United States Office of Water EPA 812-R-92-003
Environmental Protection (WH-550) June 1992
Agency
4>EPA Guidance on Enforcement of the
Requirements of the Surface Water
Treatment Rule
HEADQUARTERS LIBRARY
ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC 20460
JUN 26 1992
MEMORANDUM
SUBJECT: Guidance on Enforcement of the Requirements of the
Surface Water Treatment. Ru]
FROM: James R. Elder,
Office of Grojznd Water and Drinking Wat
Frederick F. Stiehl '
Enforcement Counsel/tor Water
TO: Water Management Division Directors
Regions I - X
Regional Counsels
Regions I - X
The purpose of this memorandum is to provide guidance on
enforcement of the Surface Water Treatment (SWT) rule and to
resolve specific issues which have arisen over the past several
months. This guidance covers only the portions of the SWT rule
dealing with unfiltered systems remaining unfiltered and those
unfiltered systems which must filter. Guidance on enforcement of
the provisions of the rule dealing with filtered systems will be
issued at a later date.
The SWT rule is one of the Office of Ground Water and
Drinking Water's highest priorities for enforcement. The rule
will protect a large portion of the U.S. population from
microbiological contaminants as it covers systems in several
major metropolitan areas as well as a great number of smaller
systems. Given the importance of this rule to protecting public
health, we are taking an aggressive approach to implementing and
enforcing it and expect Regions and States to do the same.
Filtration decisions for all surface systems should have been
made by December 29, 1991. Systems that are required to filter
must have filtration in place by the June 29, 1993 deadline or
they will become significant noncompliers (SNCs) on that date.
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Once a system becomes a SNC, our timely and appropriate
guidance states that it must be addressed by an appropriate
enforcement action within six months. In order to avoid having a
large number of SNCs in June 1993, which would be very difficult
to address by December 1993, our strategy is to begin and, where
possible, complete actions on as many systems as possible prior
to June 1993.
The SWT rule is different from other drinking water
regulations in two respects. First, it requires installation of
a treatment technique and operation of that treatment to meet
specified performance criteria. Secondly, Section 1412(b)(7)(C)
of the SDWA imposed a deadline for treatment installation. These
factors substantially affect the manner in which we are able to
enforce this regulation.
The statutory deadline requiring filtration by June 29,
1993, limits the Agency's flexibility in choosing an enforcement
mechanism. Court decisions, as well as past Agency practice,
state that judicial action is needed to extend a statutory
deadline. The rationale for this considers the separation of
powers — the legislative branch imposed the deadline in the
passage of the statute; the executive branch is responsible for
implementing and enforcing the laws. It cannot, by itself,
(i.e., in an administrative action) change a deadline set by the
legislature; however, the courts can extend statutory deadlines
within their equitable powers. Therefore, an enforcement action,
taken before the statutory deadline has passed, which acts to
extend that deadline, must be judicial. Once that deadline has
passed, however, an executive agency is no longer acting to
extend a deadline; rather, it is dealing with systems that have
violated the deadline. In these instances, the agency may pursue
either a judicial or an administrative action.
This case law and its interpretation pose some significant
practical difficulties for enforcement. Our guidance on
enforcement attempts to deal with these to the extent we have the
flexibility.
The major points of our guidance are as follows:
- State or federal enforcement actions are appropriate; in
fact, we encourage the Regions to work cooperatively with their
states to divide the workload associated with this rule.
- Enforcement actions taken before June 29, 1993, should be
brought judicially, because these actions will have the effect of
extending the statutory deadline for the installation of
filtration.
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- Given resource constraints and the number of systems which
should be addressed, Regions and States should consider the
possibility of combining actions against several small systems
into one judicial action.
- States and Regions should set priorities for judicial
action based on system size, risk to public health, and available
resources. All large systems (those serving 10,000 or more
persons) should be incorporated into State or federal judicial
actions.
* We recognize that, from a practical standpoint, neither
EPA nor the States can address all systems with judicial actions.
