816Z98002
Tuesday
April 28, 1998
Part IV



Environmental

Protection  Agency

40 CFR Parts 141 and 142
Revisions to State Primacy Requirements
To Implement Safe Drinking Water Act
Amendments; Final Rule
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Federal Register/Vol.  63, No. 81/Tuesday, April  28,  1998/Rules  and  Regulations
ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Parts 141 and 142

[FRL-6003-5]

RIN-2040-ADOO

Revisions to State Primacy
Requirements To Implement Safe
Drinking Water Act Amendments

AGENCY: Environmental Protection
Agency.
ACTION: Final rule; interpretation.

SUMMARY: Today's action amends the
regulations that set forth the
requirements for States to obtain and
retain primary enforcement authority
(primacy) for the Public Water System
Supervision (PWSS) program under
section 1413 of the Safe Drinking Water
Act (SDWA) as amended by the 1996
Amendments. This rule adds the new
administrative penalty authority
requirement that States must meet in
order to obtain or retain primacy, plus
changes the timing for a State to adopt
new or revised drinking water
regulations. The rule also changes a
State's primacy status while awaiting a
final determination on its primacy
application. Additionally, the rule's
language provides examples of
circumstances that require an
emergency plan for the provision of safe
drinking water. Lastly, this action
expands the definition of a public water
system (PWS). Since all of the above
changes are merely a codification of the
amended SDWA, the Agency is
publishing this document as a final rule.
DATES: This action is effective April 28,
1998 except for § 142.11 which contains
information collection requirements that
have not yet been approved by Office of
Management and Budget (OMB). EPA
will publish a document in the Federal
Register announcing the effective date
of §142.11
FOR FURTHER INFORMATION CONTACT: The
Safe Drinking Water Hotline, toll free
(800) 426-4791, or Jennifer Melch;
Regulatory Implementation Branch;
Office of Ground Water and Drinking
Water; EPA (4606), 401 M Street, S.W.,
Washington, DC 20460; telephone (202)
260-7035.
SUPPLEMENTARY INFORMATION:
Regulated Entities
  Entities potentially regulated by this
action are those which have primary
enforcement authority for the PWSS
program and those which meet the
criteria of the PWS definition. Regulated
categories and entities include:
Category
Industry 	
State Government 	
Examples of regu-
lated entities
Public Water Sys-
tems.
Agencies with primary
enforcement au-
thority for the
PWSS program.
                           This table is not intended to be
                         exhaustive, but rather provides a guide
                         for readers regarding entities likely to be
                         regulated by this action. This table lists
                         the types of entities that EPA is now
                         aware could potentially be regulated  by
                         this action. Other types of entities not
                         listed in the table could also be
                         regulated. To determine whether your
                         entity is regulated by this action, you
                         should carefully examine the
                         applicability criteria in §§ 141.2, 142.2,
                         and 142.10 and the applicability criteria
                         in §§ 142.3 and 142.10 of title 40 of the
                         Code of Federal Regulations. If you have
                         questions regarding the applicability  of
                         this action to a particular entity, consult
                         the person listed in the preceding FOR
                         FURTHER INFORMATION CONTACT section.
                         Table of Contents
                         A. Summary and Explanation of Today's
                            Action
                           1. Administrative Penalty Authority
                           2. Interim Primacy Authority
                           3. Time Increase for Adopting Federal
                            Regulations
                           4. Examples of Emergency Circumstances
                            That  Require a Plan for Safe Drinking
                            Water
                           5. Revision of Public Water System
                            Definition
                         B. Impact of These Revisions
                           1. Executive Order 12866
                           2. Regulatory Flexibility Act
                           3. Paperwork Reduction Act
                           4. Unfunded Mandates  Reform Act
                           5. Executive Order 13045—Protection of
                            Children From Environmental Health
                            Risks and Safety Risks
                           6. Submission to Congress and the General
                            Accounting Office
                           7. National Technology Transfer and
                            Advancement Act
                           8. Administrative Procedure Act
                         A. Summary and Explanation of
                         Today's Action
                           40 CFR part 142, subpart B, sets out
                         requirements for States to obtain and/or
                         retain primacy for the Public Water
                         System Supervision (PWSS) program as
                         authorized by section 1413 of the Safe
                         Drinking Water Act (SDWA). The Safe
                         Drinking Water Act Amendments of
                         1996 created an additional requirement
                         for States to obtain and/or retain
                         primacy  for the PWSS program. Section
                         1413(a)(6) requires States to have
                         administrative penalty authority.
                         Today's rule adds a provision to
                         § 142.10  incorporating  this new
requirement. Because questions have
arisen on the meaning of section
1413(a)(6), today's preamble sets forth
EPA's interpretation of this section.
  The addition of section (e) in § 142.12
of this rule is also due to the 1996
Amendments. Section 142.12(e)
explains that when a State with primacy
for all existing national primary
drinking water regulations submits a
primacy revision application, the State
is considered to have primary
enforcement authority for the new or
revised regulation while EPA makes a
final determination on the application.
  Additionally, the Agency is making
revisions to § 142.10(e) to reflect the
1996 Amendments by adding examples
of emergency situations  and to
§ 142.12(b) by changing  the time
limitation for adopting new or revised
Federal regulations. Finally, the Agency
is revising the definition of a public
water system in both Parts 141 and 142
to codify changes to the  statutory
definition. The new definition includes
certain systems that provide water for
human consumption through
constructed conveyances other than
pipes.

1. Administrative Penalty Authority
  Section 1413 of the SDWA sets out
the conditions under which States may
apply for, and retain, primary
enforcement responsibility with respect
to PWSs. As amended in 1996, section
1413 now requires States to have
administrative penalty authority for all
violations of their approved primacy
program, unless prohibited by the State
constitution. This encompasses
applicable requirements in parts 141
and 142 including, but not limited to,
NPDWRs, variances and exemptions,
and public notification. This includes
administrative penalty authority for
violations of any State requirements  that
are more stringent than the analogous
Federal requirements on which they are
based. However, States are not required
to have administrative penalty authority
for violations of State requirements that
are broader in scope than the federal
program, or unrelated to the approved
program.
  States must have the authority to
impose administrative penalties on
PWSs serving a population greater than
10,000 individuals in an amount that is
not less than $ 1,000 per  day per
violation. For PWSs serving a
population of 10,000 individuals or less.
States must have the authority to
impose an administrative penalty that is
"adequate to ensure compliance."
However, States may establish a
maximum limitation on  the total

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                                                                     23363
amount of administrative penalties that
may be imposed on a PWS per violation.
Statutory Language
  Section 1413 of the SDWA provides
that a State will have primary
enforcement responsibility for PWSs
during any period for which the
Administrator determines that the State
meets the requirements of section
1413 (a)  as implemented through EPA
regulations. One of the new conditions
added for primacy is section 1413(a)(6),
which requires that a primacy State:
  (6) Has adopted authority for
administrative penalties (unless the
constitution of the State prohibits the
adoption of the authority) in a
maximum amount—
  (A)  In the case of a system serving a
population of more than 10,000, that is
not less than $ 1,000 per day per
violation; and
  (B) In the case of any other system,
that is adequate to  ensure compliance
(as determined by the State);
except that a State  may establish a
maximum limitation on the total
amount of administrative penalties that
may be imposed on a public water
system per violation.

Interpretation of "In a Maximum
Amount *  *  * That is Not Less Than
$ 1,000 Per Day Per Violation''
  The first  issue for clarification is the
meaning of requiring States to have
administrative penalty authority "in a
maximum amount * * * that is not less
than $1,000 per day per violation."
Relying on both the legislative history of
the 1996 SDWA Amendments and the
principles of statutory construction,
EPA has interpreted the provision as
discussed in the following paragraphs.
  The report on Senate Bill (SB) 1316
says, in explaining this provision, that
States are to adopt administrative
penalties of at least $ 1,000 per day per
violation for large systems. Since the
language in the House Bill and in the
final version of the SDWA amendments
is identical to that in SB1316, and there
is no additional explanation of this
language, the report on SB1316 is a
helpful indicator of Congressional
intent.
  Therefore, it is EPA's position that,  in
order to have primacy, States must have
the authority to impose a maximum
penalty per day per violation for
systems serving a population greater
than 10,000 individuals and this
maximum must be $ 1,000 or greater. It
is critical that States have the  authority
to impose this penalty. However,  States
are not required to  assess this per day
per violation penalty for systems serving
a population of more than 10,000
individuals. In particular cases, States
may assess lesser penalties than the
maximum penalty authorized by the
State, so long as they retain the
authority to impose a penalty of at least
$ 1,000 per day per violation.
  A State's penalty authority must be
"per day per violation." If a State has
authority for administrative penalties up
to a specific dollar amount (in total, or
as per day, or per violation), but the
authority is not expressed as an amount
"per day per violation," then the
authority is not sufficient to comply
with this requirement.
  Although not required to do so, a
State may establish an administrative
penalty cap. If a State establishes a cap,
the cap cannot be on the total
administrative penalty which may be
imposed on the system but may only be
on the total which may be imposed on
the system "per violation." For
example, a State could obtain authority
for  administrative penalties of $1,000
per day per violation, not to exceed
$25,000 for each violation. If a PWS in
that State had 3 maximum contaminant
level violations, each of which lasted a
month,  the system could be assessed an
administrative penalty of $75,000. (This
would be calculated as follows: The
PWS had 3 violations at $1,000 per day
x 30 days for each violation; thus, the
system could be assessed $90,000, if
there was no cap. However, because the
State has established a cap of $25,000
for  each violation, the PWS could only
be assessed the maximum for each
violation—$25,000 x 3 = $75,000).
Interpretation of "Adequate To Ensure
Compliance"
  The next area subject to interpretation
is what penalty is "adequate to ensure
compliance" for systems serving a
population of 10,000 or fewer
individuals. This provision is designed
to give the States flexibility in dealing
with the smaller systems. The provision
recognizes that some of the smaller
systems face special challenges in
complying with the requirements of the
SDWA and its regulations and may not
have the financial capability to pay a
large penalty. Moreover, with some of  .
the  small and very small systems, a
modest penalty can serve as a great
deterrent. In addition, assessing modest
penalties often requires less
burdensome hearing procedures and
thus can be more efficient. At the same
time, however, it must be remembered
that a good portion of the small systems
are, in fact, profit-making businesses
and therefore should not be permitted to
gain an  economic advantage through
their noncompliance with the law.
Given these factors, as well as many
others, States must determine, for
systems serving a population of 10,000
individuals or less, a level or levels of
administrative penalties which will, in
their opinion, ensure compliance. The
level can be the same as that for the
larger systems.

Determination of State Administrative
Penalty Authority
  As a part of the primacy application
review process, EPA will review the
State laws and regulations to determine
whether the State has the requisite
administrative penalty authority or
whether its constitution prohibits the
adoption of such authority. States must
submit copies of their laws and
regulations; States that believe that their
constitution prohibits administrative
penalty authority must submit a copy of
their constitution and an interpretation
from the State Attorney General. EPA's
review will likely also include a request
for a State Attorney General to provide
an interpretation of the State's authority.
The Attorney General's statement will
be needed particularly in cases where
the State laws or regulations use
different language than the SDWA. EPA
will also require States to submit a
rationale for their determination that the
chosen level of administrative penalty
authority for PWSs serving a population
of 10,000 individuals or less is
appropriate. Additionally, EPA may
request an explanation from the States
on how they plan to use their penalty
authority (that is, a penalty policy). In
today's rule, EPA is amending 40 CFR
142.11 to clarify the documentation
States must provide for EPA's review of
State administrative penalty authority.
Process for Review and Approval of
State Programs
  The process EPA will use to review
and approve State programs will vary
based on the circumstances. In cases
where the State has adequate
administrative penalty authority that is
already part of an approved primacy
program, no formal process under Part
142 is required to approve the program.
In situations where either the State has
adequate administrative penalty
authority but  it is not part of an
approved primacy program, or where
the State administrative penalty
authority is not adequate to meet the
new requirement, the State must follow
the process for primacy program
revisions in 40 CFR 142.12.
  If or when it becomes clear that a
State is not going to obtain the required
authority, or if the State is not acting in
good faith to obtain the required
authority, EPA will seek to begin the
primacy withdrawal process under 40

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CFR 142.17. There are serious
consequences if a State loses primacy,
including the loss of Drinking Water
State Revolving Fund (DWSRF) monies.
2. Interim Primacy Authority
  EPA has added new § 142.12(e) to
incorporate the new process identified
in the 1996 Amendments for granting
primary enforcement authority to States
while their applications to modify their
primacy programs are under review.
Previously, States that submitted these
applications did not receive primacy for
the changes in their State programs until
EPA approved the applications. The
new process, which is available only to
States that have primacy for every
existing national primary drinking water
regulation in effect when the new
regulation is promulgated, grants
interim primary enforcement authority
for a new or revised regulation during
the period in which EPA is making a
determination with regard to primacy
for that new or revised regulation. This
interim enforcement authority begins on
the date of the primacy application
submission or the effective date of the
new or revised State regulation,
whichever is later, and ends when EPA
makes a final determination. Interim
primacy has no effect on EPA's final
determination and States should not
assume that their applications will be
approved  based on this interim primacy.
3. Time Increase for Adopting Federal
Regulations
  EPA has amended the language in
§ 142.12(b) to increase the time for a
State to adopt new or revised Federal
regulations from 18 months to 2 years to
reflect section 1413(a)(l) as revised by
the 1996 Amendments.

4. Examples of Emergency
Circumstances That Require a Plan for
Safe Drinking Water
  The Agency has added examples of
natural disasters to § 142.10(e) to
maintain consistency and uniformity
with the statutory counterpart section
1413(a)(5), which was revised in the
1996 Amendments.
5. Revision of Public Water System
Definition
  Public water systems,  unless they
meet the four criteria enumerated in
section  1411 or qualify for a variance or
exemption under sections 1415 or 1416,
must comply with the national primary
drinking water regulations promulgated
in 40 CFR Part 141. Before the 1996
Amendments, the SDWA defined a PWS
as a system that provided piped water
for human consumption to the public
and had at least fifteen service
                         connections or regularly served at least
                         twenty-five individuals. The 1996
                         Amendments expanded the means of
                         delivering water to include not only
                         systems which provide water for human
                         consumption through pipes, but also
                         systems which provide water for human
                         consumption through "other
                         constructed conveyances." In today's
                         rule, EPA codifies this change by
                         amending the definition of "public
                         water system" in §§ 141.2 and  142.2 as
                         well as by adding or clarifying several
                         other definitions.
                           The 1996 Amendments did not
                         change the connections or users served
                         requirement. However, water suppliers
                         that became PWSs only as a result of the
                         changed definition will not be
                         considered PWSs, subject to SDWA
                         requirements, until after August 5, 1998.
                         "Service Connection" Exclusions
                           For systems which only could become
                         PWSs as a result of the broadened
                         definition, the Amendments allow
                         certain connections to be excluded, for
                         purposes of the definition, if the water
                         supplied by that connection meets any
                         of the three criteria enumerated in
                         section 1401 (4) (B)(i).
                           First, a connection is excluded where
                         the water is used exclusively for
                         purposes other than "residential uses."
                         Residential uses consist of drinking,
                         bathing, cooking, or similar uses. Next,
                         a connection may be excluded if the
                         State exercising primary enforcement
                         responsibility or the Administrator
                         determines that "alternative water" to
                         achieve the equivalent level of public
                         health protection afforded by the
                         applicable national primary drinking
                         water regulations is provided for
                         residential or similar uses for drinking
                         and cooking. The third exclusion may
                         apply where the Administrator or the
                         State exercising primary enforcement
                         responsibility determines that the water
                         provided for residential or similar uses
                         for drinking, cooking, and bathing is
                         centrally treated or treated at the point
                         of entry by the provider, a pass-through
                         entity, or the user to achieve the
                         equivalent level of protection provided
                         by the applicable national primary
                         drinking water regulations.

                         "Special Irrigation District" Exemption
                           A piped water system may be
                         considered a "special irrigation district"
                         if it was in existence prior to May 18,
                         1994, and provides primarily
                         agricultural service with only incidental
                         residential or similar use. Special
                         irrigation districts are not considered to
                         be PWSs if the system or the  residential
                         or similar users of the system comply
                         with the requirements of the  alternative
water exclusion in section
1401 (4) (B) (i) (II) or the treatment
exclusion in section 1401 (4) (B) (i) (III).

Implementation of the New PWS
Definition
  Systems newly subject to SDWA
regulations under the amended
definition of a PWS will not be
regulated until August 6,  1998, as
provided in section 1401(4)(C) of the
SDWA. States with primary
enforcement authority must revise their
programs within two years from the
effective date of this regulation to
include waters suppliers that became
PWSs only as a result of the new PWS
definition. States must follow the
process for primacy program revisions
in 40 CFR 142.12. To assist States in
revising their programs, EPA plans to
issue guidance providing a more
detailed interpretation of the new
definition and the statutory exclusions.

B. Impact of These Revisions

;. Executive Order 12866
  Under Executive Order 12866, [58 FR
51,735 (October 4, 1993)]  the Agency
must determine whether the regulatory
action is "significant" and therefore
subject to OMB review and the
requirements of the Executive Order.
The Order defines "significant
regulatory action" as one that  is likely
to result in a rule that may:
  (a) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities;
  (b) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
  (c) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
  (d) Raise novel legal or policy issues
arising out of legal mandates, the
President's priorities, or the principles
set forth in the Executive Order.
  It has been determined that this rule
is not a "significant regulatory action"
under the terms of Executive Order
12866 and is therefore not subject to
OMB review.

2. Regulatory Flexibility Act
  The Agency has determined that the
rule being issued today is not subject to
the Regulatory Flexibility Act  (RFA),
which generally requires an Agency to
conduct a regulatory flexibility analysis
of any significant impact the rule will

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                                                                     23365
have on a substantial number of small
entities. By its terms, the RFA applies
only to rules subject to notice and
comment rulemaking requirements
under the Administrative Procedure Act
(APA) or any other statute. Today's rule
is not subject to notice and comment
requirements under the APA or any
other statute because it falls into the
interpretative statement exception
under APA section 553(b) and because
the Agency has found "good cause" to
publish without prior notice and
comment. See section B.8.
3, Paperwork Reduction Act
  The information collection
requirements in this rule will be
submitted for approval to the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act, 44 U.S.C.
3501 etseq. An Information Collection
Request (ICR) document has been
prepared by EPA (ICR No. 1836.01) and
a copy may be obtained from Sandy
Farmer, OPPE  Regulatory Information
Division; U.S.  Environmental Protection
Agency (2137); 401 M Street, S.W.;
Washington, DC 20460 or by calling
(202)  260-2740. The information
requirements are not effective until
OMB approves them.
  This information collection is
necessary because the SDWA
Amendments of 1996 added a new
element to the requirements for States to
obtain and/or retain primacy for the
PWSS program. In order for EPA to
determine whether States meet the new
administrative penalty authority
requirement, States must submit a copy
of their legislation authorizing the
penalty authority and  a description of
their authority for administrative
penalties that will ensure adequate
compliance of systems serving a
population of 10,000 individuals  or less.
In accordance with the procedures
outlined in § 142.11(7)(i) and § 142.12
(c)(iii), the State Attorney General must
certifiy that the laws and regulations
were duly adopted and are enforceable.
Alternatively, if a State constitution
prohibits assessing administrative
penalties, the State must submit a copy
of the relevant provision of the
constitution as well as an Attorney
General's statement confirming that
interpretation. Furthermore, as provided
in § 142.11 (a)(7)(ii), as amended by this
rule, and § 142.12(c), EPA may
additionally require supplemental
statements from the State Attorney
General, (such as an interpretation of
the  statutory language), when the above
supplied information is deemed
insufficient for a decision.
  Collecting and reporting this
information will require a total
respondent cost burden estimated at
$37,954.63 and 696.20 hours. This
estimate includes the time for gathering,
analyzing, writing, and reporting
information. There will be no capital,
start-up, or operation and maintenance
costs. This data collection does not
involve periodic reporting or
recordkeeping. Rather, this will be a one
time effort of approximately 12 hours
and 26 minutes by each of the 56 States
who wish to adopt the administrative
penalty authority necessary in order to
obtain or retain primacy.
  Burden means the total time, effort, or
financial resources expended by persons
to generate, maintain, retain, or disclose
or provide information to or for a
Federal agency. This includes the time
needed  to review instructions; develop,
acquire, install, and utilize technology
and systems for the purposes of
collecting, validating, and verifying
information, processing and
maintaining information,  and disclosing
and providing information; adjust the
existing way to comply with any
previously applicable instructions and
requirements; train personnel to be able
to respond to a collection of
information; search data sources;
complete and review the collection of
information; and transmit or otherwise
disclose the  information.
  An Agency may not conduct or
sponsor, and a person is not required to
respond to a collection of information
unless it displays a currently valid OMB
control  number. The OMB control
numbers for EPA's regulations are listed
in 40 CFR Part 9 and 48 CFR Chapter
15.
  Send  comments on the Agency's need
for this  information, the accuracy of the
provided burden estimates, and any
suggested methods for minimizing
respondent burden, including through
the use of automated collection
techniques to the Director, OPPE
Regulatory Information Division; U.S.
Environmental Protection Agency
(2137); 401 M. Street; S.W.; Washington,
DC  20460; and to the Office of
Information and Regulatory Affairs,
Office of Management and Budget, 725
17th Street, N.W.; Washington, DC
20503; marked "Attention: Desk Officer
for EPA." Review will be in accordance
with the procedures in 5 CFR 1320.10.
Comments are requested by June 29,
1998. Include the ICR number in any
correspondence.

4. Unfunded Mandates Reform Act and
Executive Order 12875
  Title II of the Unfunded Mandates
Reform  Act of 1995 (UMRA), Pub. L.
104-4, establishes requirements for
Federal  agencies to assess the effects of
their regulatory actions on State, local,
and tribal governments and the private
sector. Under section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules
with "Federal mandates" that may
result in expenditures to State,  local,
and tribal governments, in the aggregate,
or to the private sector, of $ 100 million
or more in any one year. Before
promulgating an EPA rule for which a
written statement is needed, section 205
of the UMRA generally requires EPA to
identify and consider a reasonable
number of regulatory alternatives and
adopt the least costly, most cost-
effective or least burdensome alternative
that achieves the objectives of the rule.
The provisions of section 205 do not
apply when they are inconsistent with
applicable law. Moreover, section 205
allows EPA to adopt an alternative other
than the least costly, most cost-effective
or least burdensome alternative if the
Administrator publishes with the final
rule an explanation why that alternative
was not adopted. Before EPA establishes
any regulatory requirements that may
significantly or uniquely affect  small
governments, including tribal
governments, it must have developed
under section 203 of the UMRA a small
government agency plan.  The plan must
provide for notifying potentially
affected small governments, enabling
officials of affected small  governments
to have meaningful and timely input in
the development of EPA regulatory
proposals with significant Federal
intergovernmental mandates, and
informing, educating, and advising
small governments on compliance with
the regulatory requirements.
  Today's rule contains no Federal
mandates (under the regulatory
provisions of Title II of the UMRA) for
State, local, or tribal governments or the
private sector. The UMRA generally
excludes from the definition of "Federal
intergovernmental mandate" duties that
arise from participation in a voluntary
federal program. The requirements
under section 1413(a) of the SDWA are
only mandatory if a State  chooses to
have primary enforcement
responsibility for PWSs. Additionally,
today's rule implements requirements
specifically set forth by the Congress in
sections 1401 and 1413 of the SDWA
without the exercise of any discretion
by EPA.
  In any event, even if this rule were
not excluded from the definition of
"Federal intergovernmental mandate,"
EPA has determined that this rule does
not contain a Federal mandate that may
result in expenditures of $100 million or
more for State, local, and tribal

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governments, in the aggregate, or the
private sector in any one year.
  Thus, today's rule is not subject to the
requirements of sections 202 and 205 of
the UMRA.
  Additionally, EPA has determined
that this rule contains no regulatory
requirements that might significantly or
uniquely affect small governments,
including tribal governments. Rather,
this rule primarily affects State
governments. Therefore, this action does
not require a small government agency
plan under UMRA section 203.
  Because this rule imposes no
intergovernmental mandate, it also is
not subject to Executive Order 12875
(Enhancing the Intergovernmental
Partnership).
5. Executive Order 13045—Protection of
Children From Environmental Health
Risks and Safety Risks
  Today's action is not subject to
Executive Order 13045  [62 FR 19885
(April 23, 1997)] which requires
agencies to identify and assess the
environmental health and safety risks of
their rules on children. Pursuant to the
definitions in section 2-202, Executive
Order 13045 only applies to rules that
are economically significant as defined
under Executive Order  12866 and
concern an environmental health or
safety risk that may disproportionately
affect children. This rule is not
economically significant and does not
concern a risk disproportionately
affecting children.
6. Submission to Congress and the
General Accounting Office
  The Congressional Review Act, (5
U.S.C. 801 etseq.) as added by the
Small Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA),
generally provides that before a rule
may take effect, the agency
promulgating the rule must submit a
rule report, which includes a copy of
the rule, to each House of the Congress
and to the Comptroller General of the
United States. However, section 808
provides that any rule for which the
issuing agency for good cause finds (and
incorporates the finding and a brief
statement of reasons therefore in the
rule) that notice and public procedure
thereon are impracticable, unnecessary
or contrary to the public interest, shall
take effect at such time as the agency
promulgating the rule determines. 5
U.S.C. 808(2). As discussed in Section
B.8., EPA has made such a good cause
finding for this rule, including the
reasons therefore,  and established an
effective date of April 28, 1998. EPA
will submit a report containing this rule
and other required information to the
                         U.S. Senate, the U.S. House of
                         Representatives, and the Comptroller
                         General of the United States Office prior
                         to publication of the rule in the Federal
                         Register. This rule is not a "major rule"
                         as defined by 5 U.S.C. 804(2).

                         7. National Technology Transfer and
                         Advancement Act

                           Under section 12(d) of the National
                         Technology Transfer and Advancement
                         Act, the Agency is required to use
                         voluntary consensus standards in its
                         regulatory and procurement activities
                         unless to do so would be inconsistent
                         with applicable law or otherwise
                         impractical. Voluntary consensus
                         standards are technical standards (e.g.,
                         material specifications, test methods,
                         sampling procedures, business
                         practices, etc.) that are developed or
                         adopted by voluntary consensus
                         standard bodies. Where available and
                         potentially applicable voluntary
                         consensus standards are not used by
                         EPA, the Act requires the Agency to
                         provide Congress, through the Office of
                         Management and Budget, an
                         explanation of the  reasons for not using
                         such standards. Because this rule does
                         not involve or require the use of any
                         technical standards, EPA does not
                         believe that this Act is applicable to this
                         rule. Moreover, EPA is unaware of any
                         voluntary consensus standards relevant
                         to this rulemaking. Therefore, even if
                         the Act were applicable to this kind of
                         rulemaking, EPA does not  believe that
                         there are any "available or potentially
                         applicable" voluntary consensus
                         standards.

                         8. Administrative Procedure Act

                           Because this rule merely codifies and
                         interprets a statute, the amended
                         SDWA, it is an "interpretative rule." As
                         a result, it is exempt from the notice and
                         comment requirements for rulemakings
                         under section 553 of the APA (See
                         section 553(b)(3)(A)). In addition,
                         because this rule merely codifies
                         statutory requirements and makes
                         clarifying changes to the rules necessary
                         to implement the amended statute,
                         notice and comment is "unnecessary"
                         and thus the Agency has "good cause"
                         to publish this rule without prior notice
                         and comment (APA section
                         553(b)(3)(B)). For the same reasons, EPA
                         is making the provisions of this rule
                         effective upon promulgation, as
                         authorized under the APA (See sections
                         553(d)(2) and (3)). However, systems
                         newly subject to SDWA regulation
                         under the amended definition will not
                         be regulated until August 6, 1998 as
                         provided in the 1996 Amendments,
List of Subjects in 40 CFR Parts 141 and
142
  Environmental protection,
Administrative practices and
procedures, Intergovernmental relations,
Reporting and recordkeeping
requirements, Water supply, Indians.
  Dated: April 17,  1998.
Carol M. Browner,
Administrator.
  For the reasons set forth in the
preamble, the Environmental Protection
Agency amends  40 CFR Parts 141 and
142 as follows:

PART 141—NATIONAL PRIMARY
DRINKING WATER REGULATIONS

  1. The authority citation for part 141
continues to read as follows:
  Authority: 42 U.S.C. 300f, 300g, 300g-l,
300g-2, 300g-3, 300g-4, 300g-5, 300g-6,
300J-4, and 300j-9.

  2. In § 141.2 by revising the
definitions of non-community water
system and public water system and
adding the following definitions in
alphabetical order.

§141.2  Definitions.
*****
  Non-community water system means
a public water system that is not a
community water system. A non-
community water system is either a
"transient non-community water system
(TWS)" or a "non-transient non-
community water system (NTNCWS)."
*****
  Public water system or PWS means a
system for the provision to the public of
water for human consumption through
pipes or, after August 5, 1998, other
constructed conveyances, if such system
has at least fifteen service connections
or regularly serves an average of at least
twenty-five individuals daily at least 60
days out of the year. Such term
includes: any collection, treatment,
storage, and distribution facilities under
control of the operator of such system
and used primarily in connection with
such system; and any collection or
pretreatment storage facilities not under
such control which are  used primarily
in connection with such system. Such
term does not include any "special
irrigation district." A public water
system is either a "community water
system" or a "noncommunity water
system."
*****
  Service connection, as used in the
definition of public water system, does
not include a connection to a system
that delivers water by a constructed
conveyance other than a pipe if:

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               Federal  Register/Vol.  63, No.  81/Tuesday,  April 28, 1998/Rules and Regulations
                                                                      23367
  (1) The water is used exclusively for
purposes other than residential uses
(consisting of drinking, bathing, and
cooking, or other similar uses);
  (2) The State determines that
alternative water to achieve the
equivalent level of public health
protection provided by the applicable
national primary drinking water
regulation is provided for residential or
similar uses for drinking and cooking; or
  (3) The State determines that the
water provided for residential  or similar
uses for drinking, cooking, and bathing
is centrally treated or treated at the
point of entry by the provider, a pass-
through entity, or the user to achieve the
equivalent level of protection provided
by the applicable national primary
drinking water regulations.
*****
  Special irrigation district means an
irrigation district in existence prior to
May 18,  1994 that provides primarily
agricultural service through a piped
water system with only incidental
residential or similar use where the
system or the residential or similar users
of the system comply with the exclusion
provisions in section 1401(4)(B)(i)(II) or
(III).
PART 142—NATIONAL PRIMARY
DRINKING WATER REGULATIONS
IMPLEMENTATION

  1. The authority citation for part 142
continues to read as follows:
  Authority: 42 U.S.C. 300f, 300g, 300g-l,
300g-2, 300g-3, 300g-4, 300g-5, 300g-6,
SOOj-4, and 300J-9.
  2. In § 142.2 by revising the definition
of public water system and adding the
following definitions in alphabetical
order.

§142.2  Definitions.
*****
  Public water system or PWS means a
system for the provision to the public of
water for human consumption through
pipes or, after August 5, 1998, other
constructed conveyances, if such system
has at least fifteen service connections
or regularly serves an  average of at least
twenty-five individuals daily at least 60
days out of the year. Such term
includes:
  Any collection, treatment, storage,
and distribution facilities under control
of the operator of such system and used
primarily in connection with such
system;  and any collection or
pretreatment storage facilities not under
such control which are used primarily
in connection with such system. Such
term does not include any "special
irrigation district." A public water
system is either a "community water
system" or a "noncommunity water
system" as defined in § 141.2.
*****
  Service connection, as used in the
definition of public water system, does
not include a connection to a system
that delivers water by a constructed
conveyance other than a pipe if:
  (1) The water is used exclusively for
purposes other than residential uses
(consisting of drinking, bathing, and
cooking, or other similar uses);
  (2) The Administrator or the State
exercising primary enforcement
responsibility for public water systems,
determines that alternative water to
achieve the equivalent level of public
health protection provided by the
applicable national primary drinking
water regulation is provided for
residential or similar uses for drinking
and cooking; or
  (3) The Administrator or the State
exercising primary enforcement
responsibility for public water systems,
determines that the water provided for
residential or similar uses for drinking,
cooking, and bathing is centrally treated
or treated at the point of entry by the
provider, a pass-through entity, or the
user to achieve the equivalent level of
protection provided by the applicable
national primary drinking water
regulations.
  Special irrigation district means an
irrigation district in existence prior to
May 18, 1994 that provides primarily
agricultural service through a piped
water system with only incidental
residential or similar use where the
system or the residential or similar users
of the system comply with the exclusion
provisions in section 1401(4)(B)(i)(II) or
(HI).
*****
  3. In § 142.10 by revising paragraph
(e),  redesignating paragraph (f) as
paragraph (g) and adding paragraph (f)
to read as follows:

§142.10  Requirements for a determination
of primary enforcement responsibility.
*****
  (e) Has adopted and can implement
an adequate plan for the provision of
safe drinking water under emergency
circumstances including, but not
limited to, earthquakes, floods,
hurricanes, and other natural disasters.
  (f)(l) Has adopted authority for
assessing administrative penalties
unless the constitution of the State
prohibits the adoption  of such authority.
For public water systems serving a
population of more than 10,000
individuals, States must have the
authority to impose a penalty of at least
$1,000 per day  per violation. For public
water systems serving a population of
10,000 or fewer individuals, States must
have penalties that are adequate to
ensure compliance with the State
regulations as determined by the State.
  (2) As long as criteria in paragraph
(f)(l) of this section are met, States may
establish a maximum administrative
penalty per violation that may be
assessed on a public water system.
*****
  4. In § 142.11 by redesignating
paragraph (a) (6) as paragraph (a) (7) and
adding new paragraph (a) (6) to read as
follows:

§142.11   Initial determination of primary
enforcement responsibility.
  (a) *  *  *
  (6) (i) A copy of the State statutory and
regulatory provisions authorizing the
executive branch of the State
government to impose  an administrative
penalty on all public water systems, and
a brief description of the  State's
authority for administrative penalties
that will ensure adequate compliance of
systems serving a population of 10,000
or fewer individuals.
  (ii) In instances where  the State
constitution prohibits the executive
branch of the State government from
assessing any penalty, the State shall
submit a copy of the applicable part of
its constitution and a statement from its
Attorney General confirming this
interpretation.
*****
  5. Amend § 142.12, by  revising
paragraph (b)(l) and by adding
paragraph (e) to read as follows:

§ 142.12   Revision of State programs.
*****
  (b) *  *  *
  (1) Complete and final  State requests
for approval of program revisions to
adopt new or revised EPA regulations
must be submitted to the  Administrator
not later than 2 years after promulgation
of the new or revised EPA regulations,
unless the State requests  an extension
and the  Administrator has approved the
request pursuant to paragraph  (b) (2)  of
this section. If the State expects to
submit a final State request for approval
of a program revision to EPA more than
2 years after promulgation of the new or
revised EPA regulations,  the State shall
request an extension of the deadline
before the expiration of the 2-year
period.
*****
  (e) Interim primary enforcement
authority. A State with an approved
primacy program for each existing
national primary drinking water
regulation shall be considered  to have
interim primary enforcement authority

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23368        Federal Register/Vol. 63, No. 81/Tuesday, April 28, 1998/Rules  and Regulations


with respect to each new or revised
national drinking water regulation that
it adopts beginning when the new or
revised State regulation becomes
effective or when the complete primacy
revision application is submitted to the
Administrator, whichever is later, and
shall end when the Administrator
approves or disapproves the State's
revised primacy program.
[FR Doc. 98-11260 Filed 4-27-98; 8:45 am]
BILLING CODE 6560-50-P

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