WSR 18-03-175

PROPOSED RULES

[Filed January 24, 2018, 7:37 a.m.]

Preproposal statement of inquiry was filed as WSR 06-23-077.

Title of Rule and Other Identifying Information: Chapter 246-390 WAC, Drinking water laboratory certification and data reporting. The purpose is to (1) repeal duplicative certification requirements in this chapter which are now covered in the department of ecology's (ecology) accreditation of environmental laboratories, chapter 173-50 WAC; (2) add reporting requirements for labs to send analytical data results to public water systems and the department of health (department); and (3) adopt into the chapter (by reference), lab guidance and test panel templates for submitting written and electronic analytical data results.

Hearing Location(s): On March 14, 2018, at 1:30 p.m., at the Department of Health, Point Plaza East, Room 152/153, 310 Israel Road S.E., Tumwater, WA 98501, https://www.doh.wa.gov/AboutUs/BusinessHoursandLocations/TumwaterPointPlazaEast.

Date of Intended Adoption: March 14, 2018.

Submit Written Comments to: Theresa Phillips, Rules Project Manager, Department of Health, P.O. Box 47820, Olympia, WA 98504-7820, email https://fortress.wa.gov/doh/policyreview, https://www.doh.wa.gov/CommunityandEnvironment/DrinkingWater/RegulationandCompliance/RuleMaking, by February 27, 2018.

Assistance for Persons with Disabilities: Contact Melanie Hisaw, phone 360-236-4104, TTY 360-833-6388 or 711, email melanie.hisaw@sboh.wa.gov, by February 28, 2018.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposal makes necessary amendments to chapter 246-390 WAC to remove certification requirements that are under ecology's rule, chapter 173-50 WAC, and to add reporting requirements to assure consistent and reliable reporting of analytical data results from labs to public water systems and the department. The proposal will enable public water systems and the department to respond quickly to drinking water quality problems and protect public health when contaminants are detected.

Reasons Supporting Proposal: The department and ecology established a cooperative program for certifying labs. Ecology carries out the evaluation and certification of drinking water labs, while the department maintains an oversight role under a primacy agreement with the United States Environmental Protection Agency (EPA). Ecology's rules do not contain provisions specifying reporting requirements. This proposal is necessary to assure consistent and reliable reporting of data and to improve the department's ability to assure public health protection.

Statutory Authority for Adoption: RCW 43.20.050 and 70.119A.080.

Statute Being Implemented: RCW 43.20.050 and 70.119A.080.

Name of Proponent: Washington state board of health, governmental.

Name of Agency Personnel Responsible for Drafting: Theresa Phillips, 111 Israel Road S.E., Tumwater, WA 98501, 360-236-3147; Implementation and Enforcement: Derrick Dennis, 243 Israel Road S.E., Tumwater, WA 98501, 360-236-3122.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Theresa Phillips, Rules Project Manager, Department of Health, P.O. Box 47820, Olympia, WA 98504-7820, phone 360-236-3147, TTY 360-833-6388 or 711, email theresa.phillips@doh.wa.gov, https://www.doh.wa.gov/CommunityandEnvironment/DrinkingWater/RegulationandCompliance/RuleMaking.

Is exempt under RCW 34.05.328.

Explanation of exemptions: WAC 246-390-001 and 246-390-040 are exempt under RCW 34.05.310 (4)(d) because the proposed rule clarifies language of the rule without changing its effect. WAC 246-390-050, 246-390-060 and 246-390-070 are exempt under RCW 34.05.310 (4)(e) because the proposed rule repeals these sections which are under the authority of ecology. WAC 246-390-100 is exempt because the proposed rule is procedural. WAC 246-390-990 is exempt under RCW 34.05.310 (4)(f) because the fees no longer apply.

The proposed rule does impose more-than-minor costs on businesses. In November 2002, the department transferred implementation of the drinking water lab certification program to ecology through a memorandum of understanding (MOU). Under the MOU, ecology carries out the evaluation and certification of drinking water labs, while the department maintains an oversight role per our primacy agreement with EPA.

As a result of the MOU with ecology to certify environmental labs for drinking water analytes, ecology adopted rules for certifying labs under chapter 173-50 WAC, Accreditation of environmental laboratories, to include drinking water analysis. However, ecology's rule does not contain provisions specifying reporting requirements for drinking water sample results to the department. Amending the state board of health's (board) rule to include reporting requirements is [are] necessary to assure consistent and reliable reporting of data to enable water systems to respond quickly to water quality problems, and to improve the department's ability to assure public health protection. The board initiated rule making to be consistent with the functional changes brought by the transfer of the certification program to ecology, and to add reporting requirements to chapter 246-390 WAC, Drinking water certification rules.