Moreover, we recognize the importance of aggressively working to
get systems on schedules to install filtration. Therefore, we
anticipate that some of the smaller systems (those serving less
than 10,000 persons) may be addressed by administrative actions.
However, we encourage States and Regions to work to file judicial
actions on as many of the smaller systems as resources will
permit.
Attachment 1 contains our guidance on enforcement of the SWT
rule. He have discussed this guidance with your staff at
national meetings, have received and considered numerous comments
and have incorporated these where possible into the document.
Attachment 2 is a summary of the comments we have received and
our responses to those comments. We thank all of you for your
efforts in assisting us in finalizing this guidance document.
In order to insure full and consistent enforcement and
implementation of the SWT rule, we will be working closely with
you and your staff over the next several months. We would
appreciate being informed of actions being taken against large
systems before they are final. Moreover, we will be analyzing
the status of filtration determinations and needed enforcement
actions for systems serving less than 10,000 persons this summer
as all the data on these is due to FRDS by June 1, 1992.
Should you have any questions on this document please do not
hesitate to call either one of us or have your staffs contact
Betsy Devlin, PWSS Compliance and Enforcement Section (FTS 260-
5550), Clive Davies, Regional Coordination Section (FTS 260-1421)
or Mimi Guernica, Office of Enforcement (FTS 260-8320).
Attachment
cc: Drinking Water/Groundwater Protection Branch Chiefs
Office of Regional Counsel Water Branch Chiefs
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ENFORCEMENT OF THE REQUIREMENTS OF THE
SURFACE WATER TREATMENT RULE
EXECUTIVE SUMMARY
Implementation and enforcement of the SWT rule is one of the
highest priorities of the Office of Ground Water and Drinking
Water. Our goal is to have all surface systems:
- operating in accord with the requirements for unfiltered
systems after meeting the avoidance criteria;
- have filtration installed and be operating in accord with
the requirements for filtered systems; or
- be subject to a schedule for complying with the rule.
The rule itself and the deadline.imposed by the SDWA limit
somewhat our flexibility to choose an enforcement mechanism;
however, EPA and the States will act aggressively to insure
full implementation and enforcement of this rule.
Filtration Determinations
According to SDWA Section 1412(b)(7)(C), states were
required to make filtration determinations on all surface water
systems by December 29, 1991. In States which failed to make
determinations for surface water systems, EPA will make those
decisions. It is hoped that such decisions will, in fact, be
agreed upon by both EPA and the State. In the case where EPA and
the State are making the decision jointly, a letter, signed by
both EPA and the State, is the appropriate means of notifying the
system of the determination that it must filter or that it may
remain unfiltered. If EPA acts on its own because the State has
not made a determination and because the state has elected not to
participate in the decision making process, a letter signed by
EPA is the appropriate means of notifying the system of the
filtration determination. Should EPA have information to suggest
that the State has not applied the avoidance criteria properly,
EPA will use the procedures specified in 40 ££& 142.80 and 142.81
to review and/or rescind State determination(s).
Systems that fail to submit information to the State to
demonstrate that they, meet the criteria to avoid filtration
should be required to filter.
Executive Summary Page 1
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Violations
m Unfiltered Systems Allowed to Remain Unfil tiered.
If a system is monitoring so that it may remain unfiltered,
any failure to meet the avoidance criteria in 40 CFR 141.71 or
the disinfection requirements for unfiltered systems in 40 CFR
141. 72 (a) on or after December 30, 1991 constitutes a violation
of the SWT rule. (These violations may cause the system to be
required to install filtration. See the SWT Implementation
Manual for a detailed description of the violations that vill
trigger filtration.)
(2\ Unfiltered Systems Required to Filter.
If a system is required to filter, a failure to meet the
June 29, 1993 deadline (or the deadline 18 months after the state
determines that filtration is required) for installing filtration
or any failure to meet interim disinfection requirements
specified by the State constitutes a violation of the SWT rule
and causes a system to become a significant noncomplier (SNC) .
