DDW-2024-012898

October 29, 2024
Empire Pass Master Owners Association, Inc
Doug Ogilvy
Registered Agent
4188 SR 248
PO Box 99
Kamas, UT 84036
Dear Doug Ogilvy:
Subject: Notification of Public Drinking Water System Type Change Red Cloud Water System
UTAH22157
On September 12, 2024, Julie Cobleigh, P.E., with the Utah Division of Drinking Water
conducted a sanitary survey of the Red Cloud Water System UTAH22157. It was discovered
during this visit that the system currently has 15 seasonal homes with approximately 30 days per
year of occupancy, mostly during the ski season. After careful review and consideration of the
information and facts documented resulting from that site visit, the Utah Division of Drinking
Water (Division) has determined the Red Cloud Water System type classification will be
changing from Community to a Transient Non-Community water system.
This change in system type carries significant implications for the system's operations and
regulatory requirements. We understand that this transition may raise questions or concerns, and
we are committed to providing you with all the necessary support and guidance throughout this
process. This letter and its attached reports are to assist you in maintaining compliance with the
Safe Drinking Water Act and protecting public health.
Notice Of Agency Action - System Type Change
This enclosure lists the state and federal authorities the director has in order to determine a
system-type change. It outlines your rights to appeal and the process by which you can make
such an appeal. It serves as formal notice that this is an agency action and provides legal notice
of your system-type change.
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
Doug Ogilvy
Page 2 of 3
Chlorine Residual Monitoring
The change to the water system’s type means that the water system must now monitor chlorine
residuals in the distribution system. The water system must take a minimum of three (3) chlorine
residual samples per week at varying locations throughout its distribution system (DS001). The
chlorine residuals must be measured in the field using a test kit, so be aware that these readings
do not involve a laboratory, unlike most other samples. The chlorine residual measured in the
distribution system shall not exceed the maximum residual disinfectant level (MRDL) of 4.0
mg/L (measured as free chlorine).
The water system must submit the monthly average of chlorine residual samples taken in the
distribution system as well as the total number of chlorine residual readings taken during the
month to the Division’s online form found at mrdl.utah.gov. The chlorine residual monitoring
results are due quarterly, by the 10th day after the end of each quarter. This means that the
system must report three months worth of data every quarter. For any questions regarding
chlorine residual readings, contact Luke Treutel at [phone] or [e-mail].
Lead and Copper
Due to being classified as a Transient Non-Community water system, Red Cloud Water System
is no longer required to monitor for lead and copper. Your monitoring schedule for lead and
copper has been removed.
Questions regarding Lead and Copper monitoring should be directed to Dylan Martinez at
[e-mail] or at [phone].
A current monitoring schedule for your system has been enclosed, showing a summation of the
monitoring requirements listed above. If you have questions regarding your new monitoring
requirements, please contact Mark Berger at [phone] or [e-mail].
Operator Certification Requirements
The system is classified as a Transient Non-Community water system that serves a population of
150 persons and does not utilize treatment. A certified Direct Responsible Charge Operator
(DRC) is not required to operate the system. If the population or the complexity of the water
system changes, a higher level of certification may be required.
We have updated the System’s operator certification requirements in the Division’s Improvement
Priority System (IPS). Failure to comply would be a significant deficiency and subject to demerit
points.
Visit ddwopcert.utah.gov for more information regarding the R309-300 Certification Rules for
Water Supply Operators, how to become a certified operator, or to post a job position for
operators. For questions, contact Dawnie Jacobo at 385-272-5038 or [e-mail].
Doug Ogilvy
Page 3 of 3
Cross Connection Control Requirements
Transient Non-Community water systems must complete Backflow 101, or an equivalent cross
connection control training
Visit backflow.utah.gov for more information regarding the R309-105-12 rule for
cross-connection control, how to become a certified cross-connection administrator and more
cross-connection resources. For cross-connection control questions, contact Gary Rager at (385)
549-7609 or [e-mail].
Notice of Appeal Rights
The Director of the Division has authorized me to issue this letter on behalf of the Division. If
you feel the Division’s determinations are in error, the Supplier’s rights to contest this
determination are outlined in the attached Notice of Agency Action - System Type Change.
Failure to appeal within 30 days results in this determination being final, all as outlined in
the attached legal notice.
Additionally, nothing in this notice prevents the Director from initiating formal enforcement at
any time. We urge you to take immediate action on this matter. Compliance with the standards
and regulations for drinking water, as outlined in the Utah Safe Drinking Water Act, the Utah
Drinking Water Rules, and the Federal Safe Drinking Water Act, is essential to ensure safe,
reliable drinking water and to protect public health.
We are dedicated to working together with you to help you come into compliance. If you need
assistance responding to this notice, please contact Helen Lau at [phone] or
[e-mail].
Sincerely,
Helen Lau
Compliance and Operator Assistance Section Manager
Enclosure: Notice of Agency Action- System Type Change
Monitoring Schedule
cc: Douglas Ogilvy, Red Cloud Water System, [e-mail]
Nathan Brooks, Summit County Health Department, [e-mail]
Julie Cobleigh, P.E., Division of Drinking Water, [e-mail]
Dani Zebelean, P.E., Division of Drinking Water, [e-mail]
Bret F. Randall, Assistant Attorney General, [e-mail]
Rule Managers
Helen Lau (Oct 29, 2024 17:17 MDT)
UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY
DIVISION OF DRINKING WATER
In the matter of:
Red Cloud Water System UTAH22157 NOTICE OF AGENCY ACTION -
SYSTEM TYPE CHANGE
To the extent that the matters addressed in the attached communication qualify as agency actions
under the Utah Administrative Procedures Act, Title 63G, Chapter 4, notice is hereby given to
the Supplier responsible for the above-referenced public water system as follows:
STATUTORY AND REGULATORY AUTHORITY
1. The matters addressed in the attached communication have been determined, directly or
indirectly, by the Director of the Division of Drinking Water, pursuant to the following
statutory and regulatory authorities.
2. In 1974, Congress enacted the federal Safe Drinking Water Act, codified at 42 U.S.C. §
300f et seq ., as amended. 42 U.S.C. § 300g-2 allows states to achieve primary
enforcement responsibility after the Environmental Protection Agency (“EPA”) has
determined that the state has adopted and can implement a state program that is no less
stringent than the federal public drinking water program (“Primacy”).
3. The Utah legislature has enacted the Utah Safe Drinking Water Act, codified at Utah
Code § 19-4-101, with the intent of achieving Primacy.
4. Utah Code § 19-4-104 authorizes the Utah Drinking Water Board (the “Board”), among
other things, to make rules regulating public water systems in the state of Utah. Utah
Code § 19-4-104(1)(c)(vi) charges the Board to “meet the requirements of federal law
related or pertaining to drinking water.” The Board has promulgated the Utah Public
Drinking Water Rules, codified at Utah Admin. Code Title R309.
5. In 1980, the EPA Administrator determined, in accordance with 40 C.F.R. § 142.11, that
the Utah public drinking water program met the federal requirements for Primacy. See
45 Fed. Reg. 6647 (January 29, 1980). In accordance with 40 C.F.R. § 142.17, the EPA
Administrator has reviewed, and continues to review annually, the Utah public drinking
water program to evaluate its continuing compliance with the requirements set forth in 40
C.F.R. Part 142.
6. The Board has defined public water systems under the Utah Public Drinking Water Rules,
Utah Admin. Code R309-110-4.
Notice of Agency Action - System Type Change Page 1 of 4
7. Among other requirements, the Utah Public Drinking Water Rules provide that all public
water systems must be classified based on the number of persons served and the types of
use ( e.g. , community, non-transient, non-community, transient non-community, seasonal).
The Director is required to establish the classification of each public water system based
on the factors identified in the rules and may change a system’s classification based on a
change in circumstances. See Utah Admin. Code Section R309-100-4.
8. The Utah Public Drinking Water Rules include many requirements implemented by the
Director, including monitoring and water quality, operator certification, cross-connection
control and backflow prevention certification, system plan review, drinking water
disinfection, treatment, and source development, drinking water storage and distribution,
and drinking water source protection. The rules require that the Director directly or
indirectly implement agency actions in a variety of contexts. See Utah Admin. Code Title
R309.
9. Utah Admin. Code R309-100-7 requires the Director to “assign a rating to each public
water supply in order to provide a concise indication of its condition and performance” in
accordance with Utah Admin. Code R309-400. This rule is generally known as the
Improvement Priority System (“IPS”) rating system.
10. Utah Admin. Code R309-400-4 provides that a water system’s IPS rating shall be
assigned “based on the evaluation of the operation and performance of the water system
in accordance with the requirements of the Rules,” based on a point system established
by the Board. Generally, the number of points represents the threat to the quality of the
water and therefore public health.
11. Utah Admin. Code R309-400-4(3) sets the maximum number of points any given type of
system may have before it is rated by the Director as “Not Approved” status. For
systems exceeding the point threshold, the Director is required to issue a “Not Approved”
rating. The thresholds are as follows: (i) for community water systems, 150 points; (ii)
for non-transient, non-community water systems, 120 points; and (iii) for non-community
water systems, 100 points.