The proposed rule making will:

(1) Remove duplicative certification requirements in ecology's rule with the board's rule to clarify the roles and responsibilities of each agency;

(2) Establish reporting requirements to ensure accurate, consistent, and timely reporting of drinking water sample analysis results; and

(3) Rename the rule chapter to better reflect its purpose "drinking water laboratory certification and data reporting."

The proposed rule affects labs that are certified to analyze drinking water samples. The proposed revisions to this chapter adopt specific requirements from the Group A rule and federal requirements. The Manual for the Certification of Laboratories Analyzing Drinking Water, Fifth Edition, EPA 815-R-05-004, January 2005, specifically applies to how labs obtain certification, how they maintain certification, and how they may lose certification. 40 C.F.R. Parts 141 and 143 lists EPA-approved drinking water analytical methods for individual analytes as well as the achievable minimum detection limits of each method, known in this chapter as "state detection reporting limits."

Many of the labs have a database, Laboratory Information Management Systems (LIMS), which they use to manage environmental samples from sample receipt, analysis, and sample reporting and billing. Some of the proposed requirements will require labs to reprogram some of the features of their LIMS. This may need the assistance of IT support from the LIMS vendor to program their systems and incur additional costs (analyzed below) for beta testing the system changes.

The following North American Industry Classification System (NAICS) codes identify which businesses are required to comply with the proposed rules and what the minor cost thresholds are.

NAICS Code 541380, business description "testing laboratories," number of businesses in Washington "188," minor cost threshold equals one percent of average annual payroll "$10,022.18," from 2015 NAICS Data, United States Census Bureau.

NAICS Code 541380, business description "testing laboratories," number of businesses in Washington "177," minor cost threshold equals .3 percent of average annual receipts "$5,990.46," from 2012 United States Census, 188,417,000, 177.353,437

To analyze the probable costs of compliance and to gauge the potential impact of the proposed rule, the department surveyed all one hundred twenty-five labs that are currently licensed. The department received twenty-seven responses to the survey. Fourteen labs indicated that they would have no costs to comply with the proposed rule. Labs provided cost estimates for three categories of costs: One-time costs, annual costs, and unit costs (which is the estimated cost to complete an activity once). Neither the labs nor the department are capable of estimating the frequency or total amount of "unit cost" events, thus these costs are identified but indeterminate in the cumulative sense. 

Thirteen labs indicated that they would have a cost to comply with the proposed rule. The total cost of the rule for these respondents was $432,962 ($128,343 for one-time costs and $304,620 for annual costs). Lab costs ranged from $97 to $289,105, and had an average cost of $16,081 for all twenty-seven respondents. After removing one outlier respondent (an estimated cost of $289,105), the average cost of the proposed rule was $5,571 per lab (for the remaining twenty-six respondents). These estimates do not include unit costs, which ranged from $5 to $300 for the eight labs that reported unit costs.

For the respondents that indicated a cost to comply with the proposed rule, each indicated that they would incur costs in at least one, or more typically several, of the cost categories listed above (i.e., equipment, supplies, labor, professional services and administrative costs).

In our original draft rule that we sent out surveys for, we had stated if a lab could analyze organic chemical samples and accurately report results lower than our state detection reporting levels (SDRL) that we wanted the labs to report to a quantified number to the department and not just a nondetect at the SDRL. One lab indicated they would incur a loss of annual revenue of $80,000, due to public water system purveyors "shopping around" for a lab that would only report down to the department's SDRL. Essentially, that public water system would receive more nondetects for analytes if the lab only reported a quantified number down to the SDRL. Since then we have updated the proposed rule to require all labs to report to the SDRL only and any detection below the SDRL would be reported to the department as a nondetect. Department staff spoke with this lab after the revised survey had been sent out to labs and this lab stated that their costs would not change.

Based on the results of the survey, the department determined that the proposed rule will impose more than minor costs on lab testing businesses. The minor cost thresholds are $10,022.18 for the one percent average annual payroll threshold and $5,990.46 for the .03 percent average annual receipts (sales) threshold. Several businesses indicated that they would incur costs that exceed these thresholds.

A majority of lab testing businesses are classified as small businesses (fifty or less employees). Based on the results of the survey, several of the small businesses reported the highest cost estimates, greater than the three "large" labs. Using the cost per employee comparison method, the department determined that the rule will have a disproportionate impact on small businesses compared to the ten percent of businesses that are the largest businesses required to comply with the proposed rule.

