REGULATIONS (28:5 VA.R. November 7, 2011)

 

 

TABLE OF CONTENTS

Register Information Page

Publication Schedule and Deadlines

Petitions for Rulemaking

Regulations

4VAC20-620. Pertaining to Summer Flounder (Final)

4VAC20-720. Pertaining to Restrictions on Oyster Harvest (Final)

4VAC20-910. Pertaining to Scup (Porgy) (Final)

4VAC50-20. Impounding Structure Regulations (Fast-Track)

11VAC5-10. Guidelines for Public Participation in Regulation Development and Promulgation (Fast-Track)

11VAC5-11. Public Participation Guidelines (Fast-Track)

11VAC15-22. Charitable Gaming Rules and Regulations (Proposed)

11VAC15-31. Supplier Regulations (Proposed)

11VAC15-40. Charitable Gaming Regulations (Proposed)

12VAC5-590. Waterworks Regulations (Final)

12VAC5-613. Regulations for Alternative Onsite Sewage Systems (Final)

12VAC35-105. Rules and Regulations for the Licensing of Providers of Mental Health, Mental Retardation, Substance Abuse, the Individual and
Family Developmental Disabilities Support Waiver, and Residential Brain Injury Services (Final)

18VAC85-101. Regulations Governing the Licensure of Radiologic Technologists and Radiologic Technologists-Limited (Final)

18VAC90-20. Regulations Governing the Practice of Nursing (Fast-Track)

18VAC90-20. Regulations Governing the Practice of Nursing (Fast-Track)

18VAC110-20. Regulations Governing the Practice of Pharmacy (Fast-Track)

18VAC150-20. Regulations Governing the Practice of Veterinary Medicine (Fast-Track)

20VAC5-330. Limitations on Disconnection of Electric and Water Service (Final)

General Notices/Errata

 


REGISTER INFORMATION PAGE

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 12 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. 28:2 VA.R. 47-141 September 26, 2011, refers to Volume 28, Issue 2, pages 47 through 141 of the Virginia Register issued on
September  26, 2011.

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, Chairman; Bill Janis, Vice Chairman; James M. LeMunyon; Ryan T. McDougle; Robert L. Calhoun; Frank S. Ferguson; E.M. Miller, Jr.; Thomas M. Moncure, Jr.; Wesley G. Russell, Jr.; Charles S. Sharp; Robert L. Tavenner; Patricia L. West; J. Jasen Eige or Jeffrey S. Palmore.

Staff of the Virginia Register: Jane D. Chaffin, Registrar of Regulations; June T. Chandler, Assistant Registrar.


PUBLICATION SCHEDULE AND DEADLINES

November 2011 through November 2012

Volume: Issue

Material Submitted By Noon*

Will Be Published On

28:5

October 19, 2011

November 7, 2011

28:6

November 2, 2011

November 21, 2011

28:7

November 15, 2011 (Tuesday)

December 5, 2011

28:8

November 30, 2011

December 19, 2011

28:9

December 13, 2011 (Tuesday)

January 2, 2012

28:10

December 27, 2011 (Tuesday)

January 16, 2012

28:11

January 11, 2012

January 30, 2012

28:12

January 25, 2012

February 13, 2012

28:13

February 8, 2012

February 27, 2012

28:14

February 22, 2012

March 12, 2012

28:15

March 7, 2012

March 26, 2012

28:16

March 21, 2012

April 9, 2012

28:17

April 4, 2012

April 23, 2012

28:18

April 18, 2012

May 7, 2012

28:19

May 2, 2012

May 21, 2012

28:20

May 16, 2012

June 4, 2012

28:21

May 30, 2012

June 18, 2012

28:22

June 13, 2012

July 2, 2012

28:23

June 27, 2012

July 16, 2012

28:24

July 11, 2012

July 30, 2012

28:25

July 25, 2012

August 13, 2012

28:26

August 8, 2012

August 27, 2012

29:1

August 22, 2012

September 10, 2012

29:2

September 5, 2012

September 24, 2012

29:3

September 19, 2012

October 8, 2012

29:4

October 3, 2012

October 22, 2012

29:5

October 17, 2012

November 5, 2012

29:6

October 31, 2012

November 19, 2012

*Filing deadlines are Wednesdays unless otherwise specified.


PETITIONS FOR RULEMAKING

TITLE 6. CRIMINAL JUSTICE AND CORRECTIONS

BOARD OF JUVENILE JUSTICE

Agency Decision

Title of Regulation: 6VAC35-140. Standards for Juvenile Residential Facilities.

Statutory Authority: §§ 16.1-309.9, 66-10, and 66-25.1 of the Code of Virginia.

Name of Petitioner: Kate Duvall.

Nature of Petitioner's Request: The petitioner requests the Board of Juvenile Justice to amend its regulation regarding resident classification plans (6VAC35-140-440) in secure residential facilities to provide for a process that implements the policies of the board and is consistent with the goals of the juvenile justice system. The amended regulation should create a classification plan that has due process safeguards, provides for a meaningful ability for a resident's classification level to be lowered, takes into account and gives appropriate weight to factors other than the committing offense(s), and is derived from evidence-based and outcome driven research.

A copy of the full petition is available from Janet P. Van Cuyk, Virginia Department of Juvenile Justice, P.O. Box 1110, Richmond, VA 23218-1110, FAX (804) 371-0773, or email janet.vancuyk@djj.virginia.gov.

Agency Decision: Request denied.

Statement of Reason for Decision: On September 27, 2011, the Board of Juvenile Justice (board) voted to take no action on the petition for rulemaking. In deciding to deny the petition, the board stated that it did not want to initiate the rulemaking process for a change to 6VAC35-140-440 when there are three pending regulatory actions involving that regulatory chapter (proposed 6VAC35-41, 6VAC35-71, and 6VAC35-101). Since these proposed chapters are currently going through the regulatory process, the board expressed a desire to not create confusion by amending the existing regulation when those actions are not final.

Agency Contact: Janet Van Cuyk, Regulatory Coordinator, Department of Juvenile Justice, 700 Centre, 700 East Franklin Street, 4th Floor, Richmond, VA 23219, telephone (804) 371-4097, FAX (804) 371-0773, or email janet.vancuyk@djj.virginia.gov.

VA.R. Doc. No. R11-49; Filed October 10, 2011, 3:09 p.m.

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TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD OF NURSING

Initial Agency Notice

Title of Regulation: 18VAC90-30. Regulations Governing the Licensure of Nurse Practitioners.

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

Name of Petitioner: Cathy Harrison, on behalf of the Virginia Association of Nurse Anesthetists.

Nature of Petitioner's Request: To review 18VAC90-30, Regulations Governing the Licensure of Nurse Practitioners, to eliminate inconsistencies and, to the extent possible within statutory provisions, ensure uniformity with current practice standards for nurse anesthetists.

Agency's Plan for Disposition of Request: In accordance with Virginia law, the petition was filed with the Register of Regulations for publication on November 7, 2011. Comment is requested until November 30, 2011. Following receipt of all comments on the petition to amend regulations, the petition request will be considered by the Board of Medicine at its meeting on December 2, 2011, and by the Board of Nursing at its meeting on January 24, 2012, to decide whether to make any changes to the regulatory language.

Public Comment Deadline: November 30, 2011.

Agency Contact: Elaine J. Yeatts, Agency Regulatory Coordinator, Department of Health Professions, 9960 Mayland Drive, Suite 300, Richmond, VA 23233, telephone (804) 367-4688, or email elaine.yeatts@dhp.virginia.gov.

VA.R. Doc. No. R12-10; Filed October 13, 2011. 9:50 a.m.

 


REGULATIONS

TITLE 4. CONSERVATION AND NATURAL RESOURCES

MARINE RESOURCES COMMISSION

Final Regulation

REGISTRAR'S NOTICE: The following regulations filed by the Marine Resources Commission are exempt 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: 4VAC20-620. Pertaining to Summer Flounder (amending 4VAC20-620-20, 4VAC20-620-30, 4VAC20-620-40).

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

Effective Date: November 1, 2011.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

The amendments (i) open the fall directed fishery the second Monday in November, (ii) allow vessels to land up to 10,000 pounds of Summer Flounder for commercial purposes every 15 days, and (iii) redefine "Chesapeake Bay and its tributaries" as all tidal waters of Virginia, excluding the Potomac River tributaries and the coastal area as defined in 4VAC20-620-20.

4VAC20-620-20. Definitions.

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

"Chesapeake Bay and its tributaries" means all tidal waters of Virginia, including excluding the Potomac River tributaries but excluding and the coastal area as defined in this section.

"Coastal area" means the area that includes Virginia's portion of the Territorial Sea and all of the creeks, bays, inlets, and tributaries on the seaside of Accomack County, Northampton County, including areas east of the causeway from Fisherman Island to the mainland and the City of Virginia Beach, including federal areas and state parks fronting on the Atlantic Ocean and east and south of the point where the shoreward boundary of the Territorial Sea joins the mainland at Cape Henry.

"Land" or "landing" means to (i) enter port with finfish, shellfish, crustaceans, or other marine seafood on board any boat or vessel; (ii) begin offloading finfish, shellfish, crustaceans, or other marine seafood; or (iii) offload finfish, shellfish, crustaceans, or other marine seafood.

"Potomac River tributaries" means all the tributaries of the Potomac River that are within Virginia's jurisdiction beginning with, and including, Flag Pond, thence upstream to the District of Columbia boundary.

"Safe harbor" means that a vessel has been authorized by the commissioner to enter Virginia waters from federal waters solely to either dock temporarily at a Virginia seafood buyer's place of business or traverse the Intracoastal Waterway from Virginia to North Carolina.

4VAC20-620-30. Commercial harvest quota and allowable landings.

A. During each calendar year, allowable commercial landings of Summer Flounder shall be limited to a quota in total pounds calculated pursuant to the joint Mid-Atlantic Fishery Management Council/Atlantic States Marine Fisheries Commission Summer Flounder Fishery Management Plan, as approved by the National Marine Fisheries Service on August 6, 1992 (50 CFR Part 625); and shall be distributed as described in subsections B through G of this section.

B. The commercial harvest of Summer Flounder from Virginia tidal waters for each calendar year shall be limited to 300,000 pounds of the annual quota described in subsection A of this section. Of this amount, 142,114 pounds shall be set aside for Chesapeake Bay-wide harvest.

C. From the first Monday in January through the day preceding the last second Monday in November allowable landings of Summer Flounder harvested outside of Virginia shall be limited to an amount of pounds equal to 70.7% of the quota described in subsection A of this section after deducting the amount specified in subsection B of this section.

D. From the last second Monday in November through December 31, allowable landings of Summer Flounder harvested outside of Virginia shall be limited to an amount of pounds equal to 29.3% of the quota, as described in subsection A of this section, after deducting the amount specified in subsection B of this section, and as may be further modified by subsection E.

E. Should landings from the first Monday in January through the day preceding the last second Monday in November exceed or fall short of 70.7% of the quota described in subsection A of this section, any such excess shall be deducted from allowable landings described in subsection D of this section, and any such shortage shall be added to the allowable landings as described in subsection D of this section. Should the commercial harvest specified in subsection B of this section be projected as less than 300,000 pounds, any such shortage shall be added to the allowable landings described in subsection D of this section.

F. The Marine Resources Commission will give timely notice to the industry of the calculated poundages and any adjustments to any allowable landings described in subsections C and D of this section. It shall be unlawful for any person to harvest or to land Summer Flounder for commercial purposes after the commercial harvest or any allowable landings as described in this section have been attained and announced as such. If any person lands Summer Flounder after the commercial harvest or any allowable landing have been attained and announced as such, the entire amount of Summer Flounder in that person's possession shall be confiscated.

G. It shall be unlawful for any buyer of seafood to receive any Summer Flounder after any commercial harvest or landing quota as described in this section has been attained and announced as such.

4VAC20-620-40. Commercial vessel possession and landing limitations.

A. It shall be unlawful for any person harvesting Summer Flounder outside of Virginia's waters to do any of the following, except as described in subsections B, C, and D of this section:

1. Possess aboard any vessel in Virginia waters any amount of Summer Flounder in excess of 10% by weight of Atlantic croaker or the combined landings, on board a vessel, of black sea bass, scup, squid, scallops and Atlantic mackerel.

2. Possess aboard any vessel in Virginia waters any amount of Summer Flounder in excess of 1,500 pounds landed in combination with Atlantic croaker.

3. Fail to sell the vessel's entire harvest of all species at the point of landing.

B. From the first Monday in March through the day preceding the last second Monday in November, or until it has been projected and announced that 85% of the allowable landings have been taken, it shall be unlawful for any person harvesting Summer Flounder outside of Virginia waters to do any of the following:

1. Possess aboard any vessel in Virginia waters any amount of Summer Flounder in excess of 20,000 pounds.

2. Land Summer Flounder in Virginia for commercial purposes more than twice during each consecutive 15-day period, with the first 15-day period beginning on the first Monday in March.

3. Land in Virginia more than 10,000 pounds of Summer Flounder during each consecutive 15-day period, with the first 15-day period beginning on the first Monday in March.

4. Land in Virginia any amount of Summer Flounder more than once in any consecutive five-day period.

C. From the last second Monday in November through December 31 of each year, or until it has been projected and announced that 85% of the allowable landings have been taken, it shall be unlawful for any person harvesting Summer Flounder outside of Virginia waters to do any of the following:

1. Possess aboard any vessel in Virginia waters any amount of Summer Flounder in excess of 15,000 20,000 pounds.

2. Land Summer Flounder in Virginia for commercial purposes more than twice during each consecutive 12-day 15-day period, with the first 12-day 15-day period beginning on the last second Monday in November.

3. Land in Virginia more than a total of 7,500 10,000 pounds of Summer Flounder during each consecutive 12-day 15-day period, with the first 12-day 15-day period beginning on the last second Monday in November.

4. Land in Virginia any amount of Summer Flounder more than once in any consecutive five-day period.

D. From January 1 through December 31 of each year, any boat or vessel issued a valid federal Summer Flounder moratorium permit and owned and operated by a legal Virginia Commercial Hook-and-Line Licensee that possesses a Restricted Summer Flounder Endorsement shall be restricted to a possession and landing limit of 200 pounds of Summer Flounder, except as described in 4VAC20-620-30 F.

E. Upon request by a marine police officer, the seafood buyer or processor shall offload and accurately determine the total weight of all Summer Flounder aboard any vessel landing Summer Flounder in Virginia.

F. Any possession limit described in this section shall be determined by the weight in pounds of Summer Flounder as customarily packed, boxed and weighed by the seafood buyer or processor. The weight of any Summer Flounder in pounds found in excess of any possession limit described in this section shall be prima facie evidence of violation of this chapter. Persons in possession of Summer Flounder aboard any vessel in excess of the possession limit shall be in violation of this chapter unless that vessel has requested and been granted safe harbor. Any buyer or processor offloading or accepting any quantity of Summer Flounder from any vessel in excess of the possession limit shall be in violation of this chapter, except as described by subsection I of this section. A buyer or processor may accept or buy Summer Flounder from a vessel that has secured safe harbor, provided that vessel has satisfied the requirements described in subsection I of this section.

G. If a person violates the possession limits described in this section, the entire amount of Summer Flounder in that person's possession shall be confiscated. Any confiscated Summer Flounder shall be considered as a removal from the appropriate commercial harvest or landings quota. Upon confiscation, the marine police officer shall inventory the confiscated Summer Flounder and, at a minimum, secure two bids for purchase of the confiscated Summer Flounder from approved and licensed seafood buyers. The confiscated fish will be sold to the highest bidder and all funds derived from such sale shall be deposited for the Commonwealth pending court resolution of the charge of violating the possession limits established by this chapter. All of the collected funds will be returned to the accused upon a finding of innocence or forfeited to the Commonwealth upon a finding of guilty.

H. It shall be unlawful for a licensed seafood buyer or federally permitted seafood buyer to fail to contact the Marine Resources Commission Operation Station prior to a vessel offloading Summer Flounder harvested outside of Virginia. The buyer shall provide to the Marine Resources Commission the name of the vessel, its captain, an estimate of the amount in pounds of Summer Flounder on board that vessel, and the anticipated or approximate offloading time. Once offloading of any vessel is complete and the weight of the landed Summer Flounder has been determined, the buyer shall contact the Marine Resources Commission Operations Station and report the vessel name and corresponding weight of Summer Flounder landed. It shall be unlawful for any person to offload from a boat or vessel for commercial purposes any Summer Flounder during the period of 9 p.m. to 7 a.m.

I. Any boat or vessel that has entered Virginia waters for safe harbor shall only offload Summer Flounder when the state that licenses that vessel requests to transfer quota to Virginia, in the amount that corresponds to that vessel's possession limit, and the commissioner agrees to accept that transfer of quota.

J. After any commercial harvest or landing quota as described in 4VAC20-620-30 has been attained and announced as such, any boat or vessel possessing Summer Flounder on board may enter Virginia waters for safe harbor but shall contact the Marine Resources Commission Operation Center in advance of such entry into Virginia waters.

K. It shall be unlawful for any person harvesting Summer Flounder outside of Virginia waters to possess aboard any vessel, in Virginia, any amount of Summer Flounder, once it has been projected and announced that 100% of the quota described in 4VAC20-620-30 A has been taken.

VA.R. Doc. No. R12-3029; Filed October 27, 2011, 10:59 a.m.

Final Regulation

Title of Regulation: 4VAC20-720. Pertaining to Restrictions on Oyster Harvest (adding 4VAC20-720-85, 4VAC20-720-91).

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

Effective Date: November 1, 2011.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

The amendments (i) establish an oyster seed harvest quota of 120,000 bushels of seed for the James River Seed Area, including the Deep Water Shoal State Replenishment Seed Area, for the 2011/2012 harvest season; (ii) establish that 40,000 bushels of the quota may be harvested from October 1, 2011, through December 31, 2011; and (iii) require a seed oyster harvest permit monthly report on forms provided by the Virginia Marine Resources Commission and daily report through the Interactive-Voice-Response (IVR) system.

4VAC20-720-85. James River seed quota and monitoring.

A. An oyster seed harvest quota of 120,000 bushels of seed is established for the James River Seed Area, including the Deep Water Shoal State Replenishment Seed Area, for the 2011/2012 harvest season. Once it has been projected and announced that the quota of seed has been attained, it shall be unlawful for any person to harvest seed oysters from these areas.

B. Of the 120,000-bushel seed quota described in subsection A of this section no more than 40,000 bushels of this quota may be harvested from October 1, 2011, through December 31, 2011. However, if it is projected and announced that 40,000 bushels of seed have been harvested before December 31, 2011, it shall be unlawful for any person to harvest seed oysters from that date forward until January 1, 2012.

C. Any person harvesting or landing oyster seed from the James River Seed Area, including the Deep Water Shoal State Replenishment Seed Area, shall report monthly on forms provided by the Virginia Marine Resources Commission all harvest of seed oysters. Reporting requirements shall consist of that person's Commercial Fisherman Registration License number, daily number of bushels of seed oysters harvested, harvest rock location, planting location (any lease numbers), and buyer name.

D. It shall be unlawful for any person harvesting seed oysters from the James River Seed Area, including the Deep Water Shoal State Replenishment Seed Area, to fail to contact the Virginia Marine Resources Commission Interactive-Voice-Response (IVR) System within 24 hours of harvest or landing and provide that person's name, Commercial Fisherman Registration License number, time, date, daily number of bushels of seed oysters harvested, harvest rock location, planting location (any lease numbers), and buyer name.

4VAC20-720-91. Harvest permit shall be required for the James River Seed Area, including the Deep Water Shoal State Replenishment Area.

A harvest permit shall be required for the James River Seed Area, including the Deep Water Shoal State Replenishment Seed Area, for the harvesting of seed oysters.  It shall be unlawful for any person to harvest or attempt to harvest seed oysters from the James River Seed Area, including the Deep Water Shoal State Replenishment Seed Area, without first obtaining and having on board a harvest permit.

NOTICE: The following form used in administering the regulation was filed by the agency. The form is not being published; however, online users of this issue of the Virginia Register of Regulations may click on the name to access a form. The form is also available from the agency contact or may be viewed at the Office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia 23219.

FORMS (4VAC20-720)

Daily Harvest Information For James River Seed Area, Including The Deep Water Shoal State Replenishment Seed Area (eff. 11/11).

VA.R. Doc. No. R12-3031; Filed October 27, 2011, 11:12 a.m.

Final Regulation

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

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

Effective Date: November 1, 2011.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

The amendments (i) increase the November 1 through December 31, 2011, commercial scup landing limit quota from 2,000 pounds to 8,000 pounds per trip, (ii) adjust the Winter I landing period from 14 days to 7 days, and (iii) increase the Virginia summer period commercial scup quota from 6,861 pounds to 13,085 pounds.

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

A. During the 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 30,000 pounds of scup.

2. Land in Virginia more than a total of 30,000 pounds of scup during each consecutive 14-day 7-day landing period, with the first 14-day 7-day period beginning on January 2 1.

B. When it is projected and announced that 80% of the coastwide quota for this period has been attained, it shall be unlawful for any person to possess aboard any vessel or to land in Virginia more than a total of 1,000 pounds of scup.

C. During the period November 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 2,000 8,000 pounds of scup.

D. During the period May 1 through October 31 of each year, the commercial harvest and landing of scup in Virginia shall be limited to 6,861 13,085 pounds.

E. 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.

F. 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.

G. 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 50 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 50. 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. R12-3030; Filed October 27, 2011, 11:05 a.m.

VIRGINIA SOIL AND WATER CONSERVATION BOARD

Fast-Track Regulation

Title of Regulation: 4VAC50-20. Impounding Structure Regulations (amending 4VAC50-20-125).

Statutory Authority: § 10.1-604 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 7, 2011.

Effective Date: December 22, 2011.

Agency Contact: David C. Dowling, Policy, Planning, and Budget Director, Department of Conservation and Recreation, 203 Governor Street, Suite 302, Richmond, VA 23219, telephone (804) 786-2291, FAX (804) 786-6141, or email david.dowling@dcr.virginia.gov.

Basis: The Virginia Dam Safety Act (§§ 10.1-604 through 10.1-613 of the Code of Virginia) ensures public safety through the proper and safe design, construction, operation, and maintenance of impounding structures in the Commonwealth. This is accomplished through the effective administration of the Virginia Dam Safety Program. Authority for the program rests with the Virginia Soil and Water Conservation Board and it is administered on behalf of the board by the Department of Conservation and Recreations, Division of Dam Safety and Floodplain Management. The program focuses on enhancing public safety through bringing all impounding structures of regulated size under Regular Operation and Maintenance Certificates. Pursuant to § 10.1-605 of the Code of Virginia, the board is directed to promulgate regulations for impounding structures.

Purpose: This amendment to 4VAC50-20-125 is necessary to allow additional time for compliance for certain dam owners who were issued valid Construction or Alteration Permits by the board under the requirements of the regulations as they existed prior to September 26, 2008. These dam owners have invested significant sums of money in pursuit of the conditions of these permits and have proceeded to upgrade their dams in order to achieve compliance with their requirements. Now, due to changes to the regulations effective September 26, 2008, these dams are no longer fully compliant with all regulatory requirements of the Virginia Dam Safety Program despite their full compliance with all permits and conditions issued by the board.

This regulatory change would allow these dam owners to be considered compliant with the regulations for the first full permit cycle following the completion of their upgrades, and would then require them to meet the same standards that are applicable to all other regulated dams following this time. This will provide an extended timeframe for compliance for these owners to have additional necessary work completed to fully meet the current regulations and continue to protect the health, safety, and welfare of citizens of the Commonwealth. In some cases, this may involve a need for dam break inundation zone mapping and other engineering work; in others, additional spillway upgrades may be needed. Requiring all of these conditions to be met immediately would impose a very significant financial burden on these dam owners at a time when they have just completed a very significant investment in their dams.

Rationale for Using Fast-Track Process: This rulemaking is expected to be noncontroversial as it simply provides an extended timeframe for compliance with additional requirements of the regulations that became effective on September 26, 2008. This extended timeframe will apply only to a very select number of dams, believed to be approximately 14 across the Commonwealth. These dams still meet all requirements of the regulations that were effective prior to that time, and will be brought into full compliance with all amendments to the regulations following the completion of one permit cycle. This amendment is intended to prevent an unreasonable burden from being placed upon these dam owners, who have recently completed significant investments in their dams in a good faith effort to comply with the past requirements imposed by the board.

Substance: Existing 4VAC50-20-125 provides an extended timeframe for compliance with spillway design flood requirements of the regulations for dams that were compliant with the requirements of a previous version of the regulations and were under Regular Operation and Maintenance Certificate as of September 26, 2008. The section contains no provision allowing for any extended compliance timeframe for dams that were under construction or alteration permits as of September 26, 2008.

The proposed amended section would include a new subsection E, which would allow dams that were issued construction or alteration permits by the board under the regulations that were effective prior to September 26, 2008, to be considered compliant with the regulations for one permit cycle following their completion of all conditions of these permits and any accompanying Conditional Operation and Maintenance Certificates. This will allow these dam owners additional time to come into compliance with new regulatory requirements.

Issues: The primary advantage of this regulatory action for owners of affected dams is the provision of an extended timeframe for compliance with the amendments made to the regulations in 2008. This will allow for increased flexibility in preparing for upgrades and will avoid a situation where a second upgrade is needed immediately following an upgrade also undertaken pursuant to direction from the board. The primary disadvantage of this regulatory action will be to downstream property owners, roadway users, and residents, in that these dams will not be fully upgraded to meet all regulatory requirements until following the completion of one six-year permit cycle. However, even in the absence of this regulatory action, it is likely that the affected dams would fall under Conditional Operation and Maintenance Certificates, in which case a compliance schedule would likewise be set and further upgrades would take place over a determined period of time.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Virginia Soil and Water Conservation Board (Board) proposes to grandfather certain dams from requirements of the Boards Virginia Impounding Structure Regulations (Regulations) that first came into effect in 2008 for one six-year permit cycle. These dams had been issued Construction Permits (permits to build a new dam) or Alteration Permits (permits to make repairs and upgrades to existing dams) under a previous version of the Regulations that was effective prior to September 26, 2008. In some cases, these dams later completed construction fully in compliance with the conditions of their permits, only for it to be found that they may not be fully compliant with all changes made to the Regulations effective September 26, 2008. Under the current regulations, there is no provision for grandfathering these dams or providing an extended timeframe for compliance. The proposed regulation would specify that these dams will be issued Regular Operation and Maintenance Certificates, and thus be found in compliance with the Regulations, for one full six year permit cycle. This is contingent on the owner completing all requirements of the permit and any applicable Conditional Operation and Maintenance Certificate by September 26, 2011. Once the full six year permit cycle is complete, the owner would need to meet the standards applied to other dams throughout the Commonwealth.

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

Estimated Economic Impact. Historically dams in Virginia have largely been kept safe under the Regulations that were in effect prior to September 26, 2008 and under which the dams that would be affected by the Boards proposal received their permits. The Regulations that came into effect in 2008 further increase the assurance of safety.

As the Board and Department of Conservation and Recreation point out, the affected dam owners have invested significant sums of money in pursuit of the conditions of their permits and have proceeded to upgrade their dams in order to achieve compliance with their requirements. Now, due to changes to the regulations effective September 26, 2008, these dams are now no longer fully compliant with all regulatory requirements of the Virginia Dam Safety Program despite their full compliance with all permits and conditions issued by the Board.

The proposed regulatory change (grandfathering) would allow these dam owners to be considered compliant with the Regulations for the first full permit cycle following the completion of their upgrades, and would then require them to meet the same standards that are applicable to all other regulated dams following this time. This will provide an extended timeframe for compliance for these owners to have additional necessary work completed to fully meet the current regulations. In some cases, this may involve a need for dam break inundation zone mapping and other engineering work; in others, additional spillway upgrades may be needed.

Requiring all of these conditions to be met immediately would impose a significant financial burden on these dam owners at a time when they have just completed a very significant investment in their dams. The proposed grandfathering allows the affected owners to delay their next significant expenditure on dam safety, while still maintaining safe dams, and still eventually meeting the more stringent requirements of the 2008 Regulations. The benefit of permitting these affected dam owners who have maintained safe dams some additional time to meet the new requirements likely outweighs the cost of a short period of time of small additional safety risk.

Businesses and Entities Affected. Approximately 14 dams across the Commonwealth would be affected by this amendment. Several of the dam owners may be small businesses. Small businesses that are located downstream of these dams may also be impacted should one of these dams fail.

Localities Particularly Affected. The affected dams are located in the following counties: Albemarle 2, Gloucester 1, Hanover 1, King William 1, Lancaster 1, Louisa 1, New Kent 3, Powhatan 2, and Spotsylvania 2.

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

Effects on the Use and Value of Private Property. The proposed grandfathering will allow owners of the approximately 14 dams to defer required work for up to six years.

Small Businesses: Costs and Other Effects. The proposed grandfathering will allow small business owners of the affected dams to defer required work for up to six years.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely impact small businesses.

Real Estate Development Costs. The proposed grandfathering may delay some development costs, but will not significantly reduce costs in the long run.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPBs best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The Department of Conservation and Recreation concurs with the economic impact analysis prepared by the Department of Planning and Budget regarding the Impounding Structure Regulations (4VAC50-20).

Summary:

The proposed amendments grandfather certain dams from requirements of the regulation that first came into effect in 2008 for one six-year permit cycle. These dams had been issued Construction Permits (permits to build a new dam) or Alteration Permits (permits to make repairs and upgrades to existing dams) under a previous version of the regulations that was effective prior to September 26, 2008. In some cases, these dams later completed construction fully in compliance with the conditions of their permits, only for it to be found that they may not be fully compliant with all changes made to the regulations effective September 26, 2008. Under the current regulations, there is no provision for grandfathering these dams or providing an extended timeframe for compliance. The proposed amendments specify that these dams will be issued Regular Operation and Maintenance Certificates, and thus be found in compliance with the regulations, for one full six-year permit cycle. After this time, they would need to meet the standards applied to other dams throughout the Commonwealth.

4VAC50-20-125. Delayed effective date for Spillway Design Flood requirements for impounding structures.

A. If an impounding structure has been determined to have an adequate spillway capacity prior to September 26, 2008, and is currently operating under a Regular Operation and Maintenance Certificate, but will now require spillway modifications due to changes in these regulations, the owner shall submit to the board an Alteration Permit Application in accordance with 4VAC50-20-80 to address spillway capacity at the time of the expiration of their Regular Operation and Maintenance Certificate or by September 26, 2011, whichever is later. The Alteration Permit Application shall contain a construction sequence with milestones for completing the necessary improvements within five years of Alteration Permit issuance. The board may approve an extension of the prescribed time frame for good cause. Should the owner be able to demonstrate that no spillway capacity change is necessary, the impounding structure may be found to be in compliance with this chapter.

B. In accordance with 4VAC50-20-105, the owner shall submit the Operation and Maintenance Certificate Application (Operation and Maintenance Certificate Application for Virginia Regulated Impounding Structures), the Emergency Action Plan or Emergency Preparedness Plan, and the Inspection Report (Annual Inspection Report for Virginia Regulated Impounding Structures) 90 days prior to the expiration of the Regular Operation and Maintenance Certificate.

C. If circumstances warrant more immediate repairs to the impounding structure, the board may direct alterations to the spillway to be completed sooner.

D. During this delay period, owners are required to address other deficiencies that may exist that are not related to the spillway design flood.

E. Any impounding structure owner who, as of September 26, 2008, held an Alteration Permit or Construction Permit under the requirements of this chapter that were effective prior to that date, who has maintained this permit as valid, and who completes all requirements of such permit and any applicable Conditional Operation and Maintenance Certificate by September 26, 2011, shall not be required to meet new requirements of this chapter that became effective on September 26, 2008, until the completion of the first six-year certificate cycle following completion of all requirements of his permit and any applicable certificates. During this six-year period, the owner may be issued a Regular Operation and Maintenance Certificate should the impounding structure otherwise be eligible for such certificate.

VA.R. Doc. No. R12-2491; Filed October 17, 2011, 2:39 p.m.

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TITLE 11. GAMING

STATE LOTTERY BOARD

Fast-Track Regulation

Titles of Regulations: 11VAC5-10. Guidelines for Public Participation in Regulation Development and Promulgation (repealing 11VAC5-10-10 through 11VAC5-10-80).

11VAC5-11. Public Participation Guidelines (adding 11VAC5-11-10 through 11VAC5-11-110).

Statutory Authority: §§ 2.2-4007.02 and 58.1-4007 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: December 7, 2011.

Effective Date: December 22, 2011.

Agency Contact: Mitch Belton, Contract and Project Coordinator, State Lottery Department, 900 East Main Street, 9th Floor, Richmond, VA 23219, telephone (804) 692-7136, FAX (804) 692-7325, or email mbelton@valottery.com.

Basis: Under § 2.2-4007.02 of the Code of Virginia, every rulemaking body in Virginia is required to adopt public participation guidelines and to use those guidelines in the development of its regulations. Chapter 321 of the 2008 Acts of Assembly requires agencies to adopt model public participation guidelines issued by the Department of Planning and Budget, or adopt the model guidelines with necessary amendments.

Purpose: The purpose of this regulatory action is to adopt model public participation guidelines as required by the Virginia General Assembly.

Rationale for Using Fast Track Process: Utilization of the fast track regulatory process is warranted due to the fact that (i) the proposed regulation is required by the General Assembly, and (ii) the proposed regulation uses the model public participation guidelines developed by the Department of Planning and Budget as its basis. Accordingly, this action is not expected to be controversial.

Substance: This action creates a new chapter within the existing regulation and uses text verbatim, except applicable agency references and dates, etc., from the applicable text of the model public participation guidelines developed by the Department of Planning and Budget.

Issues: The advantage to the Virginia Lottery Board is that the new public participation guidelines will provide more consistent regulatory participation for affected citizens, stakeholders, and customers. The Lottery Department sees no disadvantages to the public, agency, or Commonwealth in adopting this regulation.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The State Lottery Department (Lottery) proposes to adopt the model public participation guidelines developed by the Department of Planning and Budget in consultation with the Office of the Attorney General (as required by Chapter 321 of the 2008 Acts of Assembly).

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

Estimated Economic Impact. Pursuant to Chapter 321 of the 2008 Acts of Assembly, the Department of Planning and Budget, in consultation with the Office of the Attorney General, (i) developed model public participation guidelines (PPGs) and (ii) provided these model PPGs to each agency that has the authority to promulgate regulations. The purpose of the model PPG legislation is threefold: first, to ensure that each agency or board has a current set of PPGs in place.1 Second, to ensure that each agency or boards PPGs incorporate the use of technology such as the Virginia Regulatory Town Hall, email to the extent possible, and the use of electronic mailing lists. Last, but perhaps most importantly, to have uniform guidelines in place to facilitate citizen participation in rulemaking and to make those guidelines consistent, to the extent possible, among boards and agencies.

As described above, promulgating the model PPGs will be beneficial in that the Lottery PPGs will: 1) reflect current information, 2) incorporate the use of technology such as the Virginia Regulatory Town Hall, email to the extent possible, and the use of electronic mailing lists, and 3) be largely consistent with other agency PPGs which will facilitate citizen participation in rulemaking.

Businesses and Entities Affected. All businesses, other entities, or individuals interested in participating in the regulatory process as it relates to Lotterys regulations are potentially affected by the agencys public participation guidelines.

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

Projected Impact on Employment. The proposal amendments do not directly affect employment.

Effects on the Use and Value of Private Property. The proposal amendments do not directly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments do not directly affect small businesses.

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

Real Estate Development Costs. The proposed amendments do not directly affect real estate development costs.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

_____________________________

1Some agencies and boards have not updated their PPGs since the mid-late 1980s.

Agency's Response to Economic Impact Analysis: The State Lottery Department concurs with the Department of Planning and Budget's economic impact analysis.

Summary:

The regulations repeal existing regulations on regulation development and public participation and incorporate the model public participation guidelines developed by the Department of Planning and Budget pursuant to Chapter 321 of the 2008 Acts of Assembly. Highlights of the model public participation guidelines include the addition of negotiated rulemaking panels and regulatory advisory panels and instructions for notification.

CHAPTER 11
PUBLIC PARTICIPATION GUIDELINES

Part I
Purpose and Definitions

11VAC5-11-10. Purpose.

The purpose of this chapter is to promote public involvement in the development, amendment, or repeal of the regulations of the State Lottery Department. This chapter does not apply to regulations, guidelines, or other documents exempted or excluded from the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

11VAC5-11-20. Definitions.

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

"Administrative Process Act" means Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

"Agency" means the State Lottery Department, which is the unit of state government empowered by the agency's basic law to make regulations or decide cases. Actions specified in this chapter may be fulfilled by state employees as delegated by the agency.

"Basic law" means provisions in the Code of Virginia that delineate the basic authority and responsibilities of an agency.

"Commonwealth Calendar" means the electronic calendar for official government meetings open to the public as required by § 2.2-3707 C of the Freedom of Information Act.

''Negotiated rulemaking panel'' or ''NRP'' means an ad hoc advisory panel of interested parties established by an agency to consider issues that are controversial with the assistance of a facilitator or mediator, for the purpose of reaching a consensus in the development of a proposed regulatory action.

"Notification list" means a list used to notify persons pursuant to this chapter. Such a list may include an electronic list maintained through the Virginia Regulatory Town Hall or other list maintained by the agency.

"Open meeting" means any scheduled gathering of a unit of state government empowered by an agency's basic law to make regulations or decide cases, which is related to promulgating, amending or repealing a regulation.

"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, agency, or instrumentality thereof.

"Public hearing" means a scheduled time at which members or staff of the agency will meet for the purpose of receiving public comment on a regulatory action.

"Regulation" means any statement of general application having the force of law, affecting the rights or conduct of any person, adopted by the agency in accordance with the authority conferred on it by applicable laws.

"Regulatory action" means the promulgation, amendment, or repeal of a regulation by the agency.

"Regulatory advisory panel" or "RAP" means a standing or ad hoc advisory panel of interested parties established by the agency for the purpose of assisting in regulatory actions.

"Town Hall" means the Virginia Regulatory Town Hall, the website operated by the Virginia Department of Planning and Budget at www.townhall.virginia.gov, which has online public comment forums and displays information about regulatory meetings and regulatory actions under consideration in Virginia and sends this information to registered public users.

