DAR File No. 28418

Environmental Quality, Drinking Water

R309-405-4

Assessment of a Penalty and Calculation of Settlement Amounts

NOTICE OF PROPOSED RULE

DAR File No.: 28418
Filed: 12/15/2005, 01:24
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The reason for the change is to change wording to refer to minimum water pressure described in Section R309-105-9. (DAR NOTE: The proposed amendment to Section R309-105-9 is under DAR No. 28416 in this issue.)

Summary of the rule or change:

This change makes reference to Section R309-105-9 so that minimum pressures associated with existing systems will not be confused with minimum pressures required for new Public Water Systems designed and constructed after March 1, 2006.

State statutory or constitutional authorization for this rule:

Section 19-4-104

Anticipated cost or savings to:

the state budget:

None--Since this amendment only clarifies this portion of rule and the additional water pressure requirements for new Public Water Systems, it will not require additional personnel or other funds from the state budget.

local governments:

Little to None--Most, if not all, well functioning Public Water Systems operated by local government currently meet or exceed the current minimum water pressure minimums, as well as the proposed additional minimums. The design of new Public Water Systems will only require initial planning concerning storage location and distribution pipeline sizing which should not add significant cost or time.

other persons:

Little to None--Most engineering companies currently look to typical textbook design standards, as well as standards of other agencies such as the American Water Works Association (AWWA), the American Society of Civil Engineers (ASCE), and other nearby states when designing Public Water Systems so there should not be any additional cost or time involved.

Compliance costs for affected persons:

New Public Water Systems designed and constructed after March 1, 2006, should not see any costs over and above that if their system were designed with the typical capacity for anticipated growth and expansion. Some increased cost may be expected if storage tank location for adequate pressure requires additional length of transmission line.

Comments by the department head on the fiscal impact the rule may have on businesses:

The department agrees that the proposed changes to this rule will have little to no detrimental impact on existing water systems nor on new public water systems. Dianne R. Nielson, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Direct questions regarding this rule to:

Bill Birkes at the above address, by phone at 801-536-4201, by FAX at 801-536-4211, or by Internet E-mail at bbirkes@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

01/31/2006

This rule may become effective on:

02/01/2006

Authorized by:

Kevin Brown, Director

RULE TEXT

R309. Environmental Quality, Drinking Water.

R309-405. Compliance and Enforcement: Administrative Penalty.

R309-405-4. Assessment of a Penalty and Calculation of Settlement Amounts.

(1) Where the Executive Secretary determines that a penalty may be appropriate, the Executive Secretary shall propose a penalty amount by sending a notice of agency action, under Title 63, chapter 46b of the Administrative Procedures Act, to the public water system. The notice of agency action shall provide that the public water system may submit comments and/or information on the proposed penalty to the Executive Secretary within 30 days. The criteria the Executive Secretary will use in establishing a proposed penalty amount shall be as follows:

(a) Major Violations: $600 to $1000 per day for each day of violation. This category includes violations with high potential for impact on drinking water users, major deviations from the requirements of the rules or Safe Drinking Water Act, intentional fraud, falsification of data, violations which result in a public water system being considered by the Environmental Protection Agency to be: "Significant Non-Compliers" (SNC), or violations that may have a substantial adverse effect on the regulatory program. Specific violations that are subject to a major violation category can include the following:

(i) Violations subject to $1000 per day penalty:

(A) Any violation defined by R309-220-5 which would trigger a Tier 1 public notification.

(B) Not having any elements of a source protection plan as required in R309-600 for ground water sources and R309-605 for surface water sources.

(C) Failure to respond to an Administrative Order issued by the Drinking Water Board.

(D) Introduction by the water system of a source water that has not been evaluated and approved for use as a public drinking water source under R309-515[R309-204].

(E) Construction or use of an interconnection to another public water system which has not been reviewed and approved in accordance with R309-550-9.

(F) Having over 20 IPS points (Improvement Priority System points based on R309-150, the Water System Rating Criteria) specifically for operating pressures below that[20 psi as] required by R309-105-9.

(G) Having 50 IPS points specifically for an inadequate well seal as required in R309-515[R309-204].

(H) Having over 50 IPS points (not including the deficiencies in (F) and (G) above) specifically assessed in the physical facility section of an IPS report.

(I) Use of a surface water source without proper filtration treatment in accordance with R309-525 or 530.

(J) Exceeding the rated water treatment plant capacity as determined by review under R309-525 or 530.

(K) Insufficient disinfection contact time as evaluated under R309-215-7.

(ii) Violations subject to $800 per day penalty:

(A) Not having any of the required components of a cross connection control program in place as required by R309-105-12.

(B) Any violation of the turbidity requirements outlined in R309-215-9(4)(b)(iii -iv) for individual filter turbidities using consecutive readings taken 15 minutes apart.

(b) Moderate Violations: $400 to $600 per day for each day of violation. This category includes violations with a moderate potential for impact on drinking water users, moderate deviations from the requirements of the rules or Safe Drinking Water Act with some requirements implemented as intended, or violations that may have a significant notable adverse effect on the regulatory program. Specific violations that are subject to a moderate violation category can include the following:

(i) Violations subject to $600 penalty:

(A) Any violation defined by R309-220-6 which would trigger a Tier 2 public notification.

(B) Having a disapproved status on a source protection plan (R309-600 and 605) for a period longer than 90 days.

(C) Installation or use of disinfection equipment that has not been evaluated and approved for use under R309-520.

(D) Having measured turbidity spikes of greater than 0.5 or 1.0 NTU in two consecutive fifteen minute readings as defined in R309-215-9(4)(b)(i) or (ii) respectively.

(E) Insufficient source capacity, storage capacity, or delivery capacity as established by review of the system design under R309-500 through 550.

(F) Not complying with plan approval requirements as set forth in R309-500. The term infrastructure can include the disinfection process, surface water treatment process, and physical facilities such as water treatment plants, storage reservoirs, sources and distribution piping.

(c) Minor Violations: Up to $400 per day for each day of violation. This category includes violations with a minor potential for impact on drinking water users, slight deviations from the rules or Act with most of the requirements implemented, or violations that may have a minor adverse effect on the regulatory program. Specific violations that are subject to a minor violation category can include the following:

(i) Violations subject to $400 per day penalty:

(A) Any violation defined by R309-220-7 which would trigger a Tier 3 public notification or a violation of the monitoring requirements of R309-515-4(5)[R309-204-4(5)], except for turbidity monitoring for surface water treatment facilities and violations termed as minor monitoring as outlined in R309-150-3 (minor bacteriological routine monitoring violation, minor bacteriological repeat monitoring violation and minor chemical monitoring violation).

(B) Failure to upgrade a Preliminary Evaluation Report for a source protection plan as required in R309-600 and 605.

(C) Failure to update a source protection plan as required in R309-600 and 605.

(D) Construction or use of a storage reservoir that has not been evaluated for use under R309-545.

(ii) Violations subject to $200 per day penalty:

(A) Lacking individual components of a cross connection control program as required by R309-105-12.

(B) Not having a certified operator on staff as required in R309-300-5(10) after 1 year or 4 operator certification exam cycles.

(C) Any minor monitoring violation as defined by R309-150-3 (minor bacteriological routine monitoring violation, minor bacteriological repeat monitoring violation and minor chemical monitoring violation).

(D) Any violation of the turbidity requirements outlined in R309-215-9(4)(b)(i-ii) for individual filter turbidities using consecutive readings taken 15 minutes apart.

(2) The Executive Secretary will assess the penalty, if any, after reviewing information submitted by the public water system. The public water system may appeal the assessment of the penalty to the Board by requesting a formal hearing under R309-115 and the Utah Administrative Procedures Act within 30 days of the date of assessment of the penalty.

KEY: drinking water, environmental protection, administrative procedures, penalties

[June 17, 2003]2006

Notice of Continuation May 16, 2005

19-4-104

63-46b-4

ADDITIONAL INFORMATION

PLEASE NOTE:

• Text to be deleted is struck through and surrounded by brackets (e.g., [example]). Text to be added is underlined (e.g., example). Some browsers may not depict some or any of these attributes on the screen or when the document is printed.
• Please see the DISCLAIMER regarding information available from state web pages.

For questions regarding the content or application of this rule, please contact Bill Birkes at the above address, by phone at 801-536-4201, by FAX at 801-536-4211, or by Internet E-mail at bbirkes@utah.gov

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of these administrative rules.