STATE BOARD OF HEALTH

[Filed February 2, 2024, 10:30 a.m., effective February 2, 2024, 10:30 a.m.]

Effective Date of Rule: Immediately upon filing.

Purpose: On-site sewage system substitute proprietary treatment product components. The state board of health (board) adopted an emergency rule regarding substitute components of registered products as part of the certification and registration of proprietary treatment products used in on-site sewage systems. The original emergency rule was filed on June 15, 2022 (WSR 22-13-101). Emergency rules have been filed continuously thereafter with the most recent filing on October 6, 2023 (WSR 23-21-061 [23-21-016]). Only one change has been made to the amendments since the filing of the original emergency rule. This emergency rule is being adopted with a slight change to the previous emergency rule language. The rule language changes "written application" to "written request" to maintain consistent terminology with chapter 246-272A WAC.

This sixth emergency rule amends WAC 246-272A-0110 to allow manufacturers to make a written request to the department of health (department) to substitute components of a registered product's construction in cases of a demonstrated supply chain shortage or similar manufacturing disruptions that may impact installations, operation, or maintenance. The request must include information that demonstrates the substituted component will not negatively impact performance or diminish the effect of the treatment, operation, and maintenance of the original registered product. The emergency rule will also allow manufacturers of registered proprietary treatment products to replace components of their products that are not available due to supply chain shortages or similar manufacturing disruptions with like components, as long as the components will not negatively impact performance, treatment, operation, or maintenance of the original registered product.

The current rule requires manufacturers of proprietary treatment products used in on-site sewage systems to test their products with the National Sanitation Foundation (NSF) and register their products with the department based on NSF test results before the product is allowed to be permitted or installed in Washington. Without the emergency rule, the current rule would impede home sales when maintenance of proprietary products has not been completed as noted on home inspections for property transfers because replacement parts with NSF registration are unavailable. New construction is likewise impacted as many active or pending permits include on-site sewage systems using Salcor products. Salcor manufactures a disinfecting ultraviolet (UV) light system incorporated into several proprietary treatment products used in Washington state. There are other manufacturers of disinfecting UV light systems that can be substituted into proprietary treatment products in place of Salcor products. Salcor was sold and the new owner is working with NSF to get their products approved, but this process will take several months. In order to continue to protect the public's health, safety, and welfare, it is necessary to adopt a sixth emergency rule to allow the department to consider written requests from manufacturers of proprietary treatment products for substitutes to proprietary treatment product components so their systems will be able to function properly without negatively impacting treatment, operation, or maintenance during supply chain shortages. To date, four manufacturers have received department approval to substitute the Salcor 3G UV lamp with an alternate UV lamp.

In 2018, the board filed a CR-101 preproposal statement of inquiry (WSR 18-06-082) to initiate permanent rule making and update the on-site sewage system rules. That rule making is still underway and is expected to conclude in 2024. As directed by the board at the June 8, 2022, meeting, the emergency rule amendment will be considered for incorporation into the permanent rule making that is currently underway.

Citation of Rules Affected by this Order: Amending WAC 246-272A-0110.

Statutory Authority for Adoption: RCW 43.20.050(3).

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: The board finds that in order to protect the public's health, safety, and welfare, it is necessary to adopt the emergency rule to amend WAC 246-272A-0110 to allow the department to consider written request from manufacturers of proprietary treatment products to substitute a proprietary treatment product component so their systems may continue to function properly without negatively impacting performance or diminishing the effect of the treatment, operation, or maintenance during supply chain shortages.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 1, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 1, Repealed 0.

Date Adopted: February 2, 2024.

Michelle A. Davis, MPA

AMENDATORY SECTION(Amending WSR 05-15-119, filed 7/18/05, effective 9/15/05)

WAC 246-272A-0110Proprietary treatment products—Certification and registration.

(1) Manufacturers shall register their proprietary treatment products with the department before the local health officer may permit their use.

(2) To qualify for product registration, manufacturers desiring to sell or distribute proprietary treatment products in Washington state shall:

(a) Verify product performance through testing using the testing protocol established in Table I and register their product with the department using the process described in WAC 246-272-0120;

(b) Report test results of influent and effluent sampling obtained throughout the testing period (including normal and stress loading phases) for evaluation of constituent reduction according to Table II;

(c) Demonstrate product performance according to Table III. All ((thirty-day))30-day averages and geometric means obtained throughout the test period must meet the identified threshold values to qualify for registration at that threshold level; and

(d) For registration at levels A, B, and C verify bacteriological reduction according to WAC 246-272A-0130.

(3) Manufacturers verifying product performance through testing according to the following standards or protocols shall have product testing conducted by a testing facility accredited by ANSI:

(a) ANSI/NSF Standard 40—Residential Wastewater Treatment Systems;

(b) NSF Standard 41: Non-Liquid Saturated Treatment Systems;

(d) Protocol for bacteriological reduction described in WAC 246-272A-0130.

(4) Manufacturers verifying product performance through testing according to the following standards or protocols shall have product testing conducted by a testing facility meeting the requirements established by the Testing Organization and Verification Organization, consistent with the test protocol and plan:

(a) EPA/NSF—Protocol for the Verification of Wastewater Treatment Technologies; or

(b) EPA Environmental Technology Verification Program protocol for the Verification of Residential Wastewater Treatment Technologies for Nutrient Reduction.