"Virginia Register" means the Virginia Register of Regulations, the publication that provides official legal notice of new, amended, and repealed regulations of state agencies, which is published under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.

Part II
Notification of Interested Persons

11VAC5-11-30. Notification list.

A. The agency shall maintain a list of persons who have requested to be notified of regulatory actions being pursued by the agency.

B. Any person may request to be placed on a notification list by registering as a public user on the Town Hall or by making a request to the agency. Any person who requests to be placed on a notification list shall elect to be notified either by electronic means or through a postal carrier.

C. The agency may maintain additional lists for persons who have requested to be informed of specific regulatory issues, proposals, or actions.

D. When electronic mail is returned as undeliverable on multiple occasions at least 24 hours apart, that person may be deleted from the list. A single undeliverable message is insufficient cause to delete the person from the list.

E. When mail delivered by a postal carrier is returned as undeliverable on multiple occasions, that person may be deleted from the list.

F. The agency may periodically request those persons on the notification list to indicate their desire to either continue to be notified electronically, receive documents through a postal carrier, or be deleted from the list.

11VAC5-11-40. Information to be sent to persons on the notification list.

A. To persons electing to receive electronic notification or notification through a postal carrier as described in 11VAC5-11-30, the agency shall send the following information:

1. A notice of intended regulatory action (NOIRA).

2. A notice of the comment period on a proposed, a reproposed, or a fast-track regulation and hyperlinks to, or instructions on how to obtain, a copy of the regulation and any supporting documents.

3. A notice soliciting comment on a final regulation when the regulatory process has been extended pursuant to § 2.2-4007.06 or 2.2-4013 C of the Code of Virginia.

B. The failure of any person to receive any notice or copies of any documents shall not affect the validity of any regulation or regulatory action.

Part III
Public Participation Procedures

11VAC5-11-50. Public comment.

A. In considering any nonemergency, nonexempt regulatory action, the agency shall afford interested persons an opportunity to submit data, views, and arguments, either orally or in writing, to the agency. Such opportunity to comment shall include an online public comment forum on the Town Hall.

1. To any requesting person, the agency shall provide copies of the statement of basis, purpose, substance, and issues; the economic impact analysis of the proposed or fast-track regulatory action; and the agency's response to public comments received.

2. The agency may begin crafting a regulatory action prior to or during any opportunities it provides to the public to submit comments.

B. The agency shall accept public comments in writing after the publication of a regulatory action in the Virginia Register as follows:

1. For a minimum of 30 calendar days following the publication of the notice of intended regulatory action (NOIRA).

2. For a minimum of 60 calendar days following the publication of a proposed regulation.

3. For a minimum of 30 calendar days following the publication of a reproposed regulation.

4. For a minimum of 30 calendar days following the publication of a final adopted regulation.

5. For a minimum of 30 calendar days following the publication of a fast-track regulation.

6. For a minimum of 21 calendar days following the publication of a notice of periodic review.

7. Not later than 21 calendar days following the publication of a petition for rulemaking.

C. The agency may determine if any of the comment periods listed in subsection B of this section shall be extended.

D. If the Governor finds that one or more changes with substantial impact have been made to a proposed regulation, he may require the agency to provide an additional 30 calendar days to solicit additional public comment on the changes in accordance with § 2.2-4013 C of the Code of Virginia.

E. The agency shall send a draft of the agency's summary description of public comment to all public commenters on the proposed regulation at least five days before final adoption of the regulation pursuant to § 2.2-4012 E of the Code of Virginia.

11VAC5-11-60. Petition for rulemaking.

A. As provided in § 2.2-4007 of the Code of Virginia, any person may petition the agency to consider a regulatory action.

B. A petition shall include but is not limited to the following information:

1. The petitioner's name and contact information;

2. The substance and purpose of the rulemaking that is requested, including reference to any applicable Virginia Administrative Code sections; and

3. Reference to the legal authority of the agency to take the action requested.

C. The agency shall receive, consider and respond to a petition pursuant to § 2.2-4007 and shall have the sole authority to dispose of the petition.

D. The petition shall be posted on the Town Hall and published in the Virginia Register.

E. Nothing in this chapter shall prohibit the agency from receiving information or from proceeding on its own motion for rulemaking.

11VAC5-11-70. Appointment of regulatory advisory panel.

A. The agency may appoint a regulatory advisory panel (RAP) to provide professional specialization or technical assistance when the agency determines that such expertise is necessary to address a specific regulatory issue or action or when individuals indicate an interest in working with the agency on a specific regulatory issue or action.

B. Any person may request the appointment of a RAP and request to participate in its activities. The agency shall determine when a RAP shall be appointed and the composition of the RAP.

C. A RAP may be dissolved by the agency if:

1. The proposed text of the regulation is posted on the Town Hall, published in the Virginia Register, or such other time as the agency determines is appropriate; or

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act.

11VAC5-11-80. Appointment of negotiated rulemaking panel.

A. The agency may appoint a negotiated rulemaking panel (NRP) if a regulatory action is expected to be controversial.

B. An NRP that has been appointed by the agency may be dissolved by the agency when:

1. There is no longer controversy associated with the development of the regulation;

2. The agency determines that the regulatory action is either exempt or excluded from the requirements of the Administrative Process Act; or

3. The agency determines that resolution of a controversy is unlikely.

11VAC5-11-90. Meetings.

Notice of any open meeting, including meetings of a RAP or NRP, shall be posted on the Virginia Regulatory Town Hall and Commonwealth Calendar at least seven working days prior to the date of the meeting. The exception to this requirement is any meeting held in accordance with § 2.2-3707 D of the Code of Virginia allowing for contemporaneous notice to be provided to participants and the public.

11VAC5-11-100. Public hearings on regulations.

A. The agency shall indicate in its notice of intended regulatory action whether it plans to hold a public hearing following the publication of the proposed stage of the regulatory action.

B. The agency may conduct one or more public hearings during the comment period following the publication of a proposed regulatory action.

C. An agency is required to hold a public hearing following the publication of the proposed regulatory action when:

1. The agency's basic law requires the agency to hold a public hearing;

2. The Governor directs the agency to hold a public hearing; or

3. The agency receives requests for a public hearing from at least 25 persons during the public comment period following the publication of the notice of intended regulatory action.

D. Notice of any public hearing shall be posted on the Town Hall and Commonwealth Calendar at least seven working days prior to the date of the hearing. The agency shall also notify those persons who requested a hearing under subdivision C 3 of this section.

11VAC5-11-110. Periodic review of regulations.

A. The agency shall conduct a periodic review of its regulations consistent with:

1. An executive order issued by the Governor pursuant to § 2.2-4017 of the Administrative Process Act to receive comment on all existing regulations as to their effectiveness, efficiency, necessity, clarity, and cost of compliance; and

2. The requirements in § 2.2-4007.1 of the Administrative Process Act regarding regulatory flexibility for small businesses.

B. A periodic review may be conducted separately or in conjunction with other regulatory actions.

C. Notice of a periodic review shall be posted on the Town Hall and published in the Virginia Register.

VA.R. Doc. No. R12-1447; Filed October 19, 2011, 2:26 p.m.

CHARITABLE GAMING BOARD

Proposed Regulation

Titles of Regulations: 11VAC15-22. Charitable Gaming Rules and Regulations (repealing 11VAC15-22-10 through 11VAC15-22-120).

11VAC15-31. Supplier Regulations (repealing 11VAC15-31-10 through  11VAC15-31-60).

11VAC15-40. Charitable Gaming Regulations (adding 11VAC15-40-10 through 11VAC15-40-430).

Statutory Authority: § 18.2-340.15 of the Code of Virginia.

Public Hearing Information:

December 13, 2011 - 10:15 a.m. - Oliver Hill Building, 102 Governor Street, 2nd Floor Board Room, Richmond, VA

Public Comment Deadline: January 6, 2012.

Agency Contact: Erin Williams, Policy and Planning Coordinator, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-1308, FAX (804) 371-7479, TTY (800) 828-1120, or email erin.williams@vdacs.virginia.gov.

Basis: Section 18.2-340.15 of the Code of Virginia authorizes the Charitable Gaming Board to prescribe regulations and conditions under which charitable gaming is conducted in Virginia to ensure consistency with the purpose for which such gaming is permitted. Additionally, Chapter 264 of the 2007 Acts of Assembly amended the statute by requiring changes to the charitable gaming regulations in order to implement electronic games of chance systems. The Charitable Gaming Board approved the promulgation of a single regulation that will consolidate the two current regulations and provide for the implementation of regulations regarding electronic games of chance systems.

Purpose: The existence of two separate but closely interrelated regulations governing charitable gaming has resulted in duplicative, burdensome, and unnecessarily lengthy efforts in those instances when the agency has had to amend both regulations in response to a single change in the statute, as was the case with the passage of HB 1998 (Chapter 264 of the 2007 Acts of Assembly). The promulgation of a single, consolidated regulation will greatly facilitate the agency's administration of the charitable gaming program.

Proponents of the legislation that resulted in the authorization of electronic games of chance systems in the Commonwealth have indicated that charitable gaming organizations will see significant increases in both attendance and revenues through the offering of electronic pull-tabs at their gaming events. Attendance at charitable gaming events has dropped considerably in the last few years, in some cases by as much as 40%, on account of changing demographics, as well as the economic downturn. The ability to offer electronic pull-tabs is expected to attract younger players to bingo halls across Virginia, to lower the gaming organizations overhead costs through reduced expenses for paper supplies, and to improve the organizations ability to meet the 10% use of proceeds required by the Charitable Gaming Board.

Substance: The proposed regulation consolidates the substance of the current regulation titled Charitable Gaming Rules and Regulations, 11VAC15-22, as well as the substance of the current regulation titled Supplier Regulations, 11VAC15-31. Substantive changes include the addition of provisions regarding full automatic daubing of bingo numbers and progressive bingo games, both of which were authorized by Chapter 429 of the 2010 Acts of Assembly. The proposed regulations reduce the time required between gaming activities from one hour to 30 minutes. The existing regulations pertaining to electronic bingo devices (which are devices that support conventional bingo games and should not be confused with devices that support electronic pull-tabs) were modified to permit the use of electronic bingo device systems that do not identify at the point of sale the number of the electronic bingo device issued to the player.

The section pertaining to electronic games of chance systems includes rules for the conduct of electronic games of chance, requirements for manufacturers and suppliers of electronic games of chance systems, and construction and other standards for electronic games of chance systems.

Issues: The inclusion of provisions pertaining to electronic games of chance systems will provide charitable gaming organizations a new option to promote greater attendance at their gaming events. Greater attendance should increase the revenue organizations generate from their charitable gaming activities, which, in turn, should facilitate compliance with applicable requirements regarding the charitable use of organizations proceeds.

The promulgation of a single, consolidated regulation will greatly facilitate the agency's administration of the charitable gaming program by eliminating the need for duplicative regulatory actions due to the existence of two interrelated regulations.

Special interest groups are monitoring the progress of this regulation to ensure that it does not lead to casino-style gambling or expand the type of gaming that is allowed in the Commonwealth. The agency has involved these stakeholders during relevant discussions; the agency is not aware of specific concerns with the proposed regulations.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Virginia Charitable Gaming Board (Board) proposes to consolidate two separate regulations, Charitable Gaming Rules and Regulations, 11VAC15-22, and Supplier Regulations, 11VAC15-31, into one regulation that will also establish rules regarding electronic games of chance systems for charitable gaming.

Result of Analysis. The benefits likely exceed the costs for one or more proposed changes. There is insufficient data to accurately compare the magnitude of the benefits versus the costs for other changes.

Estimated Economic Impact. Chapter 264 of the 2007 Virginia Acts of Assembly authorized the use of electronic games of chance, also known as electronic pull tabs, by charitable gaming organizations. The chapter also specifies that no person shall offer to sell, sell or otherwise provide charitable gaming supplies to any qualified organization and no manufacturer shall distribute electronic games of chance systems for charitable gaming in the Commonwealth unless and until such person has made application for and has been issued a permit by the Department (of Agriculture and Consumer Services). In practice electronic games of chance have not yet been available for charitable gaming since the Board has not yet promulgated regulations that would enable the issuing of a permit for the distribution of electronic games of chance. In the current action the Board proposes rules that would enable the distribution and use of electronic games of chance to go forward.

In calendar year 2009, the most recent year data is available, there were $279 million in gross receipts for charitable gaming in Virginia.1 Based on the experiences of other states which introduced electronic pull tabs, the Virginia Department of Agriculture and Consumer Services (Department) expects gross receipts from charitable gaming to at least triple with the advent of electronic pull tabs. Manufacturers and suppliers of electronic games of chance will certainly benefit with increased business. Purchasing and using electronic games of chance for fundraising is of course optional for charitable organizations; so the charitable organizations will only purchase and use them if they believe they will provide a net benefit through increased revenue available for their charitable purposes. A significant portion of Virginians believe that there is a negative impact on morality associated with gambling. The introduction and use of electronic pull tabs will very likely increase at least the dollar value of gambling in Virginia. It is beyond the scope of this analysis to compare the benefits of increased business for manufacturers and suppliers of electronic games of chance and the benefits of increased revenue for charitable organizations to use for their charitable purposes to the potential negative moral impact of increased gambling. That is intrinsically a subjective value judgment.

The Board proposes several other changes that will have some impact. The fee for a permit change would be eliminated. This is obviously beneficial for permit holders. The Board believes funds for operation are sufficient without charging this fee. The Department would use compliance agreements rather than consent orders and remedial business plans rather than corrective action plans. This would be less heavy handed and would likely create a more cooperative relationship between the Department and charitable organizations. The required break between charitable gaming activities would be reduced from one hour to 30 minutes. This would enable more time to be devoted to fundraising while still allotting sufficient transition time between charitable organizations. All of these changes provide benefit without significant cost.

Specific dollar amounts included in the current regulations that are prescribed by the Code of Virginia would be replaced by references to sections of the Code that prescribe these amounts. This is beneficial since when and if these dollar amounts are changed in the Code the dollar amounts currently listed in the regulations would then be in conflict with the Code. When the Code and regulations conflict, the Code prevails. Thus, persons who read the regulations would be misled under these circumstances. Amending regulations can take a significant amount of time. Thus, replacing specified dollar amounts included in the current regulations that are prescribed by the Code with references to sections of the Code that prescribe these amounts would enable the regulations to always be accurate concerning the effective legal dollar figures. Thus this proposed change clearly provides a net benefit.

The current regulations state that volunteer game workers may not play bingo at any session they have worked or purchase instant bingo, pull-tab, or seal card products from organizations they assist on the day they have volunteered or from any deal they have helped sell, whichever is later. Under the proposed regulations, no one involved in the conduct of bingo may play bingo at any session they have worked or intend to work. No one involved in the sale or redemption of any instant bingo, pull-tabs, seal cards, or electronic game cards may purchase directly or through others instant bingo, pull-tab, seal card, or electronic game card products from organizations they assist on the day they have worked or from any deal they have helped sell or redeem, whichever occurs later. Thus paid workers as well as volunteers are prohibited from gambling in games in which they work on the days they work as well as deals they have helped sell or redeem. Paid workers and volunteers could still gamble on other days provided that the games are not deals they have helped sell or redeem. This proposed change does introduce a new limitation on paid workers, but it seems a reasonable change to help ensure fairness while still permitting paid workers the opportunity to participate in games in which they are not directly involved.

Businesses and Entities Affected. The proposed regulations will potentially affect the approximate 400 qualified charitable gaming organizations and 19 charitable gaming suppliers in the Commonwealth as well as manufacturers of electronic games of chance systems. The Virginia Department of Agriculture and Consumer Services estimates that the majority of the charitable gaming suppliers are small businesses.

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

Projected Impact on Employment. The proposal to establish rules for electronic games of chance systems will enable the distribution and use of electronic games of chance to go forward. This will likely significantly increase business for manufacturers and suppliers of electronic games of chance. Employment at some of these firms will likely moderately increase.

Effects on the Use and Value of Private Property. The proposal to establish rules for electronic games of chance systems will enable the distribution and use of electronic games of chance to go forward. This will likely significantly increase business for manufacturers and suppliers of electronic games of chance. The net value of these firms will likely increase.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to increase costs for small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly adversely affect small businesses.

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

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

____________________________

1Data source: Virginia Department of Agriculture and Consumer Services

Agency's Response to Economic Impact Analysis: The Department of Agriculture and Consumer Services concurs with the analysis of the Department of Planning and Budget.

Summary:

The proposed regulation consists of five parts pertaining to (i) definitions, (ii) charitable gaming organizations and the conduct of charitable gaming, (iii) charitable gaming suppliers, (iv) electronic games of chance systems, and (v) administrative process.

The section pertaining to charitable gaming organizations and the conduct of charitable gaming reflects the substance of the current regulation titled Charitable Gaming Rules and Regulations, 11VAC15-22. The section pertaining to charitable gaming suppliers reflects the substance of the current regulation titled Supplier Regulations, 11VAC15-31. The section pertaining to electronic games of chance systems includes rules for the conduct of electronic games of chance, requirements for manufacturers and suppliers of electronic games of chance systems, and construction and other standards for electronic games of chance systems. The sections pertaining to definitions and the administrative process consolidate the definitions and administrative process sections found in the current regulations, 11VAC15-22 and 11VAC15-31.

CHAPTER 40
CHARITABLE GAMING REGULATIONS

Part 1
Definitions

11VAC15-40-10. Definitions.

In addition to the definitions contained in § 18.2-340.16 of the Code of Virginia, the words and terms below when used in this regulation shall have the following meanings unless the context clearly indicates otherwise:

"Agent" means any person authorized by a supplier to act for or in place of such supplier.

"Board" means the Virginia Charitable Gaming Board.

"Board of directors" means the board of directors, managing committee, or other supervisory body of a qualified organization.

"Calendar day" means the period of 24 consecutive hours commencing at 12:01 a.m. and concluding at midnight.

"Calendar week" means the period of seven consecutive calendar days commencing at 12:01 a.m. on Sunday and ending at midnight the following Saturday.

"Cash" means United States currency or coinage.

"Commissioner" means the Commissioner of the Virginia Department of Agriculture and Consumer Services.

"Concealed face bingo card" means a nonreusable bingo card constructed to conceal the card face.

"Conduct" means the actions associated with the provision of a gaming operation during and immediately before or after the permitted activity, which may include, but not be limited to (i) selling bingo cards or packs, electronic devices, instant bingo or pull-tab cards, or raffle tickets; (ii) calling bingo games; (iii) distributing prizes; and (iv) any other services provided by volunteer workers.

"Control program" means software involved in any critical game function.

"Daubing" means covering a square containing a number called with indelible ink or otherwise marking a number called on a card or an electronic facsimile of a card.

"Deal" means each separate package or series of packages consisting of one game of instant bingo, pull-tabs, or seal cards with the same serial number.

"Decision bingo" means a bingo game where the cost to a player to play is dependent on the number of bingo numbers called and the prize payout is in direct relationship to the number of participants and the number of bingo numbers called, but shall not exceed statutory prize limits for a regular bingo game.

"Department" means the Virginia Department of Agriculture and Consumer Services, Division of Consumer Protection, Office of Charitable Gaming.

"Designator" means an object used in the number selection process, such as a ping-pong ball, upon which bingo letters and numbers are imprinted.

"Discount" means any reduction in cost of admission or game packs or any other purchases through use of coupons, free packs, or other similar methods.

"Disinterested player" means a player who is unbiased.

"Disposable paper card" means a nonreusable, paper bingo card manufactured with preprinted numbers.

"Distributed pull-tab system" means a computer system consisting of a computer or computers and associated equipment for the use of distributing a finite number of electronic instant bingo and/or pull-tab outcomes (i.e., electronic game cards), a certain number of which entitle a player to prize awards at various levels.

"Door prize" means any prize awarded by the random drawing or random selection of a name or number based solely on attendance at a gaming session.

"Electronic bingo device" means an electronic device that uses proprietary software or hardware or, in conjunction with commonly available software and computers, displays facsimiles of bingo cards and allows a player to daub such cards or allows for the automatic daubing of such cards.

"Electronic game card" means an electronic version of a single instant bingo card or pull-tab. An electronic game card is a predetermined game outcome in electronic form, distributed on-demand from a finite number of game outcomes by a distributed pull-tab system.

"Equipment and video systems" means equipment that facilitates the conduct of charitable gaming such as ball blowers, flashboards, electronic verifiers, and replacement parts for such equipment.

"Event game" means a bingo game that is played using instant bingo cards or pull-tabs in which the winners include both instant winners and winners who are determined by the random draw of a bingo ball, the random call of a bingo number, or the use of a seal card, and that is sold and played to completion during a single bingo session.

"Fiscal year" or "annual reporting period" means the 12-month period beginning January 1 and ending December 31 of any given year.

"Flare" means a piece of paper, cardboard, or similar material that bears printed information relating to the name of the manufacturer or logo, name of the game, card count, cost per play, serial number, the number of prizes to be awarded, and the specific prize amounts in a deal of instant bingo, pull-tab, or seal cards.

"Free space number," "perm number," "center number," "card number," or "face number" means the number generally printed in the center space of a bingo card that identifies the unique pattern of numbers printed on that card.

"Game program" means a written list of all games to be played including, but not limited to, the sales price of all bingo paper and electronic bingo devices, pack configuration, prize amounts to be paid during a session for each game, and an indication whether prize amounts are fixed or are based on attendance.

"Game set" means the entire pool of electronic game cards that contains predefined and randomized game results assigned under a unique serial number. This term is equivalent to "deal" or "deck."

"Game subset" means a division of a game set into equal sizes.

"Gaming activity" means one bingo session and the sale and redemption of instant bingo, pull-tabs, seal cards, or electronic game cards done in conjunction with that bingo session and in accordance with the provisions of this chapter.

"Immediate family" means one's spouse, parent, child, sibling, grandchild, grandparent, mother or father-in-law, or stepchild.

"Interested persons" means the president, an officer, or a bingo manager of any qualified organization that is exempt or is a permit applicant or holds a permit to conduct charitable gaming; or the owner, director, officer or partner of an entity engaged in supplying charitable gaming supplies to organizations.

"IRS" means the United States Internal Revenue Service.

"Management" means the provision of oversight of a gaming operation, which may include, but is not limited to, the responsibilities of applying for and maintaining a permit or authorization; compiling, submitting, and maintaining required records and financial reports; and ensuring that all aspects of the operation are in compliance with all applicable statutes and regulations.

"Manufacturer" means a person who or entity that assembles from raw materials or subparts a completed piece of bingo or other charitable gaming equipment or supplies. "Manufacturer" also means a person who or entity that modifies, converts, adds, or removes parts to or from bingo or other charitable gaming equipment or supplies to further their promotion or sale for the conduct of charitable gaming.

"OCG number" means a unique identification number issued by the department.

"Operation" means the activities associated with production of a charitable gaming activity, which may include, but is not limited to, (i) the direct on-site supervision of the conduct of charitable gaming; (ii) coordination of volunteers; and (iii) all responsibilities of charitable gaming designated by the organization's management.

"Owner" means any individual with financial interest of 10% or more in a supplier.

"Pack" means sheets of bingo paper or electronic facsimiles assembled in the order of games to be played. This shall not include any raffle.

"Player device" means an electronic unit that may take the form of an upright cabinet or a handheld device or may be of any other composition as approved by the department used to facilitate the play of electronic instant bingo or pull-tab games.

"Prize" means cash, merchandise, certificate, or other item of value awarded to a winning player.

"Progressive bingo" means a bingo game in which the prize is carried forward to the next game if a predetermined pattern is not completed within a specified number of bingo numbers called.

"Progressive seal card" means a seal card game in which a prize is carried forward to the next deal if not won when a deal is completed.

"Remuneration" means payment in cash or the provision of anything of value for goods provided or services rendered.

"Seal card" means a board or placard used in conjunction with a deal of the same serial number that contains one or more concealed areas that, when removed or opened, reveal a predesignated winning number, letter, or symbol located on that board or placard.

"Selection device" means a manually or mechanically operated device to randomly select bingo numbers.

"Serial number" means a unique number printed by the manufacturer on each bingo card in a set; each instant bingo, pull-tab, or seal card in a deal; each electronic bingo device; or each door prize ticket.

"Series number" means the number of unique card faces contained in a set of disposable bingo paper cards or bingo hard cards. A 9000 series, for example, has 9000 unique faces.

"Session" means a period of time during which one or more bingo games are conducted that begins with the selection of the first ball for the first game and ends with the selection of the last ball for the last game.

"Treasure chest" means a raffle including a locked treasure chest containing a prize that a participant, selected through some other authorized charitable game, is afforded the chance to select from a series of keys a predetermined key that will open the locked treasure chest to win a prize.

"Use of proceeds" means the use of funds derived by an organization from its charitable gaming activities, which are disbursed for those lawful religious, charitable, community, or educational purposes. This includes expenses relating to the acquisition, construction, maintenance, or repair of any interest in the real property involved in the operation of the organization and used for lawful religious, charitable, community, or educational purposes.

"Voucher" means a printed ticket tendered to the player, upon request, for any unused game plays and/or winnings that remain on the player device.

"WINGO" means a variation of a traditional bingo game that uses visual devices rather than a verbal caller and is intended for play by hearing impaired persons.

Part II
Charitable Gaming Organizations

Article 1
Permits

11VAC15-40-20. Eligibility for permit to conduct charitable gaming; when valid; permit requirements.

A. The conduct of charitable gaming is a privilege that may be granted or denied by the department. Except as provided in § 18.2-340.23 of the Code of Virginia, every eligible organization, volunteer fire department, and rescue squad with anticipated gross gaming receipts that exceed the amount set forth in § 18.2-340.23 of the Code of Virginia in any 12-month period shall obtain a permit from the department prior to the commencement of charitable gaming activities. To be eligible for a permit an organization must meet all of the requirements of § 18.2-340.24 of the Code of Virginia.

B. Pursuant to § 18.2-340.24 B of the Code of Virginia, the department shall review a tax exempt request submitted to the IRS for a tax exempt status determination and may issue an interim certification of tax-exempt status solely for the purpose of charitable gaming, conditioned upon a determination by the IRS. The department shall charge the fee set forth in § 18.2-340.24 B of the Code of Virginia for this review. The fee shall be payable to the Treasurer of Virginia.

C. A permit shall be valid only for activities, locations, days, dates, and times as listed on the permit.

D. In accordance with § 18.2-340.19 A 1 of the Code of Virginia, as a condition of receiving a permit, a minimum of 10% of charitable gaming gross receipts shall be used for (i) those lawful religious, charitable, community, or educational purposes for which the organization is specifically chartered or organized or (ii) those expenses relating to the acquisition, construction, maintenance, or repair of any interest in real property involved in the operation of the organization and used for lawful religious, charitable, community, or educational purposes.

E. If an organization fails to meet the minimum use of proceeds requirement, its permit may be suspended or revoked. However, the department shall not suspend or revoke the permit of any organization solely because of its failure to meet the required percentage without having first provided the organization with an opportunity to implement a corrective action plan.

F. An organization may request a temporary reduction in the predetermined percentage specified in subsection D of this section from the department. In reviewing such a request, the department shall consider such factors appropriate to and consistent with the purpose of charitable gaming, which may include, but not be limited to, (i) the organization's overall financial condition; (ii) the length of time the organization has been involved in charitable gaming; (iii) the extent of the deficiency; and (iv) the progress that the organization has made in attaining the minimum percentage in accordance with a corrective action plan pursuant to subsection E of this section.

G. An organization whose permit is revoked for failure to comply with provisions set forth in subsection D of this section shall be eligible to reapply for a permit at the end of one year from the date of revocation. The department, at its discretion, may issue the permit if it is satisfied that the organization has made substantial efforts towards meeting its corrective action plan.

11VAC15-40-30. Permit application process.

A. Any organization anticipating gross gaming receipts that exceed the amount set forth in § 18.2-340.23 of the Code of Virginia shall complete a department-prescribed application to request issuance or renewal of an annual permit to conduct charitable gaming. Organizations shall submit a nonrefundable fee payable to the Treasurer of Virginia in the amount of $200 with the application, unless the organization is exempt from such fee pursuant to § 18.2-340.23 of the Code of Virginia.

B. The department may initiate action against any organization exempt from permit requirements when it reasonably believes the organization is not in compliance with the provisions of charitable gaming laws or applicable regulations, or both, of the board.

C. Permit holders requiring a special permit pursuant to § 18.2-340.27 E of the Code of Virginia shall convey their request on a form prescribed by the department. Organizations shall submit a fee payable to the Treasurer of Virginia in the amount of $50 with the request for a special permit, unless the organization is exempt from such fee pursuant to § 18.2-340.23 of the Code of Virginia.

D. Permits shall be valid for a period of one year from the date of issuance or for a period specified on the permit. The department may issue permits for periods of less than one year.

E. Permits shall be granted only after a background investigation of an organization or interested persons, or both, to ensure public safety and welfare as required by § 18.2-340.25 of the Code of Virginia. Investigations shall consider the nature, the age and severity, and the potential harm to public safety and welfare of any criminal offenses. The investigation may include, but shall not be limited to, the following:

1. A search of Virginia criminal history records for the chief executive officer and chief financial officer of the organization. Information and authorization to conduct these records checks shall be provided in the permit application. In addition, the department shall require that the organization provides assurances that all other members involved in the management, operation, or conduct of charitable gaming meet the requirements of subdivision 13 of § 18.2-340.33 of the Code of Virginia. Applications may be denied if:

a. Any person participating in the management of any charitable gaming has ever been:

(1) Convicted of a felony; or

(2) Convicted of any misdemeanor involving fraud, theft, or financial crimes within the preceding five years.

b. Any person participating in the conduct of charitable gaming has been:

(1) Convicted of any felony in the preceding 10 years; or

(2) Convicted of any misdemeanor involving fraud, theft, or financial crimes within the preceding five years;

2. An inquiry as to whether the organization has been granted tax-exempt status pursuant to § 501(c) by the Internal Revenue Service and is in compliance with IRS annual filing requirements;

3. An inquiry as to whether the organization has entered into any contract with, or has otherwise employed for compensation, any persons for the purpose of organizing or managing, operating, or conducting any charitable gaming activity;

4. Inquiries into the finances and activities of the organization and the sources and uses of funds; and

5. Inquiries into the level of community or financial support to the organization and the level of community involvement in the membership and management of the organization.

F. The permit application for an organization that has not previously held a permit shall include:

1. A list of members participating in the management or operation of charitable gaming. For any organization that is not composed of members, a person who is not a bona fide member may volunteer in the conduct of a charitable game as long as that person is directly supervised by a bona fide official member of the organization;

2. A copy of the articles of incorporation, bylaws, charter, constitution, or other appropriate organizing document;

3. A copy of the determination letter issued by the IRS under § 501(c) of the Internal Revenue Code, if appropriate, or a letter from the national office of an organization indicating the applicant organization is in good standing and is currently covered by a group exemption ruling. A letter of good standing is not required if the applicable national or state office has furnished the department with a listing of member organizations in good standing in the Commonwealth as of January 1 of each year and has agreed to promptly provide the department any changes to the listing as they occur;

4. A copy of the organization's most recent annual financial statement and balance sheet or most recent Form 990 that has been filed with the IRS;

5. A copy of the written lease or proposed written lease agreement and all other agreements if the organization rents or intends to rent a facility where bingo is or will be conducted. Information on the lease shall include name, address, and phone number of the landlord; maximum occupancy of the building; and the rental amount per session; and

6. An authorization by an officer or other appropriate official of the organization to permit the department to determine whether the organization has been investigated or examined by the IRS in connection with charitable gaming activities during the previous three years.

G. Copies of minutes of meetings of the organization and any contracts with landlords or suppliers to which the organization is or may be a party may be requested by the department prior to rendering a permitting decision.

H. Organizations applying to renew a permit previously issued by the department shall submit articles of incorporation, bylaws, charter, constitution, or other organizing document, and IRS determination letter only if there are any amendments or changes to these documents that are directly related to the management, operation, or conduct of charitable gaming.

I. Organizations may request permits to conduct joint bingo games as provided in § 18.2-340.29 of the Code of Virginia.

1. In the case of a joint game, all the organizations shall file a permit application.

2. The nonrefundable permit fee for joint games shall be a total of $200. Volunteer fire departments or rescue squads or auxiliary units thereof that have been recognized in accordance with § 15.2-955 of the Code of Virginia shall be exempt from the payment of applications fees.

3. A single permit shall be issued in the names of all the organizations conducting a joint game. All restrictions and prohibitions applying to single organizations shall apply to qualified organizations jointly conducting bingo games pursuant to § 18.2-340.29 of the Code of Virginia.

4. No charitable gaming shall be conducted prior to the issuance of a joint permit.

5. Applications for joint games shall include an explanation of the division of manpower, costs, and proceeds for the joint game.

J. An organization wishing to change dates, times, or locations of its charitable gaming shall request a change in the permit. Change requests shall be made in writing on a form prescribed by the department at least 30 days in advance of the proposed effective date.

K. Changes in dates, times, or locations due to inclement weather, disasters, or other circumstances outside the organization's control may be made without a change in the permit. The organization shall request such a change on a form prescribed by the department as soon as the necessity for the change is known.

L. An organization may sell raffle tickets for a drawing to be held outside of the Commonwealth of Virginia in the United States provided:

1. The raffle is conducted by the organization in conjunction with a meeting outside the Commonwealth of Virginia or with another organization that is licensed to conduct raffles outside the Commonwealth of Virginia;

2. The raffle is conducted in accordance with these regulations and the laws and regulations of the state where the drawing is to be held; and

3. The portion of the proceeds derived from the sale of raffle tickets in the Commonwealth is reported to the department.

M. Any permitted organization that ceases to conduct charitable gaming shall immediately notify the department in writing and provide the department a report as to the disposition of all unused gaming supplies on a form prescribed by the department.

11VAC15-40-40. Suspension, revocation, or denial of permit.

A. Pursuant to § 18.2-340.20 of the Code of Virginia, the department may suspend, revoke, or deny the permit to conduct charitable gaming of any organization for cause including, but not limited to, any of the following reasons:

1. The organization is found to be in violation of or has failed to meet any of the requirements of the statutes or regulations governing the operation, management, and conduct of charitable gaming in the Commonwealth.

2. The organization is found to be not in good standing with its state or national organization.

3. The IRS revokes or suspends the organization's tax-exempt status.

4. The organization willfully and knowingly provides false information in its application for a permit to conduct charitable gaming.

5. The organization is found to have a member involved in the management, operation, or conduct of its charitable gaming who has been convicted of any felony or any misdemeanor as follows:

a. For any person participating in the management or operation of any charitable gaming:

(1) Convicted of a felony; or

(2) Convicted of any misdemeanor involving fraud, theft, or financial crimes within the preceding five years.

b. For any person participating in the conduct of charitable gaming:

(1) Convicted of any felony within the preceding 10 years; or

(2) Convicted of any misdemeanor involving fraud, theft, or financial crimes within the preceding five years.

B. The failure to meet any of the requirements of § 18.2-340.24 of the Code of Virginia shall cause the denial of the permit, and no organization shall conduct any charitable gaming until the requirements are met and a permit is obtained.

C. Except when an organization fails to meet any of the requirements of § 18.2-340.24 of the Code of Virginia, in lieu of suspending, revoking, or denying a permit to conduct charitable gaming, the department may afford an organization an opportunity to enter into a compliance agreement specifying additional conditions or requirements as it may deem necessary to ensure an organization's compliance with the statute and regulations governing the conduct of charitable gaming activities and may require that an organization participates in such training as is offered by the department.

D. If a permit is suspended, the department shall set the terms of the suspension, which shall include the length of the suspension and a requirement that, prior to reinstatement of the permit, the organization shall submit a remedial business plan to address the conditions that resulted in the suspension.

Article 2
Conduct of Games, Rules of Play, Electronic Bingo
 

11VAC15-40-50. Conduct of bingo, instant bingo, pull-tabs, seal cards, event games, and raffles.

A. Organizations subject to this chapter shall post their permit at all times on the premises where charitable gaming is conducted.

B. No individual shall provide any information or engage in any conduct that alters or is intended to alter the outcome of any charitable game.

C. Individuals under 18 years of age may play bingo provided such persons are accompanied by a parent or legal guardian. It shall be the responsibility of the organization to ensure that such individuals are eligible to play. An organization's house rules may further limit the play of bingo or purchase raffle tickets by minors.

D. Individuals under the age of 18 may sell raffle tickets for a qualified organization raising funds for activities in which they are active participants.

E. No individual under the age of 18 may participate in the management or operation of bingo games. Individuals 14 through 17 years of age may participate in the conduct of a bingo game provided the organization permitted for charitable gaming obtains and keeps on file written parental consent from the parent or legal guardian and verifies the date of birth of such youth. An organization's house rules may further limit the involvement of minors in the conduct of bingo games.

F. No qualified organization shall sell any instant bingo, pull-tab, seal card, event game card, or electronic game card to any individual under 18 years of age. No individual under 18 years of age shall play or redeem any instant bingo, pull-tab, seal card, event game card, or electronic game card.

G. Unless otherwise prohibited by the Code of Virginia or this chapter, nonmembers who are under the direct supervision of a bona fide member may participate in the conduct of bingo.

H. All volunteer game workers shall have in their possession a picture identification, such as a driver's license or other government-issued identification, and shall make the picture identification available for inspection upon request by a department agent while participating in the management, operation, or conduct of a bingo game.

I. A game manager who is a bona fide member of the organization and is designated by the organization's management as the person responsible for the operation of the bingo game during a particular session shall be present any time a bingo game is conducted.

J. Organizations shall ensure that all charitable gaming equipment is in working order before charitable gaming activities commence.

K. Any organization selling bingo, instant bingo, pull-tabs, seal cards, event game cards, or electronic game cards shall:

1. Maintain a supplier's invoice or a legible copy thereof at the location where the gaming is taking place and cards are sold. The original invoice or legible copy shall be stored in the same storage space as the gaming supplies. All gaming supplies shall be stored in a secure area that has access limited only to bona fide members of the organization; and

2. Pay for all gaming supplies only by a check drawn on the charitable gaming account of the organization.

A complete inventory of all such gaming supplies shall be maintained by the organization on the premises where the gaming is being conducted.

L. A volunteer working a bingo session may receive complimentary food and nonalcoholic beverages provided on premises, as long as the retail value of such food and beverages does not exceed $15 for each session.

