ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
REPEALING, RENUMBERING, AMENDING, REPEALING AND RECREATING, AND CREATING RULES
The statement of scope for this rule, 015-13, was approved by the Governor on May 17, 2013, published in Register No. 689, on June 26, 2013, and approved by the Natural Resources Board on June 26, 2013. The rule was approved by the Governor on November 18, 2015. The Wisconsin Natural Resources Board proposes an order to repeal NR 809.05 (4), 809.30 (2), 809.31 (1) (b), 809.31 (1) (c), 809.563 (4) (d), 809.565 (3) (b) 2, 809.67 (1) (title), 809.67 (2), 809.960 (2) (intro), and 809 Subchapter VIII; to renumber NR 809.04 (93), 809.203 (3) Table C, 809.30 (3), 809.30 (4), 809.30 (5), 809.30 (6) (intro), (a) and (c), 809.31 (1) (b) 1, 809.31 (1) (d), 809.325 (4)(a), 809.565 (3) (b) 3, 809.67 (1), 809.833 (3) (c) 9, 809.960 (a), (b) (c), and NR 809.960 (3) ; to amend NR 809.03, 809.04 (5), 6), (7), and 8, 809.04 (15), 809.04 (19), 809.04 (22), 809.04 (37), 809.04 (52), 809.04 (71), 809.06, 809.07 (1), 809.11 (2), 809.11 (3) (a) and (d), 809.11 (4) (a), 809.113 (1) TABLE A, 809.113 (2) Table B, 809.113 (4) Table C, 809.115 (1) (d) , 809.115 (2) (f) 2., 809.115 (3) (intro), (a), and (b), 809.117 (1) (f), 809.203 (1), 809.203(3)(a), 809.203 (4) (intro), 809.205 (2) (a), 809.205 (3) and (4) (a), 809.205 (4) (b), 809.205 (5), 809.207 (2), 809.243 (1) and (2), and (5) , 809.245 (2) (a) and (b), 809.245 (5), 809.245 (7) (b), 809.245 (9) (c), 809.247 (1) (c) and (e), 809.247 (4), 809.25 (1) (g), 809.31 (1) (title) and 809.31 (1) (a), 809.31 (1) (e), 809.31 (1) (f) and (g), 809.31 (2) (a) and (b)(intro),809.31 (2)(c), (d), and (e), 809.31 (2) (f) 1. and 2, 809.31 (2) (h), 809.31 (3) (b) 2, 3 and 809.31 (3) (c), 809.31 (4), (5), (6), and (6)(note), 809.311 (3) (b) 1, 809.311 (6) and (7), 809.312 (1), 809.323 (1) (a) and (b), 809.323 (1) (d) Table G, 809.323 (2) (title), (2) (a), and (b), 809.325 (1) (b), 809.325 (2) (b) 1., 809.325 (2) (d) and (e), 809.325 (3) (b) , 809.325 (3) (b) and (c), 809.327 (1) (a), and (c), 809.327 (3) (a) 2, 809.327 (4) (a) 3, 809.327 (6), 809.328 (1) (b) (intro), 809.329 (2) (c), (d), and (e) (intro), 809.33 (4), 809.334 (1), 809.334 (2), 809.335 (2), 809.336 (4) (b), 809.35 (4), 809.50 (4) Table K, 809.52 (1) Table N, 809.53 (1) (d) (1), 809.541 (4) (c), 809542 (2) (c) 3, 809. 544 (1) (a), 809.546 (intro), 809.546 (1) (a) 1, 809.546 (2) (a) 1, 809.546 (2) (a) 2. a, b, and c, 809.546 (2) (c) 1, 809.546 (2) (d), 809.547 (3), 809.547 (4) (d) 2, 809.548 (4), 809.55 (1) (c), 809.55 (1) 3, 809.55 (6) (a) and (6) (a) 1, 809.561 (4), 809.562 (3), 809.563 (1), 809.563 (2), 809.563 (4) (a), and (b), 809.563 (4) (e) and Table U, 809.563 (5) (title) and (intro), and (6) (intro), 809.565 (4) (a), 809.569 (1) (b) Table V, 809.569 (1) (b) 3, 809.569 (2) (c) 2, 809.60 (3) Table X, 809.60 (4) (b), 809.61 (1) (a), 809.61 (1) (c) Table Y, 809.61 (2) (a), 809.62 (1) (a), 809.62 (1) (c) (intro) and (c) 2 and (2), 809.63 (1), 809.63 (1) (d) 3 and (1) (e), 809.63 (4) (title), 809.65 (1) (a) and (b), 809.66 (1) (intro), 809.68 (1) (a) 3 and 809.68 (2), 809.70 (1) Table AA, 809.70 (2), 809.71 (1), (2), and 809.74 (1) (a), 809.80(7)(c)1., 809.83 (1) (b), 809.833 (3) (c) 4 and 809.833 (3) (c) (4) b, 809.833 (7) (f) 1, 809.833 (7) (f) 2. d., 809.837 (1) and (3), 809 Subchapter V, Appendix A, 809.952 (2) (b), 809.953 (1) (b) 1. and 2, 809.960 (1) (a) and (b), 809 Subchapter VII, Appendix A, and 809 Subchapter VII, Appendix B; to repeal and recreate NR 809.203 (4) Table D, 809.30 (1), 809.31 (2) (f) (intro), 809.311 (1) Table F, 809.334 (2) Table I, 809.563 (2) Table R, 809.563 (3) Table S, 809.833 (3) (c) 7, 809.835 (3) (intro), (a) and (b), and 809.951 (1) (b) 1.; to create NR 809.04 (2g) and (2r), 809.04 (24m), 809.04 (37m), (42m), (46m), (47g), and (47r), 809.04 (59m), 809.04 (71m), 809.04 (72m) and (74m), 809.04 (93), 809.10, 809.205 (4) (a) 1., 2., and 3, 809.30 (6), 809.31 (1) (ag) and (ar), 809.31 (1) (d), 809.31 (1) (eg) and (er), 809.31 (2) (b) 1., 2. and 3., 809.31 (2) (f) 3, 809.31 (2m), 809.31 (9) and (10), 809.312 (1m), 809.313 and 809.314, 809.561 (3) (c), 809.563 (6) (h), 809.565 (2) (c) 2m, 809.63 (2) (am), 809.80 (9m), 809.82 (8) and (9), 809.833 (2) (d), 809.833 (7) (g), (h), and (i), 809.835 (2m), and 809.953 (1) (b) 6, relating to safe drinking water
DG-15-13
Analysis Prepared by the Department of Natural Resources
1. Statutes interpreted:
2. Statutory authority:
3. Explanation of agency authority:
280.11 – The department shall, after a public hearing, prescribe, publish, and enforce minimum reasonable standards and rules and regulations for methods to be pursued in the obtaining of pure drinking water for human consumption and the establishing of all safeguards deemed necessary in protecting the public health against the hazards of polluted sources of impure water supplies intended for human consumption.
281.17(8) – The department may establish, administer, and maintain a safe drinking water program no less stringent than the requirements of the safe drinking water act, 42 USC 300f to 300j-26. 4. Related statutes or rules:
Chapter NR 809 – Safe Drinking Water, establishes minimum standards and procedures for the protection of the public health, safety and welfare in the obtaining of safe drinking water. 5. Plain language analysis:
The proposal was triggered by changes to the Total Coliform Rule (TCR) portion of the federal Safe Drinking Water Act on February 13, 2013. These changes are referred to as the Revised Total Coliform Rule (RTCR). The Department of Natural Resources (DNR) has primacy to administer the Safe Drinking Water Act (SDWA) in Wisconsin. To continue to maintain primacy, the Department must revise Chapter NR 809, Safe Drinking Water, to incorporate provisions that are as stringent as those promulgated by EPA. The RTCR increases public health protection against waterborne pathogens in public drinking water systems. These changes include:
• Eliminating the maximum contaminant level (MCL) for total coliforms;
• Requiring annual site visits for systems to remain on reduced coliform monitoring;
• Establishing start-up procedures for non-community public water systems that cease operations seasonally and depressurize their distribution system;
• Requiring an abbreviated system assessment (Level 1 Assessment) following a confirmed total coliform positive;
• Prescribing a rigorous system assessment (Level 2 Assessment) following an E. coli MCL exceedance or two consecutive total coliform triggers.
