Title of Regulation: 12VAC5-590. Waterworks Regulations (amending 12VAC5-590-545).

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

Effective Date: March 1, 2012.

Agency Contact: Robert A. K. Payne, Compliance Manager, Department of Health, 109 Governor St., Richmond, VA 23219, telephone (804) 864-7498, or email rob.payne@vdh.virginia.gov.

Summary:

The amendments include provisions for a waiver for community waterworks serving less than 10,000 persons from the requirement to mail the consumer confidence report (CCR) annually to each customer. Instead, eligible waterworks are allowed to publish annual CCRs in a local newspaper or newspapers if certain conditions are met. The mailing waiver provision is allowable under the National Primary Drinking Water Regulations (40 CFR 141.155(g)). This action is mandated by Chapter 843 of the 2011 Acts of Assembly.

12VAC5-590-545. Consumer confidence reports.

A. Purpose and applicability.

1. Each community waterworks owner shall deliver to his customers an annual report that contains information on the quality of the water delivered by the waterworks and characterizes the risks, if any, from exposure to contaminants detected in the drinking water.

2. For the purpose of this section, customers are defined as billing units or service connections to which water is delivered by a community waterworks.

3. For the purpose of this section, a contaminant is detected when the laboratory reports the contaminant level as a measured level and not as nondetected (ND) or less than (<) a certain level. The owner shall utilize a laboratory that complies with 12VAC5-590-340, and the laboratory's analytical and reporting procedures shall have been in accordance with 12VAC5-590-440; laboratory certification requirements of the Commonwealth of Virginia, Department of General Services, Division of Consolidated Laboratory Services; and consistent with current U. S. Environmental Protection Agency regulations found at 40 CFR Part 141.

B. Effective dates.

1. Each existing community waterworks owner shall deliver his report by July 1 annually.

2. The owner of a new community waterworks shall deliver his first report by July 1 of the year after its first full calendar year in operation and annually thereafter.

3. The owner of a community waterworks that sells water to a consecutive waterworks shall deliver the applicable information necessary to comply with the requirements contained in this section to the consecutive waterworks by April 1 annually, or on a date mutually agreed upon by the seller and the purchaser and specifically included in a contract between the parties.

C. Content.

1. Each community waterworks owner shall provide his customers an annual report that contains the information on the source of the water delivered as follows:

a. Each report shall identify the source or sources of the water delivered by the community waterworks by providing information on:

(1) The type of the water (e.g., surface water, ground water); and

(2) The commonly used name, if any, and location of the body or bodies of water.

b. Where a source water assessment has been completed, the report shall:

(1) Notify consumers of the availability of the assessment;

(2) Describe the means to obtain the assessment; and

(3) Include a brief summary of the waterworks' susceptibility to potential sources of contamination.

c. The owner should highlight in the report significant sources of contamination in the source water area if such information is readily available.

2. For the purpose of compliance with this section, each report shall include the following definitions:

a. "Maximum contaminant level goal" or "MCLG" means the level of a contaminant in drinking water below which there is no known or expected risk to health. MCLGs allow for a margin of safety.

b. "Maximum contaminant level" or "MCL" means the highest level of a contaminant that is allowed in drinking water. MCLs are set as close to the MCLGs as feasible using the best available treatment technology.

c. A report for a community waterworks operating under a variance or an exemption issued by the commissioner under 12VAC5-590-140 and 12VAC5-590-150 shall include the following definition: "Variances and exemptions" means state or EPA permission not to meet an MCL or a treatment technique under certain conditions.

d. A report that contains data on contaminants that EPA regulates using any of the following terms shall include the applicable definitions:

(1) "Treatment technique" means a required process intended to reduce the level of a contaminant in drinking water.

(2) "Action level" means the concentration of a contaminant that, if exceeded, triggers treatment or other requirements that an owner shall follow.

(3) "Maximum residual disinfectant level goal" or "MRDLG" means the level of a drinking water disinfectant below which there is no known or expected risk to health. MRDLGs do not reflect the benefits of the use of disinfectants to control microbial contaminants.

(4) "Maximum residual disinfectant level" or "MRDL" means the highest level of a disinfectant allowed in drinking water. There is convincing evidence that addition of a disinfectant is necessary for control of microbial contaminants.