M. Permitted organizations shall not commingle records, supplies, or funds from permitted activities with those from instant bingo, pull-tabs, seal cards, event game cards, or electronic game cards sold in social quarters in accordance with § 18.2-340.26:1 of the Code of Virginia.

N. Individuals who are not members of an organization or are members who do not participate in any charitable gaming activities may be paid reasonable fees for preparation of quarterly and annual financial reports.

O. No free packs, free electronic bingo devices, discounts, or remuneration in any other form shall be provided directly or indirectly to volunteers, members of their family, or individuals residing in their household. The reduction of tuition, dues, or any fees or payments due as a result of a member or shareholder, or anyone in their household, working bingo games or raffles is prohibited.

P. Individuals providing security for an organization's charitable gaming activity shall not participate in the charitable gaming activity and shall not be compensated with charitable gaming supplies or with rentals of electronic bingo devices.

Q. No organization shall award any prize money or any merchandise valued in excess of the amounts specified by the Code of Virginia.

R. Multiple bingo sessions shall be permitted in a single premise as long as the sessions are distinct from one another and are not used to advertise or do not result in the awarding of more in prizes than is permitted for a single qualified organization. All leases for organizations to conduct charitable gaming in a single premise shall ensure gaming activity is separated by an interval of at least 30 minutes. Bingo sales for the subsequent session may take place during the 30-minute break once the building is cleared of all patrons and workers from the previous session.

S. All bingo and instant bingo, pull-tabs, seal card, event game card, or electronic game card sales, play, and redemption must occur within the time specified on the charitable gaming permit.

T. Instant bingo, pull-tabs, seal cards, event game cards, or electronic game cards shall only be sold in conjunction with a bingo session, except as authorized by § 18.2-340.26:2 of the Code of Virginia. No instant bingo, pull-tabs, seal card, event game card, or electronic game card sales shall take place more than two hours before or after a session. If multiple sessions are held at the same location, no instant bingo, pull-tab, seal card, event game card, or electronic game card sales shall be conducted during the required 30-minute break between gaming activities. The department may take action if it believes that a bingo session is not legitimate or is being conducted in a manner such that instant bingo, pull-tabs, seal cards, event game cards, or electronic game cards are not being sold in conjunction with a bingo session.

U. Only a volunteer game worker of qualified organizations may rent, exchange, or otherwise provide electronic bingo devices to players.

V. A qualified organization shall conduct only bingo games and raffles listed on a game program for that session. The program shall list all prize amounts. If the prize amounts are determined by attendance or at the end of a game, the game program shall list the attendance required for the prize amount or disclose that prizes shall be determined at the end of a game and the method for determining the prize amount. In such case, the organization shall announce the prize amount at the end of the game.

W. A qualified organization selling instant bingo, pull-tabs, seal cards, or electronic game cards shall post a flare provided by the manufacturer at the location where such cards are sold. All such sales and prize payouts shall be in accordance with the flare for that deal.

X. Only qualified organizations, facilities in which qualified organizations play bingo, and suppliers permitted by the department shall advertise a bingo game. Providing players with information about bingo games through printed advertising is permitted, provided the name of the qualified organization shall be in a type size equal to or larger than the name of the premises, the hall, or the word "bingo." Printed advertisements shall identify the use of proceeds percentage reported in the past quarter or fiscal year.

Y. Raffles that award prizes based on a percentage of gross receipts shall use prenumbered tickets.

Z. The following rules shall apply to instant bingo, pull-tab, seal card, or event game card dispensing devices:

1. A dispensing device shall only be used at a location and time during which a qualified organization holds a permit to conduct charitable gaming. Only cards purchased by an organization to be used during the organization's charitable gaming activity shall be in the dispensing device.

2. Keys to the dispensing area and coin/cash box shall be in the possession and control of the game manager or designee of the organization's board of directors at all times. Keys shall at all times be available at the location where the dispensing device is being used.

3. The game manager or designee shall provide access to the dispensing device to a department agent for inspection upon request.

4. Only a volunteer game worker of an organization may stock the dispensing device, remove cash, or pay winners' prizes.

AA. Organizations shall only purchase gaming supplies from a supplier who has a current permit issued by the department.

BB. An organization shall not tamper with bingo paper received from a supplier.

CC. The total amount of all discounts given by any organization during any fiscal year shall not exceed 1.0% of the organization's gross receipts.

11VAC15-40-60. Rules of play.

A. Each organization shall adopt "house rules" regarding conduct of the game. Such rules shall be consistent with the provisions of the law and this chapter. "House rules" shall be conspicuously posted or, at an organization's option, printed on the game program.

B. All players shall be physically present at the location where the bingo numbers for a bingo game are drawn to play the game or to claim a prize. Seal card prizes that can only be determined after a seal is removed or opened must be claimed within 30 days of the close of a deal. All other prizes must be claimed on the game date.

C. The following rules of play shall govern the sale of instant bingo, pull-tabs, and seal cards:

1. No cards that have been marked, defaced, altered, tampered with, or otherwise constructed in a manner that tends to deceive the public or affect the chances of winning or losing shall be placed into play.

2. Winning cards shall have the winning symbol or number defaced or punched immediately after redemption by the organization's authorized representative.

3. An organization may commingle unsold instant bingo cards and pull-tabs with no more than one additional deal. The practice of commingling deals shall be disclosed to the public via house rules or in a similar manner. Seal card deals shall not be commingled.

4. If a deal is not played to completion and unsold cards remain, the remaining cards shall be sold at the next session the same type of ticket is scheduled to be sold. If no future date is anticipated, the organization shall, after making diligent efforts to sell the entire deal, consider the deal closed or completed. The unsold cards shall be retained for three years following the close of the fiscal year and shall not be opened.

5. All seal card games purchased shall contain the sign-up sheet, the seals, and the cards packaged together in each deal.

6. Progressive seal card prizes not claimed within 30 days shall be carried forward to the next progressive game in progress and paid to the next progressive game prize winner.

D. No one involved in the conduct of bingo may play bingo at any session they have worked or intend to work. No one involved in the sale or redemption of any instant bingo, pull-tabs, seal cards, or electronic game cards may purchase directly or through others instant bingo, pull-tab, seal card, or electronic game card products from organizations they assist on the day they have worked or from any deal they have helped sell or redeem, whichever occurs later.

E. Electronic bingo.

1. Electronic bingo devices may be used by bingo players in the following manner:

a. Players may input into the device each number called or the device may automatically daub each number as the number is called;

b. Players must notify the game operator or caller of a winning pattern of bingo by a means other than use of the electronic device;

c. Players are limited to playing a maximum of 54 card faces per device per game;

d. Electronic bingo devices shall not be reserved for players. Each player shall have an equal opportunity to use the available devices on a first come, first served basis;

e. Each electronic bingo device shall produce a player receipt with the organization name, date, time, location, sequential transaction or receipt number, number of electronic bingo cards loaded, cost of electronic bingo cards loaded, and date and time of the transaction.  Images of cards or faces stored in an electronic device must be exact duplicates of the printed faces if faces are printed;

f. Department agents may examine and inspect any electronic bingo device and related system. Such examination and inspection shall include immediate access to the device and unlimited inspection of all parts and associated systems and may involve the removal of equipment from the game premises for further testing;

g. All electronic bingo devices must be loaded or enabled for play on the premises where the game will be played;

h. All electronic bingo devices shall be rented or otherwise provided to a player only by an organization and no part of the proceeds of the rental of such devices shall be paid to a landlord, or his employee, agent, or member of his immediate family; and

i. If a player's call of a bingo is disputed by another player, or if a department agent makes a request, one or more cards stored on an electronic bingo device shall be printed by the organization.

2. Players may exchange a defective electronic bingo device for another device provided a disinterested player verifies that the device is not functioning. A disinterested player shall also verify that no numbers called for the game in progress have been keyed into the replacement device prior to the exchange.

F. The following rules of play shall govern the conduct of raffles:

1. Before a prize drawing, each stub or other detachable section of each ticket sold shall be placed into a receptacle from which the winning tickets shall be drawn. The receptacle shall be designed so that each ticket placed in it has an equal chance to be drawn.

2. All prizes shall be valued at fair market value.

G. The following rules shall apply to "decision bingo" games:

1. Decision bingo shall be played on bingo cards in the conventional manner.

2. Players shall enter a game by paying a predetermined amount for each card face in play.

3. Players shall pay a predetermined fee for each set of three bingo numbers called for each card in play.

4. The prize amount shall be the total of all fees not to exceed the prize limit set forth for regular bingo in § 18.2-340.33 of the Code of Virginia. Any excess funds shall be retained by the organization.

5. The predetermined amounts in subdivisions 2 and 3 of this subsection shall be printed in the game program. The prize amount for a game shall be announced before the prize is paid to the winner.

H. The following rules shall apply to "treasure chest" games:

1. The organization shall list the treasure chest game on the bingo game program as a "Treasure Chest Raffle."

2. The organization shall have house rules posted that describe how the game is to be played.

3. The treasure chest participant shall only be selected through some other authorized charitable game at the same bingo session.

4. The organization shall account for all funds as treasure chest/raffle sales on the session reconciliation form.

5. If the player does not open the lock on the treasure chest, the game manager or his designee shall proceed to try every key until the correct key opens the treasure chest lock to show all players that one of the keys will open the lock.

I. The following rules shall apply to progressive bingo games:

1. Bingo paper sold for use in progressive bingo games shall conform to the standards set forth in 11VAC15-40-130.

2. Organizations shall not include in admission packs the bingo paper intended for use in progressive bingo games.

3. Any progressive bingo game, its prize, and the number of bingo numbers to be called shall be clearly announced before the progressive bingo game is played and shall be posted on the premises where the progressive bingo game is played during each session that a progressive bingo game is played.

4. Pricing for a progressive bingo game card or sheet shall be listed on the game program.

5. If the predetermined pattern is not covered within the predetermined number of bingo numbers to be called, then the number of bingo numbers called will increase by one number for each subsequent session the progressive game is played.

6. If the predetermined pattern is not covered within the predetermined number of bingo numbers to be called for that progressive bingo game, then the game will continue as a regular bingo game until the predetermined pattern is covered and a regular bingo prize is awarded.

7. The prize for any progressive bingo game shall be in accordance with the provisions of § 18.2-340.33 of the Code of Virginia.

J. The following rules shall apply to "WINGO":

1. "WINGO" shall be played only for the hearing-impaired players.

2. "WINGO" shall utilize a visual device such as an oversized deck of cards in place of balls selected from a blower.

3. A caller must be in an area visible to all players and shall randomly select cards or other visual devices one at a time and display them so that all players can see them.

4. The organization must have house rules for "WINGO" and the rules shall identify how players indicate that they have won.

5. All financial reporting shall be consistent with reporting for a traditional bingo game.

K. The following rules of play shall apply to event games:

1. No instant bingo cards or pull-tabs that have been marked, defaced, altered, tampered with, or otherwise constructed in a manner that tends to deceive the public or affect the chances of winning or losing shall be placed into play.

2. Instant bingo cards and pull-tabs used in an event game shall not be offered for sale or sold at a purchase price other than the purchase price indicated on the flare for that particular deal.

3. The maximum prize amount for event games shall not exceed the amount set forth in § 18.2-340.33 (9) of the Code of Virginia for instant bingo, pull-tab, or seal card.

4. A sign-up sheet is not required for event games in which the winner or winners are determined using a seal card.

5. Organizations shall determine the winner or winners of event games during the same bingo session in which the instant bingo cards or pull-tabs are sold.

6. An authorized representative of the organization shall deface or punch the winning instant bingo cards or winning pull-tabs immediately after redemption.

7. If unsold bingo cards or unsold pull-tabs remain, the unsold cards shall be retained for three years following the close of the fiscal year and shall not be opened.

Article 3
Bank Accounts, Recordkeeping, Financial Reporting, Audits, Fees

11VAC15-40-70. Bank accounts.

A. A qualified organization shall maintain a charitable gaming bank account that is separate from any other bank account and all gaming receipts shall be deposited into the charitable gaming bank account.

B. Disbursements for expenses other than prizes and reimbursement of meal expenses shall be made by check directly from a charitable gaming account.

C. All charitable gaming bank account records, including but not limited to monthly bank statements, canceled checks or facsimiles thereof, and reconciliations, shall be maintained for three years following the close of a fiscal year.

D. All receipts from each session of bingo games and instant bingo, pull-tabs, or seal cards shall be deposited by the second business day following the session at which they were received.

E. Raffle proceeds shall be deposited into the qualified organization's charitable gaming bank account no later than the end of the calendar week following the week during which the organization received the proceeds.

11VAC15-40-80. Recordkeeping.

A. In addition to the records required by § 18.2-340.30 D of the Code of Virginia, qualified organizations conducting bingo shall maintain a system of records for a minimum of three years, unless otherwise specified for each gaming session on forms prescribed by the department, or reasonable facsimiles of those forms approved by the department, that include:

1. Charitable gaming supplies purchased and used;

2. A session reconciliation form and an instant bingo, pull-tab, seal card, or electronic game card reconciliation form completed and signed within 48 hours of the end of the session by the bingo manager;

3. All discounts provided;

4. A reconciliation to account for cash received from floor workers for the sale of extra bingo sheets for any game;

5. Number of electronic bingo devices rented, unique serial numbers of such devices, number of faces sold by each unit, and a summary report for each session to include date, time, location, and detailed information on income and expenses;

6. An admissions control system that provides a cross-check on the number of players in attendance and admission sales. This may include a ticket control system, cash register, or any similar system;

7. All operating expenses including rent, advertising, and security. Copies of invoices for all such expenses shall also be maintained;

8. Expected and actual receipts from games played on hard cards and number of games played on hard cards;

9. A record of the name and address of each winner for all seal cards; in addition, the winning ticket and seal card shall be maintained for a minimum of 90 days after the session;

10. A record of all door prizes awarded; and

11. For any prize or jackpot of a value that meets or exceeds the reporting requirements in the Internal Revenue Service's Publication 3079, the name and address of each individual to whom any such prize or jackpot is awarded and the amount of the award.

B. Qualified organizations conducting raffles shall have a recordkeeping system to account for cash receipts, cash disbursements, raffle tickets purchased or sold, and prizes awarded. All records shall be maintained for three years from the close of the fiscal year. The recordkeeping system shall include:

1. Invoices for the purchase of raffle tickets, which shall reflect the following information:

a. Name and address of supplier;

b. Name of purchaser;

c. Date of purchase;

d. Number of tickets printed;

e. Ticket number sequence for tickets printed; and

f. Sales price of individual ticket;

2. A record of cash receipts from raffle ticket sales by tracking the total number of tickets available for sale, the number issued to sellers, the number returned, the number sold, and reconciliation of all raffle sales to receipts;

3. Serial numbers of tickets for raffle sales initiated and concluded at a bingo game or sequentially numbered tickets, which shall state the name, address, and telephone number of the organization, the prize or prizes to be awarded, the date of the prize drawing or selection, the selling price of the raffle ticket, and the charitable gaming permit number;

4. For any raffle prize of a value that meets or exceeds the reporting requirements in the Internal Revenue Service's Publication 3079, receipts on which prize winners must provide printed name, residence address, and the amount and description of the prize received; and

5. Deposit records of the required weekly deposits of raffle receipts.

C. All raffle tickets shall have a detachable section; be consecutively numbered with the detachable section having the same number; provide space for the purchaser's name, complete address, and telephone number; and state (i) the name and address of the organization; (ii) the prize or prizes to be awarded; (iii) the date, time and location of the prize drawing; (iv) the selling price of the ticket; and (v) the charitable gaming permit number. Winning tickets and unsold tickets shall be maintained for three years from the close of the fiscal year.

D. All unused charitable gaming supplies shall either be returned for refund to the original supplier in unopened original packaging in resalable condition as determined by the supplier or turned in to the department for destruction. The organization shall maintain a receipt for all such supplies returned to the supplier or turned in to the department.

11VAC15-40-90. Financial reporting, penalties, inspections, and audits.

A. Each charitable gaming permit holder shall file an annual report of receipts and disbursements by March 15 of each year on a form prescribed by the department. The annual report shall cover the activity for the fiscal year.

B. The annual report shall be accompanied by the audit and administration fee as established by the department for the fiscal year unless the fee has been remitted with quarterly reports or the organization is exempt from payment of the fee pursuant to § 18.2-340.23 of the Code of Virginia.

C. An organization desiring an extension to file its annual report for good cause shall request the extension in writing on a form prescribed by the department and shall pay the projected audit and administration fee, unless exempt from payment of the fee pursuant to § 18.2-340.23 of the Code of Virginia. The extension request and payment of projected fees shall be made in accordance with the provisions of § 18.2-340.30 of the Code of Virginia.

D. Unless exempted by § 18.2-340.23 of the Code of Virginia, qualified organizations realizing any gross gaming receipts in any calendar quarter shall file a quarterly report of receipts and disbursements on a form prescribed by the department as follows:

Quarter Ending

Date Due

March 31

June 1

June 30

September 1

September 30

December 1

December 31

March 1

Qualified organizations shall submit quarterly reports with the appropriate audit and administration fee unless the organization is exempt from payment of the fee pursuant to § 18.2-340.23 of the Code of Virginia. An annual financial report may substitute for a quarterly report if the organization has no further charitable gaming income during the remainder of the reporting period and the annual report is filed by the due date for the applicable calendar quarter.

E. An organization desiring an extension to file its quarterly report for good cause shall request the extension in writing on a form prescribed by the department and shall pay the projected audit and administration fee unless exempt from payment of the fee pursuant to § 18.2-340.23 of the Code of Virginia. The extension request and payment of projected fees shall be made in accordance with the provisions of § 18.2-340.30 of the Code of Virginia.

F. Organizations failing to file required reports, request an extension, or make fee payments when due shall be charged a penalty of $25 per day from the due date until such time as the required report is filed.

G. Any qualified organization in possession of funds derived from charitable gaming (including those who have ceased operations), regardless of when such funds may have been received or whether it has a valid permit from the department, shall file an annual financial report on a form prescribed by the department on or before March 15 of each year until such funds are depleted. If an organization ceases the conduct of charitable gaming, it shall provide the department with the name of an individual who shall be responsible for filing financial reports. If no such information is provided, the president of an organization shall be responsible for filing reports until all charitable gaming proceeds are depleted.

H. If an organization has been identified through inspection, audit, or other means as having deficiencies in complying with statutory or regulatory requirements or having ineffective internal controls, the department may impose restrictions or additional recordkeeping and financial reporting requirements.

I. Any records deemed necessary to complete an inspection, audit, or investigation may be collected by the department, its employees, or its agents from the premises of an organization or any location where charitable gaming is conducted. The department shall provide a written receipt of such records at the time of collection.

11VAC15-40-100. Use of proceeds.

A. All payments by an organization intended as use of proceeds must be made by check written from the organization's charitable gaming account.

B. Use of proceeds payments may be made for scholarship funds or the future acquisition, construction, remodeling, or improvement of real property or the acquisition of other equipment or vehicles to be used for religious, charitable, educational, or community purposes. In addition, an organization may obtain department approval to establish a special fund account or an irrevocable trust fund for special circumstances. Transfers to such an account or an irrevocable trust fund from the organization's charitable gaming account may be included as a use of proceeds if the payment is authorized by an organization's board of directors.

No payments made to such a special fund account shall be withdrawn for other than the specified purpose unless prior notification is made to the department.

C. Expenditures of charitable gaming funds for social or recreational activities or for events, activities, or programs that are open primarily to an organization's members and their families shall not qualify as use of proceeds unless substantial benefit to the community is demonstrated.

D. Payments made to or on behalf of indigent, sick, or deceased members or their immediate families shall be allowed as use of proceeds provided they are approved by the organization's board of directors and the need is documented.

E. Payments made directly for the benefit of an individual member, member of his family, or person residing in his household shall not be allowed as a use of proceeds unless authorized by law or elsewhere in this chapter.

F. Use of proceeds payments by an organization shall not be made for any activity that is not permitted by federal, state, or local laws or for any activity that attempts to influence or finance directly or indirectly political persons or committees or the election or reelection of any person who is or has been a candidate for public office.

G. Organizations shall maintain details of all use of proceeds disbursements for a minimum of three years and shall make this information available to the department upon request.

H. The department may disallow a use of proceeds payment to be counted against the minimum percentage referred to in 11VAC15-40-20 D. If any payment claimed as use of proceeds is subsequently disallowed, an organization may be allowed additional time as specified by the department to meet minimum use of proceeds requirements.

Article 4
Rent

11VAC15-40-110. Requirements regarding renting premises, agreements, and landlord participation.

A. No organization shall rent or use any leased premises to conduct charitable gaming unless all terms for rental or use are set forth in a written agreement and signed by the parties thereto prior to the issuance of a permit to conduct charitable gaming. A qualified organization that leases a building or other premises that is utilized in whole or in part for the purpose of conducting charitable gaming more frequently than two calendar days in one calendar week shall only lease such premises directly from (i) a qualified organization that is exempt from taxation pursuant to § 501 (c) of the Internal Revenue Code or (ii) any county, city, or town.

B. Organizations shall not make payments to a landlord except by check drawn on the organization's charitable gaming account.

C. No landlord, his agent or employee, member of his immediate family, or person residing in his household shall make directly or indirectly a loan to any officer, director, game manager, or entity involved in the management, operation, or conduct of charitable gaming of an organization in Virginia that leases its charitable gaming facility from the landlord.

D. No landlord, his agent or employee, member of his immediate family, or person residing in his household shall make any direct or indirect payment to any officer, director, game manager, or entity involved in the management, operation, or conduct of charitable gaming conducted at a facility rented from the landlord in Virginia unless the payment is authorized by the lease agreement and is in accordance with the law.

E. No landlord, his agent or employee, member of his immediate family, or person residing in the same household shall at charitable games conducted on the landlord's premises:

1. Participate in the management, operation, or conduct of any charitable games;

2. Sell, lease, or otherwise provide any bingo supplies including, but not limited to, bingo cards, pull-tab cards, electronic game cards, or other game pieces; or

3. Require as a condition of the lease or contract that a particular manufacturer, distributor, or supplier of bingo supplies is used by the organization.

"Bingo supplies" as used in this chapter shall not include glue, markers, or tape sold from concession stands or from a location physically separated from the location where bingo supplies are normally sold.

F. No member of an organization involved in the management, operation, or conduct of charitable gaming shall provide any services to a landlord or be remunerated in any manner by the landlord of the facility where an organization is conducting its charitable gaming.

Part III
Suppliers

11VAC15-40-120. Suppliers of charitable gaming supplies: application, qualifications, suspension, revocation or refusal to renew permit, maintenance, and production of records.

A. Prior to providing any charitable gaming supplies, a supplier shall submit an application on a form prescribed by the department and receive a permit. A $1,000 application fee payable to the Treasurer of Virginia is required. In addition, a supplier must be authorized to conduct business in the Commonwealth of Virginia, which may include, but not be limited to, registration with the State Corporation Commission, the Department of Taxation, and the Virginia Employment Commission. The actual cost of background investigations for a permit may be billed by the department to an applicant. The department shall act on an application within 90 days of receipt of the application.

B. The department may refuse to issue a permit or may suspend or revoke a permit if an officer, director, employee, agent, or owner:

1. Is operating without a valid license, permit, or certificate as a supplier or manufacturer in any state in the United States;

2. Fails or refuses to recall a product as directed by the department;

3. Conducts business with unauthorized entities or is not authorized to conduct business in the Commonwealth of Virginia;

4. Has been convicted of or pleaded nolo contendere to any crime as specified by § 18.2-340.34 B of the Code of Virginia; has had any license, permit, certificate, or other authority related to activities defined as charitable gaming in the Commonwealth suspended or revoked in the Commonwealth or in any other jurisdiction; has failed to file or has been delinquent in excess of one year in the filing of any tax returns or the payment of any taxes due the Commonwealth; or has failed to establish a registered office or registered agent in the Commonwealth if so required by § 13.1-634 or 13.1-763 of the Code of Virginia. As this provision relates to employees or agents, it shall only apply to individuals involved in sales to or solicitations of customers in the Commonwealth of Virginia;

5. Fails to notify the department within 20 days of the occurrence, knowledge, or receipt of the filing of any administrative or legal action relating to charitable gaming or the distribution of charitable gaming supplies involving or concerning the supplier, any officers or directors, employees, agent, or owner during the term of its permit;

6. Fails to provide to the department upon request a current Letter for Company Registration on file with the U.S. Department of Justice-Gambling Devices Registration Unit, if required in accordance with The Gambling Devices Act of 1962, 15 USC §§ 1171-1178, for any device that it sells, distributes, services, or maintains in the Commonwealth of Virginia; or

7. Has been engaged in conduct that would compromise the department's objective of maintaining the highest level of integrity in charitable gaming.

C. A supplier shall not sell, offer to sell, or otherwise provide charitable gaming supplies for use by anyone in the Commonwealth of Virginia other than to an organization with a permit from the department or another permitted supplier. However, a supplier may:

1. Sell charitable gaming supplies to an organization that expects to gross the amount set forth in § 18.2-340.23 of the Code of Virginia or less in any 12-month period, providing that the amount of such purchase would not be reasonably expected to produce more than the amount set forth in § 18.2-340.23 of the Code of Virginia in gross sales. For each such organization, the supplier shall maintain the name, address, and telephone number. The supplier shall also obtain a written and signed statement from an officer or game manager of such organization confirming that gross receipts are expected to be the amount set forth in § 18.2-340.23 of the Code of Virginia or less. Such statement shall be dated and kept on file for three years from the end of a fiscal year.

2. Sell bingo cards and paper to persons or entities other than qualified organizations provided such supplies shall not be sold or otherwise provided for use in charitable gaming activities regulated by the department or in unlawful gambling activities. For each such sale, the supplier shall maintain the name, address, and telephone number of the purchaser. The supplier shall also obtain a written statement from the purchaser verifying that such supplies will not be used in charitable gaming or any unlawful gambling activity. Such statement shall be dated and kept on file for three years from the end of a fiscal year. Payment for such sales in excess of $50 shall be accepted in the form of a check.

3. Sell pull-tabs, seal cards, event game cards, and electronic game cards to organizations for use only upon the premises owned or exclusively leased by the organization and at such times as the portion of the premises in which the pull-tabs, seal cards, event game cards, or electronic game cards are sold is open only to members and their guests as authorized by § 18.2-340.26:1 of the Code of Virginia. Each such sale shall be accounted for separately and the accompanying invoice shall be clearly marked: "For Use in Social Quarters Only."

All such sales shall be documented pursuant to subsection H of this section and reported to the department pursuant to subsection J of this section. This provision shall not apply to the sale to landlords of equipment and video systems as defined in this chapter. Equipment and video systems shall not include dispensing devices, electronic bingo devices, and player devices.

D. A supplier shall not sell, offer to sell, or otherwise provide charitable gaming supplies to any individual or organization in the Commonwealth of Virginia unless the charitable gaming supplies are purchased or obtained from a manufacturer or another permitted supplier. Suppliers may take back for credit and resell supplies received from an organization with a permit that has ceased charitable gaming or is returning supplies not needed.

E. No supplier, supplier's agent, or employee may be involved in the management, operation, or conduct of charitable gaming in the Commonwealth of Virginia. No member of a supplier's immediate family or person residing in the same household as a supplier may be involved in the management, operation, or conduct of charitable gaming of any customer of the supplier in the Commonwealth of Virginia. No supplier, supplier's agent, or employee may participate in any charitable gaming of any customer of the supplier in the Commonwealth of Virginia. For the purposes of this regulation, servicing of electronic devices shall not be considered conduct or participation.

F. The department shall conduct a background investigation prior to the issuance of a permit to any supplier. The investigation may include, but shall not be limited to, the following:

1. A search of the Virginia Central Criminal Records Exchange (CCRE) on all officers, directors, and owners; and

2. Verification of current compliance with Commonwealth of Virginia tax laws.

If the officers, directors, or owners are domiciled outside of the Commonwealth of Virginia, or have resided in the Commonwealth of Virginia for fewer than five years, a criminal history search conducted by the appropriate authority in any state in which they have resided during the previous five years shall be provided by the applicant.

G. Appropriate information and authorizations shall be provided to the department to verify information cited in subsection F of this section.

H. Suppliers shall document each sale or rental of charitable gaming supplies to an organization in the Commonwealth of Virginia on an invoice, which reflects the following:

1. Name, address, and OCG number of the organization;

2. Date of sale or rental and location where bingo supplies are shipped if different from the billing address;

3. Name, form number, and serial number of each deal of instant bingo, pull-tabs, seal cards, electronic game cards, or bundles and the number of cards in each deal;

4. Quantity of deals sold, the cost per deal, the selling price per card, the cash take-in per deal, and the cash payout per deal;

5. Serial number of the top sheet in each pack of disposable bingo paper, the number of sheets in each pack or pad, the cut and color, and the number of packs or pads sold;

6. Serial number for each series of uncollated bingo paper and the number of sheets sold;

7. Detailed information concerning the type, quantity, and individual price of any other charitable gaming supplies or related items including, but not limited to, concealed face bingo cards, hard cards, markers or daubers and refills, or any other merchandise. For concealed face bingo cards, the number of sets, price per set, and the serial number of each set shall be included;

8. Serial number of each player device, the form of the player device, the number of player devices sold or rented, and the physical address to which each player device is shipped;

9. Serial number and description of any other equipment sold or rented that is used to facilitate the distribution, play, and redemption of electronic game cards and the physical address to which the equipment is shipped; and

10. Any type of equipment, device, or product manufactured for or intended to be used in the conduct of charitable games including, but not limited to, designators, designator receptacles, number display boards, selection devices, dispensing machines, and verification devices.

I. Suppliers shall ensure that two copies of the detailed invoice are provided to the customer for each sale of charitable gaming supplies.

J. Each supplier shall provide a report to the department by March 1 of each year on sales of charitable gaming supplies for the fiscal year ending December 31 of the previous year to each organization in the Commonwealth of Virginia. This report shall be provided to the department on computer disk or other department-approved media. The report shall include the name and address of each organization and the following information for each sale or transaction:

1. Bingo paper sales including purchase price, description of paper to include number of sheets in pack and number of faces on sheet, and quantity of single sheets or packs shipped;

2. Deals of instant bingo, pull-tabs, seal cards, electronic game cards, or any other raffle sales including purchase price, deal name, deal form number, number of tickets in deal, ticket price, cash take-in per deal, cash payout per deal, and number of deals;

3. Electronic bingo device sales including purchase or rental price and number of units;

4. Equipment used to facilitate the distribution, play, and redemption of electronic game cards including purchase or rental price, description of equipment, number of units of each type of equipment, and the physical address to which the equipment is shipped; and

5. Sales of miscellaneous items such as daubers, markers, and other merchandise including purchase price, description of product, and number of units.

K. The department shall set manufacturing and testing criteria for all electronic bingo devices and other equipment used in the conduct of charitable gaming. An electronic bingo device shall not be sold, leased, or otherwise furnished to any person in the Commonwealth of Virginia for use in the conduct of charitable gaming until an identical sample device containing identical proprietary software has been certified by a testing facility that has been formally recognized by the department as a testing facility that upholds the standards of integrity established by the department. The testing facility must certify that the device conforms, at a minimum, to the restrictions and conditions set forth in these regulations. Once the testing facility reports the test results to the department, the department will either approve or disapprove the submission and inform the manufacturer of the results within 10 business days. If any such equipment does not meet the department's criteria, it shall be recalled and shall not be distributed in the Commonwealth of Virginia. The cost of testing shall be borne by the manufacturer of such equipment.

L. Department employees shall have the right to inspect all electronic and mechanical equipment used in the conduct of charitable gaming.

M. Suppliers, their agents and employees, members of the supplier's immediate family, or persons residing in their household shall not make any loan directly or indirectly to any organization or officer, director, game manager, or entity involved in the management, operation, or conduct of charitable gaming of a supplier's customer located in the Commonwealth of Virginia.

N. No supplier, supplier's agent, or employee shall directly or indirectly provide a rebate, discount, or refund to any person other than an organization that purchases supplies or leases or purchases equipment from the supplier. All such transactions shall be recorded on the supplier's account books.

O. A supplier shall not rent, sell, or otherwise provide electronic bingo devices or equipment used to distribute, play, or redeem electronic game cards unless the supplier possesses a valid permit in the Commonwealth of Virginia.

P. A written agreement specifying the terms of lease or rental shall be required for any electronic bingo devices or equipment used to distribute, play, or redeem electronic game cards provided to an organization.

11VAC15-40-130. Construction and other standards for bingo, instant bingo, pull-tabs, seal cards, event games, raffles, electronic bingo devices, and instant bingo, pull-tab, and seal card dispensers.

A. No supplier shall knowingly sell or otherwise provide to an organization and no organization shall knowingly use bingo supplies unless they conform to the following construction standards:

1. Disposable paper sold shall be of sufficient weight and quality to allow for clearly readable numbers and to prevent ink from spreading, bleeding, or otherwise obscuring other numbers or cards.

2. Each sheet of disposable bingo paper shall be comprised of cards bearing a serial number. No serial number shall be repeated on or in the same style, series, and color of cards within a three-year period.

3. Disposable bingo paper assembled in books or packs shall not be separated except for single-sheet specials. This provision does not apply to two-part cards on which numbers are filled by players and one part is separated and provided to an organization for verification purposes.

4. Each unit of disposable bingo paper shall have an exterior label listing the following information:

a. Description of product;

b. Number of packs or loose sheets;

c. Series numbers;

d. Serial number of the top sheet;

e. Number of cases;

f. Cut of paper; and

g. Color of paper.

5. "Lucky Seven" bingo cards or electronic facsimiles thereof shall have a single face where seven numbers shall be chosen. "Lucky Seven" sheets or electronic facsimiles thereof shall have multiple faces where seven numbers shall be chosen per face.

B. No supplier shall knowingly sell or otherwise provide to an organization and no organization shall knowingly use instant bingo, pull-tab, seal cards, or event game cards unless they conform to the following construction standards:

1. Cards shall be constructed so that concealed numbers, symbols, or winner protection features cannot be viewed or determined from the outside of the card by using a high intensity lamp of 500 watts, with or without utilizing a focusing lens.

2. Deals shall be designed, constructed, glued, and assembled in a manner to prevent determination of a winning or losing ticket without removing the tabs or otherwise uncovering the symbols or numbers as intended.

3. Each card in a deal shall bear the same serial number. Only one serial number shall be used in a deal. No serial number used in a deal shall be repeated by the same manufacturer on that same manufacturer's form within a three-year period. The flare of each deal shall accompany the deal and shall have affixed to it the same serial number as the tickets in such deal.

4. Numbers or symbols on cards shall be fully visible in the window and shall be placed so that no part of a number or symbol remains covered when the tab is removed.

5. Cards shall be glued on all edges and around each window. Glue shall be of sufficient strength and type to prevent the undetectable separation or delamination of the card. For banded tickets, the glue must be of sufficient strength and quality to prevent the separation of the band from the ticket.

6. The following minimum information shall be printed on a card:

a. Break open pull-tab, instant bingo cards, and event game cards:

(1) Name of the manufacturer or its distinctive logo;

(2) Name of the game;

(3) Manufacturer's form number;

(4) Price per individual card or bundle;

(5) Unique minimum five-digit game serial number printed on the game information side of the card; and

(6) Number of winners and respective winning number or symbols and specific prize amounts unless accompanied by a manufacturer's preprinted publicly posted flare with that information.

b. Banded pull-tabs:

(1) Manufacturer;

(2) Serial number;

(3) Price per individual card or bundle unless accompanied by a manufacturer's preprinted publicly posted flare with that information; and

(4) Number of winners and respective winning numbers or symbols and prize amounts or a manufacturer's preprinted publicly posted flare giving that information.

7. All seal card games sold to organizations shall contain the sign-up sheet, seals, and cards packaged together in each deal.

C. Raffle tickets used independent of a bingo game must conform to the following construction standards:

1. Each ticket shall have a detachable section and shall be consecutively numbered.

2. Each section of a ticket shall bear the same number. The section retained by the organization shall provide space for the purchaser's name, complete address, and telephone number.

3. The following information shall be printed on the purchaser's section of each ticket:

a. Dates and times of drawings;

b. Locations of the drawings;

c. Name of the charitable organization conducting the raffle;

d. Price of the ticket;

e. Charitable gaming permit number; and

f. Prizes.

Exceptions to these construction standards are allowed only with prior written approval from the department.

D. Electronic bingo.

1. The department, at its discretion, may require additional testing of electronic bingo devices at any time. Such additional testing shall be at the manufacturer's expense and shall be a condition of the continued use of such device.

2. All electronic bingo devices shall use proprietary software and hardware or commonly available software and computers and shall be enabled for play on the premises where the game is to be played.

3. Each electronic bingo device shall have a unique identification number permanently coded into the software of such device. Manufacturers of electronic bingo devices shall employ sufficient security safeguards in designing and manufacturing the devices such that it may be verified that all proprietary software components are authentic copies of the approved software components and all functioning components of the device are operating with identical copies of approved software programs. The device must also have sufficient security safeguards so that any restrictions or requirements authorized by the department or any approved proprietary software are protected from alteration by unauthorized personnel. The device shall not contain hard-coded or unchangeable passwords. Security measures that may be employed to comply with these provisions include, but are not limited to, the use of dongles, digital signature comparison hardware and software, secure boot loaders, encryption, and key and callback password systems.

4. Electronic bingo devices shall not allow a player to create a card by the input of specific numbers on each card. Manufacturers shall ensure that an electronic bingo device does not allow for the play of any bingo card faces other than those verifiably purchased by the patron.

5. Electronic bingo devices shall not accept cash, currency, or tokens for play.

6. Electronic bingo devices shall require the manual entry of numbers as they are called, the manual verification of numbers as they have been electronically transmitted to the device, or the full automatic daubing of numbers as each number is called. During the play of a bingo game, the transmission of data to electronic bingo devices shall be limited to one-way communication to the device and shall consist only of the number called.

7. A device shall not allow the play of more than 54 cards per device per game.

8. The electronic bingo device system shall record a sequential transaction number or audit tracking number for each transaction. The system shall not allow the manual resetting or changing of this number.

9. The system shall produce a receipt and a transaction log containing the following:

a. Organization name;

b. Location of bingo game;

c. Sequential transaction or receipt number;

d. Number of electronic bingo cards loaded;

e. Cost of electronic bingo cards loaded; and

f. Date and time of each transaction.

