BEFORE THE BOARD OF ENVIRONMENTAL REVIEW

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 17.38.101, 17.38.208, 17.38.225, 17.38.229, 17.38.231, and 17.38.513 pertaining to plans for public water or wastewater systems, treatment requirements, control tests, microbial treatment, sanitary surveys, and chemical treatment of water; the adoption of New Rules I through IV pertaining to ground water, initial distribution system evaluations, stage 2 disinfection byproducts requirements, and enhanced treatment for cryptosporidium; and the repeal of ARM 17.38.701 through 17.38.703 pertaining to licenses--private water supplies, disposal of excrement, and barnyards and stockpens

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NOTICE OF AMENDMENT, ADOPTION, AND REPEAL   (PUBLIC WATER AND SEWAGE SYSTEM REQUIREMENTS)

 

TO:  All Concerned Persons

 

            1.  On August 13, 2009, the Board of Environmental Review published MAR Notice No. 17-291 regarding a notice of public hearing on the proposed amendment, adoption, and repeal of the above-stated rules at page 1353, 2009 Montana Administrative Register, issue number 15.

 

            2.  The board has amended ARM 17.38.101, 17.38.208, 17.38.231, and 17.38.513; adopted New Rules I (17.38.211), II (17.38.212), III (17.38.213), and IV (17.38.214); and repealed ARM 17.38.701 through 17.38.703 exactly as proposed and has amended ARM 17.38.225 and 17.38.229 as proposed, but with the following changes, stricken matter interlined, new matter underlined:

 

            17.38.225  CONTROL TESTS  (1) remains as proposed.

            (2)  Chlorine Disinfectant residual tests must be conducted daily by:

            (a)  surface water systems and consecutive systems to a surface water system in accordance with the requirements in 40 CFR 141.72 and with the other requirements in this subchapter for chlorine disinfectant residual monitoring for surface water supplies.  At least two disinfectant residual tests must be conducted daily, one at each entry point to the distribution system and one in the distribution system;

            (b)  ground water systems in accordance with 40 CFR Part 141, subpart S.  Disinfectant residual tests must be conducted daily at each entry point to the distribution system to prove compliance with the 4-log virus inactivation or removal requirement; and

            (c)  ground water systems required by the department under ARM 17.38.229 to maintain a residual, in its distribution system and by consecutive systems connected to those systems, at each entry point to the distribution system and, if required to maintain a residual in the distribution system, one in the distribution system.  For consecutive systems, the entry point is the point at which the purchased water enters the distribution system of the consecutive system.  The department may waive, on a case-by-case basis, the requirement for:

            (i) through (7) remain as proposed.

 

            17.38.229  DISINFECTION MICROBIAL TREATMENT  (1) through (3) remain as proposed.

            (4)  When the department determines a residual is required in the distribution system of a ground water system, the residual disinfectant concentration measured as free chlorine, total chlorine, combined chlorine, chlorine dioxide, or other department approved disinfectant(s) must not be less than 0.2mg/l using the DPD method or 0.1mg/l using the amperometric titration method.  A heterotrophic bacteria concentration in water in the distribution system less than or equal to 500 per milliliter, measured as heterotrophic plate count (HPC), is an acceptable substitute for disinfectant residual for purposes of determining compliance with this rule.

 

            3.  The following comments were received and appear with the board's responses:

 

            COMMENT NO. 1:  New ARM 17.38.101(10) allows regional water systems to submit, for DEQ approval, standard construction contract documents that are intended for use in a series of construction contracts during the construction period of the project.  The rule provides that DEQ approval remains in effect for the construction period of the project.  The rule should be modified to provide that DEQ approvals of deviation requests also be in effect for the life of the project.  The rule currently provides that deviation approvals are not subject to changes in DEQ design or construction criteria for a period of 72 months.  A project-life period for deviation approvals would provide for cost savings for regional water supply system projects, and would provide for time and resource savings and efficiencies to both the system and DEQ.

            RESPONSE:  Proposed new ARM 17.38.101(10) incorporates new statutory requirements for the review of regional water systems.  Section 1, Chapter 449, Laws of 2009.  The statute specifically provides that "issuance of deviations from design and construction standards" may not be subject to change for 72 months.  The statute provides a project-life approval for "standard construction contract documents and provisions for amendments to those documents."  Given the clear directive in the statute that deviations are valid for 72 months rather than for the life of the project, the requested change can not be made.

 

            COMMENT NO. 2:  A regional water supply system requested clarification of whether the system should be classified as a consecutive system and clarification of the sampling requirements applicable to the system before classification.

            RESPONSE:  The comment does not request a change in the rules but an analysis of the requirements as they apply to this system.  This request goes beyond the scope of this rulemaking.  DEQ will continue to work with the system and the United States Environmental Protection Agency to determine the specific requirements applicable to this system.

 

            COMMENT NO. 3:  The amendments to ARM 17.38.208 remove the definition of "not detected" as a residual that is less than 0.2mg/l of chlorine.  This appears to be in conflict with ARM 17.38.234(6)(d)(ii) because that section continues to define "not detected" as a residual that is less than 0.2mg/l of chlorine.  ARM 17.38.234(6)(d)(ii) should be amended to conform to the amendments to ARM 17.38.208.

            RESPONSE:  Because no amendments were proposed to ARM 17.38.234 in this rulemaking, the requested modification can not be implemented at this time.  In any event, retaining the definition of "not detected" in ARM 17.38.234(6)(d)(ii) does not create a conflict or lead to an increased burden on regulated systems.  ARM 17.38.234(6)(d)(ii) defines "not detected" for purposes of implementing 40 CFR 141.75, which sets forth reporting requirements for certain systems.  Leaving the definition in ARM 17.38.234(6)(d)(ii) will require these systems to continue reporting to DEQ the number of days in which their sampling shows the system residual as less than 0.20 mg/l or 0.10 mg/l, depending on the test method, even though residuals under those levels would not necessarily constitute a "non-detect" that would be a violation of the disinfectant residual requirement under ARM 17.38.208.

 

            COMMENT NO. 4:  In ARM 17.38.225, the phrase "chlorine residual tests" should be replaced with the phrase "disinfectant residual tests," in order to accommodate cases where chlorine is not the disinfectant.

            RESPONSE:  The board agrees with the suggestion and has amended ARM 17.38.225 as shown above.

 

          COMMENT NO. 5:  The proposed amendments to ARM 17.38.225 appear to remove the requirement for water systems to conduct at least two chlorine residuals per day, one from each entry point to the distribution system and one from the distribution system.

            RESPONSE:  The proposed amendments were not intended to remove the requirements for systems to conduct daily residual tests from each entry point and, if required to maintain a residual in the distribution system, from the distribution system.  The amendments to ARM 17.38.225 have been modified to clarify that water systems must continue to conduct the appropriate disinfectant residual tests daily.

 

            COMMENT NO. 6:  The proposed amendments to ARM 17.38.225 and ARM 17.38.229 raise the question whether all ground water systems are required to report disinfectant residuals in accordance with the levels prescribed in new ARM 17.38.229(4).

            RESPONSE:  The proposed amendments were intended to remove the numeric minimum disinfectant level, prescribed in new ARM 17.38.229(4), from surface water systems and from ground water systems that are subject to the federal ground water rule.  This is necessary to conform to current federal requirements.  However, the department may require a ground water system to disinfect for other reasons, pursuant to the authority in ARM 17.38.229.  In order to assure adequate treatment, those systems must demonstrate disinfectant residuals that meet the numeric levels in new ARM 17.38.229(4).  New (4) has been amended slightly to clarify that the numeric residual disinfectant levels apply to both entry point and distribution system sampling.  The word "disinfection" in the title of ARM 17.38.229 should have been stricken in the proposed notice to be consistent with the other proposed amendments.

 

            COMMENT NO. 7:  The rules should be amended to indicate that E. coli is the department's fecal indicator for systems with a population of 25 - 1,000 persons.

            RESPONSE:  Under the ground water rule, which is proposed for adoption by reference through New Rule I, there are three fecal indicators that a primacy agency may use to determine compliance.  If the primacy agency allows the use of E. coli as the fecal indicator, systems with a population of 25 - 1,000 may use the fourth repeat sample, from the total coliform rule, as its raw source water sample under the ground water rule.  The standard operating procedure for the department will be to use E. coli as its fecal indicator; however, because the ground water rule lists two additional fecal indicators that the primacy agency may use, the requested amendment to the rules is not appropriate.

 

Reviewed by:                                     BOARD OF ENVIRONMENTAL REVIEW

 

 

 

/s/ James M. Madden                          By:  /s/ Joseph W. Russell                                 

JAMES M. MADDEN                                   JOSEPH W. RUSSELL, M.P.H.

Rule Reviewer                                               Chairman

 

Certified to the Secretary of State, October 5, 2009.