filtration, bag and cartridge filtration, pre-engineered package treatment units, powdered activated carbon, disinfection processes using chloramines, chlorine dioxide, ultraviolet light, and ozone; (v) clarify design requirements for pump stations and equipment; (vi) distinguish atmospheric and pressure storage tank design requirements; (vii) add a new section on water loading stations; and (viii) generally reorganize content into new, smaller sections.

In Part IV (Exceptions for Noncommunity Waterworks) and the appendices, proposed amendments move some requirements into Part II or III of the chapter and repeal Part IV and all appendices.

This action includes no new federal mandates.

Part I
General Framework for Waterworks Regulations

Article 1
Definitions

12VAC5-590-10. Definitions and units of measurement.

A. Definitions. As used in this chapter, the following words and, terms, and abbreviations shall have meanings respectively set forth unless the context clearly requires a different meaning:

"Action level" or "AL" means the concentration of lead or copper in water specified in 12VAC5-590-385, which determines, in some cases, the treatment requirements contained in 12VAC5-590-405 that an owner is required to complete.

"Administrative Process Act" or "APA" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia. The APA is the basic law conferring authority on agencies either to make regulations or case decisions as well as to standardize court review thereof.

"Air gap separation" means the unobstructed vertical distance through the free atmosphere between the lowest opening from any pipe or faucet supplying pure water to a tank, plumbing fixture, or other device and the rim of the receptacle point of the potable water outlet and the flood rim of the receiving vessel.

"Annual daily water demand" means the average rate of daily water usage over at least the most recent three-year period.

"ANSI" means the American National Standards Institute.

"Applied water" means water that is ready for filtration.

"Approved" means material, equipment, workmanship, process or method that has been accepted by the commissioner as suitable for the proposed use.

"ASME" means the American Society of Mechanical Engineers.

"ASTM" means the American Society for Testing and Materials.

"Auxiliary water system" means any water supply or system on or available to the premises of the consumer other than the waterworks. These auxiliary waters may include water from a source such as wells, lakes, or streams; process fluids; or used water. They may be polluted or contaminated or, objectionable, or of questionable quality and constitute an unapproved water source supply or system over which the water purveyor waterworks owner does not have control.

"AWWA" means the American Water Works Association.

"Backflow" means the undesirable reversal of flow of water or mixtures of water and other liquids, mixtures gases, or other substances into the distribution piping of a waterworks from any source or sources other than its intended source.

"Backflow elimination method" means the air gap separation or physical disconnection that will eliminate the cross-connection.

"Backflow prevention assembly" means a mechanical unit, designed to stop the reversal of flow that includes an inlet and outlet shutoff valve and test cocks to facilitate testing of the assembly. Backflow prevention assemblies include the reduced pressure principle backflow prevention (RPZ) assembly, the double gate-double check valve assembly, and the pressure vacuum breaker assembly.

"Backflow prevention device" means any approved device, method, or type of construction intended to prevent backflow into a waterworks. a mechanical unit designed to stop the reversal of flow that is not testable because it does not have inlet and outlet shutoff valves or test cocks. A backflow prevention device is not generally designed or constructed to withstand backpressure. A backflow prevention device generally includes the atmospheric type vacuum breakers and the dual check valve type devices.

"Backpressure backflow" means backflow caused by pressure in the downstream piping that is superior to the supply pressure at the point of consideration.

"Backsiphonage" means backflow caused by a reduction in pressure that causes a partial vacuum, creating a siphon effect.

"Bag filters" means pressure-driven separation devices that remove particulate matter larger than one micrometer using an engineered porous filtration media. They Bag filters are typically constructed of a nonrigid, fabric filtration media housed in a pressure vessel in which the direction of flow is from the inside of the bag to outside.

"Bank filtration" means a water treatment process that uses a well to recover surface water that has naturally infiltrated into groundwater through a river bed or bank(s) or bank. Infiltration is typically enhanced by the hydraulic gradient imposed by a nearby pumping water supply or other well(s) well.

"Best available technology" or "BAT" means the best practicable technology, treatment techniques, or other means that the commissioner finds, after examination for efficacy under field conditions and not solely under laboratory conditions and in conformance with applicable EPA regulations, that are available (taking cost into consideration).

"Board" means the State Board of Health.

"Breakpoint chlorination" means the addition of chlorine to water until the chlorine demand has been satisfied and further additions result in a residual that is directly proportional to the amount added.

"Boil water advisory" and "boil water notice" mean a statement that informs consumers that drinking water is or may be contaminated and that the water should be boiled before being used for human consumption.

"BSSP" means a bacteriological sample siting plan.

"CAP" means a corrective action plan.

"Cartridge filters" means pressure-driven separation devices that remove particulate matter larger than one micrometer using an engineered porous filtration media. They Cartridge filters are typically constructed as rigid or semi-rigid, self-supporting filter elements housed in pressure vessels in which flow is from the outside of the cartridge to the inside.

"Chlorine" means dry chlorine.

"Chlorine gas" means dry chlorine in the gaseous state.

"Chlorine solution (chlorine water)" means a solution of chlorine in water.

"Chronically noncompliant waterworks" or "CNC" means a waterworks that is unable to provide pure water for any of the following reasons: (i) the waterworks' record of performance demonstrates that it can no longer be depended upon to furnish pure water to the persons served; (ii) the owner has inadequate technical, financial, or managerial capacity to furnish pure water to the people served; (iii) the owner has failed to comply with an order issued by the board or the commissioner; (iv) the owner has abandoned the waterworks and has discontinued supplying pure water to the persons served; or (v) the owner is subject to a forfeiture order pursuant to § 32.1-174.1 of the Code of Virginia.

"Case decision" means an agency determination as defined in § 2.2-4001 of the Code of Virginia.

"CCCP" means a cross-connection control program.

"CCR" means consumer confidence report.

"CDC" means the Centers for Disease Control and Prevention.

"CFE" means the combined filter effluent.

"CFR" means the Code of Federal Regulations.

"Clean compliance history" means a record of no PMCL violations for microbiological contaminants, no monitoring violations under 12VAC5-590-370, and no coliform treatment technique trigger exceedances or treatment technique violations under 12VAC5-590-392.

"Coagulation" means a process using coagulant chemicals and mixing by which colloidal and suspended materials are destabilized and agglomerated into floc.

"Coliform bacteria group" means a group of bacteria predominantly inhabiting the intestines of man or animal but also occasionally found elsewhere. It includes all aerobic and facultative anaerobic, gram-negative, non-sporeforming bacilli that ferment lactose with production of gas. Also included are all bacteria that produce a dark, purplish-green colony with metallic sheen by the membrane filter technique used for coliform identification.

"Combined distribution system" means the interconnected distribution system consisting of the distribution systems of wholesale waterworks and of the consecutive waterworks that receive finished water.

"Commissioner" means the State Health Commissioner, who is the executive officer of the board.

"Community waterworks" means a waterworks that serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents.

"Compliance cycle" means the nine-year calendar year cycle during which a waterworks shall monitor. Each compliance cycle consists of three three-year compliance periods. The first calendar year cycle begins began January 1, 1993, and ends ended December 31, 2001; the second begins January 1, 2002, and ends December 31, 2010; the third begins January 1, 2011, and ends December 31, 2019 with subsequent compliance cycles continuing thereafter.

"Compliance period" means a three-year calendar year period within a compliance cycle. Each compliance cycle has consists of three three-year compliance periods. Within the first compliance cycle, the first compliance period runs from January 1, 1993, to December 31, 1995; the second from January 1, 1996, to December 31, 1998; the third from January 1, 1999, to December 31, 2001 The first compliance period began January 1, 1993, and ended December 31, 1995, with subsequent compliance periods continuing thereafter.

"Comprehensive performance evaluation" or "CPE" means a thorough review and analysis of a treatment plant's performance-based capabilities and associated administrative, operational and maintenance practices. It is conducted to identify factors that may be adversely impacting a plant's capability to achieve compliance and emphasizes approaches that can be implemented without significant capital improvements. For purposes of compliance with 12VAC5-590-530 E 1 b (2), the comprehensive performance evaluation shall consist of at least the following components: assessment of plant performance, evaluation of major unit processes, identification and prioritization of performance limiting factors, assessment of the applicability of comprehensive technical assistance, and preparation of a CPE report.

"Comprehensive business plan" means a plan detailing the technical, managerial, and financial (TMF) commitments that the owner will make in order to assure that the waterworks will have the capability to provide water that complies with this chapter over the long term.

"Confirmation sample" means a sample to be collected by the owner within a specified time after the results of the initial sample are known to have exceeded a specified limit or standard in order to validate the initial result and to determine compliance.

"Confluent growth" means a continuous bacterial growth covering the entire filtration area of a membrane filter, or a portion thereof, in which bacterial colonies are not discrete.

"Consecutive waterworks" means a waterworks that has no water production or source facility of its own and that obtains all of its water from another permitted waterworks or receives some or all of its finished water from one or more wholesale waterworks. Consecutive waterworks may provide additional treatment to finished water. Delivery may be through a direct connection or through the distribution system of one or more consecutive waterworks.

"Consolidated" means rock made from sedimentary, igneous, or metamorphic materials that have been metamorphosed or cemented together forming strata or bodies of rock.

"Consumer" means any person who drinks receiving water for human consumption from a waterworks.

"Consumer's water system" means any water system located on the consumer's premises, supplied by or in any manner connected to a waterworks.

"Containment" means the safeguard against backflow into a waterworks from a consumer's water system by installing an appropriate backflow prevention assembly, backflow prevention device, or backflow elimination method at the service connection.

"Contaminant" means any objectionable or hazardous physical, chemical, biological, or radiological substance or matter in water.

"Conventional filtration treatment" means a series of processes including coagulation, flocculation, sedimentation, and filtration resulting in substantial particulate removal.

"Corrosion inhibitor" means a substance capable of reducing the corrosivity of water toward metal plumbing materials, especially lead and copper, by forming a protective film on the interior surface of those materials.

"Cross connection" "Cross-connection" means any connection or structural arrangement, direct or indirect, to the waterworks whereby actual or potential link, connection, or physical arrangement, direct or indirect, between used water, an auxiliary water system, or other source of contamination to the waterworks through which backflow can occur.

"CT" or "CTcalc" means the product of "residual disinfectant concentration" (C) in mg/L determined before or at the first customer, and the corresponding "disinfectant contact time" (T) in minutes (i.e., "C" x "T").

"Daily fluid intake" means the daily intake of water for drinking and culinary use and is defined as two liters.

"Dechlorination" means the partial or complete reduction of residual chlorine in water by any chemical or physical process at a waterworks with a treatment facility.

"Degree of hazard" means the level of health hazard, as derived from an evaluation of the potential risk to health and the adverse effect upon the waterworks.

"DBPPs" means disinfection byproduct precursors.

"DBPs" means disinfection byproducts.

"DCLS" means the Virginia Department of General Services, Division of Consolidated Laboratory Services.

"Department" means the Virginia Department of Health.

"DEQ" means the Virginia Department of Environmental Quality.

"Diatomaceous earth filtration" means a process resulting in substantial particulate removal in which (i) a precoat cake of diatomaceous earth filter media is deposited on a support membrane (septum), and (ii) while the water is filtered by passing through the cake on the septum, additional filter media known as body feed is continuously added to the feed water to maintain the permeability of the filter cake.

"Direct filtration" means a series of processes including coagulation and filtration but excluding sedimentation resulting in substantial particulate removal.

"Disinfectant" means any oxidant (including chlorine) that is chemical and physical agents, including chlorine, chlorine dioxide, chloramines, ozone, and UV light, added to water in any part of the treatment or distribution process for the purpose of killing or deactivating inactivating pathogenic organisms.

"Disinfectant contact time" ("T" in CT calculations) means the time in minutes that it takes for water to move from the point of disinfectant application to the point where residual disinfectant concentration ("C") is measured.

"Disinfection" means a process that inactivates or destroys pathogenic organisms in water by chemical oxidants or equivalent agents use of a disinfectant.

"Disinfection profile" means a summary of Giardia lamblia or virus inactivation through the water treatment plant.

"Distribution main" means a water main pipeline whose primary purpose is to provide treated convey drinking water to service connections.

"District engineer" means the employee assigned by the Commonwealth of Virginia, Department of Health, Office of Drinking Water to manage its regulatory activities in a geographical area of the state consisting of a state planning district or subunit of a state planning district.

"Domestic or other nondistribution system plumbing problem" means a coliform contamination problem in a waterworks with more than one service connection that is limited to the specific service connection from which the coliform positive sample was taken.

"Distribution system" means a network of pipelines and appurtenances by which a waterworks delivers drinking water to its consumers.

"DOC" means the dissolved organic carbon in a water sample.

"Double gate-double check valve assembly" means an approved assembly composed of two single independently acting check valves including tightly closing shutoff valves located at each end of the assembly and petcocks and test gauges for testing the watertightness of each check valve.

"DPOR" means the Virginia Department of Professional and Occupational Regulation.

"Drawdown" means the difference, measured vertically, between the static water level in the well and the water level during pumping.

"Dual sample set" means a set of two samples collected at the same time and same location, with one sample analyzed for TTHM and the other sample analyzed for HAA5. Dual sample sets are collected for the purposes of conducting an initial distribution system evaluation (IDSE) under 12VAC5-590-370 B 3 e (2) and determining compliance with the TTHM and HAA5 MCLs under 12VAC5-590-370 B 3 e (3).

"Effective corrosion inhibitor residual" means, for the purpose of 12VAC5-590-405 A 1 only, a concentration sufficient to form a passivating film on the interior walls of a pipe.

"EDR" means electrodialysis reversal.

"Enhanced coagulation" means the addition of sufficient coagulant for improved removal of disinfection byproduct precursors by conventional filtration treatment.

"Enhanced softening" means the improved removal of disinfection byproduct precursors by precipitative softening.

"Entry point" means the place where water from the source after application of any treatment is delivered to the distribution system. Where two or more sources are combined before distribution, the entry point is the location that is representative of the blended water following all treatment.

"Equivalent residential connection" means a volume of water used equal to a residential connection that is 400 gallons per day unless supportive data indicates otherwise.

"Exception" means an approved deviation from a "shall" criteria contained in Part III (12VAC5-590-640 et seq.) of this chapter.

"EPA" means the U.S. Environmental Protection Agency.

"Exemption" means a conditional waiver of allowing a waterworks that satisfies the criteria in 12VAC5-590-150 to deviate from a specific PMCL or treatment technique requirement that is granted to a specific the waterworks for a limited period of time.

"Filter profile" means a graphical representation of individual filter performance, based on continuous turbidity measurements or total particle counts versus time for an entire filter run, from startup start-up to backwash inclusively, that includes an assessment of filter performance while another filter is being backwashed.

"Filtration" means a process for removing particulate matter from water by passage through porous media.

"Finished water" means water that is introduced into the distribution system of a waterworks and is intended for distribution and consumption without further treatment, except as treatment is necessary to maintain water quality in the distribution system (e.g., booster disinfection, addition of corrosion control chemicals).

"First draw sample" means a one-liter sample of tap water, collected in accordance with 12VAC5-590-375 B 2, that has been standing in plumbing pipes at least six hours and is collected without flushing the tap.

"Flocculation" means a process to enhance agglomeration or collection of smaller floc particles into larger, more easily settleable particles through gentle stirring by hydraulic or mechanical means.

"Flowing stream" means a course of running water flowing in a definite channel.

"Free available chlorine" means that portion of the total residual chlorine residual remaining in water at the end of a specified contact period that will react chemically and biologically as hypochlorous acid or hypochlorite ion.

"GAC10" means granular activated carbon filter beds with an empty-bed contact time of 10 minutes based on average daily flow and a carbon reactivation frequency of every 180 days, except that the reactivation frequency for GAC10 used as a best available technology for compliance with 12VAC5-590-410 C 2 b (1) (b) shall be 120 days.

"GAC20" means granular activated carbon filter beds with an empty-bed contact time of 20 minutes based on average daily flow and a carbon reactivation frequency of every 240 days.

"Governmental entity" means the Commonwealth, a town, city, county, service authority, sanitary district, or any other governmental body established under the Code of Virginia, including departments, divisions, boards, or commissions.

"GAC" means granular activated carbon.

"Gross alpha particle activity" means the total radioactivity due to alpha particle emission as inferred from measurements on a dry sample.

"Gross beta particle activity" means the total radioactivity due to beta particle emission as inferred from measurements on a dry sample.

"Groundwater" means all water obtained from sources not classified as surface water (or surface water sources).

"Groundwater system" means any waterworks that uses groundwater as its source of supply; however, a waterworks that combines all its groundwater with surface water or with groundwater under the direct influence of surface water prior to before treatment is not a groundwater system. Groundwater systems include consecutive waterworks that receive finished groundwater from a wholesale waterworks potable water from another groundwater source.

"Groundwater under the direct influence of surface water" or "GUDI" means any water beneath the surface of the ground with (i) significant occurrence of insects or other macroorganisms, algae, or large-diameter pathogens such as Giardia lamblia, or Cryptosporidium. It also means or (ii) significant and relatively rapid shifts in water characteristics such as turbidity, temperature, conductivity, or pH that closely correlate to climatological or surface water conditions. The commissioner GUDI source determinations shall be made by the department in accordance with 12VAC5-590-430 will determine direct influence of surface water.

"GWMA" means the groundwater management area designation by the State Water Control Board.

"Haloacetic acids (five)" or "HAA5" means the sum of the concentrations in milligrams per liter of the haloacetic acid compounds (monochloroacetic acid, dichloroacetic acid, trichloroacetic acid, monobromoacetic acid, and dibromoacetic acid), rounded to two significant figures after addition acids, expressed in milligrams per liter (mg/L) as rounded to two significant figures. For the purpose of this chapter the HAA5 shall mean monochloroacetic acid, dichloroacetic acid, trichloroacetic acid, monobromoacetic acid, and dibromoacetic acid.

"Halogen" means one of the chemical elements chlorine, bromine, fluorine, astatine, or iodine.

"Health hazard" means any condition, device, or practice in a waterworks or its operation that creates, or may create, a danger to the health and well-being of the water consumer.

"Health regulations" means regulations that include all primary maximum contaminant levels, treatment technique requirements, and all operational regulations, the violation of which would jeopardize the public health.

"HPC" means the heterotrophic plate count of a bacterial population.

"Human consumption" means drinking, food preparation, dishwashing, bathing, showering, hand washing, teeth brushing, and maintaining oral hygiene.

"Hypochlorite" means a solution of water and some form of chlorine, usually sodium hypochlorite the ionic component from the disassociation of hypochlorous acid that performs the function of disinfection. It is the available active ingredient in liquid hypochlorite disinfectants such as sodium and calcium hypochlorite.

"Initial compliance period" means for all regulated contaminants, the initial compliance period is the first full three-year compliance period beginning at least 18 months after promulgation with the exception of waterworks with 150 or more service connections for contaminants listed at Table 2.3, VOC 19-21; Table 2.3, SOC 19-33; and antimony, beryllium, cyanide (as free cyanide), nickel, and thallium that shall begin January 1993 the compliance period in which chemical monitoring begins.

"Interchangeable connection" means an arrangement or device that will allow alternate but not simultaneous use of two sources of water.

"Isolation" means the safeguard against backflow into a waterworks from a consumer's water system by installing an appropriate backflow prevention assembly or device or by installing a backflow elimination method at the sources of potential contamination in the consumer's water system. This is also called point-of-use isolation.

"Karst geology" means an area predominantly underlain by limestone, dolomite, or gypsum and characterized by rapid underground drainage. Such These areas often feature sinkholes, caverns, and sinking or disappearing creeks. In Virginia, this generally includes all that area west of the Blue Ridge and, in Southwest Virginia, east of the Cumberland Plateau.

"Lake/reservoir" "Lake or reservoir" means a natural or manmade man-made basin or hollow on the Earth's surface in which water collects or is stored that may or may not have a current or single direction of flow.

"Large waterworks" means, for the purposes of 12VAC5-590-375, 12VAC5-590-405, 12VAC5-590-530 F, and 12VAC5-590-550 D only, a waterworks that serves more than 50,000 persons.

"Lead free" means the following: 1. When (i) when used with respect to solders and flux, refers to solders and flux containing not more than 0.2% lead; 2. When and (ii) when used with respect to pipes, and pipe fittings, refers to pipes and pipe fittings containing not more than 8.0% lead; pipe fittings, plumbing fittings, and plumbing fixtures, refers to the weighted average of wetted surfaces of pipes, pipe fittings, plumbing fittings, and plumbing fixtures containing not more than 0.25% lead.

3. When used with respect to plumbing fittings and fixtures intended by the plumbing manufacturer to dispense water for human ingestion, refers to fittings and fixtures that are in compliance with standards established in accordance with 42 USC § 300g-6(e).

"Lead service line" means a service line pipeline made of lead that connects the water distribution main to the building inlet and any lead pigtail, gooseneck, or other fitting that is connected to such lead line the lead pipeline.

"Leakage" means the loss of potable water from the distribution system, up to the points of service connections, through breaks or defects in piping and piping appurtenances.

"Legionella" means a genus of bacteria, some species of which have caused cause a type of pneumonia called Legionnaires disease.

"Level 1 assessment" means an evaluation to identify the possible presence of sanitary defects, defects in distribution system coliform monitoring practices, and, when possible, the likely reason that the waterworks triggered the assessment.

"Level 2 assessment" means an evaluation to identify the possible presence of sanitary defects, defects in distribution system coliform monitoring practices, and, when possible, the likely reason that the waterworks triggered the assessment in a more comprehensive investigation than a Level 1 assessment.

"Liquid chlorine" means a liquefied, compressed chlorine gas as shipped in commerce.

"Locational running annual average" or "LRAA" means the average of sample analytical results for samples taken at a particular monitoring location during the previous four calendar quarters.

"Log inactivation (log removal)" means that a 99% reduction is a 2-log inactivation; a 99.9% reduction is a 3-log inactivation; a 99.99% reduction is a 4-log inactivation the inactivation of organisms expressed on a logarithmic scale. For example, a 99.9% inactivation is a 3-log inactivation; whereas a 99.99% inactivation is a 4-log inactivation.

"Manmade beta particle and photon emitters" means all radionuclides emitting beta particles and/or photons listed in the most current edition of "Maximum Permissible Body Burdens and Maximum Permissible Concentration of Radionuclides in Air or Water for Occupational Exposure," National Bureau of Standards Handbook 69, except the daughter products of thorium-232, uranium-235 and uranium-238.

"Log removal" means the removal of organisms expressed on a logarithmic scale. For example, a 99.9% is a 3-log removal; whereas a 99.99% removal is a 4-log removal.

"Maximum contaminant level" or "MCL" means the maximum permissible level of a contaminant in pure potable water that is delivered to any user consumer of a waterworks. MCLs are set as close to the MCLGs as feasible using the best available treatment technology BAT. MCLs may be either "primary" (PMCL), meaning based on health considerations, or "secondary" (SMCL), meaning based on aesthetic considerations.

"Maximum contaminant level goal" or "MCLG" means the maximum level of a contaminant in drinking water at which no known or anticipated adverse effect on the health of persons would occur and that allows an adequate margin of safety. Applying an adequate margin of safety to the MCLG allows the MCL to be set as the standard. Maximum contaminant level goals are nonenforceable health goals.

"Maximum daily water demand" means the rate of water usage during the day of maximum water use.

"Maximum residual disinfectant level" or "MRDL" means a level of a disinfectant added for water treatment that may not be exceeded at the consumer's tap without an unacceptable possibility of adverse health effects. For chlorine and chloramines, a waterworks is in compliance with the MRDL when the running annual average of monthly averages of samples taken in the distribution system, computed quarterly, is less than or equal to the MRDL. For chlorine dioxide, a waterworks is in compliance with the MRDL when daily samples are taken at the entrance to the distribution system and no two consecutive daily samples exceed the MRDL. MRDLs are enforceable in the same manner as maximum contaminant levels. There is convincing evidence that addition of a disinfectant is necessary for control of waterborne microbial contaminants. Notwithstanding the MRDLs listed in Table 2.12, operators may increase residual disinfectant levels of chlorine or chloramines (but not chlorine dioxide) in the distribution system to a level and for a time necessary to protect public health to address specific microbiological contamination problems caused by circumstances such as distribution line breaks, storm runoff events, source water contamination, or cross-connections.

"Maximum residual disinfectant level goal" or "MRDLG" means the maximum level of a disinfectant added for water treatment at which no known or anticipated adverse effect on the health of persons would occur, and that allows an adequate margin of safety. MRDLGs are nonenforceable health goals and do not reflect the benefit of the addition of the chemical for control of waterborne microbial contaminants.

"Maximum total trihalomethane potential" or "MTP" means the maximum concentration of total trihalomethanes (TTHMs) produced in a given water containing a residual disinfectant residual after seven days at a temperature of 25°C or above.

"Medium waterworks" means, for the purpose of 12VAC5-590-375 and 12VAC5-590-405 only, a waterworks that serves greater than 3,300 and less than or equal to 50,000 persons.

"Membrane filtration" means a pressure or vacuum-driven separation process in which particulate matter larger than one micrometer is rejected by an engineered barrier, primarily through a size exclusion mechanism, and that has a measurable removal efficiency of a target organism that can be verified through the application of a direct integrity test. This definition includes the common membrane technologies of microfiltration, ultrafiltration, nanofiltration, and reverse osmosis Included in this definition are the common membrane classifications of microfiltration (MF), ultrafiltration (UF), nanofiltration (NF), and reverse osmosis (RO).

"Membrane module" means the smallest component of a membrane unit in which a specific membrane surface area is housed in a device with a filtrate outlet.

"Membrane technologies" means those processes that use a permeable membrane to remove ions, molecules, or particles from the process stream, such as MF, UF, NF, RO, and EDR.

"Membrane unit" means a group of membrane modules that share common valving that allows the unit to be isolated from the rest of the system for the purpose of integrity testing or other maintenance.

"Method detection limit" or "MDL" means the minimum concentration of a substance that can be measured and reported with 99% confidence that the analyte concentration is greater than zero and is determined from analysis of a sample in a given matrix containing the analyte.

"Microfiltration" or "MF" means a pressure-driven membrane technology that separates particles, based on the pore-size rating of the membrane, from a feed stream by using a sieving mechanism. Typically, MF can remove particles down to 0.1 micrometer in size.

"Most probable number" or "MPN" means that the density or number of organisms per unit volume that, in accordance with statistical theory, would be more likely than any other number to yield the observed test result or that would yield the observed test result with the greatest frequency, expressed as density of organisms per 100 milliliters. Results are computed from the number of positive findings of coliform-group organisms resulting from multiple-portion decimal-dilution plantings most likely to be present in a water sample and obtained from method-specific statistical MPN tables.

"MPA" means the microscopic particulate analysis method approved by EPA for use in the determination of whether a groundwater is under the influence of surface water.

"Nanofiltration" or "NF" means a pressure-driven membrane technology designed to remove multivalent ions ("softening") and other constituents based on the pore size, which ranges from one to 10 nanometers. Nanofiltration membranes typically operate under a pressure range of 600 to 1100 psi.

"Nondetected" or "ND" means a term typically used by laboratories to express the absence of an analyte in a test sample.

"Noncommunity waterworks" means a waterworks that is not a community waterworks, but operates at least 60 days out of the year.

"Nonpotable water" means water not classified as pure water.

"Nontransient noncommunity waterworks" or "NTNC" means a waterworks that is not a community waterworks and that regularly serves at least 25 of the same persons over six months out of the year. When used in the context of an NTNC, "regularly serves" means four or more hours per day, for four or more days per week, for 26 or more weeks per year.

"NSF" means the National Sanitation Foundation.

"Office" or "ODW" means the Commonwealth of Virginia, Department of Health, Office of Drinking Water.

"One hundred year flood level" elevation" or "100-year flood elevation" means the flood elevation that will, over a long period of time, be equaled or exceeded on the average once every 100 years that has a 1.0% probability of being equaled or exceeded in any given year.

"Operating staff" means individuals employed or appointed by an owner to work at a waterworks. Included in this definition are operators, whether or not the operator's license is appropriate for the classification and category of the waterworks, and unlicensed individuals.

"Operator" means any individual with the requisite skills, employed or appointed by any owner, and who is designated by such the owner to be the person in responsible charge, such as having full responsibility for the waterworks operations and any subordinate operating staff. The individual may be a supervisor, a shift operator, or a substitute in charge, and whose have duties include including testing or evaluation to control waterworks operations. Not included in this definition are superintendents or directors of public works, city engineers, or other municipal or industrial officials whose duties do not include the actual operation or direct supervision of waterworks.

"Optimal corrosion control treatment" means the corrosion control treatment that minimizes the lead and copper concentrations at users' consumers' taps while ensuring that the treatment does not cause the waterworks to violate any other section of this chapter.

"Optimum fluoride ion concentration" means that fluoride ion concentration recommended by the U.S. Public Health Service for protection from dental caries.

"Owner" or "water purveyor" means an individual, group of individuals, partnership, firm, association, institution, corporation, governmental entity, or the federal government that supplies or proposes to supply water to any person within this state the Commonwealth from or by means of any waterworks (see Article 2 (§ 32.1-167 et seq.) of Chapter 6 of Title 32.1 of the Code of Virginia).

"PAC" means powdered activated carbon.

"PCBs" means polychlorinated biphenyls.

"PER" means a preliminary engineering report.

"Permit" means an authorization granted by the commissioner to construct or operate a waterworks.

"Permitted capacity" means the limiting hydraulic capability of the waterworks, taking into consideration the source water capacity, treatment facilities, finished water storage, delivery, and distribution system.

"Person" means any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, or instrumentality thereof.

"pH" means the negative logarithm of the hydrogen ion concentration of an aqueous solution.

"Physical disconnection" means the removal or absence of pipes, fittings, or fixtures that connect a waterworks directly or indirectly to any other water system.

"Picocurie" or "pCi" means that quantity of radioactive material producing 2.22 nuclear transformations per minute.

"Plant intake" means the works or structures at the head of a conduit through which water is diverted from a source (e.g., river or lake) into the treatment plant.

"PMCL" means the same as "maximum contaminant level."

"Point of disinfectant application" means the point where the disinfectant is applied and water downstream of that point is not subject to recontamination by surface water runoff.

"Point-of-entry treatment device" or "POE device" means a treatment device applied to the water entering a house or building for the purpose of reducing contaminants in the water distributed throughout the house or building.

"Point-of-use treatment device" or "POU device" means a treatment device applied to a single tap for the purpose of reducing contaminants in the water at that one tap.

"Pollution" means the presence of any foreign substance (chemical, physical, radiological, or biological) in water that tends to degrade its quality so as to constitute an unnecessary risk to human health or impair the usefulness of the water.

"Pollution hazard" means a condition through which an aesthetically objectionable or degrading material may enter the waterworks or a consumer's water system.

"Postchlorination" means the application of chlorine to water subsequent to treatment.

"Potable water" – see "Pure means the same as "pure water."

"Practical quantitation level" or "PQL" means the lowest level achievable by good laboratories within specified limits during routine laboratory operating conditions that can be reliably measured within specified limits of precision and accuracy during routine laboratory conditions.

"Prechlorination" means the application of chlorine to water prior to before filtration.

"Presedimentation" means a preliminary treatment process used to remove gravel, sand, and other particulate material from the source water through settling before the water enters the primary clarification and filtration processes in a water treatment plant.

"Pressure vacuum breaker assembly" means an assembly designed to prevent backsiphonage and used for high-hazard or low-hazard situations, composed of an independently operating, spring-loaded check valve; an independently operating, spring-loaded air-inlet valve; and tightly closing shutoff valves located at each end of the assembly and fitted with properly located test cocks.

"Primary disinfection" means disinfection to achieve a desired level of inactivation of targeted pathogenic organisms in water by chemical or physical agents as an integral part of the treatment process.

"Process fluids" means any fluid or solution that may be chemically, biologically, or otherwise contaminated or polluted that would constitute a health, pollutional environmental, or system hazard if introduced into the waterworks. This includes, but is not limited to: (i) polluted or contaminated water; (ii) used waters; (iii) cooling waters; (iv) contaminated natural waters taken from wells, lakes or reservoirs, streams, or irrigation systems; (v) chemicals in solution or suspension; or (vi) oils, gases, acids, alkalis, and other liquid and gaseous fluid used in industrial or other processes.

1. Polluted or contaminated water;

2. Process waters;

3. Used waters, originating from the waterworks that may have deteriorated in sanitary quality;

4. Cooling waters;

5. Contaminated natural waters taken from wells, streams, or irrigation systems;

6. Chemicals in solution or suspension; and

7. Oils, gases, acids, alkalis, and other liquid and gaseous fluid used in industrial or other processes, or for firefighting purposes.

"Process water" means water used for dissolving dry chemicals; diluting liquid chemicals; and operating chemical feeders, treatment facilities, or equipment.

"Project documents" means the engineer's report, design criteria, preliminary and final plans, specifications, and procurement documents for the construction of new waterworks or modifications to existing waterworks.

"Pure water" means water fit for human consumption that is (i) sanitary and normally free of minerals, organic substances, and toxic agents in excess of reasonable amounts and (ii) adequate in quantity and quality for the minimum health requirements of the persons served (see Article 2 (§ 32.1-167 et seq.) of Chapter 6 of Title 32.1 of the Code of Virginia).

"Raw water main" means a water main that conveys untreated water from a source to a treatment facility.

"QCRV" means the quality control release value used in challenge tests of microfiltration (MF) and ultrafiltration (UF) membrane filters.

"RAA" means running annual average.

"Reduced pressure principle backflow prevention device assembly" or "RPZ device assembly" means a device containing a minimum of two independently acting check valves together with an automatically operated pressure differential relief valve located between the two check valves an assembly designed to prevent backsiphonage or backpressure backflow used for high or low hazard situations, composed of two independently operating spring-loaded check valves together with an independent, hydraulically operating pressure differential relief valve located between the two check valves. During normal flow and at the cessation of normal flow, the pressure between these two checks shall be less than the supply pressure. In case of leakage of either check valve, the differential relief valve, by discharging to the atmosphere, shall operate to maintain the pressure between the check valves at less than the supply pressure. The unit assembly shall include tightly closing shutoff valves located at each end of the device, RPZ assembly and each device shall be fitted with properly located test cocks. These devices shall be of the approved type.

"REM" means the unit of dose equivalent from ionizing radiation to the total body or any internal organ or organ system. A millirem (MREM) (mrem) is 1/1000 of a an REM.

"Repeat compliance period" means any subsequent compliance period after the initial compliance period.

"Residual disinfectant concentration" ("C" in CT Calculations) means the concentration of disinfectant measured in mg/L in a representative sample of water.

"Responsible charge" means designation by the owner of any individual to have duty and authority to operate or modify the operation of waterworks processes.

"Sanitary facilities" means piping and fixtures, such as sinks, lavatories, showers, and toilets, supplied with potable water and drained by wastewater piping.

"Reverse osmosis" or "RO" means a membrane technology designed to remove salts, low-molecular weight solutes, and all other constituents up to 0.0001 micron in size by applying a pressure in excess of osmotic pressure to force water through a semi-permeable membrane from a region of high solution concentration to a region of lower solution concentration.

"Sanitary defect" means a defect that could provide a pathway of entry for microbial contamination into the distribution system or that is indicative of a failure or imminent failure in a protective barrier that is already in place.

"Sanitary survey" means an evaluation conducted by ODW the department of a waterworks' water supply, facilities, equipment, operation, maintenance, monitoring records, and overall management of a waterworks to ensure the provision of pure potable water.

"SDWA" means the Safe Drinking Water Act (42 USC § 300f et seq.) and its amendments.

"Seasonal waterworks" means a noncommunity waterworks that is not operated as a waterworks on a year-round basis, and starts up and shuts down at the beginning and end of each operating season.

"Secondary water source" means any approved water source, other than a waterworks' primary source, connected to or available to that waterworks for emergency or other nonregular use.

"Secondary disinfection" means disinfection by chemical oxidants or equivalent agents applied at the entry point or in the distribution system to provide a residual disinfectant in water to maintain water quality and safeguard against chance contamination from permeation, leaching, intrusion, regrowth, or biofilms.

"Sedimentation" means a process for removal of solids before filtration by gravity or separation.

"Service connection" means the point of delivery of finished water to a customer's building service line as follows: from a waterworks to a consumer's water system, fire protection system, or irrigation system and to all other points where finished water is delivered through the distribution system to a consumer. Service connections may be permanent, temporary, or emergency.

1. If a meter is installed, the service connection is the downstream side of the meter;

2. If a meter is not installed, the service connection is the point of connection to the waterworks;

3. When the water purveyor is also the building owner, the service connection is the entry point to the building.

"Service line sample" means a one-liter sample of water, collected in accordance with 12VAC5-590-375 B 2 c, that has been standing for at least six hours in a service line.

"Sewer" means any pipe or conduit used to convey sanitary sewage, stormwater, or industrial waste streams. Combined sewers convey both stormwater and sanitary sewage.

"Significant deficiency" means any defect in a waterworks' design, operation, maintenance, or administration, as well as the failure or malfunction of any waterworks component, that may cause, or has the potential to cause, an unacceptable risk to health or could affect the reliable delivery of pure potable water to consumers.

"Single-family structure" means, for the purpose of 12VAC5-590-375 B only, a building constructed as a single-family residence that is currently used as either a residence or a place of business.

"Site visit" means a tour of a waterworks by department staff or other authorized persons for purposes including assessing and documenting its physical condition, operations, and compliance activities.

"Slow sand filtration" means a process involving passage of raw source water through a bed of sand at low velocity (generally less than 0.4 m/h), resulting in substantial particulate removal by physical and biological mechanisms.

"Small waterworks" means, for the purpose of 12VAC5-590-375, 12VAC5-590-405, 12VAC5-590-530 F and 12VAC5-590-550 D only, a waterworks that serves 3,300 persons or fewer.

"Standard sample" means that portion of finished drinking water that is examined for the presence of coliform bacteria.

"SMCL" means the same as "maximum contaminant level."

"SOP" means standard operating procedure.

"Source water" means water as it is pumped or otherwise withdrawn from a well, spring, stream, lake or reservoir, or any body of surface water (natural or impounded), and before any treatment.

"Supervisory control and data acquisition" or "SCADA" means a computer-controlled system used by a waterworks to monitor its operations. Typical design features may be specific to individual waterworks and include alarm, response, control, and data acquisition.

"Surface water" means all water open to the atmosphere and subject to surface runoff.

"SUVA" means specific ultraviolet absorption at 254 nanometers (nm), an indicator of the humic content of the water. It is a calculated parameter obtained by dividing a sample's ultraviolet absorption at a wavelength of 254 nm (UV254) (in m-1) by its concentration of dissolved organic carbon (DOC) DOC (in mg/L).

"Synthetic organic chemicals" or "SOC" means one of the family of organic manmade compounds generally utilized for agriculture or industrial purposes.

"Synthetic organic chemical" or "SOC" means a man-made organic compound, generally utilized for agriculture or industrial purposes. Table 340.2 lists SOCs regulated as contaminants.

"System hazard" means a condition posing an actual, or threat of, damage to the physical properties of the waterworks or a consumer's water system.

"Terminal reservoir" means an impoundment providing end storage of water prior to treatment.

"TDS" means total dissolved solids.

"TMF" means the technical, managerial, and financial capabilities to operate and maintain a waterworks.

"Too numerous to count" or "TNTC" means that the total number of bacterial colonies exceeds 200 on a 47-mm diameter membrane filter used for coliform detection.

"Total effective storage volume" means the volume available to store water in distribution reservoirs measured as the difference between the reservoir's overflow elevation and the minimum storage elevation. The minimum storage elevation is that elevation of water in the reservoir that can provide a minimum pressure of 20 psi at a flow as determined in 12VAC5-590-690 C to the highest elevation served within that reservoir's service area under systemwide maximum daily water demand.

"Total organic carbon" or "TOC" means total organic carbon in mg/L miiligrams per liter (mg/l) measured using heat, oxygen, ultraviolet irradiation, chemical oxidants, or combinations of these oxidants that convert organic carbon to carbon dioxide, rounded to two significant figures.