10. The system shall maintain and make available on demand a summary report for each session that includes the following:

a. Organization name;

b. Physical location of bingo game;

c. Date and time of each transaction;

d. Sequential transaction or receipt number;

e. Number of electronic bingo cards loaded;

f. Cost of electronic bingo cards loaded;

g. A transaction history correlating each electronic sale to the device identification number of the device on which the sale was played;

h. Sufficient information to identify voids, including the date and time of each voided transaction;

i. Sufficient information to identify device returns; and

j. Total gross receipts for each session.

11. Each device shall be programmed to automatically erase all stored electronic cards at the end of the last game of a session, within a set time from their rental to a player, or by some other clearance method approved by the department.

12. All devices shall be reloaded with another set of cards at the beginning of each session if the devices are to be reused at the same location.

E. In instances where a defect in packaging or in the construction of deals or electronic devices is discovered by or reported to the department, the department shall notify the manufacturer of the deals or devices containing the alleged defect. Should the department, in consultation with the manufacturer, determine that a defect exists, and should the department determine the defect affects game security or otherwise threatens public confidence in the game, the department may, with respect to deals or electronic devices for use still located within the Commonwealth of Virginia, require the supplier to:

1. Recall the deals or electronic devices affected that have not been sold or otherwise provided; or

2. Issue a total recall of all affected deals or electronic devices.

F. No instant bingo, pull-tab, or seal card dispenser may be sold, leased, or otherwise furnished to any person or organization in the Commonwealth of Virginia or used in the conduct of charitable gaming until an identical sample device containing identical proprietary software, if applicable, has been certified by a testing facility that has been formally recognized by the department as a testing facility that upholds the standards of integrity established by the department. The cost of testing shall be borne by the manufacturer of such equipment. In addition, suppliers and manufacturers of such dispensers shall comply with the requirements of The Gambling Devices Act of 1962 (15 USC §§ 1171-1178).

G. All instant bingo, pull-tab, or seal card dispensing devices must meet the following standards:

1. Each dispenser shall be manufactured in a manner that ensures a pull-tab ticket is dispensed only after insertion of United States currency or coinage into the dispenser. Such ticket and any change due shall be the only items dispensed from the machine.

2. Each dispenser shall be manufactured in a manner that ensures the device neither displays nor has the capability of displaying or otherwise identifying an instant bingo, pull-tab, or seal card winning or nonwinning ticket.

3. Each dispenser shall be manufactured in such a manner that any visual animation does not simulate or display rolling or spinning reels or produce audible music or enhanced sound effects.

4. Each dispenser shall be equipped with separate locks for the instant bingo, pull-tab, or seal card supply modules and money boxes. Locks shall be configured so that no one key will operate both the supply modules and money boxes.

H. The department may require additional testing of a dispensing device at any time to ensure that it meets construction standards and allows for fair play. Such tests shall be conducted at the cost of the manufacturer of such devices.

I. The face value of cards being dispensed shall match the amount deposited in the currency/coin acceptor less change provided.

11VAC15-40-140. Instant bingo, pull-tabs, seal cards, or event game cards randomization standards.

All instant bingo, pull-tabs, seal cards, or event game cards shall meet the following randomization standards:

1. Deals shall be assembled so that winning tickets are placed throughout each deal.

2. Deals shall be assembled and packaged in a manner that prevents isolation of winning cards due to variations in printing, graphics, colors, sizes, appearances of cut edges, or other markings of cards.

3. Winning cards shall be distributed and mixed among all other cards in a deal so as to eliminate any pattern between deals or portions of deals from which the location or approximate location of any winning card may be determined.

Part IV
Electronic Games of Chance Systems

Article 1
General Requirements

11VAC15-40-150. Approval of distributed pull-tab systems, validation systems, point-of-sale stations, and redemption terminals.

A. The department shall set manufacturing and testing criteria for all distributed pull-tab systems, validation systems, point-of-sale stations, redemption terminals, and other equipment used in the conduct of charitable gaming. A distributed pull-tab system, validation system, point-of-sale station, redemption terminal, or other equipment shall not be sold, leased, or otherwise furnished to any person in the Commonwealth of Virginia for use in the conduct of charitable gaming until an identical sample system or equipment containing identical software has been certified by a testing facility that has been formally recognized by the department as a testing facility that upholds the standards of integrity established by the department. The testing facility must certify that the distributed pull-tab system and associated hardware and software conform, at a minimum, to the requirements set forth in this chapter. Once the testing facility reports the test results to the department, the department will either approve or disapprove the distributed pull-tab system or system components and inform the manufacturer of the results within 10 business days. If any such system or equipment does not meet the department's criteria, it shall be recalled and shall not be distributed in the Commonwealth of Virginia. The cost of testing shall be borne by the manufacturer of such equipment.

B. No supplier shall knowingly sell or otherwise provide to an organization and no organization shall knowingly use a distributed pull-tab system, validation system, point-of-sale station, redemption terminal, or other equipment used to conduct charitable gaming unless it conforms to the requirements set forth in this regulation.

C. If a defect in a distributed pull-tab system, validation system, point-of-sale station, redemption terminal, or other equipment used to conduct charitable gaming is discovered by or reported to the department, the department shall notify the manufacturer of the system or equipment containing the alleged defect. Should the department, in consultation with the manufacturer, determine that a defect exists and should the department determine the defect affects game security or otherwise threatens public confidence in the game, the department may, with respect to any distributed pull-tab system, validation system, point of sale station, redemption terminal, or other equipment used to conduct charitable gaming still located within the Commonwealth of Virginia, require the supplier to issue a recall of all affected distributed pull-tab systems, validation systems, point-of-sale stations, redemption terminals, or other equipment.

Article 2
System Requirements

11VAC15-40-160. Distributed pull-tab system.

A distributed pull-tab system shall be dedicated primarily to electronic accounting, reporting, and the presentation, randomization, and transmission of electronic game cards to the player devices. It shall also be capable of generating the data necessary to provide the reports required within this article or otherwise specified by the department.

11VAC15-40-170. Dispensing of electronic game cards.

A distributed pull-tab system shall dispense, upon request, an electronic game card or cards. All games must be played without replacement, drawing from a single finite game set.

11VAC15-40-180. Game set requirements.

Each game set shall meet the following minimum requirements:

1. Each game set shall be made up of a finite number of electronic game cards;

2. The game set shall consist of a maximum of 25,000 electronic game cards;

3. All electronic game cards in a particular game set shall be of the same purchase price;

4. The maximum win amount awarded per any one electronic game card shall not exceed the value set forth for pull-tabs by § 18.2-340.33 of the Code of Virginia;

5. Each game set shall be assigned a unique serial number; and

6. After randomization, game sets may be broken into subsets of equal size. If game subsets are used, they shall each be assigned a unique serial number and be traceable to a parent game set.

11VAC15-40-190. Game set definition.

If the system has the capability to create a game set from a predefined set of criteria, the criteria must contain the following information:

1. Game ID;

2. Game set version;

3. Manufacturer;

4. Game name;

5. Paytable ID;

6. Purchase price per electronic game card;

7. Subset size;

8. Total number of subsets; and

9. Prize values with an associated index and frequency.

11VAC15-40-200. Data required to be available for each game set.

A. The following data shall be available prior to the opening of a game set for distribution and shall be maintained and be viewable both electronically and, if requested, by printed report, upon demand:

1. A unique serial number identifying each game set and/or subset;

2. A description of the game set sufficient to categorize the game set or subset relative to other game sets;

3. The total number of electronic game cards in the game set;

4. The number of game subsets to be created from the game set and the number of electronic game cards in each subset when applicable;

5. The payout percentage of the entire game set;

6. The purchase price per electronic game card assigned to the game set; and

7. Prize values with an associated index and frequency.

B. The following data shall be available subsequent to the completion of a game set and shall be maintained and viewable both electronically and, if requested, by printed report, upon demand:

1. A unique serial number identifying each game set and/or subset;

2. Description of the game set sufficient to categorize the game set relative to other game sets;

3. The total number of electronic game cards unsold;

4. The total number of electronic game cards purchased;

5. The time and date that the game set and/or each game subset became available for play;

6. The time and date that the game set and/or each game subset was completed or removed from play;

7. Location where game set and/or subset was played;

8. The final payout percentage of the game set when removed from play; and

9. The purchase price per electronic game card assigned to the game set.

C. In order to provide maximum game integrity, no audit or other determination of the status of any game set or any subset, including, but not limited to, a determination of the prizes won or prizes remaining to be won, shall be conducted by anyone while a game set or subset is in play without causing termination of the entire game set or subset. Only upon game set termination shall the details of the associated game set and subsets be revealed to the individual or individuals performing the audit.

D. Once terminated, a game set shall not be able to be reopened.

11VAC15-40-210. Security requirements.

A. A distributed pull-tab system computer must be in a locked, secure enclosure with key controls in place.

B. A distributed pull-tab system shall provide a means for terminating the game set if information about electronic game cards in an open game set has been accessed or at the discretion of the department. In such cases, traceability of unauthorized access including time and date, users involved, and any other relevant information shall be available.

C. A distributed pull-tab system shall not permit the alteration of any accounting or significant event information that was communicated from the player device without supervised access controls. In the event financial data is changed, an automated audit log must be capable of being produced to document the following:

1. Data element altered;

2. Data element value prior to alteration;

3. Data element value after alteration;

4. Time and date of alteration; and

5. Personnel that performed alteration.

D. A distributed pull-tab system must provide password security or other secure means of ensuring data integrity and enforcing user permissions for all system components through the following means:

1. All programs and data files must only be accessible via the entry of a password that will be known only to authorized personnel;

2. The distributed pull-tab system must have multiple security access levels to control and restrict different classes;

3. The distributed pull-tab system access accounts must be unique when assigned to the authorized personnel and shared accounts amongst authorized personnel must not be allowed;

4. The storage of passwords and PINs must be in an encrypted, nonreversible form; and

5. A program or report must be available that will list all registered users on the distributed pull-tab system including their privilege level.

E. All components of a distributed pull-tab system must have a password sign-on with two-level codes comprising the personal identification code and a personal password.

1. The personal identification code must have a length of at least six ASCII characters; and

2. The personal password must have a minimum length of six alphanumeric characters, which should include at least one nonalphabetic character.

F. A distributed pull-tab system must have the capability to control potential data corruption that can be created by multiple simultaneous log-ons by system management personnel.

1. A distributed pull-tab system shall specify which of the access levels allow for multiple simultaneous sign-ons by different users and which of the access levels do not allow for multiple sign-ons, and, if multiple sign-ons are possible, what restrictions, if any, exist; or

2. If a distributed pull-tab system does not provide adequate control, a comprehensive procedural control document must be drafted for the department's review and approval.

G. Distributed pull-tab system software components/modules shall be verifiable by a secure means at the system level. A distributed pull-tab system shall have the ability to allow for an independent integrity check of the components/modules from an outside source and is required for all control programs that may affect the integrity of the distributed pull-tab system. This must be accomplished by being authenticated by a third-party device, which may be embedded within the distributed pull-tab system software or having an interface or procedure for a third-party application to authenticate the component. This integrity check will provide a means for field verification of the distributed pull-tab system components.

H. A distributed pull-tab system may be used to configure and perform security checks on player devices, provided such functions do not affect the security, integrity, or outcome of any game and meets the requirements set forth in this regulation regarding program storage devices.

11VAC15-40-220. Backup and recovery.

A. A distributed pull-tab system computer shall have a separate physical medium for securely storing game sets or subsets on the computer, which shall be mirrored in real time by a backup medium.

B. All data required to be available or reported by this chapter must be retained for a period of not less than three years.

C. All storage of critical data shall utilize error checking and be stored on a nonvolatile physical medium.

D. The database shall be stored on redundant media so that no single failure of any portion of the system would result in the loss or corruption of data.

E. In the event of a catastrophic failure when the distributed pull-tab system cannot be restarted in any other way, it shall be possible to reload the distributed pull-tab system from the last viable backup point and fully recover the contents of that backup, to consist of at least the following information:

1. All significant events;

2. All accounting information;

3. Auditing information, including all open game sets and the summary of completed game sets; and

4. Employee files with access levels.

11VAC15-40-230. Electronic accounting and reporting.

A. One or more electronic accounting systems shall be required to perform reporting and other functions in support of distributed pull-tab system. The electronic accounting system shall not interfere with the outcome of any gaming function.

B. The following reporting capabilities must be provided by the electronic accounting system:

1. Electronic game card game set report – game sets in play. An electronic game card game set report must be available on demand for each game set currently in play. Game cards, outcomes, or prizes must not be revealed. The report must contain the following information:

a. A unique serial number identifying each game set and/or subsets;

b. A description of the game set sufficient to categorize the game set or subset relative to other game sets;

c. The total number of electronic game cards in the game set;

d. The number of game subsets to be created from the game set and the number of electronic game cards in each subset when applicable;

e. The theoretical payout percentage of the entire game set;

f. The purchase price per electronic game card assigned to the game set;

g. The time and date that the game set and/or each game subset became available for play; and

h. Location where the game set and/or subset is being played.

2. Electronic game card game set report – completed game set. An electronic game card game set report must be available on demand, for each completed game set. The report must contain the following information:

a. A unique serial number identifying each game set and/or subset;

b. Description of the game set sufficient to categorize the game set relative to other game sets;

c. The total number of electronic game cards unsold;

d. The total number of electronic game cards purchased;

e. The time and date that the game set and/or each game subset became available for play;

f. The time and date that the game set and/or each game subset was completed or removed from play;

g. Location where game set and/or subset was played;

h. The final payout percentage of the game set when removed from play; and

i. The purchase price per electronic game card assigned to the game set.

3. A report that shall indicate all prizes that exceed the threshold that triggers additional procedures to be followed for the purpose of compliance with federal tax reporting requirements. At a minimum, on a daily and monthly basis, the report shall provide the following information per player device:

a. The date and time won;

b. Location of prize award; and

c. Amount of each prize occurrence.

4. Liability report. A liability report shall provide a summary of the outstanding funds that carry from business day to business day. At a minimum, this report shall include:

a. Amount of prizes and/or vouchers that were awarded in dollars and cents, but have not yet been claimed that have not yet expired; and

b. Summary of all outstanding accounts.

5. Master reconciliation report. A master reconciliation report must be available on a per session basis, monthly basis, and quarterly basis at a minimum. A master reconciliation report shall include the following:

a. Total of all moneys used to purchase electronic game cards;

b. Total of all prizes, in dollars and cents, awarded from electronic game cards;

c. Total of all moneys inserted into a player device or provided to a cashier for the purchase of electronic game cards; and

d. Total of all moneys removed from a player device.

C. A distributed pull-tab system shall be capable of providing an electronic file in a format specified by the department on a periodic basis to a location specified by the department. The data to be reported will contain, at a minimum, the following items per session:

1. Organization identification;

2. Session date;

3. Total cash in;

4. Total cash out;

5. Total cash played;

6. Total cash won;

7. For all game sets on the system in play or in inventory:

a. Serial number;

b. Description;

c. Ticket price;

d. Number of subsets if applicable;

e. Number of tickets or number of tickets per subset;

f. Theoretical return percentage; and

g. Date game set was opened for play, when applicable; and

8. For all game sets completed or closed since the previous reporting date:

a. Serial number;

b. Description;

c. Ticket price;

d. Number of subsets, if applicable;

e. Number of tickets or number of tickets per subset;

f. Theoretical return percentage;

g. Date game set was opened;

h. Date game set was closed;

i. Total tickets sold;

j. Total dollars in;

k. Total prizes paid; and

l. Actual return percentage.

11VAC15-40-240. Randomization.

A. As used in this section, unless the context requires a different meaning:

"Card position" means the first card dealt, second card dealt in sequential order.

"Number position" means the first number drawn in sequential order.

B. A distributed pull-tab system shall utilize randomizing procedures in the creation of game sets for electronic game cards or externally generated randomized game sets that have been created using a method previously approved by the department.

C. Any random number generation, shuffling, or randomization of outcomes used in connection with a distributed pull-tab system must be by use of a random number generation application that has successfully passed standard tests for randomness and unpredictability including but not limited to:

1. Each card position or number position satisfies the 99% confidence limit using the standard chi-squared analysis. "Chi-squared analysis" is the sum of the ratio of the square difference between the expected result and the observed result to the expected result.

2. Each card position or number position does not produce a significant statistic with regard to producing patterns of occurrences. Each card position or number position will be considered random if it meets the 99% confidence level with regard to the "run test" or any similar pattern testing statistic. The "run test" is a mathematical statistic that determines the existence of recurring patterns within a set of data.

3. Each card position or number position is independently chosen without regard to any other card or number drawn within that game play. This test is the "correlation test." Each pair of card positions or number positions is considered random if it meets the 99% confidence level using standard correlation analysis.

4. Each card position or number position is independently chosen without reference to the same card position or number position in the previous game. This test is the "serial correlation test." Each card position or number position is considered random if it meets the 99% confidence level using standard serial correlation analysis.

11VAC15-40-250. Communications and network requirements.

A. Where the distributed pull-tab system components are linked with one another in a network, communication protocols shall be used that ensure that erroneous data or signals will not adversely affect the operations of any such system components.

B. All data communication shall incorporate an error detection and correction scheme to ensure the data is transmitted and received accurately.

C. Connections between all components of the distributed pull-tab system shall only be through the use of secure communication protocol(s) that are designed to prevent unauthorized access or tampering, employing Advanced Encryption Standard (AES), or equivalent encryption.

D. The minimum width (size) for encryption keys is 112 bits for symmetric algorithms and 1024 bits for public keys.

E. There must be a secure method implemented for changing the current encryption key set. It is not acceptable to only use the current key set to "encrypt" the next set.

F. There must be a secure method in place for the storage of any encryption keys. Encryption keys must not be stored without being encrypted themselves.

G. If a wireless network is used, wireless products used in conjunction with any gaming system or system component must meet the following minimum standards:

1. Employ a security process that complies with the Federal Information Processing Standard 140-2 (FIPS 140-2); or

2. Employ an alternative method, as approved by the department.

11VAC15-40-260. Significant events.

The following significant events, if applicable, shall be collected from the player device or point of sale and communicated to the system for storage and a report of the occurrence of the significant event must be made available upon request:

1. Power resets or power failure.

2. Communication loss between a player device and any component of the distributed pull-tab system.

3. Player device jackpot (any award in excess of the single win limit of the player device).

4. Door openings (any external door that accesses a critical area of the player device).

5. Bill validator errors:

a. Stacker full (if supported); and

b. Bill jam.

6. Printer errors:

a. Printer empty; and

b. Printer disconnect or failure.

7. Corruption of the player device RAM or program storage device.

8. Any other significant events as defined by the protocol employed by the distributed pull-tab system.

11VAC15-40-270. Validation system and redemption.

A distributed pull-tab system may utilize a voucher validation system to facilitate gaming transactions. The validation system may be entirely integrated into a distributed pull-tab system or exist as a separate entity.

1. Payment by voucher printer as a method of redeeming unused game plays and/or winnings on a player device is only permissible when the device is linked to an approved validation system or distributed pull-tab system that allows validation of the printed voucher.

a. A distributed pull-tab system may allow voucher out only; vouchers shall not be inserted, scanned, or used in any way at the player device for redemption.

b. The validation system must process voucher redemption correctly according to the secure communication protocol implemented.

2. The algorithm or method used by the validation system or distributed pull-tab system to generate the voucher validation numbers must guarantee an insignificant percentage of repetitive validation numbers.

3. The validation system must retrieve the voucher information correctly based on the secure communication protocol implemented and store the voucher information in a database. The voucher record on the host system must contain, at a minimum, the following voucher information:

a. Validation number;

b. Date and time the player device printed the voucher;

c. Value of voucher in dollars and cents;

d. Status of voucher;

e. Date and time the voucher will expire;

f. Serial number of player device; and

g. Location name or site identifier;

4. The validation system or distributed pull-tab system must have the ability to identify the following occurrences and notify the cashier when the following conditions exist:

a. Voucher cannot be found on file;

b. Voucher has already been paid; or

c. Amount of voucher differs from amount on file (requirement may be met by display of voucher amount for confirmation by cashier during the redemption process).

5. If the connection between the validation system and the distributed pull-tab system fails, an alternate method or procedure of payment must be available and shall include the ability to identify duplicate vouchers and prevent fraud by redeeming vouchers that were previously issued by the player device.

6. The following reports related to vouchers shall be generated on demand:

a. Voucher Issuance Report shall be available from the validation system that shows all vouchers generated by an electronic game card device; and

b. Voucher Redemption Report shall detail individual vouchers, the sum of the vouchers paid by the validation terminal or point of sale by session, and include the following information:

(1) The date and time of the transaction;

(2) The dollar value of the transaction;

(3) Validation number;

(4) A transaction number; and

(5) Point-of-sale identification number or name.

7. The validation system database must be encrypted and password-protected and should possess a nonalterable user audit trail to prevent unauthorized access.

8. The normal operation of any device that holds voucher information shall not have any options or method that may compromise voucher information. Any device that holds voucher information in its memory shall not allow removal of the information unless it has first transferred that information to the ticketing database or other secured component or components of the validation system.

11VAC15-40-280. Point of sale; validation terminal.

A. A distributed pull-tab system may utilize a point-of-sale and/or validation terminal that is capable of facilitating the sale of the organization's pull tab outcomes or used for the redemption of credits from player accounts or vouchers. The point of sale may be entirely integrated into a distributed pull-tab system or exist as a separate entity.

B. Point-of-sale use is only permissible when the device is linked to an approved validation system or distributed pull-tab system.

C. If a distributed pull-tab system utilizes a point of sale, it shall be capable of printing a receipt for each sale, void, or redemption.

1. The receipt shall contain the following information:

a. Date and time of the transaction;

b. Dollar value of the transaction;

c. Validation number, if applicable;

d. Quantity of associated products, if applicable;

e. Transaction number;

f. Account number, if applicable; and

g. Point-of-sale identification number or name.

D. The following point-of-sale or validation terminal reports shall be generated on demand:

1. Sales Transaction History Report shall show all sales and voids by session and include the following information:

a. Date and time of the transaction;

b. Dollar value of the transaction;

c. Quantity of associated products;

d. Transaction number; and

e. Point of sale identification number or name;

2. Voucher Redemption Report shall detail individual voucher redemptions paid by the validation terminal or point of sale by session and include the following information:

a. Date and time of the transaction;

b. Dollar value of the transaction;

c. Validation number;

d. Transaction number; and

e. Point of sale identification number or name.

11VAC15-40-290. Location of equipment.

All equipment used to facilitate the distribution, play, or redemption of electronic pull-tab or instant bingo games must be physically located within the boundaries of the Commonwealth of Virginia. This includes but is not limited to the distributed pull-tab system, player devices, redemption terminals, and point-of-sale stations.

Article 2
Player Devices

11VAC15-40-300. Player device general requirements.

A. Each player device shall bear a seal approved by the commissioner and affixed by the department.

B. A player device shall not be capable of being used for the purposes of engaging in any game prohibited by the department.

C. In addition to a video monitor or touch screen, each player device may have one or more of the following: a bill acceptor, printer, and electromechanical buttons for activating the game and providing player input, including a means for the player to make selections and choices in games.

D. For each player device, there shall be located anywhere within the distributed pull-tab system, nonvolatile memory or its equivalent. The memory shall be maintained in a secure location for the purpose of storing and preserving a set of critical data that has been error checked in accordance with the critical memory requirements of this regulation.

E. A player device shall not have any switches, jumpers, wire posts, or other means of manipulation that could affect the operation or outcome of a game. The player device may not have any functions or parameters adjustable through any separate video display or input codes except for the adjustment of features that are wholly cosmetic.

F. A player device shall not have any of the following attributes: spinning or mechanical reels, pull handle, sounds other than an audio effect to simulate the opening of a paper pull-tab or instant bingo card, flashing lights, tower light, top box, coin tray, ticket acceptance, hopper, coin acceptor, enhanced animation, cabinet or payglass artwork, or any other attribute identified by the department.

G. A player device shall be robust enough to withstand forced illegal entry that would leave behind physical evidence of the attempted entry or such entry that causes an error code that is displayed and transmitted to the distributed pull-tab system. Any such entry attempt shall inhibit game play until cleared, and shall not affect the subsequent play or any other play, prize, or aspect of the game.

H. The number of player devices, other than those player devices that are handheld, present at any premise at which charitable gaming is conducted shall be limited to one device for every 50 permissible occupants under the maximum occupancy as determined pursuant to the Uniform Statewide Building Code. The department shall determine whether a player device is handheld.

11VAC15-40-310. Cabinet wiring.

A. Proof of UL or equivalent certification shall be required for all submitted electronic devices.

B. A player device shall be designed so that power and data cables into and out of the player device can be routed so that the cables are not accessible to the general public.

11VAC15-40-320. Player device identification.

A player device shall have a permanently affixed identification badge that cannot be removed without leaving evidence of tampering. This badge shall be affixed to the exterior of the player device and shall include the following information:

1. Manufacturer name;

2. A unique serial number;

3. The player device model number;

4. The date of manufacture; and

5. Any other information required by the department.

11VAC15-40-330. Doors; compartments.

A. If a player device possesses an external door that allows access to the interior of the machine the following rules shall apply:

1. Doors and their associated hinges shall be capable of withstanding determined illegal efforts to gain access to the inside of the player device and shall leave evidence of tampering if an illegal entry is made;

2. All external doors shall be locked and monitored by door access sensors that shall detect and report all external door openings by way of an audible alarm, on-screen display, or both;

3. The player device shall cease play when any external door is opened;

4. It shall not be possible to disable a door open sensor when the machine's door is closed without leaving evidence of tampering;

5. The sensor system shall register a door as being open when the door is moved from its fully closed and locked position; and

6. Door open conditions shall be recorded in an electronic log that includes a date/time stamp.

B. Player devices that contain control programs located within an accessible area shall have a separate internal locked logic compartment, that shall be keyed differently than the front door access lock. The logic compartment shall be a locked cabinet area with its own locked door, that houses critical electronic components that have the potential to significantly influence the operation of the player device. There may be more than one such logic area in a player device. Electronic component items that are required to be housed in one or more logic areas are:

1. CPUs and other electronic components involved in the operation and calculation or display of game play;

2. Communication controller electronics and components housing the communication program storage media or, the communication board for the on-line system may reside outside the player device; and

3. Logic compartment door open conditions shall be recorded in a log that includes a date/time stamp.

C. Player devices that do not contain a door shall have adequate security for any panels or entry points that allow access to the interior of the device.

11VAC15-40-340. Memory clear.

A. Following the initiation of a memory reset procedure utilizing a certified reset method, the program shall execute a routine that initializes the entire contents of memory to the default state. For player devices that allow for partial memory clears, the methodology in doing so must be accurate and the game application must validate the uncleared portions of memory. The player device display after a memory reset shall not be the top award.

B. It shall not be possible to change a configuration setting that causes an alteration or obstruction to the electronic accounting meters without a memory clear.

11VAC15-40-350. Critical memory.

A. Critical memory shall be used to store all data that is considered vital to the continued operation of the player device. Critical memory storage shall be maintained by a methodology that enables errors to be identified and corrected in most circumstances. This methodology may involve signatures, checksums, partial checksums, multiple copies, timestamps, and/or use of validity codes. This includes, but is not limited to:

1. All electronic meters required in 11VAC15-40-420 E;

2. Current unused credits;

3. Player device or game configuration data;

4. Recall of all wagers and other information necessary to fully reconstruct the game outcome associated with the last 10 plays;

5. Software state, which is the last state the player device software was in before interruption; and

6. Error conditions that may have occurred on the player device that may include:

a. Memory error or control program error;

b. Low memory battery, for batteries external to the memory itself or low power source;

c. Program error or authentication mismatch; and

d. Power reset.

B. Comprehensive checks of critical memory shall be made continually to test for possible corruption. In addition, all critical memory:

1. Shall have the ability to retain data for a minimum of 180 days after power is discontinued from the player device. If the method used is an off-chip battery source, it shall recharge itself to its full potential in a maximum of 24 hours. The shelf life shall be at least five years. Memory that uses an off-chip back-up power source to retain its contents when the main power is switched off shall have a detection system that will provide a method for software to interpret and act upon a low battery condition;

2. Shall only be cleared by a department certified memory clear method; and

3. Shall result in an error if the control program detects an unrecoverable memory error.

11VAC15-40-360. Program storage devices.

A. All program storage devices (writable/nonwritable), including Erasable Programmable Read Only Memory (EPROM), DVD, CD-ROM, compact flash, and any other type of program storage device shall be clearly marked with sufficient information to identify the software and revision level of the information stored in the devices.

B. Program storage devices shall meet the following requirements:

1. Program storage, including CD-ROM, shall meet the following rules:

a. The control program shall authenticate all critical files by employing a hashing algorithm that produces a "message digest" output of at least 128 bits at minimum, as certified by the recognized independent test laboratory and agreed upon by the department. Any message digest shall be stored on a read-only memory device within the player device. Any message digest that resides on any other medium shall be encrypted, using a public/private key algorithm with a minimum of a 512 bit key, or an equivalent encryption algorithm with similar security certified by the independent test laboratory and agreed upon by the department.

b. The player device shall authenticate all critical files against the stored message digests. In the event of a failed authentication, the player device should immediately enter an error condition with the appropriate indication such as an audible signal, on-screen display, or both. This error shall require operator intervention to clear. The player device shall display specific error information and shall not clear until the file authenticates properly and/or the player device's memory is cleared, the game is restarted, and all files authenticate correctly.

2. CD-ROM specific based program storage shall:

a. Not be a rewriteable disk; and

b. The "write session" shall be closed to prevent any further writing to the storage device.

C. Player devices where the control program is capable of being erased and reprogrammed without being removed from the player device, or other equipment or related peripheral devices shall meet the following requirements:

1. Reprogrammable program storage shall only write to alterable storage media containing data, files, and programs that are not critical to the basic operation of the game.

2. Notwithstanding the foregoing, data may be written to media containing critical data, files, and programs provided that:

a. A log of all information that is added, deleted, and modified be stored on the media;

b. The control program verifies the validity of all data, files, and programs that reside on the media using the methods required herein;

c. The player device's program contains appropriate security to prevent unauthorized modifications; and

d. The player device's program does not allow game play while the media containing the critical data, files, and programs is being modified.

D. The control program shall ensure the integrity of all critical program components during the execution of said components and the first time the files are loaded for use even if only partially loaded. Space that is not critical to machine security (e.g., video or sound) is not required to be validated, although the department recommends a method be in place for the files to be tested for corruption. If any of the video or sound files contain payout amounts or other information needed by the player, the files are to be considered critical.

11VAC15-40-370. Touch screens.

Any touch screen must meet the following rules:

1. A touch screen shall be accurate once calibrated;

2. A touch screen shall be able to be recalibrated; and

3. A touch screen shall have no hidden or undocumented buttons or touch points anywhere on the touch screen, except as provided for by the game rules that affect game play.

11VAC15-40-380. Bill acceptors.

A. A player device may have a mechanism that accepts U.S. currency and provides a method to enable the player device software to interpret and act appropriately upon a valid or invalid input.

B. An acceptance device shall be electronically based and be configured to ensure that it only accept valid bills and rejects all others in a highly accurate manner.

C. A bill input system shall be constructed in a manner that protects against vandalism, abuse, or fraudulent activity. In addition, a bill acceptance device shall only register credits when:

1. The bill has passed the point where it is accepted and stacked; and

2. The bill acceptor has sent the "irrevocably stacked" message to the machine.

D. A bill acceptor shall communicate to the player device using a bidirectional protocol.

E. A bill acceptor shall be designed to prevent the use of cheating methods such as stringing, the insertion of foreign objects, and any other manipulation that may be deemed as a cheating technique.

F. If a bill acceptor is designed to be factory set only, it shall not be possible to access or conduct maintenance or adjustments to that bill acceptor in the field, other than:

1. The selection of bills and their limits;

2. Changing of certified EPROMs or downloading of certified software;

3. The method for adjustment of the tolerance level for accepting bills of varying quality should not be accessible from the exterior of the player device. Adjustments of the tolerance level should only be allowed with adequate levels of security in place. This can be accomplished through lock and key, physical switch settings, or other accepted methods approved on a case-by-case basis;

4. Maintenance, adjustment, and repair per approved factory procedures; and

5. Options that set the direction or orientation of bill acceptance.

G. A player device equipped with a bill acceptor shall have the capability of detecting and displaying an error condition for the following events:

1. Stacker full (it is recommended that an explicit "stacker full" error message not be utilized since this may cause a security issue);

2. Bill jams;

3. Bill acceptor door open. If a bill acceptor door is a machine door, a door open signal is sufficient;

4. Stacker door open; and

5. Stacker removed.

H. A player device equipped with a bill acceptor shall maintain sufficient electronic metering to be able to report the following:

1. Total monetary value of all bills accepted;

2. Total number of all bills accepted;

3. A breakdown of the bills accepted for each denomination; and

4. The value of the last five items accepted by the bill acceptor.

11VAC15-40-390. Payment by voucher printers.

A. If the player device has a printer that is used to issue payment to the player by issuing a printed voucher for any unused game plays and/or winnings, the player device shall meet the following rules:

1. The printer shall be located in a secure area of the player device, but shall not be located in the logic area or any cash storage area. The bill acceptor stacker or logic areas containing critical electronic components shall not be accessed when the printer paper is changed;

2. The player device, in which the printer is housed, is linked to a voucher validation system, which records the voucher information; and

3. Data printed on a voucher shall be provided to the voucher validation system that records the following information regarding each voucher printed:

a. Value of unused game plays and/or winnings in U.S. currency, in numerical form;

b. Time the voucher was printed;

c. Date the voucher was printed;

d. Location name or site identifier;

e. Serial number of player device;

f. Unique validation number or barcode; and

g. Expiration date and time.

B. If the player device is capable of printing a duplicate voucher, the duplicate voucher shall clearly state the word "DUPLICATE" on its face.

C. The printer shall use printer paper containing security features such as a watermark as approved by the department.

D. A printer shall have mechanisms to allow the player device to interpret and act upon the following conditions that must disable the game, and produce an error condition that requires attendant intervention to resume play:

1. Out of paper;

2. Printer jam or failure; and

3. Printer disconnect. The player device may detect this error condition when the game tries to print.

E. A player device that uses a voucher printer shall maintain a minimum of the last 25 transactions in critical memory. All voucher transactions shall be logged with a date and time stamp.

11VAC15-40-400. Payment by account.

A. Credit may be added to a player account via a cashier or point of sale station. Credit may also be added by any supporting player device through credits won or bills.

B. Money may be removed from a player account either through downloading of credits to the player device or by cashing out at a cashier's or point-of-sale station.

C. All monetary transactions between a supporting player device and the distributed pull-tab system must be secured by means of a card insertion into a magnetic card reader and PIN entry or by other protected means.

Article 3
Game Requirements

11VAC15-40-410. Game play requirements.

A. A player receives an electronic game card in return for consideration. A player wins if the player's electronic game card contains a combination of symbols or numbers that was designated in advance of the game as a winning combination. There may be multiple winning combinations in each game. Electronic versions of instant bingo and pull-tabs, as authorized by the department, shall only utilize devices that allow players to play electronic game cards. A player device shall meet the following minimum requirements:

1. A player may purchase an opportunity to play an electronic game card by:

a. Insertion of U.S. currency (bills only);

b. Purchase made at a point of sale terminal; or

c. Withdrawing deposits available in a player account.

2. In addition to the available games, the rules of play shall be displayed on the player device's video screen. Rules of play shall include all winning combinations.

3. Any number of game themes may be selectable for play on any given player device. Only one of the game themes shall be playable at any given time.

4. A player device shall be clearly labeled so as to inform the public that no one under 18 years of age is allowed to play.

5. A player device shall not be capable of displaying any enticing animation while in an idle state. A player device may use simple display elements or screen savers to prevent monitor damage.

6. The results of the electronic game card shall be shown to the player using a video display. No rolling, flashing, or spinning animations are permitted. No rotating reels marked into horizontal segments by varying symbols are permitted. No entertaining sound or music is permitted other than an audio effect to simulate the opening of a paper pull-tab or instant bingo card. Any sounds present used to simulate the opening of a paper pull-tab must not be played at a level sufficient to disturb other players or patrons.

7. The player device shall have one or more buttons, electromechanical or touch screen, to facilitate the following functions:

a. Viewing of the game "help" screens;

b. Viewing of the game rules;

c. Initiating game play;

d. Cashout or logout; and

e. One or more buttons designated to reveal the pull-tab or instant bingo windows.

8. Following play on a player device, the result shall be clearly shown on the video display along with any prizes that may have been awarded. Prizes may be dispensed in the form of:

a. Voucher;

b. Added to the machine balance meter; or

c. Added to the player's account balance.

9. An available balance may be collected from the player device by the player pressing the "cashout" button or logging off of the player device at any time other than during:

a. A game being played;

b. While in an audit mode or screen;

c. Any door open;

d. Test mode;

e. A machine balance meter or win meter incrementation unless the entire amount is placed on the meter when the "cashout" button is pressed; or

f. An error condition.

10. The default player device display, upon entering game play mode, shall not be the top award.

B. A player device shall not have hardware or software that determines the outcome of any electronic game card, produce its own outcome, or affect the order of electronic game cards as dispensed from the distributed pull-tab system. The game outcome shall be determined by the distributed pull-tab system as outlined within these rules.

C. Game themes may not contain obscene or offensive graphics, animations, or references. All game themes will be subject to approval by the department.

D. Prior to approval for use, each player device must meet the following specifications with respect to its operation:

1. After accepting an allowable cash payment from the player, the player shall press a "play" button to initiate a game.

2. The player device shall not display in any manner, the number of electronic game cards of each finite category, or how many cards remain.

3. Awards of merchandise prizes in lieu of cash are prohibited.

4. The player must interact with the device to initiate a game and reveal a win or loss. This may involve a button press on the console or on the touch screen.

5. The electronic game card must be initially displayed with a cover and require player interaction to reveal the symbols and game outcome.

6. In no event may a player device simulate play of roulette, poker, keno, lotto or lottery, twenty-one, blackjack, or any other card game, or simulate play of any type of slot machine game, regardless of whether the machine has a payback feature or extra play awards. Card symbols such as ace, king, queen, or heart are acceptable, provided the aforementioned is abided by.