Once filtration is in place, these systems must meet the disin-
fection requirements for filtered systems in 40 CFR 141. 72 (b) .
(3) Filtered Systems.
For systems with filtration already in place, a failure to
meet the monitoring or performance requirements of the rule,
including disinfection requirements for filtered systems, after
June 29, 1993 is a violation of the SWT rule.
Responses to Violations
As with any violation, EPA and the States have several types
of response actions at their disposal — "informal* enforcement
actions, formal enforcement actions, or exemptions under Section
1416 of the SOWA. Exemptions under Section 1416 of the SOW A may
be granted for any of the requirements of the SWT rule, except
the requirement for a continuous disinfectant residual of 0.2
mg/1 at the entry point to the distribution system. This
requirement is found at -40 CFR 141. 72 (a) (3) for unfiltered
systems and 40 CFR 141.72(b)(2) for filtered systems. Variances
are not available under the SWT rule as Section 1412 (b) (7) (C) (ii)
of the SDWA states that "in lieu of the provisions of section
1415 the administrator shall specify procedures by which the
State determines which public water systems within its
jurisdiction shall adopt filtration under the criteria of clause
The statutory deadline requiring filtration by June 29,
1993, limits the Agency's flexibility in choosing an enforcement
mechanism. Court decisions, as well as past Agency practice,
Executive Summary Page 2
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state that judicial actions are needed to extend a statutory
deadline. Enforcement actions taken before June 29, 1993, should
be brought judicially because these actions will have the effect
of extending the statutory deadline. After June 29, 1993, the
States and EPA may pursue judicial or administrative actions.
However, systems serving more than 10,000 persons should be
addressed by judicial actions and we strongly encourage States
and Regions to pursue judicial actions on a number of the smaller
systems.
From a practical perspective we recognize that neither EPA
nor the States can address all systems with judicial actions.
Moreover, we recognize the importance of aggressively working to
place systems on schedules to install filtration. Therefore, we
anticipate that some of the smaller systems (those serving less
than 10,000 persons) may be addressed by administrative actions.
However, we encourage States and Regions to work to file judicial
actions on as many of the smaller systems as resources will
permit. We encourage the States and Regions to consider
consolidating actions against several small systems into one
judicial action.
In addition, due to resource constraints and a lack of
administrative enforcement mechanisms in some States, we will
permit the use of bilateral compliance agreements (BCAs) in very
limited circumstances. First, they may be used only for systems
serving less than 10,000 persons. Secondly, the BCAs should be
used only in those States which lack administrative order
authority. Finally, they must be signed by both the State and
the system, contain a schedule with interim milestones, and must
be used only with systems with a history of being in compliance
with the SDWA and acting in good faith. Violations of the
schedule in the BCA will be dealt with by a judicial enforcement
action. Please note that although this guidance allows BCAs as a
means of addressing the smaller systems, they are not formal
enforcement actions and they will not act as a shield to protect
systems from citizen suits under Section 1448 of the SDWA. This
fact may affect a Region's or a State's decision on how to
proceed.
The following guidance deals more specifically with the
requirement for a Stat* determination on which systems are
required to filter and provides detail on the responses to the
violations enumerated on pages 1 and 2 in this summary.
Executive Summary Page 3
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ENFORCEMENT OF THE REQUIREKENT8 OF THE
SURFACE WATER TREATMENT RULE
Introduction.
The purpose of this document is to provide guidance on
several specific issues relating to the enforcement of the
Surface Water Treatment (SWT) Rule (40 fi£B Subpart H). This
guidance deals with the provisions of the SWT rule relating to
unfiltered systems. Enforcement of the requirements relating to
filtered systems will be dealt with in a later document.
The specific issues involve the action a State or EPA is to
take to address the following:
A. Requirement for a State filtration determination by
December 29, 1991.
B. PWSs monitoring to remain unfiltered, but not meeting the
criteria for avoiding filtration.