(5) Treatment levels used in these rules are not intended to be applied as field compliance standards. Their intended use is for establishing treatment product performance in a product testing setting under established protocols by qualified testing entities.

(6) Manufacturers may submit a written request to substitute components of a registered product's construction in cases of supply chain shortage or similar manufacturing disruptions impacting installations, operation, or maintenance. The substitution request must include a report stamped, signed, and dated by a professional engineer demonstrating the substituted component will not negatively impact performance or diminish the effect of the treatment, operation, and maintenance of the original registered product. If approved, substitution is authorized until rescinded by the department.

TABLE I

Testing Requirements for Proprietary Treatment Products
Treatment Component/Sequence Category	Required Testing Protocol
Category 1 Designed to treat sewage with strength typical of a residential source when septic tank effluent is anticipated to be equal to or less than treatment level E.	ANSI/NSF 40—Residential Wastewater Treatment Systems (protocols dated between July 1996 and the effective date of these rules)
Category 2 Designed to treat high-strength sewage when septic tank effluent is anticipated to be greater than treatment level E.	EPA/NSF Protocol for the Verification of Wastewater Treatment Technologies/ EPA Environmental Technology Verification (April 2001)
(Such as at restaurants, grocery stores, mini-marts, group homes, medical clinics, residences, etc.)
Category 3 Black water component of residential sewage (such as composting and incinerating toilets).	NSF/ANSI Standard 41: Non-Liquid Saturated Treatment Systems (September 1999)
	NSF Protocol P157 Electrical Incinerating Toilets - Health and Sanitation (April 2000)
Total Nitrogen Reduction in Categories 1 & 2 (Above)	Protocol for the Verification of Residential Wastewater Treatment Technologies for Nutrient Reduction/EPA Environmental Technology Verification Program (November, 2000)

TABLE II

Test Results Reporting Requirements for Proprietary Treatment Products
Treatment Component/Sequence Category	Testing Results Reported
Category 1 Designed to treat sewage with strength typical of a residential source when septic tank effluent is anticipated to be equal to or less than treatment level E.	Report test results of influent and effluent sampling obtained throughout the testing period for evaluation of constituent reduction for the parameters: CBOD5, and TSS:
	□ Average	□ Standard Deviation
	□ Minimum	□ Maximum
	□ Median	□ Interquartile Range
	□ 30-day Average (for each month)
	For bacteriological reduction performance, report fecal coliform test results of influent and effluent sampling by geometric mean from samples drawn within ((thirty-day))30-day or monthly calendar periods, obtained from a minimum of three samples per week throughout the testing period. See WAC 246-272A-0130. Test report must also include the individual results of all samples drawn throughout the test period.
Category 2 Designed to treat high-strength sewage when septic tank effluent is anticipated to be greater than treatment level E.	Report all individual test results and full test average values of influent and effluent sampling obtained throughout the testing period for: CBOD5, TSS and O&G. Establish the treatment capacity of the product tested in pounds per day for CBOD5.
(Such as at restaurants, grocery stores, mini-marts, group homes, medical clinics, residences, etc.)
Category 3 Black water component of residential sewage (such as composting and incinerating toilets).	Report test results on all required performance criteria according to the format prescribed in the NSF test protocol described in Table I.
Total Nitrogen Reduction in Categories 1 & 2 (Above)	Report test results on all required performance criteria according to the format prescribed in the test protocol described in Table I.

TABLE III

Product Performance Requirements for Proprietary Treatment Products
Treatment Component/Sequence Category	Product Performance Requirements
Category 1 Designed to treat sewage with strength typical of a residential source when septic tank effluent is anticipated to be equal to or less than treatment level E.	Treatment System Performance Testing Levels
	Level	Parameters
	Level	CBOD5	TSS	O&G	FC	TN
	A	10 mg/L	10 mg/L	——	200/100 ml	——
	B	15 mg/L	15 mg/L	——	1,000/100 ml	——
	C	25 mg/L	30 mg/L	——	50,000/100 ml	——
	D	25 mg/L	30 mg/L	——	——	——
	E	125 mg/L	80 mg/L	20 mg/L	——	——
	N	——	——	——	——	20 mg/L
	Values for Levels A - D are 30-day values (averages for CBOD5, TSS, and geometric mean for FC.) All 30-day averages throughout the test period must meet these values in order to be registered at these levels. Values for Levels E and N are derived from full test averages.
Category 2 Designed to treat high-strength sewage when septic tank effluent is anticipated to be greater than treatment level E.	All of the following requirements must be met:
	(1) All full test averages must meet Level E; and
(Such as at restaurants, grocery stores, mini-marts, group homes, medical clinics, residences, etc.)	(2) Establish the treatment capacity of the product tested in pounds per day for CBOD5.
Category 3 Black water component of residential sewage (such as composting and incinerating toilets).	Test results must meet the performance requirements established in the NSF test protocol.
Total Nitrogen Reduction in Categories 1 & 2 (Above)	Test results must establish product performance effluent quality meeting Level N, when presented as the full test average.