The department consider[ed] each of the methods in RCW 19.85.030 that could possibly reduce the impact of the proposed rule on small businesses.

When considering alternative versions of the proposed rule, the department was aware and concerned with the potential impact of the rule to the lab industry, particularly the smaller labs. The department attempted to propose requirements that are the least "impacting" that would accomplish the intent (to ensure labs are accurately, effectively and efficiently processing (testing and reporting results)) of water quality data samples. Similarly, the department identified the minimum level of recordkeeping and reporting requirements needed for the labs to report results of samples to the water systems, other labs, if applicable, and the department. The department's concern with the potential impact of the rules resulted in the department revising the proposed rule (see alternatives considered in section 6 of the significant analysis for more details). Labs indicated that these changes ultimately lowered the impact of the proposed rule. The other prescribed methods to reduce the impact are not applicable to the proposed rule.

The department has coordinated with EPA and ecology as well as extensive work with stakeholder groups, including small businesses, during the development of this proposed rule. Throughout the rule-making process, the department has held several workshops to discuss the draft changes and get feedback from stakeholders (both labs and public water systems) at conferences and meetings at various locations across Washington. The department held four separate informal comment periods to solicit feedback from certified labs and public water systems. During the last informal comment period, the department held workshops in Yakima, Kent and Tumwater to present the draft rule, guidance and test panel templates to get feedback from drinking water labs and public water systems. The workshops were well attended and stakeholders provided valuable feedback which resulted in improvement to the proposed rule. The department also made the information available on the web and sent emails to a broad audience of interested parties.  

To obtain cost estimates for the proposed rule changes, the department surveyed all certified labs (approximately one hundred twenty-five labs) that analyze drinking water samples for public water systems. For more details on the cost survey process see Section 4 of the significant analysis.

In addition to the stakeholder work, the department has held regular meetings throughout this rule-making process with ecology's lab certification program staff, EPA Region 10 staff, and the department appointed principal labs to solicit feedback on the proposed rule.

Based on the survey results, respondents did not indicate that they would have to hire (create) or fire (terminate) staff as a result of the proposed rule.

The public may obtain a copy of the small business economic impact statement or the detailed cost calculations by contacting Theresa Phillips, Rules Project Manager, Department of Health, P.O. Box 47820, Olympia, WA 98504-7820, phone 360-236-3147, TTY 360-833-6388 or 711, email theresa.phillips@doh.wa.gov, https://www.doh.wa.gov/CommunityandEnvironment/DrinkingWater/RegulationandCompliance/RuleMaking.