7. Games must not contain any elements of skill.

E. Each player device must meet the following specifications with respect to its metering system:

1. A player device shall contain electronic metering whereby meters record and display on the video screen the following information at a minimum:

a. Total cash in for the bill acceptor if equipped with a bill acceptor;

b. Total cash played;

c. Total cash won;

d. Total cash removed from player device;

e. Total count of electronic game cards played; and

f. Total count of electronic game cards won.

2. An electronic meter shall be capable of maintaining correct totals and be of no less than 10 digits in length.

3. A player device shall not be capable of displaying the number of electronic game cards that remain in the game set or the number of winners or losers that have been drawn or still remain in the game set while the game set is still being played.

4. An electronic meter shall not be capable of being automatically reset or cleared, whether due to an error in any aspect of the meter's or a game's operation or otherwise.

5. Currency meters shall be maintained in dollars and cents.

Part V
Administrative Process

11VAC15-40-420. Procedural rules for the conduct of fact-finding conferences and hearings.

A. Fact-finding conference; notification, appearance, and conduct.

1. Unless automatic revocation or immediate suspension is required by law, no permit to conduct charitable gaming or to sell charitable gaming supplies shall be denied, suspended, or revoked except after review and approval of such proposed denial, suspension, or revocation action by the board, and upon notice stating the basis for such proposed action and the time and place for a fact-finding conference as set forth in § 2.2-4019 of the Administrative Process Act.

2. If a basis exists for a refusal to renew, suspend, or a revoke a permit, the department shall notify by certified mail or by hand delivery the interested persons at the address of record maintained by the department.

3. Notification shall include the basis for the proposed action and afford interested persons the opportunity to present written and oral information to the department that may have a bearing on the proposed action at a fact-finding conference. If there is no withdrawal, a fact-finding conference shall be scheduled at the earliest mutually agreeable date, but no later than 60 days from the date of the notification. Organizations or suppliers who wish to waive their right to a conference shall notify the department at least 14 days before the scheduled conference.

4. If, after consideration of evidence presented during an informal fact-finding conference, a basis for action still exists, the interested persons shall be notified in writing within 60 days of the fact-finding conference via certified or hand-delivered mail of the decision and the right to a formal hearing. Parties to the conference may agree to extend the report deadline if more time is needed to consider relevant evidence.

B. Hearing; notification, appearance, and conduct.

1. If, after a fact-finding conference, a sufficient basis still exists to deny, suspend, or revoke a permit, interested persons shall be notified by certified or hand-delivered mail of the proposed action and of the opportunity for a hearing on the proposed action. If an organization or supplier desires to request a hearing, it shall notify the department within 14 days of receipt of a report on the conference. Parties may enter into a consent agreement to settle the issues at any time prior to, or subsequent to, an informal fact-finding conference.

2. If an interested party or representative fails to appear at a hearing, the hearing officer may proceed in his absence and make a recommendation.

3. Oral and written arguments may be submitted to and limited by the hearing officer. Oral arguments shall be recorded in an appropriate manner.

C. Hearing location. Hearings before a hearing officer shall be held, insofar as practicable, in the county or city in which the organization or supplier is located. If the parties agree, hearing officers may conduct hearings at locations convenient to the greatest number of persons or by telephone conference, video conference, or similar technology, in order to expedite the hearing process.

D. Hearing decisions.

1. Recommendations of the hearing officer shall be a part of the record and shall include a written statement of the hearing officer's findings of fact and recommendations as well as the reasons or basis for the recommendations. Recommendations shall be based upon all the material issues of fact, law, or discretion presented on the record.

2. The department shall review the recommendation of the hearing officer and render a decision on the recommendation within 30 days of receipt. The decision shall cite the appropriate rule, relief, or denial thereof as to each issue.

E. Agency representation. The commissioner's designee may represent the department in an informal conference or at a hearing.

11VAC15-40-430. Reporting violations.

A. Unless otherwise required by law, the identity of any individual who provides information to the department or its agents regarding alleged violations shall be held in strict confidence.

B. Any officer, director, or game manager of a qualified organization or any officer or director of a supplier shall immediately report to the department any information pertaining to the suspected misappropriation or theft of funds or any other violations of charitable gaming statutes or these regulations.

C. Failure to report the information required by subsection B of this section may result in the denial, suspension, or revocation of a permit.

D. Any officer, director, or game manager of a qualified organization involved in the management, operation, or conduct of charitable gaming shall immediately notify the department upon conviction of a felony or a crime involving fraud, theft, or financial crimes.

E. Any officer, director, partner, or owner of a supplier shall immediately notify the department upon conviction or plea of nolo contendere to a felony or a crime involving gambling or an action against any license or certificate held by the supplier in any state in the United States.

F. Failure to report information required by subsection D or E of this section by any officer, director, or game manager of a qualified organization or by any supplier may result in the denial, suspension, or revocation of a permit.

G. Any officer, director, or game manager of a qualified organization involved in charitable gaming shall immediately report to the department any change the Internal Revenue Service makes in the tax status of the organization, or if the organization is a chapter of a national organization covered by a group tax exempt determination, the tax status of the national organization.

H. All organizations regulated by the department shall display prominently a poster advising the public of a phone number where complaints relating to charitable gaming may be made. Such posters shall be provided by the department to organizations at no charge.

NOTICE: The following forms used in administering the regulation were 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 to access a form. The forms are also available from the agency contact or may be viewed at the Office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia 23219.

FORMS (11VAC15-40)

GAME MANAGEMENT FORMS

Bingo Session Reconciliation Summary, Form 103 (rev. 1/11).

Admission Sales Reconciliation - Paper, Form 104-A (rev. 1/11).

Floor Sales Reconciliation - Paper, Form 104-B (rev. 1/11).

Decision Bingo Reconciliation, Form 104-C (rev. 1/11).

Raffle/Treasure Chest Sales Reconciliation - Bingo Session, Form 104-D (rev. 1/11).

Instant Bingo/Seal Cards/Pull-Tabs Reconciliation, Form 105 (rev. 1/11) .

Storeroom Inventory Issue - Paper, Form 106-A (rev. 7/08).

Storeroom Inventory Issue - Instant Bingo/Seal Cards/Pull-Tabs, Form 106-B (rev. 7/08).

List of Volunteer Workers, Form 107 (rev. 7/08).

Prize Receipt, Form 108 (rev. 7/08).

Storeroom Inventory - Paper, Form 109-A (rev. 1/11).

Storeroom Inventory - Instant Bingo/Seal Cards/Pull-Tabs, Form 109-B (rev. 1/11) .

ORGANIZATION LICENSING FORMS

Charitable Gaming Permit Application - New Applicants Only, Form 201 - N (rev. 1/11).

Charitable Gaming Permit Application - Renewal Applicants Only, Form 201 - R (rev. 1/11).

Permit Amendment (rev. 1/11).

Gaming Personnel Information Update (rev. 7/08).

Report of Game Termination (rev. 7/08).

SUPPLIER LICENSING FORMS

Charitable Gaming Supplier Permit Application, Form 301 (rev. 1/11).

Annual Supplier Sales and Transaction Report, Form 302 (rev. 7/08).

BINGO MANAGER AND BINGO CALLER REGISTRATION FORMS

Charitable Gaming Bingo Caller Certificate of Registration Application, Form 401 (rev. 1/11).

Charitable Gaming Bingo Manager Certificate of Registration Application, Form 402 (rev. 1/11).

Amendment to Certificate of Registration – Registered Bingo Callers and Bingo Managers (rev. 1/11).

Personal Information Update – Registered Bingo Callers and Registered Bingo Managers, Form 404 (rev. 7/07).

Bona Fide Member Verification, Form 405 (rev. 5/11).

DOCUMENTS INCORPORATED BY REFERENCE (11VAC15-40)

IRS Publication 3079, Tax-Exempt Organizations and Gaming (rev. 6/10).

Security Requirements for Cryptographic Modules, Federal Information Processing Standard, FIPS Pub 140-2 (rev. 12/02).

VA.R. Doc. No. R11-2560; Filed October 19, 2011, 2:33 p.m.

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TITLE 12. HEALTH

STATE BOARD OF HEALTH

Final Regulation

REGISTRAR'S NOTICE: The following regulatory action is exempt from the Administrative Process Act in accordance with § 2.2-4006 A 4 c of the Code of Virginia, which excludes regulations that are necessary to meet the requirements of federal law or regulations, provided such regulations do not differ materially from those required by federal law or regulation. 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: 12VAC5-590. Waterworks Regulations (amending 12VAC5-590-10, 12VAC5-590-340, 12VAC5-590-350, 12VAC5-590-370, 12VAC5-590-380, 12VAC5-590-410, 12VAC5-590-420, 12VAC5-590-440, 12VAC5-590-460, 12VAC5-590-500, 12VAC5-590-530, 12VAC5-590-540, 12VAC5-590-545, 12VAC5-590-550; adding 12VAC5-590-379, 12VAC5-590-421, 12VAC5-590-425).

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

Effective Date: December 7, 2011.

Agency Contact: Robert A. K. Payne, Compliance Manager, Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 864-7498, or email rob.payne@vdh.virginia.gov.

Summary:

The amendments provide for (i) periodic sanitary surveys of groundwater source waterworks that require the evaluation of eight critical elements and the identification of significant deficiencies; (ii) source water monitoring to test for the presence of E. coli; (iii) required corrective actions for any waterworks with a significant deficiency or source water E. coli contamination; and (iv) compliance monitoring to ensure that treatment technology installed to treat drinking water achieves at least 99.99% inactivation or removal of viruses.

Part I
General Framework for Waterworks Regulations

Article 1
Definitions

12VAC5-590-10. Definitions.

As used in this chapter, the following words and terms shall have meanings respectively set forth unless the context clearly requires a different meaning:

"Action level" 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.

"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.

"Annual daily water demand" means the average rate of daily water usage over at least the most recent three-year period.

"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.

"Auxiliary water system" means any water system on or available to the premises other than the waterworks. These auxiliary waters may include water from a source such as wells, lakes, or streams; or process fluids; or used water. They may be polluted or contaminated or objectionable, or constitute an unapproved water source or system over which the water purveyor does not have control.

"Backflow" means the flow of water or other liquids, mixtures, or substances into the distribution piping of a waterworks from any source or sources other than its intended source.

"Backflow prevention device" means any approved device, method, or type of construction intended to prevent backflow into a waterworks.

"Bag filters" means pressure-driven separation devices that remove particulate matter larger than one micrometer using an engineered porous filtration media. They 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). Infiltration is typically enhanced by the hydraulic gradient imposed by a nearby pumping water supply or other well(s).

"Best available technology (BAT)" means the best technology, treatment techniques, or other means which the commissioner finds, after examination for efficacy under field conditions and not solely under laboratory conditions and in conformance with applicable EPA regulations, 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.

"Cartridge filters" means pressure-driven separation devices that remove particulate matter larger than one micrometer using an engineered porous filtration media. They 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.

"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.

"Community waterworks" means a waterworks which 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 January 1, 1993, and ends 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.

"Compliance period" means a three-year calendar year period within a compliance cycle. Each compliance cycle has 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.

"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 C 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.

"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 which has no water production or source facility of its own and which obtains all of its water from another permitted waterworks or receives some or all of its finished water from one or more wholesale waterworks. Delivery may be through a direct connection or through the distribution system of one or more consecutive waterworks.

"Consumer" means any person who drinks water 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.

"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" means any connection or structural arrangement, direct or indirect, to the waterworks whereby backflow can occur.

"CT" or "CT calc" 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.

"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 added to water in any part of the treatment or distribution process for the purpose of killing or deactivating 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 pathogenic organisms in water by chemical oxidants or equivalent agents.

"Disinfection profile" means a summary of Giardia lamblia or virus inactivation through the treatment plant.

"Distribution main" means a water main whose primary purpose is to provide treated 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.

"Domestic use or usage" means normal family or household use, including drinking, laundering, bathing, cooking, heating, cleaning and flushing toilets (see Article 2 (§ 32.1-167 et seq.) of Chapter 6 of Title 32.1 of the Code of Virginia).

"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.

"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.

"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.

"Equivalent residential connection" means a volume of water used equal to a residential connection which 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.

"Exemption" means a conditional waiver of a specific PMCL or treatment technique requirement which is granted to a specific 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 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 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 remaining in water at the end of a specified contact period which 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.

"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 treatment is not a groundwater system. Groundwater systems include consecutive waterworks that receive finished groundwater from a wholesale waterworks.

"Groundwater under the direct influence of surface water" or "GUDI" means any water beneath the surface of the ground with significant occurrence of insects or other macroorganisms, algae, or large-diameter pathogens such as Giardia lamblia, or Cryptosporidium. It also means 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 in accordance with 12VAC5-590-430 will determine direct influence of surface water.

"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.

"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 which include all primary maximum contaminant levels, treatment technique requirements, and all operational regulations, the violation of which would jeopardize the public health.

"Hypochlorite" means a solution of water and some form of chlorine, usually sodium 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 which shall begin January 1993.

"Interchangeable connection" means an arrangement or device that will allow alternate but not simultaneous use of two sources of water.

"Karstian "Karst geology" means an area predominantly underlain by limestone, dolomite, or gypsum and characterized by rapid underground drainage. Such 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" means a natural or 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 D, and 12VAC5-590-550 D only, a waterworks that serves more than 50,000 persons.

"Lead free" means the following:

1. When used with respect to solders and flux refers to solders and flux containing not more than 0.2% lead;

2. When used with respect to pipes and pipe fittings refers to pipes and pipe fittings containing not more than 8.0% 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 made of lead which connects the water main to the building inlet and any lead pigtail, gooseneck or other fitting that is connected to such lead line.

"Legionella" means a genus of bacteria, some species of which have caused a type of pneumonia called Legionnaires Disease.

"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.

"Man-made 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.

"Maximum daily water demand" means the rate of water usage during the day of maximum water use.

"Maximum contaminant level (MCL)" means the maximum permissible level of a contaminant in pure water which is delivered to any user of a waterworks. MCLs are set as close to the MCLGs as feasible using the best available treatment technology. MCLs may be either "primary" (PMCL), meaning based on health considerations or "secondary" (SMCL) meaning based on aesthetic considerations.

"Maximum residual disinfectant level (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 (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 which 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 (MTP)" means the maximum concentration of total trihalomethanes produced in a given water containing a disinfectant residual after seven days at a temperature of 25°C or above.

"Medium-size waterworks" means, for the purpose of 12VAC5-590-375, 12VAC5-590-405, 12VAC5-590-530, and 12VAC5-590-550 D 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.

"Method detection limit" 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.

"Most probable number (MPN)" means that 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.

"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 (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.

"Office" or "ODW" means the Commonwealth of Virginia, Department of Health, Office of Drinking Water.

"One hundred year flood level" means the flood elevation which will, over a long period of time, be equaled or exceeded on the average once every 100 years.

"Operator" means any individual employed or appointed by any owner, and who is designated by such owner to be the person in responsible charge, such as a supervisor, a shift operator, or a substitute in charge, and whose duties include 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' taps while ensuring that the treatment does not cause the waterworks to violate any other section of this chapter.

"Owner" or "water purveyor" means an individual, group of individuals, partnership, firm, association, institution, corporation, governmental entity, or the federal government which supplies or proposes to supply water to any person within this state 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).

"Picocurie (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.

"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 (POE)" 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 (POU)" 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 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.

"Post-chlorination" means the application of chlorine to water subsequent to treatment.

"Potable water" – see "Pure water."

"Practical quantitation level (PQL)" means the lowest level achievable by good laboratories within specified limits during routine laboratory operating conditions.

"Prechlorination" means the application of chlorine to water prior to 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 treatment plant.

"Process fluids" means any fluid or solution which may be chemically, biologically, or otherwise contaminated or polluted which would constitute a health, pollutional, or system hazard if introduced into the waterworks. This includes, but is not limited to:

1. Polluted or contaminated water;

2. Process waters;

3. Used waters, originating from the waterworks which may have deteriorated in sanitary quality;

4. Cooling waters;

5. Contaminated natural waters taken from wells, lakes, 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 fire fighting purposes.

"Pure water" or "potable water" means water fit for human consumption and domestic use which is sanitary and normally free of minerals, organic substances, and toxic agents in excess of reasonable amounts for domestic usage in the area served and normally 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 which conveys untreated water from a source to a treatment facility.

"Reduced pressure principle backflow prevention device (RPZ device)" 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. 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 shall include tightly closing shut-off valves located at each end of the device, 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) is 1/1000 of a 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.

"Sanitary survey" means an investigation of any condition that may affect public health evaluation conducted by ODW of a waterworks' water supply, facilities, equipment, operation, maintenance, monitoring records. and overall management of a waterworks to ensure the provision of pure water.

"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.

"Sedimentation" means a process for removal of solids before filtration by gravity or separation.

"Service connection" means the point of delivery of water to a customer's building service line as follows:

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 sewage or industrial waste streams.

"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 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.

"Slow sand filtration" means a process involving passage of raw 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 D 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.

"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 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) (in mg/L).

"Synthetic organic chemicals (SOC)" means one of the family of organic man-made compounds generally utilized for agriculture or industrial purposes.

"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.

"Too numerous to count" 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 (TOC)" means total organic carbon in 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 (TTHM)" means the sum of the concentrations of the trihalomethanes expressed in milligrams per liter (mg/L) and rounded to two significant figures. For the purpose of these regulations, the TTHM's shall mean trichloromethane (chloroform), dibromochloromethane, bromodichloromethane, and tribromomethane (bromoform).

"Transmission main" means a water main whose primary purpose is to move significant quantities of treated water among service areas.

"Treatment technique requirement" means a requirement which specifies for a contaminant a specific treatment technique(s) demonstrated to the satisfaction of the division to lead to a reduction in the level of such contaminant sufficient to comply with these regulations.

"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 (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.

"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 (UC)" means a contaminant for which a monitoring requirement has been established, but for which no MCL or treatment technique requirement has been established.

"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.

"Variance" means a conditional waiver of a specific regulation which is granted to a specific waterworks. 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. Variances for monitoring, reporting and public notification requirements will not be granted.

"Virus" means a microbe that is infectious to humans by waterborne transmission.

"Volatile synthetic organic chemical (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.

"Waterborne disease outbreak" means the significant occurrence of acute infectious illness, epidemiologically associated with the ingestion of water from a waterworks which is deficient in treatment, as determined by the commissioner or the State Epidemiologist.

"Water purveyor" (same as owner).

"Water supply" means water that shall have been taken into a waterworks from all wells, streams, springs, lakes, and other bodies of surface waters (natural or impounded), and the tributaries thereto, and all impounded groundwater, but the term "water supply" shall not include any waters above the point of intake of such 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.

"Waterworks" means a system that serves piped water for drinking or domestic use to (i) the public, (ii) at least 15 connections, or (iii) an average of 25 individuals for at least 60 days out of the year. The term "waterworks" shall include all structures, equipment and appurtenances used in the storage, collection, purification, treatment and distribution of pure 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 which supplies drinking water to consumers via a single service line.

"Wholesale waterworks" means a waterworks that treats source water as necessary to produce finished water and then delivers some or all of that finished water to another waterworks. Delivery may be through a direct connection or through the distribution system of one or more consecutive waterworks.

Part II
Operation Regulations for Waterworks

Article 1
General

12VAC5-590-340. General.

All physical, chemical, bacteriological, or radiological analyses for the purpose of demonstrating compliance with primary and secondary maximum contaminant levels, or action levels, or contaminants that do not have PMCLs but for which compliance samples must be analyzed by certified laboratories shall be performed by the Commonwealth of Virginia, Department of General Services, Division of Consolidated Laboratory Services (DCLS) or in laboratories certified by the Division of Consolidated Laboratory Services for such purposes. The owner is responsible for the collection and submission of all samples. A sample is deemed to have been collected only if and when its results are made known to the Division of Water Supply Engineering Office of Drinking Water.

12VAC5-590-350. Sanitary surveys.

A. Frequent sanitary surveys 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 surveys assessments, and the rate at which discovered health hazards are to be removed, shall be in accordance with a program approved by the division the responsibility of the owner. These surveys shall be submitted to the division for review. 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 (see Appendix E). The division may also perform sanitary surveys.

B. The commissioner may perform sanitary surveys. Owners shall provide any existing information that will enable the commissioner to conduct the sanitary survey.

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, and data verification;

7. Waterworks management and operation; and

8. Number and classification of licensed operator(s) required in 12VAC5-590-460. Licensed operators shall also comply with all applicable regulations promulgated by the Virginia Board for Water Works and Wastewater Works Operators and Onsite Sewage System Professionals, Department of Professional and Occupational Regulation.

D. Significant deficiencies discovered as a result of a sanitary survey shall be addressed in accordance with the following:

1. The commissioner shall issue written notification describing the significant deficiency to the owner.

2. Within 30 days of the significant deficiency notification, the owner shall consult with the commissioner regarding the appropriate corrective action with a schedule for implementing corrective action. Any waterworks with significant deficiencies must have a Corrective Action Plan (CAP) as described in 12VAC5-590-421 A.

3. Within 45 days of the significant deficiency notification, the owner shall submit a CAP with a schedule for meeting the requirements of 12VAC5-590-421 A.

Article 2
General Information

12VAC5-590-370. Sampling frequency.

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, byproducts and disinfection byproduct precursors (subdivision B 3 of this section), and lead and copper (subdivision B 6 of this section). The required sampling frequencies are as follows:

A. Bacteriological.

1. The owner shall collect total coliform samples at sites which are representative of water throughout the distribution system according to a written sample siting report. The report shall be established or approved by the district engineer after investigation of the source, method of treatment and storage, and protection of the water concerned. The report shall include, but is not limited to, the following:

a. The frequency of sampling distributed evenly throughout the month/quarter.

b. Distribution map showing the generalized location where specific sampling sites will be selected.

c. Supporting statement explaining how specific individual sites are selected, how sampling will be rotated among the sites, how repeat samples will be collected and other information demonstrating that sampling will be conducted in a manner to comply with this chapter.

d. Adequate sampling points to provide sampling representative of all the conditions in the system.

e. For small systems (less than 3,301 population), sample sites shall also be identified by address and code number location.

f. Minimum of three sample locations for each sample required monthly so repeat sample locations are previously ascertained as being adequate in number and five customer service connections upstream and downstream. (See Appendix J for an example.)

g. The sampling point required to be repeat sampled shall not be eliminated from future collections based on a history of questionable water quality unless the sampling point is unacceptable as determined by the district engineer.

2. The minimum number of bacteriological samples for total coliform evaluation to be collected and analyzed monthly from the distribution system of a community or nontransient noncommunity waterworks shall be in accordance with Table 2.1. Owners of all noncommunity waterworks that use a surface water source or a groundwater source under the direct influence of surface water, and large noncommunity (serving 1,000 or more persons per day) waterworks, shall collect and submit samples monthly for analysis in accordance with Table 2.1. Owners of all other noncommunity waterworks shall submit samples for analysis each calendar quarter in accordance with Table 2.1.

3. The samples shall be taken at reasonably evenly spaced time intervals throughout the month or quarter.

If the results of a sanitary survey or other factors determine that some other frequency is more appropriate than that stated above, a modified sampling program report may be required. The altered frequency shall be confirmed or changed on the basis of subsequent surveys.

TABLE 2.1

POPULATION SERVED PER DAY

MINIMUM NUMBER OF SAMPLES
(See subdivision A 2 of this section)

25 to 1,000

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

390

4. All bacteriological analyses shall be performed in accordance with 12VAC5-590-440 by the DCLS or by a laboratory certified by DCLS for drinking water samples.

B. Chemical. 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 at the time of issuance of a waterworks operation permit. The commissioner may increase required monitoring where necessary to detect variations within the waterworks. Analysis of field composite samples shall not be allowed. Samples for contaminants that may exhibit seasonal variations shall be collected during the period of the year when contamination is most likely to occur. Failure to comply with the sampling schedules in this section shall require public notification pursuant to 12VAC5-590-540.

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 2 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 2 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 2 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 was 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 systems waterworks

one (during peak historical month)2

2

1

 

1

 

Less than 500 nonconsecutive systems waterworks

2

 

 

1

1

500-3,300 consecutive systems waterworks

four (every 90 days)

2

1

 

1

 

500-3,300 nonconsecutive systems 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 systems waterworks

one (during peak historical month)2

2

1

 

1

 

Less than 500 nonconsecutive systems 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)) ((ii)) ((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) (a) 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) (a) 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) (a) 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 a 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 systems 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 the state 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 (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 C 2 a if all data listed in 12VAC5-590-530 C 2 a through 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 C 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, 12VAC5-590-400 B 3 and 12VAC5-590-400 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 can not apply to the commissioner for a waiver from the monitoring frequencies specified in subdivision 2 a or 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 12VAC5-590-400 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 through 12VAC5-590-400 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.

12VAC5-590-379. Groundwater system monitoring.

A. General monitoring requirements.

1. Owners of groundwater systems, including consecutive and wholesale waterworks, shall conduct monitoring in accordance with this section, except that requirements do not apply to waterworks that combine all of their groundwater with surface water or with groundwater under the direct influence of surface water prior to treatment in accordance with 12VAC5-590-420.

2. Source water monitoring for owners of groundwater systems that do not provide 4-log treatment of viruses for their groundwater sources before or at the first customer are described in subsection B of this section.

3. Owners of groundwater systems that provide at least 4-log treatment of viruses before or at the first customer are required to conduct compliance monitoring in accordance with 12VAC5-590-421 C.

4. Owners of groundwater systems that have confirmed fecal contamination, as determined by source water monitoring conducted under subsection B of this section or have been notified of a significant deficiency as described in 12VAC5-590-350 D shall implement one or more of the corrective actions outlined in 12VAC5-590-421 A 1, as prescribed by the commissioner.

5. Owners of groundwater systems that do not provide 4-log treatment of viruses before or at the first customer and are not performing compliance monitoring shall provide triggered source water monitoring plans to the commissioner.

6. Any source water sample collected in accordance with this section shall be analyzed for E. coli using one of the analytical methods in 40 CFR 141.402 (c).

B. Groundwater source microbial monitoring.

1. Triggered source water monitoring.

a. General requirements. Groundwater system owners shall conduct triggered source water monitoring if both the conditions identified in subdivisions B 1 a (1) and (2) of this section exist.

(1) The groundwater system does not provide at least 4-log treatment of viruses before or at the first customer for each groundwater source; and

(2) The groundwater system owner is notified that a sample collected under 12VAC5-590-370 A is total coliform-positive and the sample is not invalidated under 12VAC5-590-380 E.

b. Sampling requirements. Groundwater system owners shall collect, within 24 hours of notification of the total coliform-positive sample, one groundwater source sample from each groundwater source in use at the time the total coliform-positive sample was collected under 12VAC5-590-370 A, except as provided in this subdivision B 1 b.

(1) The commissioner may extend the 24-hour time limit on a case-by-case basis if the owner cannot collect the groundwater source water sample within 24 hours due to circumstances beyond his control. In the case of an extension, the commissioner shall specify how much time the owner has to collect the sample.

(2) If approved by the commissioner, owners of waterworks with more than one groundwater source may meet the requirements of subdivision B 1 of this section by sampling a representative groundwater source or sources. Owners shall submit, for the commissioner's approval, a triggered source water monitoring plan that identifies one or more groundwater sources that are representative of each monitoring site in the waterworks' bacteriological sample siting report or that identifies groundwater sources that are hydro-geologically similar and clearly identifies which sources will be sampled.

(3) A groundwater system serving 1,000 people or fewer may use a triggered source water sample collected from a groundwater source to meet both the requirements of 12VAC5-590-380 and to satisfy the monitoring requirements of subdivision B 1 of this section for a groundwater source.

c. Additional requirements.

(1) If an E. coli positive triggered source water sample collected under subdivision B 1 of this section is not invalidated under subdivision B 2 of this section, the groundwater system owner shall provide public notification and collect five additional source water samples from the same source within 24 hours of being notified of the E. coli positive sample.

(2) If any of the five additional samples are E. coli positive, the groundwater system owner shall comply with the treatment technique requirements of 12VAC5-590-421.

d. Consecutive and wholesale waterworks.

(1) A consecutive groundwater system owner that has a total coliform-positive sample collected in accordance with 12VAC5-590-370 A shall notify the wholesale waterworks owner and the district engineer within 24 hours of being notified of the total coliform-positive sample.

(2) A wholesale groundwater system owner shall comply with the following:

(a) A wholesale groundwater system owner that receives notice from a consecutive waterworks it serves that a sample collected in accordance with 12VAC5-590-370 A is total coliform-positive shall, within 24 hours of being notified, collect a sample from its groundwater source(s) as described in subdivision B 1 of this section.

(b) If the sample collected under subdivision B 1 of this section is E. coli positive, the wholesale groundwater system owner shall within 24 hours notify all consecutive waterworks served by that groundwater source of the E. coli source water positive sample as described in 12VAC5-590-540 and shall meet the requirements of subdivision B 1 c of this section.

e. Exception to the triggered source water monitoring requirements. A groundwater system owner is not required to comply with the source water monitoring requirements of subdivision B 1 of this section if the commissioner determines, and documents in writing, that the total coliform-positive sample collected in accordance with 12VAC5-590-370 A is invalidated under 12VAC5-590-380 E.

2. Invalidation of an E. coli positive groundwater source sample.

a. A groundwater system owner may obtain the commissioner's invalidation of an E. coli positive groundwater source sample collected under subdivision B 1 of this section only under the conditions specified in subdivisions B 2 a (1) and (2) of this section:

(1) The groundwater system owner provides the commissioner with written notice from the laboratory that improper sample analysis occurred; or

(2) The commissioner determines and documents in writing that there is substantial evidence that the E. coli positive groundwater source sample is not related to source water quality.

b. If the commissioner invalidates an E. coli positive groundwater source sample, the groundwater system owner shall collect another source water sample under subdivision B 1 of this section within 24 hours of being notified by the commissioner of the invalidation decision and have it analyzed for E. coli.

3. Sampling location. All groundwater source samples required under subdivision B 1 of this section shall be collected at a location prior to any treatment of the groundwater source unless otherwise approved by the commissioner.

4. Public notification. The owner of a groundwater system with a source sample collected under subsection B of this section that is E. coli positive and that is not invalidated under subdivision B 2 of this section, including consecutive waterworks served by the groundwater source, shall conduct public notification as required in 12VAC5-590-540 A 1.

5. Monitoring violations. Failure to meet the monitoring requirements of subdivision B 1 of this section is a violation and requires the groundwater system owner to provide public notification as required in 12VAC5-590-540 A 3.

12VAC5-590-380. Bacteriological quality.

A. The standard sample volume for the coliform test shall consist of 100 milliliters.

B. Waterworks need only to determine the presence or absence of total coliforms; a determination of total coliform density is not required.

C. Primary Maximum Contaminant Levels (PMCLs) for microbiological contaminants.

1. The PMCL is based on the presence or absence of total coliforms in a sample, rather than coliform density.

a. A waterworks which is required to collect at least 40 samples per month is in compliance if no more than 5.0% of the samples collected during a month are total coliform positive.

b. A waterworks which is required to collect fewer than 40 samples per month is in compliance if no more than one sample collected during the month is total coliform positive.

2. Any fecal coliform positive repeat sample or E. coli positive repeat sample, or any total coliform positive repeat sample following a fecal coliform positive or E. coli positive routine sample constitutes a violation of the PMCL for total coliforms. For purposes of the public notification requirements in 12VAC5-590-540, this is a violation that may pose an acute risk to health and is a Tier 1 condition.

3. Compliance must be determined with the PMCL for total coliforms for each month in which monitoring for total coliforms is required.

4. The board hereby identifies the following as the best technology, treatment techniques, or other means available for achieving compliance with the maximum contaminant level for total coliforms.

a. Protection of wells from contamination by coliforms by appropriate placement and construction;

b. Maintenance of a disinfectant residual throughout the distribution system;

c. Proper maintenance of the distribution system including appropriate pipe replacement and repair procedures, main flushing programs, proper operation and maintenance of storage tanks and reservoirs, continual maintenance of positive water pressure in all parts of the distribution system and an approved cross connection control program;

d. Filtration and disinfection of surface water or surface influenced groundwater or disinfection of ground water using strong oxidants such as chlorine, chlorine dioxide, or ozone.

D. A total coliform positive result is indicative of a breakdown in the protective barriers and shall be cause for special follow-up action to locate and eliminate the cause of contamination.

1. Repeat monitoring. If a routine sample is total coliform positive, the waterworks owner shall collect a set of repeat samples within 24 hours of being notified of the positive result. A waterworks owner who collects more than one routine sample a month shall collect no fewer than three repeat samples for each total coliform positive sample found. A waterworks owner who collects one routine sample a month or fewer shall collect no fewer than four repeat samples for each total coliform positive sample found. For groundwater systems, the requirements of 12VAC5-590-379 shall also apply. Owners of groundwater systems who are required to collect four repeat samples may use one of the repeat samples to satisfy the requirements of 12VAC5-590-379. These repeat samples must be analyzed for E. coli using one of the analytical methods in 40 CFR 141.402 (c).

2. The waterworks owner shall collect at least one repeat sample from the sampling tap where the original total coliform positive sample was taken, and at least one repeat sample at a tap within five service connections upstream and at least one repeat sample at a tap within five service connections downstream of the original sampling site. If a total coliform positive sample is at the end of the distribution system, or one away from the end of the distribution system, the division commissioner may waive the requirement to collect at least one repeat sample upstream or downstream of the original sampling site.

3. The waterworks owner shall collect all repeat samples on the same day, except the division commissioner may allow a waterworks with a single service connection to collect the required set of repeat samples over a four-day period or to collect a larger volume repeat sample(s) in one or more sample containers of any size as long as the total volume collected is at least 400 ml (300 ml for systems which collect more than one routine sample per month).

4. If one or more repeat samples in the set is total coliform positive, the waterworks owner shall collect an additional set of repeat samples in the manner specified in subdivisions 1 through 3 of this subsection. The additional samples shall be collected within 24 hours of being notified of the positive result. The waterworks owner shall repeat this process until either (i) total coliforms are not detected in one complete set of repeat samples or (ii) the PMCL for total coliforms has been exceeded and the division commissioner so notified.

5. Waterworks owners required to collect fewer than five routine samples per month and having one or more total coliform positive samples shall collect at least five routine samples during the next month the waterworks provides water to the public, except that the division commissioner may waive this requirement if the conditions of subdivision 5 a or 5 b of this subsection are met. The division commissioner shall not waive the requirement for a system to collect repeat samples in subdivisions 1 through 4 of this subsection. For groundwater systems, if any of the routine samples collected in accordance with subdivision D 5 of this section are total coliform positive, then the requirements of 12VAC5-590-379 shall apply.

a. The division commissioner may waive the requirement to collect five routine samples the next month the waterworks provides water to the public if the division (or an agent of the owner previously approved by the division) commissioner (or an agent previously approved by the commissioner), performs a site visit before the end of the next month the waterworks provides water to the public. Although a sanitary survey need not be performed, the site visit shall be sufficiently detailed to allow the division commissioner to determine whether additional monitoring or any corrective action is needed.

b. The division commissioner may waive the requirement to collect five routine samples the next month the waterworks provides water to the public if the division commissioner has determined why the sample was total coliform positive and establishes that the waterworks owner has corrected the problem or will correct the problem before the end of the next month the waterworks serves water to the public. In this case, the division commissioner shall document this decision to waive the following month's additional monitoring requirement in writing, have it approved and signed by the supervisor of the state official who recommends such a decision, and make this document available to the EPA and public. The written documentation shall describe the specific cause of the total coliform positive sample and what action the waterworks owner has taken or will take to correct this problem. The division commissioner cannot waive the requirement to collect five routine samples the next month the waterworks provides water to the public solely on the grounds that all repeat samples are total coliform negative. Under this subdivision, a waterworks owner shall still take at least one routine sample before the end of the next month it serves water to the public and use the results to determine compliance with the MCL for total coliforms.

6. Results of all routine and repeat samples not invalidated by the division commissioner shall be included in determining compliance with the MCL for total coliforms.

7. Special purpose samples, such as those taken to determine whether disinfection practices are sufficient following pipe placement, replacement or repair, shall not be used to determine compliance. Repeat samples are not considered special purpose samples.

E. A total coliform positive sample invalidated under this paragraph does not count towards meeting the minimum monitoring requirements of this section.

1. The division commissioner may invalidate a total coliform positive sample only if all of the following conditions are met:

a. The laboratory establishes that improper sample analysis caused the total coliform positive result;

b. The division commissioner, on the basis of the results of repeat samples collected as required by subdivisions D 1 through 4 of this section determines that the total coliform positive sample resulted from a domestic or other nondistribution system plumbing problem. The division commissioner cannot invalidate a sample on the basis of repeat sample results unless all repeat sample(s) collected at the same tap as the original total coliform-positive sample are also total coliform-positive, and all repeat samples collected within five service connections of the original tap are total coliform-negative (e.g., the division commissioner cannot invalidate a total coliform-positive sample on the basis of repeat samples if all the repeat samples are total coliform-negative, or if the waterworks has only one service connection); and

c. The division commissioner has substantial grounds to believe that a total coliform positive result is due to a circumstance or condition which does not reflect water quality in the distribution system. In this case, the waterworks owner shall still collect all repeat samples required under subdivisions D 1 through 4 of this section, and use them to determine compliance with the MCL for total coliforms. To invalidate a total coliform positive sample under this subdivision, the decision with the rationale for the decision shall be documented in writing, and approved and signed by the supervisor of the field engineer who recommended the decision commissioner. The division commissioner shall make this document available to EPA and the public. The written documentation shall state the specific cause of the total coliform positive sample, and what action the waterworks owner has taken, or will take, to correct this problem. The division commissioner shall not invalidate a total coliform positive sample solely on the grounds that all repeat samples are total coliform negative.

2. A laboratory must invalidate a sample because of sampling interference (i.e., turbid culture in absence of (i) gas production, or (ii) acid reaction; or exhibition of confluent growth; or production of colonies too numerous to count). The waterworks owners shall collect a replacement sample from the same location, and have it analyzed for the presence of total coliforms. The waterworks owner must continue to resample within 24 hours and have the samples analyzed until they obtain a valid result. The division commissioner may waive the 24-hour time limit on a case-by-case basis.