C. PWSs required to filter but cannot or will not meet the
June 29, 1993 deadline for the installation of filtration.
D. Systems which have not submitted to the State all of the
required information to demonstrate that they meet (or will
meet) the avoidance criteria in 40 CFR 141.71.
(A) Requirement for a State Filtration Determination by December
29, 1991.
According to SDWA Section 1412 (b) (7) (C) (ii), EPA was
required to specify procedures by which the State will determine
which systems within its jurisdiction would be required to
filter. EPA did this in the final Surface Water Treatment Rule
which was promulgated on June 29, 1989.
Under SDWA Section 1412(b)(7)(C)(iii), states with primacy
were to adopt regulations to implement EPA's regulations within
18 months of promulgation (i.e., by December 29, 1990). Within
12 months after that (i.e., by December 29, 1991), the state was
to make determinations regarding filtration for all public water
systems within its jurisdiction.
Enforcement Guidance Page 1
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If a State has not made determinations for all pwss within
its jurisdiction, EPA will make those determinations. It is
hoped that such a decision can be made jointly by EPA and the
State. In the case where EPA and the State are making the
decision jointly, a letter, signed by both EPA and the state is
the appropriate means of notifying the system of the
determination that it must filter or that it may remain
unfiltered. If EPA acts on its own because the state has not
made a determination and because the State has elected not to
participate in the decision making process, a letter signed by
EPA is the appropriate means of notifying the system of the
filtration determination.
In addition, should EPA have information to suggest that
the State has applied the avoidance criteria incorrectly or
abused its discretion in making filtration determinations, the
Agency will employ the procedures specified in 40 CFR 142.80 and
142.81 to review and/or rescind State determinations.
(B) pwss Monitoring to Remain Unfiltered, But Mot Meeting the
Criteria for Avoiding Filtration.
fl) Background/Discussion of Statutory/Regulatory
Requirements.
According to 40 ££fi 141.71, a PWS must meet all the source
water quality conditions [141.71(a>] and all the site specific
conditions [141.71(b)j beginning on December 30, 1991, unless the
State has determined in writing that filtration is required. As
noted above, a State must have determined by December 29, 1991,
which of its surface water systems must filter and which meet the
criteria for avoiding filtration on a continuing basis.
One of the underlying premises of the SWT rule is if a
system cannot meet the avoidance criteria by December 1991, then
that system should be required to filter. The issue which has
arisen, however, is can a State (or a Region) allow a system
which does not meet the avoidance criteria (but can demonstrate
through engineering studies or other means discussed in (b) on
the following pages that it will meet those criteria) additional
time to meet the criteria? If so, what method(s) is a state or a
Region to use to deal with such a system?
(21 Discussion of EPA Guidance.
A PWS that is monitoring to remain unfiltered and does not
meet the avoidance criteria or the disinfection requirements for
unfiltered systems on or after December 30, 1991, is in violation
(ft
Enforcement Guidance Page 2
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of the SWT rule. The State or EPA should take an action to bring
the system into compliance with the rule. There are two
appropriate actions:
(a) a determination that the system must install filtration;
or
(b) an action which orders the system to correct the
deficiency in its operations and therefore meet the
avoidance criteria or the disinfection requirements.
fa.) A Determination that the flv«t«m Must Install Filtration.
Should the State determine that the system does not meet the
avoidance criteria and from all the information available to the
State, it is unlikely that the system will be able to do so (or
will be able to do so in a reasonable time [generally 6 months to
1 year)), the State is to require the system to install
filtration. For any determination made on or prior to December
29, 1991, the deadline for the installation of filtration is June
29, 1993. For any determination made after that date, the
deadline for the installation of filtration is 18 months from the
date the determination is made. (See SDWA Section
1412(b)(7)(C)(ii) and 40 CFR 141.71.)
Systems ordered to filter should be placed on schedules
pursuant to consent decrees, administrative orders, or bilateral
compliance agreements (only for systems serving less than 10,000
persons) as explained in Section C of this guidance.
The burden is on the system to demonstrate to the State that
it meets (or will meet) the avoidance criteria. If the system
has not made such demonstration, the State must order filtration.
(b) Orders to Comply with the Avoidance Criteria.
If the system has submitted information to the State that
enables the State to determine that it is likely the system will
be able to meet the avoidance criteria and/or disinfection
requirements through modifications in its system in a reasonable
time, the State may issue an order (or file a civil action)
requiring the system to complete the modifications to its system
as expeditiously as possible. The State should not allow the
system any more than six months to one year for completion of
these modifications. -
Enforcement Guidance Page 3
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If the State elects to use this option, the State would:
(1) report that the system is in violation of the SWT (as
soon as the violation occurs);
(2) issue an administrative order or file a civil action to
place the system on an enforceable schedule.
This option essentially grants the system additional time to
meet the avoidance criteria and should therefore be used only in
very limited cases; for example, where the system has submitted
the results of engineering studies which show that through
modifications to a clear well, the contact time (CT) multiplied
by the disinfectant residual concentration will be increased so
that the system will meet the requirements in 40 CFR 141.71.
This option should not be used in cases where the system has not
submitted information that demonstrates that through specific
modifications it can meet the avoidance criteria.
Once a system incurs a violation of the SWT regulation, EPA
can issue an administrative order or file a civil action to
require compliance with the rule. It is expected that systems
could experience such violations in approximately February or
March of 1992.
A State or federal administrative order (or consent decree)
granted under this option should generally contain at least the
following elements:
- Specific steps (interim milestones) the system must take
and deadlines for their completion.
- Stipulated penalties in State and federal consent decrees
and in state orders (if allowed under state law) for
violations of those milestones.
- A requirement that the system continue to comply with the
monitoring/reporting requirements for unfiltered systems and
any other monitoring/reporting that the State determines is
necessary to insure protection of public health;
• A requirement that the system continue to meet the
disinfection requirements in 40 CFR 141.72 or the interim
disinfection requirements set by the State.
• A requirement to perform public notification as required
by 40 CFR 141.32.
Enforcement Guidance Page 4
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- A significant penalty for violations of the final date for
compliance. Federal orders would contain the standard
language on the consequences of violating a federal
administrative order. The order should also state clearly
that failure to comply may result in a determination that
the system will be required to install filtration due to
inability to meet the avoidance criteria.
We recognize that site-specific considerations win
determine the precise terms of any order. This guidance is not
meant to eliminate that flexibility; rather it emphasizes the
need for standardized, aggressive action.
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(b) Appropriate Actions.
(1} Backround.
The SWT rule is different in two important respects from
other drinking water regulations which require compliance with
maximum contaminant levels (MCLs) . First, it requires
installation of a treatment technique and operation of that
treatment to meet specified performance criteria. Secondly,
Section 1412 (b) (7) (C) of the SDWA imposed a deadline for
treatment installation. These factors substantially affect the
manner in which we are able to enforce this regulation.
The statutory deadline requiring the installation of
filtration by June 29, 1993, limits the Agency's flexibility in
choosing an enforcement mechanism. Court decisions, as well as
past Agency practice, state that judicial action is needed to
extend a statutory deadline. The rationale for this considers
the separation of powers — the legislative branch imposed the
deadline in the passage of the statute; the executive branch is
responsible for implementing and enforcing the laws. It cannot,
by itself (i.e., in an administrative action) change a deadline
set by the legislature; however, the courts can extend statutory
deadlines within their equitable powers. Therefore, an
enforcement action taken before the statutory deadline has
passed, which acts to extend that deadline, must be judicial.
Once that deadline has passed, however, an executive agency is no
longer acting to extend a deadline; rather, it is dealing with
systems that have violated the deadline. In these instances, the
agency may pursue either a judicial or an administrative action.
This case law and its interpretation pose some significant
practical difficulties for enforcement. This guidance attempts
to deal with these to the extent we have the flexibility.