6. Summary and comparison with existing and proposed federal regulations.
The basic requirements of the TCR to routinely collect coliform samples at all public water systems, and collect follow-up samples when results are positive remain the same with the RTCR. The RTCR also retains the requirement for systems to boil water when E. coli is present.
The changes proposed in the RTCR include the following:
• The non-acute maximum contaminant level for total coliform is eliminated;
• Treatment technique requirements are added for total coliform;
• No public notice for total coliform is required anymore;
• There is a new public notice requirement for failure to conduct required assessments and corrective actions;
• Annual inspections/assessments are required for systems to remain on reduced monitoring;
• State approved start-up procedures are required for “seasonal systems.”
7. Comparison of similar rules in adjacent states:
ILLINOIS: Illinois will not allow reduced monitoring at community water systems. They will allow reduced monitoring at non-community systems, but they will increase the sanitary survey frequency at those systems from every 5 years to every 2 years. They will also perform Level 2 assessments in place of the less rigorous Level 1 assessments to avoid placing non-community systems on increased monthly monitoring following multiple Level 1 assessment triggers.
INDIANA: At this time, Indiana has not yet responded to inquiries about how they plan to implement the RTCR.
IOWA: Iowa will require seasonal system start-up procedures and issue treatment technique violations if they are not completed before system start-up. Iowa will require a clean coliform sample as part of this procedure. They will not allow reduced annual monitoring. They require monthly monitoring at schools and daycares. They will not change their current boil water advisory policies. Iowa is not planning on doing annual site visits as they are not allowing reduced monitoring. Level 2 assessments will be done by DNR inspectors and Level 1 assessments will be done by owners and operators.
MICHIGAN: Michigan will require seasonal system start-up procedures and issue treatment technique violations if they are not completed before system start-up. They are only allowing reduced monitoring frequencies at non-community groundwater systems serving up to 1,000 people. They will only issue a boil water order for E. coli or a system loss of pressure. Annual site visits will be required for all systems on reduced monitoring. They will conduct Level 2 assessments at community water systems and contract with local health departments to conduct Level 2 assessment at non-community water systems.
MINNESOTA: Minnesota will require seasonal system start-up procedures and issue treatment technique violations if they are not completed before system start-up. They are allowing reduced monitoring frequencies at all groundwater systems serving up to 1,000 people. They will only issue a boil water order for E. coli. Annual site visits will be required for all non-community systems on reduced monitoring, but not be required for community systems on reduced monitoring. They will conduct Level 2 assessments at community water systems and contract with counties to conduct Level 2 assessment at transient non-community water systems.
OHIO: Ohio will require a seasonal system start-up procedure with a requirement for a safe coliform sample before start-up. They will issue treatment technique violations for failure to complete this procedure. They will not allow reduced monitoring for any systems except some seasonal systems can remain on quarterly monitoring. The routine sample frequency for seasonal systems is monthly. Boil water orders will only be required for E. coli violations and water line breaks. They will not perform annual site visits for systems to remain on reduced monitoring. They will perform all level 2 assessments themselves and not contract out with counties or other technical service providers.
8. Summary of factual data and analytical methodologies:
The bulk of the rule changes are based on federal rule changes to the Total Coliform Rule. Under the 1989 TCR, each total coliform-positive sample is assayed for either fecal coliforms or E. coli. Fecal coliform bacteria are a subgroup of total coliforms that traditionally have been associated with fecal contamination. Since the promulgation of the 1989 TCR, more information and understanding of the suitability of fecal coliform and E. coli as indicators have become available. Study has shown that the fecal coliform assay is imprecise and too often captures bacteria that do not originate in the human or mammal gut. The provisions of the RTCR reflect the improved understanding of the value of total coliforms and E. coli as indicators. EPA has chosen to now use total coliform as an indicator that public water systems are maintaining effective barriers to contamination instead of using it as an indicator that pathogens may be present. EPA will now require formal assessments and corrective actions to mitigate total coliform contamination. This revised rule also eliminates fecal coliform as an indicator of fecal contamination, and relies instead solely on E. coli.
9. Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis:
Small businesses generally fall into the category of non-community public water systems. An analysis was performed using available data from the DNR’s Public Drinking Water Database. These data were used to predict monitoring costs, the possible number of Level 2 assessments, the number of systems that would have a start-up procedure requirement, and the estimated costs for boil water orders. The analysis concluded the following:
