Original Notice.

     Preproposal statement of inquiry was filed as WSR 04-13-051.

     Title of Rule and Other Identifying Information: Water works operator certification, chapter 246-292 WAC, this rule establishes protection of public health by setting minimum requirements and standards for public water system operation and certification of operators in responsible charge of public water systems.

     Hearing Location(s): Department of Health, Office of Drinking Water, 7171 Cleanwater Lane, Building 3 Conference Room, Tumwater, WA 98504-7822, on January 25, 2005, at 10:00 a.m.

     Date of Intended Adoption: February 11, 2005.

     Submit Written Comments to: Theresa Phillips, P.O. Box 47822, Olympia, WA 98504-7822, fax (360) 236-2253, by January 25, 2005. Comment on line at http://www3.doh.wa.gov/policyreview/.

     Assistance for Persons with Disabilities: Contact Theresa Phillips by December 29, 2004, TTY (800) 833-6388 or (360) 236-4028.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the proposed rules is to provide better public health protection to consumers of public water systems. The revision improves a certified operator's ability to comply with minimum requirements for certification, and ensures continuing education requirements are relevant to the operation of a water system. The revision establishes a definition for gross negligence and revises the grandparenting requirement for consistency. The revision also enables the department to take immediate enforcement action against certified operators for acts of gross negligence. The proposed rule revision involves amendments to WAC 246-292-010 Definitions, 246-292-085 Grandparenting, 246-292-090 Renewal of certificates, and 246-292-100 Revocation and suspension, and creates a new WAC 246-292-031 Certified operator duties.

     Reasons Supporting Proposal: This proposed rule is consistent with the intent of the statute by setting standards for the operation of public water systems. These changes will increase public health protection to consumers of public water systems by ensuring certified operators are better able to comply with the regulations. The changes also clarify the department's authority to take necessary enforcement action against certified operators to protect public health.

     Statutory Authority for Adoption: Chapter 70.119 RCW.

     Statute Being Implemented: Chapter 70.119 RCW.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Washington State Department of Health, Division of Environmental Health, Office of Drinking Water, governmental.

     Name of Agency Personnel Responsible for Drafting: Sean Orr, 7171 Cleanwater Lane, Building 3, P.O. Box 47822, Olympia, WA 98504-7822, (360) 236-3153; Implementation and Enforcement: Richard Sarver, 7171 Cleanwater Lane, Building 3, P.O. Box 47822, Olympia, WA 98504-7822, (360) 236-3093.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. Under RCW 19.85.030 an agency shall prepare a small business economic impact statement whenever a regulation imposes more than minor costs. The current proposed rule does not impose more than minor costs on small businesses.

     A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Theresa Phillips, 7171 Cleanwater Lane, Building 3, P.O. Box 47822, Olympia, WA 98504-7822, phone (360) 236-3147, fax (360) 236-2253, e-mail Theresa.Phillips@doh.wa.gov.

December 14, 2004

Mary C. Selecky

Secretary

OTS-7388.7

AMENDATORY SECTION(Amending WSR 01-02-070, filed 12/29/00, effective 1/29/01)

WAC 246-292-010   Definitions.   Abbreviations and acronyms:

     BAT - backflow assembly tester;

     BTO - basic treatment operator;

     CCS - cross connection control specialist;

     GWI - ground water under the direct influence of surface water;

     NTNC - nontransient noncommunity;

     OIT - operator-in-training;

     SMA - satellite management agency;

     TNC - transient noncommunity;

     WAC - Washington Administrative Code;

     WDM - water distribution manager;

     WDS - water distribution specialist;

     WTPO - water treatment plant operator;

     "Available" means based on system size, complexity, and source water quality, a certified operator must be on-site or able to be contacted as needed to initiate the appropriate action in a timely manner.

     "Certificate" means a certificate of competency issued by the department stating that the operator has met the requirements for the specified operator classification of the certification program.

     "Certified operator" means a person who has met the applicable requirements of this chapter and holds a valid certificate.

     "Complex filtration technology" means conventional, direct, in-line or diatomaceous earth filtration.

     "Community water system" means any Group A water system providing service to fifteen or more service connections used by year-round residents for one hundred eighty or more days within a calendar year, regardless of the number of people, or regularly serving twenty-five year-round (i.e., more than one hundred eighty days per year) residents. Examples of a community water system might include a municipality, subdivision, mobile home park, apartment complex, college with dormitories, nursing home, or prison.