January 23, 2018

Michelle A. Davis

Executive Director

Chapter  246-390  WAC

Analyte Name	Analyte Number	Units	SDRL
1,1 Dichloroethane	0058	µg/L	0.5
1,1 Dichloroethylene	0046	µg/L	0.5
1,1 Dichloropropene	0062	µg/L	0.5
1,1,1 Trichloroethane	0047	µg/L	0.5
1,1,1,2 Tetrachloroethane	0072	µg/L	0.5
1,1,2 Trichloroethane	0067	µg/L	0.5
1,1,2,2 Tetrachloroethane	0080	µg/L	0.5
1,2 Dichlorobenzene	0084	µg/L	0.5
1,2 Dichloroethane	0050	µg/L	0.5
1,2 Dichloropropane	0063	µg/L	0.5
1,2,3 Trichlorobenzene	0098	µg/L	0.5
1,2,3 Trichloropropane	0079	µg/L	0.5
1,2,4 Trichlorobenzene	0095	µg/L	0.5
1,2,4 Trimethylbenzene	0091	µg/L	0.5
1,3 Dichloropropane	0070	µg/L	0.5
1,3 Dichloropropene	0154	µg/L	0.5
1,3,5 Trimethylbenzene	0089	µg/L	0.5
1,4 Dichlorobenzene	0052	µg/L	0.5
2,2 Dichloropropane	0059	µg/L	0.5
2,3,7,8 TCDD (dioxin)	0149	ng/L	0.005
2,4 D	0037	µg/L	0.1
2,4 DB	0135	µg/L	1
2,4,5 T	0136	µg/L	0.4
2,4,5 TP (Silvex)	0038	µg/L	0.2
3,5 Dichlorbenzoic Acid	0226	µg/L	0.5
4,4 DDD	0232	µg/L	0.1
4,4 DDE	0233	µg/L	0.1
4,4 DDT	0234	µg/L	0.1
Acenaphthylene	0244	µg/L	0.2
Acifluorfen	0223	µg/L	2
Alachlor	0117	µg/L	0.2
Aldicarb	0142	µg/L	0.5
Aldicarb Sulfone	0143	µg/L	0.8
Aldicarb Sulfoxide	0144	µg/L	0.5
Aldrin	0118	µg/L	0.1
Anthracene	0246	µg/L	0.2
Arochlor 1016	0180	µg/L	0.08
Arochlor 1221	0173	µg/L	20
Arochlor 1232	0174	µg/L	0.5
Arochlor 1242	0175	µg/L	0.3
Arochlor 1248	0176	µg/L	0.1
Arochlor 1254	0177	µg/L	0.1
Arochlor 1260	0178	µg/L	0.2
Atrazine	0119	µg/L	0.1
Bentazon	0220	µg/L	0.5
Benzene	0049	µg/L	0.5
Benzo (a) anthracene	0247	µg/L	0.2
Benzo (a) Pyrene	0120	µg/L	0.02
Benzo (b) fluoroanthene	0248	µg/L	0.2
Benzo (k) fluoranthene	0250	µg/L	0.2
Benzyl Butyl Phthalate	0258	µg/L	1.0
Bromacil	0179	µg/L	0.1
Bromobenzene	0078	µg/L	0.5
Bromochloromethane	0086	µg/L	0.5
Bromodichloromethane	0028	µg/L	0.5
Bromoform	0030	µg/L	0.5
Bromomethane	0054	µg/L	0.5
Butachlor	0121	µg/L	0.1
Carbaryl	0145	µg/L	2
Carbofuran	0146	µg/L	0.9
Carbon Tetrachloride	0048	µg/L	0.5
Chlordane (total)	0122	µg/L	0.2
Chlorobenzene	0071	µg/L	0.5
Chloroethane	0055	µg/L	0.5
Chloroform	0027	µg/L	0.5
Chloromethane	0053	µg/L	0.5
Chrysene	0251	µg/L	0.2
Cis- 1,2 Dichloroethylene	0060	µg/L	0.5
Cis- 1,3 Dichloropropene	0065	µg/L	0.5
Dalapon	0137	µg/L	1
DBCP	0103	µg/L	0.02
DBCP (screening)	0428	µg/L	0.5
DCPA Acid Metabolites	0225	µg/L	0.1
Di (2-Ethylhexyl) Adipate	0124	µg/L	0.6
Di (2-Ethylhexyl) Phthalate	0125	µg/L	0.6
Dibromoacetic Acid	0415	µg/L	1
Dibromochloromethane	0029	µg/L	0.5
Dibromomethane	0064	µg/L	0.5
Dicamba	0138	µg/L	0.2
Dichloroacetic Acid	0412	µg/L	1
Dichlorodifluoromethane	0104	µg/L	0.5
Dichlorprop	0221	µg/L	0.5
Dieldrin	0123	µg/L	0.1
Diethyl Phthalate	0260	µg/L	1.0
Dimethyl Phthalate	0261	µg/L	1.0
Di-n-butyl Phthalate	0259	µg/L	1.0
Dinoseb	0139	µg/L	0.2
Diquat	0150	µg/L	0.4
EDB	0102	µg/L	0.01
EDB (screening)	0427	µg/L	0.5
Endothal	0151	µg/L	9
Endrin	0033	µg/L	0.01
EPTC	0208	µg/L	0.1
Ethylbenzene	0073	µg/L	0.5
Fluoranthene	0253	µg/L	0.2
Fluorene	0254	µg/L	0.2
Glyphosate	0152	µg/L	6
HAA(5)	0416	µg/L	*
Heptachlor	0126	µg/L	0.04
Heptachlor Epoxide	0127	µg/L	0.02
Hexachlorobenzene	0128	µg/L	0.1
Hexachlorobutadiene	0097	µg/L	0.5
Hexachlorocyclo Pentadiene	0129	µg/L	0.1
Isopropylbenzene	0087	µg/L	0.5
Lindane (bhc - gamma)	0034	µg/L	0.02
M- dichlorobenzene	0083	µg/L	0.5
M/P Xylenes (MCL for total)	0074	µg/L	0.5
Methomyl	0147	µg/L	4
Methoxychlor	0035	µg/L	0.1
Methylene Chloride (Dichloromethane)	0056	µg/L	0.5
Metolachlor	0130	µg/L	0.1
Metribuzin	0131	µg/L	0.1
Molinate	0218	µg/L	0.1
Monobromoacetic Acid	0414	µg/L	1
Monochloroacetic Acid	0411	µg/L	2
Naphthalene	0096	µg/L	0.5
N-Butylbenzene	0094	µg/L	0.5
N-Propylbenzene	0088	µg/L	0.5
O- Chlorotoluene	0081	µg/L	0.5
O- Xylene (MCL for total)	0075	µg/L	0.5
Oxamyl	0148	µg/L	2
P- Chlorotoluene	0082	µg/L	0.5
Paraquat	0400	µg/L	0.8
PCB (as Decachlorobiphenyl)	0401	µg/L	0.1
Pentachlorophenol	0134	µg/L	0.04
Phenanthrene	0256	µg/L	0.2
Picloram	0140	µg/L	0.1
P-Isopropyltoluene	0093	µg/L	0.5
Propachlor	0132	µg/L	0.1
Pyrene	0257	µg/L	0.2
Sec- Butylbenzene	0092	µg/L	0.5
Simazine	0133	µg/L	0.07
Styrene	0076	µg/L	0.5
Terbacil	0190	µg/L	0.1
Tert- Butylbenzene	0090	µg/L	0.5
Tetrachloroethylene	0068	µg/L	0.5
Toluene	0066	µg/L	0.5
Total organic carbon	0421	mg/L	0.7
Total Trihalomethane	0031	µg/L	*
Total Xylenes	0160	µg/L	0.5
Toxaphene	0036	µg/L	1
Trans- 1,2 Dichloroethylene	0057	µg/L	0.5
Trans- 1,3 Dichloropropene	0069	µg/L	0.5
Trichloroacetic Acid	0413	µg/L	1
Trichloroethylene	0051	µg/L	0.5
Trichlorofluoromethane	0085	µg/L	0.5
Trifluralin	0243	µg/L	0.1
Vinyl Chloride	0045	µg/L	0.5