F. Fecal coliforms/Escherichia coli (E. coli) testing.

1. If any routine or repeat sample or replacement is total coliform positive, the waterworks owner shall analyze that total coliform positive culture medium to determine if fecal coliforms are present, except that the waterworks owner may test for E. coli in lieu of fecal coliforms. If fecal coliforms or E. coli are present, the waterworks owner must notify the division's appropriate field office ODW by the end of the day when the waterworks is notified of the test result, unless the division's ODW's field office is closed, in which case the division commissioner must be notified before the end of the next business day.

2. The division commissioner has the discretion to allow a waterworks, on a case-by-case basis, to forgo fecal coliform or E. coli testing on a total coliform-positive sample if that waterworks assumes that the total coliform-positive sample is fecal coliform-positive or E. coli-positive. Accordingly, the waterworks must notify the division commissioner as specified in subdivision 1 of this subsection and the provisions of subdivision C 2 of this section apply.

G. Violation determination flowchart -- See Appendix K.

H. Groundwater sources.

1. Groundwater sources shall be disinfected in accordance with 12VAC5-590-1000 when the total coliform geometric mean of 20 or more raw water samples (measured by the multiple-portion decimal-dilution (MPN) method) measured by a method yielding a multiple-portion decimal-dilution (MPN) result is greater than three. The value 1.0 shall be used to represent a negative coliform result in the calculation of the geometric mean.

2. Groundwater sources containing a total coliform concentrations as measured by the multiple-portion decimal-dilution (MPN) method geometric mean of 100 or more organisms per 100 milliliters based on the geometric mean of 20 or with more than 10% of these samples exceeding 100 organisms per 100 milliliters constitutes unacceptable contamination for disinfection treatment only.

3. Groundwater with widely fluctuating or increasing bacteriological results may be determined by the division to be unsuitable for disinfection treatment alone sources shall be disinfected in accordance the requirements of 12VAC5-590-1000 when the source water quality contributes to the waterworks' failure to meet the bacteriological PMCL specified in subsection C of this section.

4. Groundwater sources shall be disinfected in accordance with 12VAC5-590-421 A 1 d when the results of source development samples specified in 12VAC5-590-840 B 11 indicate the presence of E. coli in two or more samples.

5. Groundwater sources shall be disinfected in accordance with 12VAC5-590-421 A 1 d when the results of raw water monitoring conducted in accordance with 12VAC5-590-425 indicate the presence of E. coli in two or more samples during any running six-month period.

I. Groundwater systems conducting source water monitoring as described in 12VAC5-590-379 shall determine the presence or absence of E. coli. All samples shall be analyzed in accordance with 12VAC5-590-440 by the DCLS or by a laboratory certified by DCLS for drinking water samples.

12VAC5-590-410. Determination of compliance.

For the purposes of determining compliance with a PMCL or action level, the following criteria shall be used:

A. Bacteriological results. Compliance with the PMCL for coliform bacteria shall be determined as specified in 12VAC5-590-380 C. Repeat samples shall be used as a basis for determining compliance with these regulations.

B. Inorganic chemicals.

1. Antimony, arsenic, asbestos, barium, beryllium, cadmium, cyanide (as free cyanide), chromium, fluoride, mercury, nickel, selenium, and thallium. Where the results of sampling for antimony, arsenic, asbestos, barium, beryllium, cadmium, cyanide (as free cyanide), chromium, fluoride, mercury, nickel, selenium, or thallium exceed the PMCL, the owner shall take a confirmation sample, at the same sampling point, within two weeks of notification of the analytical results of the first sample.

a. The results of the initial and confirmation samples shall be averaged to determine compliance with subdivision B 1 c of this subsection. The commissioner has the discretion to delete results of obvious sampling errors.

b. The commissioner may require more frequent monitoring.

c. Compliance with antimony, arsenic, asbestos, barium, beryllium, cadmium, cyanide (as free cyanide), chromium, fluoride, mercury, nickel, selenium, and thallium in Table 2.2 of 12VAC5-590-440 shall be determined based on the analytical result(s) obtained at each sampling point.

(1) Owners that are conducting monitoring more frequently than annually, compliance with the PMCL for antimony, arsenic, asbestos, barium, beryllium, cadmium, cyanide (as free cyanide), chromium, fluoride, mercury, nickel, selenium, and thallium is determined by a running annual average at each sampling point. If the average at any sampling point is greater than the PMCL, then the waterworks is out of compliance. If any one sample would cause the annual average to be exceeded, then the waterworks is out of compliance immediately. Any sample below the method detection limit shall be calculated at zero for the purpose of determining the annual average. If an owner fails to collect the required number of samples, compliance (average concentration) shall be based on the total number of samples collected.

(2) Owners that are monitoring annually, or less frequently, the waterworks is not out of compliance with the PMCL for antimony, arsenic, asbestos, barium, beryllium, cadmium, cyanide (as free cyanide), chromium, fluoride, mercury, nickel, selenium, and thallium if the average of the original sample and a confirmation sample of a contaminant at any sampling point is greater than the PMCL. Owners of waterworks monitoring annually or less frequently whose sample result exceeds the PMCL shall begin quarterly sampling. The waterworks shall not be considered in violation of the PMCL until it has completed one year of quarterly sampling. However, if the confirmation sample is not collected, the waterworks is in violation of the PMCL for antimony, arsenic, asbestos, barium, beryllium, cadmium, cyanide (as free cyanide), chromium, fluoride, mercury, nickel, selenium, or thallium. If an owner fails to collect the required number of samples, compliance (average concentration) shall be based on the total number of samples collected.

2. Nitrate and nitrite. Compliance with the PMCL is determined based on one sample from each sampling point if the levels of these contaminants are below the PMCLs. Where nitrate or nitrite sample results exceed the PMCL, the owner shall take a confirmation sample from the same sampling point that exceeded the PMCL within 24 hours of the owner's receipt of the analytical results of the first sample. The results of the initial and confirmation sample shall be averaged to determine compliance with this subdivision. Owners unable to comply with the 24-hour sampling requirement shall immediately notify the consumers in the area served by the waterworks in accordance with 12VAC5-590-540. Owners exercising this option shall take and analyze a confirmation sample within two weeks of notification of the analytical results of the first sample. The commissioner may require more frequent monitoring. The commissioner has the discretion to delete results of obvious sampling errors.

C. Organic chemicals.

1. VOCs and SOCs. A confirmation sample shall be required for positive results for contaminants listed in Table 2.3. The commissioner has the discretion to delete results of obvious sampling errors from this calculation.

a. The results of the initial and confirmation sample shall be averaged to determine the waterworks' compliance in accordance with subdivision C 1 b of this subsection.

b. Compliance with Table 2.3 shall be determined based on the analytical results obtained at each sampling point. Any samples below the detection limit shall be calculated as zero for the purposes of determining the annual average. (Note: Refer to detection definition at 12VAC5-590-370 B 2 h.) If an owner fails to collect the required number of samples, compliance (average concentration) will be based on the total number of samples collected.

(1) Owners that are conducting monitoring more frequently than annually, compliance is determined by a running annual average of all samples taken at each sampling point. If the annual average of any sampling point is greater than the PMCL, then the waterworks is out of compliance. If the initial sample or a subsequent sample would cause the annual average to be exceeded, then the waterworks is out of compliance immediately. Any samples below the detection limit shall be calculated as zero for purposes of determining the annual average. (Note: Refer to detection definition at 12VAC5-590-370 B 2 h.)

(2) If monitoring is conducted annually, or less frequently, the waterworks is not in violation if the average of the initial and confirmation sample is greater than the PMCL for that contaminant; however, the owner shall begin quarterly sampling. The waterworks will not be considered in violation of the PMCL until the owner has completed one year of quarterly sampling. If any sample will cause the running annual average to exceed the PMCL at any sampling point, the waterworks is immediately out of compliance with the PMCL.

2. Disinfectant residuals, disinfection byproducts and disinfection byproduct precursors. Compliance with 12VAC5-590-370 B 3 a through B 3 k is as follows:

a. General requirements.

(1) Where compliance is based on a running annual average of monthly or quarterly samples or averages and the owner fails to monitor for TTHM, HAA5, or bromate, this failure to monitor will be treated as a monitoring 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 MRDLs for chlorine and chloramines, this failure to monitor shall be treated as a monitoring violation for the entire period covered by the annual average.

(2) All samples taken and analyzed under subdivision C 2 of this section shall be included in determining compliance, even if that number is greater than the minimum required.

(3) If during the first year of monitoring under 12VAC5-590-370 B 3 b, any individual quarter's average will cause the running annual average of that waterworks to exceed the PMCL in Table 2.12 and Table 2.13, the waterworks is out of compliance at the end of that quarter.

b. Disinfection byproducts.

(1) TTHMs and HAA5.

(a) Running Annual Average. All waterworks using surface water or groundwater under the direct influence of surface water serving 10,000 or more persons shall comply with this section beginning January 1, 2002. All waterworks using surface water or groundwater under the direct influence of surface water serving less than 10,000 persons and all waterworks using groundwater not under the direct influence of surface water shall comply with this section beginning January 1, 2004. All waterworks shall comply with this section until the dates listed in 12VAC5-590-370 B e (3) (c).

(i) For waterworks monitoring quarterly, compliance with PMCLs in Table 2.13 shall be based on a running annual arithmetic average, computed quarterly, of quarterly arithmetic averages of all samples collected by the owner as prescribed by 12VAC5-590-370 B 3 e (1).

(ii) For waterworks monitoring less frequently than quarterly, the owner demonstrates PMCL compliance if the average of samples taken that year under the provisions of 12VAC5-590-370 B 3 e (1) does not exceed the PMCLs in Table 2.13. If the average of these samples exceeds the PMCL, the owner shall increase monitoring to once per quarter per treatment plant and such a waterworks is not in violation of the PMCL until it has completed one year of quarterly monitoring, unless the result of fewer then four quarter of monitoring will cause the running annual average to exceed the PMCL, in which case the waterworks is in violation at the end of that quarter. Owners of waterworks required to increase monitoring frequency to quarterly monitoring shall calculate compliance by including the sample that triggered the increase monitoring plus the following three quarter of monitoring.

(iii) If the running annual arithmetic average of quarterly averages covering any consecutive four-quarter period exceeds the PMCL in Table 2.12 and Table 2.13, the waterworks is in violation of the PMCL and the owner shall notify the public pursuant to 12VAC5-590-540 in addition to reporting to the commissioner pursuant to 12VAC5-590-530.

(iv) If an owner fails to complete four consecutive quarters of monitoring, compliance with the PMCL in Table 2.13 for the last four-quarter compliance period shall be based on an average of the available data.

(b) Locational Running Annual Average (LRAA). All waterworks shall comply with this section beginning on the dates listed in 12VAC5-590-370 B e (3) (c).

(i) Owners of waterworks required to monitor quarterly shall calculate LRAAs for TTHM and HAA5 using monitoring results collected under 12VAC5-590-370 B 3 e (3) and determine that each LRAA does not exceed the PMCL in order to comply with PMCLs in Table 2.13. If the owner fails to complete four consecutive quarters of monitoring, the owner shall calculate compliance with the PMCL based on the average of the available data from the most recent four quarters. If the owner takes more than one sample per quarter at a monitoring location, the owner shall average all samples taken in the quarter at that location to determine a quarterly average to be used in the LRAA calculation.

(ii) Owners of waterworks required to monitor yearly or less frequently shall determine that each sample taken is less than the PMCL in order to determine compliance with PMCLs in Table 2.13. If any sample exceeds the PMCL, the owner shall comply with the requirements of 12VAC5–590-370 B 3 e (3) (g). If no sample exceeds the PMCL, the sample result for each monitoring location is considered the LRAA for that monitoring location.

(iii) 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.

(iv) Waterworks have exceeded the operational evaluation level at any monitoring location where the sum of the two previous quarters' TTHM results plus twice the current quarter's TTHM result, divided by four to determine an average, exceeds 0.080 mg/L, or where the sum of the two previous quarters' HAA5 results plus twice the current quarter's HAA5 result, divided by four to determine an average, exceeds 0.060 mg/L.

((a)) Owners of waterworks that exceed the operational evaluation level shall conduct an operational evaluation and submit a written report of the evaluation to the commissioner no later than 90 days after being notified of the analytical result that causes the waterworks to exceed the operational evaluation level. The written report shall be made available to the public upon request.

((b)) The operational evaluation report shall include an examination of waterworks treatment and distribution operational practices, including storage tank operations, excess storage capacity, distribution system flushing, changes in sources or source water quality, and treatment changes or problems that may contribute to TTHM and HAA5 formation and what steps could be considered to minimize future exceedances.

((c)) The owner may request and the commissioner may allow waterworks to limit the scope of the evaluation if the owner is able to identify the cause of the operational evaluation level exceedance. The request to limit the scope of the evaluation does not extend the schedule in paragraph ((a)) of this section for submitting the written report. The commissioner shall approve this limited scope of evaluation in writing and the owner shall keep that approval with the completed report.

(2) Bromate. Compliance shall be based on a running annual arithmetic average, computed quarterly, of monthly samples (or, for months in which the waterworks takes more than one sample, the average of all samples taken during the month) collected by the owner as prescribed by 12VAC5-590-370 B 3 g. If the average of samples covering any consecutive four-quarter period exceeds the PMCL in Table 2.13, the waterworks is in violation of the PMCL and the owner shall notify the public pursuant to 12VAC5-590-540, in addition to reporting to the commissioner pursuant to 12VAC5-590-530. If an owner fails to complete 12 consecutive months' monitoring, compliance with the PMCL for the last four-quarter compliance period shall be based on an average of the available data.

(3) Chlorite. Compliance shall be based on an arithmetic average of each three sample set taken in the distribution system as prescribed by 12VAC5-590-370 B 3 f (1) (a), (b) and (c). If the arithmetic average of any three sample set exceeds the PMCL in Table 2.13, the waterworks is in violation of the PMCL and the owner shall notify the public pursuant to 12VAC5-590-540, in addition to reporting to the commissioner pursuant to 12VAC5-590-530.

c. Disinfectant residuals.

(1) Chlorine and chloramines.

(a) Compliance shall be based on a running annual arithmetic average, computed quarterly, of monthly averages of all samples collected by the waterworks under 12VAC5-590-370 B 3 h (1) (a). If the average covering any consecutive four-quarter period exceeds the MRDL in Table 2.12, the waterworks is in violation of the MRDL and the owner shall notify the public pursuant to 12VAC5-590-540, in addition to reporting to the commissioner pursuant to 12VAC5-590-530.

(b) In cases where waterworks switch between the use of chlorine and chloramines for residual disinfection during the year, compliance shall be determined by including together all monitoring results of both chlorine and chloramines in calculating compliance. Reports submitted pursuant to 12VAC5-590-530 shall clearly indicate which residual disinfectant was analyzed for each sample.

(2) Chlorine dioxide.

(a) Acute violations. Compliance shall be based on consecutive daily samples collected by the owner under 12VAC5-590-370 B 3 h (2) (a). If any daily sample taken at the entrance to the distribution system exceeds the MRDL in Table 2.12, and on the following day one (or more) of the three samples taken in the distribution system exceed the MRDL, the waterworks is in violation of the MRDL and the owner shall take immediate corrective action to lower the level of chlorine dioxide below the MRDL and the owner shall notify the public pursuant to the procedures for Tier 1 conditions in 12VAC5-590-540 in addition to reporting to the commissioner in pursuant to 12VAC5-590-530. Failure to take samples in the distribution system the day following an exceedance of the chlorine dioxide MRDL at the entrance to the distribution system will also be considered an MRDL violation and the owner shall notify the public of the violation in accordance with the provisions for Tier 1 conditions in 12VAC5-590-540 in addition to reporting to the commissioner in pursuant to 12VAC5-590-530.

(b) Nonacute violations. Compliance shall be based on consecutive daily samples collected by the owner under 12VAC5-590-370 B 3 h (2) (a). If any two consecutive daily samples taken at the entrance to the distribution system exceed the MRDL in Table 2.12 and all distribution system samples taken are below the MRDL, the waterworks is in violation of the MRDL and the owner shall take corrective action to lower the level of chlorine dioxide below the MRDL at the point of sampling and shall notify the public pursuant to the procedures for Tier 2 conditions in 12VAC5-590-540 in addition to reporting to the commissioner in pursuant to 12VAC5-590-530. Failure to monitor at the entrance to the distribution system the day following an exceedance of the chlorine dioxide MRDL at the entrance to the distribution system is also an MRDL violation and the owner shall notify the public of the violation in accordance with the provisions for Tier 2 conditions in 12VAC5-590-540 in addition to reporting to the commissioner in pursuant to 12VAC5-590-530.

d. Disinfection byproduct precursors (DBPP). Compliance shall be determined as specified by 12VAC5-590-420 H 3. Owners may begin monitoring to determine whether Step 1 TOC removals can be met 12 months prior to the compliance date for the waterworks. This monitoring is not required and failure to monitor during this period is not a violation. However, any owner that does not monitor during this period, and then determines in the first 12 months after the compliance date that it is not able to meet the Step 1 requirements in 12VAC5-590-420 H 2 b and shall therefore apply for alternate minimum TOC removal (Step 2) requirements, is not eligible for retroactive approval of alternate minimum TOC removal (Step 2) requirements as allowed pursuant to 12VAC5-590-420 H 2 c and is in violation. Owners may apply for alternate minimum TOC removal (Step 2) requirements any time after the compliance date. For waterworks required to meet Step 1 TOC removals, if the value calculated under 12VAC5-590-420 H 3 a (4) is less than 1.00, the waterworks is in violation of the treatment technique requirements and the owner shall notify the public pursuant to 12VAC5-590-540 in addition to reporting to the commissioner pursuant to 12VAC5-90-530.

D. Radiological results (gross alpha, combined radium-226 and radium-228, uranium and man-made radioactivity). Compliance with the radiological PMCLs shall be in accordance with 12VAC5-590-370 D 3 c. PMCLs are indicated in subsection B of Table 2.5. Sampling for radiological analysis shall be in compliance with 12VAC5-590-370 D 1 and D 2. Furthermore, compliance shall be determined by rounding off results to the same number of significant figures as the PMCL for the substance in question.

E. Reserved.

F. Turbidity. The requirements in this subsection apply to filtered waterworks until June 29, 1993. The requirements in this section apply to unfiltered waterworks with surface water sources or groundwater sources under the direct influence of surface water that are required to install filtration equipment until June 29, 1993, or until filtration is installed, whichever is later. When a sample exceeds the PMCL for turbidity a confirmation sample shall be collected for analysis as soon as possible. In cases where a turbidimeter is required at the waterworks, the preferable resampling time is within one hour of the initial sampling. The repeat sample shall be the sample used for the purpose of calculating the monthly average. Compliance for public notification purposes shall be based on the monthly averages of the daily samples. However, public notification is also required if the average of samples taken on two consecutive days exceeds five NTU.

G. All analyses for PMCL and action level compliance determinations shall be consistent with current Environmental Protection Agency Regulations found at 40 CFR Part 141.

12VAC5-590-420. Treatment technique requirement.

This section establishes treatment technique requirements in lieu of maximum contaminant levels for specified contaminants. Failure to meet any requirement of this section after the applicable date specified is a treatment technique violation.

A. The filtration and disinfection provisions of this section are required treatment techniques for any waterworks supplied by a surface water source and waterworks supplied by a groundwater source under the direct influence of surface water. This section establishes treatment technique requirements in lieu of PMCL's for the following contaminants: Giardia lamblia, viruses, heterotrophic bacteria (HPC), Legionella, Cryptosporidium and turbidity. Each waterworks with a surface water source or a groundwater source under the direct influence of surface water shall provide treatment of that source water that complies with these treatment technique requirements. The treatment technique requirements consist of installing and properly operating water treatment processes which reliably achieve:

1. At least 99.9% (3-log) removal and/or inactivation of Giardia lamblia cysts between a point where the raw water is not subject to recontamination by surface water runoff and a point downstream before or at the first customer; and

2. At least 99.99% (4-log) removal and/or inactivation of viruses between a point where the raw water is not subject to recontamination by surface water runoff and a point downstream before or at the first customer; and

3. At least 99% (2-log) removal of Cryptosporidium between a point where the raw water is not subject to recontamination by surface water runoff and a point downstream before or at the first customer.

B. A waterworks using a surface water source or a groundwater source under the direct influence of surface water is considered to be in compliance with the requirements of subsection A of this section if it meets the following disinfection filtration and enhanced filtration and disinfection for Cryptosporidium requirements:

1. Disinfection. Waterworks with a surface water source or a groundwater source under the direct influence of surface water shall provide disinfection treatment in accordance with this section.

a. The disinfection treatment shall be sufficient to ensure that the total treatment processes of that waterworks achieve at least 99.9% (3-log) inactivation and/or removal of Giardia lamblia cysts and at least 99.99% (4-log) inactivation and/or removal of viruses.

b. The residual disinfectant concentration in the water entering the distribution system cannot be less than 0.2 mg/L for more than four hours.

c. The residual disinfectant concentration in the distribution system, measured as total chlorine, combined chlorine, or chlorine dioxide cannot be undetectable in more than 5.0% of the samples each month, for any two consecutive months that the waterworks serves water to the public. Water in the distribution system with a heterotrophic bacteria concentration less than or equal to 500/mL, measured as heterotrophic plate count (HPC) is deemed to have a detectable disinfectant residual for purposes of determining compliance with this requirement. Thus, the value "V" in percent in the following formula cannot exceed 5.0% in one month, for any two consecutive months.

V = (c + d + e) / (a + b) X 100

a = number of instances where the residual disinfectant concentration is measured;

b = number of instances where the residual disinfectant concentration is not measured but HPC is measured;

c = number of instances where the residual disinfectant concentration is measured but not detected and no HPC is measured;

d = number of instances where no residual disinfectant concentration is detected and where the HPC is greater than 500/mL; and

e = number of instances where the residual disinfectant concentration s not measured and HPC is greater than 500/mL.

d. The commissioner may determine, based on site-specific considerations, that an owner has no means for having a sample transported and analyzed for HPC by a certified laboratory under the requisite time and temperature conditions and the waterworks is providing adequate disinfection in the distribution system, that the requirements of subdivision B 1 c of this section does not apply.

2. Filtration. (Also see 12VAC5-590-880.) All waterworks that use a surface water source or a groundwater source under the direct influence of surface water shall provide filtration treatment by using one of the following methods:

a. Conventional filtration or direct filtration.

(1) Achieve a filtered water turbidity of less than or equal to 0.3 NTU in at least 95% of the measurements taken each month. Samples shall be representative of the waterworks' filtered water.

(2) The turbidity level of representative samples of a system's filtered water shall at no time exceed 1 NTU, measured as specified in 12VAC5-590-440.

(3) A system that uses lime softening may acidify representative samples prior to analysis using a protocol approved by the commissioner.

b. Slow sand filtration.

(1) The turbidity level of representative samples of a waterworks' filtered water shall be less than or equal to one NTU in at least 95% of the measurements taken each month, except that if the commissioner determines there is no significant interference with disinfection at a higher turbidity level, the commissioner may substitute this higher turbidity limit for that waterworks.

(2) The turbidity level of representative samples of a waterworks' filtered water shall at no time exceed five NTU.

c. Diatomaceous earth filtration.

(1) The turbidity level of representative samples of a waterworks' filtered water shall be less than or equal to one NTU in at least 95% of the measurements taken each month.

(2) The turbidity level of representative samples of a waterworks' filtered water shall at no time exceed five NTU.

d. Other filtration technologies. An owner may use a filtration technology not listed in subdivisions 2 a through c of this subsection if the owner demonstrates to the commissioner (by pilot plant studies or other means) that the alternative filtration technology, in combination with disinfection treatment, achieves 99.9% removal (3-log) and/or inactivation of Giardia lamblia cysts, 99.99% removal (4-log) and/or inactivation of viruses, and 99% removal (2-log) of Cryptosporidium oocysts. For an owner that makes this demonstration, a turbidity limit of representative samples of a waterworks' filtered water, not to exceed 0.3 NTU, shall be established by the commissioner, which the waterworks must meet at least 95% of the time. In addition, the commissioner shall establish a maximum turbidity limit of representative samples of a waterworks' filtered water, not to exceed 1 NTU that the waterworks must not exceed at any time. These turbidity limits shall consistently achieve the removal rates and/or inactivation rates stated in this subdivision.

e. Each waterworks using a surface water source or groundwater source under the direct influence of surface water shall be operated by licensed operators of the appropriate classification as per the Virginia Board for Waterworks and Wastewater Works Operators Regulations (18VAC155-20).

f. If the commissioner has determined that a waterworks has a surface water source or a groundwater source under the direct influence of surface water, filtration is required. The waterworks shall provide disinfection during the interim before filtration is installed as follows:

(1) The residual disinfectant concentration in the distribution system shall not be less than 2.0 mg/L for more than four hours.

(2) The owner shall issue continuing boil water notices through the public notification procedure in 12VAC5-590-540 until such time as the required filtration equipment is installed.

(3) As an alternative to subdivisions B f 2 (1) and (2) of this section, the owner may demonstrate that the source can meet the appropriate C-T values shown in Appendix L and be considered to satisfy the requirements for 99.9% removal of Giardia cysts and virus, respectively. In addition, the waterworks owner shall comply with the following:

(a) Justify that other alternative sources of supply meeting these regulations are not immediately available.

(b) Analysis of the source is performed quarterly for the contaminants listed in Tables 2.2, 2.3, and 2.4. The primary maximum contaminant levels shall not be exceeded.

(c) Daily turbidity monitoring and maintenance of the turbidity level not to exceed five NTU.

(d) MPN analysis of the raw water based on the minimum sample frequency chart below:

Population Served

Coliform Samples/Week

≤500

1

501 - 3,300

2

3,301 - 10,000

3

10,001 - 25,000

4

>25,000

5

Note: Shall be taken on separate days.

(e) Bacteriological sampling of the distribution system at a frequency of twice that required by Table 2.1.

3. Enhanced filtration and disinfection for Cryptosporidium – All waterworks using a surface water source or a groundwater source under the direct influence of surface water shall comply with the following requirements based on their population or if the waterworks is a wholesaler, based on the population of the largest waterworks in the combined distribution system:

a. Owners shall conduct an initial and a second round of source water monitoring for each plant that treats a surface water or groundwater under the direct influence of surface water source. This monitoring may include sampling for Cryptosporidium, E. coli, and turbidity to determine what level, if any, of additional Cryptosporidium treatment is required.

(1) Initial round of source water monitoring. Owners shall conduct the following monitoring on the schedule in subdivision B 3 a (3) of this section unless they meet the monitoring avoidance criteria in subdivision B 3 a (4) of this section.

(a) Owners of waterworks serving at least 10,000 people shall sample their source water for Cryptosporidium, E. coli, and turbidity at least monthly for 24 months.

(b) Owners of waterworks serving fewer than 10,000 people:

(i) shall sample their source water for E. coli at least once every two weeks for 12 months, or

(ii) may avoid E. coli monitoring if the waterworks notifies the commissioner that it will monitor for Cryptosporidium as described in paragraph (c) of this section. The owner shall notify the commissioner no later than three months prior to the date the waterworks is otherwise required to start E. coli monitoring.

(c) Owners of waterworks serving fewer than 10,000 people shall sample their source water for Cryptosporidium at least twice per month for 12 months or at least monthly for 24 months if they meet one of the following, based on monitoring conducted under subdivision B 3 a (1) (b) of this section:

(i) For waterworks using lake/reservoir sources, the annual mean E. coli concentration is greater than 10 E. coli/100 mL.

(ii) For waterworks using flowing stream sources, the annual mean E. coli concentration is greater than 50 E. coli/100 mL.

(iii) The waterworks does not conduct E. coli monitoring as described in paragraph (1) (b) of this section.

(iv) Waterworks using ground water under the direct influence of surface water shall comply with the requirements of subdivision B 3 a (1) (c) of this section based on the E. coli level that applies to the nearest surface water body. If no surface water body is nearby, the waterworks shall comply based on the requirements that apply to waterworks using lake/reservoir sources.

(d) For waterworks serving fewer than 10,000 people, the commissioner may approve monitoring for an indicator other than E. coli under subdivision B 3 a (1) (b) (i) of this section. The commissioner also may approve an alternative to the E. coli concentration in subdivision B 3 a (1) (c) (i), (ii) or (iv) of this section to trigger Cryptosporidium monitoring. This approval by the commissioner shall be provided to the waterworks in writing and shall include the basis for the commission's commissioner's determination that the alternative indicator and/or trigger level will provide a more accurate identification of whether a waterworks will exceed the Bin 1 Cryptosporidium level in subdivision B 3 c (1) (a) of this section.

(e) Waterworks may sample more frequently than required under this section if the sampling frequency is evenly spaced throughout the monitoring period.

(2) Second round of source water monitoring: Owners shall conduct a second round of source water monitoring that meets the requirements for monitoring parameters, frequency, and duration described in subdivision B 3 a (1) of this section, unless they meet the monitoring exemption criteria in subdivision B 3 a (4) of this section. Owners shall conduct this monitoring on the schedule in subdivision B 3 a (3) of this section.

(3) Monitoring schedule. Owners shall begin the monitoring required in subdivisions B 3 a (1) and (2) of this section no later than the month beginning with the date listed in the following table:

Source Water Monitoring Starting Dates Table

Owners of waterworks that serve...

Shall begin the first round of source water monitoring no later than the month beginning...

And shall begin the second round of source water monitoring no later than the month beginning...

At least 100,000 people

October 1, 2006

April 1, 2015

From 50,000 to 99,999 people

April 1, 2007

October 1, 2015

From 10,000 to 49,999 people

April 1, 2008

October 1, 2016

Fewer than 10,000 and monitor for E. coli

October 1, 2008

October 1, 2017

Fewer than 10,000 and monitor for Cryptosporidium1

April 1, 2010

April 1, 2019

1Applies to waterworks that meet the conditions of subdivision B 3 a (1) (c) of this section.

(4) Monitoring avoidance.

(a) Owners are not required to conduct source water monitoring under subdivision C 3 a of this section if the waterworks will provide a total of at least 5.5-log of treatment for Cryptosporidium, equivalent to meeting the treatment requirements of Bin 4 in subdivision B 3 c (2) of this section.

(b) If an owner chooses to provide the level of treatment in subdivision B 3 a (4) (a) of this section, rather than start source water monitoring, the owners shall notify the commissioner in writing no later than the date the owner is otherwise required to submit a sampling schedule for monitoring under subdivision B 3 a (5) of this section. Alternatively, an owner may choose to stop sampling at any point after the owner has initiated monitoring if the owner notifies the commissioner in writing that it will provide this level of treatment. Owners shall install and operate technologies to provide this level of treatment by the applicable treatment compliance date in subdivision B 3 c (3).

(5) Sampling schedules.

(a) Owners of waterworks required to conduct source water monitoring in accordance with subdivision B 3 a shall submit a sampling schedule that specifies the calendar dates when the owner shall collect each required sample.

(i) Owners shall submit sampling schedules to the commissioner no later than three months prior to the applicable date listed in subdivision B 3 a (3) for each round of required monitoring.

(ii) If the commissioner does not respond to an owner regarding the sampling schedule, the owner shall sample at the reported schedule.

(b) Owners shall collect samples within two days before or two days after the dates indicated in their sampling schedule (i.e., within a five-day period around the schedule date) unless one of the conditions of the following paragraphs apply.

(i) If an extreme condition or situation exists that may pose danger to the sample collector, or that cannot be avoided and causes the owner to be unable to sample in the scheduled five-day period, the owner shall sample as close to the scheduled date as is feasible unless the commissioner approves an alternative sampling date. The owner shall submit an explanation for the delayed sampling date to the commissioner concurrent with the shipment of the sample to the laboratory.

(ii) If an owner is unable to report a valid analytical result for a scheduled sampling date due to equipment failure, loss of or damage to the sample, failure to comply with the analytical method requirements, including the quality control requirements of 12VAC5-590-440, or the failure of an approved laboratory to analyze the sample, then the owner shall collect a replacement sample. The owner shall collect the replacement sample not later than 21 days after receiving information that an analytical result cannot be reported for the scheduled date unless the owner demonstrates that collecting a replacement sample within this time frame is not feasible or the commissioner approves an alternative resampling date. The owner shall submit an explanation for the delayed sampling date to the commissioner concurrent with the shipment of the sample to the laboratory.

(c) Owners of waterworks that fail to meet the criteria of subdivision B 3 a (5) (b) of this section for any source water sample required under subdivision B 3 a shall revise their sampling schedules to add dates for collecting all missed samples. Owners shall submit the revised schedule to the commissioner for approval prior to when the owner begins collecting the missed samples.

(6) Sampling locations.

(a) Owners of waterworks required to conduct source water monitoring under subdivision B 3 a shall collect samples for each plant that treats a surface water or groundwater under the direct influence of surface water source. Where multiple plants draw water from the same influent, such as the same pipe or intake, the commissioner may approve one set of monitoring results to be used to satisfy the requirements subdivision B 3 a for all plants.

(b) Owners shall collect source water samples prior to chemical treatment, such as coagulants, oxidants and disinfectants. However, the commissioner may approve the collection of a source water sample after chemical treatment. To grant this approval, the commissioner shall determine that collecting a sample prior to chemical treatment is not feasible for the waterworks and that the chemical treatment is unlikely to have a significant adverse effect on the analysis of the sample.

(c) Owners of waterworks that recycle filter backwash water shall collect source water samples prior to the point of filter backwash water addition.

(d) Bank filtration.

(i) Waterworks that receive Cryptosporidium treatment credit for bank filtration under 12VAC5-590-420 B 2 d, shall collect source water samples in the surface water prior to bank filtration.

(ii) Waterworks that use bank filtration as pretreatment to a filtration plant shall collect source water samples from the well (i.e., after bank filtration). Use of bank filtration during monitoring shall be consistent with routine operational practice. Waterworks collecting samples after a bank filtration process may not receive treatment credit for the bank filtration under subdivision B 3 d (4) (c) of this section.

(e) Multiple sources. Owners of waterworks with plants that use multiple water sources, including multiple surface water sources and blended surface water and ground water sources shall collect samples as specified in subdivision B 3 a (6) (e) (i) or (ii) of this section. The use of multiple sources during monitoring shall be consistent with routine operational practice.

(i) If a sampling tap is available where the sources are combined prior to treatment, waterworks shall collect samples from the tap.

(ii) If a sampling tap where the sources are combined prior to treatment is not available, owners shall collect samples at each source near the intake on the same day and shall follow either subdivision B 3 a (6) (e) (ii) ((a)) or ((b)) of this section for sample analysis.

((a)) Owners may composite samples from each source into one sample prior to analysis. The volume of sample from each source shall be weighted according to the proportion of the source in the total plant flow at the time the sample is collected.

((b)) Owners may analyze samples from each source separately and calculate a weighted average of the analysis results for each sampling date. The weighted average shall be calculated by multiplying the analysis result for each source by the fraction the source contributed to total plant flow at the time the sample was collected and then summing these values.

(f) Additional Requirements. Owners shall submit a description of their sampling location(s) to the commissioner at the same time as the sampling schedule required in subdivision B 3 a (3) of this section. This description shall address the position of the sampling location in relation to the waterworks water source(s) and treatment processes, including pretreatment, points of chemical treatment, and filter backwash recycle. If the commissioner does not respond to an owner regarding sampling location(s), the owner shall sample at the reported location(s).

(7) Analytical methods. All analytical methods shall be conducted in accordance with 12VAC5-590-440.

(8) Approved laboratories.

(a) Cryptosporidium. Owners shall have Cryptosporidium samples analyzed by a laboratory that is approved under EPA's Laboratory Quality Assurance Evaluation Program for Analysis of Cryptosporidium in Water or a laboratory that has been certified for Cryptosporidium analysis by an equivalent state laboratory certification program.

(b) E. coli. Any laboratory certified by the state for total coliform or fecal coliform analysis under 12VAC5-590-440 is approved for E. coli analysis when the laboratory uses the same technique for E. coli that the laboratory uses under 12VAC5-590-440. Laboratories shall use methods for enumeration of E. coli in source water approved in 12VAC5-590-440.

(c) Turbidity. Measurements of turbidity shall be made by a party approved by the commissioner.

(9) Reporting of the source water results shall be in accordance with 12VAC5-590-530.

(10) Plants operating only part of the year. Owners of waterworks treating surface water or groundwater under the direct influence of surface water that operates for only part of the year shall conduct source water monitoring in accordance with this section, but with the following modifications:

(a) Owners shall sample their source water only during the months that the plant operates unless the commissioner specifies another monitoring period based on plant operating practices.

(b) Owners of waterworks with plants that operate less than six months per year and that monitor for Cryptosporidium shall collect at least six Cryptosporidium samples per year during each of two years of monitoring. Samples shall be evenly spaced throughout the period the plant operates.

(11) New sources;

(a) Owners of waterworks that begin using a new source of surface water or groundwater under the direct influence of surface water after the waterworks is required to begin monitoring under subdivision B 3 a (3) of this section shall monitor the new source on a schedule the commissioner approves. Source water monitoring shall meet the requirements of this section. The owner shall also meet the bin classification and Cryptosporidium treatment requirements of subdivision B 3 c (1) and (2) of this section, for the new source on a schedule the commissioner approves.

(b) The requirements of this section apply to waterworks using surface water or groundwater under the direct influence of surface water that begin operation after the monitoring start date applicable to the waterworks size under subdivision B 3 a (3) of this section.

(c) The owner shall begin a second round of source water monitoring no later than six years following initial bin classification under in subdivision B 3 c (1) of this section.

(12) Failure to collect any source water sample required under this section in accordance with the sampling schedule, sampling location, analytical method, approved laboratory, and reporting requirements of subdivision B 3 a (5), (6), (7), (8), or (9) of this section is a monitoring violation.

(13) Grandfathering monitoring data. Owners may use (grandfather) monitoring data collected prior to the applicable monitoring start date in subdivision B 3 a (3) of this section to meet the initial source water monitoring requirements in subdivision B 3 a (1) of this section. Grandfathered data may substitute for an equivalent number of months at the end of the monitoring period. All data submitted under this paragraph shall meet the requirements in (13) (a) through (h) listed below and be approved by the commissioner:

(a) An owner may grandfather Cryptosporidium samples to meet the requirements of this section when the owner does not have corresponding E. coli and turbidity samples. A waterworks that grandfathers Cryptosporidium samples without E. coli and turbidity samples is not required to collect E. coli and turbidity samples when the system completes the requirements for Cryptosporidium monitoring under this section.

