DDW-2024-009308

195 North 1950 West • Salt Lake City, UT
Mailing Address: P.O. Box 144830 • Salt Lake City, UT 84114-4830
Telephone [phone] • Fax [phone] • T.D.D. [phone]
www.deq.utah.gov
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State of Utah

Department of
Environmental Quality

Kimberly D. Shelley
Executive Director

DIVISION OF DRINKING WATER
Nathan Lunstad, P.E.
Director

SPENCER J. COX
Governor

DEIDRE HENDERSON
Lieutenant Governor
June 24, 2024

Red Wash Drinking Water System
Attn: Scott Atwood
11002 East 17500 South
Vernal, Utah 84078

Subject: RE Rebuttal to Designation as Public Water System
Dear Scott Atwood:
We have reviewed your “contest and appeal” letter concerning the New System Order dated
March 27, 2024 (NSO), finding that the Red Wash water system qualifies as a public water
system. As an initial matter, the Division will treat your letter as a request for the Division to
reconsider the findings made in the NSO. After reconsideration of all the facts and issues
presented in your letter, the Division declines to change its determinations. We appreciate the
historical context of your system's operation and want to clarify our determination that Red Wash
is a public drinking water system.
Facts
Although the Red Wash operation has around 65 employees working on site, with 34 rotating
shifts and typically 48 employees present between the four buildings, the proposed rebuttal to
being designated a public water system needs to be revised. Utah Administrative Code R309-105-
5(1) defines a public water system as providing water for human consumption through pipes or
other constructed conveyances to at least 15 service connections or regularly serving at least 25
individuals daily for at least 60 days out of the year. Additionally, Utah Code Title 19 Chapter 4
Section 102 reinforces these criteria. The presence of 48 employees, regardless of their time spent
on site or their distribution across buildings, meets the threshold for regulation as a public water
system. Furthermore, adding an additional tank and pump system to the main office will not
change the fact that the facility, as a whole, serves water to a population greater than the statutory
minimum. The definition of a public water system is based on the number of individuals served
rather than the number of tanks or pump systems in place. Thus, the regulatory requirements will
remain applicable to ensure the safety and reliability of the water provided to all employees.
Specific Rule and Statutory Citations
Red Wash Drinking Water System
Page 2 of 5
June 24, 2024

Definition of a Public Water System:
● Utah Administrative Code R309-105-5(1): This rule defines a public water system as
one that provides water for human consumption through pipes or other constructed
conveyances to at least 15 service connections or that regularly serves at least 25
individuals daily for at least 60 days out of the year.
● Utah Code Title 19 Chapter 4 Section 102: This statute aligns with the administrative
code, reinforcing the criteria for what constitutes a public water system.
Individual Responses to Rebuttal Claims:
● The current system that we have has been in place for decades.
At this juncture, the Division is not seeking penalties or other remedies for KODA’s past
non-compliance. Rather, the purpose of the NSO is to assist KODA to achieve compliance
through a defined process and schedule with realistic deadlines and significant
opportunities for technical outreach and support. KODA’s historical operation does not
exempt it from compliance with essential health and safety standards. Regardless of the
duration of its operation, its classification as a public water system is based on current
operational metrics and regulatory definitions. The Utah Administrative Code and Utah
Code outline specific criteria that must be met for all systems that meet the definition of a
public water system, regardless of how long the system may have been operating in non-
compliance in the past. Achieving prospective compliance is the Division’s goal and the
main purpose of the NSO.
● We do not use the water out of this system for drinking water. The drinking water used for
human consumption is supplied by Mount Olympus and is bottled water.
While you have indicated that bottled water is used for drinking purposes, it is essential to
recognize that the water supplied by your system is still used for other activities that
involve human consumption. According to the Utah Administrative Code R309-100-4,
“A public drinking water system is a system, either publicly or privately owned, providing
water for human consumption and other domestic uses.” (emphasis added). Therefore,
even if the water is not consumed directly as drinking water, its use in activities like
washing dishes, preparing food, or making coffee means it still constitutes a public water
system. In a situation where a business provides separate potable bottled drinking water for
its employees, the key question is whether the water provided for non-drinking purposes is
considered as being for “human consumption.” According to the case of U.S. v. Midway
Heights County Water Dist., the court considered “human consumption” to encompass
normal uses like bathing and showering, cooking, and dishwashing. See United States v.
Midway Heights County Water Dist., 695 F.Supp. 1072 (E.D. Cal 1988). Therefore, even
if drinking water is provided separately, the use of water for other domestic purposes like
washing dishes would still mean the water is used for “human consumption.”
Red Wash Drinking Water System
Page 3 of 5
June 24, 2024

Ensuring that the water used for all these activities meets health and safety standards is
crucial. If the water is contaminated, even indirect ingestion through such activities can
pose risks to public health.
● We train all new employees that our potable water system is only used for washing hands
and restroom facilities.
There is no provision in the Safe Drinking Water Act (SDWA) or Utah's drinking water
regulations that exempts a system from compliance based solely on employee training.
The fundamental concern is the potential for human consumption, regardless of the
intended use.
For comparison, the Environmental Protection Agency regulates airlines as public water
systems under the Aircraft Drinking Water Rule (ADWR 40 CFR Part 141 Subpart X),
which applies irrespective of whether passengers or airline employees are trained to avoid
drinking the water. This rule requires airlines to comply with drinking water standards,
ensuring that water used for any purpose on board, including hand washing and coffee
making, meets safety requirements.
● Our facilities are always locked to the public, and any visitors must be accompanied by
KODA personnel.
Under the definitions provided by the Safe Drinking Water Act and Utah's drinking water
regulations, the term "public" includes all individuals with access to the water system, not
just external visitors. KODA personnel who use the water for drinking, hand washing,
cooking, or other potable uses are considered part of the public for regulatory purposes.
Even if access to the facilities is restricted, KODA personnel still use the water your
system supplies. The critical concern is the potential for human consumption, regardless of
whether access is restricted or not. The health and safety of those consuming the water is
paramount, and ensuring compliance with public water system regulations is essential to
protect all users.
● There are warning signs placed at all hand washing stations that state the water is not to
be used as drinking water.
While warning signs can be a helpful reminder, they do not mitigate the underlying risks
associated with non-potable water use. There are several reasons why signage is an
insufficient protection of public health:
Human Behavior and Compliance: Individuals may inadvertently or deliberately ignore
warning signs, leading to the potential consumption of non-potable water. Reliance on
signage assumes perfect compliance, which is unrealistic in practice.
Red Wash Drinking Water System
Page 4 of 5
June 24, 2024

Inadequate Protection Against Contamination: Warning signs do not address the
potential for cross-contamination. For example, water used for hand washing can still
come into contact with food preparation surfaces, utensils, and other areas where it may be
ingested indirectly.
Regulatory Requirements for Potable Water: According to Utah Administrative Code
R309-200, water provided for human consumption must meet specific quality standards to
ensure it is safe for all uses, including drinking, hand washing, and food preparation.
Signage does not alter the fundamental requirement that water systems must provide safe,
potable water.
● The water we use is brought to us by truck straight out of the Vernal City water system.
Our water is tested monthly by the Tri-County Health Department and is documented.
During the eight years I have been involved with the monitoring, I have never had a
sample that did not pass.
Many water systems in Utah are similar to the KODA system and are regulated as hauled
water public systems. These systems comply with the same regulatory requirements to
ensure public health and safety, regardless of their water source or hauling method. Utah
Administrative Code R309-550-7 details the requirements for systems utilizing hauled
water, including proper storage, distribution, and monitoring to ensure the water remains
safe for consumption.
While your system's successful sample history is commendable, it does not negate the
need for future sampling or compliance with other regulatory requirements. Ongoing
monitoring and adherence to regulations are essential to ensure the water remains safe for
consumption.
● We currently have two separate water delivery systems on-site to deliver the water to the
restrooms.
Multiple delivery systems on a single property do not exempt a system from regulation if
the overall service meets the definition of a public water system. The concept of
contiguous ownership plays a crucial role here. Utah Administrative Code R309-105-5(6):
States that multiple systems under the same ownership, management, or within the same
geographic area are considered part of a single system for regulatory purposes. Since the
two water delivery systems are under contiguous ownership and serve the same property,
they are treated as a single public water system under state regulations.
We appreciate your efforts to provide safe drinking water. However, under Utah drinking water
regulations, your system meets the criteria for a public water system and must comply with the
associated requirements. This classification ensures that all water systems, including those using
hauled water, are held to the same standards to protect public health.

Red Wash Drinking Water System
Page 5 of 5
June 24, 2024

Formal Appeal
The Environmental Quality Code provides procedures for formal appeal of agency orders. See
Utah Code § 19-1-301. The Department has promulgated procedural rules governing the
procedures associated with a formal appeal. See Utah Admin. Code R305-7. While your letter
does not appear to meet the procedural requirements for a formal appeal, because Red Wash is not
represented by legal counsel, the Division will treat it as a timely, formal legal appeal. Formal
appeals are heard by the Executive Director, using an appointed administrative law judge (ALJ) as
the Executive Director’s hearing officer. Judicial review of the Executive Director’s final orders is
available through Utah appellate courts and the Utah Administrative Procedures Act. The Director
is a party to any such proceedings. Under the applicable procedural rules, the next step in the
process is for one of the parties (either Red Wash or the Director) to submit a request to the
Executive Director to appoint an ALJ. No such request has been filed and until and unless the
NSO is stayed or reversed through the formal appeal process, it remains in effect. Please consult
legal counsel regarding the formal appeal process. If you do not wish to pursue a formal appeal,
please let the Division know.
Conclusion
We at the Division of Drinking Water are committed to supporting you through this transition and
ensuring you have the resources to meet all regulatory requirements. If you have further questions
or need additional assistance, please do not hesitate to contact our office.

Sincerely,

Nathan Lunstad P.E.
Director
Utah Division of Drinking Water

cc: Kim Shelley, Utah Department of Environmental Quality, [e-mail]
Terry Smith, Rural Water Association of Utah, [e-mail]
Ty Leydig, Rural Community Assistance Corporation, [e-mail]
Shauna Benvegnu-Springer, Utah Division of Public Utilities, [e-mail]
Brandon Mellor, Utah Division of Water Rights, [e-mail]
Rachel Shilton, Utah Division of Water Resources, [e-mail]
Cindy Austreng, Tri-County Health Department, [e-mail]
Jason McLaren, Middle Fork Energy Uinta LLC, 1401 Wynkoop Street STE 300 Denver, CO 80202
CT Corporation System, Registered Agent, 1108 East South Union Avenue, Midvale, UT 84047
Bret F. Randall, Assistant Attorney General, [e-mail]
Christopher Brown, EPA Region 8, [e-mail]
Nathan Hall, DEQ District Engineer, [e-mail]
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