Analyte Name	Analyte Number	Units	SDRL
Alkalinity-Lab	0403	mg/L	5
Antimony	0112	mg/L	0.003
Arsenic	0004	mg/L	0.001
Asbestos	0115	MFL	0.20
Barium	0005	mg/L	0.1
Beryllium	0110	mg/L	0.0003
Bromate	0419	mg/L	0.005/0.001*
Cadmium	0006	mg/L	0.001
Chloride	0021	mg/L	20
Chlorite	0418	mg/L	0.02
Chromium	0007	mg/L	0.007
Color	0018	CU	15
Conductivity	0016	µmhos/cm	70
Copper	0023	mg/L	0.02
Cyanide	0116	mg/L	0.05
Fluoride	0019	mg/L	0.2
Hardness	0015	mg/L	10
Iron	0008	mg/L	0.1
Lead	0009	mg/L	0.001
Manganese	0010	mg/L	0.01
Mercury	0011	mg/L	0.0002
Nickel	0111	mg/L	0.005
Nitrate-n	0020	mg/L	0.5
Nitrite-n	0114	mg/L	0.1
Selenium	0012	mg/L	0.002
Silver	0013	mg/L	0.1
Sodium	0014	mg/L	5
Sulfate	0022	mg/L	50
TDS-total dissolved solids	0026	mg/L	100
Thallium	0113	mg/L	0.001
Total nitrate/nitrite	0161	mg/L	0.5
Turbidity	0017	NTU	0.1
Zinc	0024	mg/L	0.2

Analyte Name	Analyte Number	Units	SDRL
Cesium 134	0107	pCi/L	10.0
Gross Alpha	0165	pCi/L	3.0
Gross Alpha (Minus Uranium)	0041	pCi/L	*
Gross Beta	0042	pCi/L	4.0
Iodine 131	0108	pCi/L	1.0
Radium 226	0039	pCi/L	1.0
Radium 226 + 228	0040	pCi/L	*
Radium 228	0166	pCi/L	1.0
Radon	0109	pCi/L	*
Strontium 90	0044	pCi/L	2.0
Tritium	0043	pCi/L	1000
Uranium	0105	µg/L	1.0

Analyte Name	Analyte Number	Units
Total Coliform (numerical)	0001	CFU/100mL
Total Coliform (numerical)	0001	MPN/100mL
Total Coliform (absence/presence)	0001	N/A
Fecal Coliform (numerical)	0002	CFU/100mL
Fecal Coliform (numerical)	0002	MPN/100mL
Fecal Coliform (absence/presence)	0002	N/A
E. coli (numerical)	0003	CFU/100mL
E. coli (numerical)	0003	MPN/100mL
E. coli (absence/presence)	0003	N/A
Heterotrophic Plate Count (numerical)	0101	CFU/1mL

The following sections of the Washington Administrative Code are repealed: