BEFORE THE BOARD OF ENVIRONMENTAL REVIEW

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 17.38.208, 17.38.225, 17.38.234, 17.38.301, 17.38.302, 17.38.305, 17.38.310, and 17.38.312 pertaining to treatment requirements, control tests, testing and sampling records and reporting requirements, definitions, incorporation by reference, cross-connections:  regulatory requirements, voluntary cross-connection control programs:  application requirements, and standards and requirements for cross-connection control

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NOTICE OF AMENDMENT   (PUBLIC WATER AND SEWAGE SYSTEM REQUIREMENTS)

 

TO:  All Concerned Persons

 

1.  On February 9, 2012, the Board of Environmental Review published MAR Notice No. 17-331 regarding a notice of public hearing on the proposed amendment of the above-stated rules at page 267, 2012 Montana Administrative Register, issue number 3.

 

            2.  The board has amended the rules exactly as proposed.

 

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

 

            COMMENT NO. 1:  Comments were received from the public works department of a city that implements a cross-connection control program.  The city noted that the cross-connection rules can require that backflow prevention devices be installed in private water service lines.  These private lines are also regulated under state plumbing codes adopted by the Montana Department of Labor and Industry.  The city stated that there appears to be a lack of coordination among the state agencies regarding cross-connection requirements.  For example, these rules require that backflow prevention devices be maintained in accordance with manufacturer's specifications.  ARM 17.38.305(3).  The plumbing code sets standards for installation of backflow prevention devices, but does not require testing either upon installation or on any periodic schedule thereafter.

            RESPONSE:  The proposed amendments do not change ARM 17.38.305(3), other than renumbering, so this comment is outside the scope of this rulemaking.  However, the comment can be addressed to clarify the application of the cross-connection rules.  Backflow prevention devices may be subject to both the cross-connection rules and the plumbing codes.  Under the cross-connection rules, backflow devices must be periodically tested if the manufacturer recommends it.  In that case the public water supplier must require the line owner to provide evidence of periodic testing of the device.  This requirement does not conflict with the plumbing code.

 

            COMMENT NO. 2:  Is a building, such as the DEQ Metcalf Building, which serves 25 or more people daily, considered to be a public water supply system under 75-6-102(14), MCA?

            RESPONSE:  The question is outside the scope of this rulemaking, but can be addressed to clarify the application of the cross-connection rules.  A building that serves 25 or more people daily for any 60 or more days in a calendar year could be considered a "public water supply system" as the term is defined in 75-6-102(14), MCA.  However, the department applies these rules only to public water supply systems that have their own water source or have water mains with multiple service connections.

 

            COMMENT NO. 3:  Many backflow events affect internal building water quality but do not reach the public water main except in large events.  Who has responsibility for drinking water quality in that case?

            RESPONSE:  The cross-connection rules apply to public water supply systems that have their own water source or have water mains with multiple service connections.  However, the rules require the public system to address potential sources of contamination from any source, whether public or private.  See definition of "cross-connection" in 75-6-102(5), MCA.  The proposed amendments to the rules have not changed this aspect, but this question will be addressed to help clarify the application of the rules.

            Cross-connections within private buildings can contaminate the drinking water within the building and, if there is backflow from the building into the public water supply system, the private cross-connection can contaminate the public drinking water supply.  Consequently, the rules require a public water supplier to address cross-connections that are identified within the plumbing systems of its customers.  The public water supplier must eliminate an identified cross-connection or, if that is not reasonably practicable and the cross-connection creates a health or water contamination hazard, the hazard must be eliminated by installation of an approved backflow prevention device or assembly.  ARM 17.38.305.  Alternatively, the public water supplier has the option to disconnect a customer whose plumbing creates a potential hazard.

 

            COMMENT NO. 4:  If private building owners are not regulated under these rules, there is a "disconnect" that limits the extent of authority that a public water supply system can exert over cross-connection issues.

            RESPONSE:  As stated in the Response to Comment No. 3, a public water supplier has the option to discontinue service to connections that may contaminate the public water supply.  This authority gives the public water supplier the ability to enforce the requirements of the cross-connection rules.

 

            COMMENT NO. 5:  A survey of service connections has shown that many high-hazard service connections have no backflow protection.  Of the high-hazard connections with backflow protection, few are being tested.  Also, many fire lines have not been tested for backflow protection due to lack of clear requirements to do so.  What requirements do the proposed rules place on the city or on the affected businesses to correct these problems and at whose cost?

            RESPONSE:  As stated in the Response to Comment No. 3, the rules require public water supply systems to address potential sources of contamination from any source, whether public or private.  The public water supplier, in this case the city, must require its customers to address cross-connections that are identified in their systems.  This requirement is clearly stated in the rules.  Standards for backflow prevention devices or assemblies are also set out in the rules and incorporated documents.  The owner of the system with the cross-connection usually pays the cost of any corrective action.

 

            COMMENT NO. 6:  Under the proposed amendments, the definition of "approved backflow prevention assembly or devices" in ARM 17.38.301(1) no longer references the "List of Approved Backflow Prevention Assemblies."  How will a city know which backflow prevention assemblies are approved?

            RESPONSE:  A public water supplier must now contact the department to determine whether a particular backflow prevention device or assembly is approved.  The department will continue to use the "List of Approved Backflow Prevention Assemblies" as guidance.  However, because the List changes continually, it is not practical to incorporate it by reference in rules.  The change to the definition will have the added benefit of allowing the department to consider proposed assemblies or devices that are not on the List if they can be adequately justified.

 

            COMMENT NO. 7:  The definitions of "cross-connection" are not identical in the plumbing codes, the Manual of Cross-Connection Control, and 75-6-102, MCA.

