V. Further Rulemaking Proceeding

Even though we decline to adopt Aerojet-General's suggestion to determine what levels of contaminants are unacceptable, the suggestion that regulated utilities monitor unregulated chemicals for advisory levels already set by DHS where there is vulnerability of the water source to a specific contaminant is a good one. We notice that the majority of respondents agree; however, several disagree with this proposition. Thus, it warrants further consideration in a rulemaking proceeding where the feasibility and costs to do so may be explored.

All of the utilities believe that the existing trigger mechanism for secondary drinking water standards is sufficient, and that any additional trigger mechanisms for drinking primary water standards are unnecessary. This mechanism is the requirement that a regulated utility immediately notify DHS when a contaminant level is detected at above the MCL or AL and in turn, DHS may, in certain circumstances, require the utility to distribute a public notice as well. In addition, for primary drinking water, MCLs customers of Class A water utilities are notified of all the contaminants found in the water during a given year in the utility's Consumer Confidence Report, previously known as the Annual Water Quality Report. Utilities commenting on additional trigger mechanisms suggest an additional measure of informing the Commission as well as the DHS of any detection of contamination.

DHS comments that the Commission may wish to establish mandatory public notice requirements for chemicals for which ALs exist where the AL is exceeded. DHS suggests that regulated utilities could be required to provide customer notification when ALs are exceeded, and to cease serving water when contamination exceeds an AL by a factor of 10, paralleling the approach DHS uses for MCLs. The Commission could also remind utilities of their obligations to notify customers and local government officials when an AL is exceeded, and consider imposing its own penalties on utilities if notification does not occur.

DHS indicates there are times when the Commission could provide valuable assistance when DHS is taking enforcement action against a regulated water system. DHS recommends that a closer working relationship would be beneficial to both agencies.

DHS recommends that water utilities work with communities to develop programs that will help prevent or minimize contamination of drinking water sources by possible contaminating activities. This approach enables the possible contaminating activity to be the focus of attention rather than a particular chemical.

According to DHS, regulated utilities in proximity to federal Superfund sites or other hazardous waste sites could, as an interim safety practice, evaluate the list of Chemicals of Potential Concern and Chemicals of Concern from those sites, especially those that have been detected in soil and shallow ground water and in monitoring wells associated with the sites. Screening of drinking water samples for those chemicals might enable utilities to determine whether cleanup activities are being carried out in a timely and appropriate manner. At a minimum, utilities should take part in the public participation activities associated with any neighboring hazardous waste facilities.

DHS recommends that regulated utilities review the list of chemicals for which ALs have been established and determine if their sources may be vulnerable. In addition, they should review the list of unregulated chemicals for which monitoring is required and make sure their sampling is in compliance. They could also review the findings of neighboring water systems' monitoring programs to identify any chemical contamination that might be occurring nearby.

DHS suggests that the Commission consider directing the utilities to conduct source water assessments and to require utilities to implement source water protection programs (SWPPs). SWPPs are voluntary programs, but they offer an opportunity for utilities to take actions that may help reduce the potential for contamination by focusing on possible contaminating activities that might affect their drinking water sources, including watersheds and recharge areas. A requirement by the Commission may help utilities protect themselves against allegations such as those that the Commission is investigating. DHS has developed guidance for source water assessment and protection programs. However, there is no assessment of the costs to do so in this proceeding. Therefore, this issue warrants further consideration in a rulemaking proceeding.

Although the water companies as a whole are responsive to the directions from DHS, from time to time the attitude of the management of a company may be less cooperative than other times. DHS recommends that representatives of the Commission Water Division and DHS meet on a regular basis to facilitate the coordination of the efforts of both agencies in achieving the delivery of water that meets the quality and quantity standards of both agencies. In the course of such meetings, the two agencies may decide that meeting jointly with a company may promote prompt resolution of problems. Staff should assess the feasibility of implementing this suggestion.

Staff recommends that each utility be required to provide quarterly data on:

Wells shut down due to contamination, name of contaminant(s), reason for contamination, mitigation.

Wells under continuous monitoring for contamination and name of the contaminant(s).

Each instance of noncompliance with DHS and EPA rules, regulations, and requirements.

Staff recommends that each utility provide in every application for a general increase in rates a section on water quality, addressing improvements or deterioration, since its last application. Although no party opposes this suggestion, other items could be included in this water quality report, such as whether the utility has complied with past Commission or DHS decisions and orders and information regarding the utility's efforts to keep abreast of any contamination issues affecting its service territory. Therefore, this issue should be defined further.

Staff suggests that the Commission develop a systematic repository for storing information on water quality by company and district. However, staff does not develop a system to collect this information in this proceeding or indicate how it would be used.

Staff suggests that the Commission develop a systematic program to monitor water quality on a continuing basis. However, no details of such a program are provided.

In addition, the analysis of customer complaints regarding water quality, the nonexistence of requirements to record and maintain these complaints and whether these complaints are related to previously unknown contamination has not been explored in this proceeding and should be in further proceedings.

A. Discussion

We will consider these new recommendations in the combined rulemaking and investigation ordered herein to revise General Order 103, the regulatory instrument used to codify water quality standards. In the interval leading to the start of the rulemaking, it may prove more practical and may preserve Commission and the parties' resources if staff conducts a workshop to explore the matters of agreement and disagreement and the feasibility of alternate details involved in the party's and DHS' suggested additional measures involving water quality. The result of such workshops may provide critical input to the document requesting a formal rulemaking order.

Staff should immediately explore the DHS recommendations of a closer working relationship.