12. Utah Admin. Code R309-400-11 allows the Director to assess points against public water
systems upon their failure to comply with Division directives and orders.
13. Utah Admin. Code R309-400-4 allows the Director to rate any public water system as
“Not Approved” at any time if an immediate threat to public health exists.
14. Utah Admin. Code R309-400-4(c) provides that a public water system may qualify for a
“Corrective Action” rating for its public water system upon submission of a written
agreement stating a willingness to comply with the requirements set forth in the Rules
and complying with other requirements.
15. Pursuant to Utah Code § 19-4-106(d), the Director may enforce rules promulgated by the
Board through the issuance of orders. See also Utah Admin. Code R309-100-8.
Notice of Agency Action - System Type Change Page 2 of 4
16. Utah Code § 19-4-107 provides that upon discovery of any violation of a rule or order of
the Board, the Director shall promptly notify the operator of the public water system of
the violation, state the nature of the violation, and issue an order requiring correction of
that violation.
17. Utah Code § 19-4-109 provides that any person who violates a rule or order made or
issued pursuant to the Act may be subject, in a civil proceeding, to a civil penalty of up to
$5,000 per day of violation.
18. Section R309-100-8 provides that the Director may take appropriate actions to address
public health risks arising from emergency situations.
19. The Utah Administrative Procedures Act requires that whenever the Director takes an
agency action, appropriate notice of the agency action be provided. See Utah Code §
63G-4-201.
GENERAL PROVISIONS
20. The person signing the attached communication on behalf of the Division has done so
under the authority of the Director.
21. The agency actions addressed in the attached communication in no way limit the
Director’s authority to respond to emergency situations involving public drinking water,
including emergency situations as described in Section R309-105-18, in a manner
appropriate to protect public health. The Director's enforcement actions may include
ordering water suppliers to take appropriate measures to protect public health, including
issuance of orders pursuant to Section 63G-4-502, if warranted.
22. Nothing contained in the attached communication shall preclude the Director from taking
actions to include additional penalties against the recipient for future violations of State
or Federal law.
23. The date of issuance shall be the date that the attached communication is signed.
24. Any dates set forth in the attached communication may be extended in writing by the
Director, in the Director’s sole discretion, based on the recipient’s showing of good cause.
Good cause for an extension generally means events outside of the reasonable control of
the recipient, such as force majeure, inclement weather, contractor or supplier delays, and
similar circumstances. However, the Director expects the recipient to employ reasonable
means to limit foreseeable causes of delay. The timeliness of the recipient’s request for
an extension shall constitute an important factor in the Director’s evaluation.
CONTEST AND APPEAL RIGHTS
25. The agency action addressed in the attached communication is effective immediately and
shall become final unless contested in writing within thirty (30) days of the date of
its issuance .
Notice of Agency Action - System Type Change Page 3 of 4
26. The Director designates that any appeal involving the matters addressed in the attached
communication shall be subject to informal agency adjudication procedures under the
Utah Administrative Procedures Act, Section 63G-4-203, with the Director serving as the
presiding officer.
27. The agency action addressed in the attached communication may be contested by
filing a written notice of contest to the Director at the address listed below, within 30
days of the date of issuance. No particular form of notice of appeal is required, except
that the recipient shall identify all the grounds for the appeal in writing. The recipient
should also indicate whether a hearing is requested.
28. The adjudication of the appeal shall be conducted by the Director using informal
procedures. The Director may conduct a hearing or other meeting to address the appeal,
but a formal hearing is not required. Following the Director’s issuance of an order, under
Section 63G-4-301(6), addressing the appeal, there shall be no duty to exhaust further
administrative remedies under Section 63G-4-401(2).
29. Any appeal from the Director’s final order under Section 63G-4-301(6) shall be a trial de
novo before a district court under Sections 63G-4-401(3) and 63G-4-402.
30. For purpose of compliance with this agency action or service of an appeal, the Director’s
mailing address is:
Nathan Lunstad, Ph.D., P.E.
Director
Division of Drinking Water
P.O. Box 144830
Salt Lake City, UT 84114-4830
The recipient may also submit an appeal or other communication to the Director via
email ( [e-mail] ). If the recipient submits a notice of appeal to the Director via
email, the date the email is sent shall be deemed to be the date of delivery if the recipient
also mails a paper copy of the appeal to the Director at the above address.
31. The failure to file a timely notice of appeal to the Director within 30 days of the date
the attached communication is signed shall result in the agency actions addressed in
the attached communication becoming final and unappealable.
Notice of Agency Action - System Type Change Page 4 of 4