(b) E. coli sample analysis. The analysis of E. coli samples shall meet the analytical method and approved laboratory requirements of subdivision B 3 a (7) and (8) of this section.

(c) Cryptosporidium sample analysis. The analysis of Cryptosporidium samples shall meet the requirements of subdivision B 3 a (8) of this section.

(d) Sampling location. The sampling location shall meet the conditions in subdivision B 3 a (6) of this section.

(e) Sampling frequency. Cryptosporidium samples were collected no less frequently than each calendar month on a regular schedule, beginning no earlier than January 1999. Sample collection intervals may vary for the conditions specified in subdivision B 3 a (5) (b) (i) and (ii) of this section, if the owner provides documentation of the condition when reporting monitoring results.

(i) The commissioner may approve grandfathering of previously collected data where there are time gaps in the sampling frequency if the owner conducts additional monitoring the commissioner specifies to ensure that the data used to comply with the initial source water monitoring requirements of subdivision B 3 a of this section are seasonally representative and unbiased.

(ii) Owners may grandfather previously collected data where the sampling frequency within each month varied. If the Cryptosporidium sampling frequency varied, owners shall follow the monthly averaging procedure in subdivision B 3 c (1) (a) (v) of this section, when calculating the bin classification for filtered systems.

(f) Reporting monitoring results for grandfathering. Owners that request to grandfather previously collected monitoring results shall report the following information by the applicable dates listed in the following paragraphs. Owners shall report this information to the commissioner.

(i) Owners shall report that they intend to submit previously collected monitoring results for grandfathering. This report shall specify the number of previously collected results the owner shall submit, the dates of the first and last sample, and whether an owner shall conduct additional source water monitoring to meet the requirements in subdivision B 3 a of this section. Owners shall report this information no later than the date the sampling schedule listed in subdivision B 3 a (3) of this section is required.

(ii) Owners shall report previously collected monitoring results for grandfathering, along with the associated documentation listed in paragraphs ((a)) through ((d)) listed below, no later than two months after the applicable date listed in subdivision B 3 a (3) of this section.

((a)) For each sample result, owners shall report the applicable data elements in 12VAC5-590-530 C 1 c.

((b)) Owners shall certify that the reported monitoring results include all results the waterworks generated during the time period beginning with the first reported result and ending with the final reported result. This applies to samples that were collected from the sampling location specified for source water monitoring under subdivision B 3 a (13) (f) of this section, not spiked, and analyzed using the laboratory's routine process for the analytical methods listed in this section.

((c)) Owners shall certify that the samples were representative of a plant's source water(s) and the source water(s) have not changed. Owners shall report a description of the sampling location(s), which shall address the position of the sampling location in relation to the waterworks' water source(s) and treatment processes, including points of chemical addition and filter backwash recycle.

((d)) For Cryptosporidium samples, the laboratory or laboratories that analyzed the samples shall provide a letter certifying that the quality control criteria specified in the methods listed in subdivision B 3 a (8) of this section were met for each sample batch associated with the reported results. Alternatively, the laboratory may provide bench sheets and sample examination report forms for each field, matrix spike, IPR, OPR, and method blank sample associated with the reported results.

(g) If the commissioner determines that a previously collected data set submitted for grandfathering was generated during source water conditions that were not normal for the waterworks, such as a drought, the commissioner may disapprove the data. Alternatively, the commissioner may approve the previously collected data if the owner reports additional source water monitoring data, as determined by the commissioner, to ensure that the data set used under subdivision B 3 c (1) of this section represents average source water conditions for the waterworks.

(h) If an owner submits previously collected data that fully meets the number of samples required for initial source water monitoring under subdivision B 3 a (1) of this section and some of the data are rejected due to not meeting the requirements of this section, the owner shall conduct additional monitoring to replace rejected data on a schedule the commissioner approves. Owners are not required to begin this additional monitoring until two months after notification that data have been rejected and additional monitoring is necessary.

b. Owners of waterworks that plan to make a significant change to their disinfection practice shall develop disinfection profiles and calculate disinfection benchmarks, as described in subdivision B 3 a (1) and (2) below.

(1) Requirements when making a significant change in disinfection practice.

(a) Following the completion of initial source water monitoring under subdivision B 3 a (1) of this section, owners of waterworks that plan to make a significant change to its disinfection practice, as defined in subdivision B 3 b (1) (b) of this section, shall develop disinfection profiles and calculate disinfection benchmarks for Giardia lamblia and viruses as described in subdivision B 3 b (2) of this section. Prior to changing the disinfection practice, the owner shall notify the commissioner and shall include in this notice the information in subdivision B 3 b (1) a) (i) through (iii) of this section.

(i) A completed disinfection profile and disinfection benchmark for Giardia lamblia and viruses as described in subdivision B 3 b (2) of this section.

(ii) A description of the proposed change in disinfection practice.

(iii) An analysis of how the proposed change will affect the current level of disinfection.

(b) Significant changes to disinfection practice are defined as follows:

(i) Changes to the point of disinfection;

(ii) Changes to the disinfectant(s) used in the treatment plant;

(iii) Changes to the disinfection process; or

(iv) Any other modification identified by the commissioner as a significant change to disinfection practice.

(2) Developing the disinfection profile and benchmark.

(a) Owners of waterworks required to develop disinfection profiles in accordance with subdivision B 3 b (1) of this section shall follow the requirements of this section. Owners shall monitor at least weekly for a period of 12 consecutive months to determine the total log inactivation for Giardia lamblia and viruses. If owners monitor more frequently, the monitoring frequency shall be evenly spaced. Owners of waterworks that operate for fewer than 12 months per year shall monitor weekly during the period of operation. Owners shall determine log inactivation for Giardia lamblia through the entire plant, based on CT99.9 values in Appendix L. Owners shall determine log inactivation for viruses through the entire treatment plant based on a protocol approved by the commissioner.

(b) Owners of waterworks with a single point of disinfectant application prior to the entrance to the distribution system shall conduct the monitoring in subdivision B 3 b (2) (b) (i) through (iv) of this section. Owners of waterworks with more than one point of disinfectant application shall conduct the monitoring in subdivision B 3 b (2) (b) (i) through (iv) of this section for each disinfection segment. Owners shall monitor the parameters necessary to determine the total inactivation ratio, using analytical methods in Appendix L.

(i) For waterworks using a disinfectant other than UV, the temperature of the disinfected water shall be measured at each residual disinfectant concentration sampling point during peak hourly flow or at an alternative location approved by the commissioner.

(ii) For waterworks using chlorine, the pH of the disinfected water shall be measured at each chlorine residual disinfectant concentration sampling point during peak hourly flow or at an alternative location approved by the commissioner.

(iii) The disinfectant contact time(s) (t) shall be determined during peak hourly flow.

(iv) The residual disinfectant concentration(s) (C) of the water before or at the first customer and prior to each additional point of disinfectant application shall be measured during peak hourly flow.

(c) In lieu of conducting new monitoring under subdivision B 3 b (2) (b) of this section, owners may elect to meet the requirements of subdivision B 3 b (2) (c) (i) or (ii) of this section.

(i) Owners of waterworks that have at least one year of existing data that are substantially equivalent to data collected under the provisions of subdivision B 3 b (2) (b) of this section may use these data to develop disinfection profiles as specified in this section if the owner has neither made a significant change to its treatment practice nor changed sources since the data were collected. Owners may develop disinfection profiles using up to three years of existing data.

(ii) Owners may use disinfection profile(s) developed under 12VAC5-590-500 E 2 in lieu of developing a new profile if the owner has neither made a significant change to its treatment practice nor changed sources since the profile was developed. Owners that have not developed a virus profile under 12VAC5-590-500 E 2 shall develop a virus profile using the same monitoring data on which the Giardia lamblia profile is based.

(d) Owners of waterworks shall calculate the total inactivation ratio for Giardia lamblia as specified in subdivision B 3 b (2) (d) (i) through (iii) of this section.

(i) Owners of waterworks using only one point of disinfectant application may determine the total inactivation ratio for the disinfection segment based on either of the methods in subdivision B 3 b (2) (d) (i)  ((a)) or ((b)) of this section.

((a)) Determine one inactivation ratio (CTcalc/CT99.9) before or at the first customer during peak hourly flow.

((b)) Determine successive CTcalc/CT99.9 values, representing sequential inactivation ratios, between the point of disinfectant application and a point before or at the first customer during peak hourly flow. The owner shall calculate the total inactivation ratio by determining (CTcalc/CT99.9) for each sequence and then adding the (CTcalc/CT99.9) values together to determine (Σ (CTcalc/CT99.9)).

(ii) Owners of waterworks using more than one point of disinfectant application before the first customer shall determine the CT value of each disinfection segment immediately prior to the next point of disinfectant application, or for the final segment, before or at the first customer, during peak hourly flow. The (CTcalc/CT99.9) value of each segment and (Σ (CTcalc/CT99.9)) shall be calculated using the method in paragraph (i) ((b)) of this section.

(iii) The owner shall determine the total logs of inactivation by multiplying the value calculated in subdivision B 3 b (2) (d) (i) or (ii) of this section by 3.0.

(iv) Owners shall calculate the log of inactivation for viruses using a protocol approved by the commissioner.

(e) Owners shall use the procedures specified in  (i) and (ii) listed below to calculate a disinfection benchmark.

(i) For each year of profiling data collected and calculated under subdivision B 3 b (2) (a) through (d) of this section, owners shall determine the lowest mean monthly level of both Giardia lamblia and virus inactivation. Owners shall determine the mean Giardia lamblia and virus inactivation for each calendar month for each year of profiling data by dividing the sum of daily or weekly Giardia lamblia and virus log inactivation by the number of values calculated for that month.

(ii) The disinfection benchmark is the lowest monthly mean value (for waterworks with one year of profiling data) or the mean of the lowest monthly mean values (for waterworks with more than one year of profiling data) of Giardia lamblia and virus log inactivation in each year of profiling data.

c. Owners shall determine their Cryptosporidium treatment bin classification as described in subdivision B 3 c (1) and provide additional treatment for Cryptosporidium, if required, as described in subdivision B 3 c (2). Owners shall implement Cryptosporidium treatment according to the schedule in subdivision B 3 c (3).

(1) Bin classification for waterworks.

(a) Following completion of the initial round of source water monitoring required under subdivision B 3 a (1), owners shall calculate an initial Cryptosporidium bin concentration for each plant for which monitoring was required. Calculation of the bin concentration shall use the Cryptosporidium results reported under subdivision B 3 a (1) and shall follow these procedures:

(i) For waterworks that collect a total of at least 48 samples, the bin concentration is equal to the arithmetic mean of all sample concentrations.

(ii) For waterworks that collect a total of at least 24 samples, but not more than 47 samples, the bin concentration is equal to the highest arithmetic mean of all sample concentrations in any 12 consecutive months during which Cryptosporidium samples were collected.

(iii) For waterworks that serve fewer than 10,000 people and monitor for Cryptosporidium for only one year (i.e., collect 24 samples in 12 months), the bin concentration is equal to the arithmetic mean of all sample concentrations.

(iv) For waterworks with plants operating only part of the year that monitor fewer than 12 months per year under subdivision B 3 a (1), the bin concentration is equal to the highest arithmetic mean of all sample concentrations during any year of Cryptosporidium monitoring.

(v) If the monthly Cryptosporidium sampling frequency varies, owners shall first calculate a monthly average for each month of monitoring. Owners shall then use these monthly average concentrations, rather than individual sample concentrations, in the applicable calculation for bin classification in subdivision B 3 c (1) (a) (i) through (iv) of this section.

(b) Owners shall determine their initial bin classification from the following table and using the Cryptosporidium bin concentration calculated under subdivision B 3 c (1) (a) of this section:

Bin Classification Table for Filtered Systems

For owners of waterworks that are:

with a Cryptosporidium bin concentration of1 ...

The bin classification is...

...required to monitor for Cryptosporidium under subdivision B 3 a (1)

Cryptosporidium less than 0.075 oocysts/L

Bin 1

Cryptosporidium equal to or greater than 0.075 oocysts/L but less than 1.0 oocysts/L

Bin 2

Cryptosporidium equal to or greater than 1.0 oocysts/L but less than 3.0 oocysts/L

Bin 3

Cryptosporidium equal to or greater than 3.0 oocysts/L

Bin 4

...serving fewer than 10,000 people and NOT required to monitor for Cryptosporidium under B 3 a (1)(c)

NA

Bin 1

1Based on calculations in subdivision B 3 c (1) (a) or (c) of this section, as applicable

(c) Following completion of the second round of source water monitoring required under subdivision B 3 a (2), owners shall recalculate their Cryptosporidium bin concentration using the Cryptosporidium results reported under subdivision B 3 a (2) and following the procedures in subdivision B 3 c (1) (a)(i) through (iv) of this section. Owners shall then redetermine their bin classification using this bin concentration and the table in subdivision B 3 c (1) (b) of this section.

(d) Reporting of bin classifications

(i) Owners shall report their initial bin classification under subdivision B 3 c (1) (b) of this section to the commissioner for approval no later than six months after the waterworks is required to complete initial source water monitoring based on the schedule in subdivision B 3 a (3).

(ii) Owners shall report their bin classification under subdivision B 3 c (1) (c) of this section to the commissioner for approval no later than six months after the owner is required to complete the second round of source water monitoring based on the schedule in subdivision B 3 c (1) 3 a (3) of this section.

(iii) The bin classification report to the commissioner shall include a summary of source water monitoring data and the calculation procedure used to determine bin classification.

(e) Failure to comply with the conditions of subdivision B 3 c (1) (d) of this section is a violation of the treatment technique requirement.

(2) Waterworks additional Cryptosporidium treatment requirements.

(a) Waterworks shall provide the level of additional treatment for Cryptosporidium specified in this paragraph based on their bin classification as determined under subdivision B 3 c (1) of this section and according to the schedule in subdivision B 3 c (3) (b) of this section.

 


If the waterworks bin classification is...

And the waterworks uses the following filtration treatment in full compliance with 12VAC5-590-420 A and B, then the additional Cryptosporidium treatment requirements are...

 

Conventional filtration treatment (including softening)

Direct filtration

Slow sand or diatomaceous earth filtration

Alternative filtration technologies

Bin 1

No additional treatment

No additional treatment

No additional treatment

No additional treatment

Bin 2

1-log treatment

1.5-log treatment

1-log treatment

(1)

Bin 3

2-log treatment

2.5-log treatment

2-log treatment

(2)

Bin 4

2.5-log treatment

3-log treatment

2.5-log treatment

(3)

1As determined by the commissioner such that the total Cryptosporidium removal and inactivation is at least 4.0-log

2As determined by the commissioner such that the total Cryptosporidium removal and inactivation is at least 5.0-log

3As determined by the commissioner such that the total Cryptosporidium removal and inactivation is at least 5.5-log


(b) Additional treatment

(i) Owners shall use one or more of the treatment and management options listed in subdivision B 3 d, termed the microbial toolbox, to comply with the additional Cryptosporidium treatment required in subdivision B 3 c (2) (a) of this section.

(ii) Waterworks classified in Bin 3 and Bin 4 shall achieve at least 1-log of the additional Cryptosporidium treatment required under subdivision B 3 c (2) (a) of this section using either one or a combination of the following: bag filters, bank filtration, cartridge filters, chlorine dioxide, membranes, ozone, or UV, as described in subdivision B 3 d (3) through (7) of this section.

(c) Failure by a waterworks in any month to achieve treatment credit by meeting criteria in subdivision B 3 d (3) through (7) of this section for microbial toolbox options that is at least equal to the level of treatment required in subdivision B 3 c (2) (a) of this section is a violation of the treatment technique requirement.

(d) If the commissioner determines during a sanitary survey or an equivalent source water assessment that after a waterworks completed the monitoring conducted under subdivision B 3 a (1) or (2) of this section, significant changes occurred in the waterworks' watershed that could lead to increased contamination of the source water by Cryptosporidium, the owner shall take actions specified by the commissioner to address the contamination. These actions may include additional source water monitoring and/or implementing microbial toolbox options listed in subdivision B 3 d (2) of this section.

(3) Schedule for compliance with Cryptosporidium treatment requirements.

(a) Following initial bin classification in accordance with subdivision B 3 c (1) (b) of this section, waterworks shall provide the level of treatment for Cryptosporidium required under subdivision B 3 c (2) of this section according to the schedule in subdivision B 3 c (3) (b) of this section.

(b) Cryptosporidium treatment compliance dates.

Cryptosporidium Treatment Compliance Dates Table

Waterworks that serve....

Shall comply with Cryptosporidium treatment requirements no later than1...

At least 100,000 people

April 1, 2012

From 50,000 to 99,999 people

October 1, 2012

From 10,000 to 49,999 people

October 1, 2013

Fewer than 10,000 people

October 1, 2014

1The commissioner may allow up to an additional two years for complying with the treatment requirement for waterworks making capital improvements.

(c) If the bin classification for a filtered system changes following the second round of source water monitoring, as determined under subdivision B 3 c (1) (c) of this section, the waterworks shall provide the level of treatment for Cryptosporidium required under subdivision B 3 c (2) of this section on a schedule the commissioner approves.

d. Owners of waterworks required to provide additional treatment for Cryptosporidium shall implement microbial toolbox options that are designed and operated as described in subdivision B 3 d (1) through (7) of this section.

(1) Waterworks receive the treatment credits listed in the table in subdivision B 3 d (2) of this section by meeting the conditions for microbial toolbox options described in subdivision B 3 d (3) through (7) of this section. Waterworks apply these treatment credits to meet the treatment requirements in subdivision B 3 c (2) of this section.

(2) Microbial Toolbox Summary Table: Options, Treatment Credits and Criteria


Microbial Toolbox Summary Table: Options, Treatment Credits and Criteria

Toolbox Option

Cryptosporidium treatment credit with design and implementation criteria

Source Protection and Management Toolbox Options

Watershed control program

0.5-log credit for program approved by the commissioner comprising required elements, annual program status report to the commissioner, and regular watershed survey. Specific criteria are in subdivision B 3 d (3) (a)

Alternative source/ intake management

No prescribed credit. Owners may conduct simultaneous monitoring for treatment bin classification at alternative intake locations or under alternative intake management strategies. Specific criteria are in subdivision B 3 d (3) (b).

Pre Filtration Toolbox Options

Presedimentation basin with coagulation

0.5-log credit during any month that presedimentation basins achieve a monthly mean reduction of 0.5-log or greater in turbidity or alternative performance criteria approved by the commissioner. To be eligible, basins shall be operated continuously with coagulant addition and all plant flow shall pass through basins. Specific criteria are in subdivision B 3 d (4) (a)

Two-stage lime softening

0.5-log credit for two-stage softening where chemical addition and hardness precipitation occur in both stages. All plant flow shall pass through both stages. Single-stage softening is credited as equivalent to conventional treatment. Specific criteria are in subdivision B 3 d (4) (b).

Bank filtration

0.5-log credit for 25-foot setback; 1.0-log credit for 50-foot setback; aquifer shall be unconsolidated sand containing at least 10% fines; average turbidity in wells shall be less than 1 NTU. Waterworks using wells followed by filtration when conducting source water monitoring shall sample the well to determine bin classification and are not eligible for additional credit. Specific criteria are in subdivision B 3 d (4) (c).

Treatment Performance Toolbox Options

Combined filter performance

0.5-log credit for combined filter effluent turbidity less than or equal to 0.15 NTU in at least 95% of measurements each month. Specific criteria are in subdivision B 3 d (5) (a).

Individual filter performance

0.5-log credit (in addition to 0.5-log combined filter performance credit) if individual filter effluent turbidity is less than or equal to 0.15 NTU in at least 95% of samples each month in each filter and is never greater than 0.3 NTU in two consecutive measurements in any filter. Specific criteria are in subdivision B 3 d (5) (b).

Additional Filtration Toolbox Options

Bag or cartridge filters (individual filters)

Up to 2-log credit based on the removal efficiency demonstrated during challenge testing with a 1.0-log factor of safety. Specific criteria are in subdivision B 3 d (6) (a).

Bag or cartridge filters (in series)

Up to 2.5-log credit based on the removal efficiency demonstrated during challenge testing with a 0.5-log factor of safety. Specific criteria are in subdivision B 3 d (6) (a).

Membrane filtration

Log credit equivalent to removal efficiency demonstrated in challenge test for device if supported by direct integrity testing. Specific criteria are in subdivision B 3 d (6) (b).

Second stage filtration

0.5-log credit for second separate granular media filtration stage if treatment train includes coagulation prior to first filter. Specific criteria are in subdivision B 3 d (6) (c).

Slow sand filters

2.5-log credit as a secondary filtration step; 3.0-log credit as a primary filtration process. No prior chlorination for either option. Specific criteria are in subdivision B 3 d (6) (d).

Inactivation Toolbox Options

Chlorine dioxide

Log credit based on measured CT in relation to CT table. Specific criteria in subdivision B 3 d (7) (b).

Ozone

Log credit based on measured CT in relation to CT table. Specific criteria in subdivision B 3 d (7) (b).

UV

Log credit based on validated UV dose in relation to UV dose table; reactor validation testing required to establish UV dose and associated operating conditions. Specific criteria in subdivision B 3 d (7) (d).


(3) Source toolbox components.

(a) Watershed control program. Waterworks receive 0.5-log Cryptosporidium treatment credit for implementing a watershed control program that meets the requirements of this section.

(i) Owners that intend to apply for the watershed control program credit shall notify the commissioner of this intent no later than two years prior to the treatment compliance date applicable to the waterworks in subdivision B 3 a (3) of this section.

(ii) Owners shall submit to the commissioner a proposed watershed control plan no later than one year before the applicable treatment compliance date in subdivision B 3 a (3) of this section. The commissioner shall approve the watershed control plan for the waterworks to receive watershed control program treatment credit. The watershed control plan shall include the following elements:

((a)) Identification of an "area of influence" outside of which the likelihood of Cryptosporidium or fecal contamination affecting the treatment plant intake is not significant. This is the area to be evaluated in future watershed surveys under subdivision B 3 d (3) (a) (v) ((b)) of this section.

((b)) Identification of both potential and actual sources of Cryptosporidium contamination and an assessment of the relative impact of these sources on the waterworks' source water quality.

((c)) An analysis of the effectiveness and feasibility of control measures that could reduce Cryptosporidium loading from sources of contamination to the waterworks' source water.

((d)) A statement of goals and specific actions the owner shall undertake to reduce source water Cryptosporidium levels. The plan shall explain how the actions are expected to contribute to specific goals, identify watershed partners and their roles, identify resource requirements and commitments, and include a schedule for plan implementation with deadlines for completing specific actions identified in the plan.

(iii) Waterworks with existing watershed control programs (i.e., programs in place on January 5, 2006) are eligible to seek this credit. Their watershed control plans shall meet the criteria in subdivision B 3 d (3) (a) (ii) of this section and shall specify ongoing and future actions that will reduce source water Cryptosporidium levels.

(iv) If the commissioner does not respond to an owner regarding approval of a watershed control plan submitted under this section and the owner meets the other requirements of this section, the watershed control program shall be considered approved and 0.5 log Cryptosporidium treatment credit shall be awarded unless and until the commissioner subsequently withdraws such approval.

(v) To maintain the 0.5-log credit, owners shall complete the following actions:

((a)) Submit an annual watershed control program status report to the commissioner. The annual watershed control program status report shall describe the owner's implementation of the approved plan and assess the adequacy of the plan to meet its goals. It shall explain how the waterworks is addressing any shortcomings in plan implementation, including those previously identified by the commissioner or as the result of the watershed survey conducted under subdivision B 3 d (3) (a) (v) ((b)) of this section. It shall also describe any significant changes that have occurred in the watershed since the last watershed sanitary survey. If an owner determines during implementation that making a significant change to the approved watershed control program is necessary, the owner shall notify the commissioner prior to making any such changes. If any change is likely to reduce the level of source water protection, the owner shall also list in the notification the actions the owners will take to mitigate this effect.

((b)) Undergo a watershed sanitary survey every three years for community waterworks and every five years for noncommunity waterworks and submit the survey report to the commissioner. The survey shall be conducted according to commissioner's guidelines and by persons the commissioner approves.

((i)) The watershed sanitary survey shall meet the following criteria: encompass the region identified in the watershed control plan approved by the commissioner as the area of influence; assess the implementation of actions to reduce source water Cryptosporidium levels; and identify any significant new sources of Cryptosporidium.

((ii)) If the commissioner determines that significant changes may have occurred in the watershed since the previous watershed sanitary survey, the waterworks shall undergo another watershed sanitary survey by a date the commissioner requires, which may be earlier than the regular date in subdivision B 3 d (3) (a) (v) ((b)) of this section.

((c)) The owner shall make the watershed control plan, annual status reports, and watershed sanitary survey reports available to the public upon request. These documents shall be in a plain language style and include criteria by which to evaluate the success of the program in achieving plan goals. The commissioner may approve an owner to withhold from the public portions of the annual status report, watershed control plan, and watershed sanitary survey based on water supply security considerations.

(vi) If the commissioner determines that an owner is not carrying out the approved watershed control plan, the commissioner may withdraw the watershed control program treatment credit.

(a) Reserved.

(b) Alternative source.

(i) An owner may conduct source water monitoring that reflects a different intake location (either in the same source or for an alternate source) or a different procedure for the timing or level of withdrawal from the source (alternative source monitoring). If the commissioner approves, an owner may determine the bin classification under subdivision B 3 c (1) of this section based on the alternative source monitoring results.

(ii) If an owner conducts alternative source monitoring under subdivision B 3 d (3) (b) (i) of this section, the owner shall also monitor their current plant intake concurrently as described in subdivision B 3 a of this section.

(iii) Alternative source monitoring under subdivision B 3 d (3) (b) (i) of this section shall meet the requirements for source monitoring to determine bin classification, as described in subdivision B 3 a (1) through (13) of this section. Owners shall report the alternative source monitoring results to the commissioner, along with supporting information documenting the operating conditions under which the samples were collected.

(iv) If an owner determines the bin classification under subdivision B 3 c (1) of this section using alternative source monitoring results that reflect a different intake location or a different procedure for managing the timing or level of withdrawal from the source, the owner shall relocate the intake or permanently adopt the withdrawal procedure, as applicable, no later than the applicable treatment compliance date in subdivision B 3 c (3) of this section.

(4) Pre-filtration treatment toolbox components.

(a) Presedimentation. Waterworks receive 0.5-log Cryptosporidium treatment credit for a presedimentation basin during any month the process meets the following criteria:

(i) The presedimentation basin shall be in continuous operation and shall treat the entire plant flow taken from a surface water or groundwater under the direct influence of surface water source.

(ii) The waterworks shall continuously add a coagulant to the presedimentation basin.

(iii) The presedimentation basin shall achieve the performance criteria in either of the following.

((a)) Demonstrates at least 0.5-log mean reduction of influent turbidity. This reduction shall be determined using daily turbidity measurements in the presedimentation process influent and effluent and shall be calculated as follows: log10(monthly mean of daily influent turbidity) - log10(monthly mean of daily effluent turbidity).

((b)) Complies with performance criteria approved by the commissioner that demonstrate at least 0.5-log mean removal of micron-sized particulate material through the presedimentation process.

(b) Two-stage lime softening. Waterworks receive an additional 0.5-log Cryptosporidium treatment credit for a two-stage lime softening plant if chemical addition and hardness precipitation occur in two separate and sequential softening stages prior to filtration. Both softening stages shall treat the entire plant flow taken from a surface water or groundwater under the direct influence of surface water source.

(c) Bank filtration. Waterworks receive Cryptosporidium treatment credit for bank filtration that serves as pretreatment to a filtration plant by meeting the criteria in this paragraph. Waterworks using bank filtration when they begin source water monitoring under subdivision B 3 a (1) of this section shall collect samples as described in subdivision B 3 a (6) (d) of this section and are not eligible for this credit.

(i) Wells with a ground water flow path of at least 25 feet receive 0.5-log treatment credit; wells with a ground water flow path of at least 50 feet receive 1.0-log treatment credit. The ground water flow path shall be determined as specified in subdivision B 3 d (c) (iv) of this section.

(ii) Only wells in granular aquifers are eligible for treatment credit. Granular aquifers are those comprised of sand, clay, silt, rock fragments, pebbles or larger particles, and minor cement. A waterworks shall characterize the aquifer at the well site to determine aquifer properties. Owners shall extract a core from the aquifer and demonstrate that in at least 90% of the core length, grains less than 1.0 mm in diameter constitute at least 10% of the core material.

(iii) Only horizontal and vertical wells are eligible for treatment credit.

(iv) For vertical wells, the ground water flow path is the measured distance from the edge of the surface water body under high flow conditions (determined by the 100-year floodplain elevation boundary or by the floodway, as defined in Federal Emergency Management Agency flood hazard maps) to the well screen. For horizontal wells, the ground water flow path is the measured distance from the bed of the river under normal flow conditions to the closest horizontal well lateral screen.

(v) Owners shall monitor each wellhead for turbidity at least once every four hours while the bank filtration process is in operation. If monthly average turbidity levels, based on daily maximum values in the well, exceed 1 NTU, the owner shall report this result to the commissioner and conduct an assessment within 30 days to determine the cause of the high turbidity levels in the well. If the commissioner determines that microbial removal has been compromised, the commissioner may revoke treatment credit until the owner implements corrective actions approved by the commissioner to remediate the problem.

(vi) Springs and infiltration galleries are not eligible for treatment credit under this section.

(vii) Bank filtration demonstration of performance. The commissioner may approve Cryptosporidium treatment credit for bank filtration based on a demonstration of performance study that meets the criteria in this paragraph. This treatment credit may be greater than 1.0-log and may be awarded to bank filtration that does not meet the criteria in subdivision B 3 d (4) (c) (i) through (v) of this section.

((a)) The study shall follow a protocol approved by the commissioner and shall involve the collection of data on the removal of Cryptosporidium or a surrogate for Cryptosporidium and related hydrogeologic and water quality parameters during the full range of operating conditions.

((b)) The study shall include sampling both from the production well(s) and from monitoring wells that are screened and located along the shortest flow path between the surface water source and the production well(s).

(5) Treatment performance toolbox components.

(a) Combined filter performance. Waterworks using conventional filtration treatment or direct filtration treatment receive an additional 0.5-log Cryptosporidium treatment credit during any month the waterworks meets the criteria in this paragraph. Combined filter effluent (CFE) turbidity shall be less than or equal to 0.15 NTU in at least 95% of the measurements. Turbidity shall be measured as described in 12VAC5-590-370 B 7 b and 12VAC5-590-370 E.

(b) Individual filter performance. Waterworks using conventional filtration treatment or direct filtration treatment receive 0.5-log Cryptosporidium treatment credit, which can be in addition to the 0.5-log credit under subdivision B 3 d (5) (a) of this section, during any month the waterworks meets the criteria in this paragraph. Compliance with these criteria shall be based on individual filter turbidity monitoring as described in 12VAC5-590-370 B 7 b (1).

(i) The filtered water turbidity for each individual filter shall be less than or equal to 0.15 NTU in at least 95% of the measurements recorded each month.

(ii) No individual filter may have a measured turbidity greater than 0.3 NTU in two consecutive measurements taken 15 minutes apart.

(iii) Any waterworks that has received treatment credit for individual filter performance and fails to meet the requirements of subdivision B 3 d (5) (b) (i) or (ii) of this section during any month does not receive a treatment technique violation under subdivision B 3 c (2) (c) if the commissioner determines the following:

((a)) The failure was due to unusual and short-term circumstances that could not reasonably be prevented through optimizing treatment plant design, operation, and maintenance.

((b)) The waterworks has experienced no more than two such failures in any calendar year.

(6) Additional filtration toolbox components.

(a) Bag and cartridge filters. Waterworks receive Cryptosporidium treatment credit of up to 2.0-log for individual bag or cartridge filters and up to 2.5-log for bag or cartridge filters operated in series by meeting the criteria in subdivision B 3 d (6) (a) (i) through (x) of this section. To be eligible for this credit, owners shall report the results of challenge testing that meets the requirements of subdivision B 3 d (6) (a)(ii) through (ix) of this section to the commissioner. The filters shall treat the entire plant flow taken from a surface water or groundwater under the direct influence of surface water source.

(i) The Cryptosporidium treatment credit awarded to bag or cartridge filters shall be based on the removal efficiency demonstrated during challenge testing that is conducted according to the criteria in subdivision B 3 d (6) (a) (ii) through (ix) of this section. A factor of safety equal to 1-log for individual bag or cartridge filters and 0.5-log for bag or cartridge filters in series shall be applied to challenge testing results to determine removal credit. Owners may use results from challenge testing conducted prior to January 5, 2006, if the prior testing was consistent with the criteria specified in subdivision B 3 d (6) (a) (ii) through (ix) of this section.

(ii) Challenge testing shall be performed on full-scale bag or cartridge filters, and the associated filter housing or pressure vessel, that are identical in material and construction to the filters and housings the waterworks will use for removal of Cryptosporidium. Bag or cartridge filters shall be challenge tested in the same configuration that the waterworks will use, either as individual filters or as a series configuration of filters.

(iii) Challenge testing shall be conducted using Cryptosporidium or a surrogate that is removed no more efficiently than Cryptosporidium. The microorganism or surrogate used during challenge testing is referred to as the challenge particulate. The concentration of the challenge particulate shall be determined using a method capable of discreetly quantifying the specific microorganism or surrogate used in the test; gross measurements such as turbidity shall not be used.

(iv) The maximum feed water concentration that can be used during a challenge test shall be based on the detection limit of the challenge particulate in the filtrate (i.e., filtrate detection limit) and shall be calculated using the following equation:

Maximum Feed Concentration = 1 x 104 x (Filtrate Detection Limit)

(v) Challenge testing shall be conducted at the maximum design flow rate for the filter as specified by the manufacturer.

(vi) Each filter evaluated shall be tested for a duration sufficient to reach 100% of the terminal pressure drop, which establishes the maximum pressure drop under which the filter may be used to comply with the requirements of subdivision B 3 d (6) (a) of this section.

(vii) Removal efficiency of a filter shall be determined from the results of the challenge test and expressed in terms of log removal values using the following equation:

LRV = LOG10(Cf) - LOG10(Cp)

where LRV = log removal value demonstrated during challenge testing; Cf = the feed concentration measured during the challenge test; and Cp = the filtrate concentration measured during the challenge test. In applying this equation, the same units shall be used for the feed and filtrate concentrations. If the challenge particulate is not detected in the filtrate, then the term Cp shall be set equal to the detection limit.

(viii) Each filter tested shall be challenged with the challenge particulate during three periods over the filtration cycle: within two hours of start-up of a new filter; when the pressure drop is between 45 and 55% of the terminal pressure drop; and at the end of the cycle after the pressure drop has reached 100% of the terminal pressure drop. An LRV shall be calculated for each of these challenge periods for each filter tested. The LRV for the filter (LRVfilter) shall be assigned the value of the minimum LRV observed during the three challenge periods for that filter.

(ix) If fewer than 20 filters are tested, the overall removal efficiency for the filter product line shall be set equal to the lowest LRV filter among the filters tested. If 20 or more filters are tested, the overall removal efficiency for the filter product line shall be set equal to the 10th percentile of the set of LRVfilter values for the various filters tested. The percentile is defined by (i/(n+1)) where i is the rank of n individual data points ordered lowest to highest. If necessary, the 10th percentile may be calculated using linear interpolation.

(x) If a previously tested filter is modified in a manner that could change the removal efficiency of the filter product line, challenge testing to demonstrate the removal efficiency of the modified filter shall be conducted and submitted to the commissioner.

(b) Membrane filtration.

(i) Waterworks receive Cryptosporidium treatment credit for membrane filtration that meets the criteria of this paragraph. Membrane cartridge filters that meet the definition of membrane filtration in 12VAC5-590-10 are eligible for this credit. The level of treatment credit a waterworks receives is equal to the lower of the values determined as follows:

((a)) The removal efficiency demonstrated during challenge testing conducted under the conditions in subdivision B 3 d (6) (b) (ii) of this section.

((b)) The maximum removal efficiency that can be verified through direct integrity testing used with the membrane filtration process under the conditions in subdivision B 3 d (6) (b) (iii) of this section.

(ii) Challenge Testing. The membrane used by the waterworks shall undergo challenge testing to evaluate removal efficiency, and the owner shall report the results of challenge testing to the commissioner. Challenge testing shall be conducted according to the criteria in paragraphs ((a)) through ((g)) of this section as follows (owners may use data from challenge testing conducted prior to January 5, 2006, if the prior testing was consistent with the criteria):

((a)) Challenge testing shall be conducted on either a full-scale membrane module, identical in material and construction to the membrane modules used in the waterworks' treatment facility, or a smaller-scale membrane module, identical in material and similar in construction to the full-scale module. A module is defined as the smallest component of a membrane unit in which a specific membrane surface area is housed in a device with a filtrate outlet structure.

((b)) Challenge testing shall be conducted using Cryptosporidium oocysts or a surrogate that is removed no more efficiently than Cryptosporidium oocysts. The organism or surrogate used during challenge testing is referred to as the challenge particulate. The concentration of the challenge particulate, in both the feed and filtrate water, shall be determined using a method capable of discretely quantifying the specific challenge particulate used in the test; gross measurements such as turbidity shall not be used.

((c)) The maximum feed water concentration that can be used during a challenge test is based on the detection limit of the challenge particulate in the filtrate and shall be determined according to the following equation:

Maximum Feed Concentration = 3.16 x 106 x (Filtrate Detection Limit)

((d)) Challenge testing shall be conducted under representative hydraulic conditions at the maximum design flux and maximum design process recovery specified by the manufacturer for the membrane module. Flux is defined as the throughput of a pressure driven membrane process expressed as flow per unit of membrane area. Recovery is defined as the volumetric percent of feed water that is converted to filtrate over the course of an operating cycle uninterrupted by events such as chemical cleaning or a solids removal process (i.e., backwashing).

((e)) Removal efficiency of a membrane module shall be calculated from the challenge test results and expressed as a log removal value according to the following equation:

LRV = LOG10(Cf) - LOG10(Cp)

where LRV = log removal value demonstrated during the challenge test; Cf = the feed concentration measured during the challenge test; and Cp = the filtrate concentration measured during the challenge test. Equivalent units shall be used for the feed and filtrate concentrations. If the challenge particulate is not detected in the filtrate, the term Cp is set equal to the detection limit for the purpose of calculating the LRV. An LRV shall be calculated for each membrane module evaluated during the challenge test.