(2) Enforcement Actions.
One of the fundamental principles of this guidance is that
State or federal enforcement actions are appropriate for
enforcing the requirements of the SWT rule. Regions and States
should work cooperatively to divide the workload associated with
this rule.
Enforcement actions taken before June 29, 1993, should be
brought judicially because such enforcement actions will have the
effect of extending the statutory deadline for compliance.
Administrative actions may be appropriate for enforcing other
requirements in the regulation, for example, disinfection
requirements or monitoring and reporting requirements.
Enforcement Guidance Page 6
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After June 29, 1993, both EPA and the States have the
flexibility to pursue either judicial or administrative actions
for systems which do not have filtration in place. While
judicial actions are resource intensive, they have many benefits,
such as the imposition of a schedule enforceable by a court and
stipulated penalties for violations of the schedule. In
addition, the presence of a consent decree can act to insure that
needed financing or rate increases are approved by local
authorities.
In determining whether to pursue a judicial or
administrative action, EPA Regions and States should carefully
consider the advantages of judicial actions as well as the
following factors: size of the system, the length of the
compliance schedule, "good faith efforts" of the system to
comply, the appropriateness of a penalty, the financial condition
of the system (for example, the need by the system to raise rates
or sell bonds), and the strength of State administrative
authorities (for example, the ability of a State to assess
stipulated penalties for violations of interim milestones in an
administrative order).
Due to resource constraints and a lack of administrative
enforcement mechanisms in some States, States will be permitted
to use bilateral compliance agreements (BCAs) in very limited
circumstances. First, a BCA may only be used to address systems
serving less than 10,000 persons. Secondly, a BCA should only be
used by those States that lack administrative order authority or
an effective judicial process. Finally, a BCA must conform to
the requirements stated in EPA's timely and appropriate guidance;
that is it must:
• Be signed by both parties;
• Contain a compliance schedule with interim milestones;
- Not be used with a recalcitrant or repeat violator.
Moreover, the BCA should specify any monitoring and interim
disinfection requirements. Failure to adhere to the schedule or
other terms of the BCA should result in a prompt formal
enforcement action by the State or EPA.
Please note that although this guidance allows BCAs as a
means of addressing the smaller systems, they are not enforceable
and are not formal enforcement actions. Therefore, they will not
act as a shield to protect systems from citizen suits under
Section 1448 of the SDWA.
Enforcement Guidance Page 7
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(31 Priorities.
Due to the number of systems that are affected by the SWT
rule and the limited State and federal enforcement resources,
States and Regions should set priorities for enforcement action
based on system size and risk to public health. This guidance
recognizes that States and Regions will not be able to address
all systems with judicial actions. However, it is important to
aggressively work to place systems on schedules to install
filtration. Therefore, EPA anticipates that administrative
actions against some of the smaller systems (those serving less
than 10,000 persons) will not be completed until after June 1993.
However, Regions and States should use the time before June 1993
to negotiate these schedules so that issuing the final
administrative action can take place as soon as possible after
the expiration of the statutory deadline. However, as noted
above, States and Regions are encouraged to file judicial actions
on as many systems as resources will permit. In addition, States
and Regions are encouraged to combine actions against a number of
small systems into one judicial action.
(4) Conten^ of Consent Decrees or Administrative
Orders Requiring the Installation ofFiltration.
Having specified the types of enforcement action that can be
taken, it is now appropriate to consider what items should be in
a consent decree settling a civil judicial action or in an
administrative order.
An order or consent decree requiring the installation of
filtration should generally contain the following:
- A schedule for the installation of filtration/disinfection
with interim milestones;
- Interim disinfection requirements;
- Monitoring/reporting requirements, including the
requirement for periodic progress reports to insure that the
system is complying with the schedule for installation of
filtration and with interim disinfection requirements;
- Stipulated penalties in State and federal consent decrees
and in State administrative orders (if allowed under State
law) for violations of the milestones, the interim
disinfection requirements, and the monitoring requirements.
Enforcement Guidance Page 8
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- An "up-front" penalty in State and federal consent decrees
and in State administrative orders (if allowed under State
lav) for violations of the regulations. The penalty should
be determined in a manner consistent with Agency penalty
policy and should cover the economic benefit of
noncompliance plus a component for the gravity of the
violations.
- A final date for compliance, with substantial penalties
for missing that date. •
Site specific considerations will determine the precise
terms in any order or consent decree. This guidance is not meant
to decrease the flexibility needed to deal with individual
systems .
(cl other Issues.
Penalties.
In civil judicial cases, the up front penalty should cover
the economic benefit of noncompliance plus a gravity component.
Stipulated penalties for violations of interim milestones and for
violations of the final compliance date should be included in the
consent decree with the amounts dependent on the individual facts
in the case. The stipulated penalties should be reasonable, but
should be sufficiently high to compel compliance with the agreed
upon schedule.
In administrative actions, penalties should be assessed for
violations of the law or regulations where the State has the
authority to do so. EPA does not currently have the authority to
assess a penalty in an administrative order, but will assess
penalties for violations of terms of final administrative orders.
Exemtions .
Section 1416 of the SDWA provides States the authority to
grant exemptions from any maximum contaminant level or treatment
technique requirement upon a finding that:
- due to compelling factors the PWS is unable to comply;
- the PWS was in operation on the effective date of the
regulation or, for a system that was not in operation on that
date, that no reasonable alternative source is available; and
- the granting of the exemption will not result in an
unreasonable risk to health.
Enforcement Guidance Page 9
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The SWT rule states that exemptions nay be granted for all
requirements except the requirement for a continuous disinfectant
residual of 0.2 mg/1 at the entry point to the distribution
system. This requirement is found at 40 CFR 141.72(a)(3) for
unfiltered systems and 40 CFR 1412.72(b)(2) for filtered systems.
Under SDWA Section 1416, if the State grants an exemption,
at the time the exemption is granted, the State must prescribe a
compliance schedule. Such schedule must require compliance
within 12 months after the issuance of the exemption. This date
may be extended for up to two years if the system establishes
certain items listed in Section 1416. In addition, for systems
serving less than 500 service connections, the exemption may be
renewed for one or more additional 2 year periods if it
establishes that it is taking all practicable steps to meet the
requirements.
Any requirement of an exemption may be enforced by EPA under
Section 1414 as if it were a national primary drinking water
regulation.
If a State elects to grant exemptions to the requirements of
the SWT rule, EPA should oversee these closely. Exemptions with
tight compliance schedules (with penalties for missing deadlines
if allowed under State law) may be effective in some states. EPA
should monitor compliance with the terms of exemptions; if these
are violated, an administrative or judicial formal enforcement
action should be taken promptly against the system.
(3) Federal Actions in Advance of June 29, 1993
Deadline.
We have considered the authority of the Agency to initiate
enforcement actions in advance of the June 29, 1993 deadline for
the installation of filtration. For EPA to pursue either a
unilateral administrative or civil action under Section 1414,
there must be a violation of a national primary drinking water
regulation or of a requirement of a variance or an exemption.
For systems that are required to install filtration, there
will be limited violations of the SWT regulations prior to June
1993. However, violations of the total coliform regulation, the
TTHM MCL, or the turbidity monitoring/reporting requirements
could form the basis of a federal action.
Even if EPA cannot take a formal action prior to the June
deadline, it is important to develop a record that will support
either an administrative or judicial action after June 1993. To
this end, Regions should begin planning which systems may be
appropriate for federal actions and begin developing and
maintaining the appropriate records for judicial or
Enforcement Guidance Page 10
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administrative actions. We encourage each Region to contact the
systems it is planning to address and to begin the process of
negotiating schedules for inclusion in consent decrees or final
administrative orders. In addition, we encourage the Regions to
develop litigation reports for those systems for which judicial
actions vill be pursued and, with headquarters involvement as
appropriate, pursue pre-referral or pre-filing negotiations prior
to June 1993. Then, after June, the Region will be able to
refer, file, and settle a civil case or issue a final
administrative order more quickly than if all of the preparation
were left until the statutory deadline had passed.