"Total trihalomethanes" or "TTHM" means the sum of the concentrations of the trihalomethanes (THMs) expressed in milligrams per liter (mg/L) and rounded to two significant figures. For the purpose of these regulations, the TTHMs this chapter, TTHM shall mean trichloromethane (chloroform), dibromochloromethane, bromodichloromethane, and tribromomethane (bromoform).

"Transient noncommunity waterworks" or "TNC" means a noncommunity waterworks that is not a nontransient noncommunity waterworks (NTNC). A TNC serves at least 25 persons daily for at least 60 days out of the year.

"Transmission main" means a water main whose primary purpose is to move significant quantities of treated water among service areas.

"Treatment" means any process that changes the chemical, physical, radiological, or bacteriological quality of water.

"Treatment technique requirement" or "TT" means a requirement that specifies for a contaminant a specific treatment technique(s) technology or process demonstrated to the satisfaction of the division department to lead to a reduction in the level of such a specific contaminant sufficient to comply with these regulations this chapter.

"Triggered source water monitoring" means monitoring required of any groundwater system as a result of a total coliform-positive sample in the distribution system.

"Trihalomethane" or "THM" means one of the family of organic compounds, named as derivatives of methane, wherein three of the four hydrogen atoms in methane are each substituted by a halogen atom in the molecular structure.

"Two-stage lime softening" means a process in which chemical addition and hardness precipitation occur in each of two distinct unit clarification processes in series prior to filtration.

"Ultrafiltration" or "UF" means a membrane technology designed to remove particles up to 0.01 micron in size.

"Unconsolidated" means loose sediment that has not been compacted, cemented, lithified, or metamorphosed into rock. Sediment may be derived from a sedimentary-type, igneous-type, metamorphic-type rock, which includes clay, silt, sand, gravel, and mixtures of  these particle types.

"Uncovered finished water storage facility" means a tank, reservoir, or other facility used to store water that will undergo no further treatment to reduce microbial pathogens (except residual disinfection) and is directly open to the atmosphere.

"Unregulated contaminant" or "UC" means a contaminant for which a monitoring requirement has been established, but for which no MCL or treatment technique requirement has been established.

"USBC" means the Uniform Statewide Building Code (13VAC5-63).

"Used water" means any water supplied by a water purveyor from the waterworks to a consumer's water system after it has passed through the service connection and is no longer under the control of the owner.

"UV" means ultraviolet.

"Variance" means a conditional waiver of a specific regulation that is granted to a specific waterworks allowing a waterworks that satisfies the criteria in 12VAC5-590-140 to provide drinking water that does not fully comply with the regulations. A PMCL variance is a variance to a primary maximum contaminant level, or a treatment technique requirement. An operational variance is a variance to an operational regulation or a secondary maximum contaminant level SMCL. Variances for monitoring, reporting and public notification requirements will not be granted.

"Virus" means a microbe virus of fecal origin that is infectious to humans by waterborne transmission and must be preemptively inactivated through disinfection before human consumption.

"Volatile synthetic organic chemical" or "VOC" means one of the family of manmade organic compounds generally characterized by low molecular weight and rapid vaporization at relatively low temperatures or pressures.

"Volatile organic chemical" or "VOC" means an organic compound generally characterized by its low molecular weight and its tendency to vaporize rapidly at relatively low temperatures and pressures. Table 340.2 lists VOCs regulated as contaminants.

"VOSH" means the Virginia Occupational Safety and Health program.

"Waiver" means permission from the department to deviate from the monitoring and reporting requirements in the regulations for a specific contaminant.

"Waterborne disease outbreak" means the significant occurrence of acute infectious illness, epidemiologically associated with the ingestion of water from a waterworks that is deficient in treatment, as determined by the commissioner or the State Epidemiologist.

"Water purveyor" (same as owner).

"Water supply" means the source of water that shall have been taken into a waterworks from all including wells, streams, springs, lakes or reservoirs, and other bodies of surface waters (natural or impounded), and the tributaries thereto, and all impounded groundwater, but the. The term "water supply" shall not include any waters above the point of intake of such the waterworks (see Article 2 (§ 32.1-167 et seq.) of Chapter 6 of Title 32.1 of the Code of Virginia).

"Water supply main" or "main" means any water supply pipeline that is part of a waterworks distribution system.

"Water Well Completion Report" means a report form published by the State Water Control Board entitled "Water Well Completion Report," which requests specific information pertaining to the ownership, driller, location, geological formations penetrated, water quantity and quality encountered as well as construction of water wells. The form is to be completed by the well driller.

"Water treatment plant" means that portion of a waterworks intended specifically for water treatment; it may include, among other operations, coagulation, sedimentation, filtration, and disinfection.

"Waterworks" means a system that serves piped water for human consumption to at least 15 service connections or 25 or more individuals for at least 60 days out of the year. "Waterworks" includes all structures, equipment, and appurtenances used in the storage, collection, purification, treatment, and distribution of pure potable water except the piping and fixtures inside the building where such water is delivered (see Article 2 (§ 32.1-167 et seq.) of Chapter 6 of Title 32.1 of the Code of Virginia).

"Waterworks with a single service connection" means a waterworks that supplies drinking water to consumers via a single service line.

"Waterworks business operation plan" means the same as "comprehensive business plan."

"Wholesale waterworks" means a waterworks that treats source water as necessary to produce finished potable water and then delivers some or all of that finished potable water to another waterworks. Delivery may be through a direct connection or through the distribution system of one or more consecutive waterworks.

B. As used in this chapter, the following units of measurement shall use the abbreviations as shown in this subsection:

C – degrees Celsius

CU – color units

ft2 – square feet of area

ft/min – feet per minute

ft/sec – feet per second

gpd – gallons per day

gpd/ft2 – gallons per day per square foot

gpm – gallons per minute

gpm/ft – gallons per minute per foot

gpm/ft2 – gallons per minute per square foot

in – inches

lb – pounds

lb/day – pounds per day

lb/ft2 – pounds per square foot

MFL – million fibers per liter

MGD – million gallons per day

mg/L – milligrams per liter

min – minutes

mJ/cm2 – millijoules per square centimeter

mrem – millirem

nm – nanometer (10-9 meter)

NTU – nephelometric turbidity units

pCi – picocuries

pCi/L – picocuries per liter

ppb – parts per billion, or micrograms per liter (μg/L)

ppm – parts per million, or milligrams per liter (mg/L)

ppq – parts per quadrillion, or pictograms per liter (pq/L)

ppt – parts per trillion, or nanograms per liter (ng/L)

psi – pounds per square inch

psig – pounds per square inch gauge

scfm/ft2 – standard cubic feet per minute per square foot

µm – micrometers (10-6 meter or microns)

µg/L – micrograms per liter

µS/cm – microSiemens per centimeter

W/m2 – Watts per square meter

Article 2
General Information

12VAC5-590-20. Authority for regulations. (Repealed.)

Article 2 (§ 32.1-5 et seq.) of Chapter 1 of Title 32.1 of the Code of Virginia provides that the State Board of Health has the duty to protect the public health and to ensure that all water supplies destined for public consumption be pure water. In order to discharge that duty, the board is empowered to supervise and regulate all waterworks and water supplies within the state (see Article 2 of Chapter 1 of Title 32.1 of the Code of Virginia).

12VAC5-590-30. Purpose of regulations. (Repealed.)

These regulations have been promulgated by the board to: 1. Ensure that all water supplies destined for public consumption be pure water; 2. Guide the commissioner in his determination of whether a permit for a public water supply or waterworks should be issued; and 3. Assist the owner or his authorized engineer in the preparation of an application, plans, specifications, reports and other data.

12VAC5-590-35. Delegation of authority.

The commissioner, or the commissioner's designee, may perform any act of the board provided under this chapter, except as limited by § 32.1-20 of the Code of Virginia.

12VAC5-590-40. Administration of regulations this chapter.

These regulations are administered by the following parties:

1. State Board of Health, which has responsibility A. The board is responsible for promulgating, amending, and repealing regulations which to ensure a supply of pure potable water.

2. State Health Commissioner, who is the executive officer B. The commissioner is vested with all the authority of the State Board of Health with the authority of the board when it is not in session, and subject to such rules and regulations as may be prescribed by the board.

3.Division of Water Supply Engineering, which C. The department is designated as the primary reviewing agent of the board for the purpose of administering this chapter. It examines and passes upon the technical aspects of all applications and plans for waterworks projects prior to the before drafting of a permit for final approval by the State Health Commissioner commissioner. It also has primary responsibility for monitoring waterworks operations to ensure that water supplied to the public is pure consumers is potable water.

4. Central and field offices, which are maintained by the division, the central office is located in Richmond, Virginia. The Office of Water Programs maintains six field offices which are responsible for activities of the division within their service areas. Applications for waterworks permits should be submitted to the appropriate field office. The addresses of the field offices and a description of the areas that they serve are listed in Appendix C.

5. Waterworks Advisory Committee, which shall be appointed by the commissioner, shall consist of thirteen appointed members and three ex officio members specified below. The commissioner shall appoint to the Waterworks Advisory Committee one individual each from the following: a member of the Virginia Section American Water Works Association; a member of the Virginia Society of Professional Engineers; a member of the Virginia Water Well Association, Inc.; a member of the Consulting Engineers Council; a water treatment plant operator having a valid license of the highest classification in waterworks issued by the State Board for Waterworks and Wastewater Works Operators; a faculty member of a state university or college whose principal field of teaching is Environmental Engineering; a community waterworks owner; a nontransient noncommunity (NTNC) representative; a representative from Virginia Rural Water Association; a representative from Virginia Water Projects, Inc.; a representative from the Virginia Municipal League; a representative from the Virginia Association of Counties; and a citizen representative. Ex officio members shall consist of the Director, Office of Water Programs, who shall act as chairman; Director, Division of Water Supply Engineering; and Director, Division of Consolidated Laboratory Services or their designees.

Appointed members shall serve at the discretion of the commissioner with staggered terms being of three years in duration. The Waterworks Advisory Committee shall make recommendations to the commissioner regarding waterworks and water supply policies, procedures and programs of the division.

12VAC5-590-45. Waterworks Advisory Committee.

A. A Waterworks Advisory Committee (WAC) shall be formed by the commissioner to peer review the regulatory, policy, and legislative aspects of the department's authorities. Committee members shall consist of industry professionals employed outside the department with longstanding expertise or vested interest in waterworks operations and represent a diverse group of stakeholders. Members shall be experts in the fields of water treatment technologies, public health, water quality, economics, environmental science, public utilities, community development, or industry regulations. A minimum of nine persons shall be appointed to the committee by the commissioner.

B. The WAC will convene at least quarterly.

C. WAC meetings will be considered public meetings. Notice of scheduled meetings will be posted on the Virginia Regulatory Town Hall at least seven working days before the date of the meeting. Meeting minutes will be posted to the Virginia Regulatory Town Hall within 10 working days after the meeting.

D. Each member of the WAC shall hold office for a term of three years, except that:

1. With approval by the commissioner, members are eligible for reappointment to consecutive terms.

2. Each member of the WAC serves at the pleasure of the commissioner.

E. The commissioner shall appoint the chair of the WAC.

F. The WAC shall have a department staff member serve as secretary.

12VAC5-590-50. Application of regulations to waterworks and water supplies in operation or planned prior to before the effective date of the regulations this chapter.

Waterworks and water supplies which were in operation prior to the effective date of the regulations may continue operation if they comply with the operational regulations set forth in Part II. Operation permits, which will be in addition to all permits previously received, will be issued to such waterworks as soon as practicable after the effective date of these regulations.

A. Waterworks and water supplies unable to comply with Part II of this chapter may be issued the appropriate variances and/or exemptions in conjunction with the operation permit to allow continued operation during the period of adjustment. Any variances and/or exemptions will be issued in accordance with the procedures contained in Article 3 of Part I of this chapter The owner shall comply with Part II (12VAC5-540-340 et seq.) of this chapter unless a variance or exemption is issued by the commissioner.

B. Compliance with design criteria set forth in Parts Part III and IV of this chapter is necessary for waterworks modification limited to modifications to existing waterworks and for all construction of new waterworks commenced after the effective date of these revised regulations (insert effective date of this chapter). Portions of waterworks not being modified are not required to comply with the design criteria of Part III (12VAC5-590-640 et seq.). Waterworks construction or modification is deemed to be commenced for purposes of this section upon receipt of final plans and specifications by the field office issuance of the construction permit.

C. Compliance with the requirements set forth in Parts Part III and IV of this chapter including those for materials, construction methods, and disinfection, etc., is necessary for all repairs to pipes, tanks, pumps, and appurtenances which that are part of a waterworks.

D. Volatile Synthetic Organic Chemicals (VOCs) and Unregulated Contaminants (UCs) Regulations are effective immediately for those community and NTNC waterworks which serve more than 10,000 persons. The VOC and UC regulations are effective immediately for community and NTNC waterworks serving 3,300 to 10,000 persons. The VOC and UC regulations become effective on January 1, 1991, for community and NTNC waterworks serving less than 3,300 persons. (See Table 2.7.)

E. The Lead and Copper Regulations establish a treatment technique that includes requirements for corrosion control treatment, water supply (source water) treatment, lead service line replacement, and public education. These requirements are triggered, in some cases, by lead and copper action levels measured in samples collected at consumers' taps. Unless otherwise indicated, each of the provisions of 12VAC5-590-375, 12VAC5-590-405, 12VAC5-590-530 F and 12VAC5-590-550 D applies to community waterworks and nontransient noncommunity waterworks. The requirements set forth in 12VAC5-590-375, 12VAC5-590-530 D and 12VAC5-590-550 D shall take effect on July 7, 1991.

12VAC5-590-55. Relationship of this chapter to the Uniform Statewide Building Code.

A. This chapter governs waterworks facilities from any source water to all service connections.

B. In accordance with § 36-98 of the Code of Virginia and the USBC, the USBC governs the construction of buildings and structures, including plumbing systems and backflow prevention methods. The USBC also governs the water service piping from the service connection to a building or structure.

C. Notwithstanding subsections A and B of this section, this chapter shall govern:

1. Water treatment, storage, pumping facilities, and water piping that are part of a waterworks and housed in any building or structure; and

2. Backflow prevention assemblies or elimination methods, or both, installed for containment and located downstream from the service connection, including where located in any building or structure.

Article 3
Procedures

12VAC5-590-60. Compliance with the Administrative Process Act. (Repealed.)

The provisions of the Administrative Process Act (Chapter 1.1:1 of Title 9) and Title 32.1 of the Code of Virginia govern this chapter. All procedures outlined below are in addition to, or in compliance with, the requirements of that Act.

12VAC5-590-70. Powers and procedures.

The board reserves the right to authorize utilize any lawful procedure for the enforcement of this chapter that is consistent with the provisions set forth herein and the provisions of Title 32.1 of the Code of Virginia.

12VAC5-590-80. Procedure. (Repealed).

Regulations for the operations, construction, or modification of a waterworks or water supply are established, amended, or repealed only in accordance with the Administrative Process Act.

12VAC5-590-100. Exception; emergency regulations.

If the establishment of a regulation is necessary for the preservation of public health, safety, or welfare to meet any emergency not provided for by this chapter, the board or commissioner acting on behalf of the board when it is not in session may immediately promulgate and adopt the necessary regulation by complying with the procedures set forth in either § 2.2-4011 or § 32.1-13 of the Code of Virginia.

12VAC5-590-110. Enforcement.

All waterworks must be operated in compliance with the requirements as set forth in this chapter as follows:

1. A. Notice. Whenever the commissioner, his appointed representative, or the division department has reason to believe that a violation of Title 32.1 or of the Code of Virginia or of any section of this chapter has may have occurred or is may be occurring, the division department shall so notify the alleged violator. Such The notice shall (i) be in writing shall; (ii) cite the statute, regulation or regulations that are allegedly being violated, and shall; (iii) state the facts which that form the basis for believing that the violation has may have occurred or is may be occurring; and (iv) include information on the process for obtaining a final decision or fact finding from the department on whether or not a violation has occurred. A notice of violation This notification is not an official finding, case decision, or adjudication but may be accompanied by include a request that certain to the owner to respond timely and to take specific corrective action be taken by a stated deadline.

2. B. Orders. Pursuant to § 32.1-26 of the Code of Virginia, the commissioner board may issue orders to require any owner to comply with the provisions of Title 32.1 of the Code of Virginia or this chapter any law administered by it, the commissioner, or the department; any regulations promulgated by the board, including any section of this chapter; or any case decision of the board or commissioner. The order shall be signed by the commissioner and commissioner, acting on behalf of the board when it is not in session, will sign the order, and the order may require:

a. 1. The immediate cessation or correction of the violation;

b. 2. The acquisition or use of additional equipment, supplies, or personnel to ensure that the violation does not recur;

c. 3. The submission of a plan to prevent future violations;

d. 4. The submission of an application for a variance or exemption;

e. 5. Any other corrective action deemed necessary for proper compliance with the this chapter; or

f. Division review 6. An evaluation and approval, if appropriate, of the required submissions, if appropriate.

3. C. Compliance with effective orders and this chapter. The commissioner may act as the agent of the board to enforce all effective orders and this chapter. Should any owner fail to comply with any effective order or this chapter, the commissioner may:

a. 1. Institute a an administrative proceeding to revoke the owner's permit in accordance with 12VAC5-590-320 and § 32.1-174 of the Code of Virginia or other appropriate administrative remedies;

b. Apply to an appropriate court for an injunction or other legal process to prevent or stop any practice in violation of the order;

c. 2. Request attorney for the Commonwealth to bring a criminal action criminal prosecution by a Commonwealth's attorney with the appropriate jurisdiction in accordance with § 32.1-27 of the Code of Virginia;

d. 3. Request civil action by the Attorney General to bring an action for impose a civil penalty, injunction seek injunctive relief, or other appropriate remedy legal remedies pursuant to §§ 32.1-27 and 32.1-176 of the Code of Virginia; or

e. 4. Do any combination of the above subdivision C 1, C 2, or C 3 of this section.

4. D. Special order. Pursuant to § 32.1-175.01 of the Code of Virginia, the commissioner may, after an informal fact-finding proceeding held in accordance with § 2.2-4019 of the Code of Virginia, issue a special order that may include a civil penalty against an owner who violates the Public Water Supplies Law, §§ 32.1-167 through 32.1-176 of the Code of Virginia, this chapter, or any order of the board.

E. Graduated enforcement actions. Nothing in this section shall prevent the commissioner or the division from taking action prior to issuing an order or department from making efforts to obtain voluntary compliance through conference, warning, or other appropriate means before issuance of an order, instituting an administrative proceeding, or requesting an action by a Commonwealth's Attorney or the Attorney General.

5. Hearing as a matter of right (see 12VAC5-590-180).

12VAC5-590-115. Administrative proceedings.

A. Types of administrative proceedings. Administrative proceedings before the board, the commissioner, or the commissioner's designee, shall include the following forms depending upon the nature of the controversy and the interests of the named party involved.

1. An informal fact-finding proceeding is an informal conference between the department staff and the named party held in accordance with § 2.2-4019 of the Code of Virginia.

2. A formal hearing is an adjudicatory proceeding before the commissioner or a designated hearing officer held in accordance with § 2.2-4020 of the Code of Virginia.

B. Request for administrative proceeding. The named party may request an administrative proceeding by sending a request in writing to the department.

C. Administrative proceeding as a matter of right. The named party whose rights, duties, or privileges have been or may be affected by any action or inaction of the board, commissioner, or department in the administration of this chapter, has a right to both an informal fact-finding proceeding and a formal hearing; however, the commissioner reserves the right to require participation in an informal fact-finding proceeding before granting the request for a formal hearing.

12VAC5-590-120. Emergency Orders orders.

A. The commissioner may, pursuant to § 32.1-175 of the Code of Virginia, issue emergency orders in any case where there is an imminent danger to the public health resulting from the operation of any waterworks or the source of a water supply.

B. An emergency order may be communicated by the best practical notice under all the circumstances and is effective immediately upon receipt. The order may state any requirements necessary to remove the danger to the public health, including the immediate cessation of the operation of the waterworks or the use of any water supply. The commissioner may order the immediate cessation of the operation of any waterworks or the use of any water supply or the correction of any condition causing the production or distribution of any water constituting an imminent danger to the public health and welfare.

C. Violation of an emergency order is subject to civil enforcement and is punishable as a criminal misdemeanor.

D. Emergency orders shall be effective for a period determined by the commissioner.

E. Emergency orders may be appealed in accordance with the provisions of the Administrative Process Act APA.

12VAC5-590-125. Chronically noncompliant waterworks.

A. The commissioner may identify a waterworks as chronically noncompliant (CNC) whenever he determines that:

1. The waterworks has a documented performance record that demonstrates the waterworks is not a dependable supplier of potable water;

2. The owner has shown inadequate technical, financial, or managerial capabilities to provide potable water;

3. The owner has failed to comply with an order issued by the commissioner­;

4. The owner has abandoned the waterworks and has discontinued providing potable water to the consumers; or

5. The owner is subject to a forfeiture order pursuant to § 32.1-174.1 of the Code of Virginia.

B. Once A. If the commissioner determines that a waterworks is CNC a chronically noncompliant waterworks, as defined in § 32.1-167 of the Code of Virginia, he then the commissioner shall issue an order to the owner containing a schedule to bring the waterworks into compliance with this chapter and require the submission of a comprehensive business plan pursuant to § 32.1-172 B of the Code of Virginia waterworks business operation plan. If capital improvements are necessary to bring the waterworks into compliance, and the owner does not possess sufficient assets to make the necessary improvements, the order shall require the owner to make annual, good faith applications for loans, grants, or both, to appropriate financial institutions to secure funding for such improvements, until such the improvements are complete and operational. The owner shall provide a copy of the order to each consumer with a copy of the compliance schedule within 10 calendar days of issuance of the order.

C. The owner shall provide the commissioner a copy of the notice order was distributed and a signed certification of the distribution completion date within five calendar days of completing the notification required in subsection B of this section.

B. Within 15 calendar days of issuance of the commissioner's order, the owner shall certify in writing that a copy of the order was distributed to each consumer within the 10-day period specified in subsection A of this section.

D. C. The commissioner shall send a copy of the order to the chief administrative officer of the locality in which the waterworks is located for appropriate action under § 15.2-2146 of the Code of Virginia.

E. D. In addition to the provisions of § 32.1-27 of the Code of Virginia, any owner who violates this chapter, an order of the board, or a statute governing public water supplies shall be subject to those civil penalties provided in §§ 32.1-167 through 32.1-176 Article 2 (§ 32.1-167 et seq.) of Chapter 6 of Title 32.1 of the Code of Virginia.

12VAC5-590-130. Suspension of this chapter.

If, in the case of a manmade man-made or natural disaster, the commissioner finds determines that certain regulations cannot be complied with and that the public health is better served by access to semiregulated or nonregulated water supplies than by the closing of those affected supplies he may suspend, then the application enforcement of the chapter those regulations may be suspended for specific affected localities designated waterworks and institute a provisional regulatory scheme instituted until the disaster is abated the conditions that brought about the suspension have abated.

12VAC5-590-140. Variances.

A. The commissioner may grant a variance to a primary maximum contaminant level (PMCL), a PMCL, SMCL, treatment technique requirement, or an operational regulation, or a secondary maximum contaminant level (SMCL) by following the appropriate procedures set forth in this section.

1. Requirements for a variance. A PMCL variance may be granted to a waterworks from any requirement respecting with respect to a PMCL or SMCL upon a finding that:

a. Alternative sources of water supplies are not reasonably available to the waterworks;

b. The characteristics of the raw water sources which are source water that is reasonably available to the waterworks prevent prevents the waterworks from meeting the PMCL or SMCL requirements, and on condition that the waterworks installs the best available technology BAT, treatment techniques, or other means, which that the commissioner finds are generally available (taking costs into consideration); and

c. The granting of a variance will not result in an unreasonable risk to the health of persons served by the waterworks.

2. The commissioner may grant a one or more treatment technique variance variances to a waterworks from any requirement of a specified treatment technique upon a finding that the waterworks applying for the variance has demonstrated that such the treatment technique is not necessary to protect the health of persons because of the nature of the raw water source of such source water at the waterworks.

3. The commissioner may grant a variance to a waterworks from an operational regulation or a SMCL if a thorough investigation reveals that the hardship imposed outweighs the benefits that may be received by the public and that the granting of such the variance does not subject the public to unreasonable health risks. An operational variance may not be issued from monitoring, reporting, or public notification requirements.

4. An operational variance may not be issued from monitoring, reporting, or public notification requirements.

B. Application Request for a variance. Any owner may apply in writing for a variance. The application should request shall be sent to the appropriate field office department for evaluation. All applications requests for a variance shall include the following:

1. A citation of the regulation from which a variance is requested;

2. The nature and duration of the variance requested;

3. Relevant analytical results of water quality sampling of the waterworks, including results of relevant tests conducted pursuant to the requirements of this chapter;

4. A statement of the hardship to the owner and the anticipated impacts to the public health and welfare if a variance were granted;

5. Suggested conditions that might be imposed on the granting of a variance that would limit its detrimental impact on public health and welfare;

6. Other information, if any, believed by the applicant owner to be pertinent to the application request; and

7. Such Any other information as may be required by the commissioner to make the determination.

8. C. For any application request made for a PMCL variance, the applicant owner shall also include;:

a. Explanation 1. An explanation in full and evidence of the best available treatment technology and techniques BAT;

b. Economic 2. The economic and legal factors relevant to the owner's ability to comply;

c. Analytical 3. The analytic results of raw water source water quality relevant to the variance request;

d. 4. A proposed compliance schedule including the date each step toward compliance will be achieved. Such The schedule shall include as a minimum the following dates:

(1) Date a. The date by which arrangement for an alternative raw water source source water or improvement of an existing raw water source source water will be completed;

(2) Date b. The date of initiation of the connection of the alternative raw water source source water or improvement of the existing raw water source source water; and

(3) Date c. The date by which final compliance is to be achieved.

e. 5. A plan for the provision of safe drinking potable water in the case of an excessive rise in the contaminant level for which the variance is requested; and

f. 6. A plan for interim control measures during the effective period of the variance.; and

7. A plan for notifying the consumers at least once every three months, or more frequently if determined by the commissioner, that the waterworks is operating under the conditions of a variance.

9. D. For any application request made for a treatment technique variance, the applicant owner must also include a statement that monitoring and other reasonable requirements prescribed by the commissioner as a condition to the variance will be performed.

C. E. Consideration of a variance application request.

1. The commissioner shall act on any variance application request submitted pursuant to subsection B of this section within 90 days of receipt of the application submittal.

2. The commissioner will consider comments received during the comment period and testimony in the record of a public hearing held before making a determination.

3. In the commissioner's consideration of whether the waterworks is unable to comply with a contaminant level required by this chapter (PMCL variance) because of the nature of the raw water source source water, the commissioner shall consider such factors as the following:

a. The availability and effectiveness of treatment methods BAT for which the variance is requested.; and

b. Cost The cost and other economic considerations such as implementing treatment, improving the quality of the source water, or using an alternate source.

3. 4. In the commissioner's consideration of whether a waterworks should be granted a variance to a required treatment technique because such the treatment is unnecessary to protect the public health (treatment technique variance), the commissioner shall consider such factors as the following:

a. Quality of the source water source including water quality data and pertinent sources of pollution.; and

b. Source protection measures employed by the waterworks.

4. 5. In the commissioner's consideration of whether a waterworks should be granted a variance to a required operational procedure or SMCL (operational variance), the commissioner shall consider such factors as the following:

a. The effect that such a variance would have on the adequate operation of the waterworks, including operator safety (in accordance with Virginia Occupational Safety and Health laws). in accordance with VOSH laws and regulations;

b. The cost and other economic considerations imposed by this requirement.; and

c. The effect that such a variance would have on the protection of the public health.

D. F. Disposition of a variance application request.

1. The commissioner may reject any application request for a variance by sending a rejection notice to the applicant. The rejection notice shall be in writing and shall state the reasons for the rejection. A rejection notice constitutes a case decision. The applicant has the right to petition for a hearing within 60 days of the date of the rejection to challenge the rejection pursuant to 12VAC5-590-160 and 12VAC5-590-180 If the commissioner proposes to deny the variance, the owner shall be provided with an opportunity for an informal fact-finding proceeding as provided in § 2.2-4019 of the Code of Virginia.

2. If the commissioner grants the variance, the applicant shall be notified in writing of this decision. Such The notice shall identify the variance, the waterworks covered, and shall specify the period of time for which the variance will be effective.

a. For a PMCL variance as specified in subdivision A 1 of this section, such the notice shall provide that the variance will be terminated when the waterworks comes into compliance with the applicable regulation and may be terminated upon a finding by the commissioner that the waterworks has failed to comply with any requirements of a final schedule issued pursuant to subdivision D F 3 of this section.

b. For a treatment technique variance as specified in subdivision A 2 of this section, such the notice shall provide that the variance may be terminated at any time upon a finding by the commissioner that the nature of the raw water source water is such that the specified treatment technique for which the variance was granted is necessary to protect the public health or upon a finding that the waterworks has failed to comply with monitoring and other requirements prescribed by the commissioner as a condition to the granting of the variance.

c. For an operational variance as specified in subdivision A 3 of this section, such the notice shall provide that the variance will be terminated when the waterworks comes into compliance with the applicable regulation and may be terminated upon a finding by the commissioner that the waterworks has failed to comply with any requirements or schedules issued in conjunction with the variance. The effective date of the operational variance shall be the date of its issuance. A public hearing is not required before the issuance of an operational variance.

3. Schedules pursuant to PMCL and treatment technique variances:

a. The proposed schedule for compliance shall specify dates by which steps towards toward compliance are to be taken, including where applicable:

(1) Date by which arrangement for an the alternative water source water or improvement of the existing raw water. source water will be completed;

(2) Date of connection to the alternative raw water source water or improvement of the existing raw water. source water; and

(3) Date by which final compliance is to be achieved.

b. If the waterworks has no access to an alternative raw water source water and can effect or anticipate no adequate improvement of the existing raw water source water, then the proposed schedule may specify an indefinite time period for compliance until a new and effective treatment technology is developed, at which time a new compliance schedule shall be prescribed by the commissioner.

c. The schedule for implementation of interim control measures during the period of variance shall specify interim treatment techniques, methods, and equipment and dates by which steps toward meeting the interim control measures are to be met.

d. The schedule shall be prescribed by the commissioner at the time the variance is granted.

e. For a PMCL variance specified in subdivision A 1 of this section, the commissioner shall propose a schedule for:

(1). Compliance (including increments of progress) by the waterworks with each contaminant level requirement covered by the variance; and

(2). Implementation by the waterworks of such control measures as the commissioner may require for each contaminant level covered by the variance.

E. G. Public hearings on PMCL and treatment technique variances and their schedules.

1. Notice of a public hearing shall be provided before a variance and schedule proposed by the commissioner pursuant to subsection D F of this section may take effect. A notice given pursuant to the preceding sentence this subsection may cover the granting of more than one variance and a public hearing held pursuant to such notice shall include each of the variances covered by the notice.

2. Notice of a public hearing on an application a request for a variance and its schedule shall be advertised in at least one major newspaper of general circulation in the region in which the waterworks is located. The notice shall include a summary of the proposed variance and its schedule and shall contain the time, date, and place of the public hearing. If the schedule exceeds five years from the date of the variance, then the rationale for the extended compliance schedule shall be discussed in the notice.

F. H. Issuance of variance.

1. Within 30 days after the public hearing, the commissioner shall, taking into consideration information obtained during such hearing, revise the proposed variance as necessary and prescribe the final schedule for compliance and interim measures for the waterworks granted a variance. If the schedule for compliance exceeds five years from the date of issuance of the variance, then the commissioner shall document the rationale for the extended compliance schedule.

2. Such The compliance schedule shall establish the timetable by which the waterworks shall comply with each contaminant level and treatment technique requirement prescribed by this chapter. Such schedule shall also consider if the waterworks is to become part of a regional waterworks. Such The compliance schedule shall provide the shortest practicable time schedule under the circumstances.

G. I. Posting of variances. All variances granted to any waterworks are nontransferable. Each variance must be attached to the permit of the waterworks to which it is granted. Each variance is a condition to that permit and is revoked when the permit is revoked.

H. J. No variances shall be granted to 12VAC5-590-380, 12VAC5-590-400, or 12VAC5-590-420, 12VAC5-590-388, 12VAC5-590-395, or 12VAC5-590-411.

12VAC5-590-150. Exemptions.

A. The commissioner may grant an exemption to any primary maximum contaminant level (PMCL) PMCL or treatment technique requirement by following the procedures set forth in this subsection section. An exemption may be granted to a waterworks from any requirement with respect to a PMCL or treatment technique requirement upon a finding that:

1. The waterworks must be is unable to implement measures to develop an alternative supply of source of water supply;

2. The waterworks cannot reasonably make management or restructuring changes that will result in compliance or improve the quality of the drinking water;

3. Due to compelling factors (which may include economic factors), the waterworks is unable to comply with such contaminant level or treatment technique requirement requirements;

4. The granting of the exemption will not result in an unreasonable risk to the health of persons served by the waterworks;

5. The waterworks was in operation on the effective date of such contaminant level or treatment technique requirement requirements; and

6. The waterworks has not been granted a variance.

B. Application for exemption. A waterworks The owner may request an exemption for a waterworks by submitting a written application request to the appropriate field office department for evaluation. All applications requests for an exemption shall include the following information:

1. A citation to the regulation from which the exemption is requested;

2. Nature The nature and duration of the exemption requested;

3. Relevant The relevant analytical results of water quality sampling of the waterworks, including results of relevant tests conducted pursuant to the requirements of this chapter;

4. Explanation An explanation of the compelling factors such as time or economic factors which that prevent such waterworks from achieving compliance;

5. Other information believed by the applicant owner to be pertinent to the application request;

6. A proposed compliance schedule, including the date when each step toward compliance will be achieved; and

7. Such other Other information as may be required by the commissioner to make the determination.

C. Consideration of an exemption application request.

1. The commissioner shall act on any exemption application request submitted pursuant to subsection B of this section within 90 days of receipt of the application request.

2. In the commissioner's consideration of whether the waterworks is unable to comply due to compelling factors, the commissioner shall consider such factors as the following:

a. Construction The construction, installation, or modification of treatment equipment or systems;

b. The time needed to put into operation a new water treatment facility plant into operation to replace an existing waterworks which water treatment plant that is not in compliance;

c. The economic feasibility of compliance;

d. The availability of Drinking Water State Revolving Fund, a department program to assist waterworks in achieving the public health protection objectives of the SDWA, assistance or any other federal or state program that is reasonably likely to be available within the period of the exemption;

e. The consideration of rate increases, accounting changes, the appointment of a licensed operator under the state operator's licensure program, or contractual agreements for joint operation with one or more waterworks;

f. The activities consistent with Virginia's capacity development strategy to help the waterworks acquire and maintain technical, financial, and managerial capacity to come into compliance;

g. The ownership changes, physical consolidation with another waterworks, or other feasible and appropriate means of consolidation that would result in compliance; and

h. The availability of an alternative source of drinking water, including the feasibility of partnerships with neighboring waterworks, as identified by the waterworks or by the commissioner consistent with the capacity development strategy.

D. Disposition of an exemption application request.

1. The commissioner may reject any application request for an exemption by sending a rejection notice to the applicant owner. The rejection notice shall be in writing and shall state the reasons for the rejection. A rejection notice constitutes a case decision. The applicant has the right to petition for a hearing within 60 days of the date of the rejection to challenge the rejection pursuant to 12VAC5-590-160 and 12VAC5-590-180. If the commissioner proposes to deny the exemption, then the owner shall be provided with an opportunity for an informal fact-finding proceeding as provided in § 2.2-4019 of the Code of Virginia.

2. If the commissioner grants the exemption, then the applicant owner shall be notified in writing of this decision. Such The notice shall identify the exemption and the waterworks covered and shall specify the termination date of the exemption. Such notice shall provide that the exemption Exemptions shall be terminated when the waterworks comes into compliance with the applicable regulation and may be terminated upon a finding by the commissioner that the waterworks has failed to comply with any requirements of a final schedule issued pursuant to subsection F of this section.

3. The commissioner shall propose a schedule for:

a. Compliance (including increments of progress) by the waterworks with each contaminant level and treatment technique requirement covered by the exemption; and

b. Implementation by the waterworks of such control measures as the commissioner may require for each contaminant level and treatment technique requirement covered by the exemption.

4. The schedule shall be prescribed by the commissioner at the time the exemption is granted.

5. For a waterworks that serves a population of not more than 3,300 persons and that needs financial assistance for the necessary improvements under the initial compliance schedule, an exemption granted by the commissioner may be for one or more additional two-year periods, but not to exceed a total of six additional years, only if the commissioner establishes that the waterworks is taking all practicable steps to meet the requirements of the exemption and the established compliance period. The commissioner will document the findings in granting an extension under this subdivision.

E. Public hearings on exemptions and their schedules.

1. Notice of a public hearing shall be provided before an exemption and schedule proposed by the commissioner pursuant to subsection D of this section may take effect. A Such notice given pursuant to the preceding sentence may cover the granting of more than one exemption, and a public hearing held pursuant to such the notice shall include each of the exemptions covered by the notice.

2. Notice of a public hearing on an application a request for an exemption and its schedule shall be advertised in at least one major newspaper of general circulation in the region in which the waterworks is located.

3. The notice shall include a summary of the proposed exemption and its schedule and shall contain the time, date, and place of the public hearing.

F. Issuance of exemption.

1. Within 30 days after the public hearing, the commissioner shall, taking into consideration information obtained during such the hearing, revise the proposed exemption as necessary and prescribe the final compliance schedule for compliance and interim measures for before issuing the exemption to the waterworks granted an exemption.

2. Such The schedule shall establish the timetable by which the waterworks shall comply with each contaminant level and treatment technique requirement prescribed by this chapter section. If the schedule for compliance exceeds five years from the date of issuance of the exemption, then the commissioner shall document the rationale for the extended compliance period. Such schedule shall also consider if the waterworks is to become part of a regional waterworks.

G. Posting of exemptions. All exemptions granted to any waterworks are nontransferable. Each exemption must be attached to the operation permit of the waterworks to which it is granted. Each exemption is a condition to that permit and is revoked when the permit is revoked.

H. No exemption shall be granted to 12VAC5-590-380, 12VAC5-590-400, or 12VAC5-590-420 B 1 b, 12VAC5-590-388, or 12VAC5-590-395.

12VAC5-590-160. Types of hearings. (Repealed.)

Hearings before the board, the commissioner, or their designees shall include any of the following forms depending upon the nature of the controversy and the interests of the parties involved.

1. An informal hearing is a meeting with the district engineer and field director and held in accordance with § 9-6.14:11 of the Code of Virginia. The field director may consider all evidence presented at the meeting which is relevant to the issue in controversy. Presentation of evidence, however, is entirely voluntary. The field office has no subpoena power. No verbatim record will be taken at the informal hearing, but the field director may make preliminary findings of fact, and may submit a copy of those preliminary findings, with recommendations, to the commissioner and or division director for review. A copy of the findings shall be mailed to the appellant.

2. The adjudicatory hearing is a formal, public, adjudicatory proceeding before the commissioner or a designated hearing officer held in conformance with § 9-6.14:12. Pursuant to the hearings process:

a. A Notice which states the time, place, and issues involved in the prospective hearing shall be sent to parties requesting the hearing by certified mail at least 15 calendar days before the hearing is to take place;

b. A record of the hearing will be made by a court reporter or other approved means. A copy of the transcript of the hearing, if transcribed, will be provided within a reasonable time to any person upon written request and payment of the cost. If the record is not transcribed, then the cost of preparation of the transcript will be borne by the party requesting the transcript;

c. All interested parties may attend the hearing and present evidence, expert or otherwise, that is material and relevant to the issues in controversy. The admissibility of evidence shall be in accordance with the Administrative Process Act. All parties may be represented by counsel;

d. The commissioner or hearing officer, pursuant to § 9-9.14:13 of the Code of Virginia, may issue subpoenas for the attendance of witnesses and the production of books, papers, maps, and records. The failure of a witness without legal excuse to appear or to testify or to produce documents may be reported by the commissioner to the appropriate circuit court; and

e. The commissioner may designate a hearing officer or subordinate to conduct the hearing, as provided in § 9-6.14:12 of the Code of Virginia, and to make written recommended findings of fact and conclusions of law to be submitted for review and final decision by the commissioner. The final decision of the commissioner shall be reduced to writing and will contain the explicit findings of fact upon which his decision is based. Copies of the decision shall be delivered to the owner affected by it. Notice of a decision will be served upon the parties and become a part of the record. Service may be by personal service or certified mail, return receipt requested.

