PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Amendment of Subpart 5-1 of Title 10 NYCRR.

Public Water Systems.

To incorporate mandatory regulations (Federal Ground Water Rule) to increase protection against microbial pathogens in ground water.

These amendments are necessary due to the promulgation by the United States Environmental Protection Agency (EPA) of the Ground Water Rule (GWR) on October 11, 2006, in order to make New York's regulations of Public Water Systems (PWS) consistent with EPA requirements.

The GWR was promulgated to reduce the risk of exposure to fecal contamination that may be present in public water systems that use ground water sources. The GWR also specifies when corrective action (which may include disinfection) is required to protect consumers who receive water from ground water systems from bacteria and viruses.

The new requirements of the GWR include:

• new Maximum Contaminant Levels/Treatment Techniques for indicators of fecal contamination in ground water sources (wells);

• expanded requirements for conducting inspections of public water systems known as sanitary surveys;

• additional record-keeping requirements for public water systems and local and state health departments; and

• customer notification by public water systems when there is a significant deficiency in the facilities or operation of the public water system or if there is fecal contamination of the raw source water and the system does not provide at least 4-log (99.99%) removal or disinfection of viruses.

Water systems must correct significant deficiencies at facilities or in system operation which may allow contaminated water to reach consumers, when directed by the State or local health department. Customers must be notified and the system must correct this violation of the regulation, either immediately or after development of an approved correction plan.

The minimum required concentration of disinfectant entering the water distribution system (and for chemical disinfectants other than chlorine) is clarified. Systems using chlorine must maintain a minimum of 0.2 mg/l at the entry point, and must notify the State if the concentration falls below that level for four or more hours. Systems must take specific actions if the system fails to meet these requirements, and notify the public in case of failure to meet the specified requirements.

Monitoring plan requirements are expanded to require inclusion of all required sampling locations and frequencies. For simple ground water systems, these monitoring plans will be simple to prepare. While comprehensive monitoring plans are currently required in Department guidance, the current requirements apply only to plans for monitoring disinfection byproducts.

Consecutive PWS, who purchase or otherwise obtain water from PWS's using ground water sources (wholesalers), must describe in their monitoring plan the process by which they will notify their wholesaler in the event of a total-coliform positive sample (unless invalidated or determined to have originated in the distribution system). If the consecutive system, or the wholesaler, provides 4-log treatment that is confirmed, using process compliance monitoring, this additional notification and source water sampling is not required. Confirmation of treatment system performance through measurements and record keeping is known as process compliance monitoring.

Several tables summarizing violation determination or monitoring frequencies have been revised and or added. The affected tables and substantial changes include:

Table 6

• New treatment technique violations when fecal contamination is found at a system that does not provide 4-log microbial treatment.

• The required fecal indicator will remain E.coli. (If fecal contamination is observed in the untreated source water, corrective action must be taken.)

Table 11

• Enterococcus and bacteriophage are added as fecal contaminants, however no monitoring requirements are added.

• Systems with disinfection waivers will no longer be eligible for reduced microbiological monitoring, previously allowed at State discretion.

New Table 11B

• Lists actions required when microbial contamination is detected in routine or follow-up monitoring samples.

GWR Notifications are added to Table 13 of Required Notifications

Tables 15 and 15A

• Revised to reflect changes to disinfection residual measurement as amended by the GWR

All PWS's must respond to notification of significant deficiencies observed at the PWS and indicate that failure to address any significant deficiencies is a treatment technique violation.

The requirements for completion of daily operation records are simplified to allow for the use of electronic or other forms. These records must include documentation of process compliance monitoring at ground water systems where 4-log treatment is required.

Reporting requirements for all PWS's specific to GWR violations and significant deficiencies have been expanded to ensure that consumers are informed of source contamination or threats to the quality of water provided by the water system.

The reporting responsibilities of consecutive systems are clarified, and include notification of the wholesaler from whom they purchase water as well as the health department, whenever microbiological contamination is observed.

Ground water systems must notify the State within 24 hours of a GWR violation. Failure to do so will result in the requirement for a Tier 1 notification for failure to notify as well as for the violation.