     "Continuing education unit (CEU)" means a nationally recognized unit of measurement similar to college credits. One CEU is awarded for every ten contact hours of participation in an organized continuing education experience under responsible sponsorship, capable direction and qualified instruction. Forty-five relevant CEUs equals forty-five relevant college quarter credits or thirty relevant college semester credits as determined by the department.

     "Contract operator" means a person in charge of the daily operational activities of three or more public water systems.

     "Cross connection control program" means the administrative and technical procedures the owner implements to protect the public water system from contamination via cross-connections as required in WAC 246-290-490.

     "Department" means the Washington state department of health, through the secretary of health or the secretary's designee.

     "Distribution system" means all piping components of a public water system that serves to convey water from transmission mains linked to source, storage and treatment facilities to the consumer excluding individual services.

     "Grandparenting" means the exemption for the existing operator in responsible charge from meeting the initial education, experience and examination requirements for the class of certification the system has been assigned.

     "Gross negligence" means an act or omission performed or not performed in reckless disregard of a legal duty, or without even slight care. In considering whether an act or omission constitutes gross negligence, the department shall consider all relevant factors including, but not limited to:

     (1) The standard of care commonly exercised by operators;

     (2) Whether the legal duty was known or should have been known to the alleged violator; and

     (3) The degree to which the alleged violation endangered public health.

     "Ground water under the direct influence of surface water (GWI)" means any water beneath the surface of the ground with:

     Significant occurrence of insects or other macroorganisms, algae, or large-diameter pathogens such as Giardia lamblia; or

     Significant and relatively rapid shifts in water characteristics such as turbidity, temperature, conductivity, or pH closely correlating to climatological or surface water condition.

     "Group A water system" means a public water system providing service such that it meets the definition of a public water system provided in the 1996 amendments to the federal Safe Drinking Water Act (Public Law 104-182, Section 101, subsection b). Group A water systems are further defined as community and noncommunity water systems (see other definitions).

     "Group B water system" means a public water system with less than fifteen residential connections and serving:

     An average of less than twenty-five people per day for sixty or more days within a calendar year; or

     Any number of people for less than sixty days within a calendar year.

     "Nationally recognized association of certification authorities" means an organization that:

     • Serves as an information center for certification activities;

     • Recommends minimum standards and guidelines for classification of potable water treatment plants, water distribution systems, wastewater facilities and certification of operators;

     • Facilitates reciprocity between state programs; and

     • Assists authorities in establishing new and updating existing certification programs.

     "Noncommunity water system" means a Group A water system that is not a community water system. Noncommunity water systems are further defined as nontransient noncommunity (NTNC) and transient noncommunity (TNC).

     "Nontransient noncommunity water system (NTNC)" means a Group A water system that provides service to twenty-five or more of the same nonresidential people for one hundred eighty or more days within a calendar year. Examples of a NTNC water system include a school or day care center, or a business, factory, motel or restaurant with twenty-five or more employees on-site.

     "Owner" means any agency, subdivision of the state, municipal corporation, firm, company, mutual or cooperative association, institution, partnership, or person or any other entity that holds as property, a public water system.

     "Operating experience" means the routine on-site performance of duties in a water purification plant or distribution system. Those duties affect plant or system performance and/or water quality.

     "Operating shift" means that period of time during which operator decisions are made and actions are taken that will directly impact water quality and/or quantity of drinking water.

     "Professional growth reporting period" means a designated time period of not less than three years, in which a certified operator shall demonstrate professional growth.

     "Public water system" means any system providing water for human consumption through pipes or other constructed conveyances, excluding a system serving only one single-family residence and a system with four or fewer connections all of which serve residences on the same farm. The term includes:

     • Collection, treatment, storage, and/or distribution facilities under control of the owner and used primarily in connection with such systems; and

     • Collection or pretreatment storage facilities not under control of the owner, but primarily in connection with such system.

     "Purification plant" means that portion of a public water system that treats or improves the physical, chemical or bacteriological quality of the system's water to bring the water into compliance with state board of health standards. Unit processes installed to perform water filtration, ion exchange, electrodialysis, reverse osmosis, or iron and manganese removal shall be included within the scope of the term purification plant. Unit processes installed to allow in-line fluoridation, in-line chlorination, or chemical addition to inhibit corrosion are not included within the scope of the term purification plant.