3. A regulatory hearing is a public meeting of the board which is held for the purpose of adopting, amending, or repealing rules and regulations. A regulatory hearing requires that:

a. A notice shall be published, in at least one newspaper of general circulation in the commonwealth, not less than 60 days prior to the day on which the regulatory hearing is to be held. Such notice shall state the time, place, and nature of the hearing and the express terms or an informative survey of the rules that are to be adopted, amended, or repealed;

b. All interested persons may be present at the hearing and may present comments, arguments, objections, and evidence which concern the proposed rules; and

c. The board may adopt, repeal, or amend any rule or regulation which was included in the general notice published prior to the meeting. Rules and regulations may be adopted in the form in which they were described in the notice, or as amended at the hearing, provided the amendments do not alter the main purpose of the rule or regulation.

12VAC5-590-170. Request for hearing. (Repealed.)

Any person may request a hearing by sending a request, in writing, to the appropriate field office or the central office.

12VAC5-590-180. Hearing as a matter of right. (Repealed.)

Any person whose rights, duties or privileges have been or may be affected by any action or inaction of the board, its agents, or deputies in the administration of this chapter, shall have a right to both an informal and an adjudicatory hearing; however, the commissioner reserves the right to require participation in an informal hearing before granting the request for a full adjudicatory hearing.

12VAC5-590-190. Permits.

A. No owner or other person may cause or allow any waterworks to be operated in the Commonwealth without a written operation permit issued by the commissioner.

B. No owner or other person shall cause or allow the construction or change in the manner of transmission, storage, purification, treatment, or distribution of water (including the extension of water pipes for the distribution of water) at any waterworks or water supply in the Commonwealth without a written construction permit or a general permit for distribution mains from the commissioner. Furthermore, no owner or other person shall cause or permit any waterworks or water supply to be operated without a written operation permit issued by the commissioner which authorizes the operation of the waterworks or water supply. Conditions may be imposed on the issuance of any permit, and no waterworks or water supply may be constructed, modified, or operated in violation of these conditions.

C. Construction permits may not be required for the extension of water distribution piping having a diameter of eight inches or less and serving less than 15 connections (see § 32.1-172 A of the Code of Virginia).

D. Individual construction permits for distribution mains are not required for waterworks that obtain a general permit (see 12VAC5-590-300).

E. Conditions may be imposed on the issuance of any permit, and no waterworks may be constructed, modified, or operated in violation of these conditions.

12VAC5-590-200. Procedure for obtaining a construction permit.

A. Construction permits are issued by the Commissioner commissioner, but all requests for a construction permit are directed initially to the Field Office department. The procedure for obtaining the a construction permit includes the following steps:

(i) the submission of an application, (ii) a preliminary engineering conference, (iii) the submission of an engineer's report (optional at the discretion of the Field Director), and, (iv) the submission of plans, specifications, design criteria and other data in the number requested by the Division.

A. An application for a permit shall be submitted by the owner or authorized agent requesting permission to establish, construct, expand, modify, and/or operate a waterworks or water supply. The application shall clearly indicate whether the affected water supply is a community, nontransient noncommunity, or noncommunity waterworks.

B. A preliminary conference with the Division's appropriate District Engineer will be held. The applicant's engineer shall be prepared to set forth the water supply problems and the proposed solution in such a manner as to support his conclusions and recommendations.

C. The engineer's report and preliminary plans for waterworks shall present the following information where applicable:

1. General information - The report shall include:

a. A description of any existing waterworks and sewerage facilities.

b. Identification of the municipality or area served.

c. The name and mailing address of the owner.

2. Extent of waterworks system - The report shall include:

a. A description of the nature and extent of the area to be served.;

b. Provisions for extending the waterworks system to include additional areas.

c. An appraisal of the future requirements for service, including existing and potential industrial, commercial, institutional and other water supply needs.

3. Alternate plans - Where two or more solutions exist for providing public water supply facilities, each of which is feasible and practicable, the report shall discuss the alternate plans and give reasons for selecting the one recommended, including financial considerations.

4. Soil, groundwater conditions, and foundation problems - The report shall include:

a. A description of the character of the soil through which water mains are to be laid.

b. A description of foundation conditions prevailing at sites of proposed structures.

c. A description of the approximate elevation of ground water in relation to subsurface structures.

5. Water consumption - The report shall include:

a. A description of the population trends as indicated by available records, and the estimated population which will be served by the proposed water supply system or expanded system.

b. Present and estimated future water consumption values used as the basis of design.

c. Present and estimated future yield of the sources of supply.

6. Fire flow requirements: - if fire flows are to be provided, the quantity of fire flow which will be made available by the proposed or enlarged system shall be given.

7. Sewerage system available: - Describe the existing system and sewage treatment works, with special reference to its relationship to the existing or proposed waterworks which may affect the operation of the water supply system, or which may affect the quality of the water supply.

8. Source of water supply: - Describe the proposed source or sources of water supply to be developed and the reasons for their selection by supplying the following data:

a. Surface water sources

(1) Hydrological data, stream flow, and weather records;

(2) Safe yield, including all factors that may affect it;

(3) Maximum flood flow, together with approval for safety features of spillway and dam from appropriate reviewing authority;

(4) Summarized quality of raw water with special references to fluctuation in quality, changing meteorological conditions, sources of contamination, measures to protect the watershed, etc.

b. Groundwater sources

(1) Sites considered,

(2) Advantages of site selected,

(3) Elevation with respect to surroundings and 100-year flood,

(4) Probable character of geological formations through which source is to be developed,

(5) Unusual geological conditions affecting site,

(6) Summary of source exploration, test well depth and method of construction, placement of liners or screens; pumping test, hours, capacity; water level and specified yield, water quality,

(7) Possible sources of contamination.

9. Proposed treatment processes - Summarize and establish the adequacy of proposed processes for the treatment of the specified water under consideration (pilot studies may be required).

10. Waste disposal - Discuss the various wastes from the water treatment plant, their volume, proposed treatment and points for discharge.

11. Automatic equipment - Provide supporting data justifying automatic equipment, including servicing.

12. Project sites - The report shall include:

a. A discussion on various sites considered and advantages of the recommended one,;

b. A description of the proximity of residences, industries, and other establishments,

c. The location of potential sources of pollution that may influence the quality of the supply or interfere with the effective operation of the waterworks system, such as sewage absorption systems, septic tanks, privies, cesspools, sink holes, sanitary landfills, petroleum storage tanks, etc.

13. Financing - The report shall state:

a. The estimated cost of integral parts of the system,

b. The detailed estimated annual cost of operation,

c. The proposed method of financing, both capital charges and operating expenses.

14. Future extensions - Summarize planning for future needs and service.

1. Owners shall notify the department of all proposed construction projects, except distribution main projects that are permitted under the provisions of a general permit for distribution mains (see 12VAC5-590-300), or when the project is for the extension of water distribution piping having a diameter of eight inches or less and serving less than 15 connections (see § 32.1-172 A of the Code of Virginia).

2. The submission of a Waterworks Permit Application to the department on a form approved by the department.

3. Based on the application received, the department shall notify the owner if a preliminary engineering conference is required. A preliminary engineering conference shall be required for projects proposed using alternative delivery methods authorized under § 2.2-4380 of the Code of Virginia. The preliminary engineering conference shall define the scope of the project, project phasing, milestones, and deliverables. An evaluation procedure shall be agreed upon and the conference shall be documented.

4. The submission of preliminary engineering or intermediate design reports if required by the department. The need for and scope of the reports shall be established during the preliminary engineering conference.

5. The submission of a waterworks business operation plan that demonstrates the waterworks TMF capability. The waterworks business operation plan consists of four primary components:

a. Waterworks information that includes ownership data, a waterworks facility description, operator requirements, staffing needs, and staff training.

b. Management information that identifies critical business practices necessary for effective management and operation of the waterworks. Management information includes the requirements essential for managing and operating the waterworks and defines the processes, methods, and tasks necessary for complying with this chapter.

c. Financial information that identifies projects, considering the waterworks revenues and cash flow, will be sufficient for meeting the cost of operation and maintenance for at least five full years from the initiation of operations. Financial information also demonstrates the owner's ability to direct the waterworks' finances to support technical and managerial capacities and includes a self-assessment consisting of the following several financial metrics: operating cash reserve, debt service coverage, emergency reserve, and revenue sufficiency.

d. Sustainability improvements that are identified throughout the waterworks business operation plan to address TMF aspects of the waterworks' business processes that need improvement.

6. The submission of plans, specifications, final design criteria, and other supporting design data. This submission may include manufacturers equipment data sheets, drawings, and specifications when the specific materials or equipment to be used in the project have been preselected by the owner with the engineer's concurrence.

B. Well site inspection. When, upon inspection by the department, one or more well locations are found suitable for well sites, tentative approval in writing shall be furnished to the owner authorizing the drilling of wells, the exact location where each well is to be drilled, and the well construction requirements. This tentative approval will become void after a 12-month period.

D. C. Plans for waterworks improvements construction shall provide the following information, where applicable:

1. A general layout which that includes:

a. Suitable title, to include name of waterworks,;

b. Name of owner of waterworks,;

c. Area or institution to be served,;

d. Scale, in feet,;

e. North Point,;

f. Datum used,;

g. Boundaries of the municipality or area to be served,

h. g. Date, address, and name of designing owner's engineer,;

i. Imprint of professional engineer's seal ( see 12VAC5-590-220),

j. Legible prints suitable for microfilming, with size not to exceed 30 inches by 42 inches,

k. h. Location and size of existing water mains, distribution system; and

l. i. Location and nature of existing waterworks structures and appurtenances affecting the proposed improvements construction noted on one sheet.

2. Detailed plans which that include, where applicable:

a. Stream crossings, providing profiles with elevations of the stream bed and the normal and extreme high and low water levels, water level;

b. Profiles having a horizontal scale of not more than 100 feet to the inch and a vertical scale of not more than 10 feet to the inch, with both scales clearly indicated,;

c. Location and size of the property to be used for the groundwater development with respect to known references such as street intersections or section lines,;

d. Topography and arrangement of present or planned wells or structures, with contour intervals not greater than two feet,;

e. Elevation of highest known flood level, floor of structure, upper terminal of protective casing, and outside surrounding grade, using United States Coast and Geodetic Survey, United States Geological Survey, or equivalent elevations where applicable as a reference,;

f. Schematic drawing A completed Uniform Water Well Completion Report, Form GW-2, and schematic drawings of well construction, showing diameter and depth of drillholes drill holes, casing and liner diameters and depths, grouting depths, elevations and designation of geological formation, water levels, and other details to describe the proposed well completely,;

g. Location If not previously submitted in the preliminary engineering report (PER): the location of all potential sources of pollution within 250 1,000 feet (or further, depending upon aquifer type and recharge area) of drilled wells, 100 feet of treated water storage facilities, five miles upstream from surface water intakes, and the entire drainage area of springs;

h. Size, length, identity, and location or of sewers, drains, water mains distribution systems, and water treatment plant structures;

i. Schematic flow diagrams and hydraulic profiles showing the flow through various water treatment plant units,;

j. Piping in sufficient detail to show flow through the water treatment plant, including waste lines,;

k. Location of all chemical feeding equipment and points of chemical application,;

l. All appurtenances, specific structures, equipment, water treatment plant waste disposal units, and point of discharge having any relationship to the plans for water mains and/or distribution system or waterworks structures,;

m. Location of sanitary or other facilities such as lavatories, showers, toilets, and lockers,;

n. Location, dimensions, and elevations of all proposed water treatment plant facilities,; and

o. Adequate description of all features not otherwise covered by the specifications.

E. Complete, detailed, technical specifications shall be supplied for the proposed project which include where applicable: D. Specifications for waterworks construction improvements shall provide the following information, where applicable:

1. A program for keeping existing waterworks facilities in operation during construction of additional facilities so as to minimize interruption of service,;

2. Laboratory The laboratory facilities and equipment, as well as sampling taps and their locations,;

3. Number The number and design of treatment process components,;

4. Materials The materials or proprietary equipment for sanitary or other facilities including any necessary backflow or backsiphonage backflow protection,;

5. Workmanship,; and

6. Other equipment.

F. E. Design criteria. A summary of complete design criteria shall be submitted for the proposed project, containing but not limited to the following information, where applicable:

1. Yield of source of supply, Source water capacity;

2. Reservoir surface area,

3. Area of watershed,

4. 2. Estimated water consumption, including average day, maximum day, and peak hour flows;

5. 3. Number and type of proposed services,;

6. Fire-fighting 4. Firefighting requirements,;

7. 5. Basin capacities,;

8. 6. Retention times,;

9. 7. Unit loadings,;

10. 8. Filter area and proposed filtration rate,;

11. 9. Backwash rate,; and

12. 10. Feeder capacities and ranges.

F. For community waterworks, a copy of the duly recorded (i) plat plan of the well lot or subdivision plan showing the well lot and (ii) dedication document stating that the well lot shall be used only for waterworks appurtenances as long as the lot is utilized as part of a waterworks.

G. For noncommunity waterworks, the commissioner may on a case-by-case basis require a copy of a duly recorded plat plan of a well lot and a dedication document stating that the well lot shall be used only for waterworks appurtenances as long as the lot is utilized as part of a waterworks. In imposing such a requirement, the commissioner shall take into consideration public health protection and the waterworks operations, treatment processes, and appurtenances.

12VAC5-590-210. Formal requirements Requirements for the submission of engineering data.

A. In accordance with Article 1 (§ 54.1-400 et seq.) of Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 of the Code of Virginia, all drawings, specifications, and engineer's reports submitted for approval shall be prepared by or under the supervision of a licensed professional engineer legally qualified to practice in Virginia, unless submitted under § 54.1-408 of the Code of Virginia for practice of land surveying in subdivisions.

The front cover of each set of drawings, of each copy of the engineer's report, and of each copy of the specifications submitted for review shall bear the signed imprint of the seal of the licensed professional engineer who prepared or supervised the preparation and be signed with an original signature. In addition, each drawing submitted shall bear an imprint or a legible facsimile of such seal. B. The quantity, format, and method of submission shall meet the evaluation needs of the department and shall be consistent with the requirements in Chapter 42.1 (§ 59.1-479 et seq.) of Title 59.1 of the Code of Virginia.

C. All reports, plans, and specifications shall be submitted to the field office department at least 60 days prior to before the date upon which action by the division department or commissioner is desired.

D. If the procedures for obtaining a construction permit in 12VAC5-590-200 are not complied with or if plans and specifications are found to be incomplete or inadequate for detailed review evaluation, then the plans and specifications will be returned to the submitting party. If revisions to the plans or specifications or both are necessitated, a letter will be sent to the owner and engineer who prepared them outlining the will be notified in writing of the necessary revisions. Revised plans, or specifications, or both constitute a resubmittal; however, the division will make every resubmission. Every effort will be made to complete the review of such evaluation of these revisions promptly. Preliminary plans and the engineer's report should be submitted for review prior to preparation of final plans.

12VAC5-590-220. Compliance with the Manual of Practice.

A. The design guidelines set forth in the Manual of Practice (Part III) Part III Manual of Practice for Waterworks Design (12VAC5-590-640 et seq.) of this chapter (Manual of Practice) specify general criteria for the design and construction of waterworks. The division commissioner may impose standards or requirements which that are more stringent than those contained in the Manual of Practice when required for critical areas or special conditions to meet drinking water quality standards. Any such special standards or requirements with a federal mandate shall take precedence over the criteria in the manual Manual of Practice and will be items which that warrant careful consideration at the preliminary engineering conference, referenced in 12VAC5-590-200 B.

B. Designs submitted for waterworks must demonstrate that the system waterworks will adequately safeguard public health. Submissions which that are in substantial compliance with the Manual of Practice or and any additional requirements of the department commissioner, as noted above in subdivision A of this section, will be approved. Justification for a design may be required for those portions of the submitted design which that differ from the criteria of the division, set forth in the Manual of Practice, or accepted engineering practices and any established by the commissioner. Deviations from "shall" mandatory criteria which the design engineer, in his judgment, believes to be substantial in nature contained in the Manual of Practice shall be identified and justified. The division For each deviation, the commissioner may require changes in designs which are not in substantial compliance with the manual and which are not adequately justified by the engineer owner issue a design exception or require compliance with the criteria.

C. Final, complete, and detailed plans and specifications submitted in accordance with the provisions of 12VAC5-590-200 and 12VAC5-590-210 will be reviewed evaluated by the division department as soon as practicable upon receipt. Such plans Plans and specifications will be approved if they demonstrate substantial compliance with the design criteria set forth in the Manual of Practice and any established by the commissioner and if the waterworks, as constructed or modified, will be able to function in compliance with the operating regulations set forth in Part II (12VAC5-590-340 et seq.) of this chapter. One set of the approved plans and specifications will be stamped by the division and returned to the owner.

D. Compliance with the Manual of Practice for transient noncommunity waterworks is allowed the following exceptions as long as the conditions in subsection E of this section are satisfied:

1. The design of a transient noncommunity waterworks is not required to satisfy the professional engineer licensure requirement of 12VAC5-590-210 under the following conditions:

a. The waterworks shall serve no more than 100 persons per day.

b. The waterworks shall consist only of one supply of source water, a pressure tank no greater than 250 gallon capacity, and a single service connection.

c. The single service connection shall be a building or structure of less than 5,000 square feet total floor space. The determination of square footage shall be calculated using the outside perimeter of the building or structure.

2. Although the owner of a transient noncommunity waterworks is required to use a water well systems provider certified by DPOR for drilling wells, the remainder of the waterworks facility construction at a transient noncommunity waterworks may be performed by a master plumber or a certified water well systems provider, as defined in § 54.1-1129.1 of the Code of Virginia.

E. The conditions for exceptions to the Manual of Practice for transient noncommunity waterworks specified in subsection D of this section are as follows:

1. The owner shall submit a signed and dated statement attached to the permit application, certifying that subsection D of this section will be satisfied.

2. The owner shall submit information related to the design, construction, and materials used as required by the department.

12VAC5-590-230. Issuance of the construction permit.

A. Upon approval of the plans and specifications, the commissioner will issue a permit to the owner to construct or modify his the waterworks or water supply in accordance with the approved plans and specifications.

B. The construction permit shall be valid for a period of five years. If construction has not begun within five years but were to proceed in the future, then the owner shall reapply for a new construction permit.

C. The construction permit may include conditions for securing equipment certifications and performance validations.

12VAC5-590-240. Revisions of approved plans.

A. Any deviations from the approved plans and specifications affecting capacity, hydraulic conditions, operating units, the functioning of water treatment processes, or the quality of water to be delivered must be approved by the division department before any such changes of these deviations are made implemented.

B. Revised plans and specifications shall be submitted in time to permit allow the review evaluation and approval of such these plans or specifications before any construction work which that will be affected by such these changes is begun may begin.

12VAC5-590-250. Statement required upon completion of construction.

A. Upon completion of the construction or modification of the waterworks, the owner shall submit to the field office department a statement signed by a licensed professional engineer stating that the construction work was completed in accordance with the approved plans and specifications, revised only in accordance with the provisions of 12VAC5-590-240. This statement is called a statement of completion of construction and shall be based upon inspections of the waterworks during and after construction or modifications, that. These inspections are to be adequate to insure ensure the truth of the statement of completion of construction.

B. The project documents may require a performance validation report to confirm the design, performance criteria, and appropriate emergency procedures for specific processes and equipment. The project documents may also require operator training. If these requirements are included in the project documents, then the statement of completion of construction shall also include the performance validation report and a certification of successful operator training, as applicable.

12VAC5-590-260. Issuance of the operation permit.

A. Upon receipt of the 12VAC5-590-250 statement of completion of construction, receipt of all required certifications and test results, inspection by the department to ensure that the project has been satisfactorily completed in accordance with the approved design documents, and verification that bacteriological test results comply with the requirements set forth in Part II of this chapter, as appropriate, the commissioner will issue an operating operation permit. However, the commissioner may delay the granting of the permit pending inspection by the field office to insure that the work has been satisfactorily completed.

B. The owner shall not operate a waterworks without first having obtained an operation permit except as provided in 12VAC5-590-290.

C. The commissioner shall establish the type (community waterworks, NTNC, or TNC), classification, and permitted capacity of the waterworks and specify these on the operation permit. Conditions may be included with the permit for operator, monitoring, and reporting requirements.

12VAC5-590-270. Inspection and correction Start-up testing and inspections.

A. Within 30 days after Before placing a new or modified waterworks or water supply into operation following construction, the owner shall test the water produced at the entry point to the distribution system in a manner acceptable to the division department. The field office will be notified owner shall notify the department of the time and place of the tests. Results The owner shall send the results of the tests will be sent to the field office department.

B. The commissioner, a member of the board, or a member of the division has a right to inspect any waterworks or water supply and to be present for any testing in accordance with Title 32.1 of the Code of Virginia.

12VAC5-590-280. Procedure for obtaining a construction permit for well sources. (Repealed.)

Since the quantity and quality of water from proposed wells cannot be anticipated, the following procedure shall be used:

1. Submittal of application--see 12VAC5-590-200 A.

2. Preliminary engineering conference--see 12VAC5-590-200 B.

3. When, upon inspection by the division's engineer, one or more well lots are found suitable for well sites, then tentative approval in writing will be furnished to the owner authorizing him to proceed with the drilling of the well or wells and this letter will specify the exact location on the lot where each well is to be drilled. Also, the letter will specify that the well shall be Class I or Class II, meeting the specifications set forth in Part III Article 2, Source Development. This tentative approval will become void after a 12-month period and the site must be reinspected before construction when so voided.

4. Submittal of engineer's report and preliminary plans--see 12VAC5-590-200 C.

5. Submittal of plans, specifications, and other data--see subsections D, E, and F of 12VAC5-590-200; 12VAC5-590-210 and 12VAC5-590-840. One of the following must also be submitted:

a. A copy of the plat plan showing that it has been duly recorded and signed by the clerk of the court, giving the deed book and page number and date of recording, will be required before a construction permit can be issued, or

b. If the well lot is identified on a recorded plan of the subdivision as a well lot, then this is acceptable, if recorded as required by this subsection.

In addition, a dedication document duly recorded with the clerk of the circuit court must be furnished stating that the well lot shall be used only for waterworks appurtenances as long as this lot is utilized as part of a waterworks.

12VAC5-590-290. Procedure for issuance of special permits for new or nonconventional methods, processes, and equipment Issuance of a temporary operation permit.

A. Water treatment methods, processes, and equipment which that are not covered by the design criteria of Part III or Part IV (12VAC5-590-640 et seq.) of this chapter, and which that in principle or application are new or nonconventional, are subject to a special temporary permit application procedure in lieu instead of that set forth in 12VAC5-590-200. A special temporary permit may be issued only after detailed review evaluation of all engineering data and after a period of extensive monitoring of the water treatment plant performance.

B. The policy of the board is to encourage The department encourages the development of any new or nonconventional methods, processes, and equipment which, that by virtue of treatability studies, appear to have application for the purification of raw water treatment. However, these new or nonconventional developments shall have been thoroughly tested in a full scale full-scale or representative pilot plant installation before approval of a plant utilizing this process these methods, processes, and equipment can be employed are approved and an operation permit issued. The result of this testing must results shall be submitted to the field office department. The testing required on new or nonconventional developments will shall generally follow these guidelines:

1. All procedures used in validating the process shall be conducted under the supervision of (i) a licensed professional engineer experienced in the field of environmental engineering, (ii) the owner's engineering staff, or (iii) a testing firm acceptable to the division commissioner;

2. Samples shall be collected and analyzed in a manner which would that shall demonstrate water treatment plant effectiveness and efficiency under adverse conditions and over extended periods of time in the area of the proposed installation;

3. The data shall be from the continuous operation of a full scale full-scale or pilot plant treating the type of water to be handled;

4. Automatic indicating, recording, and totalizing flow measuring equipment shall be provided, and the total flow shall be measured and recorded daily;

5. At installations treating surface waters, employing coagulation, flocculation, sedimentation, filtration, and disinfection, automatic indicating and recording equipment shall be provided for continuously monitoring the turbidity of the raw water, settled water, and each filter effluent, as well as pH monitoring of the treated water (flash mix effluent);

6. 5. If the raw water source source water receives upstream discharges of treated industrial wastes or sewage effluents treated wastewater, then automatic indicating and recording equipment shall be provided for continuously monitoring the pH of raw the source and finished water and in addition to the chlorine residual of the finished water;

7. 6. The minimum sampling and analysis program will be established by the division commissioner in accordance with the process under investigation; and,

8. 7. All analyses shall be made in accordance with the most current edition of Standard Methods for the Examination of Water and Wastewater, published by the American Public Health Association, the American Water Works Association, and the Water Pollution Control Federation or analytical methods approved in advance by the division utilize methods that are consistent with 12VAC5-590-440.

C. Detailed plans shall be submitted where possible showing how, in case of nonacceptance, the water treatment plant or unit water treatment methods, processes, and equipment will be converted to, or replaced with, a proven process. Also, financial resources must be assured to make the conversion (for example:, funds placed in escrow or a bond posted) posted.

D. After review evaluation of the plans and testing data, the commissioner will issue a construction permit if he is satisfied the performance data verifies that the method, process, or equipment will may efficiently produce water that will meet in accordance with the design specifications and the operation standards of Part II, and that the method, process, or equipment may be converted to a conventional technique, if necessary (12VAC5-590-340 et seq.) of this chapter.

E. Upon completion of construction or modification, a provisional temporary permit for a definite period of time will be issued for the operation of the new or nonconventional methods, processes, and equipment. Not more than one provisional temporary permit will be granted for a similar installation during the evaluation period. The provisional temporary operation permit shall require that:

1. The evaluation period shall be a minimum of 12 months and no longer than 18 months; and

2. The holder of a provisional temporary operation permit must shall submit reports on operation during the evaluation period as required by the division commissioner. The reports shall be prepared by (i) a licensed professional engineer experienced in the field of environmental engineering, (ii) the owner's operating or engineering staff, or (iii) a testing firm acceptable to the division organization.

F. The commissioner will issue an operation permit upon lapse of the provisional permit, if, on the basis of testing during that period, he finds that the new or nonconventional method, process, or equipment efficiently meets the operation standards of Part II. If the standards are not met, then the commissioner will issue an order which will require the alteration of the waterworks or water supply in a manner that will enable those standards to be met.

F. The commissioner may issue a temporary operation permit if the waterworks is not in compliance with this chapter and public health will not be jeopardized. The temporary permit may be issued for a period of time and subject to conditions as the commissioner may deem appropriate for the owner to achieve compliance with this chapter.

1. The commissioner may require, as a condition to a temporary operation permit, the submission of a waterworks business operation plan by new waterworks and existing waterworks that have demonstrated limited TMF capability or significant noncompliance with this chapter.

2. The waterworks business operation plan shall satisfy the requirements of 12VAC5-590-200 A 5.

12VAC5-590-300. Procedure for obtaining Issuance of a general permit for construction of distribution mains.

In lieu A. Instead of obtaining a permit for each distribution main project, an owner may elect to obtain a general permit for the construction of distribution mains. These general permits are issued by the commissioner, but all requests for a general permit are directed initially to the field office department.

B. The following procedure for obtaining the requirements shall be satisfied for the issuance of a general permit shall be used:

1. The owner shall develop, adopt, and have division the commissioner's approval of general specifications and plan details covering water distribution main design and construction. The general specifications shall be at least as stringent as the requirements contained in this chapter.

2. The owner shall enter into a memorandum of understanding (MOU) with the division which outlines the following system-specific commissioner. The commissioner will outline the waterworks-specific requirements, and the owner's method of compliance with such the requirements:. The waterworks-specific requirements include the following:

a. The maximum size of pipe to be covered by the general permit;

b. The means for modifying the division department's approved general specifications and plan details;

c. The maintenance of engineering capabilities satisfactory to the division commissioner, either on-staff or through contractual arrangements;

d. The preparation of engineering plans and specifications for individual projects;

e. The maintenance of up-to-date distribution system maps and other appropriate records; and

f. The submission by the owner to the division department of appropriate reports, including an annual report and summary, concerning all projects constructed under the terms of the general permit MOU and information concerning changes to the distribution system.

C. Once the general specifications are approved and the MOU is agreed to by the commissioner, a general permit for distribution mains shall be issued with the MOU attached.

D. The general permit allows for the construction of distribution mains. The duration for the general permit is five years.

12VAC5-590-310. Amendment or reissuance of operation permits.

A. The commissioner may amend or reissue a an operation permit where (i) when there is a change in the manner of storage, the treatment, or the source of supply of the source water at the permitted location,; (ii) when the existing permit is no longer valid; or (iii) for any other cause incident to the protection of the public health,; or (iv) for the supplying of pure potable water, provided. A notice is may be required to be given to the owner, and, if one is required, a hearing held in accordance with the provisions of subdivisions 1 and 2 of 12VAC5-590-160 12VAC5-590-115.

B. The commissioner may require submission of a waterworks business operation plan as a condition to amend or reissue an operation permit. The waterworks business operation plan shall satisfy the requirements of 12VAC5-590- 200 A 5.

12VAC5-590-320. Revocation or suspension of a an operation permit.

A. The commissioner may suspend or revoke a an operation permit in accordance with Administrative Process Act the APA. Reasons for revocation of permits are as follows include:

1. Failure to comply with the conditions of the permit;

2. Violation of Title 32.1 of the Code of Virginia or of any of this chapter from which no variance or exemption has been granted;.

3. Change in ownership;

4. Abandonment of the waterworks and discontinuing the supplying of pure water; and

5. Any of the grounds specified in § 32.1-174 of the Code of Virginia.

1. The waterworks can no longer be depended upon to furnish potable water;

2. The capacity of the waterworks is inadequate for the purpose of furnishing potable water;

3. The owner has failed to abide by an order issued by the commissioner;

4. The owner has abandoned the waterworks and discontinued supplying potable water; or

5. The owner has failed to pay the waterworks operation fee required by § 32.1-171.1 of the Code of Virginia.

B. Procedure for revocation of operation permit. When revoking or suspending permits an operation permit in accordance with the above subsection A of this section, the commissioner shall:

1. Send a written notice of intent to suspend or revoke by certified mail to the last known address of the waterworks owner. The notice shall state the reasons for the proposed suspension or revocation of the operation permit, the authority under which the commissioner proposes to act, and shall give the time and place of the hearing; and offer the opportunity for an administrative proceeding in accordance with 12VAC5-590-115.

2. Provide at least 30 days advance notice of the hearing administrative proceeding.

C. An owner who is given notice of intent to revoke or suspend his permit has a right to a hearing as specified in 12VAC5-590-160 and 12VAC5-590-180.

12VAC5-590-330. Monitoring, records, and reporting.

A. The commissioner or the division department may require the owner or operator of any waterworks or water supply to install, use, and maintain monitoring equipment for the control and testing of water flowing through the water treatment plant to:

1. Identify and determine the cause of operational problems;

2. Determine the necessary corrective actions for these problems;

3. Ensure compliance with Part II of this chapter; and

4. Prepare the finished water for entry into the distribution system.

B. Sampling and testing shall be by methods approved by the division commissioner. Test results shall be recorded, compiled, and reported to the field office department in a format approved by acceptable to the division commissioner.

Part II
Operation Regulations for Waterworks

Article 1
General Drinking Water Compliance Standards, Testing, Surveys, and Responsibilities

12VAC5-590-340. General Compliance standards.

A. All physical, chemical, bacteriological, or radiological analyses for the purpose of demonstrating compliance with primary and secondary maximum contaminant levels action levels or contaminants that do not have PMCLs but for which compliance samples must be analyzed by certified laboratories the requirements of this chapter shall be performed by the Commonwealth of Virginia, Department of General Services, Division of Consolidated Laboratory Services (DCLS) DCLS or in by laboratories certified by the Division of Consolidated Laboratory Services DCLS for such purposes unless listed in 12VAC5-590-440 C. The owner is responsible for the collection and submission of all samples. The department may require sampling and testing that exceeds the minimal requirements specified in this chapter. A sample is deemed to have been collected only if and when its results are made known to the Office of Drinking Water department.

B. Specific limits. No attempt has been made to prescribe specific limits for every contaminant that might occur in a water supply or a waterworks. Although the need exists for continued attention to the entry of chemical, physical, bacteriological, and radiological substances into drinking water, the limits are confined to substances recognized as being detrimental to the health or well-being of the consumer or that cause significant degradation of the usefulness of the water. Limits for innumerable substances would require an impossible burden of analytical examination. The specific limits included in this chapter are listed in Tables 340.1 through 340.7.

C. Compliance is determined:

1. Based on sample results or calculated averages, where appropriate, rounded to the same number of significant figures as the PMCL, SMCL, AL, or MRDL of the contaminant in question, or

2. By the application of the specific treatment technique for particular contaminants (see 12VAC5-590-391).

TABLE 340.1

Inorganic Chemicals

SUBSTANCE

PMCL (mg/L)

Antimony

0.006

Arsenic

0.010a

Asbestos

7 million fibers/liter (longer than 10 µm)

Barium

2

Beryllium

0.004

Cadmium

0.005

Chromium

0.1

Cyanide (as free Cyanide)

0.2

Fluoride

4.0b

Mercury

0.002

Nickel

No limits designated

Nitrate (as N)

10c

Nitrite (as N)

1.0c

Total Nitrate and Nitrite (as N)

10c

Selenium

0.05

Thallium

0.002

SUBSTANCE

SECONDARY MAXIMUM CONTAMINANT LEVEL (mg/L)

Aluminum

0.05-0.2d

Chloride

250c

Copper

1.0

Corrosivity

Noncorrosive

Fluoride

2.0

Foaming agents

0.5e

Iron

0.3

Manganese

0.05

Silver

0.1

Sulfate

250c

Zinc

5

SUBSTANCE

ACTION LEVEL (mg/L)

Lead

0.015

Copper

1.3

aArsenic sampling results shall be reported to the nearest 0.001 mg/L.

bThe fluoride PMCL applies only to community waterworks.

cSignificant figures are noted as shown. For values with trailing zeros, significant figures are noted as shown. The limits for nitrate and nitrate-nitrite have two significant figures. The limits for chloride and sulfate have three significant figures.

dVarying water quality and treatment situations necessitates a flexible range for the aluminum SMCL. The owner is encouraged to maintain an aluminum concentration as low as possible. If the aluminum concentration in the finished water causes discoloration, then the owner is urged to contact the department.

eConcentrations reported in terms of Methylene Blue Active Substances.

 

TABLE 340.2

Organic Chemicals

SUBSTANCE

PMCL (mg/L)

VOC

Benzene

0.005

Carbon tetrachloride

0.005

Chlorobenzene (also called Monochlorobenzene)

0.1

o-Dichlorobenzene

0.6

p-Dichlorobenzene

0.075

1,2-Dichloroethane (also called Ethylene dichloride)

0.005

1,1-Dichloroethylene (also called Dichloroethene)

0.007

cis-1,2-Dichloroethylene

0.07

Trans-1,2-Dichloroethylene

0.1

Dichloromethane  (also called Methylene chloride)

0.005

1,2-Dichloropropane

0.005

Ethylbenzene

0.7

Styrene

0.1

Tetrachloroethylene (PCE) (also called Perchloroethylene)

0.005

Toluene

1

1,2,4-Trichlorobenzene

0.07

1,1,1-Trichloroethane

0.2

1,1,2-Trichloroethane

0.005

Trichloroethylene (TCE)

0.005

Vinyl Chloride

0.002

Xylene (total)

10a

SOC

Acrylamide

TTb

Alachlor (also called Lasso)

0.002

Atrazine

0.003

Benzo(a)pyrene

0.0002

Carbofuran

0.04

Chlordane

0.002

Dalapon

0.2

Di(2‑ethylhexyl)adipate (also called Bis(2-ethylhexyl)adipate)

0.4

Di(2‑ethylhexyl)phthalate (also called Bis(2-ethylhexyl)phthalate)

0.006

1,2-Dibromo-3-chloropropane (DBCP)

0.0002

2,4-Dichlorophenoxyacetic Acid (2,4‑D)

0.07

Dinoseb

0.007

Diquat

0.02

Endothall

0.1

Endrin

0.002

Epichlorohydrin

TTb

Ethylene dibromide (EDB) (also called 1,2-Dibromoethane)

0.00005

Glyphosate

0.7

Heptachlor

0.0004

Heptachlor epoxide

0.0002

Hexachlorobenzene

0.001

Hexachlorocyclopentadiene

0.05

Lindane (also called gamma-HCH and gamma BHC)

0.0002

Methoxychlor

0.04

Oxamyl (Vydate)

0.2

Pentachlorophenol(PCP)

0.001

Picloram

0.5

Polychlorinated biphenyls (PCBs)

0.0005

Simazine

0.004

2,3,7,8-TCDD (Dioxin)

3 X 10-8

Toxaphene

0.003

2,4,5-Trichlorophenoxypropionic Acid (2,4,5‑TP or Silvex)

0.05

aThe limit for xylene has two significant figures.

bEach waterworks must certify annually to the department that when acrylamide and epichlorohydrin are used to treat water, the combination (or product) of dose and monomer level does not exceed the levels specified as follows: (i) acrylamide = 0.05% dosed at 1 mg/L (or equivalent) and (ii) epichlorohydrin = 0.01% dosed at 20 mg/L (or equivalent). The certification shall be in writing, using third-party certification approved by the department or the manufacturer's certification.

 

TABLE 340.3

Physical Quality

PARAMETER

STANDARD

CONCENTRATION

Color

SMCL

15 Color Units (CU)

Odor

SMCL

3 Threshold odor numbers

pH

SMCL

6.5‑8.5

Total dissolved solids (TDS)

SMCL

500 mg/La

Turbidity

Treatment Technique

See 12VAC5-590-395 A 2 bb

aTDS has three significant figures.

bOperational goal: Surface water treatment plants with gravity flow granular media filters are capable of producing filtered water with a turbidity consistently less than 0.10 NTU. Therefore, for water treatment plants, the operational goal for filter effluent turbidity for each filter, before any post-filtration chemical addition, is 0.10 NTU.

 

TABLE 340.4

Radiological Quality

PARAMETER

PMCL

Combined radium-226 and radium-228.

5 pCi/L

Gross alpha particle activity (excluding Radon and Uranium)

15 pCi/L

Beta particle and photon radioactivity.

4 mrem/yra, b

Uranium

30 μg/Lc

aThe average annual concentration of beta particle and photon radioactivity from man-made radionuclides in drinking water shall not produce an annual dose equivalent to the total body or any internal organ greater than 4 mrem/year.

bExcept for the radionuclides listed in Schedule I, the concentration of man-made radionuclides causing 4 mrem total body or organ dose equivalents shall be calculated on the basis of a 2 liter per day drinking water intake using the 168-hour data listed in "Maximum Permissible Body Burdens and Maximum Permissible Concentrations of Radionuclides in Air and in Water for Occupational Exposure," NBS Handbook 69 issued June 5, 1959, and amended August 1963, U.S. Department of Commerce. If two or more radionuclides are present, the sum of their annual dose equivalent to the total body or to any organ shall not exceed 4 mrem/year.

cThe limit for uranium has two significant figures.

Schedule 1

Average annual concentrations assumed to produce a total body organ dose of 4 mrem/year.

RADIONUCLIDE

CRITICAL ORGAN

pCi/L

Tritium

Total Body

20,000d

Strontium‑90

Bone Marrow

8

dThe limit for tritium has five significant figures.

 

TABLE 340.5

Microbial Contaminants

CONTAMINANT

PMCL or TT

Cryptosporidium

TT

Minimum 99% (2-log) removal plus additional log removal or inactivation based upon bin classification in 12VAC5-590-401 D.

Giardia lamblia

TT

99.9% (3-log) removal or inactivation.

Viruses

TT

99.99% (4-log) removal or inactivation

Legionella

TT

No limit, but if Giardia lamblia and viruses are removed or inactivated, according to the treatment techniques in 12VAC5-590-395, Legionella will also be controlled.

Heterotrophic plate count (HPC)

TT

No more than 500 bacterial colonies per milliliter. (HPC is not a contaminant, it is an analytic method used to measure a variety of bacteria found in water.)