Nonsubstantive changes were made in sections 5-1.1, 5-1.30, 5-1.51, 5-1.52, 5-1.70, 5-1.71, 5-1.72, 5-1.76, 5-1.78 and Appendix 5-C.

Katherine Ceroalo, DOH, Bureau of House Counsel, Reg. Affairs Unit, Room 2438, ESP Tower Building, Albany, NY 12237, (518) 473-7488, email: [email protected]

Changes made to the last published rule do not necessitate revision to the previously published RIS, RFA, RAFA and JIS.

Public comments were submitted to the NYS Department of Health (DOH) in response to this regulation from the Long Island Water Conference and the Dutchess County Department of Health. These comments and the Department of Health's responses are summarized below:

1. COMMENT: Is the time of the next sanitary survey an appropriate time frame for determining whether a deficiency is significant?

RESPONSE: Because most significant deficiencies are based on observations made during sanitary surveys, any deficiency that is likely to pose a threat to system operation or management prior to the next sanitary survey visit should be cited as a significant deficiency. Guidance will be provided to assist in making these determinations.

2. COMMENT: The definition of significant deficiency may result in arbitrary enforcement actions.

RESPONSE: The existing rules for public water systems include, in subdivision 5-1.71(b), "The supplier of water and the person or persons operating a water treatment plant or distribution system shall exercise due care and diligence in the operation and maintenance of these facilities and their appurtenances to ensure continued compliance with the provisions of this Subpart." The introduction of the phrase 'significant deficiency' in new paragraph 5-1.1(bn) provides more specific criteria as does specifying the timing as 'before the next sanitary survey'. This does not change the overall requirement in Subpart 5-1, but does provide a better standard for determining when a significant deficiency occurs. No change was needed to address this comment.

3. COMMENT: The provision on correcting significant deficiencies in paragraph 5-1.12(a) will result in unintended consequences and inconsistent requirements.

RESPONSE: The Department acknowledges that the provisions about correcting significant deficiencies were not clear in 5-1.12(a). This provision has been removed from this paragraph and retained in paragraphs 5-1.71(c) and (d) for clarity. This did not change the requirements, only clarified them.

4. COMMENT: The wording in Subdivision 5-1.30(a) precluded acceptable ways to return system to compliance.

RESPONSE: Subdivision 5-1.30(a) has been revised to more clearly reflect the federal requirements for responding to fecal contamination and significant deficiencies.

5. COMMENT: The term 'required concentration' is not clear.

RESPONSE: The required concentration for water entering the distribution system will vary from one water system to another. The 0.2 mg/l is a required minimum concentration, but in some cases 0.2 mg/l will not be adequate to meet design requirements and a single numerical value will not suffice. No revision is needed to address this comment.

6. COMMENT: The term "unusual and unpredictable" in subdivision 5-1.30(c) is vague.

RESPONSE: This term, "unusual and unpredictable", is currently in subdivision 5-1.30(c) and is not proposed for revision. Revision to this subdivision will be considered in future amendments to this Subpart.

7. COMMENT: Paragraph 5-1.30(e) allows the State to grant disinfection waivers. Commenter is concerned that a waiver may be granted even if there is fecal contamination of the source.

RESPONSE: Paragraph 5-1.30(e) currently precludes the granting of a waiver if a source is contaminated. This subdivision was not proposed for change and protection will not be decreased if the paragraph remains unchanged.

8. COMMENT: Clarification is needed between monitoring plan and sample schedule.

RESPONSE: A sample schedule is part of a monitoring plan. The elements of the sampling plan are set forth in 5-1.51(c). This topic will be addressed more fully in guidance.

9. COMMENT: Monitoring plan lacks specificity, also concern that making the monitoring plan publicly available may pose a security threat.

RESPONSE: Minimum standards for monitoring plans are described generally in subdivision 5-1.51(c) and will be addressed in more detail in guidance. The plans may be prepared with security sensitive locational information kept confidential at the discretion of the water supplier.

10. COMMENT: Table 11 data presented in a confusing manner.

RESPONSE: Tables 11 and 11B were revised to clarify that monitoring may be required by the State but routine monitoring is not required for fecal indicators. These revisions clarified, but did not change, monitoring requirements.