     "Relevant water system training" means training directly related to the operations((, maintenance or management)) of a water system; and ((which)) has an influence on water quality, water supply, or public health((, or environmental)) protection.

     "Responsible charge" means the operator(s) designated by the owner to be the certified operator(s) who makes the decisions regarding the daily operational activities of a public water system, water treatment facility and/or distribution system that will directly impact water quality and/or quantity of drinking water including, but not limited to, decisions concerning process control and system integrity.

     "Satellite management agency (SMA)" means a person or entity that is approved by the department to own or operate public water systems on a regional or county-wide basis without the necessity for a physical connection between such systems.

     "Service connection" means a connection to a public water system designed to provide water to a single family residence, or other residential or nonresidential population.

     "Significant noncomplier" means a system that is violating or has violated department rules, and the violation may create, or has created an imminent or a significant risk to human health. Such violations include, but are not limited to, repeated violations of monitoring requirements, failure to address an exceedance of permissible levels of regulated contaminants, or failure to comply with treatment technique standards or requirements.

     "Transient noncommunity (TNC)" means a Group A water system that serves:

     • Twenty-five or more different people each day for sixty or more days within a calendar year; or

     • Twenty-five or more of the same people each day for sixty or more days, but less than one hundred eighty days within the calendar year.

     "Validated exam" means an exam that is independently reviewed by subject matter experts to ensure that the exam is based on a job analysis and related to the classification of the system or facility.

[Statutory Authority: Chapter 70.119 RCW and Safe Drinking Water Act, Public Law 104-182; 64 F.R. 5916 - 5921. 01-02-070, § 246-292-010, filed 12/29/00, effective 1/29/01. Statutory Authority: Chapter 70.119 RCW. 94-04-004, § 246-292-010, filed 1/20/94, effective 2/20/94. Statutory Authority: RCW 43.70.040. 91-02-049 (Order 121), recodified as § 246-292-010, filed 12/27/90, effective 1/31/91. Statutory Authority: RCW 70.119.050. 78-10-053 (Order 1343), § 248-55-020, filed 9/22/78.]

     (2) The certified operator shall operate the water system consistent with experience and training appropriate to their level of certification.

     (3) The certified operator shall perform his or her duties in accordance with this section. Failure to do so may threaten public health and safety which could result in the suspension or revocation of his or her certification.

[]

     (6))) Operators who received a grandparented certification prior to December 31, 2000, for the minimum classification of a water system remain subject to the following:

     (1) A grandparent operator certification is site specific and nontransferrable((.));

     (((7))) (2) A grandparented operator shall meet all certification renewal requirements under the provisions of WAC 246-292-090; ((and must complete the first professional growth reporting period by December 31, 2003.

     (8))) (3) If a grandparented operator ((failing)) fails to renew ((their)) his or her certification under ((provisions of)) WAC 246-292-090 ((may reapply)), the grandparent certification is no longer valid. To become recertified, the operator must apply for certification and ((shall)) meet all the requirements ((for)) of a new applicant((.)); and

     (((9))) (4) If plant or distribution system classification changes to a higher level, the grandparent certification is no longer valid; and the owner and operator shall comply with chapter 246-292 WAC.

[Statutory Authority: Chapter 70.119 RCW and Safe Drinking Water Act, Public Law 104-182; 64 F.R. 5916 - 5921. 01-02-070, § 246-292-085, filed 12/29/00, effective 1/29/01.]

     (2) The department shall renew ((the)) an operator's certificates ((upon payment of)) when the operator:

     (a) Pays the applicable renewal fee; and ((demonstration))

     (b) Demonstrates completion of required professional growth in accordance with subsections (3) and (4) of this section. The ((applicant shall)) operator must provide evidence of professional growth acceptable to the department within the designated professional growth reporting period as described in the department guideline titled, Water Works Certification Program Guideline.

