KRC Questions Lower Standards For Review of Semipublic Water Treatment Systems Posted: July 8, 2010
July 8, 2010
Ms. Abigail Powell, Regulations Coordinator
Division of Water
200 Fair Oaks Lane
Frankfort, Kentucky 40601
Re: Proposed Amendment, 401 KAR 8:100
Design, construction and approval of facilities
Dear Ms. Powell:
These comments are submitted on behalf of the membership of the Kentucky Resources Council, a non-profit environmental advocacy organization providing legal and technical assistance without charge to low-income Kentuckians and to community organizations and local communities on a range of environmental and energy issues. KRC members include individuals who consume drinking water supplied by semipublic water systems that are under the jurisdiction of the Kentucky Division of Water.
KRC has reviewed the proposed amendment to 401 KAR 8:100, and is extremely concerned that the regulation carries forward a distinction between the level of Cabinet scrutiny of siting and engineering design for public and semipublic facilities that is underprotective of those consumers of water supplied by semipublic treatment facilities, and may in the long run cost the owner / operator of the proposed semipublic system more than had a preliminary engineering report been developed.
The regulation provides at Section 1(1)(b) that a preliminary engineering report prepared by a professional engineer is not required for semipublic treatment facilities, though such a report is required for public systems before any financial commitment towards the construction or expansion of a new public water system is made.
By exempting semipublic water treatment systems from this requirement, the Cabinet relinquishes any advance review of a proposed new or expended semipublic system, and has no idea whether:
- the siting requirements of 40 CFR 141.5 will be complied with by the system;
- what is the quality and quantity of the proposed water source, including certified test results that any source water contaminants are within acceptable ranges; and
- what type of facility is proposed and how it will be staffed.
Additionally, the requirement that the plans and specifications of the proposed treatment plant be consistent with the incorporated guidance documents in Section 9 of the regulation and that this consistency be demonstrated in the preliminary engineering report, is eliminated, though the substantive obligation that the final plans be consistent still attaches to semipublic systems under Section 2(1).
A Construction Application is required for semi-public facilities under proposed Section 2(1)(c)2d, yet the regulation does not require the plans and specifications for the system to be prepared or reviewed by a professional engineer. Subsection (d) limits the Cabinet?s review of the plans and specifications to sanitary features of design and other features of public health significance and prohibits review of the structural, mechanical and electrical design.
Taken as a whole, at the time that the Cabinet receives the plans and specifications for a new or expanded semipublic system intended to supply potable water to others, the proposed owner / operator of the facility may have: (a) proposed to site the facility in a location inconsistent with 40 CFR 141.5; (b) made financial commitments towards the construction of a facility that proposes to use a water source with levels of contaminants in excess of standards acceptable for regulated contaminants under 401 KAR Chapter 8; and (c) chosen a facility type or design that is structurally, electrically or mechanically unsound. It would seem that the desire to save the owner of a facility the cost of engaging a professional engineer in the siting and design of a semipublic water treatment system, could in fact produce far greater costs and delay in securing approval of such a system, and could result in the selection of source water that is potentially significantly contaminated or of a sustained yield insufficient to meet the system needs.
KRC asks that the Division reconsider the exemption of semipublic water treatment systems from the requirements to develop a preliminary engineering report, to demonstrate that the raw water source is within the appropriate contaminant levels, and to have the new or expended facility be designed or approved by a professional engineer as meeting the standards of 40 CFR 141.5 and of Section 9 of the proposed amended rule. To do less creates a distinct and heightened possibility of the delivery of substandard water to consumers of potable water from semipublic water treatment systems.
Finally, as a matter of law, KRC questions the legal and technical basis for differentiating between public and semipublic water systems in setting the standards for submittal of applications and in the level of review and documentation required of public v. semipublic systems.
KRS 224.10-110, captioned Enforcement of rules and regulations adopted by secretary -- Policies, plans, programs and identified by the proposed amended regulation as a statutory basis for the regulation, provides in full that:
The Environmental and Public Protection Cabinet shall enforce the rules and regulations adopted by the secretary of the Environmental and Public Protection Cabinet for the regulation and control of the matters set out below and shall formulate, promote, establish and execute policies, plans and programs relating to natural resources and environmental protection, including but not limited to the following matters:
(1) The proper disposal of waste;
(2) The purification of water for public and semipublic use;
(3) The proper construction and operation of public water distribution systems and water treatment systems in public water purification plants and swimming pools;
(4) The review, approval or disapproval of plans for construction, modification or extension of water purification and distribution systems and water treatment systems in swimming pools; and
(5) The certification of water and sewage plant operators."
There is nothing in the statute that authorizes the agency to lower the bar for review of systems for purification of water for semipublic use, since the statute directs the adoption and enforcement of regulations to assure proper purification of water for public and semipublic use. (Emphasis added). The Cabinet has recognized in the statement of necessity, function, and conformity that review of the design plan requirements for water treatment plants providing potable water for both semipublic and public use is necessary in order to satisfy KRS 224.10-110. Having done so, KRC requests that the Cabinet justify as a matter of law and of fact the decision to allow such plans and specifications for systems to purify water for semipublic use not to be developed by a professional engineer, and to forego advance review for compliance with siting and source water quality and quantity requirements for system serving fewer members of the public.
Anticipating that the agency might argue that KRS 224.10-110(3) limits review of the construction and operation of water distribution and water treatment systems to those for the public as opposed to semipublic, such a construction of the statute as a whole would make the two subsections ((2) and (3)) inconsistent, and would deprive the agency of any authority to review construction and operation of semipublic water treatment and distribution systems. Rather, the appropriate construction of the two subsections, which harmonizes them, is that the reference in (3) to public water distribution systems and water treatment systems in public water purification plants is intended to distinguish between public and private systems rather than public versus semipublic. KRC assumes the Cabinet would concur, as is evidenced by the requirement for cabinet approval of the final plans and specifications of semipublic water treatment systems, that some degree of advanced review of semipublic systems is essential to fulfilling the mandate in KRS 224.10-110(2). The question remains on what basis the Cabinet has and can justify lowering the level of review and the quality of submitted information for water treatment systems purifying water for potable use simply because fewer consumers drink the treated water.
Thank you in advance for your consideration of these comments.