Escherichia coli (E. coli)

PMCL

(1) Any E. coli-positive repeat sample following a total coliform-positive routine sample.

(2) Total coliform-positive repeat sample following an E. coli-positive routine sample.

(3) Failure to collect all require repeat samples following an E. coli-positive routine sample.

(4) Failure to test for E. coli when any repeat sample tests positive for total coliform.

TABLE 340.6

Disinfection Byproducts

PARAMETER

PMCL (mg/L)

TTHM

Bromodichloromethane

Bromoform

Chloroform

Dibromochloromethane

0.080a

HAA5

Bromoacetic acid

Dibromoacetic acid

Dichloroacetic acid

Monochloroacetic acid

Trichloroacetic acid

0.060a

Bromate

0.010a

Chlorite

1.0a

aThe limits for TTHM, HAA5, and bromate have three significant figures. The limit for chlorite has two significant figures.

 

TABLE 340.7

Maximum Residual Disinfectant Level Goals (MRDLG) and Maximum Residual Disinfectant Levels (MRDL) for Disinfectants

RESIDUAL DISINFECTANT

MRDL (mg/L)

Chlorine

4.0 (as Cl2)a

Chloramines

4.0 (as Cl2)a

Chlorine Dioxide

0.8 (as ClO2)

aChlorine and chloramines have two significant figures.

D. Notwithstanding the MRDLs in Table 340.7, an owner may increase the residual disinfectant level of chlorine or chloramines (but not chlorine dioxide) in the distribution system to a level and for a time necessary to protect public health. This may include specific microbiological contamination problems caused by circumstances such as distribution line breaks, storm runoff events, water supply contamination events, or cross-connection events.

12VAC5-590-350. Sanitary surveys Assessments and sanitary surveys.

A. Frequent assessments shall be made by the owner of the water supply source and waterworks to locate and identify health hazards to the waterworks. The manner and frequency of making these assessments, and the rate at which discovered health hazards are to be removed, shall be the responsibility of the owner. Every effort shall be made by the owner, to the extent of his jurisdiction, to prevent the degradation of the quality of water supply sources supplies.

B. The commissioner may perform sanitary surveys. Owners The department is required to perform sanitary surveys and site visits to assess the condition of a waterworks and its source water. Pursuant to § 32.1-25 of the Code of Virginia, the department personnel have the right, with the owner's consent, of entry onto the waterworks property and the facilities to inspect, investigate, evaluate, conduct tests, and collect samples for testing for the purposes of determining compliance with the provisions of any law, regulation, or order administered by the board or commissioner or any conditions in a permit, license, or certificate issued by the board or commissioner. The owner shall provide any existing information requested by the department that will enable the commissioner the department personnel to conduct the sanitary survey or site visit.

C. A sanitary survey includes, but is not limited to, an onsite evaluation of all of the following eight components:

1. Source;

2. Treatment;

3. Distribution system;

4. Finished water storage;

5. Pumps, pumping facilities, and controls;

6. Monitoring, reporting, data verification, and a special monitoring evaluation during each sanitary survey to determine whether the waterworks monitoring is appropriate or needs modification;

7. Waterworks system management and operation; and,

8. Number and classification of licensed operator(s) required in 12VAC5-590-460 operators. Licensed operators Operators shall also comply with all applicable regulations promulgated by the Virginia Board for Waterworks and Wastewater Works Operators and Onsite Sewage System Professionals, Department of Professional and Occupational Regulation and DPOR.

D. Significant deficiencies discovered as a result of a sanitary survey shall be addressed in accordance with the following:

1. The commissioner department shall issue written notification describing the significant deficiency to the owner.

2. Within 30 days of the significant deficiency significant-deficiency notification, the owner shall consult with the commissioner department regarding the appropriate corrective action with a schedule for implementing the corrective action. Any A waterworks with one or more significant deficiencies must have a Corrective Action Plan (CAP) CAP as described in 12VAC5-590-421 A.

3. Within 45 days of the significant deficiency significant-deficiency notification, the owner shall submit to the department a CAP with a schedule for meeting the requirements of 12VAC5-590-421 A.

12VAC5-590-360. Responsibility; Responsibilities of the owner.

A. The water utility owner or owner of the property served, to the extent of their respective jurisdictions, shall provide and maintain conditions through throughout the entirety of the water supply system waterworks in a manner which that will assure a high degree of capability and reliability to effect compliance with these standards comply with Part II (12VAC5-590-340 et seq.) of this chapter. This requirement shall pertain to the source of supply source water, transmission, treatment, transmission, storage, and distribution system facilities and the operation thereof. In addition, this requirement shall include specific and continuing assessment of the capability, effectiveness, and reliability of the treatment process in relation to potential contaminants in the source of supply. Finally, this requirement shall include the identification and evaluation of all The owner shall identify and evaluate factors having with the potential for impairing the quality of the water as delivered to customers and appropriate preventive and control the consumers. Preventative control measures identified in Part II of this chapter shall be promptly implemented to protect public health.

B. For the purpose of application of this chapter, responsibility for the conditions in the water supply system shall be considered to be held by: 1. The owner from the source of supply to the customer's service connection; and 2. The owner of the property served and the municipal, county, or other authority having legal jurisdiction from the customer's service connection to the free-flowing outlet. For the purpose of achieving compliance with this chapter, the owner shall exercise control of the waterworks from the source water to the service connection. This requirement does not imply ownership of or maintenance for any portion of the service line where local agreements and conditions dictate otherwise.

C. The property owner shall exercise control of all buildings, structures, and equipment up to the point of the service connection to the waterworks. This requirement does not limit or modify ownership of or maintenance for the service line, that may be specified by local agreements and conditions.

Article 2
General Information

12VAC5-590-370. Sampling frequency Monitoring requirements.

The commissioner may exempt consecutive waterworks that obtain potable water from another water system for distribution from all monitoring requirements in this section except for bacteriological (subsection A of this section); disinfectant residuals, disinfection byproducts, and disinfection byproduct precursors (subdivision B 3 of this section); and lead and copper (12VAC5-590-375). The required sampling frequencies are as follows:

A. Bacteriological monitoring.

1. The owner shall collect total coliform samples at specific sites and according to a schedule that is representative of water quality throughout the distribution system, which shall be documented in a written bacteriological sample siting plan (BSSP) BSSP. The BSSP shall be established or approved by the commissioner department after investigation of the source water, method of treatment and storage, and protection of the water concerned the final delivery of the drinking water through the distribution system. The BSSP shall include, but is not limited to, the following:

a. Specific routine, repeat, and triggered source water monitoring sites, identified by address or location.

b. Distribution map maps showing the location where specific sampling sites will be selected with all monitoring sites identified.

c. A minimum of three routine sample sites identified for each required routine sample for waterworks serving 3,300 or fewer people.

d. Sample A sample collection schedule with the number of routine samples required per monitoring period in accordance with Table 2.1 370.1 and subdivision A 4 of this section.

e. Repeat sample sites for each routine sample site that shall include the original routine location, at least one tap within five service connections upstream, and at least one tap within five service connections downstream with the following exceptions:

(1) Alternative repeat sample sites may be allowed when a routine site is one connection away from or at the end of a water supply distribution system main or as approved by the commissioner department;

(2) Groundwater waterworks A groundwater system serving 1,000 or fewer people may propose repeat sample sites, such as an entry point to the distribution system, that differentiate potential source water and distribution system contamination; or

(3) Groundwater waterworks A groundwater system serving 1,000 or fewer people with a single well source and no treatment may propose that one repeat sample be collected at the triggered source water monitoring site, provided that representative sampling of the distribution system is still achieved.

f. A repeat sampling site shall not be eliminated from future collections solely based on a history of questionable water quality unless the sampling point is unacceptable as determined by the commissioner department.

g. A seasonal waterworks may collect special samples in accordance with an approved start-up procedure pursuant to subdivision A 10 12 a of this section.

2. The minimum number of bacteriological samples for total coliform evaluation to be collected and analyzed monthly from the distribution system of a community waterworks, or nontransient noncommunity waterworks a NTNC shall be in accordance with Table 2.1. Owners of all 370.1. The owner of a (i) transient noncommunity waterworks TNC that use uses a surface water source or a groundwater source under the direct influence of surface water and or (ii) a large transient noncommunity TNC (serving 1,000 or more persons per day) waterworks shall collect and submit samples monthly for analysis in accordance with Table 2.1 370.1. Owners of For all other transient noncommunity waterworks TNCs, the owner shall collect and submit samples for analysis each calendar quarter in accordance with Table 2.1. 370.1. The minimum number of samples must be collected and submitted even if the waterworks has exceeded the E. coli PMCL or the total coliform treatment technique triggers.

3. The samples shall be taken collected at reasonably evenly spaced time intervals as practical throughout the month, except that a waterworks that use uses only groundwater serving and serves 4,900 or fewer people may collect all have the required samples collected on a single day if the samples are taken collected from different sites.

4. If the results of a sanitary survey or other factors determine that some other frequency is more appropriate than that stated in subdivisions A 2 and A 3 and A 4 of this section, then a modified BSSP may be required. The altered frequency shall be confirmed or changed on the basis of subsequent sanitary surveys or as otherwise determined by the commissioner department.

5. An The owner may conduct more compliance monitoring than is required by this section to investigate potential problems in the distribution system and to assist in uncovering problems. An The owner may take collect more than the minimum number of required routine samples. If the samples are taken collected in accordance with the existing BSSP and are representative of water quality throughout the distribution system, then all of the results shall be included in determining whether a coliform treatment technique has been triggered.

6. An The owner may propose repeat monitoring locations believed to be representative of a pathway for contamination of the distribution system. An The owner may elect to specify either alternative fixed locations or criteria for selecting repeat sampling sites on a situational basis in a standard operating procedure (SOP) SOP in its BSSP. The owner shall design the SOP to focus on the collection of repeat samples at locations that best verify and determine the extent of potential contamination of the distribution system area based on specific situations. The commissioner department shall require modifications to the SOP or require alternative monitoring locations as needed.

TABLE2.1370.1

Bacteriological Monitoring

POPULATION SERVED PER DAY

MINIMUM NUMBER OF SAMPLESa
(See subdivision A 2 of this section)

25 to 1,000b

1

1,001 to 2,500

2

2,501 to 3,300

3

3,301 to 4,100

4

4,101 to 4,900

5

4,901 to 5,800

6

5,801 to 6,700

7

6,701 to 7,600

8

7,601 to 8,500

9

8,501 to 12,900

10

12,901 to 17,200

15

17,201 to 21,500

20

21,501 to 25,000

25

25,001 to 33,000

30

33,001 to 41,000

40

41,001 to 50,000

50

50,001 to 59,000

60

59,001 to 70,000

70

70,001 to 83,000

80

83,001 to 96,000

90

96,001 to 130,000

100

130,001 to 220,000

120

220,001 to 320,000

150

320,001 to 450,000

180

450,001 to 600,000

210

600,001 to 780,000

240

780,001 to 970,000

270

970,001 to 1,230,000

300

1,230,001 to 1,520,000

330

1,520,001 to 1,850,000

360

1,850,001 to 2,270,000

2,270,001 to 3,020,000

3,020,001 to 3,960,000

3,960,001 or more

390

420

450

480

aMonthly monitoring is required for the following waterworks: (i) community; (ii) nontransient noncommunity; (iii) all noncommunity waterworks that use a surface water source, a GUDI source, or both; (iv) all seasonal waterworks; and (v) large noncommunity (serving more than 1,000 people per day). Quarterly monitoring is required for noncommuntity waterworks not specifically identified in the monthly requirements. Annual monitoring may be allowed at a TNC that meets the criteria specified in subdivision A 8 of this section.

bIncludes a waterworks that have at least 15 service connections, but serve fewer than 25 persons.

7. All bacteriological analyses shall be performed in accordance with 12VAC5-590-440 by the Division of Consolidated Laboratory Services (DCLS) DCLS or by a laboratory certified by the DCLS for drinking water samples.

8. Annual monitoring. The department may reduce the bacteriological monitoring frequency at a well-operated TNC from a quarterly sample to one annual sample, and the waterworks may remain at the annual monitoring frequency provided that all of the following conditions are continuously met:

a. The waterworks serves 1,000 or fewer people per day.

b. The waterworks uses groundwater only and is not under the influence of surface water.

c. The waterworks has a clean compliance history for a minimum of 12 consecutive months.

d. The most recent sanitary survey shows that the waterworks is free of sanitary defects or has corrected all identified sanitary defects.

e. The waterworks has a protected water source.

f. The waterworks meets existing approved construction standards.

g. The department has conducted an annual site visit within the last 12 months, and all identified sanitary defects have been corrected. For the purposes of this section, an annual site visit is equivalent to a voluntary Level 2 assessment that meets the criteria in 12VAC5-590-392 C. A sanitary survey may meet the requirement for an annual site visit in the year in which the sanitary survey is completed if all identified sanitary defects have been corrected.

8. 9. Increased monitoring.

a. A transient noncommunity waterworks TNC on quarterly or annual monitoring shall begin monthly monitoring in the month following an event if any of the following were to occur occurs: (i) the waterworks triggers a Level 2 assessment or two Level 1 assessments under the provisions of 12VAC5-590-392 in a rolling 12-month period, (ii) the waterworks has an E. coli PMCL violation, (iii) the waterworks has a coliform treatment technique violation, (iv) the owner has two monitoring violations under 12VAC5-590-370 A 2, or (v) the owner has one monitoring violation under 12VAC5-590-370 A 2 and one Level 1 assessment under 12VAC5-590-392 in a rolling 12-month period. Owners The owner shall continue monthly monitoring until the requirements in subdivisions A 9 a A 10 a and A 9 b A 10 b of this section are met. A waterworks on monthly monitoring for other reasons is not considered to be on increased monitoring for the purpose of this subdivision.

b. A TNC on annual monitoring that experiences one monitoring violation of 12VAC5-590-370 must begin quarterly monitoring in the quarter following the event. The owner shall continue quarterly monitoring until the conditions in subdivision A 11 of this section are continuously met and the department reduces the monitoring frequency.

9. 10. Returning to quarterly routine monitoring. The commissioner department may return the monitoring frequency of a transient noncommunity waterworks TNC subject to subdivision A 9 a of this section and using groundwater not under the influence of surface water to quarterly monitoring if:

a. The commissioner department has completed a sanitary survey or a site visit within the last 12 months, and the transient noncommunity waterworks TNC is free of sanitary defects and has a protected water source; and

b. The owner waterworks has maintained a clean compliance history, defined as a record of no PMCL violations for microbiological contaminants, no monitoring violations under 12VAC5-590-370, and no coliform treatment technique trigger exceedances or treatment technique violations under 12VAC5-590-392, for a minimum of 12 consecutive months following the event.

11. Returning to annual routine monitoring. The department may reduce the monitoring frequency of a TNC subject to subdivision A 9 of this section and using groundwater not under the influence of surface water to annual monitoring if:

a. An annual site visit or sanitary survey is conducted by the department, and all identified sanitary defects are corrected. The waterworks may substitute a voluntary Level 2 assessment for the annual site visit.

b. The waterworks has a protected water source and maintained a clean compliance history for a minimum of 12 consecutive months following the event.

c. The waterworks has in place or has adopted one or more of the following additional barriers to contamination: (i) an approved cross-connection control program, (ii) a licensed operator, (iii) continuous disinfection and maintenance of a residual in the distribution system in accordance with criteria specified by the department, (iv) demonstration of maintenance of at least a 4-log removal or inactivation of viruses in accordance with 12VAC5-590-379 A, or (v) other equivalent enhancements approved by the department.

10. 12. Seasonal waterworks monitoring.

a. All A seasonal waterworks shall demonstrate completion of an approved start-up procedure that may include start-up sampling prior to before serving water.

b. A seasonal waterworks shall monitor every month that it is in operation.

c. The commissioner department may waive any seasonal waterworks from some or all of the requirements for seasonal waterworks if the entire distribution system remains pressurized during the entire period that the waterworks is not operating.

d. Failure to complete an approved start-up procedure prior to before serving water is a treatment technique violation and requires the owner to provide public notification under Tier 2 conditions in 12VAC5-590-540 12VAC5-590-540 A 2.

e. Failure to submit certification of completion to the commissioner department after the owner completes an approved start-up procedure is a reporting violation and requires the owner to provide public notification under Tier 3 conditions in 12VAC5-590-540 A 3.

11. 13. Additional routine monitoring in the month following a total coliform-positive sample.

a. Owners The owner collecting samples on a quarterly or annual frequency shall collect at least three additional routine samples during the month following one or more total coliform-positive samples, with or without a Level 1 treatment trigger. The owner shall use the results of additional routine samples in coliform treatment technique trigger calculations under 12VAC5-590-392 B.

b. The requirements specified in subdivision A 11 13 a of this section may be waived by the commissioner department if:

(1) The commissioner department conducts a site visit before the end of the next month in which the waterworks provides water and has determined whether additional monitoring or corrective action is needed;

(2) The commissioner department has determined why the sample was total coliform positive and has established that the owner corrected the problem or will correct the problem before the end of the next month in which the waterworks serves water. In this case, the decision and the rationale for the decision shall be documented and approved in writing by the commissioner department. The commissioner department shall make this document available to EPA and the public. The documentation shall describe the specific cause of the total coliform-positive sample and what action the owner has taken or will take to correct this problem; or

(3) The commissioner department determines that the owner has corrected the contamination problem before collecting the set of repeat samples required in 12VAC5-590-380 D 3, and all repeat samples are total coliform negative. The commissioner department may waive the requirement for additional routine monitoring the next month.

c. The requirements specified in subdivision A 11 13 a of this section may not be waived by the commissioner department solely on the grounds that all repeat samples are total coliform negative.

12. 14. Failure to collect every required routine or additional routine sample in a compliance period is a monitoring violation and requires the owner to provide public notification under Tier 3 conditions in 12VAC5-590-540 A 3.

13. 15. Failure to submit monitoring results after the owner properly conducts monitoring is a reporting violation and requires the owner to provide public notification under Tier 3 conditions in 12VAC5-590-540 A 3.

B. Chemical monitoring. The location of sampling points, the chemicals measured, the frequency, and the timing of sampling within each compliance period shall be established or approved by the commissioner department at the time of issuance of a waterworks operation permit because of changes in this chapter or conditions at the waterworks.

1. The commissioner department may increase required monitoring where necessary to detect variations within the waterworks and to provide quality control for any treatment processes that are employed.

2. Analysis of field composite samples shall not be allowed.

3. Samples for contaminants that may exhibit seasonal variations shall be collected during the period of the year when contamination is most likely to occur.

4. Failure to comply with the sampling schedules in this section shall require public notification pursuant to 12VAC5-590-540 A 3.

C. The department may allow a consecutive waterworks that obtains potable water from another waterworks to limit monitoring to bacteriological, residual disinfectant, DBPs, and lead and copper.

D. Monitoring requirements for a waterworks developing new sources of source water are provided in 12VAC5-590-820, 12VAC5-590-830, and 12VAC5-590-840.

E. The department may require an owner to collect additional samples to provide quality control for any treatment processes that are employed.

F. Surface water sampling requirements specified in 12VAC5-590-372 through 12VAC5-590-378 apply to GUDI sources.

Any other dates contained in this chapter notwithstanding, all waterworks shall comply with all applicable PMCLs listed in Tables 2.2 and 2.3.

Design criteria for new or modified waterworks or owners developing new sources of supply are found in 12VAC5-590-820, 12VAC5-590-830 and 12VAC5-590-840.

1. Inorganic chemical. Community and nontransient noncommunity waterworks owners shall conduct monitoring to determine compliance with the MCLs in Table 2.2 in accordance with this section. All other noncommunity waterworks owners shall conduct monitoring to determine compliance with the nitrate and nitrite PMCLs in Table 2.2 (as appropriate) in accordance with this section. Monitoring shall be conducted as follows:

a. The owner of any groundwater source waterworks with 150 or more service connections shall take a minimum of one sample at each entry point to the distribution system which is representative of each source, after treatment, unless a change in condition makes another sampling point more representative of each source or treatment plant (hereafter called a sampling point) starting in the compliance period beginning January 1, 1993. The owner of any groundwater source waterworks with fewer than 150 service connections shall take a minimum of one sample at each sampling point for asbestos, barium, cadmium, chromium, fluoride, mercury, nitrate, nitrite, and selenium in the compliance period beginning January 1, 1993, for antimony, beryllium, cyanide (as free cyanide), nickel, and thallium in the compliance period beginning January 1, 1996, and for arsenic (for community and nontransient noncommunity waterworks) in compliance with subdivision B 1 d (6) (b) of this section.

b. The owner of any waterworks which uses a surface water source in whole or in part with 150 or more service connections shall take a minimum of one sample at each entry point to the distribution system after any application of treatment or in the distribution system at a point which is representative of each source, after treatment, unless a change in conditions makes another sampling point more representative of each source or treatment plant (hereafter called a sampling point) beginning January 1, 1993. The owner of any waterworks which use a surface water source in whole or in part with fewer than 150 service connections shall take a minimum of one sample at each sampling point for asbestos, barium, cadmium, chromium, fluoride, mercury, nitrate, nitrite, and selenium beginning January 1, 1993, for antimony, beryllium, cyanide (as free cyanide), nickel, and thallium beginning January 1, 1996, and for arsenic (for community and nontransient noncommunity waterworks) in compliance with subdivision B 1 d (6) (a) of this section.

c. If a waterworks draws water from more than one source and the sources are combined before distribution, the owner shall sample at an entry point to the distribution system during periods of normal operating conditions (i.e., when water is representative of all sources being used).

d. The frequency of monitoring for asbestos shall be in accordance with subdivision B 1 d (1) of this section; the frequency of monitoring for barium, cadmium, chromium, fluoride, mercury, and selenium shall be in accordance with subdivision B 1 d (2) of this section; the frequency of monitoring for antimony, beryllium, cyanide (as free cyanide), nickel, and thallium shall be in accordance with subdivision B 1 d (3) of this section; the frequency of monitoring for nitrate shall be in accordance with subdivision B 1 d (4) of this section; the frequency of monitoring for nitrite shall be in accordance with subdivision B 1 d (5) of this section; and the frequency of monitoring for arsenic shall be in accordance with subdivision B 1 d (6) of this section.

(1) The frequency of monitoring conducted to determine compliance with the PMCL for asbestos specified in Table 2.2 shall be conducted as follows:

(a) The owner of each community and nontransient noncommunity waterworks is required to monitor for asbestos during the first three-year compliance period of each nine-year compliance cycle beginning in the compliance period starting January 1, 1993.

(b) If the owner believes the waterworks is not vulnerable to either asbestos contamination in its source water or due to corrosion of asbestos-cement pipe, or both, the owner may apply to the commissioner for a waiver of the monitoring requirement in subdivision B 1 d (1) (a) of this section. If the commissioner grants the waiver, the owner is not required to monitor.

(c) The commissioner may grant a waiver based on a consideration of the following factors:

(i) Potential asbestos contamination of the water source; and

(ii) The use of asbestos-cement pipe for finished water distribution and the corrosive nature of the water.

(d) A waiver remains in effect until the completion of the three-year compliance period. The owner of a waterworks not receiving a waiver shall monitor in accordance with the provisions of subdivision B 1 d (1) (a) of this section.

(e) The owner of a waterworks vulnerable to asbestos contamination due solely to corrosion of asbestos-cement pipe shall take one sample at a tap served by asbestos-cement pipe and under conditions where asbestos contamination is most likely to occur.

(f) The owner of a waterworks vulnerable to asbestos contamination due solely to source water shall monitor sampling points in accordance with subdivision B 1 of this section.

(g) The owner of a waterworks vulnerable to asbestos contamination due both to its source water supply and corrosion of asbestos-cement pipe shall take one sample at a tap served by asbestos-cement pipe and under conditions where asbestos contamination is most likely to occur.

(h) The owner of a waterworks which exceeds the PMCL as determined in 12VAC5-590-410 B 1 shall monitor quarterly beginning in the next quarter after the exceedance occurred.

(i) The commissioner may decrease the quarterly monitoring requirement to the frequency specified in subdivision B 1 d (1) (a) of this section provided the commissioner has determined that the waterworks is reliably and consistently below the PMCL. In no case can the commissioner make this determination unless the owner of a groundwater source waterworks takes a minimum of two quarterly samples or the owner of a waterworks which uses a surface water source in whole or in part takes a minimum of four quarterly samples.

(j) If monitoring data collected after January 1, 1990, are generally consistent with the requirements of subdivision B 1 d (1) of this section, then the commissioner may allow an owner to use that data to satisfy the monitoring requirement for the initial compliance period beginning January 1, 1993.

(2) The frequency of monitoring conducted to determine compliance with the MCLs in Table 2.2 for barium, cadmium, chromium, fluoride, mercury, and selenium shall be as follows:

(a) The owner of a groundwater source waterworks shall take one sample at each sampling point during each compliance period beginning in the compliance period starting January 1, 1993.

(b) The owner of a waterworks which uses a surface water source in whole or in part shall take one sample annually at each sampling point beginning January 1, 1993.

(c) An owner may apply to the commissioner for a waiver from the monitoring frequencies specified in subdivision B 1 d (2) (a) or (b) of this section.

(d) A condition of the waiver shall require that the owner shall take a minimum of one sample while the waiver is effective. The term during which the waiver is effective shall not exceed one compliance cycle (i.e., nine years).

(e) The commissioner may grant a waiver provided the owner of a waterworks that uses a surface water source in whole or in part has monitored annually for at least three years and groundwater waterworks have conducted a minimum of three rounds of monitoring. (At least one sample shall have been taken since January 1, 1990.) The owner of any waterworks which uses a surface water source in whole or in part or a groundwater source waterworks shall demonstrate that all previous analytical results were less than the PMCL. Waterworks that use a new water source are not eligible for a waiver until three rounds of monitoring from the new source have been completed.

(f) In determining the appropriate reduced monitoring frequency, the commissioner shall consider:

(i) Reported concentrations from all previous monitoring;

(ii) The degree of variation in reported concentrations; and

(iii) Other factors that may affect contaminant concentrations such as changes in groundwater pumping rates, changes in the waterworks configuration, changes in the waterworks operating procedures, or changes in stream flows or characteristics.

(g) A decision by the commissioner to grant a waiver shall be made in writing and shall set forth the basis for the determination. The request for a waiver may be initiated by the commissioner or upon an application by the owner. The owner shall specify the basis for the request. The commissioner shall review and, where appropriate, revise the determination of the appropriate monitoring frequency when the owner submits new monitoring data or when other data relevant to the waterworks appropriate monitoring frequency become available.

(h) Owners of waterworks that exceed the PMCLs as calculated in 12VAC5-590-410 shall monitor quarterly beginning in the next quarter after the exceedance occurred.

(i) The commissioner may decrease the quarterly monitoring requirement to the frequencies specified in subdivision B 1 d (2) (a), (b) or (c) of this section provided a determination has been made that the waterworks is reliably and consistently below the PMCL. In no case can the commissioner make this determination unless the owner of a groundwater source waterworks takes a minimum of two quarterly samples or the owner of a waterworks which uses a surface water source in whole or in part takes a minimum of four quarterly samples.

(3) The frequency of monitoring conducted to determine compliance with the PMCLs in Table 2.2 for antimony, beryllium, cyanide (as free cyanide), nickel, and thallium shall be as follows:

(a) The owner of a groundwater source waterworks with 150 or more service connections shall take one sample at each sampling point during each compliance period beginning in the compliance period starting January 1, 1993. The owner of a groundwater source waterworks with fewer than 150 service connections shall take one sample at each sampling point during each compliance period beginning in the compliance period starting January 1, 1996.

(b) The owner of a waterworks that uses a surface water source in whole or in part with 150 or more service connections shall take one sample annually at each sampling point beginning January 1, 1993. The owner of a waterworks that uses a surface water source in whole or in part with fewer than 150 service connections shall take one sample annually at each sampling point beginning January 1, 1996.

(c) An owner may apply to the commissioner for a waiver from the monitoring frequencies specified in subdivision B 1 d (3) (a) or (b) of this section.

(d) A condition of the waiver shall require that the owner take a minimum of one sample while the waiver is effective. The term during which the waiver is effective shall not exceed one compliance cycle (i.e., nine years).

(e) The commissioner may grant a waiver provided the owner of a waterworks that uses a surface water source in whole or in part has monitored annually for at least three years and groundwater waterworks have conducted a minimum of three rounds of monitoring. (At least one sample shall have been taken since January 1, 1990.) The owner of any waterworks which uses a surface water source in whole or in part or a groundwater source waterworks shall demonstrate that all previous analytical results were less than the PMCL. Waterworks that use a new water source are not eligible for a waiver until three rounds of monitoring from the new source have been completed.

(f) In determining the appropriate reduced monitoring frequency, the commissioner shall consider:

(i) Reported concentrations from all previous monitoring;

(ii) The degree of variation in reported concentrations; and

(iii) Other factors which may affect contaminant concentrations such as changes in groundwater pumping rates, changes in the waterworks configuration, changes in the waterworks operating procedures, or changes in stream flows or characteristics.

(g) A decision by the commissioner to grant a waiver shall be made in writing and shall set forth the basis for the determination. The request for a waiver may be initiated by the commissioner or upon an application by the owner. The owner shall specify the basis for the request. The commissioner shall review and, where appropriate, revise the determination of the appropriate monitoring frequency when the owner submits new monitoring data or when other data relevant to the waterworks appropriate monitoring frequency become available.

(h) Owners of waterworks that exceed the PMCLs as calculated in 12VAC5-590-410 shall monitor quarterly beginning in the next quarter after the exceedance occurred.

(i) The commissioner may decrease the quarterly monitoring requirement to the frequencies specified in subdivision B 1 d (3) (a), (b) or (c) of this section provided a determination has been made that the waterworks is reliably and consistently below the PMCL. In no case shall the commissioner make this determination unless the owner of a groundwater source waterworks takes a minimum of two quarterly samples or the owner of a waterworks which uses a surface water source in whole or in part takes a minimum of four quarterly samples.

(4) All community, nontransient noncommunity and noncommunity waterworks owners shall monitor to determine compliance with the PMCL for nitrate in Table 2.2.

(a) Owners of community and nontransient noncommunity waterworks that use a groundwater source shall monitor annually beginning January 1, 1993.

(b) Owners of community and nontransient noncommunity waterworks that use a surface water source in whole or in part shall monitor quarterly beginning January 1, 1993.

(c) For owners of community and nontransient noncommunity waterworks that use groundwater, the repeat monitoring frequency shall be quarterly for at least one year following any one sample in which the concentration is greater than 50% of the PMCL. The commissioner may allow the owner of a waterworks, that uses groundwater, to reduce the sampling frequency to annually after four consecutive quarterly samples are reliably and consistently less than the PMCL.

(d) For community and nontransient noncommunity waterworks, the commissioner may allow the owner of a waterworks that uses a surface water source in whole or in part, to reduce the sampling frequency to annually if all analytical results from four consecutive quarters are less than 50% of the PMCL. Such waterworks shall return to quarterly monitoring if any one sample is greater than or equal to 50% of the PMCL.

(e) The owners of all other noncommunity waterworks shall monitor annually beginning January 1, 1993.

(f) After the initial round of quarterly sampling is completed, the owner of each community and nontransient noncommunity waterworks that is monitoring annually shall take subsequent samples during the quarter(s) which previously resulted in the highest analytical result.

(5) All owners shall monitor to determine compliance with the PMCL for nitrite in Table 2.2.

(a) All owners shall take one sample at each sampling point in the compliance period beginning January 1, 1993.

(b) After the initial sample, the owner of any waterworks where an analytical result for nitrite is less than 50% of the PMCL shall monitor at the frequency specified by the commissioner.

(c) The repeat monitoring frequency for any owner shall be quarterly for at least one year following any one sample in which the concentration is greater than 50% of the PMCL. The commissioner may allow an owner to reduce the sampling frequency to annually after determining the analysis results are reliably and consistently less than the PMCL.

(d) Owners of waterworks which are monitoring annually shall take each subsequent sample during the quarter(s) which previously resulted in the highest analytical result.

(6) The frequency of monitoring conducted to determine compliance with the PMCLs in Table 2.2 for arsenic shall be as follows:

(a) The owner of each community and nontransient noncommunity waterworks that uses a surface water source in whole or in part shall take one sample annually at each sampling point beginning January 23, 2006.

(b) The owner of each community and nontransient noncommunity groundwater source waterworks shall take one sample at each entry point during each compliance period starting January 23, 2006.

(c) Owners of waterworks that exceed the PMCL, as calculated in 12VAC5-590-410, shall monitor quarterly beginning in the next quarter after the exceedance has occurred.

(d) The commissioner may decrease the quarterly monitoring requirement to the frequencies specified in subdivision B 1 d (6) (a) or (b) of this section provided a determination has been made that the waterworks is reliably and consistently below the PMCL. In no case can the commissioner make this determination unless the owner of a groundwater source waterworks takes a minimum of two quarterly samples or the owner of a waterworks that uses a surface water source in whole or in part takes a minimum of four quarterly samples.

(e) No waivers shall be granted by the commissioner for arsenic.

2. Organic chemicals. Owners of all community and nontransient noncommunity waterworks shall sample for organic chemicals in accordance with their water source. Where two or more sources are combined before distribution, the owner shall sample at the entry point for the combined sources during periods of normal operating conditions.

a. Owners of waterworks that use groundwater shall take a minimum of one sample at each entry point to the distribution system which is representative of each source, after treatment (hereafter called a sampling point).

b. Owners of waterworks that use a surface water source in whole or in part shall take a minimum of one sample at points in the distribution system that are representative of each source or at each entry point to the distribution system, after treatment (hereafter called a sampling point).

c. The owner of each community and nontransient noncommunity waterworks shall take four consecutive quarterly samples for each contaminant listed in Table 2.3-VOC 2 through 21 and SOC during each compliance period, beginning in the compliance period starting January 1, 1993.

d. Reduced monitoring.

(1) VOC.

(a) If the initial monitoring for contaminants listed in Table 2.3-VOC 1 through 8 and the monitoring for the contaminants listed in Table 2.3-VOC 9 through 21 as allowed in subdivision B 2 d (1) (c) of this section has been completed by December 31, 1992, and the waterworks did not detect any contaminant listed in Table 2.3-VOC 1 through 21, then the owner of each groundwater waterworks and waterworks that use a surface water source in whole or in part shall take one sample annually beginning January 1, 1993.

(b) After a minimum of three years of annual sampling, the commissioner may allow the owner of a groundwater waterworks with no previous detection of any contaminant listed in Table 2.3-VOC 2 through 21 to take one sample during each compliance period.

(c) The commissioner may allow the use of monitoring data collected after January 1, 1988, for purposes of initial monitoring compliance. If the data are generally consistent with the other requirements in this section, the commissioner may use these data (i.e., a single sample rather than four quarterly samples) to satisfy the initial monitoring requirement of subdivision B 2 c of this section. Owners of waterworks that use grandfathered samples and did not detect any contaminants listed in Table 2.3-VOC, 2 through 21, shall begin monitoring annually in accordance with subdivision B 2 d (1) (a) of this section beginning January 1, 1993.

(2) SOC.

(a) Owners of waterworks serving more than 3,300 persons that do not detect a contaminant listed in Table 2.3-SOC in the initial compliance period, may reduce the sampling frequency to a minimum of two quarterly samples in one year during each repeat compliance period.

(b) Owners of waterworks serving less than or equal to 3,300 persons that do not detect a contaminant listed in Table 2.3-SOC in the initial compliance period may reduce the sampling frequency to a minimum of one sample during each repeat compliance period.

e. Waiver application.

(1) For VOCs. The owner of any community and nontransient noncommunity groundwater waterworks which does not detect a contaminant listed in Table 2.3-VOC may apply to the commissioner for a waiver from the requirements of subdivisions B 2 d (1) (a) and (b) of this section after completing the initial monitoring. A waiver shall be effective for no more than six years (two compliance periods). The commissioner may also issue waivers to small systems for the initial round of monitoring for 1,2,4-trichlorobenzene.

(2) For SOCs. The owner of any community and nontransient noncommunity waterworks may apply to the commissioner for a waiver from the requirement of subdivisions B 2 c and d (2) of this section. The owner shall reapply for a waiver for each compliance period.

f. The commissioner may grant a waiver after evaluating the following factors: Knowledge of previous use (including transport, storage, or disposal) of the contaminant within the watershed or zone of influence of the source. If a determination by the commissioner reveals no previous use of the contaminant within the watershed or zone of influence, a waiver may be granted. If previous use of the contaminant is unknown or it has been used previously, then the following factors shall be used to determine whether a waiver is granted.

(1) Previous analytical results.

(2) The proximity of the waterworks to a potential point or nonpoint source of contamination. Point sources include spills and leaks of chemicals at or near a waterworks or at manufacturing, distribution, or storage facilities, or from hazardous and municipal waste landfills and other waste handling or treatment facilities. Nonpoint sources for SOCs include the use of pesticides to control insect and weed pests on agricultural areas, forest lands, home and gardens, and other land application uses.

(3) The environmental persistence and transport of the contaminants listed in Table 2.3 VOC and SOC.

(4) How well the water source is protected against contamination, such as whether it is a waterworks that uses a surface water source in whole or in part or whether it is a groundwater source waterworks. Groundwater source waterworks shall consider factors such as depth of the well, the type of soil, wellhead protection, and well structure integrity. Owners of waterworks that use surface water in whole or in part shall consider watershed protection.

(5) Special factors.

(a) For VOCs. The number of persons served by the waterworks and the proximity of a smaller waterworks to a larger waterworks.

(b) For SOCs. Elevated nitrate levels at the waterworks supply source.

(c) For SOCs. Use of PCBs in equipment used in the production, storage, or distribution of water (i.e., PCBs used in pumps, transformers, etc.).

g. Condition for waivers.

(1) As a condition of the VOC waiver the owner of a groundwater waterworks shall take one sample at each sampling point during the time the waiver is effective (i.e., one sample during two compliance periods or six years) and update its vulnerability assessment considering the factors listed in subdivision B 2 f of this section. Based on this vulnerability assessment the commissioner shall reconfirm that the waterworks is nonvulnerable. If the commissioner does not make this reconfirmation within three years of the initial determination, then the waiver is invalidated and the owner is required to sample annually as specified in subdivision B 2 d (1) (a) of this section.

(2) The owner of any community and nontransient noncommunity waterworks that use surface water in whole or in part which does not detect a contaminant listed in Table 2.3-VOC may apply to the commissioner for a waiver from the requirements of subdivision B 2 d (1) (a) of this section after completing the initial monitoring. Waterworks meeting these criteria shall be determined by the commissioner to be nonvulnerable based on a vulnerability assessment during each compliance period. Each owner receiving a waiver shall sample at the frequency specified by the commissioner (if any).

(3) There are no conditions to SOC waivers.

h. If a contaminant listed in Table 2.3-VOC 2 through 21 or SOC 1 through 33 is detected then (NOTE: Detection occurs when a contaminant level exceeds the current detection limit as defined by EPA.):

(1) Each owner shall monitor quarterly at each sampling point which resulted in a detection.

(2) The commissioner may decrease the quarterly monitoring requirement specified in subdivision B 2 h (1) of this section provided it has determined that the waterworks is reliably and consistently below the PMCL. In no case shall the commissioner make this determination unless the owner of a groundwater waterworks takes a minimum of two quarterly samples and the owner of a waterworks that use surface water in whole or in part takes a minimum of four quarterly samples.

(3) If the commissioner determines that the waterworks is reliably and consistently below the PMCL, the commissioner may allow the waterworks to monitor annually. Owners of waterworks that monitor annually shall monitor during the quarter(s) that previously yielded the highest analytical result.

(4) Owners of waterworks that have three consecutive annual samples with no detection of a contaminant may apply to the commissioner for a waiver for VOC as specified in subdivision B 2 e (1) or to SOC as specified in subdivision B 2 e (2) of this section.

(5) Subsequent monitoring due to contaminant detection.

(a) Owners of groundwater waterworks that have detected one or more of the following two-carbon organic compounds: trichloroethylene, tetrachloroethylene, 1,2-dichloroethane, 1,1,1-trichloroethane, cis-1,2-dichloroethylene, trans-1,2-dichloroethylene, or 1,1-dichloroethylene shall monitor quarterly for vinyl chloride. A vinyl chloride sample shall be taken at each sampling point at which one or more of the two-carbon organic compounds were detected. If the results of the first analysis do not detect vinyl chloride, the commissioner may reduce the quarterly monitoring frequency of vinyl chloride monitoring to one sample during each compliance period. Owners of waterworks that use surface water in whole or in part are required to monitor for vinyl chloride as specified by the commissioner.

(b) If monitoring results in detection of one or more of certain related contaminants (heptachlor and heptachlor epoxide), then subsequent monitoring shall analyze for all related contaminants.

i. Owners of waterworks that violate the requirements of Table 2.3 for VOCs or SOCs, as determined by 12VAC5-590-410 C, shall monitor quarterly. After a minimum of four consecutive quarterly samples that show the waterworks is in compliance as specified in 12VAC5-590-410 C and the commissioner determines that the waterworks is reliably and consistently below the PMCL, the owner may monitor at the frequency and time specified in subdivision B 2 h (3) of this section.

3. Disinfectant residuals, disinfection byproducts and disinfection byproduct precursors.

a. Unless otherwise noted, owners of all waterworks that use a chemical disinfectant shall comply with the requirements of this section as follows:

(1) Owners of community or nontransient noncommunity waterworks that use surface water or groundwater under the direct influence of surface water and serving 10,000 or more persons shall comply with this section beginning January 1, 2002.

(2) Owners of community or nontransient noncommunity waterworks that use surface water or groundwater under the direct influence of surface water serving fewer than 10,000 persons and waterworks using only groundwater not under the direct influence of surface water shall comply with this section beginning January 1, 2004.

(3) Owners of transient noncommunity waterworks that use surface water or groundwater under the direct influence of surface water and serving 10,000 or more persons and using chlorine dioxide as a disinfectant or oxidant shall comply with any requirements for chlorine dioxide in this section beginning January 1, 2002.

(4) Owners of transient noncommunity waterworks that use surface water or groundwater under the direct influence of surface water serving fewer than 10,000 persons and using chlorine dioxide as a disinfectant or oxidant and waterworks using only groundwater not under the direct influence of surface water and using chlorine dioxide as a disinfectant or oxidant shall comply with any requirements for chlorine dioxide in this section beginning January 1, 2004.

b. Owners shall take all samples during normal operating conditions.

(1) Analysis under this section for disinfection byproducts (TTHM, HAA5, chlorite and bromate) shall be conducted by a laboratory that has received certification by EPA or the state except as noted in subdivision B 3 b (2) of this section.

(2) Measurement under this section of daily chlorite samples at the entry point to the distribution system, disinfection residuals (free chlorine, combined chlorine, total chlorine and chlorine dioxide), alkalinity, bromide, TOC, SUVA (DOC and UV254), pH and magnesium shall be made by a party approved by the commissioner.

(3) DPD colorimetric test kits may be used to measure residual disinfectant concentrations for chlorine, chloramines and chlorine dioxide.

c. Failure to monitor in accordance with the monitoring plan required under subdivision B 3 j of this section is a monitoring violation. Failure to monitor shall be treated as a violation for the entire period covered by the annual average where compliance is based on a running annual average of monthly or quarterly samples or averages and the owner's failure to monitor makes it impossible to determine compliance with PMCLs or MRDLs.

d. Owners may use only data collected under the provisions of this section or the US EPA Information Collection Rule, 40 CFR Part 141 Subpart M, Information Collection Requirements (ICR) for Public Water Systems, to qualify for reduced monitoring.

e. TTHM/HAA5 monitoring. Owners of community or nontransient noncommunity waterworks shall monitor TTHM and HAA5 at the frequency indicated below, unless otherwise indicated:

(1) Running annual average monitoring requirements.

(a) Routine monitoring requirements:

(i) Owners of waterworks using surface water or groundwater under the direct influence of surface water and serving at least 10,000 persons shall collect four water samples per quarter per treatment plant. At least 25% of all samples collected each quarter shall be at locations representing maximum residence time in the distribution system. The remaining samples shall be taken at locations representative of at least average residence time in the distribution system and representative of the entire distribution system. When setting the sample locations the waterworks shall take into account number of persons served, different sources of water, and different treatment methods.

(ii) Owners of waterworks using surface water or groundwater under the direct influence of surface water and serving from 500 to 9,999 persons shall collect one sample per quarter per treatment plant. The sample location shall represent maximum residence time in the distribution system.

(iii) Owners of waterworks using surface water or groundwater under the direct influence of surface water and serving fewer than 500 persons shall collect one sample per year per treatment plant during the month of warmest water temperature. The sample location shall represent maximum residence time in the distribution system. If the sample (or average of annual samples, if more than one sample is taken) exceeds PMCL in Table 2.13, the owner shall increase monitoring to one sample per treatment plant per quarter, taken at a point reflecting the maximum residence time in the distribution system, until waterworks meets reduced monitoring criteria.

(iv) Owners of waterworks using only groundwater not under direct influence of surface water using chemical disinfectant and serving at least 10,000 persons shall collect one sample per quarter per treatment plant. The sample location shall represent maximum residence time in the distribution system.

(v) Owners of waterworks using only groundwater not under direct influence of surface water using chemical disinfectant and serving fewer than 10,000 persons shall collect one sample per year per treatment plant during the month of warmest water temperature. The sample location shall represent maximum residence time in the distribution system. If the sample (or average of annual samples, if more than one sample is taken) exceeds PMCL in Table 2.13, the owner shall increase monitoring to one sample per treatment plant per quarter, taken at a point reflecting the maximum residence time in the distribution system, until the waterworks meets the criteria for reduced monitoring found in subdivision B 3 e (1) (d) of this section.

(vi) If an owner elects to sample more frequently than the minimum required, at least 25% of all samples collected each quarter (including those taken in excess of the required frequency) shall be taken at locations that represent the maximum residence time of the water in the distribution system. The remaining samples shall be taken at locations representative of at least average residence time in the distribution system.

(vii) With prior approval of the commissioner, owners of waterworks that utilize multiple wells from a common aquifer may consider these multiple sources as one treatment plant for determining the minimum number of samples to be collected for TTHM and HAA5 analysis.

(b) After one year of routine monitoring an owner may reduce monitoring, except as otherwise provided, as follows:

(i) Owners of waterworks using surface water or groundwater under the direct influence of surface water and serving at least 10,000 persons that has a source water annual average TOC level, before any treatment, of equal to or less than 4.0 mg/L and a TTHM annual average equal to or less than 0.040 mg/L and HAA5 annual average equal to or less than 0.030 mg/L may reduce its monitoring to one sample per treatment plant per quarter at a distribution system location reflecting maximum residence time.

(ii) Owners of waterworks using surface water or groundwater under the direct influence of surface water serving from 500 to 9,999 persons that has a source water annual average TOC level, before any treatment, equal to or less than 4.0 mg/L and a TTHM annual average equal to or less than 0.040 mg/L and HAA5 annual average equal to or less than 0.030 mg/L may reduce its monitoring to one sample per treatment plant per year at a distribution system location reflecting maximum residence time during the month of warmest water temperature.

(iii) Owners of waterworks using only groundwater not under the direct influence of surface water, using chemical disinfectant and serving at least 10,000 persons that has a TTHM annual average of equal to or less than 0.040 mg/L and HAA5 annual average of equal to or less than 0.030 mg/L may reduce its monitoring to one sample per treatment plant per year at a distribution system location reflecting maximum residence time during the month of warmest water temperature.

(iv) Owners of waterworks using only groundwater not under the direct influence of surface water, using chemical disinfectant and serving fewer than 10,000 persons that has a TTHM annual average equal to or less than 0.040 mg/L and HAA5 annual average equal to or less than 0.030 mg/L for two consecutive years or TTHM annual average equal to or less than 0.020 mg/L and HAA5 annual average of equal to or less than 0.015 mg/L for one year may reduce its monitoring to one sample per treatment plant per three-year monitoring cycle at a distribution system location reflecting maximum residence time during the month of warmest water temperature, with the three-year cycle beginning on January 1 following the quarter in which the system qualifies for reduced monitoring.

(v) Owners of waterworks using surface water or groundwater under the direct influence of surface water serving fewer than 500 persons may not reduce its monitoring to less than one sample per treatment plant per year.

(vi) In order to qualify for reduced monitoring for TTHM and HAA5 under subdivision B 3 e (1) (b) (i) through (iv) of this section, owners of waterworks using surface water or groundwater under the direct influence of surface water not monitoring under the provisions of subdivision B 3 (i) shall take monthly TOC samples every 30 days at a location prior to any treatment, beginning April 1, 2008. In addition to meeting other criteria for reduced monitoring in subdivision B 3 e (1) (b) (i) through (iv) of this section, the source water TOC running annual average shall be less than or equal to 4.0 mg/L (based on the most recent four quarters of monitoring) on a continuing basis at each treatment plant to reduce or remain on reduced monitoring for TTHM and HAA5. Once qualified for reduced monitoring for TTHM and HAA5 under subdivision B 3 e (1) (b) (i) through (iv) of this section, a system may reduce source water TOC monitoring to quarterly TOC samples taken every 90 days at a location prior to any treatment.

(c) Owners of waterworks on a reduced monitoring schedule may remain on that reduced schedule as long as the average of all samples taken in the year (for waterworks that must monitor quarterly) or the result of the sample (for waterworks that must monitor no more frequently than annually) is no more than 0.060 mg/L and 0.045 mg/L for TTHMs and HAA5, respectively. Owners of waterworks that do not meet these levels shall resume monitoring at the frequency identified in subdivision B 3 e (1) (a) of this section in the quarter immediately following the monitoring period in which the waterworks exceeds 0.060 mg/L or 0.045 mg/L for TTHMs and HAA5, respectively. For waterworks using only groundwater not under the direct influence of surface water and serving fewer than 10,000 persons, if either the TTHMs annual average is greater than 0.080 mg/L or the HAA5 annual average is greater than 0.060 mg/L, the owner shall go to increased monitoring identified in subdivision B 3 e (1) (a) of this section in the quarter immediately following the monitoring period in which the waterworks exceeds 0.080 mg/L or 0.060 mg/L for TTHM or HAA5 respectively.

(d) Owners of waterworks on increased monitoring may return to routine monitoring if, after at least one year of monitoring, their TTHM annual average is equal to or less than 0.060 mg/L and their HAA5 annual average is equal to or less than 0.045 mg/L.

(e) The commissioner may return a waterworks to routine monitoring at the commissioner's discretion.

(2) Initial distribution system evaluations (IDSE).

(a) This subdivision establishes monitoring and other requirements for identifying locational running annual average (LRAA) compliance monitoring locations for determining compliance with maximum contaminant levels for total trihalomethanes (TTHM) and haloacetic acids (five) (HAA5). Owners shall use an IDSE to determine locations with representative high TTHM and HAA5 concentrations throughout the distribution system. IDSEs are used in conjunction with, but separate from running annual average compliance monitoring locations, subdivision B 3 e (1) (a) of this section, to identify and select locational running annual average compliance monitoring locations, subdivision B 3 e (3) of this section.

(b) This subdivision applies to the following waterworks:

(i) Community waterworks that use a primary or residual disinfectant other than ultraviolet light or delivers water that has been treated with a primary or residual disinfectant other than ultraviolet light; or,

(ii) Nontransient noncommunity waterworks that serve at least 10,000 people and use a primary or residual disinfectant other than ultraviolet light or delivers water that has been treated with a primary or residual disinfectant other than ultraviolet light.

(c) Owners shall comply with the following schedule:

Waterworks Population

Owners shall submit a standard monitoring plan or system specific study plan1 or 40/30 certification2 to the commissioner by or receive very small system waiver from the commissioner.

Owners shall complete standard monitoring or system specific study by

Owners shall submit IDSE report to the commissioner by3

Waterworks that are not part of a combined distribution system and waterworks that serve the largest population in the combined distribution system

Equal to or greater than 100,000

October 1, 2006

September 30, 2008

January 1, 2009

50,000-99,999

April 1, 2007

March 31, 2009

July 1, 2009

10,000-49,999

October 1, 2007

September 30, 2009

January 1, 2010

Less than 10,000 (CWS Only)

April 1, 2008

March 31, 2010

July 1, 2010

Other waterworks that are part of a combined distribution system

Wholesale waterworks or consecutive waterworks

-at the same time as the waterworks with the earliest compliance date in the combined distribution system

-at the same time as the waterworks with the earliest compliance date in the combined distribution system

-at the same time as the waterworks with the earliest compliance date in the combined distribution system

1If, within 12 months after the date identified in this column, the commissioner does not approve the plan or notify the owner that the review has been completed; the owner may consider the submitted plan as approved. The owner shall implement the plan and shall complete standard monitoring or a system specific study no later than the date identified in the third column.

2The owner shall submit the 40/30 certification under subdivision B 3 e (2) (d) (v) of this section by the date indicated.

3If, within three months after the date identified in this column (nine months after the date identified in this column if the owner is required to comply with the schedule for waterworks populations 10,000 to 49,999), the commissioner does not approve the IDSE report or notify the owner that the review has not been completed, the owner may consider the submitted report as approved and the owner shall implement the recommended monitoring in accordance with subdivision B 3 e (3) of this section as required.

For the purpose of this schedule, the commissioner has determined that the combined distribution system does not include consecutive waterworks that receive water from a wholesale waterworks only on an emergency basis or receive less than 10% of their total water consumption from a wholesale waterworks. The commissioner has also determined that the combined distribution system does not include wholesale waterworks that deliver water to a consecutive waterworks only on an emergency basis or delivers less than 10% of the total water used by a consecutive waterworks.

(d) Owners shall conduct standard monitoring that meets the requirements in subdivision B 3 e (2) (d) (iii) of this section, or a system specific study that meets the requirements in subdivision B 3 e (2) (d) (iv) of this section, or certify to the commissioner that the waterworks meets 40/30 certification criteria under subdivision B 3 e (2) (d) (v) of this section, or qualify for a very small system waiver under subdivision B 3 e (2) (d) (vi) of this section.

(i) Owners shall have taken the full complement of routine TTHM and HAA5 compliance samples required of a waterworks based on population and source water under subdivision B 3 e (1) of this section (or the owner shall have taken the full complement of reduced TTHM and HAA5 compliance samples required of an owner based population and source water under subdivision B 3 e (1) of this section if the waterworks meet reduced monitoring criteria under subdivision B 3 e (1)) of this section during the period specified in subdivision B 3 e (2) (d) (v) ((a)) of this section to meet the 40/30 certification criteria in subdivision B 3 e (2) (d) (v) of this section. Owners shall have taken TTHM and HAA5 samples under subdivision B 3 e (1) of this section to be eligible for the very small system waiver in subdivision B 3 e (2) (d) (vi) of this section.

(ii) If the owner has not taken the required samples, the owner shall conduct standard monitoring that meets the requirements in subdivision B 3 e (2) (d) (iii) of this section, or a system specific study that meets the requirements in subdivision B 3 e (2) (d) (iv) of this section.

(iii) Standard monitoring.

((a)) The standard monitoring plan shall comply with the following paragraphs ((i)) through ((iv)). Owners shall prepare and submit the standard monitoring plan to the commissioner according to the schedule in subdivision B 3 e (2) (c) of this section.

((i)) The standard monitoring plan shall include a schematic of the waterworks distribution system (including distribution system entry points and their sources, and storage facilities), with notes indicating locations and dates of all projected standard monitoring, and all projected compliance monitoring in accordance with subdivision B 3 e (1) of this section.

((ii)) The standard monitoring plan shall include justification of standard monitoring location selection and a summary of data relied on to justify standard monitoring location selection.

((iii)) The standard monitoring plan shall specify the population served and waterworks type (surface water, groundwater under the direct influence of surface water or groundwater).

((iv)) Owners shall retain a complete copy of the submitted standard monitoring plan, including any modification required by the commissioner of the standard monitoring plan, for as long as the owner is required to retain the IDSE report under subdivision B 3 e (2) (d) (iii) ((c)) ((iv)) of this section.

((b)) Owners shall monitor as indicated in the following table. Owners shall collect dual sample sets at each monitoring location. One sample in the dual sample set shall be analyzed for TTHM. The other sample in the dual sample set shall be analyzed for HAA5. Owners shall conduct one monitoring period during the peak historical month for TTHM levels or HAA5 levels or the month of warmest water temperature. Owners shall review available compliance, study, or operational data to determine the peak historical month for TTHM or HAA5 levels or warmest water temperature.

Source Water Type

Population Size Category

Monitoring Periods and Frequency of Sampling

Distribution System Monitoring Locations1

Total per monitoring period

Near Entry Points

Average Residence Time

High TTHM Locations

High HAA5 Locations

Surface water or ground-water under the direct influence of surface water.

Less than 500 consecutive waterworks

one (during peak historical month)2

2

1

 

1

 

Less than 500 nonconsecutive waterworks

2

 

 

1

1

500-3,300 consecutive waterworks

four (every 90 days)

2

1

 

1

 

500-3,300 nonconsecutive waterworks

2

 

 

1

1

3,301-9,999

4

 

1

2

1

10,000-49,999

six (every 60 days)

8

1

2

3

2

50,000-249,999

16

3

4

5

4

250,000-999,999

24

4

6

8

6

1,000,000-4,999,999

32

6

8

10

8

Equal to or greater than 5,000,000

40

8

10

12

10

Ground-water

Less than 500 consecutive waterworks

one (during peak historical month)2

2

1

 

1

 

Less than 500 nonconsecutive waterworks

2

 

 

1

1

500-9,999

four (every 90 days)

2

 

 

1

1

10,000-99,999

6

1

1

2

2

100,000-499,999

8

1

1

3

3

Equal to or greater than 500,000

12

2

2

4

4

1A dual sample set (i.e., a TTHM and an HAA5 sample) shall be taken at each monitoring location during each monitoring period.

2The peak historical month is the month with the highest TTHM or HAA5 levels or the warmest water temperature.

((i)) Owners shall take samples at locations other than the existing monitoring locations used in subdivision B 3 e (1) of this section. Monitoring locations shall be distributed throughout the distribution system.

((ii)) If the number of entry points to the distribution system is fewer than the specified number of entry point monitoring locations, excess entry point samples shall be replaced equally at high TTHM and HAA5 locations. If there is an odd extra location number, the owner shall take a sample at a high TTHM location. If the number of entry points to the distribution system is more than the specified number of entry point monitoring locations, owners shall take samples at entry points to the distribution system having the highest annual water flows.

((iii)) The monitoring under subdivision B 3 e (2) (d) (iii) ((b)) of this section may not be reduced.

((c)) The IDSE report shall include the elements required in the following paragraphs. Owners shall submit the IDSE report to the commissioner according to the schedule in subdivision B 3 e (2) (c) of this section.

((i)) The IDSE report shall include all TTHM and HAA5 analytical results from compliance monitoring required under subdivision B 3 e (1) of this section and all standard monitoring conducted during the period of the IDSE as individual analytical results and LRAAs presented in a tabular or spreadsheet format acceptable to the commissioner. If changed from the standard monitoring plan submitted under subdivision B 3 e (2) (d) (iii) ((a)) of this section, the report shall also include a schematic of the distribution system, the population served, and system type (surface water, groundwater under the direct influence of surface water or groundwater).

((ii)) The IDSE report shall include an explanation of any deviations from the approved standard monitoring plan.

((iii)) Owners shall recommend and justify the compliance monitoring locations to be used in accordance with subdivision B 3 e (3) of this section and timing based on the protocol in subdivision B 3 e (2) (e) of this section.

((iv)) Owners shall retain a complete copy of the IDSE report submitted under this section for 10 years after the date the report was submitted to the commissioner. If the commissioner modifies the LRAA monitoring requirements recommended in the IDSE report or if the commissioner approves alternative monitoring locations, the owner shall keep a copy of the commissioner's notification on file for 10 years after the date of the commissioner's notification. The owner shall make the IDSE report and any commissioner's notification available for review by the commissioner or the public.

(iv) System specific studies.

((a)) The system specific study plan shall be based on either existing monitoring results as required under subdivision B 3 e (2) (d) (iv) ((a)) or modeling as required under subdivision B 3 e (2) (d) (iv) ((a)) of this section. Owners shall prepare and submit the waterworks specific study plan to the commissioner according to the schedule in subdivision B 3 e (2) (c) of this section.

((i)) Existing monitoring results. Owners may comply by submitting monitoring results collected before the waterworks is required to begin monitoring under subdivision B 3 e (2) (c) of this section. The monitoring results and analysis shall meet the criteria in subdivisions ((1)) and ((2)) as follows:

((1)) Minimum requirements.

((A)) TTHM and HAA5 results shall be based on samples collected and analyzed in accordance with 12VAC5-590-440. Samples shall be collected no earlier than five years prior to the study plan submission date.

((B)) The monitoring locations and frequency shall meet the conditions identified in the following table. Each location shall be sampled once during the peak historical month for TTHM levels or HAA5 levels or the month of warmest water temperature for every 12 months of data submitted for that location. Monitoring results shall include all compliance monitoring results in accordance with subdivision B 3 e (1) of this section plus additional monitoring results as necessary to meet minimum sample requirements.

System Type

Population Size Category

Number of Monitoring Locations

Number of Samples

TTHM

HAA5

Surface water or groundwater under the direct influence of surface water

Less than 500

3

3

3

500-3,300

3

9

9

3,301-9,999

6

36

36

10,000-49,999

12

72

72

50,000-249,999

24

144

144

250,000-999,999

36

216

216

1,000,000-4,999,999

48

288

288

Equal to or greater than 5,000,000

60

360

360

Groundwater

Less than 500

3

3

3

500-9,999

3

9

9

10,000-99,999

12

48

48

100,000-499,999

18

72

72

Equal to or greater than 500,000

24

96

96

((2)) Reporting monitoring results. Owners shall report the following information:

((A)) Owners shall report previously collected monitoring results and certify that the reported monitoring results include all compliance and non-compliance results generated during the time period beginning with the first reported result and ending with the most recent results collected in accordance with subdivision B 3 e (1) of this section.

((B)) Owners shall certify that the samples were representative of the entire distribution system and that treatment, and distribution system have not changed significantly since the samples were collected.

((C)) The study monitoring plan shall include a schematic of the distribution system (including distribution system entry points and their sources, and storage facilities), with notes indicating the locations and dates of all completed or planned system specific study monitoring.

((D)) The system specific study plan shall specify the population served and system type (surface water, groundwater under the direct influence of surface water or groundwater).

((E)) Owners shall retain a complete copy of the system specific study plan submitted, including any modification requested by the commissioner of the system specific study plan, for as long as the owner is required to retain the IDSE report under subdivision B 3 e (2) (d) (iv) ((b)) ((vii)) of this section.

((F)) If previously collected data that fully meets the number of samples required under subdivision B 3 e (2) (d) (iv) ((a)) ((i)) ((1)) ((b)) of this section and the commissioner rejects some of the data, the owner shall either conduct additional monitoring to replace rejected data on a schedule the commissioner approves or conduct standard monitoring under subdivision B 3 e (2) (d) (iii) of this section.

((ii)) Modeling. Owners may comply through analysis of an extended period simulation hydraulic model. The extended period simulation hydraulic model and analysis shall meet the following criteria:

((1)) Minimum requirements.

((A)) The model shall simulate 24-hour variation in demand and show a consistently repeating 24-hour pattern of residence time.

((B)) The model shall represent the criteria listed in the following table:

75% of pipe volume;

50% of pipe length;

All pressure zones;

All 12-inch diameter and larger pipes;

All 8-inch and larger pipes that connect pressure zones, influence zones from different sources, storage facilities, major demand areas, pumps, and control valves, or are known or expected to be significant conveyors of water;

All 6-inch and larger pipes that connect remote areas of a distribution system to the main portion of the system;

All storage facilities with standard operations represented in the model; and

All active pump stations with controls represented in the model; and

All active control valves.

((C)) The model shall be calibrated, or have calibration plans, for the current configuration of the distribution system during the period of high TTHM formation potential. All storage facilities shall be evaluated as part of the calibration process. All required calibration shall be completed no later than 12 months after plan submission.

((2)) Reporting modeling. The system specific study plan shall include the following information:

((A)) Tabular or spreadsheet data demonstrating that the model meets requirements in subdivision B 3 e (2) (d) (iv) ((a)) ((ii)) ((1)) ((b)) of this section.

((B)) A description of all calibration activities undertaken, and if calibration is complete, a graph of predicted tank levels versus measured tank levels for the storage facility with the highest residence time in each pressure zone, and a time series graph of the residence time at the longest residence time storage facility in the distribution system showing the predictions for the entire simulation period (i.e., from time zero until the time it takes to for the model to reach a consistently repeating pattern of residence time).

((C)) Model output showing preliminary 24-hour average residence time predictions throughout the distribution system.

((D)) Timing and number of samples representative of the distribution system planned for at least one monitoring period of TTHM and HAA5 dual sample monitoring at a number of locations no less than would be required for the system under standard monitoring in subdivision B 3 e (2) (d) (iii) of this section during the historical month of high TTHM. These samples shall be taken at locations other than existing compliance monitoring locations listed in subdivision B 3 e (1) of this section.

((E)) Description of how all requirements will be completed no later than 12 months after owner submits the system specific study plan.

((F)) Schematic of the distribution system (including distribution system entry points and their sources, and storage facilities), with notes indicating the locations and dates of all completed system specific study monitoring (if calibration is complete) and all compliance monitoring listed in subdivision B 3 e (1) of this section.

((G)) Population served and system type (surface water, groundwater under the direct influence of surface water or groundwater).

((H)) Owners shall retain a complete copy of the system specific study plan submitted, including any modification recommended by the commissioner to the waterworks specific study plan, for as long as the owner is required to retain the IDSE report under subdivision B 3 e (2) (d) (iv) ((b)) ((vii)) of this section.

((3)) If an owner submits a model that does not fully meet the requirements under paragraph (iv) ((a)) ((ii)) of this section, the owners shall correct the deficiencies and respond to commissioner's inquiries concerning the model. If the owner fails to correct deficiencies or respond to inquiries to the commissioner's satisfaction, the owner shall conduct standard monitoring under subdivision B 3 e (2) (d) (iii) of this section.

((b)) The IDSE report shall include the elements required in the following paragraphs. Owners shall submit the IDSE report according to the schedule in subdivision B 3 e (2) (c) of this section.

((i)) The IDSE report shall include all TTHM and HAA5 analytical results from compliance monitoring in subdivision B 3 e (1) of this section and all system specific study monitoring conducted during the period of the system specific study presented in a tabular or spreadsheet format acceptable to the commissioner. If changed from the system specific study plan submitted under subdivision B 3 e (2) (d) (iv) ((a)) of this section, the IDSE report shall also include a schematic of the distribution system, the population served; and system type (surface water, groundwater under the direct influence of surface water or groundwater).

((ii)) Owners of waterworks using the modeling provision under subdivision B 3 e (2) (d) (iv) ((a)) ((ii)) of this section shall include final information for the elements described in subdivision B 3 e (2) (d) (iv) ((a)) ((ii)) ((2)) of this section, and a 24-hour time series graph of residence time for each LRAA compliance monitoring location selected.

((iii)) The owner shall recommend and justify LRAA compliance monitoring locations and timing based on the protocol in subdivision B 3 e (2) (e) of this section.

((iv)) The IDSE report shall include an explanation of any deviations from the waterworks approved system specific study plan.

((v)) The IDSE report shall include the basis (analytical and modeling results) and justification the owner used to select the recommended LRAA monitoring locations.

((vi)) The owner may submit the IDSE report in lieu of the system specific study plan on the schedule identified in subdivision B 3 e (2) (c) of this section for submission of the system specific study plan if the owner believes the necessary information has been obtained by the time that the waterworks specific study plan is due. If the owner elects this approach, the IDSE report shall also include all information required under subdivision B 3 e (2) (d) (iv) ((a)) of this section.

((vii)) The owner shall retain a complete copy of the IDSE report submitted under this subdivision for 10 years after the date submitted. If the commissioner modifies the LRAA monitoring requirements that the owner recommended in the IDSE report or if the commissioner approves alternative monitoring locations, the owner shall keep a copy of the commissioner's notification on file for 10 years after the date of the commissioner's notification. The owner shall make the IDSE report and any notification from the commissioner available for review by the commissioner or the public.

(v) 40/30 certifications.

((a)) Eligibility. Waterworks are eligible for 40/30 certification if the waterworks had no TTHM or HAA5 monitoring violations under subdivision B 3 e (1) of this section and no individual sample exceeded 0.040 mg/L for TTHM or 0.030 mg/L for HAA5 during an eight consecutive calendar quarter period beginning no earlier than the date specified in the following table.

If the waterworks 40/30 Certification Is Due

Then the waterworks eligibility for 40/30 certification is based on eight consecutive calendar quarters of compliance monitoring under subdivision B 3 e (1) results beginning no earlier than1

October 1, 2006

January 2004

April 1, 2007

January 2004

October 1, 2007

January 2005

April 1, 2008

January 2005

1Unless the waterworks is on reduced monitoring under subdivision B 3 e (1) of this section and was not required to monitor during the specified period. If the owner did not monitor during the specified period, the owner shall base eligibility on compliance samples taken during the 12 months preceding the specified period.

((b)) Requirements for 40/30 certification:

((i)) Certify to the commissioner that every individual compliance sample taken under subdivision B 3 e (1) of this section during the periods specified in subdivision B 3 e (2) (d) (v) ((a)) of this section were less than or equal to 0.040 mg/L for TTHM and less than or equal to 0.030 mg/L for HAA5, and that the waterworks has not had any TTHM or HAA5 monitoring violations during the period specified in subdivision ((a)).

((ii)) The commissioner may require the owner to submit compliance monitoring results, distribution system schematics, and/or recommended LRAA compliance monitoring locations in addition to the certification. If an owner fails to submit the requested information, the commissioner may require standard monitoring under subdivision B 3 e (2) (d) (iii) of this section or a system specific study under subdivision B 3 e (2) (d) (iv) of this section.

((iii)) The commissioner may still require standard monitoring under subdivision B 3 e (2) (d) (iii) or a system specific study under subdivision B 3 e (2) (d) (iv) of this section even if the waterworks meet the criteria in subdivision B 3 e (2) (d) (v) ((a)) of this section.

((iv)) The owner shall retain a complete copy of the certification submitted under this subdivision for 10 years after the date that the owner submitted the certification. The owner shall make the certification, all data upon which the certification is based, and any notification from the commissioner available for review by the commissioner or the public.

(vi) Very small system waivers.

((a)) If the waterworks serves fewer than 500 people and has taken TTHM and HAA5 samples under subdivision B 3 e (1) of this section, the owner is not required to comply with this subdivision unless the commissioner notifies the owner to conduct standard monitoring under subdivision B 3 e (2) (d) (iii) or a system specific study under subdivision B 3 e (2) (d) (iv) of this section.

((b)) If the owner has not taken TTHM and HAA5 samples under subdivision B 3 e (1) of this section or if the commissioner notifies the owner to comply with this subdivision, the owner shall conduct standard monitoring under subdivision B 3 e (2) (d) (iii) of this section or a system specific study under subdivision B 3 e (2) (d) (iv) of this section.

(e) LRAA compliance monitoring location recommendations.

(i) The IDSE report shall include recommendations and justification for where and during what month(s) TTHM and HAA5 monitoring in accordance with subdivision B 3 e (3) of this section should be conducted. These recommendations shall be based on the criteria in the paragraphs in this section.

(ii) Owners shall select the number of monitoring locations specified in the following table. These recommended locations will be used as LRAA routine compliance monitoring locations, unless the commissioner requires different or additional locations. The locations should be distributed throughout the distribution system to the extent possible.

Source Water Type

Population Size Category

Monitoring Frequency1

Distribution System Monitoring Location

Total per monitoring period2

Highest TTHM Locations

Highest HAA5 Locations

Existing Compliance Locations in accordance with subdivision B 3 e (1)

Surface water or ground-water under the direct influence of surface water

Less than 500

per year

2

1

1

 

500-3,300

per quarter

2

1

1

 

3,301-9,999

per quarter

2

1

1

 

10,000-49,999

per quarter

4

2

1

1

50,000-249,999

per quarter

8

3

3

2

250,000-999,999

per quarter

12

5

4

3

1,000,000-4,999,999

per quarter

16

6

6

4

Equal to or greater than 5,000,000

per quarter

20

8

7

5

Ground-water

Less than 500

per year

2

1

1

 

500-9,999

per year

2

1

1

 

10,000-99,999

per quarter

4

2

1

1

100,000-499,999

per quarter

6

3

2

1

Equal to or greater than 500,000

per quarter

8

3

3

2

1All owners shall monitor during month of highest DBP concentrations.

2Owners of waterworks on quarterly monitoring (except for surface water source or GUDI source waterworks serving 500-3,300) shall take dual sample sets every 90 days at each monitoring location. Groundwater source waterworks serving 500-9,999 (on annual monitoring) shall take dual sample sets annually at each monitoring location. Waterworks serving fewer than 500 and surface water source or GUDI source waterworks serving 500-3,300 shall take individual TTHM and HAA5 samples (instead of a dual sample set) at the locations with the highest TTHM and HAA5 concentrations, respectively. Waterworks serving fewer than 500 shall sample annually and surface water source or GUDI source systems serving 500-3,300 shall sample every 90 days. Only one location with a dual sample set per monitoring period is needed if highest TTHM and HAA5 concentrations occur at the same location (and month, if monitoring annually).

(iii) Owners shall recommend LRRA compliance monitoring locations based on standard monitoring results, system specific study results, and compliance monitoring results under subdivision B 3 e (1) of this section. Owners shall follow the protocol in subdivision B 3 e (2) (e) (iii) ((a)) through ((h)) of this section. If required to monitor at more than eight locations, the owner shall repeat the protocol as necessary. If an owner does not have existing compliance monitoring results under subdivision B 3 e (1) of this section or if the owner does not have enough existing compliance monitoring results under subdivision B 3 e (1) of this section, the owner shall repeat the protocol, skipping the provisions of subdivision B 3 e (2) (e) (iii) ((c)) and ((g)) of this section as necessary, until the owner has identified the required total number of monitoring locations.

((a)) Location with the highest TTHM LRAA not previously selected as a LRAA monitoring location.

((b)) Location with the highest HAA5 LRAA not previously selected as a LRAA monitoring location.

((c)) Existing average residence time compliance monitoring location under subdivision B 3 e (1) of this section (maximum residence time compliance monitoring location for ground water systems) with the highest HAA5 LRAA not previously selected as a LRAA monitoring location.

((d)) Location with the highest TTHM LRAA not previously selected as a LRAA monitoring location.

((e)) Location with the highest TTHM LRAA not previously selected as a LRAA monitoring location.

((f)) Location with the highest HAA5 LRAA not previously selected as a LRAA monitoring location.

((g)) Existing average residence time compliance monitoring location under subdivision B 3 e (1) of this section (maximum residence time compliance monitoring location for ground water systems) with the highest TTHM LRAA not previously selected as a LRAA monitoring location.

((h)) Location with the highest HAA5 LRAA not previously selected as a LRAA monitoring location.

(iv) An owner may recommend locations other than those specified in subdivision B 3 e (2) (e) (iii) of this section if the owner includes a rationale for selecting other locations. If the commissioner approves the alternate locations, the owners shall monitor at these locations to determine compliance under subdivision B 3 e (3) of this section.

(v) The recommended schedule shall include LRAA monitoring during the peak historical month for TTHM and HAA5 concentration, unless the commissioner approves another month. Once the owner has identified the peak historical month, and if the owner is required to conduct routine monitoring at least quarterly, the owner shall schedule LRAA compliance monitoring at a regular frequency of every 90 days or fewer.

(f) The owner shall use only the analytical methods specified in 12VAC5-590-440, or otherwise approved by EPA for monitoring, to demonstrate compliance.

(g) IDSE results will not be used for the purpose of determining compliance with MCLs in Table 2.13.

(3) Locational running annual average monitoring requirements.

(a) This subdivision establishes monitoring and other requirements for achieving compliance with maximum contaminant levels based on locational running annual averages (LRAA) for total trihalomethanes (TTHM) and haloacetic acids (five) (HAA5), and for achieving compliance with maximum residual disinfectant residuals for chlorine and chloramines for certain consecutive waterworks.

(b) This subdivision applies to community waterworks or nontransient noncommunity waterworks that uses a primary or residual disinfectant other than ultraviolet light or delivers water that has been treated with a primary or residual disinfectant other than ultraviolet light.

(c) Owner shall comply on the schedule in the following table based on the type of waterworks:

Type of Waterworks

Waterworks shall comply with Locational Running Average monitoring by:1

Waterworks that are not part of a combined distribution system and waterworks that serve the largest population in the combined distribution system

Waterworks serving equal to or greater than 100,000

April 1, 2012

Waterworks serving 50,000-99,999

October 1, 2012

Waterworks serving 10,000-49,999

October 1, 2013

Waterworks serving less than 10,000

October 1, 2013 if no Cryptosporidium monitoring is required under 12VAC5-590-420 B 3 a (1) (c)

or

October 1, 2014 if Cryptosporidium monitoring is required under 12VAC5-590-420 B 3 a (1) (c)

Other waterworks that are part of a combined distribution system

Consecutive waterworks or wholesale waterworks

-at the same time as the waterworks with the earliest compliance date in the combined distribution system

1The commissioner may grant up to an additional 24 months for compliance with MCLs and operational evaluation levels if the waterworks require capital improvements to comply with an MCL.

(i) Waterworks monitoring frequency is specified in subdivision B 3 e (3) (d) (ii) of this section.

((a)) Owners of waterworks required to conduct quarterly monitoring shall begin monitoring in the first full calendar quarter that includes the compliance date in the table in subdivision B 3 e (3) (c) of this section.

((b)) Owners of waterworks required to conduct monitoring at a frequency that is less than quarterly shall begin monitoring in the calendar month recommended in the IDSE report prepared under subdivision B 3 e (2) (d) (iii) or subdivision B 3 e (2) (d) (iv) of this section or the calendar month identified in the LRAA monitoring plan developed under subdivision B 3 e (3) (e) of this section no later than 12 months after the compliance date in the table in subdivision B 3 e (3) (c) of this section.

(ii) Owners of waterworks required to conduct quarterly monitoring shall make compliance calculations at the end of the fourth calendar quarter that follows the compliance date and at the end of each subsequent quarter (or earlier if the LRAA calculated based on fewer than four quarters of data would cause the MCL to be exceeded regardless of the monitoring results of subsequent quarters). Owners of waterworks required to conduct monitoring at a frequency that is less than quarterly shall make compliance calculations beginning with the first compliance sample taken after the compliance date.

(iii) For the purpose of the schedule in subdivision B 3 e (3) (c) of this section, the commissioner has determine that the combined distribution system does not include consecutive waterworks that receive water from a wholesale waterworks only on an emergency basis or receive less than 10% of their total water consumption from a wholesale waterworks. The commissioner has also determine that the combined distribution system does not include wholesale waterworks which deliver water to a consecutive waterworks only on an emergency basis or deliver less than 10% of the total water used by a consecutive waterworks.

(d) Routine monitoring.

(i) Owners submitting an IDSE report shall begin monitoring at the locations and months the owner recommended in the IDSE report submitted under subdivision B 3 e (2) (e) of this section following the schedule in subdivision B 3 e (3) (c) of this section, unless the commissioner requires other locations or additional locations after review. If the owner submitted a 40/30 certification under subdivision B 3 e (2) (d) (v) of this section or the waterworks qualified for a very small system waiver under subdivision B 3 e (2) (d) (vi) of this section or the waterworks is a nontransient noncommunity waterworks serving less than 10,000, the owner shall monitor at the location(s) and dates identified in the monitoring plan in subdivision B 3 j of this section, updated as required by subdivision B 3 e (3) (e) of this section.

(ii) Owners shall monitor at no fewer than the number of locations identified in the following table:

Source Water Type

Population Size Category

Monitoring Frequency1

Distribution System Monitoring Location Total per Monitoring Period2

Surface water or groundwater under the direct influence of surface water

Less than 500

per year

2

500-3,300

per quarter

2

3,301-9,999

per quarter

2

10,000-49,999

per quarter

4

50,000-249,999

per quarter

8

250,000-999,999

per quarter

12

1,000,000-4,999,999

per quarter

16

Equal to or greater than 5,000,000

per quarter

20

Groundwater

Less than 500

per year

2

500-9,999

per year

2

10,000-99,999

per quarter

4

100,000-499,999

per quarter

6

Equal to or greater than 500,000

per quarter

8

1All owners shall monitor during month of highest DBP concentrations.

2Owners of waterworks on quarterly monitoring (except for surface water source or GUDI source waterworks serving 500-3,300) shall take dual sample sets every 90 days at each monitoring location. Groundwater source waterworks serving 500-9,999 (on annual monitoring) shall take dual sample sets annually at each monitoring location. Waterworks serving fewer than 500 and surface water source or GUDI source waterworks serving 500-3,300 shall take individual TTHM and HAA5 samples (instead of a dual sample set) at the locations with the highest TTHM and HAA5 concentrations, respectively. Waterworks serving fewer than 500 shall sample annually and surface water source or GUDI source systems serving 500-3,300 shall sample every 90 days. Only one location with a dual sample set per monitoring period is needed if highest TTHM and HAA5 concentrations occur at the same location (and month, if monitoring annually).

(iii) Owners of waterworks not using disinfection that begin using a disinfectant other than UV light after the dates in subdivision B 3 e (2) of this section for complying with the IDSE requirements shall consult with the commissioner to identify compliance monitoring locations. Owners shall then develop a monitoring plan under subdivision B 3 e (3) (e) of this section that includes those monitoring locations.

(iv) Owners shall use an approved method listed in 12VAC5-590-440 for TTHM and HAA5 analyses. Analyses shall be conducted by laboratories that have received certification by EPA or DCLS as specified in 12VAC5-590-440.

(e) Monitoring plan.

(i) Owners shall develop and implement a monitoring plan to be kept on file for review by the commissioner and the public. The monitoring plan shall be completed no later than the date the owner conducts the initial monitoring and contain:

((a)) Monitoring locations;

((b)) Monitoring dates; and

((c)) Compliance calculation procedures.

(ii) If the owner was not required to submit an IDSE report under either subdivision B 3 e (2) (d) (iii) or subdivision B 3 e (2) (d) (iv) of this section, and the waterworks did not have sufficient monitoring locations under subdivision B 3 e (1) of this section to identify the required number of LRAA compliance monitoring locations indicated in subdivision B 3 e (2) (e) (ii) of this section, the owner shall identify additional locations by alternating selection of locations representing high TTHM levels and high HAA5 levels until the required number of compliance monitoring locations have been identified. The owner shall also provide the rationale for identifying the locations as having high levels of TTHM or HAA5. If the waterworks has more monitoring locations under subdivision B 3 e (1) of this section than required for LRAA compliance monitoring in subdivision B 3 e (2) (e) (ii) of this section, the owner shall identify which locations the waterworks will use for LRAA compliance monitoring by alternating selection of locations representing high TTHM levels and high HAA5 levels until the required number of LRAA compliance monitoring locations have been identified.

(iii) Owners of waterworks using surface water or groundwater under the direct influence of surface water serving more than 3,300 people shall submit a copy of the monitoring plan to the commissioner prior to the date the waterworks conducts the initial monitoring, unless the IDSE report submitted under subdivision B 3 e (2) of this section contains all the information required by this section.

(iv) Owners may revise the monitoring plan to reflect changes in treatment, distribution system operations and layout (including new service areas), or other factors that may affect TTHM or HAA5 formation, or for reasons approved by the commissioner, after consultation with the commissioner regarding the need for changes and the appropriateness of the changes. If the owner changes monitoring locations, the owner shall replace existing compliance monitoring locations with the lowest LRAA with new locations that reflect the current distribution system locations with expected high TTHM or HAA5 levels. The commissioner may also require modifications in the monitoring plan. Owners of waterworks using surface water or groundwater under the direct influence of surface water serving more than 3,300 people shall submit a copy of the modified monitoring plan to the commissioner prior to the date the owner is required to comply with the revised monitoring plan.

(f) Reduced monitoring

(i) Owners may reduce monitoring to the level specified in the following table any time the LRAA is less than or equal to 0.040 mg/L for TTHM and less than or equal to 0.030 mg/L for HAA5 at all monitoring locations. Owners may only use data collected under the provisions of this subdivision or subdivision B 3 e (1) of this section to qualify for reduced monitoring. In addition, the source water annual average TOC level, before any treatment, shall be less than or equal to 4.0 mg/L at each treatment plant treating surface water or ground water under the direct influence of surface water, based on monitoring conducted under either subdivision B 3 e (1) (b) (vi) or B 3 i of this section.

Source Water Type

Population Size Category

Monitoring Frequency1

Distribution System Monitoring Location per Monitoring Period

Surface water or ground-water under the direct influence of surface water

Less than 500

 

monitoring may not be reduced

500-3,300

per year

1 TTHM and 1 HAA5 sample: one at the location and during the quarter with the highest TTHM single measurement, one at the location and during the quarter with the highest HAA5 single measurement; 1 dual sample set per year if the highest TTHM and HAA5 measurements occurred at the same location and quarter.

3,301-9,999

per year

2 dual sample sets: one at the location and during the quarter with the highest TTHM single measurement, one at the location and during the quarter with the highest HAA5 single measurement

10,000-49,999

per quarter

2 dual sample sets at the locations with the highest TTHM and highest HAA5 LRAAs

50,000-249,999

per quarter

4 dual sample sets - at the locations with the two highest TTHM and two highest HAA5 LRAAs

250,000-999,999

per quarter

6 dual sample sets - at the locations with the three highest TTHM and three highest HAA5 LRAAs

1,000,000-4,999,999

per quarter

8 dual sample sets - at the locations with the four highest TTHM and four highest HAA5 LRAAs

Equal to or greater than 5,000,000

per quarter

10 dual sample sets - at the locations with the five highest TTHM and five highest HAA5 LRAAs

Groundwater

Less than 500

every third year

1 TTHM and 1 HAA5 sample: one at the location and during the quarter with the highest TTHM single measurement, one at the location and during the quarter with the highest HAA5 single measurement; 1 dual sample set per year if the highest TTHM and HAA5 measurements occurred at the same location and quarter.

500-9,999

per year

1 TTHM and 1 HAA5 sample: one at the location and during the quarter with the highest TTHM single measurement, one at the location and during the quarter with the highest HAA5 single measurement; 1 dual sample set per year if the highest TTHM and HAA5 measurements occurred at the same location and quarter.

10,000-99,999

per year

2 dual sample sets: one at the location and during the quarter with the highest TTHM single measurement, one at the location and during the quarter with the highest HAA5 single measurement

100,000-499,999

per quarter

2 dual sample sets; at the locations with the highest TTHM and highest HAA5 LRAAs

Equal to or greater than 500,000

per quarter

4 dual sample sets at the locations with the two highest TTHM and two highest HAA5 LRAAs

1Owners of waterworks on quarterly monitoring shall take dual sample sets every 90 days.

(ii) owners may remain on reduced monitoring as long as the TTHM LRAA is less than or equal to 0.040 mg/L and the HAA5 LRAA is less than or equal to 0.030 mg/L at each monitoring location (for waterworks with quarterly reduced monitoring) or each TTHM sample is less than or equal to 0.060 mg/L and each HAA5 sample is less than or equal to 0.045 mg/L (for waterworks with annual or less frequent monitoring). In addition, the source water annual average TOC level, before any treatment, shall be less than or equal to 4.0 mg/L at each treatment plant treating surface water or ground water under the direct influence of surface water, based on monitoring conducted under either subdivision B 3 e (1) (b) (vi) or B 3 i of this section.

(iii) If the LRAA based on quarterly monitoring at any monitoring location exceeds either 0.040 mg/L for TTHM or 0.030 mg/L for HAA5 or if the annual (or less frequent) sample at any location exceeds either 0.060 mg/L for TTHM or 0.045 mg/L for HAA5, or if the source water annual average TOC level, before any treatment, is greater than 4.0 mg/L at any treatment plant treating surface water or ground water under the direct influence of surface water, the owner shall resume routine monitoring under subdivision B 3 e (3) (d) of this section or begin increased monitoring if subdivision B 3 e (3) (g) of this section applies.

(iv) The commissioner may return the waterworks to routine monitoring at the commissioner's discretion.

(v) A waterworks may remain on reduced monitoring after the dates identified in subdivision B 3 e (3) (c) of this section for compliance with this section only if the waterworks qualifies for a 40/30 certification under subdivision B 3 e (2) (d) (v) of this section or has received a very small system waiver under subdivision B 3 e (2) (d) (vi) of this section, plus the waterworks meets the reduced monitoring criteria in subdivision B 3 e (3) (f) of this section, and the owner did not change or add monitoring locations from those used for compliance monitoring under subdivision B 3 e (1) of this section. If the monitoring locations under this subdivision differ from the monitoring locations under subdivision B 3 e (1) of this section, the owner may not remain on reduced monitoring after the dates identified in subdivision B 3 e (3) (c) of this section for compliance with this subdivision.

(vi) Owners shall use an approved method listed in 12VAC5-590-440 for TTHM and HAA5 analyses. Analyses shall be conducted by laboratories that have received certification by EPA or DCLS as specified in 12VAC5-590-440.

(g) Increased Monitoring

(i) Owners of waterworks required to monitor at a particular location annually or less frequently than annually under subdivision B 3 e (3) (d) or subdivision B 3 e (3) (f) of this section, shall increase monitoring to dual sample sets once per quarter (taken every 90 days) at all locations if a TTHM sample is greater than 0.080 mg/L or a HAA5 sample is greater than 0.060 mg/L at any location.

(ii) A waterworks is in violation of the MCL when the LRAA exceeds the MCLs in Table 2.13, calculated based on four consecutive quarters of monitoring (or the LRAA calculated based on fewer than four quarters of data if the MCL would be exceeded regardless of the monitoring results of subsequent quarters). Waterworks are in violation of the monitoring requirements for each quarter that a monitoring result would be used in calculating an LRAA if the owner fails to monitor.

(iii) Owners may return to routine monitoring once the waterworks has conducted increased monitoring for at least four consecutive quarters and the LRAA for every monitoring location is less than or equal to 0.060 mg/L for TTHM and less than or equal to 0.045 mg/L for HAA5.

(iv) Owners of waterworks on increased monitoring under subdivision e (1) in this section shall remain on increased monitoring until the waterworks qualify for a return to routine monitoring under subdivision B 3 e (3) (g) (iii) of this section. The owner shall conduct increased monitoring under subdivision B 3 e (3) (g) of this section at the monitoring locations in the monitoring plan developed under subdivision B 3 e (3) (e) of this section beginning at the date identified in subdivision B 3 e (3) (c) of this section for compliance with this subdivision and remain on increased monitoring until the waterworks qualifies for a return to routine monitoring under subdivision B 3 e (3) (g) (iii) of this section.

(v) Owners shall use an approved method listed in 12VAC5-590-440 for TTHM and HAA5 analyses. Analyses shall be conducted by laboratories that have received certification by EPA or DCLS as specified in 12VAC5-590-440.

f. Chlorite. Owners of community and nontransient noncommunity waterworks using chlorine dioxide, for disinfection or oxidation, shall conduct monitoring for chlorite.

(1) Routine monitoring.

(a) Daily monitoring. Owners shall take daily samples at the entrance to the distribution system. For any daily sample that exceeds the chlorite PMCL in Table 2.13, the owner shall take additional samples in the distribution system the following day at the locations required by subdivision B 3 f (1) (c) of this section, in addition to the sample required at the entrance to the distribution system.

(b) Monthly monitoring. Owners shall take a three-sample set each month in the distribution system. The owner shall take one sample at each of the following locations: near the first customer, at a location representative of average residence time, and at a location reflecting maximum residence time in the distribution system. Any additional routine sampling shall be conducted in the same manner (as three-sample sets, at the specified locations). The owner may use the results of additional monitoring conducted under subdivision B 3 f (1) (c) of this section to meet the requirement for monitoring in this paragraph.

(c) Additional monitoring requirements. On each day following a routine sample monitoring result that exceeds the chlorite PMCL in Table 2.13 at the entrance to the distribution system, the owner is required to take three chlorite distribution system samples at the following locations: as close to the first customer as possible, in a location representative of average residence time, and as close to the end of the distribution system as possible (reflecting maximum residence time in the distribution system).

(2) Reduced monitoring.

(a) Chlorite monitoring at the entrance to the distribution system required by subdivision B 3 f (1) (a) of this section may not be reduced.

(b) Chlorite monitoring in the distribution system required by subdivision B 3 f (1) (b) of this section may be reduced to one three-sample set per quarter after one year of monitoring where no individual chlorite sample taken in the distribution system under subdivision B 3 f (1) (b) of this section has exceeded the chlorite PMCL in Table 2.13 and the owner has not been required to conduct monitoring under subdivision B 3 f (1) (c) of this section. The owner may remain on the reduced monitoring schedule until either any of the three individual chlorite samples taken quarterly in the distribution system under subdivision B 3 f (1) (b) of this section exceeds the chlorite PMCL or the owner is required to conduct monitoring under subdivision B 3 f (1) (c) of this section, at which time the owner shall revert to routine monitoring.

g. Bromate.

(1) The owner of a community or nontransient noncommunity waterworks treatment plant using ozone, for disinfection or oxidation, shall take one sample per month and analyze it for bromate. The owner shall take samples monthly at the entrance to the distribution system while the ozonation system is operating under normal conditions.

(2) Reduced monitoring.

(a) Until March 31, 2009, owners of waterworks required to analyze for bromate may reduce monitoring from monthly to quarterly, if the waterworks average source water bromide concentration is less than 0.05 mg/L based on representative monthly bromide measurements for one year. The owner may remain on reduced bromate monitoring until the running annual average source water bromide concentration, computed quarterly, is equal to or greater than 0.05 mg/L based on representative monthly measurements. If the running annual average source water bromide concentration is equal to or greater than 0.05 mg/L, the owner shall resume routine monitoring required by subdivision B 3 g (1) of this section in the following month.

(b) Beginning April 1, 2009, owners may no longer use the provisions of subdivision B 3 g (2) (a) of this section to qualify for reduced monitoring. An owner required to analyze for bromate may reduce monitoring from monthly to quarterly, if the waterworks running annual average bromate concentration is equal to or less than 0.0025 mg/L based on monthly bromate measurements under subdivision B 3 g (1) of this section for the most recent four quarters, with samples analyzed in accordance with 12VAC5-590-440. If a waterworks has qualified for reduced bromate monitoring under subdivision B 3 g (2) (a) of this section, the owner may remain on reduced monitoring as long as the running annual average of quarterly bromate samples is equal to or less than 0.0025 mg/L based on samples analyzed in accordance with 12VAC5-590-440. If the running annual average bromate concentration is greater than 0.0025 mg/L, the owner shall resume routine monitoring required by subdivision B 3 g (1) of this section.

(3) Bromide. Owners of waterworks required to analyze for bromate may reduce bromate monitoring from monthly to once per quarter, if the owner demonstrates that the average source water bromide concentration is less than 0.05 mg/L based upon representative monthly measurements for one year. The owner shall continue bromide monitoring to remain on reduced bromate monitoring.

h. Monitoring requirements for disinfectant residuals.

(1) Chlorine and chloramines.

(a) Owners of waterworks that use chlorine or chloramines shall measure the residual disinfectant level in the distribution system at the same point in the distribution system and at the same time as total coliforms are sampled, as specified in subsection A. Owners of waterworks that use surface water or groundwater under the direct influence of surface water may use the results of residual disinfectant concentration sampling found in subdivision B 7 c (1) of this section in lieu of taking separate samples.

(b) Residual disinfectant level monitoring may not be reduced.

(2) Chlorine dioxide.

(a) Owners of waterworks that use chlorine dioxide for disinfection or oxidation shall take daily samples at the entrance to the distribution system. For any daily sample that exceeds the MRDL in Table 2.12, the owner shall take samples in the distribution system the following day at the locations required by subdivision B 3 h (2) (b) of this section, in addition to the sample required at the entrance to the distribution system.

(b) On each day following a routine sample monitoring result that exceeds the MRDL in Table 2.12, the owner is required to take three chlorine dioxide distribution system samples. If chlorine dioxide or chloramines are used to maintain a disinfectant residual in the distribution system, or if chlorine is used to maintain a disinfectant residual in the distribution system and there are no disinfection addition points after the entrance to the distribution system (i.e., no booster chlorination), the owner shall take three samples as close to the first customer as possible, at intervals of at least six hours. If chlorine is used to maintain a disinfectant residual in the distribution system and there are one or more disinfection addition points after the entrance to the distribution system (i.e., booster chlorination), the owner shall take one sample at each of the following locations: as close to the first customer as possible, in a location representative of average residence time, and as close to the end of the distribution system as possible (reflecting maximum residence time in the distribution system).

(c) Chlorine dioxide monitoring may not be reduced.

i. Monitoring requirements for disinfection byproduct precursors (DBPP).

(1) Owners of community or nontransient noncommunity waterworks using surface water or groundwater under the direct influence of surface water and using conventional filtration treatment (as defined in 12VAC5-590-10) shall monitor each treatment plant for TOC no later than the point of combined filter effluent turbidity monitoring and representative of the treated water. All owners required to monitor under subdivision (B 3 i (1)) shall also monitor for TOC in the source water prior to any treatment at the same time as monitoring for TOC in the treated water. These samples (source water and treated water) are referred to as paired samples. At the same time as the source water sample is taken, all owners shall monitor for alkalinity in the source water prior to any treatment. Owners shall take one paired sample and one source water alkalinity sample per month per plant at a time representative of normal operating conditions and influent water quality.

(2) Owners of community or nontransient noncommunity waterworks that use surface water or groundwater under the direct influence of surface water with an average treated water TOC of less than 2.0 mg/L for two consecutive years, or less than 1.0 mg/L for one year, may reduce monitoring for both TOC and alkalinity to one paired sample and one source water alkalinity sample per plant per quarter. The owners shall revert to routine monitoring in the month following the quarter when the annual average treated water TOC equal to or greater than 2.0 mg/L.

j. The owner of each waterworks required to monitor under subdivision B 3 of this section shall develop and implement a monitoring plan. The owner shall maintain the plan and make it available for inspection by the commissioner and the general public no later than 30 days following the applicable compliance dates in subdivision B 3 a of this section. The owners of all community or nontransient noncommunity waterworks that use surface water or groundwater under the direct influence of surface water serving more than 3,300 people shall submit a copy of the monitoring plan to the commissioner no later than the date of the first report required under 12VAC5-590-530 A. The commissioner may also require the plan to be submitted by any other owner. After review, the commissioner may require changes in any plan elements. The plan shall include at least the following elements:

(1) Specific locations and schedules for collecting samples for any parameters included in subdivision B 3 of this section.

(2) How the owner will calculate compliance with PMCLs, MRDLs, and treatment techniques.

(3) The sampling plan for a consecutive waterworks shall reflect the entire consecutive distribution system.

4. Unregulated contaminants (UCs). Owners of all community and nontransient noncommunity waterworks shall sample for the contaminants listed in Table 2.6 and Table 2.7 as follows:

a. Table 2.6—Group A

(1) Owners of waterworks that use a surface water source in whole or in part shall sample at the entry points to the distribution system which is representative of each source, after treatment (hereafter called a sampling point). The minimum number of samples is one year of consecutive quarterly samples per sampling point beginning in accordance with Table 2.8.

(2) Owners of waterworks that use groundwater shall sample at points of entry to the distribution system which is representative of each source (hereafter called a sampling point). The minimum number of samples is one sample per sampling point beginning in accordance with Table 2.8.

(3) The commissioner may require a confirmation sample for positive or negative results.

(4) Owners of waterworks serving less than 150 connections may inform the commissioner, in writing, that their waterworks is available for sampling instead of performing the required sampling.

(5) All waterworks required to sample under this section shall repeat the sampling at least every five years.

b. Table 2.6—Group B and Table 2.7

(1) The owner of each community and nontransient noncommunity waterworks shall take four consecutive quarterly samples at the entry points to the distribution system which is representative of each source (hereafter called a sampling point) for each contaminant listed in Table 2.6 Group B and report the results to the commissioner. Monitoring shall be completed by December 31, 1995.

(2) The owner of each community and nontransient noncommunity waterworks shall take one sample at each sampling point for each contaminant listed in Table 2.7 and report the results to the commissioner. Monitoring shall be completed by December 31, 1995.

(3) The owner of each community and nontransient noncommunity waterworks may apply to the commissioner for a waiver from the monitoring requirements of subdivisions B 4 b (1) and (2) of this section for the contaminants listed in Table 2.6 Group B and Table 2.7.

(4) The commissioner may grant a waiver for the requirement of subdivision B 4 b (1) of this section based on the criteria specified in subdivision B 2 f of this section. The commissioner may grant a waiver from the requirement of subdivision B 4 b (2) of this section if previous analytical results indicate contamination would not occur, provided this data was collected after January 1, 1990.

(5) If the waterworks utilizes more than one source and the sources are combined before distribution, the owner shall sample at an entry point to the distribution system during periods of normal operating conditions (i.e., when water is representative of all sources being used).

(6) The commissioner may require a confirmation sample for positive or negative results.

(7) Instead of performing the monitoring required by this section, the owner of a community waterworks or nontransient noncommunity waterworks serving fewer than 150 service connections may send a letter to the commissioner stating that the waterworks is available for sampling. This letter shall be sent to the commissioner by January 1, 1994. The owner shall not send such samples to the commissioner unless requested to do so by the commissioner.

(8) All waterworks required to sample under this subdivision shall repeat the sampling at least every five years.

5. Reserved.

6. Reserved.

7. Monitoring filtration and disinfection.

a. The owner of a waterworks that uses a surface water source or a groundwater source under the direct influence of surface water and provides filtration treatment shall monitor in accordance with this section beginning June 29, 1993, or when filtration is installed, whichever is later.

b. Turbidity measurements as required by 12VAC5-590-370 C shall be performed on representative samples of the filtered water every four hours (or more frequently) that the waterworks serves water to the public. An owner may substitute continuous turbidity monitoring for grab sample monitoring if it validates the continuous measurement for accuracy on a regular basis using a protocol approved by the commissioner. For any waterworks using slow sand filtration or filtration treatment other than conventional treatment, direct filtration, or diatomaceous earth filtration, the office may reduce the sampling frequency to once per day if it determines that less frequent monitoring is sufficient to indicate effective filtration performance. For waterworks serving 500 or fewer persons, the commissioner may reduce the turbidity sampling frequency to once per day, regardless of the type of filtration treatment used, if the commissioner determines that less frequent monitoring is sufficient to indicate effective filtration performance.

(1) In addition to the above, as of January 1, 2001, waterworks serving at least 10,000 people and as of January 1, 2005, waterworks serving less than 10,000 people supplied by surface water or groundwater under the direct influence of surface water using conventional filtration treatment or direct filtration shall conduct continuous monitoring of turbidity for each individual filter, using an approved method in 12VAC5-590-440. The turbidimeter shall be calibrated using the procedure specified by the manufacturer. The owner shall record the results of individual filter turbidity monitoring every 15 minutes.

(2) If there is a failure in the continuous turbidity monitoring equipment, the owner shall conduct grab sampling every four hours in lieu of continuous monitoring but for no more than five working days (for waterworks serving at least 10,000 people) or 14 days (for waterworks serving less than 10,000 people) following the failure of the equipment.

(3) If a waterworks serving less than 10,000 people consists of two or fewer filters, continuous monitoring of the combined filter effluent may be used in lieu of individual filter monitoring.

c. The residual disinfectant concentration of the water entering the distribution system shall be monitored continuously, and the lowest value shall be recorded each day, except that if there is a failure in the continuous monitoring equipment, grab sampling every four hours may be conducted in lieu of continuous monitoring, but for no more than five working days following the failure of the equipment, and owners of waterworks serving 3,300 or fewer persons may take grab samples in lieu of continuous monitoring on an ongoing basis at the frequencies each day prescribed below:

Table 2.5
Grab Sample Monitoring Frequency

Waterworks Size By Population

Samples/Day1

500 or less

1

501 to 1,000

2

1,000 to 2,500

3

2,501 to 3,300

4

1The day's samples cannot be taken at the same time. The sampling intervals are subject to commissioner's review and approval. If at any time the residual disinfectant concentration falls below 0.2 mg/L in a waterworks using grab sampling in lieu of continuous monitoring, the waterworks owner shall take a grab sample every four hours until the residual disinfectant concentration is equal to or greater than 0.2 mg/L.

(1) The residual disinfectant concentration shall be measured at least at the same points in the distribution system and at the same time as total coliforms are sampled, as specified in subsection A of this section, except that the district engineer may allow an owner which uses both a surface water source or a groundwater source under direct influence of surface water, and a groundwater source to take disinfectant residual samples at points other than the total coliform sampling points if the division determines that such points are more representative of treated (disinfected) water quality within the distribution system. Heterotrophic bacteria, measured as heterotrophic plate count (HPC) as specified in 12VAC5-590-420 B may be measured in lieu of residual disinfectant concentration.

(2) If the commissioner determines, based on site-specific considerations, that a waterworks has no means for having a sample transported and analyzed for HPC by a certified laboratory under the requisite time and temperature conditions and that the waterworks is providing adequate disinfection in the distribution system, the requirements of subdivision B 7 b (1) of this section do not apply to that waterworks.

d. The following information on the samples taken in the distribution system in conjunction with total coliform monitoring pursuant to 12VAC5-590-420 B shall be reported monthly to the district engineer by the owner:

(1) Number of instances where the residual disinfectant concentration is measured;

(2) Number of instances where the residual disinfectant concentration is not measured but HPC is measured;

(3) Number of instances where the residual disinfectant concentration is measured but not detected and no HPC is measured;

(4) Number of instances where no residual disinfectant concentration is detected and where the HPC is greater than 500/mL;

(5) Number of instances where the residual disinfectant concentration is not measured and HPC is greater than 500/mL.

(6) For the current and previous month the waterworks serves water to the public, the value of "V" in percent in the following formula:

V = (c + d + e) / (a + b) X 100

where

a = the value in subdivision B 7 d (1) of this section,

b = the value in subdivision B 7 d (2) of this section,

c = the value in subdivision B 7 d (3) of this section,

d = the value in subdivision B 7 d (4) of this section,

e = the value in subdivision B 7 d (5) of this section,

(7) If the commissioner determines, based on site-specific considerations, that an owner has no means for having a sample transported and analyzed for HPC by a certified laboratory within the requisite time and temperature conditions and that the waterworks is providing adequate disinfection in the distribution system, the requirements of subdivision B 7 c (1) of this section do not apply.

e. An owner need not report the data listed in 12VAC5-590-530 E 2 a if all data listed in 12VAC5-590-530 E 2 a through E 2 c remain on file at the waterworks and the district engineer determines that the owner has submitted all the information required by 12VAC5-590-530 E 2 a through c for at least 12 months.

8. Operational. Owners may be required by the commissioner to collect additional samples to provide quality control for any treatment processes that are employed.

C. Physical. All samples for turbidity analysis shall be taken at a representative entry point or points to the water distribution system unless otherwise specified. Turbidity samples shall be analyzed in accordance with 12VAC5-590-480 B 1 a, at least once per day at all waterworks that use surface water sources or groundwater sources under the direct influence of surface water.

D. Radiological. The location of sampling points, the radionuclides measured in community waterworks, the frequency, and the timing of sampling within each compliance period shall be established or approved by the commissioner. The commissioner may increase required monitoring where necessary to detect variations within the waterworks. Failure to comply with the sampling schedules in this section will require public notification pursuant to 12VAC5-590-540.

Community waterworks owners shall conduct monitoring to determine compliance with the PMCLs in Table 2.5 and 12VAC5-590-400 in accordance with this section.

1. Monitoring and compliance requirements for gross alpha particle activity, radium-226, radium-228, and uranium.

a. Community waterworks owners shall conduct initial monitoring to determine compliance with 12VAC5-590-400 B 2, B 3, and B 4 by December 31, 2007. For the purposes of monitoring for gross alpha particle activity, radium-226, radium-228, uranium, and beta particle and photon radioactivity in drinking water, "detection limit" is defined as in Appendix B of this chapter.

(1) Applicability and sampling location for existing community waterworks or sources. The owners of all existing community waterworks using ground water, surface water or waterworks using both ground and surface water shall sample at every entry point to the distribution system that is representative of all sources being used under normal operating conditions. The community waterworks owner shall take each sample at the same entry point unless conditions make another sampling point more representative of each source.

(2) Applicability and sampling location for new community waterworks or sources. All new community waterworks or community waterworks that use a new source of water shall begin to conduct initial monitoring for the new source within the first quarter after initiating use of the source. Community waterworks owners shall conduct more frequent monitoring when directed by the commissioner in the event of possible contamination or when changes in the distribution system or treatment processes occur which may increase the concentration of radioactivity in finished water.

b. Initial monitoring: Community waterworks owners shall conduct initial monitoring for gross alpha particle activity, radium-226, radium-228, and uranium as follows:

(1) Community waterworks without acceptable historical data, as defined below, shall collect four consecutive quarterly samples at all entry points before December 31, 2007.

(2) Grandfathering of data: The commissioner may allow historical monitoring data collected at an entry point to satisfy the initial monitoring requirements for that entry point, for the following situations:

(a) To satisfy initial monitoring requirements, a community waterworks owner having only one entry point to the distribution system may use the monitoring data from the last compliance monitoring period that began between June 2000 and December 8, 2003.

(b) To satisfy initial monitoring requirements, a community waterworks owner with multiple entry points and having appropriate historical monitoring data for each entry point to the distribution system may use the monitoring data from the last compliance monitoring period that began between June 2000 and December 8, 2003.

(3) For gross alpha particle activity, uranium, radium-226, and radium-228 monitoring, the commissioner may waive the final two quarters of initial monitoring for an entry point if the results of the samples from the previous two quarters are below the method detection limit specified in Appendix B.

(4) If the average of the initial monitoring results for an entry point is above the PMCL, the community waterworks owner shall collect and analyze quarterly samples at that entry point until the owner has results from four consecutive quarters that are at or below the PMCL, unless the community waterworks owner enters into another schedule as part of a formal compliance agreement with the commissioner.

c. Reduced monitoring: The commissioner may allow community waterworks owners to reduce the future frequency of monitoring from once every three years to once every six or nine years at each entry point, based on the following criteria:

(1) If the average of the initial monitoring results for each contaminant (i.e., gross alpha particle activity, uranium, radium-226, or radium-228) is below the method detection limit specified in Appendix B, the community waterworks owner shall collect and analyze for that contaminant using at least one sample at that entry point every nine years.

(2) For gross alpha particle activity and uranium, if the average of the initial monitoring results for each contaminant is at or above the method detection limit specified in Appendix B but at or below 1/2 of the PMCL, the community waterworks owner shall collect and analyze for that contaminant using at least one sample at that entry point every six years. For combined radium-226 and radium-228, the analytical results shall be combined. If the average of the combined initial monitoring results for radium-226 and radium-228 is at or above the method detection limit specified in Appendix B but at or below 1/2 the PMCL, the community waterworks owner shall collect and analyze for that contaminant using at least one sample at that entry point every six years.

(3) For gross alpha particle activity and uranium, if the average of the initial monitoring results for each contaminant is above 1/2 the PMCL but at or below the PMCL, the community waterworks owner shall collect and analyze at least one sample at that entry point every three years. For combined radium-226 and radium-228, the analytical results shall be combined. If the average of the combined initial monitoring results for radium-226 and radium-228 is above 1/2 the PMCL but at or below the MPCL, the community waterworks owner shall collect and analyze at least one sample at that entry point every three years.

(4) Community waterworks owners shall use the samples collected during the reduced monitoring period to determine the monitoring frequency for subsequent monitoring periods (e.g., if a community waterworks' entry point is on a nine-year monitoring period, and the sample result is above 1/2 the PMCL, then the next monitoring period for that entry point is three years).

(5) If a community waterworks owner has a monitoring result that exceeds the PMCL while on reduced monitoring, the community waterworks owner shall collect and analyze quarterly samples at that entry point until the community waterworks owner has results from four consecutive quarters that are below the PMCL, unless the community waterworks enters into another schedule as part of a formal compliance agreement with the commissioner.

d. Compositing: To fulfill quarterly monitoring requirements for gross alpha particle activity, radium-226, radium-228, or uranium, a community waterworks owner may composite up to four consecutive quarterly samples from a single entry point if analysis is done within a year of the first sample. The commissioner will treat analytical results from the composited sample as the average analytical result to determine compliance with the PMCLs and the future monitoring frequency. If the analytical result from the composited sample is greater than 1/2 the PMCL, the commissioner may direct the community waterworks owner to take additional quarterly samples before allowing the community waterworks owner to sample under a reduced monitoring schedule.

e. A gross alpha particle activity measurement may be substituted for the required radium-226 measurement provided that the measured gross alpha particle activity does not exceed 5 pCi/L. A gross alpha particle activity measurement may be substituted for the required uranium measurement provided that the measured gross alpha particle activity does not exceed 15 pCi/L.

The gross alpha measurement shall have a confidence interval of 95% (1.65, where is the standard deviation of the net counting rate of the sample) for radium-226 and uranium. When a community waterworks owner uses a gross alpha particle activity measurement in lieu of a radium-226 and/or uranium measurement, the gross alpha particle activity analytical result will be used to determine the future monitoring frequency for radium-226 and/or uranium. If the gross alpha particle activity result is less than the detection limit as specified in Appendix B, 1/2 the detection limit will be used to determine compliance and the future monitoring frequency.

2. Monitoring and compliance requirements for beta particle and photon radioactivity. To determine compliance with the maximum contaminant levels in 12VAC5-590-400 B 5 for beta particle and photon radioactivity, a community waterworks owner shall monitor at a frequency as follows:

a. Community waterworks owners (using surface or groundwater) designated by the commissioner as vulnerable shall sample for beta particle and photon radioactivity. Community waterworks owners shall collect quarterly samples for beta emitters and annual samples for tritium and strontium-90 at each entry point to the distribution system, beginning within one quarter after being notified by the commissioner. Community waterworks already designated by the commissioner shall continue to sample until the commissioner reviews and either reaffirms or removes the designation.

(1) If the gross beta particle activity minus the naturally occurring potassium-40 beta particle activity at an entry point has a running annual average (computed quarterly) less than or equal to 50 pCi/L (screening level), the commissioner may reduce the frequency of monitoring at that entry point to once every three years. Community waterworks owners shall collect all samples required in subdivision 2 a of this subsection during the reduced monitoring period.

(2) For community waterworks in the vicinity of a nuclear facility, the commissioner may allow the community waterworks owners to utilize environmental surveillance data collected by the nuclear facility in lieu of monitoring at the community waterworks' entry point(s), where the commissioner determines if such data is applicable to a particular community waterworks. In the event that there is a release from a nuclear facility, community waterworks owners which are using surveillance data shall begin monitoring at the community waterworks' entry point(s) in accordance with subdivision 2 a of this subsection.

b. Community waterworks owners (using surface or groundwater) designated by the commissioner as utilizing waters contaminated by effluents from nuclear facilities shall sample for beta particle and photon radioactivity. Community waterworks owners shall collect quarterly samples for beta emitters and iodine-131 and annual samples for tritium and strontium-90 at each entry point to the distribution system, beginning within one quarter after being notified by the commissioner. Owners of community waterworks already designated by the commissioner as using waters contaminated by effluents from nuclear facilities shall continue to sample until the commissioner reviews and either reaffirms or removes the designation.

(1) Quarterly monitoring for gross beta particle activity shall be based on the analysis of monthly samples or the analysis of a composite of three monthly samples. The former is recommended.

(2) For iodine-131, a composite of five consecutive daily samples shall be analyzed once each quarter. As directed by the commission, more frequent monitoring shall be conducted when iodine-131 is identified in the finished water.

(3) Annual monitoring for strontium-90 and tritium shall be conducted by means of the analysis of a composite of four consecutive quarterly samples or analysis of four quarterly samples. The latter procedure is recommended.

(4) If the gross beta particle activity minus the naturally occurring potassium-40 beta particle activity at a sampling point has a running annual average (computed quarterly) less than or equal to 15 pCi/L (screening level), the commissioner may reduce the frequency of monitoring at that sampling point to every three years. Community waterworks owners shall collect all samples required in subdivision 2 b of this subsection during the reduced monitoring period.

(5) For community waterworks in the vicinity of a nuclear facility, the commissioner may allow the community waterworks owner to utilize environmental surveillance data collected by the nuclear facility in lieu of the monitoring at the community waterworks' entry point(s), where the commissioner determines such data is applicable to a particular waterworks. In the event that there is a release from a nuclear facility, community waterworks owners which are using surveillance data shall begin monitoring at the community waterworks' entry point(s) in accordance with subdivision 2 b of this subsection.

c. Owners of community waterworks designated by the commissioner to monitor for beta particle and photon radioactivity cannot apply to the commissioner for a waiver from the monitoring frequencies specified in subdivision 2 a or 2 b of this subsection.

d. Community waterworks owners may analyze for naturally occurring potassium-40 beta particle activity from the same or equivalent sample used for the gross beta particle activity analysis. Community waterworks owners are allowed to subtract the potassium-40 beta particle activity value from the total gross beta particle activity value to determine if the screening level is exceeded. The potassium-40 beta particle activity shall be calculated by multiplying elemental potassium concentrations (in mg/L) by a factor of 0.82.

e. If the gross beta particle activity minus the naturally occurring potassium-40 beta particle activity exceeds the appropriate screening level, an analysis of the sample shall be performed to identify the major radioactive constituents present in the sample and the appropriate doses shall be calculated and summed to determine compliance with 12VAC5-590-400 B 5 a, using the formula in 12VAC590-400 B 5 b. Doses shall also be calculated and combined for measured levels of tritium and strontium to determine compliance.

f. Community waterworks owners shall monitor monthly at the entry point(s) which exceed the maximum contaminant level in 12VAC5-590-400 B 5 beginning the month after the exceedance occurs. Community waterworks owners shall continue monthly monitoring until the community waterworks has established, by a rolling average of three monthly samples, that the PMCL is being met. Community waterworks owners who establish that the PMCL is being met shall return to quarterly monitoring until they meet the requirements set forth in subdivision 2 a (1) or 2 b (4) of this subsection.

3. General monitoring and compliance requirements for radionuclides.

a. The commissioner may require more frequent monitoring than specified in subdivisions 1 and 2 of this subsection, or may require confirmation samples at his discretion. The results of the initial and confirmation samples shall be averaged for use in compliance determinations.

b. Each community waterworks owner shall monitor at the time designated by the commissioner during each compliance period.

c. Compliance: Compliance with 12VAC5-590-400 B 2 through B 5 will be determined based on the analytical results(s) obtained at each entry point. If one entry point is in violation of a PMCL, the community waterworks is in violation of the PMCL.

(1) For community waterworks monitoring more than once per year, compliance with the PMCL is determined by a running annual average at each entry point. If the average of any entry point is greater than the PMCL, then the community waterworks is out of compliance with the PMCL.

(2) For community waterworks monitoring more than once per year, if any sample result will cause the running average to exceed the PMCL at any entry point, the community waterworks is out of compliance with the PMCL immediately.

(3) Community waterworks owners shall include all samples taken and analyzed under the provisions of this section in determining compliance, even if that number is greater than the minimum required.

(4) If a community waterworks owner does not collect all required samples when compliance is based on a running annual average of quarterly samples, compliance will be based on the running average of the samples collected.

(5) If a sample result is less than the method detection limit as specified in Appendix B, zero will be used to calculate the annual average, unless a gross alpha particle activity is being used in lieu of radium-226 and/or uranium. If the gross alpha particle activity result is less than the method detection limit as specified in Appendix B, 1/2 the method detection limit will be used to calculate the annual average.

d. The commissioner has the discretion to delete results of obvious sampling or analytic errors.

e. If the PMCL for radioactivity set forth in 12VAC5-590-400 B 2 through B 5 is exceeded, the owner of a community waterworks shall give notice to the commissioner pursuant to 12VAC5-590-530 and to the public as required by 12VAC5-590-540.

12VAC5-590-372. Inorganic chemicals monitoring.

A. The owner of a community waterworks or a NTNC shall conduct monitoring to determine compliance with the PMCLs and SMCLs listed in Table 340.1 in accordance with this section. The owner of a TNC shall conduct monitoring to determine compliance with the nitrate, nitrite, and nitrate-nitrite PMCLs listed in Table 340.1 in accordance with this section.

B. If a waterworks draws water from more than one source and the sources are combined before distribution, then the owner shall sample at an entry point to the distribution system during periods of normal operating conditions (i.e., when water is representative of all sources being used).

C. When the results of sampling for antimony, arsenic, asbestos, barium, beryllium, cadmium, cyanide (as free cyanide), chromium, fluoride, mercury, nickel, selenium, or thallium exceed the applicable PMCL, the owner shall collect a confirmation sample, at the same sampling site, within two weeks of notification of the analytical results of the first sample.

D. Monitoring frequency.

1. Asbestos. The commissioner has granted a statewide waiver for asbestos. If the statewide waiver is removed or if site-specific waterworks conditions warrant monitoring for asbestos, then monitoring to determine compliance with the PMCL for asbestos specified in Table 340.1 shall be conducted as follows:

a. The owner of a community waterworks or a NTNC shall monitor for asbestos during the first three-year compliance period of each nine-year compliance cycle.

b. If the statewide waiver is removed, and the owner believes the waterworks is not vulnerable to asbestos contamination from either its source water or due to corrosion of its asbestos-cement pipe, then the owner may apply to the commissioner for a monitoring waiver for asbestos. If the commissioner grants the monitoring waiver, then the owner is not required to monitor.

c. The commissioner may grant a waiver based on a consideration of the following factors:

(1) Potential asbestos contamination of the source water; and

(2) The use of asbestos-cement pipe for finished water distribution and the corrosive nature of the water.

d. A waiver remains in effect until the completion of the compliance period (i.e., three years).

e. The owner of a waterworks vulnerable to asbestos contamination due solely to corrosion of its asbestos-cement pipe shall collect one sample at a tap served by the asbestos-cement pipe and under conditions where asbestos contamination is most likely to occur.

f. The owner of a waterworks vulnerable to asbestos contamination due to its source water shall monitor at the entry points.

g. The owner of a waterworks vulnerable to asbestos contamination due both to its source water and corrosion of its asbestos-cement pipe shall collect one sample at a tap served by the asbestos-cement pipe and under conditions where asbestos contamination is most likely to occur.

h. The owner of a waterworks that exceeds the PMCL as determined in 12VAC5-590-382 A shall monitor quarterly beginning in the next quarter after the exceedance occurred.

i. The department may decrease the quarterly monitoring requirement to the frequency specified in subdivision D 1 a of this section provided the department has determined that the waterworks is reliably and consistently below the PMCL. In no case shall the department make this determination unless the owner of a groundwater system collects a minimum of two quarterly samples or the owner of a waterworks that uses a surface water source, in whole or in part, collects a minimum of four quarterly samples.

2. Antimony, arsenic, barium, beryllium, cadmium, chromium, cyanide (as free cyanide), fluoride, mercury, nickel, selenium, and thallium. Monitoring to determine compliance with the PMCL for these contaminants specified in Table 340.1 shall be conducted as follows:

a. The owner shall collect one sample at each groundwater source entry point during each compliance period.

b. The owner shall collect one sample annually at each surface water source entry point, in whole or in part.

c. The owner may apply to the department for a waiver from the monitoring frequencies specified in subdivisions D 2 a and D 2 b of this section.

(1) A condition of the waiver shall require that the owner collect a minimum of one sample while the waiver is effective. The waiver remains in effect for one compliance cycle (i.e., nine years).

(2) The department may grant a waiver provided the owner has monitored surface water source entry points, in whole or in part,   annually for at least three years and has conducted a minimum of three rounds of monitoring at groundwater source entry points. At least one sample shall have been collected since January 1, 1990. The owner shall demonstrate that all previous analytical results were less than the PMCL. A waterworks that uses a new groundwater or surface water source is not eligible for a waiver until three rounds of monitoring from the new source have been completed.

(3) In determining the appropriate reduced monitoring frequency, the department shall consider:

(a) The reported concentrations from all previous monitoring;

(b) The degree of variation in reported concentrations; and

(c) Other factors that may affect contaminant concentrations such as changes in groundwater pumping rates, changes in the waterworks configuration, changes in the waterworks operating procedures, or changes in stream flows or characteristics.

(4) A decision by the department to grant a waiver shall be made in writing and shall set forth the basis for the determination. The request for a waiver may be initiated by the department or upon an application by the owner. The owner shall specify the basis for the request. The department shall evaluate and, where appropriate, revise the determination of the appropriate monitoring frequency when the owner submits new monitoring data or when other data relevant to the appropriate monitoring frequency become available.

(5) No arsenic waivers shall be granted by the department.

d. The owner of a waterworks that exceed the PMCLs as calculated in 12VAC5-590-382 shall monitor quarterly beginning in the next quarter after the exceedance occurred. The department may decrease the quarterly monitoring requirement to the frequencies specified in subdivisionD 2 a, D 2 b, or D 2 c of this section provided a determination has been made that the analytical results are reliably and consistently below the PMCL. In no case may the department make this determination unless the owner collects a minimum of two quarterly samples from each groundwater source entry point and a minimum of four quarterly samples from each surface water source entry point, in whole or in part.

3. Nitrate and combined nitrate-nitrite as nitrogen. Monitoring to determine compliance with the PMCL for nitrate and combined nitrate-nitrite as nitrogen specified in Table 340.1 shall be conducted as follows:

a. The owner shall collect one sample annually at each groundwater source entry point.

b. The owner shall collect one sample quarterly at each surface water source entry point, in whole or in part.

c. For groundwater source entry points at community and NTNCs, the repeat monitoring frequency shall be quarterly for at least one year following any one sample in which the concentration is greater than 50% of the PMCL. After four consecutive quarters of monitoring, the department may allow the owner to reduce the sampling frequency to annually after determining the results are reliably and consistently less than the PMCL.

d. For surface water source entry points, in whole or in part, the department may allow the owner to reduce the sampling frequency to annually if all analytical results from four consecutive quarters are less than 50% of the PMCL. The waterworks shall return to quarterly monitoring if the concentration found in any one sample is greater than or equal to 50% of the PMCL.

e. After any round of quarterly sampling is completed as required by subdivisions D 3 c and D 3 dof this section, the owner who is monitoring annually shall collect subsequent samples during the quarter that previously resulted in the highest analytical result.

f. No monitoring waivers shall be issued for nitrate or combined nitrate-nitrite as nitrogen.

4. Nitrite. Monitoring to determine compliance with the PMCL for nitrite specified in Table 340.1 shall be conducted as follows:

a. The owner shall collect one sample at each entry point during the initial compliance period.

b. After the initial sample, the owner of a waterworks where an analytical result for nitrite is less than 50% of the PMCL shall monitor at the frequency specified by the department.

c. The repeat monitoring frequency for an owner shall be quarterly for at least one year following any one sample in which the concentration is greater than 50% of the PMCL. The department may allow an owner to reduce the sampling frequency to annually after determining the analysis results are reliably and consistently less than the PMCL.

d. The owner of a waterworks that is monitoring annually shall collect each subsequent sample during the quarter that previously resulted in the highest analytical result.

e. No monitoring waivers shall be issued for nitrite.

5. Aluminum, chloride, copper, corrosivity, fluoride, foaming agents (surfactants), iron, manganese, silver, sulfate, and zinc. Monitoring to determine compliance with the SMCL for these contaminants specified in Table 340.1 shall be conducted as follows:

a. The owner shall collect one sample at each groundwater source entry point during each compliance period.

b. The owner shall collect one sample annually at each surface water source entry point, in whole or in part.

 12VAC5-590-373. Organic chemicals monitoring.

A. The owner of a community waterworks or a NTNC shall conduct monitoring to determine compliance with PMCLs listed in Table 340.2 in accordance with this section. Where two or more sources are combined before distribution, the owner shall sample at the entry point for the combined sources during periods of normal operation conditions.

1. The owner of a waterworks that uses groundwater shall collect a minimum of one sample at each entry point.

2. The owner of a waterworks that uses surface water, in whole or in part, shall collect a minimum of one sample at each entry point.

B. During the initial compliance period and each subsequent compliance period, the owner shall monitor during four consecutive calendar quarters for each contaminant listed in Table 340.2. A minimum of one sample at each entry point shall be collected during each calendar quarter.

C. Reduced monitoring.

1. Volatile organic chemicals (VOCs).

a. The requirement for four quarterly samples during the initial monitoring period as specified in subsection B of this section may not be reduced.

b. The department may decrease the requirement for quarterly monitoring during subsequent compliance periods provided it has been determined that the analytical results are reliably and consistently below the PMCL.

(1) In no case shall the department make this determination unless the owner collects a minimum of two quarterly samples at each groundwater source entry point; or

(2) The owner collects a minimum of four quarterly samples at each surface water source entry point, in whole or in part.

c. If the department determines that the waterworks is reliably and consistently below the PMCL, then the department may allow the owner to monitor annually. The owner who monitors annually shall monitor during the quarter that previously yielded the highest analytical result.

d. For a groundwater system only. After a minimum of three years of annual sampling, the department may allow the owner with no previous detection of any VOCs listed in Table 340.2 to collect one sample during each compliance period.

e. The owner of a groundwater system that has three consecutive annual samples with no detection of a contaminant may apply to the department for a waiver.

2. Synthetic organic chemicals (SOCs).

a. The owner of a waterworks serving more than 3,300 persons that does not detect any SOCs listed in Table 340.2 in the initial compliance period may reduce the sampling frequency to a minimum of two quarterly samples in one year during each repeat compliance period.

b. The owner of a waterworks serving fewer than than or equal to 3,300 persons that does not detect any SOCs listed in Table 340.2 in the initial compliance period may reduce the sampling frequency to a minimum of one sample during each repeat compliance period.

c. The department may decrease the requirement for quarterly monitoring during subsequent monitoring periods as specified in subsection B of this section provided the analytical results of the four quarterly samples required during the initial monitoring are reliably and consistently below the PMCL.

d. The department may reduce the increased monitoring required by subdivision D 1 of this section provided the department has determined that the analytical results are reliably and consistently below the PMCL. In no case shall the department make this latter determination unless:

(1) The owner collects a minimum of two quarterly samples at each groundwater source entry point.

(2) The owner collects a minimum of four quarterly samples at each surface water source entry point, in whole or in part.

e. If the department determines that the analytical results are reliably and consistently below the PMCL, the department may allow the owner to monitor annually. The owner of a waterworks that monitors annually shall monitor during the quarter that previously yielded the highest analytical result.

f. The owner of a waterworks that has three consecutive annual samples with no detection of a contaminant may apply to the department for a waiver for SOC monitoring by submitting a waiver application as specified in subdivisions E 1 b and E 2 b of this section. The waiver remains in effect for one compliance period (i.e., three years).

3. Return to compliance.  The owner of a waterworks that exceeds the PMCLs listed inTable 340.2 for VOCs or SOCs, as determined by 12VAC5-590-383, shall monitor quarterly. After a minimum of four consecutive quarterly samples that show the waterworks is in compliance as specified in 12VAC5-590-383 and the department determines that the analytical results are reliably and consistently below the PMCL, the owner may monitor at the frequency and time specified in subdivisions C 1 c and C 2 e of this section.

D. Increased monitoring.

1. If the owner of a waterworks that is on reduced monitoring detects a contaminant listed in Table 340.2 (see 12VAC5-590-383 A regarding confirmation samples), then the owner shall monitor quarterly at each sampling point where the contaminant was detected unless:

a. That contaminant was previously detected and the department determined it was reliably and consistently below the PMCL according to subdivisions C 1 b and C 2 d of this section;

b. The historical sampling data do not indicate a meaningful increase in the contaminant concentration; and

c. The contaminant concentration does not exceed the PMCL.

2. Vinyl chloride.

a. The owner of a groundwater system that has detected one or more of the following two-carbon organic compounds: trichloroethylene, tetrachloroethylene, 1,2-dichloroethane, 1,1,1-trichloroethane, cis-1,2-dichloroethylene, trans-1,2-dichloroethylene, or 1,1-dichloroethylene, shall monitor quarterly for vinyl chloride. A vinyl chloride sample shall be collected at each sampling point at which one or more of the two-carbon organic compounds were detected. If the results of the first analysis do not detect vinyl chloride, then the department may reduce the quarterly monitoring frequency of vinyl chloride monitoring to one sample during each compliance period.

b. The owner of a waterworks that is required to monitor for vinyl chloride as specified by the department will monitor at each surface water source entry point, in whole or in part.

3. If monitoring detects one or more of certain related contaminants (heptachlor and heptachlor epoxide), then subsequent monitoring shall analyze for all related contaminants.

4. For entry points sampled and analyzed for contaminants listed in Table 340.2, the following detection limits apply:

a. A VOC is detected at a level equal to or greater than 0.0005 mg/L; and

b. A SOC is detected at a level equal to or greater than defined by EPA under 40 CFR 141.24(h)(18) or by the department.

E. Monitoring waivers.

1. Groundwater source entry points.

a. The owner of a waterworks that does not detect a VOC contaminant listed in Table 340.2 may apply to the department for a waiver from the subsequent compliance period requirements of subsection B and subdivisions C 1 c and C 1 d of this section after completing the initial monitoring. A waiver shall be effective for no more two compliance periods (i.e., six years).

b. The owner of a waterworks may apply to the department for a SOC monitoring waiver from the requirements of subsection B and subdivision C 2 of this section. The owner must reapply for a waiver for each subsequent compliance period (i.e., three years).

2. Surface water source entry points, in whole or in part.

a. No VOC monitoring waivers shall be issued.

b. The owner of a waterworks that does not detect a SOC contaminant listed in Table 340.2 may apply to the commissioner for a SOC monitoring waiver from the requirements of subsection B and subdivision C 2 of this section. The owner must reapply for a waiver for each subsequent compliance period (i.e., three years).

3. Monitoring waiver applications. The owner shall submit a monitoring waiver application for evaluation on a form approved by the department. The commissioner may grant a waiver after an evaluation of the use, transport, storage, or disposal of any organic contaminant within the watershed or zone of influence of the source.

a. If an evaluation by the department reveals no previous use of the contaminants within the watershed or zone of influence, then a waiver may be granted.

b. If an evaluation by the department reveals either previous use of the contaminants or that use is unknown, then the following factors shall be used to determine whether a waiver is granted:

(1) Previous analytical results.

(2) The proximity of the source water to land use activities that are potential point or nonpoint sources of organic contamination and to potential conduits to groundwater. Point sources include spills and leaks of chemicals at or near a waterworks or at manufacturing, distribution, or storage facilities or from hazardous or municipal waste landfills and other waste handling or treatment facilities. Nonpoint sources for SOCs include the use of pesticides to control insects and weed pests on agricultural areas, forest lands, home and gardens, and other land application uses.

(3) The environmental persistence and transport of the contaminants listed in Table 340.2.

(4) The implementation of wellhead protection measures by the owner.

(5) For groundwater well sources: well construction, well depth, soil type, geological conditions, and well structure integrity.

(6) Special factors, as follows:

(a) For VOCs, the number of persons served by the waterworks and the proximity of a smaller waterworks to a larger waterworks.

(b) For SOCs, elevated nitrate levels at the waterworks' source water.

(c) For SOCs, use of PCBs in equipment used in the production, storage, or distribution of water (i.e., PCBs used in pumps, transformers, and other equipment).

c. An entry point at which treatment has been installed to remove VOCs or SOCs is not eligible for a monitoring waiver for the VOCs or SOCs for which treatment has been installed.

d. All waterworks are granted a waiver from monitoring dioxin, endothall, and glyphosate unless the department determines that there is a source of these contaminants that poses a threat to the source water.

4. Condition for waivers.

a. Groundwater source entry points.

(1) As a condition of the VOC waiver, the owner shall collect one sample at each entry point during the time the waiver is effective (i.e., one sample during two compliance periods or six years). Based on this data, the department may reconfirm that the source is nonsusceptible. If the department does not make this reconfirmation within three years of the initial determination, then the waiver is invalidated and the owner is required to sample annually.

(2) There are no conditions to SOC waivers.

b. Surface water source entry points, in whole or in part. There are no conditions to VOC and SOC waivers for waterworks in regard to these entry points. 

12VAC5-590-374. Residual disinfectant, disinfection byproducts, and disinfection byproduct precursors monitoring.

A. Unless otherwise noted, an owner of a waterworks that uses a chemical disinfectant shall comply with the requirements of this section as follows:

1. The owner of a community waterworks or a NTNC shall comply with this section.

2. The owner of a TNC that uses any combination of a surface water source, a GUDI source, or a groundwater source and uses chlorine dioxide as a disinfectant or oxidant shall comply with all the requirements for chlorine dioxide in this section.

B. The owner shall collect all samples during normal operating conditions.

1. Analysis under this section for DBPs (TTHM, HAA5, chlorite, and bromate) shall be conducted by a laboratory that has received certification by the DCLS except as noted in subdivisions B 2 and B 3 of this section.

2. Measurement under this section of daily chlorite samples at the entry point to the distribution system, residual disinfectant (free chlorine, combined chlorine, total chlorine, and chlorine dioxide), alkalinity, TOC, SUVA (DOC and UV254), pH, and magnesium shall be made by a party approved by the department.

3. Residual disinfectant concentrations for free chlorine, combined chlorine, total chlorine, and chlorine dioxide shall be made using equipment deemed satisfactory by the department.

C. Monitoring plan. The owner required to monitor under this section shall develop and implement a monitoring plan. The owner shall maintain the plan and make it available for inspection by the department and the general public. The owner of a community waterworks or a NTNC that uses a surface water source, a GUDI source, or both and serves more than 3,300 people shall submit a copy of the monitoring plan to the department no later than the date of the first report required under 12VAC5-590-531 A. The department may also require the plan to be submitted by any other owner. After evaluation, the department may require changes in any of the plan elements. The plan shall include at least the following:

1. Specific locations and schedules with monitoring dates for collecting samples for any parameters included in this section.

2. How the owner will calculate compliance with PMCLs, MRDLs, and treatment techniques.

3. The sampling plan for a consecutive waterworks shall reflect the entire consecutive distribution system.

D. Failure to monitor in accordance with the monitoring plan required under subsection C of this section is a monitoring violation. Failure to monitor shall be treated as a violation for the entire period covered by the annual average where compliance is based on an RAA of monthly or quarterly samples or averages, and the owner's failure to monitor makes it impossible to determine compliance with PMCLs or MRDLs.

E. The owner may use only data collected under the provisions of this section to qualify for reduced monitoring.

F. TTHM and HAA5 monitoring. The owner of a community waterworks or a NTNC shall conduct the LRAA monitoring for TTHM and HAA5 at the frequency given below, unless otherwise indicated.

1. This subdivision establishes monitoring and other requirements for achieving compliance with PMCLs based on the LRAA for TTHM and HAA5, and for achieving compliance with MRDLs for chlorine and chloramines for certain consecutive waterworks.

2. This subdivision applies to a community waterworks or a NTNC that uses a primary or secondary disinfectant other than UV light or delivers water that has been treated with a primary or secondary disinfectant other than UV light.

3. Routine monitoring.

a. If the waterworks is a NTNC serving fewer than 10,000 people, then the owner shall monitor at the location or locations and dates identified in the monitoring plan in subsection C of this section, updated as required by subdivision F 3 e of this section.

b. The owner shall monitor at no fewer than the number of locations identified in Table 374.1:

TABLE 374.1

Monitoring Frequency by Source Water Type for TTHM and HAA5

SOURCE WATER TYPE

POPULATION SIZE CATEGORY

MONITORING FREQUENCYa

DISTRIBUTION SYSTEM MONITORING LOCATION TOTAL PER MONITORING PERIODb

Surface water or GUDI Source

Less than 500

per year

2

500 ‑ 3,300

per quarter

2

3,301 ‑ 9,999

per quarter

2

10,000 ‑ 49,999

per quarter

4

50,000 ‑ 249,999

per quarter

8

250,000 ‑ 999,999

per quarter

12

1,000,000 ‑ 4,999,999

per quarter

16

Equal to or greater than 5,000,000

per quarter

20

Groundwater

Less than 500

per year

2

500 ‑ 9,999

per year

2

10,000 ‑ 99,999

per quarter

4

100,000 ‑ 499,999

per quarter

6

Equal to or greater than 500,000

per quarter

8

aThe owner shall monitor during the month of highest DBP concentrations.

bThe owner of a waterworks on quarterly monitoring (except those using a surface water source, a GUDI source, or both and serving 500 to 3,300 people) shall collect dual sample sets every 90 days at each monitoring location. A groundwater system serving 500 to 9,999 people shall collect dual sample sets annually at each monitoring location. A waterworks serving fewer than 500 people and a waterworks using a surface water source, a GUDI source, or both and serving 500 to 3,300 people shall collect individual TTHM and HAA5 samples (instead of a dual sample set) at the locations with the highest TTHM and HAA5 concentrations, respectively. A waterworks serving fewer than 500 people shall sample annually, and a waterworks using a surface water source, a GUDI source, or both and serving 500 to 3,300 people shall sample every 90 days. For a waterworks serving fewer than 500 people, only one location with a dual sample set per monitoring period is needed if the highest TTHM and HAA5 concentrations occur at the same location (and month, if monitoring annually).

c. The owner of a waterworks not using disinfection that then begins using a disinfectant other than UV light shall consult with the department to identify compliance monitoring locations. The owner shall develop a monitoring plan under subdivision F 3 e of this section to include those monitoring locations.

d. The owner shall use an approved method listed in 12VAC5-590-440 for TTHM and HAA5 analyses. Analyses shall be conducted by laboratories that have received certification by EPA or DCLS as specified in 12VAC5-590-440.

e. The owner may revise the monitoring plan to reflect changes in treatment, distribution system operations and layout (including new service areas), or other factors that may affect TTHM or HAA5 formation, or for reasons approved by the department after consultation with the department regarding the need for changes and the appropriateness of the changes. If the owner changes monitoring locations, then the owner shall replace existing compliance monitoring locations with the lowest LRAA with new locations that reflect the current distribution system locations with expected high TTHM or HAA5 levels. The department may also require modifications in the monitoring plan. The owner of a waterworks using a surface water source, a GUDI source, or both and serving more than 3,300 people shall submit a copy of the modified monitoring plan to the department before the date the owner is required to comply with the revised monitoring plan.

4. Reduced monitoring.

a. The owner may reduce monitoring to the level specified in Table 374.2 any time the LRAA is less than or equal to 0.040 mg/L for TTHM and less than or equal to 0.030 mg/L for HAA5 at all monitoring locations. The owner may only use data collected under the provisions of this section to qualify for reduced monitoring. In addition, the source water annual average TOC level, before any treatment, shall be less than or equal to 4.0 mg/L at each water treatment plant treating a surface water source, a GUDI source, or both based on monitoring conducted under subsection J of this section.

TABLE 374.2

Reduced Monitoring for TTHM and HAA5

SOURCE WATER TYPE

POPULATION SIZE CATEGORY

MONITORING FREQUENCYa

DISTRIBUTION SYSTEM MONITORING LOCATION PER MONITORING PERIOD

Surface water or GUDI Source

Less than 500

Monitoring may not be reduced.

500 ‑ 3,300

per year

One TTHM and one HAA5 sample: one at the location and during the quarter with the highest TTHM single measurement, one at the location and during the quarter with the highest HAA5 single measurement; one dual sample set per year if the highest TTHM and HAA5 measurements occurred at the same location and quarter.

3,301 ‑ 9,999

per year

Two dual sample sets: one at the location and during the quarter with the highest TTHM single measurement, one at the location and during the quarter with the highest HAA5 single measurement.

10,000 ‑ 49,999

per quarter

Two dual sample sets: at the locations with the highest TTHM and highest HAA5 LRAAs.

50,000 ‑ 249,999

per quarter

Four dual sample sets: at the locations with the two highest TTHM and two highest HAA5 LRAAs.

250,000 ‑ 999,999

per quarter

Six dual sample sets: at the locations with the three highest TTHM and three highest HAA5 LRAAs.

1,000,000 ‑ 4,999,999

per quarter

Eight dual sample sets: at the locations with the four highest TTHM and four highest HAA5 LRAAs.

Equal to or greater than 5,000,000

per quarter

Ten dual sample sets: at the locations with the five highest TTHM and five highest HAA5 LRAAs.

Groundwater

Less than 500

every third year

One TTHM and one HAA5 sample: one at the location and during the quarter with the highest TTHM single measurement, one at the location and during the quarter with the highest HAA5 single measurement; one dual sample set per year if the highest TTHM and HAA5 measurements occurred at the same location and quarter.

500 ‑ 9,999

per year

One TTHM and one HAA5 sample: one at the location and during the quarter with the highest TTHM single measurement, one at the location and during the quarter with the highest HAA5 single measurement; one dual sample set per year if the highest TTHM and HAA5 measurements occurred at the same location and quarter.

10,000 ‑ 99,999

per year

Two dual sample sets: one at the location and during the quarter with the highest TTHM single measurement, one at the location and during the quarter with the highest HAA5 single measurement.

100,000 ‑ 499,999

per quarter

Two dual sample sets: at the locations with the highest TTHM and highest HAA5 LRAAs.

Equal to or greater than 500,000

per quarter

Four dual sample sets: at the locations with the two highest TTHM and two highest HAA5 LRAAs.

aThe owner of a waterworks on quarterly monitoring shall collect dual sample sets every 90 days.

b. The owner may remain on reduced monitoring as long as the TTHM LRAA is less than or equal to 0.040 mg/L and the HAA5 LRAA is less than or equal to 0.030 mg/L at each monitoring location (for waterworks with quarterly reduced monitoring). In addition, the source water annual average TOC level, before any treatment, shall be less than or equal to 4.0 mg/L at each water treatment plant treating a surface water source or a GUDI source, based on monitoring conducted under subsection J of this section.

c. If the LRAA based on quarterly monitoring at any monitoring location exceeds either 0.040 mg/L for TTHM or 0.030 mg/L for HAA5 or if the annual (or less frequent) sample at any location exceeds either 0.060 mg/L for TTHM or 0.045 mg/L for HAA5, or if the source water annual average TOC level, before any treatment, is greater than 4.0 mg/L at any water treatment plant treating a surface water source, a GUDI source, or both then the owner shall resume routine monitoring under subdivision F 3 of this section or begin increased monitoring if subdivision F 5 of this section applies.

d. A waterworks may return to routine monitoring at the department's discretion.

5. Increased monitoring.

a. The owner of a waterworks required to monitor at a particular location annually or less frequently than annually under subdivision F 3 or F 4 of this section, shall increase monitoring to dual sample sets once per quarter (collected every 90 days) at all locations if a TTHM sample is greater than 0.080 mg/L or a HAA5 sample is greater than 0.060 mg/L at any location.

b. The owner may return to routine monitoring once the waterworks has conducted increased monitoring for at least four consecutive quarters and the LRAA for every monitoring location is less than or equal to 0.060 mg/L for TTHM and less than or equal to 0.045 mg/L for HAA5.

G. Chlorite. The owner of a community waterworks or a NTNC using chlorine dioxide, for disinfection or oxidation, shall conduct monitoring for chlorite.

1. Routine monitoring.

a. The owner shall collect daily samples at the entry point to the distribution system. For any daily sample that exceeds the chlorite PMCL listed in Table 340.6, the owner shall collect additional samples in the distribution system the following day at the locations required by subdivision G 1 c of this section, in addition to the sample required at the entrance to the distribution system.

b. The owner shall collect a three-sample set each month in the distribution system. The owner shall collect one sample at each of the following locations: near the first customer, at a location representative of average residence time, and at a location reflecting maximum residence time in the distribution system. Any additional routine sampling shall be conducted in the same manner (as three-sample sets, at the specified locations). The owner may use the results of additional monitoring conducted under subdivision G 1 c of this section to meet the requirement for monitoring in this subdivision G 1 b.

c. On each day following a routine sample monitoring result that exceeds the chlorite PMCL listed in Table 340.6 at the entrance to the distribution system, the owner is required to collect three chlorite distribution system samples at the following locations: as close to the first customer as possible, in a location representative of average residence time, and as close to the end of the distribution system as possible (reflecting maximum residence time in the distribution system).

2. Reduced monitoring.

a. Chlorite monitoring at the entrance to the distribution system required by subdivision G 1 a of this subsection may not be reduced.

b. Chlorite monitoring in the distribution system required by subdivision G 1 b of this section may be reduced to one three-sample set per quarter after one year of monitoring where no individual chlorite sample collected in the distribution system under subdivision G 1 b of this section has exceeded the chlorite PMCL listed in Table 340.6 and the owner has not been required to conduct monitoring under subdivision G 1 c of this section. The owner may remain on the reduced monitoring schedule until either any of the three individual chlorite samples collected quarterly in the distribution system under subdivision G 1 b of this section exceeds the chlorite PMCL or the owner is required to conduct monitoring under subdivision G 1 c of this section, at which time the owner shall revert to routine monitoring.

H. Bromate.

1. The owner of a community waterworks or a NTNC water treatment plant using ozone for disinfection or oxidation shall collect one sample per month and analyze it for bromate. The owner shall collect samples monthly at the entrance to the distribution system while the ozonation system is operating under normal conditions.

2. The owner required to analyze for bromate may reduce monitoring from monthly to quarterly if the waterworks RAA bromate concentration is less than or equal to 0.0025 mg/L based on monthly bromate measurements under subdivision H 1 of this section for the most recent four quarters. If a waterworks has qualified for reduced bromate monitoring under this subdivision, then the owner may remain on reduced monitoring as long as the RAA of quarterly bromate samples is equal to or less than 0.0025 mg/L. If the RAA bromate concentration is greater than 0.0025 mg/L, then the owner shall resume routine monitoring required by subdivision H 1 of this section.

I. Monitoring requirements for the residual disinfectant.

1. Chlorine and chloramines.

a. The owner of a waterworks that uses chlorine or chloramines shall measure the residual disinfectant level in the distribution system at the same point in the distribution system and at the same time as total coliform bacteria are sampled, as specified in 12VAC5-590-370 A and 12VAC5-590-380 D. The owner of a waterworks using a surface water source, a GUDI source, or both may use the results of the residual disinfectant concentration sampling found in 12VAC5-590-376 D instead of collecting separate samples.

b. Residual disinfectant level monitoring may not be reduced.

2. Chlorine dioxide.

a. The owner of a waterworks that uses chlorine dioxide for disinfection or oxidation shall collect daily samples at the entrance to the distribution system. For any daily sample that exceeds the MRDL listed in Table 340.7, the owner shall collect samples in the distribution system the following day at the locations required by subdivision I 2 b of this section, in addition to the sample required at the entrance to the distribution system.

b. On each day following a routine sample monitoring result that exceeds the MRDL listed in Table 340.7, the owner is required to collect three chlorine dioxide distribution system samples. If chlorine dioxide or chloramines are used to maintain a residual disinfectant in the distribution system, or if chlorine is used to maintain a residual disinfectant in the distribution system and there is no rechlorination after the entry point, then the owner shall collect three samples as close to the first customer as possible, at intervals of at least six hours. If chlorine is used to maintain a residual disinfectant in the distribution system and there are one or more rechlorination points after the entry point, then the owner shall collect one sample at each of the following locations: as close to the first customer as possible, in a location representative of average residence time, and as close to the end of the distribution system as possible (reflecting maximum residence time in the distribution system).

c. Chlorine dioxide monitoring may not be reduced.

3. Ozone. Ozone residual levels shall be monitored continuously and recorded. A portable ozone meter is recommended as a backup.

4. Additional monitoring and reporting requirements are specified in 12VAC5-590-500 to demonstrate log inactivation or removal of Giardia lamblia, virus, and Cryptosporidium.

J. Monitoring requirements for DBPPs.

1. The owner of a community waterworks or a NTNC using a surface water source, a GUDI source, or both and using conventional filtration treatment, as defined in 12VAC5-590-10, shall monitor each water treatment plant for TOC no later than the point of CFE turbidity monitoring and representative of the treated water. The owner shall also monitor for TOC in the source water before any treatment at the same time as monitoring for TOC in the treated water. These samples (source water and treated water) are referred to as paired samples. At the same time as the source water sample is collected, the owner shall monitor for alkalinity in the source water before any treatment. The owner shall collect one paired sample and one source water alkalinity sample per month per water treatment plant at a time representative of normal operating conditions and influent water quality.

2. The owner of a community waterworks or a NTNC that uses a surface water source, a GUDI source, or both with an average treated water TOC of less than 2.0 mg/L for two consecutive years, or less than 1.0 mg/L for one year, may reduce monitoring for both TOC and alkalinity to one paired sample and one source water alkalinity sample per water treatment plant per quarter. The owner shall revert to routine monitoring in the month following the quarter when the annual average treated water TOC is equal to or greater than 2.0 mg/L.

12VAC5-590-375. Lead and copper monitoring.

A. The owners owner of all a community and nontransient noncommunity waterworks waterworks or a NTNC shall monitor for lead and copper in tap water (subsection B of this section), water quality (corrosion) parameters in the distribution system and at entry points (subsection C of this section), and lead and copper in water supplies (subsection D of this section).

B. Monitoring requirements for lead and copper in tap water.

1. Sample site location.

a. By the commissioner determined date determined by the department for commencement of monitoring under subdivision B 4 a of this section, each the owner shall complete a materials evaluation of the distribution system in order to identify a pool of targeted sampling sites that meets the requirements of this subdivision, and that is sufficiently large to ensure that the owner can collect the number of lead and copper tap samples required in subdivision B 3 of this section. All sites from which first draw first-draw samples are collected shall be selected from this pool of targeted sampling sites. Sampling sites may not include faucets that have point-of-use POU devices or point-of-entry treatment POE devices designed to remove inorganic contaminants.

b. When the distribution system evaluation required in subdivision B 1 a of this section is insufficient to locate the requisite number of lead and copper sampling sites that meet the targeting criteria of this section, the owner shall review the sources of information listed below in order in subdivisions B 1 b (1), B 1 b (2), and B 1 b (3) of this section to identify a sufficient number of sampling sites. In addition, the owner shall seek to collect such information where possible in the course of its normal operations (e.g., checking service line materials when reading water meters or performing maintenance activities):

(1) All plumbing codes, permits, and records in the files of the building department or departments that indicate the plumbing materials that are installed within publicly and privately owned structures connected to the distribution system;

(2) All inspections and records of the distribution system that indicate the material composition of the service connections that connect a structure to the distribution system; and

(3) All existing water quality information, which includes the results of all prior analyses of the waterworks or individual structures connected to the waterworks, indicating locations that may be particularly susceptible to high lead or copper concentrations.

c. The sampling sites selected for a community waterworks' sampling pool (tier 1 (Tier 1 sampling sites) shall consist of single family single-family structures that:

(1) Contain copper pipes with lead solder installed between January 1983 and April 1986 or contain lead pipes; or

(2) Are served by a lead service line.

NOTE: When multiple-family residences comprise at least 20% of the structures served by a waterworks, the owner may include these types of structures in the sampling pool.

d. The owner of any a community waterworks with insufficient tier Tier 1 sampling sites shall complete the sampling pool with tier Tier 2 sampling sites consisting of buildings, including multiple-family residences that:

(1) Contain copper pipes with lead solder installed between January 1983 and April 1986 or contain lead pipes; or

(2) Are served by a lead service line.

e. The owner of any a community waterworks with insufficient tier Tier 1 and tier Tier 2 sampling sites shall complete the sampling pool with tier Tier 3 sampling sites, consisting of single family structures that contain copper pipes with lead solder installed before 1983. The owner of a community waterworks with insufficient tier Tier 1, tier Tier 2, and tier Tier 3 sampling sites shall complete the sampling pool with representative sites throughout the distribution system. For the purpose of this subdivision, a representative site is a site in which the plumbing materials used at that site would be commonly found at other sites served by the waterworks.

f. The sampling sites selected for a nontransient noncommunity waterworks (tier 1 NTNC (Tier 1 sampling sites) shall consist of buildings that:

(1) Contain copper pipes with lead solder installed between January 1983 and April 1986 or contain lead pipes; or

(2) Are served by a lead service line.

g. The owner of a nontransient noncommunity waterworks NTNC with insufficient tier Tier 1 sites that meet the targeting criteria in subdivision B 1 f of this section shall complete the sampling pool with sampling sites that contain copper pipes with lead solder installed before 1983. If additional sites are needed to complete the sampling pool, the owner of a nontransient noncommunity waterworks NTNC shall use representative sites throughout the distribution system. For the purpose of this subdivision, a representative site is a site in which the plumbing materials used at that site would be commonly found at other sites served by the waterworks.

h. The owner of any a waterworks whose distribution system contains lead service lines shall draw 50% of the samples the owner collects during each monitoring period from sites that contain lead pipes, or copper pipes with lead solder, and 50% of the samples the owner collects from sites served by a lead service line. Any The owner who cannot identify a sufficient number of sampling sites served by a lead service line shall collect first draw first-draw tap samples from all of the sites identified as being served by such these lines.

2. Sample collection methods.

a. All tap samples for lead and copper, with the exception of lead service line samples collected under 12VAC5-590-405 C 4 and samples collected under subdivision B 2 e of this section, shall be first draw first-draw samples.

b. Each first-draw tap sample for lead and copper shall be one liter in volume, and have stood motionless in the plumbing system of each sampling site for at least six hours, and have been collected without flushing the tap. First draw First-draw samples from residential housing shall be collected from the cold-water kitchen tap or from a bathroom sink tap. First-draw samples from a nonresidential building shall be one liter in volume and shall be collected at an interior tap from which water is typically drawn for consumption. Non-first-draw samples collected in lieu of instead of first-draw samples pursuant to subdivision B 2 e of this section shall be one liter in volume and shall be collected at an interior tap from which water is typically drawn for consumption. First draw First-draw samples may be collected by the owner or the owner may allow residents to collect first draw first-draw samples after instructing the residents of the sampling procedures specified in this subdivision. To avoid problems of residents handling nitric acid, acidification of first draw first-draw samples may be done up to 14 days after the sample is collected. After acidification to resolubilize the metals, the sample must stand in the original container for the time specified in the approved EPA method before the sample can be analyzed. If an owner allows residents to perform sampling, then the owner may not challenge, based on alleged errors in sample collection, the accuracy of sampling results.

c. Each lead service line sample collected pursuant to 12VAC5-590-405 C 4 for the purpose of avoiding replacement shall be one liter in volume and have stood motionless in the lead service line for at least six hours. Lead service line samples shall be collected in one of the following three ways:

(1) At the tap after flushing the volume of water between the tap and the lead service line. The volume of water shall be calculated based on the interior diameter and length of the pipe between the tap and the lead service line;

(2) Tapping directly into the lead service line; or

(3) If the sampling site is a building constructed as a single-family residence, then allowing the water to run until there is a significant change in temperature that would be indicative of water that has been standing in the lead service line.

d. An The owner shall collect each first draw first-draw tap sample from the same sampling site from which the owner collected a previous sample. If, for any reason, the owner cannot gain entry to a sampling site in order to collect a follow-up tap sample, then the owner may collect the follow-up tap sample from another sampling site in the sampling pool as long as the new site meets the same targeting criteria and is within reasonable proximity of the original site.

e. The owner of a nontransient noncommunity waterworks NTNC, or a community waterworks that meets the criteria of 12VAC5-590-405 D 2 e (2) that does not have enough taps that can supply first-draw samples, as defined in subdivision B 2 b of this section, may apply to the district engineer department in writing to substitute non-first-draw samples. If approved by the commissioner department, such owners then an owner shall collect as many first-draw samples from appropriate taps as possible and identify sampling times and locations that would likely result in the longest standing time for the remaining sites.

3. Number of samples.

a. Owners The owner shall collect at least one sample during each monitoring period specified in subdivision B 4 of this section from the number of sites listed in the first column (standard monitoring) of the table in subdivision B 3 c of this section Table 375.1. The owner of a waterworks conducting reduced monitoring under subdivision B 4 d of this section shall collect at least one sample from the number of sites specified in the second column (reduced monitoring) of the table in subdivision B 3 c of this section Table 375.1 during each monitoring period specified in subdivision B 4 d of this section. Such reduced Reduced monitoring sites shall be representative of the sites required for standard monitoring. The commissioner department may specify sampling locations when an owner is conducting reduced monitoring.

b. The owner of a waterworks that has fewer than five drinking water taps that are normally used for human consumption meeting the sample site criteria of subdivision B 1 of this section to reach the required number of sample sites listed in the table in subdivision B 3 c of this section, Table 375.1 shall collect at least one sample from each tap and then shall collect additional samples from those taps on different days during the monitoring period to meet the required number of sites. Alternatively, the commissioner department may allow these owners the owner to collect a number of samples less than the number of sites specified in the table in subdivision B 3 c of this section Table 375.1, provided that 100% of all taps that are normally used for human consumption are sampled. The commissioner must department shall approve this reduction of the minimum number of samples in writing based on a request from the owner or onsite verification by the district engineer designated department representative.

c. The lead and copper tap sample table is as follows:

TABLE 375.1

Tap Samples for Lead and Copper

System SizeWATERWORKS SIZE
(Number of People Served)

Number of SitesNUMBER OF SITES (Standard Monitoring)

Number of SitesNUMBER OF SITES (Reduced Monitoring)

greaterGreater than 100,000

100

50

10,001-100,000

60

30

3,301 to 10,000

40

20

501 to 3,300

20

10

101 to 500

10

5

lessLess than or equal to 100

5

5

4. Timing of monitoring.

a. Initial tap sampling. The first six-month monitoring period for small (serving less than 3,300 population), medium-size medium (serving 3,301 to 50,000 population), and large waterworks (serving greater than 50,000 population) shall be established by the commissioner department.

(1) Owners The owner of all a large waterworks shall monitor during two consecutive six-month periods.

(2) Owners The owner of all a small and medium-size or a medium waterworks shall monitor during each six-month monitoring period until the waterworks exceeds the lead or copper action level AL and is therefore required to implement the corrosion control treatment requirements under 12VAC5-590-405 A 2, in which case the owner shall continue monitoring in accordance with subdivision B 4 b of this section, or the waterworks meets the lead and copper action levels ALs during two consecutive six-month monitoring periods, in which case the owner may reduce monitoring in accordance with subdivision B 4 d of this section.

b. Monitoring after installation of corrosion control and water supply (source water) source water treatment.

(1) The owner of any a large waterworks that installs optimal corrosion control treatment pursuant to 12VAC5-590-405 A 2 d (4) shall monitor during two consecutive six-month monitoring periods by the date specified in 12VAC5-590-405 A 2 d (5).

(2) The owner of any a small or medium-size a medium waterworks that installs optimal corrosion control treatment pursuant to 12VAC5-590-405 A 2 e (5) shall monitor during two consecutive six-month monitoring periods by the date specified in 12VAC5-590-405 A 2 d e (6).

(3) The owner of any a waterworks that installs source water treatment pursuant to 12VAC5-590-405 B 1 c shall monitor during two consecutive six-month monitoring periods by the date specified in 12VAC5-590-405 B 1 d.

c. Monitoring after the commissioner department specifies water quality parameter values for optimal corrosion control. After the commissioner department specifies the values for water quality control parameters under 12VAC5-590-405 A 1 f, the owner shall monitor during each subsequent six-month monitoring period, with the first monitoring period to begin on the date the commissioner department specifies the optimal values.

d. Reduced monitoring.

(1) The owner of a small or medium-size a medium waterworks that meets the lead and copper action levels ALs during each of two consecutive six-month monitoring periods may reduce the number of samples in accordance with subdivision B 3 of this section, and reduce the frequency of sampling to once per year. The owner of a small or a medium water system waterworks collecting fewer than five samples, as specified in subdivision B 3 b of this section, that meets the lead and copper action levels ALs during each of two consecutive six-month monitoring periods may reduce the frequency of sampling to once per year. In no case may the owner reduce the number of samples required below the minimum of one sample per available tap. This sampling shall begin during the calendar year immediately following the end of the second consecutive six-month monitoring period.

(2) The owner of any a waterworks that meets the lead action level AL and maintains the range of values for the water quality control parameters reflecting optimal corrosion control treatment specified by the commissioner department under 12VAC5-590-405 A 1 f during each of two consecutive six-month monitoring periods may reduce the frequency of monitoring to once per year and to reduce the number of lead and copper samples in accordance with subdivision B 3 of this section if the owner receives written approval from the commissioner department. This sampling shall begin during the calendar year immediately following the end of the second consecutive six-month monitoring period. The commissioner must review department shall evaluate monitoring, treatment, and other relevant information submitted by the owner in accordance with 12VAC5-590-530 F 12VAC5-590-532 and must shall notify the owner in writing when a determination is made that the owner is eligible to commence reduced monitoring pursuant to this subdivision. The commissioner must review, department shall evaluate and, where appropriate, revise his the determination when the owner submits new monitoring or treatment data, or when other data relevant to the number and frequency of tap sampling becomes available.

(3) The owner of a small or medium-size a medium waterworks that meets the lead and copper action levels ALs during three consecutive years of monitoring may reduce the frequency of monitoring for lead and copper from annually to once every three years. The owner of any a waterworks that meets the lead action level AL and maintains the range of values for the water quality control parameters reflecting optimal corrosion control treatment specified by the commissioner department under 12VAC5-590-405 A 1 f during three consecutive years of monitoring may reduce the frequency of monitoring from annually to once every three years if the owner receives written approval from the commissioner department. Samples collected once every three years shall be collected no later than every third calendar year. The commissioner must review, department shall evaluate monitoring, treatment, and other relevant information submitted by the owner in accordance with 12VAC5-590-530 F 12VAC5-590-532 and must shall notify the owner in writing when a determination is made that the owner is eligible to commence reduced monitoring pursuant to this subdivision. The commissioner must review, department shall evaluate and where appropriate, revise his the determination when the owner submits new monitoring or treatment data, or when other data relevant to the number and frequency of tap sampling becomes available.

(4) The owner of a waterworks that reduces the number and frequency of sampling shall collect these samples from representative sites included in the pool of targeted sampling sites identified in subdivision B 1 of this section. Owners The owner sampling annually or less frequently shall conduct the lead and copper tap sampling during the months of June, July, August, or September. For a nontransient noncommunity waterworks NTNC that does not operate during the months of June through September, the commissioner department shall designate an alternate monitoring period that represents a time of normal operation for the waterworks. This sampling shall begin in the calendar year immediately following the end of the second consecutive six-month monitoring period of for the owners owner initiating annual monitoring, and during the three-year period following the end of the third consecutive calendar year of annual monitoring for the owners owner initiating triennial monitoring.

(5) The owner of any a waterworks that demonstrates for two consecutive six-month monitoring periods that the tap water lead level computed under 12VAC5-590-385 C is less than or equal to 0.005 mg/L and the tap water copper level computed under 12VAC5-590-385 C is less than or equal to 0.65 mg/L may reduce the number of samples in accordance with subdivision B 3 of this section and reduce the frequency of sampling to once every three calendar years.

(6) The owner of a small or medium-size a medium waterworks subject to reduced monitoring that exceeds the lead or copper action level AL shall resume sampling in accordance with subdivision B 4 c of this section and collect the number of samples specified for standard monitoring under subdivision B 3 of this section. Such The owner shall also conduct water quality parameter monitoring in accordance with subdivision C 2, 3, or 4 subdivisions C 2, C 3, and C 4 of this section (as appropriate) during the monitoring period in which the action level AL is exceeded. The owner of any such a waterworks may resume annual monitoring for lead and copper at the tap at the reduced number of sites specified in subdivision B 3 of this section after it has completed two subsequent consecutive six-month rounds of monitoring that meet the criteria of subdivision B 4 d (1) of this section or may resume triennial monitoring for lead and copper at the reduced number of sites after it demonstrates through subsequent rounds of monitoring that it meets the criteria of either subdivision B 4 d (3) or B 4 d (5) of this section.

(7) The owner of any a waterworks subject to the reduced monitoring frequency that fails to meet the lead action level ALs during any four-month monitoring period or that fails to operate at or above the minimum value or within the range of values for the water quality parameters specified by the commissioner department under 12VAC5-590-405 A 1 f for more than nine days in any six-month period specified in subdivision C 4 of this section shall conduct tap water sampling for lead and copper at the frequency specified in subdivision B 4 c of this section, collect the number of samples specified for standard monitoring under subdivision B 3 of this section, and resume monitoring for water quality parameters within the distribution system in accordance with subdivision C 4 of this section. This standard tap water sampling shall begin no later than the six-month period beginning January 1 of the calendar year following the lead action level AL exceedance or water quality parameter excursion. The owner of such a waterworks may resume reduced monitoring for lead and copper at the tap and for water quality parameters within the distribution system under the following conditions:

(a) The owner may resume annual monitoring for lead and copper at the tap at the reduced number of sites specified in subdivision B 3 of this section after completion of two subsequent six-month rounds of monitoring that meet the criteria of subdivision B 4 d 2 (2) of this section and the owner has received written approval from the commissioner department that it is appropriate to resume reduced monitoring on an annual frequency. This sampling shall begin during the calendar year immediately following the end of the second consecutive six-month monitoring period.

(b) The owner may resume triennial monitoring for lead and copper at the tap at the reduced number of sites after demonstration through subsequent rounds of monitoring that it meets the criteria of either subdivision B 4 d (3) or B 4 d (5) of this section and the owner has received written approval from the commissioner department that it is appropriate to resume triennial monitoring.

(c) The owner may reduce the number of water quality parameter tap water samples required in accordance with subdivision C 5 a of this section and the frequency with which it collects such these samples in accordance with subdivision C 5 b of this section. The owner of such a waterworks may not resume triennial monitoring for water quality parameters at the tap until it demonstrates, in accordance with the requirements of subdivision C 5 b of this section, that it has requalified for triennial monitoring.

(8) The owner of any a waterworks subject to a reduced monitoring frequency under subdivision B 4 d of this section shall notify the district engineer department in writing in accordance with 12VAC5-590-530 F 1 c and 12VAC5-590-532 of any upcoming long-term change in the treatment or addition of a new water source water as described in this section. The commissioner must review department shall evaluate and approve the addition of a new water source water or long-term change in the water treatment before it is implemented by the owner. The commissioner department may require the owner to resume sampling in accordance with subdivision B 4 c of this section and collect the number of samples specified for standard monitoring under subdivision B 3 of this section or take other appropriate steps such as increased water quality parameter monitoring or re-evaluation of its corrosion control treatment given the potentially different water quality considerations.

5. Additional monitoring by owner. The results of any monitoring conducted in addition to the minimum requirements of this section shall be considered by the owner and the commissioner department in making any determinations (i.e., calculating the 90th percentile lead or copper level) under 12VAC5-590-385 C.

6. Invalidation of lead or copper tap water samples. A sample invalidated under this subdivision does not count toward determining lead or copper 90th percentile levels under 12VAC5-590-385 C or toward meeting the minimum monitoring requirements of subdivision B 3 of this section.

a. The commissioner department may invalidate a lead or copper tap water sample if at least one of the following conditions is met.:

(1) The laboratory establishes that improper sample analysis caused erroneous results.

(2) The commissioner department determines that the sample was taken collected from a site that did not meet the site selection criteria of this section.

(3) The sample container was damaged in transit.

(4) There is substantial reason to believe that the sample was subject to tampering.

b. The owner shall report the results of all samples to the district engineer department and all supporting documentation for samples the owner believes should be invalidated.

c. To invalidate a sample under subdivision B 6 a of this section, the decision and the rationale for the decision shall be documented in writing. The commissioner department may not invalidate a sample solely on the grounds that a follow-up sample result is higher or lower than that of the original sample.

d. The owner shall collect a replacement samples sample for any samples a sample invalidated under this section if, after the invalidation of one or more samples, the owner has too few samples to meet the minimum requirements of subdivision B 3 of this section. Any such A replacement samples sample shall be taken collected as soon as possible, but no later than 20 days after the date the commissioner invalidates the sample or by the end of the applicable monitoring period, whichever occurs later. Replacement samples taken collected after the end of the applicable monitoring period shall not also be used to meet the monitoring requirements of a subsequent monitoring period. The replacement samples shall be taken collected at the same locations as the invalidated samples or, if that is not possible, at locations other than those already used for sampling during the monitoring period.

7. Monitoring waivers for small waterworks. The owner of any a small waterworks that meets the criteria of this subdivision may apply to the commissioner department to reduce the frequency of monitoring for lead and copper to once every nine years (i.e., a full waiver) if the owner meets all of the materials criteria specified in subdivision B 7 a of this section and all of the monitoring criteria specified in subdivision B 7 b of this section. The owner of any a small waterworks that meets the criteria in subdivisions B 7 a and B 7 b of this section only for lead, or only for copper, may apply to the commissioner department for a waiver to reduce the frequency of tap water monitoring to once every nine years for that contaminant only (i.e., a partial waiver).

a. Materials criteria. The owner shall demonstrate that the distribution system and service lines and all drinking water supply plumbing and plumbing connected to the waterworks, including plumbing conveying drinking water within all residences and buildings connected to the waterworks, are free of lead-containing materials or copper-containing materials, as those terms are defined in this subdivision, as follows:

(1) Lead. To qualify for a full waiver, or a waiver of the tap water monitoring requirements for lead (i.e., a lead waiver), the owner shall provide certification and supporting documentation to the commissioner department that the waterworks is free of all lead-containing materials, as follows:

(a) It contains no plastic pipes that contain lead plasticizers, or plastic service lines that contain lead plasticizers; and

(b) It is free of lead service lines, lead pipes, lead soldered pipe joints, and leaded brass or bronze alloy fittings and fixtures, unless such fittings and fixtures meet the specifications of any standard established pursuant to 42 USC § 300g-6(e) (SDWA § 1417(e)).

(b) Solders and flux contain no more than 0.2% lead; and

(c) The weighted average of wetted surface of pipes, pipe fittings, plumbing fittings, and plumbing fixtures contain no more than 0.25% lead.

(2) Copper. To qualify for a full waiver, or a waiver of the tap water monitoring requirements for copper (i.e., a copper waiver), the owner shall provide certification and supporting documentation to the commissioner department that the waterworks contains no copper pipes or copper service lines.

b. Monitoring criteria for waiver issuance. The owner shall have completed at least one six-month round of standard tap water monitoring for lead and copper at sites approved by the commissioner department and from the number of sites required by subdivision B 3 of this section and demonstrate that the 90th percentile levels for any and all rounds of monitoring conducted since the owner became free of all lead-containing or copper-containing materials, as appropriate, meet the following criteria:

(1) Lead levels. To qualify for a full waiver, or a lead waiver, the owner shall demonstrate that the 90th percentile lead level does not exceed 0.005 mg/L.

(2) Copper levels. To qualify for a full waiver, or a copper waiver, the owner shall demonstrate that the 90th percentile copper level does not exceed 0.65 mg/L.

c. Commissioner Department approval of waiver application. The commissioner department shall notify the owner of the waiver determination, in writing, setting forth the basis of his the decision and any condition of the waiver. As a condition of the waiver, the commissioner department may require the owner to perform specific activities (e.g., limited monitoring, periodic outreach to customers to remind them to avoid installation of materials that might void the waiver) to avoid the risk of lead or copper concentration of concern in tap water. The owner of a small waterworks shall continue monitoring for lead and copper at the tap as required by subdivisions B 4 a through B 4 d of this section, as appropriate, until it receives written notification from the commissioner department that the waiver has been approved.

d. Monitoring frequency for owners with waivers.

(1) An The owner with a full waiver shall conduct tap water monitoring for lead and copper in accordance with subdivision B 4 d (4) of this section at the reduced number of sampling sites identified in subdivision B 3 of this section at least once every nine years and provide the materials certification specified in subdivision B 7 a of this section for both lead and copper to the commissioner department along with the monitoring results. Samples collected every nine years shall be collected no later than every ninth calendar year.

(2) An The owner with a partial waiver shall conduct tap water monitoring for the waived contaminant in accordance with subdivision B 4 d (4) of this section at the reduced number of sampling sites specified in subdivision B 3 of this section at least once every nine years and provide the materials certification specified in subdivision B 7 a of this section pertaining to the waived contaminant along with the monitoring results. Such an The owner also shall continue to monitor for the nonwaived contaminant in accordance with requirements of subdivisions B 4 a through B 4 d of this section, as appropriate.

(3) Any The owner with a full or partial waiver shall notify the district engineer department in writing in accordance with 12VAC5-590-530 F 1 c 12VAC5-590-532 B 3 of any upcoming long-term change in the treatment or addition of a new source water, as described in that section 12VAC5-590-532. The commissioner must review department shall evaluate and approve the addition of a new source water or a long-term change in water treatment before it is implemented by the owner. The commissioner department has the authority to require the owner to add or modify waiver conditions (e.g., require recertification that the waterworks is free of lead-containing or copper-containing materials; require additional round or rounds of monitoring), if it deems such these modifications are necessary to address treatment or source water changes at the waterworks.

(4) If an owner with a full or partial waiver becomes aware that it is no longer free of lead-containing or copper-containing materials, as appropriate, (e.g., as a result of new construction or repairs), then the owner shall notify the district engineer department in writing no later than 60 days after becoming aware of such a the change.

e. Continued eligibility. If the owner continues to satisfy the requirements of subdivision B 7 d of this section, then the waiver will be renewed automatically, unless any of the conditions listed in subdivisions subdivision B 7 e (1), B 7 e (2), or B 7 e (3) of this section occurs. An The owner whose waiver has been revoked may reapply for a waiver at such time as it when the owner again meets the appropriate materials and monitoring criteria of subdivisions B 7 a and B 7 b of this section.

(1) A waterworks with a full waiver or a lead waiver no longer satisfies the materials criteria of subdivision B 7 a (1)of this section or has a 90th percentile lead level greater than 0.005 mg/L.

(2) A waterworks with a full waiver or a copper waiver no longer satisfies the materials criteria of subdivision B 7 a (2) of this section or has a 90th percentile copper level greater than 0.65 mg/L.

(3) The commissioner department notifies the owner, in writing, that the waiver has been revoked, setting forth the basis of the decision.

f. Requirements following waiver revocation. A waterworks whose full or partial waiver has been revoked by the commissioner department is subject to the corrosion control treatment and lead and copper tap water monitoring requirements, as follows:

(1) If the waterworks exceeds the lead or copper action level AL, then the owner shall implement corrosion control treatment in accordance with the deadlines specified in 12VAC5-590-405 A 2 e and any other applicable requirements of this section.

(2) If the waterworks meets both the lead and the copper action level ALs, then the owner shall monitor for lead and copper at the tap no less frequently than once every three years using the reduced number of sample sites specified in subdivision B 3 of this section.

g. Pre-existing waivers. Waivers for small waterworks approved by the commissioner department in writing prior to before April 11, 2000, shall remain in effect under the following conditions:

(1) If the waterworks has demonstrated that it is both free of lead-containing and copper-containing materials, as required by subdivision B 7 a of this section and that its 90th percentile lead levels and 90th percentile copper levels meet the criteria of subdivision B 7 b of this section, then the waiver remains will remain in effect so long as the owner continues to meet the waiver eligibility criteria of subdivision B 7 e of this section. The first round of tap water monitoring conducted pursuant to subdivision B 7 d of this section shall be completed no later than nine years after the last time the owner has monitored for lead and copper at the tap.

(2) If the waterworks has met the materials criteria of subdivision B 7 a of this section but has not met the monitoring criteria of subdivision B 7 b of this section, then the owner shall conduct one six-month round of standard tap water monitoring for lead and copper at sites approved by the commissioner department demonstrating that it meets the criteria of subdivision B 7 b of this section. Thereafter, the waiver shall remain in effect as long as the owner meets the continued eligibility criteria of subdivision B 7 e of this section. The first round of tap water monitoring conducted pursuant to subdivision B 7 d of this section shall be completed no later than nine years after the round of monitoring conducted pursuant to subdivision B 7 b of this section.

C. Monitoring requirements for water quality parameters. The owners of all large waterworks and all small and medium-size medium waterworks that exceed the lead or copper action level AL shall monitor for water quality parameters in addition to lead and copper in accordance with this section.

1. General requirements.

a. Sample collection methods.

(1) Tap samples shall be representative of water quality throughout the distribution system taking into account the number of persons served, the different sources of water, the different treatment methods employed by the waterworks, and seasonal variability. Tap sampling under this section is not required to be conducted at taps targeted for lead and copper sampling under subdivision B 1 of this section. Owners The owner may find it convenient to conduct tap sampling for water quality parameters at sites approved for coliform sampling.

(2) Samples collected at the entry point or points to the distribution system shall be from locations representative of each source water after treatment. If a waterworks draws water from more than one source water and the sources source waters are combined before distribution, then the owner shall sample at an entry point to the distribution system during periods of normal operating conditions (i.e., when water is representative of all sources source waters being used).

b. Number of samples.

(1) Owners The owner shall collect two tap samples from the standard monitoring number of sites given in Table 375.2 for applicable water quality parameters during each monitoring period specified under subdivision subdivisions C 2 through C 5 of this section from the following number of sites.

TABLE 375.2

Water Quality Monitoring for Lead and Copper

NUMBER OF SITES FOR WATER QUALITY PARAMETERS

System SizeWATERWORKS SIZE

(Number of People Served)

Number of Sites for Water Quality ParametersSTANDARD MONITORING

REDUCED MONITORING

greaterGreater than 100,000

25

10

10,001-100,000

10

7

3,301 to 10,000

3

3

501 to 3,300

2

2

101 to 500

1

1

lessLess than or equal to 100

1

1

(2) Except as provided in subdivision C 3 c of this section, owners the owner shall collect two samples for each applicable water quality parameter at each entry point to the distribution system during each monitoring period specified in subdivision C 2 of this section. During each monitoring period specified in subdivision subdivisions C 3 through, C 4, and C 5 of this section, owners the owner shall collect one sample for each applicable water quality parameter at each entry point to the distribution system.

2. Initial sampling. The owners owner of all a large waterworks shall measure the applicable water quality parameters as specified below at taps and at each entry point to the distribution system during each six-month monitoring period specified in subdivision B 4 a of this section. The owners owner of all a small and medium-size or a medium waterworks shall measure the applicable water quality parameters at the locations specified below during each six-month monitoring period specified in subdivision B 4 a of this section during which the waterworks exceeds the lead or copper action level AL.

a. At taps:

(1) pH;

(2) Alkalinity;

(3) Orthophosphate, when an inhibitor containing a phosphate compound is used;

(4) Silica, when an inhibitor containing a silicate compound is used;

(5) Calcium;

(6) Conductivity; and

(7) Water temperature.

b. At each entry point to the distribution system: all of the applicable parameters listed in subdivisionC 2 aof this section.

3. Monitoring after installation of corrosion control. The owner of any a large waterworks which that installs optimal corrosion control treatment pursuant to 12VAC5-590-405 A 2 d (4) shall measure the water quality parameters at the locations and frequencies specified below during each six-month monitoring period specified in subdivision B 4 b (1)of this section. The owner of any a small or medium-size a medium waterworks that installs optimal corrosion control treatment shall conduct such monitoring during each six-month monitoring period specified in subdivision B 4 b (2) of this section in which the waterworks exceeds the lead or copper action level AL.

a. At taps, two samples for:

(1) pH;

(2) Alkalinity;

(3) Orthophosphate, when an inhibitor containing a phosphate compound is used;

(4) Silica, when an inhibitor containing a silicate compound is used; and

(5) Calcium, when calcium carbonate stabilization is used as part of corrosion control.

b. Except as provided in subdivision C 3 c of this section, at each entry point to the distribution system, at least one sample no less frequently than every two weeks (bi-weekly) (biweekly) for:

(1) pH;

(2) When alkalinity is adjusted as part of optimal corrosion control, a reading of the dosage rate of the chemical used to adjust the alkalinity, and the alkalinity concentration; and

(3) When a corrosion inhibitor is used as part of optimal corrosion control, a reading of the dosage rate of the inhibitor used, and the concentration of orthophosphate or silica (whichever is applicable).

c. The owner of any a groundwater waterworks system may limit entry point sampling described in subdivision C 3 b of this section to those entry points that are representative of water quality and treatment conditions throughout the waterworks. If water from untreated ground water groundwater sources mixes with water from treated ground water groundwater sources, then the owner shall monitor for water quality parameters both at representative entry points receiving treatment and representative entry points receiving no treatment. Prior to Before the start of any monitoring under this subdivision, the owner shall provide to the commissioner department written information identifying the selected entry points and documentation, including information on seasonal variability, sufficient to demonstrate that the sites are representative of water quality and treatment conditions throughout the waterworks.

4. Monitoring after the commissioner department specifies water quality parameter values for optimal corrosion control. After the commissioner department specifies the values for applicable water quality control parameters reflecting optimal corrosion control treatment under 12VAC5-590-405 A 1 f, the owners owner of all a large waterworks shall measure the applicable water quality parameters in accordance with subdivision C 3 of this section and determine compliance with the requirements of 12VAC5-590-405 A 1 g every six months with the first six-month period to begin on either January 1 or July 1, whichever comes first, after the commissioner department specifies the optimal values under 12VAC5-590-405 A 1 f. The owner of any a small or medium-size a medium waterworks shall conduct such monitoring during each six-month monitoring period specified in this subdivision in which the waterworks exceeds the lead or copper action level AL. For the owner of any such a small and medium-size or a medium waterworks that is subject to a reduced monitoring frequency pursuant to subdivision B 4 d of this section at the time of the action level AL exceedance, the start of the applicable six-month period under this subdivision shall coincide with the start of the applicable monitoring period under subdivision B 4 d of this section. Compliance with the commissioner-designated department-designated optimal water quality parameter values shall be determined as specified under 12VAC5-590-405 A 1 g.

5. Reduced monitoring.

a. The owner of any a waterworks that maintains the range of values for the water quality parameters reflecting optimal corrosion control treatment during each of two consecutive six-month monitoring periods under subdivision C 4 of this section shall continue monitoring at the entry point or points to the distribution system as specified in subdivision C 3 b of this section. The owner of such the waterworks may collect two tap samples for applicable water quality parameters from the following reduced number of sites during each six-month monitoring period shown in Table 375.2.

Size of Water System (Number of People Served)

Reduced Number of WQP Monitoring Sites

greater than 100,000

10

10,001 to 100,000

7

3,301 to 10,000

3

501 to 3,300

2

101 to 500

1

less than or equal to 100

1

b. The owner of any a waterworks that maintains the range of values for the water quality parameters reflecting optimal corrosion control treatment specified by the commissioner department under 12VAC5-590-405 A 1 f during three consecutive years of monitoring may reduce the frequency with which the owner collects the number of tap samples for applicable water quality parameters specified in subdivision C 5 of this section from every six months to annually. This sampling begins during the calendar year immediately following the end of the monitoring period in which the third consecutive year of six-month monitoring occurs. The owner of any a waterworks that maintains the range of values for the water quality parameters reflecting optimal corrosion control treatment specified by the commissioner department under 12VAC5-590-405 A 1 f during three consecutive years of annual monitoring under this subdivision may reduce the frequency with which it collects the number of tap samples for applicable water quality parameters specified in subdivision C 5 a of this section from annually to every three years. This sampling begins during the calendar year immediately following the end of the monitoring period in which the third consecutive year of six-month monitoring occurs.

c. The owner of a waterworks may reduce the frequency with which tap samples are collected for applicable water quality parameters specified in subdivision C 5 a of this section to every three years if the owner demonstrates during two consecutive monitoring periods that the tap water lead level at the 90th percentile is less than or equal to the PQL for lead (0.005 mg/L), that the tap water copper level at the 90th percentile is less than or equal to 0.65 mg/L for copper, and that the owner also has maintained the range of values for water quality parameters reflecting optimal corrosion control treatment specified by the commissioner department under 12VAC5-590-405 A 1 f. Monitoring conducted every three years shall be done no later than every third calendar year.

d. The owner of a waterworks that conducts sampling annually shall collect these samples evenly throughout the year so as to reflect seasonal variability.

e. The owner of any a waterworks subject to the reduced monitoring frequency that fails to operate at or above the minimum value or within the range of values for the water quality parameters specified by the commissioner department under 12VAC5-590-405 A 1 f for more than nine days in any six-month period specified in 12VAC5-590-405 A 1 g shall resume distribution system tap water sampling in accordance with the number and frequency requirements in subdivision C 4 of this section. Such an The owner may resume annual monitoring for water quality parameters at the tap at the reduced number of sites specified in subdivision C 5 of this section after completion of two subsequent consecutive six-month rounds of monitoring that meet the criteria of that subdivision or may resume triennial monitoring for water quality parameters at the tap at the reduced number of sites after demonstration through subsequent rounds of monitoring that the criteria of either subdivision C 5 b or C 5 c of this section has been met.

6. Additional monitoring by owners. The results of any monitoring conducted in addition to the minimum requirements of this section shall be considered by the owner and the commissioner department in making any determinations under this section or 12VAC5-590-405 A 1.

D. Monitoring requirements for lead and copper in water supplies (source water).

1. Sample location, collection methods, and number of samples.

a. The owner of a waterworks that fails to meet the lead or copper action level AL on the basis of tap samples collected in accordance with subsection A of this section shall collect lead and copper water supply source water samples in accordance with the following requirements regarding sample location, number of samples, and collection methods:

(1) The owner of a waterworks served by groundwater sources shall take collect a minimum of one sample at every entry point to the distribution system that is representative of each well after treatment (hereafter called a sampling point). The owner shall take collect one sample at the same sampling point unless conditions make another sampling point more representative of each source water or water treatment plant.

(2) The owner of a waterworks served by surface water sources shall take collect a minimum of one sample at every entry point to the distribution system after any application of treatment or in the distribution system at a point that is representative of each source after treatment (hereafter called a sampling point). The owner shall take collect each sample at the same sampling point unless conditions make another sampling point more representative of each source water or water treatment plant. Note that for the purpose of this subdivision, a waterworks served by a surface water source includes waterworks served by a combination of surface water and ground groundwater sources.

(3) If a waterworks draws water from more than one source water and the sources source waters are combined before distribution, then the owner shall collect samples at an entry point to the distribution system during periods of normal operating conditions (i.e., when water is representative of all sources source waters being used).

(4) The commissioner department may reduce the total number of samples that must be analyzed by allowing the use of compositing. Compositing of samples shall be done by certified laboratory personnel. Composite samples from a maximum of five samples are allowed, provided that if the lead concentration in the composite sample is greater than or equal to 0.001 mg/L or the copper concentration is greater than or equal to 0.160 mg/L, then either a follow-up sample shall be collected and analyzed within 14 days at each sampling point included in the composite; or if duplicates of or sufficient quantities from the original samples from each sampling point used in the composite are available, then the owner may use these instead of resampling.

b. Where the results of sampling indicate an exceedance of maximum permissible water supply source water levels established under 12VAC5-590-405 B 4, the commissioner department may require that one additional sample be collected as soon as possible after the initial sample was taken collected (but not to exceed two weeks) at the same sampling point. If a commissioner required confirmation sample required by the department is taken collected for lead or copper, then the results of the initial and confirmation sample shall be averaged in determining compliance with the commissioner-specified department-specified maximum permissible levels. Any A sample value below the method detection limit MDL shall be considered to be zero. Any A value above the method detection limit MDL but below the PQL shall either be considered as the measured value or be considered one-half the PQL. The PQL for lead is equal to 0.005 mg/L, and the PQL for copper is equal to 0.050 mg/L.

2. Monitoring frequency after a waterworks exceeds a tap action level AL. The owner of any a waterworks which that exceeds the lead or copper action level AL at the tap shall collect one water supply source water sample from each entry point to the distribution system no later than six months after the end of the monitoring period during which the lead or copper action level AL was exceeded. For monitoring periods that are annual or less frequent, the end of the monitoring period is September 30 of the calendar year in which the sampling occurs, or if the commissioner department has established an alternate monitoring period, the last day of that period.

3. Monitoring frequency after installation of water supply source water treatment. The owner of any a waterworks that installs water supply source water treatment pursuant to 12VAC5-590-405 B 1 c shall collect an additional source water supply sample from each entry point to the distribution system during two consecutive six-month monitoring periods by the deadline specified in 12VAC5-590-405 B 1 d.

4. Monitoring frequency after the commissioner department specifies maximum permissible water supply source water lead and copper levels or determines that water supply source water treatment is not needed.

a. An The owner shall monitor at the frequency specified below in subdivisions D 4 a (1) and D 4 a (2) of this section in cases where the commissioner department specifies maximum permissible water supply source water lead and copper levels under 12VAC5-590-405 B 1 e or determines that the owner is not required to install water supply source water treatment under 12VAC5-590-405 B 2 b.

(1) The owner of a waterworks using only groundwater shall collect samples once during the three-year compliance period in effect when the applicable commissioner department determination under subdivision D 4 a of this section is made. Owners of such waterworks The owner shall collect samples once during each subsequent compliance period. Triennial samples shall be collected every third calendar year.

(2) The owner of a waterworks using surface water (or a combination of surface water and groundwater) shall collect samples once during each year, the first annual monitoring period to begin during the year in which the applicable commissioner department determination is made under subdivision D 4 a of this section.

b. An The owner is not required to conduct water supply source water sampling for lead or copper if the waterworks meets the action level AL for the specific contaminant in tap water samples during the entire water supply source water sampling period applicable to the waterworks under subdivision D 4 a (1) or D 4 a (2) of this section.

5. Reduced monitoring frequency.

a. The owner of a waterworks using only groundwater may reduce the monitoring frequency for lead and copper in water supplies source waters to once during each nine-year compliance cycle provided that the samples are collected no later than every ninth calendar year and if the owner meets one of the following criteria:

(1) The owner demonstrates that the finished drinking water entering the distribution system has been maintained below the maximum permissible lead and copper concentrations specified by the commissioner department under 12VAC5-590-405 B 1 e during at least three consecutive compliance periods under subdivision D 4 a of this section; or

(2) The commissioner department has determined that water supply source water treatment is not needed and the owner demonstrates that, during the last three consecutive compliance periods in which sampling was conducted under subdivision D 4 a of this section, the concentration of lead in the water supply source water was less than or equal to 0.005 mg/L and the concentration of copper in the water supply source water was less than or equal to 0.65 mg/L.

b. The owner of a waterworks using surface water (or a combination of surface and ground waters) water and groundwater sources) may reduce the monitoring frequency for lead and copper in water supplies source waters to once during each nine-year compliance cycle provided that the samples are collected no later than every ninth calendar year and if the owner meets one of the following criteria:

(1) The owner demonstrates that finished drinking water entering the distribution system has been maintained below the maximum permissible lead and copper concentrations specified by the commissioner department under 12VAC5-590-405 B 1 e for at least three consecutive years; or

(2) The commissioner department has determined that water supply source water treatment is not needed and the owner demonstrates that, during the last three consecutive years, the concentration of lead in the water supply source water was less than or equal to 0.005 mg/L and the concentration of copper in the water supply source water was less than or equal to 0.65 mg/L.

c. Owners The owner of a waterworks that uses a new water supply source water is not eligible for reduced monitoring for lead or copper until concentrations in samples collected from the new supply source water during three consecutive monitoring periods are below the maximum permissible lead and copper concentrations specified in 12VAC5-590-405 B 1 e.

12VAC5-590-376. Surface water and GUDI sources treatment monitoring.

A. The owner of a waterworks that uses a surface water source, a GUDI source, or both and provides filtration treatment shall monitor in accordance with this section.

B. Turbidity measurements shall be performed on representative samples of the filtered water every four hours (or more frequently) that the waterworks serves water to the public. The owner may substitute continuous turbidity monitoring for grab sample monitoring if the owner validates the continuous measurement for accuracy on a regular basis using a protocol approved by the department. For a waterworks using slow sand filtration or filtration treatment other than conventional treatment, direct filtration, or diatomaceous earth filtration, the department may reduce the sampling frequency to once per day if the department determines that less frequent monitoring is sufficient to indicate effective filtration performance. For a waterworks serving 500 or fewer persons, the department may reduce the turbidity sampling frequency to once per day, regardless of the type of filtration treatment used, if the department determines that less frequent monitoring is sufficient to indicate effective filtration performance.

1. The owner of a waterworks supplied by a surface water source, a GUDI source, or both using conventional filtration treatment or direct filtration shall conduct continuous monitoring of turbidity for each individual filter. The turbidimeter shall be calibrated using the procedure specified by the turbidimeter manufacturer. The owner shall record the results of individual filter turbidity monitoring a minimum of every 15 minutes.

2. If there is a failure in the continuous turbidity monitoring equipment, then the owner shall conduct grab sampling every four hours instead of continuous monitoring but for no more than five working days (for a waterworks serving 10,000 or more persons) or 14 days (for a waterworks serving less fewer than 10,000 persons) following the failure of the equipment.

3. If a waterworks serving fewer than 10,000 persons consists of two or fewer filters, continuous monitoring of the CFE may be used instead of individual filter monitoring.

C. The residual disinfectant concentration of the water entering the distribution system shall be monitored continuously, and the lowest and highest values shall be recorded each day. If there is a failure in the continuous monitoring equipment, then grab sampling every four hours shall be conducted instead of continuous monitoring, but such grab sampling shall be conducted for no more than five working days following the failure of the equipment. The owner of a waterworks serving 3,300 or fewer persons may collect grab samples instead of continuous monitoring on an ongoing basis at the frequencies prescribed in Table 376.1.

1. The day's samples cannot be collected at the same time.

2. The sampling intervals are subject to department's evaluation and approval.

3. If at any time the residual disinfectant concentration falls below 0.2 mg/L in a waterworks using grab sampling instead of continuous monitoring, then the owner shall collect a grab sample every four hours until the residual disinfectant concentration is equal to or greater than 0.2 mg/L.

TABLE 376.1

Grab Sample Monitoring Frequency

WATERWORKS SIZE BY POPULATION

SAMPLES/DAY

500 or less

1

501 ‑ 1,000

2

1,000 ‑ 2,500

3

2,501 ‑ 3,300

4

D. The residual disinfectant concentration shall be measured at least at the same points in the distribution system and at the same time as total coliform bacteria are sampled, as specified in 12VAC5-590-370 A and 12VAC5-590-380 D, except that the department may allow the owner of a waterworks that uses a groundwater source along with a surface water source, a GUDI source, or both to collect residual disinfectant samples at points other than the total coliform sampling points if the department determines that these points are more representative of treated (disinfected) water quality within the distribution system. Heterotrophic bacteria, measured as HPC as specified in 12VAC5-590-395 A 2 a (3), may be measured instead of residual disinfectant concentration.

E. The following information on the samples collected in the distribution system in conjunction with total coliform monitoring pursuant to 12VAC5-590-395 A 2 shall be reported monthly to the department by the owner:

1. Number of instances where the residual disinfectant concentration is measured;

2. Number of instances where the residual disinfectant concentration is not measured but heterotropic plate count (HPC) is measured;

3. Number of instances where the residual disinfectant concentration is measured but not detected and no HPC is measured;

4. Number of instances where no residual disinfectant concentration is detected and where the HPC is greater than 500/mL;

5. Number of instances where the residual disinfectant concentration is not measured and HPC is greater than 500/mL; and

6. For the current and previous month the waterworks serves water to the public, the value of "V," in percent, in the following formula:

V = [(c + d + e) / (a + b)] X 100

where

a = the value in subdivision E 1 of this section;

b = the value in subdivision E 2 of this section;

c = the value in subdivision E 3 of this section;

d = the value in subdivision E 4 of this section;

e = the value in subdivision E 5 of this section.

12VAC5-590-377. Physical constituent monitoring.

A. Monitoring to determine compliance with the SMCLs for color, odor, pH, and total dissolved solids as specified in Table 340.3 shall be conducted as follows:

1. The owner shall collect one sample at each groundwater source entry point during each compliance period.

2. The owner shall collect one sample annually at each surface water source entry point, in whole or in part.

B. Onsite daily turbidity measurements may be required to be performed on representative samples collected at each entry point for groundwater sources not required to filter, to determine compliance set forth in 12VAC5-590-379 B. The turbidity monitoring requirements for a waterworks required to filter are specified in 12VAC5-590-376 B.

12VAC5-590-378. Radiological monitoring.

A. The location of sampling points, the radionuclides measured in community waterworks, the frequency, and the timing of sampling within each compliance period shall be established or approved by the department. The department may increase required monitoring where necessary to detect variations within the waterworks. Failure to comply with the sampling schedules in this section will require public notification pursuant to 12VAC5-590-540 A 3.

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