     (3) To demonstrate professional growth, a holder of WDM, WTPO, WDS, BTO or CCS certification shall accomplish one of the following activities during each professional growth reporting period:

     (a) Accumulate a minimum of three continuing education units (CEU), or college credits for training that is directly relevant to the operations((, maintenance, or management)) of a water system((,)); and ((which)) has an influence on water quality, water supply, or public health ((or environmental)) protection;

     (b) Advance by examination in the Washington water works operator certification program within the classifications WDM and WTPO to a level 2, 3, or 4; or

     (c) Achieve certification by examination in a different classification as shown below:

     (i) WDM to WTPO, BTO or CCS;

     (ii) WTPO to WDM, or CCS;

     (iii) WDS to WDM, WTPO, BTO or CCS;

     (iv) BTO to WDM, WTPO, WDS or CCS; or

     (v) CCS to WDM, WTPO, BTO, or WDS.

     (4) To demonstrate professional growth, a ((holder of a)) certified BAT ((certification shall)) must satisfactorily complete the department's backflow assembly tester professional growth examination during each professional growth reporting period.

     (5) If an operator fails to renew his or her certificate, the department shall notify ((an)) the operator ((failing to renew the operator certificate)) by December 31st, that the certificate is temporarily valid for two months beginning January 1st.

     (6) ((A certificate not renewed during the two month period)) If an operator fails to renew the certificate within the two-month period, the certificate is invalid. The department shall notify the ((holder)) operator in writing of an invalid certificate ((with notice in writing)).

     (7) An operator ((failing)) who fails to renew ((their)) his or her certification ((under provisions of this section)) may reapply for certification ((and shall)), but must meet the requirements for a new applicant.

[Statutory Authority: Chapter 70.119 RCW and Safe Drinking Water Act, Public Law 104-182; 64 F.R. 5916 - 5921. 01-02-070, § 246-292-090, filed 12/29/00, effective 1/29/01. Statutory Authority: Chapter 70.119 RCW. 94-04-004, § 246-292-090, filed 1/20/94, effective 2/20/94. Statutory Authority: RCW 43.70.040. 91-02-049 (Order 121), recodified as § 246-292-090, filed 12/27/90, effective 1/31/91. Statutory Authority: Chapter 201, Laws of 1982. 82-13-009 (Order 1823), § 248-55-110, filed 6/4/82. Statutory Authority: RCW 70.119.050. 78-10-053 (Order 1343), § 248-55-110, filed 9/22/78.]

     (a) Obtains a certificate by fraud or deceit;

     (b) ((Demonstrates)) Performs an act of gross negligence in the operation of a purification plant or a distribution system; or

     (c) Intentionally violates the requirements of this chapter or ((any)) department statutes, rules or orders.

     (2) Except in a case of fraud, deceit, or gross negligence, the department may not revoke or suspend a certificate under subsection (1)(c) of this section until the department ((shall provide written notice of violation and reasonable)) notifies the operator in writing of the violation and provides an opportunity for ((correction prior)) the operator to ((taking action on revocation or suspension of a certificate.

     (3) The department shall not initiate action to revoke a certificate until the department has conducted a hearing to consider the appropriateness of revocation)) correct the violation.

     (((4))) (3) A revocation or suspension action brought under this section shall be conducted in accordance with RCW 43.70.115, chapter 34.05 RCW, and chapter 246-10 WAC.

     (((5))) (4) A person whose certificate is revoked ((is)) may not ((eligible to)) apply for certification ((for one year from the effective date of the final order of revocation)) until the period of revocation has ended.

     (((6))) (5) After the revocation period has ended, a person whose certificate was revoked ((and who desires to)) may reapply for ((a certificate shall apply)) certification as a new operator ((in accordance with)) under WAC 246-292-070.

     (((7))) (6) An operator whose certificate is suspended shall continue to meet all renewal requirements in accordance with WAC 246-292-090 in order to maintain certification after the suspension period has lapsed.

[Statutory Authority: Chapter 70.119 RCW and Safe Drinking Water Act, Public Law 104-182; 64 F.R. 5916 - 5921. 01-02-070, § 246-292-100, filed 12/29/00, effective 1/29/01. Statutory Authority: Chapter 70.119 RCW. 94-04-004, § 246-292-100, filed 1/20/94, effective 2/20/94. Statutory Authority: RCW 43.70.040. 91-02-049 (Order 121), recodified as § 246-292-100, filed 12/27/90, effective 1/31/91. Statutory Authority: RCW 70.119.050. 78-10-053 (Order 1343), § 248-55-120, filed 9/22/78.]

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