3. Information on detected contaminants.

a. This section specifies the requirements for information to be included in each report for the following contaminants:

(1) Contaminants subject to a PMCL, action level, maximum residual disinfectant level, or treatment technique as specified in 12VAC5-590-370;

(2) Unregulated contaminants subject to monitoring as specified in 12VAC5-590-370; and

(3) Disinfection byproducts or microbial contaminants, except Cryptosporidium, for which monitoring is required by Information Collection Rule (40 CFR 141.142 and 141.143 (7-1-97 Edition)), except as provided under subdivision 5 a of this subsection, and which are detected in the finished water.

b. The data relating to these contaminants shall be displayed in one table or in several adjacent tables. Any additional monitoring results that a community waterworks owner chooses to include in the report shall be displayed separately.

c. The data shall be derived from data collected to comply with EPA and state monitoring and analytical requirements during the calendar year preceding the year the report is due, except that:

(1) Where an owner is allowed to monitor for contaminants specified in subdivision 3 a (1) and (3) of this subsection less often than once a year, the table or tables shall include the date and results of the most recent sampling, and the report shall include a brief statement indicating that the data presented in the report are from the most recent testing done in accordance with the regulations. No data older than five years need be included.

(2) Results of monitoring in compliance with the Information Collection Rule (40 CFR 141.142 and 141.143 (7-1-97 Edition)) need only be included for five years from the date of last sample or until any of the detected contaminants becomes regulated and subject to routine monitoring requirements, whichever comes first.

d. For detected contaminants subject to a PMCL, action level, or treatment technique as specified in 12VAC5-590-370 and listed in Tables 2.1, 2.2 (Primary Maximum Contaminant Levels only), 2.3, 2.4 (Primary Maximum Contaminant Levels only), and 2.5, the table or tables shall contain:

(1) The PMCL for that contaminant expressed as a number equal to or greater than 1.0 as provided in Appendix O, with an exception for beta/photon emitters. When the detected level of beta/photon emitters has been reported in the units of pCi/L and does not exceed 50 pCi/L, the report may list the PMCL as 50 pCi/L. In this case, the owner shall include in the report the following footnote: The PMCL for beta particles is 4 mrem/year. EPA considers 50 pCi/L to be the level of concern for beta particles;

(2) The MCLG for that contaminant expressed in the same units as the PMCL as provided in Appendix O;

(3) If there is no PMCL for a detected contaminant, the table shall indicate that there is a treatment technique, or specify the action level, applicable to that contaminant, and the report shall include the definitions for treatment technique and/or action level, as appropriate, specified in subdivision 3 d of this subsection;

(4) For contaminants subject to a PMCL, except turbidity and total coliforms, the highest contaminant level used to determine compliance and the range of detected levels is as follows:

(a) When compliance with the PMCL is determined annually or less frequently, the highest detected level at any sampling point and the range of detected levels expressed in the same units as the PMCL.

(b) When compliance with the PMCL is determined by calculating a running annual average of all samples taken at a sampling point, the highest average of any of the sampling points and the range of all sampling points expressed in the same units as the PMCL. For the PMCLs for TTHM and HAA5, the owner shall include the highest locational running annual average and the range of individual sample results for all sampling points expressed in the same units as the PMCL. If more than one location exceeds the TTHM or HAA5 PMCL, the owner shall include the locational running annual averages for all locations that exceed the PMCL.

(c) When compliance with the PMCL is determined on a systemwide basis by calculating a running annual average of all samples at all sampling points, the average and range of detection expressed in the same units as the PMCL. The range of detection for TTHM and HAA5 shall include individual sample results for the IDSE conducted under 12VAC5-590-370 B 3 e (2) for the calendar year that the IDSE samples were taken.