Headquarters will be working with the Regions to target
appropriate systems for this effort. •Initially, we will be
looking at those systems serving more than 10,000 persons.
(4) 1431 Actions.
EPA always has the option of taking actions under Section
1431 where there is or may be an imminent and substantial
endangerment to health. This authority is independent of any
regulatory deadlines or other requirements. Under this
authority, EPA may order whatever actions are necessary to
protect the health of persons, including the installation of
filtration. See Water Supply Guidance Number 87 for additional
details on using Section 1431 authorities. Please note, however,
that the presence of the statutory deadline will limit us to
taking 1431 judicial actions prior to June 1993.
(5} Criminal Actions.
In addition, should EPA or the State suspect that a system
has or is falsifying its monitoring results or other information
about its system, EPA or the State should begin a criminal
investigation. Criminal charges should be brought if warranted
by the evidence uncovered in the investigation. Such
investigations can be done at any time and are not dependent on a
violation or on the passage of the June 1993 statutory deadline.
Such criminal actions would not supersede a civil action
requiring installation of filtration.
61 Data Verifications/Review of Sstem Recorda/Sita
We encourage EPA Regions and/or the States to review system
records through data verifications or on site visits. These
reviews will assist EPA or the States in confirming the
facility's compliance with the SWT rule or they may provide EPA
or the State the information needed for an enforcement action.
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(D) Systems that have not submitted to the state all of the
required information to demonstrate that they meet (or vill meet)
the avoidance criteria in 40 CPR 141.71.
By December 29, 1991, States were required to determine
whether all systems using surface waters must filter or may avoid
filtration. According to 40 CFR 141.71, the system was required
to submit information to the State that demonstrates that it
meets the avoidance criteria. If a system has not submitted
complete information (e.g., 12 months of monitoring data, a
complete description of its watershed control program), it is in
violation of the monitoring and reporting requirements in 141.75;
however, the state is still required to make a determination. In
this case, the State should make a determination based on the
available information.
The burden of proof is on the system to show it can avoid
filtration; the State does not need to demonstrate to the system
why it must filter. Three situations arise:
(1) The system has submitted data, but it does not
constitute a comprehensive or convincing argument for
continuing to avoid filtration: the State should require
the system to filter.
(2) The system has not submitted any data: the State should
move aggressively to order the system to filter and insure
that the system installs filtration. The State should also
find the system in violation of the monitoring and reporting
requirements of the SWT rule.
(3) The system has made a convincing demonstration that it
meets the "subjective" criteria for avoiding filtration,
i.e., that it has an adequate watershed control program.
Further, the system has submitted some (but not all) of the
required monitoring data and that data seem to indicate that
the system will meet the remaining criteria for avoiding
filtration. In this case, the State should first find the
system in violation of the monitoring and reporting
requirements. Secondly, the State may either : (a) order
the system to filter since it has not submitted all of the
required information to allow it to remain unfiltered; or
(b) order it to submit the remaining data as soon as
possible but no later than a certain date (6 months should
be the maximum time allowed). The order could also state
that if the system fails to submit the required data on
time, it will be ordered to filter.
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Should that system later incur violations or monitoring data
indicates that the system needs to filter, the State would
so notify the system. In that case, the deadline is 18
months from that determination. The State should proceed in
accord with the guidance presented earlier in this document.
Disclaimer.
This document on enforcement of the surface water treatment
rule is a statement of Agency policies and principles. It does
not establish or affect legal rights or obligations. This
guidance document does not establish a binding norm and is not
finally determinative of the issues addressed. Agency decisions
in any particular case will be made by applying the law and
regulations to the specific facts of the case. The Agency may
take action at variance with this guidance.
Enforcement Guidance Page 13
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