((f)) The removal efficiency of a membrane filtration process demonstrated during challenge testing shall be expressed as a log removal value (LRVC-Test). If fewer than 20 modules are tested, then LRVC-Test is equal to the lowest of the representative LRVs among the modules tested. If 20 or more modules are tested, then LRVC-Test is equal to the 10th percentile of the representative LRVs among the modules tested. The percentile is defined by (i/(n+1)) where i is the rank of n individual data points ordered lowest to highest. If necessary, the 10th percentile may be calculated using linear interpolation.

((g)) The challenge test shall establish a quality control release value (QCRV) for a nondestructive performance test that demonstrates the Cryptosporidium removal capability of the membrane filtration module. This performance test shall be applied to each production membrane module used by the waterworks that was not directly challenge tested in order to verify Cryptosporidium removal capability. Production modules that do not meet the established QCRV are not eligible for the treatment credit demonstrated during the challenge test.

((h)) If a previously tested membrane is modified in a manner that could change the removal efficiency of the membrane or the applicability of the non-destructive performance test and associated QCRV, additional challenge testing to demonstrate the removal efficiency of, and determine a new QCRV for, the modified membrane shall be conducted and submitted to the commissioner.

(iii) Direct integrity testing. Owners shall conduct direct integrity testing in a manner that demonstrates a removal efficiency equal to or greater than the removal credit awarded to the membrane filtration process and meets the requirements described in subdivision B 3 d 6 (b) (iii) ((a)) through ((f)) of this section. A direct integrity test is defined as a physical test applied to a membrane unit in order to identify and isolate integrity breaches (i.e., one or more leaks that could result in contamination of the filtrate).

((a)) The direct integrity test shall be independently applied to each membrane unit in service. A membrane unit is defined as 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.

((b)) The direct integrity method shall have a resolution of three micrometers or less, where resolution is defined as the size of the smallest integrity breach that contributes to a response from the direct integrity test.

((c)) The direct integrity test shall have a sensitivity sufficient to verify the log treatment credit awarded to the membrane filtration process by the commissioner, where sensitivity is defined as the maximum log removal value that can be reliably verified by a direct integrity test. Sensitivity shall be determined using the approach in either of the following as applicable to the type of direct integrity test the waterworks uses:

((i)) For direct integrity tests that use an applied pressure or vacuum, the direct integrity test sensitivity shall be calculated according to the following equation:

LRVDIT = LOG10(Qp /(VCF x Qbreach))

where LRVDIT = the sensitivity of the direct integrity test;

Qp = total design filtrate flow from the membrane unit;

Qbreach = flow of water from an integrity breach associated with the smallest integrity test response that can be reliably measured, and

VCF = volumetric concentration factor. The volumetric concentration factor is the ratio of the suspended solids concentration on the high pressure side of the membrane relative to that in the feed water.

((ii)) For direct integrity tests that use a particulate or molecular marker, the direct integrity test sensitivity shall be calculated according to the following equation:

LRVDIT = LOG10(Cf) - LOG10(Cp)

where LRVDIT = the sensitivity of the direct integrity test;

Cf = the typical feed concentration of the marker used in the test; and

Cp = the filtrate concentration of the marker from an integral membrane unit.

((d)) Owners shall establish a control limit within the sensitivity limits of the direct integrity test that is indicative of an integral membrane unit capable of meeting the removal credit awarded by the commissioner.

((e)) If the result of a direct integrity test exceeds the control limit established under subdivision B 3 d (6) (b) (iii) ((d)) of this section, the owners shall remove the membrane unit from service. Owners shall conduct a direct integrity test to verify any repairs, and may return the membrane unit to service only if the direct integrity test is within the established control limit.

((f)) Owners shall conduct direct integrity testing on each membrane unit at a frequency of not less than once each day that the membrane unit is in operation. The commissioner may approve less frequent testing, based on demonstrated process reliability, the use of multiple barriers effective for Cryptosporidium, or reliable process safeguards.

(iv) Indirect integrity monitoring. Owners shall conduct continuous indirect integrity monitoring on each membrane unit according to the criteria in ((a)) through ((e)). Indirect integrity monitoring is defined as monitoring some aspect of filtrate water quality that is indicative of the removal of particulate matter. A waterworks that implements continuous direct integrity testing of membrane units in accordance with the criteria in B 3 d (6) (b) (iv) (iii) ((a)) through ((f)) of this section is not subject to the requirements for continuous indirect integrity monitoring. Owners shall submit a monthly report to the commissioner summarizing all continuous indirect integrity monitoring results triggering direct integrity testing and the corrective action that was taken in each case.

((a)) Unless the commissioner approves an alternative parameter, continuous indirect integrity monitoring shall include continuous filtrate turbidity monitoring.

((b)) Continuous monitoring shall be conducted at a frequency of no less than once every 15 minutes.

((c)) Continuous monitoring shall be separately conducted on each membrane unit.

((d)) If indirect integrity monitoring includes turbidity and if the filtrate turbidity readings are above 0.15 NTU for a period greater than 15 minutes (i.e., two consecutive 15-minute readings above 0.15 NTU), direct integrity testing shall immediately be performed on the associated membrane unit as specified in subdivision B 3 d (6) (b) (iii) ((a)) through ((f)) of this section.

((e)) If indirect integrity monitoring includes a alternative parameter approved by the commissioner and if the alternative parameter exceeds a control limit approved by the commissioner for a period greater than 15 minutes, direct integrity testing shall immediately be performed on the associated membrane units as specified in subdivision B 3 d (6) (b) (iii) ((a)) through ((f)) of this section.

(c) Second stage filtration. Waterworks receive 0.5-log Cryptosporidium treatment credit for a separate second stage of filtration that consists of sand, dual media, GAC, or other fine grain media following granular media filtration if the commissioner approves. To be eligible for this credit, the first stage of filtration shall be preceded by a coagulation step and both filtration stages shall treat the entire plant flow taken from a surface water or groundwater under the direct influence of surface water source. A cap, such as GAC, on a single stage of filtration is not eligible for this credit. The commissioner shall approve the treatment credit based on an assessment of the design characteristics of the filtration process.

(d) Slow sand filtration (as secondary filter). Waterworks are eligible to receive 2.5-log Cryptosporidium treatment credit for a slow sand filtration process that follows a separate stage of filtration if both filtration stages treat entire plant flow taken from a surface water or ground water under the direct influence of surface water source and no disinfectant residual is present in the influent water to the slow sand filtration process. The commissioner shall approve the treatment credit based on an assessment of the design characteristics of the filtration process. This paragraph does not apply to treatment credit awarded to slow sand filtration used as a primary filtration process.

(7) Inactivation toolbox components.

(a) Calculation of CT values

(i) CT is the product of the disinfectant contact time (T, in minutes) and disinfectant concentration (C, in milligrams per liter). Owners of waterworks with treatment credit for chlorine dioxide or ozone under subdivision B 3 d (7) (b) of this section shall calculate CT at least once each day, with both C and T measured during peak hourly flow in accordance with the procedure listed in Appendix L.

(ii) Waterworks with several disinfection segments in sequence may calculate CT for each segment, where a disinfection segment is defined as a treatment unit process with a measurable disinfectant residual level and a liquid volume. Under this approach, owners shall add the Cryptosporidium CT values in each segment to determine the total CT for the treatment plant.

(b) CT values for chlorine dioxide and ozone.

(i) Waterworks receive the Cryptosporidium treatment credit listed in the following table by meeting the corresponding chlorine dioxide CT value for the applicable water temperature, as described in subdivision B 3 d (7) (a) of this section.

 


CT Values (mg-min/L) for Cryptosporidium Inactivation by Chlorine Dioxide1

Log credit

Water Temperature, °C

Less than or equal to 0.5

1

2

3

5

7

10

15

20

25

30

0.25

159

153

140

128

107

90

69

45

29

19

12

0.5

319

305

279

256

214

180

138

89

58

38

24

1.0

637

610

558

511

429

360

277

179

116

75

49

1.5

956

915

838

767

643

539

415

268

174

113

73

2.0

1275

1220

1117

1023

858

719

553

357

232

150

98

2.5

1594

1525

1396

1278

1072

899

691

447

289

188

122

3.0

1912

1830

1675

1534

1286

1079

830

536

347

226

147

1Waterworks may use this equation to determine log credit between the indicated values:

Log credit = (0.001506×(1.09116)Temp)× CT

(ii) Waterworks receive the Cryptosporidium treatment credit listed in the following table by meeting the corresponding ozone CT values for the applicable water temperature, as described in subdivision B 3 d (7) (a) of this section.

CT Values (mg-min/L) for Cryptosporidium Inactivation by Ozone1

Log credit

Water Temperature, °C

Less than or equal to 0.5

1

2

3

5

7

10

15

20

25

30

0.25

6.0

5.8

5.2

4.8

4.0

3.3

2.5

1.6

1.0

0.6

0.39

0.5

12

12

10

9.5

7.9

6.5

4.9

3.1

2.0

1.2

0.78

1.0

24

23

21

19

16

13

9.9

6.2

3.9

2.5

1.6

1.5

36

35

31

29

24

20

15

9.3

5.9

3.7

2.4

2.0

48

46

42

38

32

26

20

12

7.8

4.9

3.1

2.5

60

58

52

48

40

33

25

16

9.8

6.2

3.9

3.0

72

69

63

57

47

39

30

19

12

7.4

4.7

1Waterworks may use this equation to determine log credit between the indicated values:

Log credit = (0.0397×(1.09757)Temp)× CT

(c) Ultraviolet light. Waterworks receive Cryptosporidium, Giardia lamblia, and virus treatment credits for ultraviolet (UV) light reactors by achieving the corresponding UV dose values shown in subdivision B 3 d (7) (c) (i) of this section. Waterworks shall validate and monitor UV reactors as described in subdivision B 3 d (7) (c) (ii) and (iii) of this section to demonstrate that they are achieving a particular UV dose value for treatment credit.

(i) UV dose table. The treatment credits listed in this table are for UV light at a wavelength of 254 nm as produced by a low pressure mercury vapor lamp. To receive treatment credit for other lamp types, waterworks shall demonstrate an equivalent germicidal dose through reactor validation testing, as described in subdivision B 3 d (7) (c) (ii) of this section. The UV dose values in this table are applicable only to post-filter applications of UV in filtered systems.

UV dose table for Cryptosporidium, Giardia lamblia, and virus inactivation credit

Log credit

Cryptosporidium UV dose (mJ/cm2)

Giardia lamblia UV dose (mJ/cm2)

Virus UV dose (mJ/cm2)

0.5

1.6

1.5

39

1.0

2.5

2.1

58

1.5

3.9

3.0

79

2.0

5.8

5.2

100

2.5

8.5

7.7

121

3.0

12

11

143

3.5

15

15

163

4.0

22

22

186


(ii) Reactor validation testing. Waterworks shall use UV reactors that have undergone validation testing to determine the operating conditions under which the reactor delivers the UV dose required in subdivision B 3 d (7) (c) (i) of this section (i.e., validated operating conditions). These operating conditions shall include flow rate, UV intensity as measured by a UV sensor, and UV lamp status.

((a)) When determining validated operating conditions, owners shall account for the following factors: UV absorbance of the water; lamp fouling and aging; measurement uncertainty of online sensors; UV dose distributions arising from the velocity profiles through the reactor; failure of UV lamps or other critical waterworks components; and inlet and outlet piping or channel configurations of the UV reactor.

((b)) Validation testing shall include the following: full scale testing of a reactor that conforms uniformly to the UV reactors used by the waterworks and inactivation of a test microorganism whose dose response characteristics have been quantified with a low pressure mercury vapor lamp.

(iii) Reactor monitoring.

((a)) Owners shall monitor their UV reactors to determine if the reactors are operating within validated conditions, as determined under subdivision B 3 d (7) (c) (ii) of this section. This monitoring shall include UV intensity as measured by a UV sensor, flow rate, lamp status, and other parameters the commissioner designates based on UV reactor operation. Owners shall verify the calibration of UV sensors and shall recalibrate sensors in accordance with a protocol the commissioner approves.

((b)) To receive treatment credit for UV light, waterworks shall treat at least 95% of the water delivered to the public during each month by UV reactors operating within validated conditions for the required UV dose, as described in subdivision B 3 d (7) (c) (i) and (ii) of this section. Owners shall demonstrate compliance with this condition by the monitoring required under subdivision B 3 d (7) (c) (iii)((a)) of this section.

e. Owners shall comply with the applicable recordkeeping and reporting requirements described in 12VAC5-590-530 and 12VAC5-590-550.

C. Reserved.

D. Reserved.

E. Reserved.

F. Reserved.

G. Beginning January 1, 1993, each owner shall certify annually in writing to the commissioner (using third party or manufacturer's certification) that, when polymers containing acrylamide or epichlorohydrin are used by the waterworks in drinking water systems, the combination (or product) of dose and monomer level does not exceed the following specified levels: Acrylamide = 0.05% dosed at 1 ppm (or equivalent) of polymer. Epichlorohydrin = 0.01% dosed at 20 ppm (or equivalent) of polymer. Certifications may rely on manufacturers or third parties, as approved by the commissioner.

H. Treatment technique for control of disinfection byproduct (DBPP) precursors.

1. Applicability.

a. Waterworks that use surface water or groundwater under the direct influence of surface water using conventional filtration treatment shall operate with enhanced coagulation or enhanced softening to achieve the TOC percent removal levels specified in subdivision H 2 of this section unless the waterworks meets at least one of the alternative compliance criteria listed in subdivision H 1 b or c of this section.

b. Alternative compliance criteria for enhanced coagulation and enhanced softening waterworks. Owners of waterworks that use surface water or groundwater under the direct influence of surface water provided with conventional filtration treatment may use the alternative compliance criteria in subdivisions H 1 b (1) through (6) of this section to comply with this section in lieu of complying with subdivision H 2 of this section. Owners shall still comply with monitoring requirements in 12VAC5-590-370 B 3 i.

(1) The waterworks' source water TOC level, measured according to 12VAC5-590-440, is less than 2.0 mg/L, calculated quarterly as a running annual average.

(2) The waterworks' treated water TOC level, measured according to 12VAC5-590-440, is less than 2.0 mg/L, calculated quarterly as a running annual average.

(3) The waterworks' source water TOC level, measured according to 12VAC5-590-440, is less than 4.0 mg/L, calculated quarterly as a running annual average; the source water alkalinity, measured according to 12VAC5-590-440, is greater than 60 mg/L (as CaCO3), calculated quarterly as a running annual average; and either the TTHM and HAA5 running annual averages are no greater than 0.040 mg/L and 0.030 mg/L, respectively; or prior to the effective date for compliance in 12VAC590-370 B 3 a, the owner has made a clear and irrevocable financial commitment not later than the effective date for compliance in 12VAC590-370 B 3 a to use of technologies that will limit the levels of TTHMs and HAA5 to no more than 0.040 mg/L and 0.030 mg/L, respectively. Owners shall submit evidence of a clear and irrevocable financial commitment, in addition to a schedule containing milestones and periodic progress reports for installation and operation of appropriate technologies, to the commissioner for approval not later than the effective date for compliance in 12VAC590-370 B 3 a. These technologies shall be installed and operating not later than June 30, 2005. Failure to install and operate these technologies by the date in the approved schedule will constitute a violation of these regulations.

(4) The TTHM and HAA5 running annual averages are no greater than 0.040 mg/L and 0.030 mg/L, respectively, and the waterworks uses only chlorine for primary disinfection and maintenance of a residual in the distribution system.

(5) The waterworks' source water SUVA, prior to any treatment and measured monthly according to 12VAC5-590-440, is less than or equal to 2.0 L/mg-m, calculated quarterly as a running annual average.

(6) The waterworks' finished water SUVA, measured monthly according to 12VAC5-590-440, is less than or equal to 2.0 L/mg-m, calculated quarterly as a running annual average.

c. Additional alternative compliance criteria for softening waterworks. Waterworks practicing enhanced softening that cannot achieve the TOC removals required by subdivision H 2 b of this section may use the alternative compliance criteria in subdivisions H 1 c (1) and (2) of this section in lieu of complying with subdivision H 2 of this section. Owners shall still comply with monitoring requirements in 12VAC5-590-370 B 3 i.

(1) Softening that results in lowering the treated water alkalinity to less than 60 mg/L (as CaCO3), measured monthly according to 12VAC5-590-440 and calculated quarterly as a running annual average.

(2) Softening that results in removing at least 10 mg/L of magnesium hardness (as CaCO3), measured monthly according to 12VAC5-590-440 and calculated quarterly as a running annual average.

2. Enhanced coagulation and enhanced softening performance requirements.

a. Waterworks shall achieve the percent reduction of TOC specified in subdivision H 2 b of this section between the source water and the combined filter effluent, unless the commissioner approves a waterworks' request for alternate minimum TOC removal (Step 2) requirements under subdivision H 2 c of this section.

b. Required Step 1 TOC reductions, indicated in the following table, are based upon specified source water parameters measured in accordance with 12VAC5-590-440. Waterworks practicing softening are required to meet the Step 1 TOC reductions in the far-right column (Source water alkalinity greater than 120 mg/L) for the specified source water TOC:

Step 1 Required Removal of TOC by Enhanced Coagulation and Enhanced Softening for Community or Nontransient Noncommunity Waterworks That Use Surface Water or Groundwater Under the Direct Influence of Surface Water Using Conventional Treatment 1, 2

Source-water TOC mg/L

Source-water alkalinity, mg/L as CaCO3

0-60

greater than 60-120

greater than 1203

greater than 2.0 - 4.0

35.0%

25.0%

15.0%

greater than 4.0 - 8.0

45.0%

35.0%

25.0%

greater than 8.0

50.0%

40.0%

30.0%

1Waterworks meeting at least one of the conditions in subdivisions H 1 b (1) through (6) of this section are not required to operate with enhanced coagulation.

2Softening waterworks meeting one of the alternative compliance criteria in subdivision H 1 c of this section are not required to operate with enhanced softening.

3Waterworks practicing softening shall meet the TOC removal requirements in this column.

c. Waterworks that use surface water or groundwater under the direct influence of surface water with conventional treatment systems that cannot achieve the Step 1 TOC removals required by subdivision H 2 b of this section due to water quality parameters or operational constraints shall apply to the commissioner, within three months of failure to achieve the TOC removals required by subdivision H 2 b of this section, for approval of alternative minimum TOC (Step 2) removal requirements submitted by the waterworks. If the commissioner approves the alternative minimum TOC removal (Step 2) requirements, the commissioner may make those requirements retroactive for the purposes of determining compliance. Until the commissioner approves the alternate minimum TOC removal (Step 2) requirements, the owner shall meet the Step 1 TOC removals contained in subdivision H 2 b of this section.

d. Alternate minimum TOC removal (Step 2) requirements. Applications, made to the commissioner by waterworks using enhanced coagulation, for approval of alternative minimum TOC removal (Step 2) requirements under subdivision H 2 c of this section shall include, at a minimum, results of bench- or pilot-scale testing conducted under subdivision H 2 d (1) of this section. The submitted bench- or pilot-scale testing shall be used to determine the alternate enhanced coagulation level.

(1) Alternate enhanced coagulation level is defined as coagulation at a coagulant dose and pH as determined by the method described in subdivisions H 2 d (1) through (5) of this section such that an incremental addition of 10 mg/L of alum (or equivalent amount of ferric salt) results in a TOC removal of equal to or less than 0.3 mg/L. The percent removal of TOC at this point on the "TOC removal versus coagulant dose" curve is then defined as the minimum TOC removal required for the waterworks. Once approved by the commissioner, this minimum requirement supersedes the minimum TOC removal required by the table in subdivision H 2 b of this section. This requirement will be effective until such time as the commissioner approves a new value based on the results of a new bench- and pilot-scale test. Failure to achieve the alternative minimum TOC removal levels set by the commissioner is a violation of these regulations.

(2) Bench- or pilot-scale testing of enhanced coagulation shall be conducted by using representative water samples and adding 10 mg/L increments of alum (or equivalent amounts of ferric salt) until the pH is reduced to a level less than or equal to the enhanced coagulation Step 2 target pH shown in the following table:

Enhanced Coagulation Step 2 Target pH

Alkalinity (mg/L as CaCO3)

Target pH

0-60

5.5

greater than 60-120

6.3

greater than 120-240

7.0

greater than 240

7.5

(3) For waters with alkalinities of less than 60 mg/L for which addition of small amounts of alum or equivalent addition of iron coagulant drives the pH below 5.5 before significant TOC removal occurs, the owner shall add necessary chemicals to maintain the pH between 5.3 and 5.7 in samples until the TOC removal of 0.3 mg/L per 10 mg/L alum added (or equivalent addition of iron coagulant) is reached.

(4) The owner may operate at any coagulant dose or pH necessary (consistent with other sections of these regulations) to achieve the minimum TOC percent removal approved under subdivision H 2 c of this section.

(5) If the TOC removal is consistently less than 0.3 mg/L of TOC per 10 mg/L of incremental alum dose at all dosages of alum (or equivalent addition of iron coagulant), the water is deemed to contain TOC not amenable to enhanced coagulation. The waterworks may then apply to the commissioner for a waiver of enhanced coagulation requirements.

3. Compliance calculations.

a. Owners of waterworks that use surface water or groundwater under the direct influence of surface water other than those identified in subdivision H 1 b or H 1 c of this section shall comply with requirements contained in subdivision H 2 b or H 2 c of this section. Owners shall calculate compliance quarterly, beginning after the waterworks has collected 12 months of data, by determining an annual average using the following method:

(1) Determine actual monthly TOC percent removal, equal to:

     (1-(treated water TOC/source water TOC))X100

(2) Determine the required monthly TOC percent removal (from either the table in subdivision H 2 b of this section or from subdivision H 2 c of this section).

(3) Divide the value in subdivision H 3 a (1) of this section by the value in subdivision H 3 a (2) of this section.

(4) Add together the results of subdivision H 3 a (3) of this section for the last 12 months and divide by 12.

(5) If the value calculated in subdivision H 3 a (4) of this section is less than 1.00, the waterworks is not in compliance with the TOC percent removal requirements.

b. Owners may use the provisions in subdivisions H 3 b (1) through (5) of this section in lieu of the calculations in subdivisions H 3 a (1) through (5) of this section to determine compliance with TOC percent removal requirements.

(1) In any month that the waterworks' treated or source water TOC level, measured according to 12VAC5-590-440, is less than 2.0 mg/L, the owner may assign a monthly value of 1.0 (in lieu of the value calculated in subdivision H 3 a (3) of this section) when calculating compliance under the provisions of subdivision H 3 a of this section.

(2) In any month that a waterworks practicing softening removes at least 10 mg/L of magnesium hardness (as CaCO3), the waterworks may assign a monthly value of 1.0 (in lieu of the value calculated in subdivision H 3 a (3) of this section) when calculating compliance under the provisions of subdivision H 3 a of this section.

(3) In any month that the waterworks' source water SUVA, prior to any treatment and measured according to 12VAC5-590-440, is equal to or less than 2.0 L/mg-m, the owner may assign a monthly value of 1.0 (in lieu of the value calculated in subdivision H 3 a (3) of this section) when calculating compliance under the provisions of subdivision H 3 a of this section.

(4) In any month that the waterworks' finished water SUVA, measured according to 12VAC5-590-440, is equal to or less than 2.0 L/mg-m, the owner may assign a monthly value of 1.0 (in lieu of the value calculated in subdivision H 3 a (3) of this section) when calculating compliance under the provisions of subdivision H 3 a of this section.

(5) In any month that a waterworks practicing enhanced softening lowers alkalinity below 60 mg/L (as CaCO3), the owner may assign a monthly value of 1.0 (in lieu of the value calculated in subdivision H 3 a (3) of this section) when calculating compliance under the provisions of subdivision H 3 a of this section.

c. Waterworks that use surface water or groundwater under the direct influence of surface water and using conventional treatment may also comply with the requirements of this section by meeting the criteria in subdivision H 1 b or c of this section.

4. Enhanced coagulation or enhanced softening is the treatment technique required to control the level of DBP precursors in drinking water treatment and distribution systems for waterworks using surface water or groundwater under the direct influence of surface water and using conventional treatment.

I. The best technology, treatment techniques, or other means available for achieving compliance with the maximum contaminant levels for disinfection byproducts show in Table 2.13 are listed below:

1. The best technology, treatment techniques, or other means available for achieving compliance with the maximum contaminant levels for bromate and chlorite:

Disinfection byproduct

Best available technology

Bromate

Control of ozone treatment process to reduce production of bromate.

Chlorite

Control of treatment processes to reduce disinfectant demand and control of disinfection treatment processes to reduce disinfectant levels

2. The best technology, treatment techniques, or other means available for achieving compliance with the running annual average maximum contaminant levels for TTHM and HAA5:

Disinfection byproduct

Best available technology

Total trihalomethanes (TTHM) and Haloacetic acids (five) (HAA5)

Enhanced coagulation or enhanced softening or GAC10, with chlorine as the primary and residual disinfectant

3. The best technology, treatment techniques, or other means available for achieving compliance with the locational running annual average maximum contaminant levels for TTHM and HAA5 for all systems that disinfect their source water:

Disinfection byproduct

Best available technology

Total trihalomethanes (TTHM) and Haloacetic acids (five) (HAA5)

Enhanced coagulation or enhanced softening, plus GAC10; or nanofiltration with a molecular weight cutoff less than or equal to 1000 Daltons; or GAC20

4. The best technology, treatment techniques, or other means available for achieving compliance with the locational running annual average maximum contaminant levels for TTHM and HAA5 for consecutive systems waterworks and applies only to the disinfected water that consecutive systems waterworks buy or otherwise receive:

Disinfection byproduct

Best available technology

Total trihalomethanes (TTHM) and Haloacetic acids (five) (HAA5)

Systems Waterworks serving equal to or greater than 10,000: Improved distribution system and storage tank management to reduce residence time, plus the use of chloramines for disinfectant residual maintenance

Systems Waterworks serving less than 10,000: Improved distribution system and storage tank management to reduce residence time

J. The best technology, treatment techniques, or other means available for achieving compliance with the maximum residual disinfectant levels identified in Table 2.12 is the control of treatment processes to reduce disinfectant demand and control of disinfection treatment processes to reduce disinfectant levels.

K. If spent filter backwash water, thickener supernatant, or liquids from dewatering processes are recycled, in any waterworks supplied by a surface water source and waterworks supplied by a groundwater source under the direct influence of surface water that employ conventional filtration or direct filtration treatment, then they are subject to the recycle treatment technique requirement. Under this requirement recycle flows shall be returned through all the processes of the treatment system, or an alternative location approved by the state, by June 8, 2004.

L. Waterworks with uncovered finished water storage facilities shall comply with the requirements to cover the facility or treat the discharge from the facility as described in this paragraph.

1. Waterworks using uncovered finished water storage facilities shall comply with the conditions of this section.

2. Owners shall notify the commissioner of the use of each uncovered finished water storage facility no later than April 1, 2008.

3. Owners shall meet the conditions of subdivision L 3 a or b of this section for each uncovered finished water storage facility or be in compliance with a State-approved schedule to meet these conditions no later than April 1, 2009.

a. All uncovered finished water storage facilities shall be covered.

b. Waterworks shall treat the discharge from the uncovered finished water storage facility to the distribution system to achieve inactivation and/or removal of at least 4-log virus, 3-log Giardia lamblia, and 2-log Cryptosporidium using a protocol approved by the commissioner.

4. Failure to comply with the requirements of this section is a violation of the treatment technique requirement.

12VAC5-590-421. Groundwater system treatment techniques.

A. Owners of groundwater systems that (i) have confirmed E. coli contamination as described in 12VAC5-590-379 B or (ii) have been notified in writing of a significant deficiency as described in 12VAC5-590-350 D shall meet the requirements of this section. Failure to meet any requirement of this section after the applicable time period specified is a treatment technique violation.

1. Owners of groundwater systems meeting either one of the conditions in clause (i) or (ii) above shall implement one or more of the following corrective actions:

a. Correct all significant deficiencies;

b. Provide an alternate source of water;

c. Eliminate the source of contamination; or

d. Provide treatment of the groundwater source that reliably achieves at least 4-log treatment of viruses before or at the first consumer.

2. Unless the ODW directs the groundwater system owner to implement a specific corrective action, the groundwater system owner shall consult with the ODW regarding the appropriate corrective action within 30 days of receiving written notification from the commissioner or the laboratory. This consultation may take the form of a telephone conversation, electronic mail, meeting, or other mechanism agreed to by the ODW.

3. Within 45 days of receiving this notification, the groundwater system owner shall submit a written Corrective Action Plan (CAP) to the commissioner that satisfactorily addresses the deficiency. The CAP shall include a schedule for completing individual actions, and shall include one or more of the corrective actions in subdivision A 1 of this section. Approval of the CAP by the commissioner constitutes an approved CAP.

4. Within 120 days of receiving written notification from the commissioner or the laboratory, the groundwater system owner shall either:

a. Have a completed corrective action in accordance with the commissioner-approved CAP including commissioner-specified interim measures; or

b. Be in compliance with a commissioner-approved CAP and schedule subject to the conditions specified in subdivisions 4 b 1 and 2 of this subsection.

(1) Any subsequent modifications to a commissioner-approved CAP and schedule shall also be approved by the commissioner.

(2) If the commissioner specifies interim measures for protection of the public health pending the commissioner's approval of the CAP and schedule or pending completion of the CAP, the groundwater system owner shall comply with these interim measures as well as with any schedule specified by the commissioner.

5. When a significant deficiency is identified at a waterworks that uses both groundwater and surface water or a GUDI source, the owner shall comply with this section unless the commissioner has determined that the significant deficiency is in a portion of the distribution system that is served solely by surface water or a GUDI.

B. Owners of groundwater systems that provide at least 4-log treatment of viruses before or at the first customer shall conduct compliance monitoring to demonstrate treatment effectiveness.

1. Existing groundwater sources. A groundwater system that is not required to meet the source water monitoring requirements of 12VAC5-590-379 for any groundwater source(s) because the owner has been notified by the ODW that the groundwater system provides at least 4-log treatment of viruses before or at the first customer for any groundwater source(s) shall comply with the following:

a. The groundwater system owner shall have written approval from the ODW that the groundwater system provides at least 4-log treatment of viruses before or at the first customer served by the groundwater source.

b. The groundwater system owner shall conduct compliance monitoring as required by subsection C of this section within 30 days of placing the source in service.

2. New groundwater sources. A groundwater system owner that places a new groundwater source into service shall meet the requirements of subdivisions 1 a and b of this subsection and conduct raw water monitoring in accordance with 12VAC5-590-425. The groundwater system owner shall provide engineering, operational, or other information as required by the ODW.

C. The owner of a groundwater system subject to the requirements of subsection B of this section shall monitor the effectiveness and reliability of treatment for that groundwater source before or at the first customer as follows:

1. Chemical disinfection.

a. The owner of a groundwater system that serves greater than 3,300 people shall continuously monitor and record the residual disinfectant concentration using analytical methods specified in 40 CFR 141.74 (a)(2) at a location approved by the ODW and shall record the lowest residual disinfectant concentration each day that water from the groundwater source is served to the public. The groundwater system owner shall maintain the ODW-determined residual disinfectant concentration every day the groundwater system serves water from the groundwater source to the public. If there is a failure in the continuous monitoring equipment, the groundwater system owner shall conduct grab sampling every four hours until the continuous monitoring equipment is returned to service. The system shall resume continuous residual disinfectant monitoring within 14 days.

b. The owner of a groundwater system that serves 3,300 or fewer people shall monitor the residual disinfectant concentration using analytical methods specified in 40 CFR 141.74 (a)(2) at a location approved by the ODW and record the residual disinfection concentration each day that water from the groundwater source is served to the public. The groundwater system owner shall maintain the ODW-determined residual disinfectant concentration every day the groundwater system serves water from the groundwater source to the public. The groundwater system owner shall take a daily grab sample during the hour of peak flow or at another time specified by the ODW. If any daily grab sample measurement falls below the ODW-determined residual disinfectant concentration, the groundwater system owner shall take follow-up samples every four hours until the residual disinfectant concentration is restored to the ODW-determined level. A groundwater system that serves 3,300 or fewer people may monitor continuously to meet the requirements of this subsection.

c. Failure to maintain the ODW-specified minimum residual disinfectant concentration for a period of more than four hours is a violation of the treatment technique requirement.

2. A groundwater system owner that uses an ODW-approved alternative treatment to meet the requirements of this section by providing at least 4-log treatment of viruses before or at the first customer shall:

a. Monitor the alternative treatment in accordance with all ODW-specified monitoring requirements; and

b. Operate the alternative treatment in accordance with all ODW-specified compliance requirements necessary to achieve at least 4-log treatment of viruses.

3. Failure to meet the monitoring requirements of subsection C of this section is a violation and requires the groundwater system owner to provide public notification as required in 12VAC5-590-540.

D. Discontinuing compliance monitoring or treatment.

1. A groundwater system owner may discontinue compliance monitoring if the ODW determines and documents in writing that compliance monitoring is no longer necessary for that groundwater source. Owners of groundwater systems that have ODW approval to discontinue compliance monitoring shall be subject to the triggered source water monitoring requirements of 12VAC5-590-379.

2. A groundwater system owner discontinuing compliance monitoring is still subject to the requirements of 12VAC5-590-380 H.

3. Owners of waterworks with groundwater sources that have been required by the commissioner to provide at least 4-log treatment of viruses shall not discontinue treatment or monitoring.

12VAC5-590-425. Raw water monitoring requirements for groundwater sources.

A. The owner of any groundwater source utilizing chlorine disinfection or any other treatment or chemical addition that may alter or affect the bacteriological quality of the raw water shall collect source samples for bacteriological analysis in accordance with this section.

B. All bacteriological samples under this section shall be collected from the raw water prior to any treatment or chemical addition.

1. The owner shall provide a suitable raw water sample tap at each groundwater source.

2. If conditions are such that it is not possible to install a raw water sample tap, an alternate sample location acceptable to the commissioner may be utilized for this monitoring.

C. All samples shall be analyzed in accordance with 12VAC5-590-440 by the DCLS or by a laboratory certified by DCLS for drinking water samples and by a test method that will yield a Most Probable Number (MPN) result for both total coliforms and E. coli.

D. Number of samples.

1. The number of routine raw water samples to be collected and the frequency of sampling shall be determined by the district engineer. The district engineer will notify the waterworks owner of the raw water sampling requirements.

2. As a minimum, the owner shall collect raw water samples in accordance with the following table:

Source Type

Minimum Routine Raw Water Monitoring Frequency

Parameters

Well located in non-karst geology

One sample per year

Total coliforms MPN and

E coli MPN

Well located in karst geology

One sample per calendar quarter

Total coliforms MPN and

E coli MPN

Spring

One sample per month

Total coliforms MPN and

E coli MPN

3. When a single sample result from any groundwater source that requires a routine raw water monitoring frequency of less than monthly indicates total coliforms in excess of 50 colonies per 100 mL or the presence of E. coli, the owner shall collect one confirmation sample within 10 calendar days of notification of the results. The district engineer may require that additional samples be collected and will establish the specific number of samples and the monitoring frequency.

E. If the results of the raw water monitoring required by this section indicate total coliforms in excess of 50 colonies per 100 ml in two or more samples collected during any running six-month period or the presence of E. coli in two or more samples collected during any running six-month period, the waterworks owner shall provide all necessary information required in 12VAC5-590-430 to the district engineer and the commissioner will make a GUDI determination for the groundwater source.

F. If the results of the raw water monitoring required by this section indicate the presence of E. coli in two or more samples collected during any running six-month period, the waterworks owner shall:

1. Issue a Tier 1 public notice in accordance with 12VAC5-590-540 A 1.

2. Provide disinfection treatment to achieve a 4-log virus inactivation as specified in 12VAC5-590-421 A 1 d.

3. Conduct compliance monitoring as specified in 12VAC5-590-421 C 1.

12VAC5-590-440. Analytical methods.

Analytical methods to determine compliance with the requirements of this chapter shall be those specified in the applicable 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; "Methods for Chemical Analysis of Water and Wastes," Environmental Protection Agency, Office of Technology Transfer, Washington, D.C. 20460, 1974; and "Methods for the Determination of Organic Compounds in Finished Drinking Water and Raw Source Water" (Sept 1986), EPA, Environmental Monitoring and Support Laboratory, Cincinnati, OH 45268 or in the case of primary maximum contaminant levels and lead and copper action levels, those methods shall be followed by the Division of Consolidated Laboratory Services and All drinking water analyses for compliance purposes shall have been performed by analytical methods that are consistent with current U.S. Environmental Protection Agency regulations found at 40 CFR Part 141 and 40 CFR Part 143. All laboratories Laboratories seeking certification to perform drinking water analyses shall comply with all appropriate applicable regulations promulgated by the Department of General Services, Division of Consolidated Laboratory Services.

Testing for alkalinity, calcium, conductivity, disinfectant residual, orthophosphate, pH, silica, temperature, and turbidity for compliance purposes may be performed by any person or party acceptable to the commissioner.

 

Table 2.2 ― Inorganic Chemicals.

 

Substance

Primary Maximum Contaminant Level (mg/L)

 

Antimony

0.006

 

Arsenic (As)

0.010***

 

Asbestos

7 Million Fibers/Liter (longer than 10 um)

 

Barium (Ba)

2

 

Beryllium

0.004

 

Cadmium (Cd)

0.005

 

Chromium (Cr)

0.1

 

Cyanide (as free Cyanide)

0.2

 

Fluoride (F)

4.0 #

 

Mercury (Hg)

0.002

 

Nickel

0.1 No Limits Designated

 

Nitrate (as N)

10**

 

Nitrite (as N)

1

 

Total Nitrate and Nitrite (as N)

10

 

Selenium (Se)

0.05

 

Thallium

0.002

 

Substance

Secondary Maximum Contaminant Level (mg/L)

 

Chloride (Cl)

250.0

 

Copper (Cu)

1.0

 

Corrosivity

Noncorrosive, See Appendix B

 

Fluoride

2.0

 

Foaming Agents

0.5*

 

Iron (Fe)