            RESPONSE:  The three definitions of "cross-connection" are not identical, but the substance of the definitions is the same.  A cross-connection is essentially a connection or potential connection between a potable water system and anything else that has the potential to lead to contamination of that water system.

 

            COMMENT NO. 8:  The American Water Works Association (AWWA) should not be eliminated from the definition of "certified backflow prevention assembly tester" in ARM 17.38.301(7).  The proposed rules should list criteria for acceptable certification.

            RESPONSE:  The AWWA offers training and testing but does not certify backflow prevention assembly testers, so it is necessary to delete AWWA from the list of entities that issue certification.  The proposed rules do not list criteria for certification because the department has no authority to certify a person to test backflow prevention assemblies.

 

            COMMENT NO. 9:  The proposed definition of "degree of hazard" in ARM 17.38.301(9) uses the terms "contaminant" and "pollutant."  Do these terms have the same meaning as the terms "contamination" and "pollution" as defined in 75-6-102(4) and (12)(a), MCA?

            RESPONSE:  The terms "contaminant" and "pollutant," as used in these rules, do not have the same meaning as the terms defined in 75-6-102, MCA.  The "degree of hazard" definition is based on the definition in the Manual for Cross-Connections, and the terms "contaminant" and "pollutant" have special meanings that are commonly understood in the cross-connection industry.  The definition is necessary to ensure that the regulated community properly understands those terms.

 

            COMMENT NO. 10:  What authority does the board have to regulate degrees of hazards and the risks they pose outside of adopted water quality or drinking water quality standards beyond "the point of service?"

            RESPONSE:  The board's authority to adopt rules that address contamination from cross-connections is found in 75-6-103, MCA.  The statutory authority does not limit the board to regulating cross-connections based on promulgated water quality or drinking water quality standards.  The board has authority to require a public water supplier to address a contamination source beyond the "point of service" because the definition of "cross-connection" in statute refers to both public and private sources of contamination.  See 75-6-102(5), MCA.

 

            COMMENT NO. 11:  Several definitions in the incorporated Manual of Cross-Connection Control conflict with, or do not exist in, ARM 17.38.101 regarding delegated authority to local government for review of plans for public water and sewage systems.

            RESPONSE:  The definitions in ARM 17.38.101 pertain to the review of plans for proposed public water and sewage systems and do not apply to the cross-connection rules in ARM Title 17, chapter 38, subchapter 3.

 

            COMMENT NO. 12:  The proposed amendments update the incorporation of the Manual of Cross-Connection Control from the 1993 to the 2009 edition.  Many of the practices contained in the Manual are outside the scope and authority of the department to require.

            RESPONSE:  The comment is not specific about what practices the commentor believes may be outside the scope of the board's authority.  The board believes that its statutory authority to promulgate cross-connection rules is broad enough to allow incorporation of the Manual of Cross-Connection Control.  See 75-6-103, MCA.

 

            COMMENT NO. 13:  With the adoption of the Manual for Cross-Connection Control, will the department be requiring and enforcing testing of the devices and assemblies?

            RESPONSE:  The rules already require that backflow prevention assemblies and devices be tested according to the manufacturer's specification.  ARM 17.38.305(3), renumbered in this rulemaking as ARM 17.38.305(4).  The public water supplier is responsible to ensure that cross-connection assemblies or devices are installed and maintained properly.  A violation of the rules can form the basis for an enforcement action by the department under 75-6-110, MCA.

 

            COMMENT NO. 14:  Removal of the "List of Approved Backflow Prevention Assemblies" does not add any clarity.  Will the department now undertake the rigorous testing that is currently done by others, and how will those subject to the rules know what has been adopted?

            RESPONSE:  The department will not, itself, test backflow prevention assemblies, but will continue to rely on the List for guidance about acceptable equipment.  As stated in the Response to Comment No. 6, the change to the definition will have the added benefit of allowing the department to consider proposed assemblies or devices that are not on the List if they can be adequately justified.  A public water supplier must now contact the department to determine whether a particular backflow prevention assembly is approved.

 

            COMMENT NO. 15:  The provision in proposed ARM 17. 38.305(3) stating that backflow prevention assemblies and devices must be approved by the department implies that future rule changes will be necessary to adjust to changing industry standards.

            RESPONSE:  Proposed ARM 17.38.305(3) will allow the department to approve assemblies on the "List of Approved Backflow Prevention Assemblies" and will also allow the department to approve assemblies that are not on the List which have been tested by another organization and found to be appropriate for the system.  It is not anticipated that rule changes will be necessary each time the industry standard changes.

 

            COMMENT NO. 16:  Is the requirement in ARM 17.38.305 to eliminate cross-connections applicable to a public water supply system if the system does not have an approved voluntary cross-connection control program meeting the requirements of ARM 17.38.310 through 17.38.312?

            RESPONSE:  The requirements in ARM 17.38.305 apply to public water supply systems regardless of whether the systems have an approved voluntary cross-connection control program.  Approval by the department of a cross-connection control program provides the benefit of allowing the public water supply system to verify that its cross-connection control program is in compliance with all of the requirements of the cross-connection rules.

 

            COMMENT NO. 17:  Can a public water supplier adopt and operate a voluntary cross-connection control program without making application to department for review and approval?

            RESPONSE:  A public water supplier is required to address cross-connections under ARM 17.38.305 but is not required to submit its cross-connection control program to the department for review.  However, under the new amendments, the public water supplier must contact the department to determine whether a particular backflow prevention assembly is approved before it is installed.

 

 

 

 

 

 

 

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, May 29, 2012.