(5) For turbidity, the highest single measurement and the lowest monthly percentage of samples meeting the turbidity limits specified in 12VAC5-590-420 for the filtration technology being used. The report should include an explanation of the reasons for measuring turbidity;

(6) For lead and copper, the 90th percentile value of the most recent round of sampling and the number of sampling sites exceeding the action level;

(7) For total coliform:

(a) The highest monthly number of positive samples for waterworks collecting fewer than 40 samples per month;

(b) The highest monthly percentage of positive samples for waterworks collecting at least 40 samples per month;

(8) For fecal coliform, the total number of positive samples;

(9) The likely source or sources of detected contaminants. Specific information regarding contaminants may be available in sanitary surveys and source water assessments, and should be used when available to the owner. If the owner lacks specific information on the likely source, the report shall include one or more of the typical sources for that contaminant listed in Appendix O that are most applicable to the system.

e. If a community waterworks owner distributes water to his customers from multiple hydraulically independent distribution systems that are fed by different raw water sources:

(1) The table shall contain a separate column for each service area and the report shall identify each separate distribution system; or

(2) The owner shall produce a separate report tailored to include data for each service area.

f. The table or tables shall clearly identify any data indicating violations of PMCLs, MRDLs, or treatment techniques and the report shall contain a clear and readily understandable explanation of the violation including:

(1) The length of the violation;

(2) The potential adverse health effects using the relevant language of Appendix O; and

(3) Actions taken by the waterworks owner to address the violation.

g. For detected unregulated contaminants subject to monitoring as specified in 12VAC5-590-370 and listed in Tables 2.6 and 2.7, for which monitoring is required, the table or tables shall contain the average and range at which the contaminant was detected. The report may include a brief explanation of the reasons for monitoring for unregulated contaminants.

4. Information on Cryptosporidium, radon, and other contaminants:

a. If the owner has performed any monitoring for Cryptosporidium, including monitoring performed to satisfy the requirements of the Informational Collection Rule (40 CFR 141.143 (7-1-97 Edition)), which indicates that Cryptosporidium may be present in the source water or the finished water, the report shall include:

(1) A summary of the results of the monitoring; and

(2) An explanation of the significance of the results.

b. If the owner has performed any monitoring for radon which indicates that radon may be present in the finished water, the report shall include:

(1) The results of the monitoring; and

(2) An explanation of the significance of the results.

c. If the owner has performed additional monitoring that indicates the presence of other contaminants in the finished water, the report should include any results that may indicate a health concern, as determined by the commissioner. Detections above a proposed MCL or health advisory level may indicate possible health concerns. For such contaminants, the report should include:

(1) The results of the monitoring; and

(2) An explanation of the significance of the results noting the existence of a health advisory or a proposed regulation.

5. Compliance with other regulations.

a. In addition to the requirements of subdivision 3 f of this subsection the report shall note any violation that occurred during the year covered by the report of a requirement listed below.

(1) Monitoring and reporting of compliance data;

(2) Filtration and disinfection prescribed by 12VAC5-590-420. For owners who have failed to install adequate filtration or disinfection equipment or processes, or have had a failure of such equipment or processes which constitutes a violation, the report shall include the following language as part of the explanation of potential adverse health effects: Inadequately treated water may contain disease-causing organisms. These organisms include bacteria, viruses, and parasites, which can cause symptoms such as nausea, cramps, diarrhea, and associated headaches;

(3) Lead and copper control requirements prescribed by 12VAC5-590-370. For owners who fail to take one or more of the prescribed actions, the report shall include the applicable language of Appendix O for lead, copper, or both;

(4) Treatment techniques for Acrylamide and Epichlorohydrin prescribed by 12VAC5-590-420 G. For owners who violate the requirements of that section, the report shall include the relevant language from Appendix O;

(5) Recordkeeping of compliance data;

(6) Special monitoring requirements for unregulated contaminants prescribed by 12VAC5-590-370 B 4 and for sodium;

(7) Violation of the terms of a variance, an exemption, or an administrative or judicial order.

b. The report shall contain:

(1) A clear and readily understandable explanation of the violation;

(2) Any potential adverse health effects; and

(3) The steps the owner has taken to correct the violation.

c. For community groundwater systems, the following shall be included:

(1) A significant deficiency that is uncorrected at the time of the report, or;

(2) An E. coli positive groundwater source sample that is not invalidated at the time of the report.

d. The owner of a community groundwater system shall report annually the information in subdivision 5 c of this subsection until the ODW determines that the significant deficiency or the E. coli positive source water sample has been satisfactorily addressed. The report shall include the following information:

(1) The nature of the significant deficiency or the source of the E. coli contamination and the date the significant deficiency was identified by the ODW or the date or dates of the E. coli positive source samples.

(2) If the E. coli contamination has been addressed in accordance with 12VAC5-590-421 and the date of such action.

(3) The ODW approved plan and schedule for correcting the significant deficiency or E. coli contamination including interim measures, progress to date, and which interim measures have been completed.

(4) In communities with a large portion of non-English speaking consumers, the notice shall contain information in the appropriate language or languages regarding the importance of the notice or contain a telephone number or address where the consumers may contact the owner to obtain a translated copy of the notice or assistance with the appropriate language.

(5) For E. coli contamination, the potential health effects language shall be included.

e. If directed by the ODW, the owner of a community groundwater system with significant deficiencies that have been corrected at the time of the report shall inform his consumers of the significant deficiencies, how the deficiencies were corrected, and the date or dates of correction under subdivisions 5 d (1) through (4) of this subsection.

6. Variances and exemptions. If a system is operating under the terms of a variance or an exemption issued by the commissioner under 12VAC5-590-140 and 12VAC5-590-150, the report shall contain:

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

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

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

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

7. Additional information.

a. The report shall contain a brief explanation regarding contaminants, which may reasonably be expected to be found in drinking water including bottled water. This explanation shall include the exact language of subdivisions 8 a (1), (2) and (3) of this subsection or the owner shall use his own comparable language following approval by the commissioner. The report also shall include the exact language of subdivision 8 a (4) of this subsection.

(1) The sources of drinking water (both tap water and bottled water) include rivers, lakes, streams, ponds, reservoirs, springs, and wells. As water travels over the surface of the land or through the ground, it dissolves naturally occurring minerals and, in some cases, radioactive material, and can pick up substances resulting from the presence of animals or from human activity.

(2) Contaminants that may be present in source water include: (i) microbial contaminants, such as viruses and bacteria, which may come from sewage treatment plants, septic systems, agricultural livestock operations, and wildlife; (ii) inorganic contaminants, such as salts and metals, which can be naturally occurring or result from urban stormwater runoff, industrial or domestic wastewater discharges, oil and gas production, mining, or farming; (iii) pesticides and herbicides, which may come from a variety of sources such as agriculture, urban stormwater runoff, and residential uses; (iv) organic chemical contaminants, including synthetic and volatile organic chemicals, which are byproducts of industrial processes and petroleum production, and can also come from gas stations, urban stormwater runoff, and septic systems; (v) radioactive contaminants, which can be naturally occurring or be the result of oil and gas production and mining activities.

(3) In order to ensure that tap water is safe to drink, EPA prescribes regulations that limit the amount of certain contaminants in water provided by public water systems. FDA regulations establish limits for contaminants in bottled water which must provide the same protection for public health.

(4) Drinking water, including bottled water, may reasonably be expected to contain at least small amounts of some contaminants. The presence of contaminants does not necessarily indicate that water poses a health risk. More information about contaminants and potential health effects can be obtained by calling the Environmental Protection Agency's Safe Drinking Water Hotline (800-426-4791).

b. The report shall include the telephone number of the owner, operator, or designee of the community waterworks as a source of additional information concerning the report.

c. In communities with a large proportion of non-English speaking residents, as determined by the commissioner, the report shall contain information in the appropriate language or languages regarding the importance of the report or contain a telephone number or address where such residents may contact the system to obtain a translated copy of the report or assistance in the appropriate language.

d. The report shall include the following information about opportunities for public participation in decisions that may affect the quality of the water. The waterworks owner should consider including the following additional relevant information:

(1) The time and place of regularly scheduled board meetings of the governing body which has authority over the waterworks.

(2) If regularly scheduled board meetings are not held, the name and telephone number of a waterworks representative who has operational or managerial authority over the waterworks.

e. The owner may include such additional information as he deems necessary for public education consistent with, and not detracting from, the purpose of the report.

D. Additional health information.

1. All reports shall prominently display the following language: Some people may be more vulnerable to contaminants in drinking water than the general population. Immuno-compromised persons such as persons with cancer who are undergoing chemotherapy, persons who have undergone organ transplants, people with HIV/AIDS or other immune system disorders, some elderly, and infants can be particularly at risk from infections. These people should seek advice about drinking water from their health care providers. EPA/CDC guidelines on appropriate means to lessen the risk of infection by Cryptosporidium and other microbial contaminants are available from the Safe Drinking Water Hotline (800-426-4791).

2. Any waterworks owner who detects arsenic at levels above 0.005 mg/L, but equal to or below the PMCL of 0.010 mg/L, shall include in his report the following informational statement about arsenic: While your drinking water meets EPA's standard for arsenic, it does contain low levels of arsenic. EPA's standard balances the current understanding of arsenic's possible health effects against the cost of removing arsenic from drinking water. EPA continues to research the health effects of low levels of arsenic, which is a mineral known to cause cancer in humans at high concentrations and is linked to other health effects such as skin damage and circulatory problems.

In lieu of the statement required in this subdivision, the waterworks owner may include his own educational statement after receiving approval from the commissioner.

3. A waterworks owner who detects arsenic levels above 0.010 mg/L shall include the health effects language contained in Appendix O.

4. An owner who detects nitrate at levels above 5 mg/L, but below the PMCL, shall include in his report the following informational statement about the impacts of nitrate on children: Nitrate in drinking water at levels above 10 ppm is a health risk for infants of less than six months of age. High nitrate levels in drinking water can cause blue baby syndrome. Nitrate levels may rise quickly for short periods of time because of rainfall or agricultural activity. If you are caring for an infant you should ask advice from your health care provider.

In lieu of the statement required in this subdivision, the waterworks owner may include his own educational statement after receiving approval from the commissioner.

5. All reports shall prominently display the following language: If present, elevated levels of lead can cause serious health problems, especially for pregnant women and young children. Lead in drinking water is primarily from materials and components associated with service lines and home plumbing. [NAME OF UTILITY] is responsible for providing high quality drinking water, but cannot control the variety of materials used in plumbing components. When your water has been sitting for several hours, you can minimize the potential for lead exposure by flushing your tap for 30 seconds to two minutes before using water for drinking or cooking. If you are concerned about lead in your water, you may wish to have your water tested. Information on lead in drinking water, testing methods, and steps you can take to minimize exposure is available from the Safe Drinking Water Hotline (800-426-4791).

In lieu of the statement required in this subdivision, the owner may include his own educational statement after receiving approval from the commissioner.

6. Community waterworks owners who detect TTHM above 0.080 mg/L, but below the PMCL, as an annual average shall include health effects language prescribed by paragraph 81 of Appendix O.

E. Report delivery and recordkeeping.

1. Each community waterworks owner shall mail or otherwise directly deliver one copy of the report to each customer., except as follows:

a. Owners of community waterworks serving fewer than 10,000 persons shall have the option to either mail (or otherwise directly deliver) a copy of the report to each customer or publish the report in a local newspaper or newspapers of general circulation serving the area in which the waterworks is located by July 1 of each year; and

b. If the owner chooses to publish the report, the owner shall inform customers, either in the newspaper in which the report is to be published or by other means approved by the commissioner, that a copy of the report will not be mailed to them and that a copy of the report will be made available to the public upon request.

2. The owner Community waterworks owners shall make a good faith effort that shall be tailored to deliver the report to the consumers who are served by the system waterworks but are not bill paying customers, such as renters and or workers. This good faith effort shall include at least one, and preferably two or more, of the following methods appropriate to the particular waterworks:

a. Posting the reports on the Internet;

b. Mailing to postal patrons in metropolitan areas;

c. Advertising the availability of the report in the news media;

d. Publication in a local newspaper;

e. Posting in public places such as libraries, community centers, and public buildings;

f. Delivery of multiple copies for distribution by single-biller customers such as apartment buildings or large private employers;

g. Delivery to community organizations.; or

h. Other methods as approved by the commissioner.

3. No later than July 1 of each year the owner community waterworks owners shall deliver a copy of the report to the district engineer, followed within three months by a certification that the report has been distributed to customers and that the information in the report is correct and consistent with the compliance monitoring data previously submitted to the commissioner.

4. No later than July 1 of each year the owner community waterworks owners shall deliver the report to any other agency or clearinghouse specified by the commissioner.

5. Each community Community waterworks owner owners shall make the report available to the public upon request.

6. The owner of each community waterworks serving 100,000 or more persons shall post the current year's report to a publicly accessible site on the Internet.

7. Each community Community waterworks owner owners shall retain copies of the report for no less than three years.